Petition — Carlyle v. United States

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

DONALD R. CARLYLE, WILLIAM BRADFORD WATTS and

BERNARD P. REID,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

' PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

APOIAN, ROSS & FUNK, P.C.

110 North Main Stet

East St. Louis, Illinois 62201

Telephone (618) 875-6900

Attorneys for Petitioners

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

a al

TABLE OF CONTENTS

Page

ee GENIE 66-4 60-66 dv ce usleee'ecw's This page

II. Citations to Opinions Below ............ ine OS

OS re Cr rr ree 2

a I SE, cp ou rae, .buaeauniee ep eee'ad 3

V. Constitutional Provisions, Statutes and Rules In-

ee ee Pe re ere 3

Se EE avnalb UmAwn Soe odo ease eek eRe ees 4

VII. Reasons for Granting Writ ..... Le Ee Leap 5

ee EE, NAb eR ae ese es cha Boden e sade 12

ee SE — ano 5 66 bak ee 4nd eanbenenneses A-|

AUTHORITIES CITED

Cases

Alderman v. United States, 394 U.S. 165 (1967) ..... 7,9

United States v. Bertolotti, 75-1107 (2d Circ. 11-10-75) 10

United States v. Bridges, 499 F. 2d 179 (7th Circ. 1974) 11

United States v. Giordano, 440 F. 2d 449 (6th Circ. 1971) 9

United States v. Gratton, 75-1232 (7th Circ. 11-6-75) .. 11

United States v. Huss, 482 F. 2d 38 (2d Circ. 1973) .... 6,8

United States v. Kotteakos, 328 U.S. 750 (1945) ...... 10

United States v. Ramsey, 503 F. 2d 524 (7th Circ. 1974),

Cert. denied, 420 U.S. 932 (1975) ............... 7

Statutes

Pe ND 04 6.60006 v.05 5 ck be eke awe 3, 7, A-16 IN THE

J Ae Le lV eee Se

MOE MND no. oo edos cide, 3,7, A23 SUPREME COURT OF THE UNITED STATES

United States Constitution

ee 3,9, A-25 OCTOBER TERM, 1975

DONALD R. CARLYLE, WILLIAM BRADFORD WATTS and

BERNARD P. REID,

Petitioners,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Seventh Circuit

Petitioners, DONALD R. CARLYLE, WILLIAM BRAD-

FORD WATTS and BERNARD P. REID, pray that a Writ

of Certiorari issue to review the judgment of the United States

Court of Appeals for the Seventh Circuit, entered on the above-

captioned cause on January 16, 1976; petition for rehearing

en banc being denied on April 27, 1976.

|

|

CITATIONS TO OPINIONS BELOW

Petitioner, DONALD R. CARLYLE, was convicted of five

substantive offenses and one count of conspiracy in a jury trial

before the Honorable Judge Robert Morgan on October 17,

1974 in the United States District Court for the Southern Dis-

trict of Illinois, Alton Division, No. A-CR-74-12. Petitioner

was sentenced to 13 years in prison on December 10, 1974.

Petitioner, WILLIAM BRADFORD WATTS, was convicted

of 4 substantive offenses and one count of conspiracy in a jury

trial before the Honorable Judge Robert Morgan on October

17, 1974 in the United States District Court for the Southern

District of Illinois, Alton Division, No. A-CR-74-12. Petitioner

was sentenced to 13 years in prison on December 10, 1974.

Petitioner, BERNARD P. REID, was convicted of 2 sub-

stantive offenses and one count of conspiracy in a jury trial

before the Honorable Judge Robert Morgan on October 17,

1974 in the United States District Court for the Southern Dis-

trict of Illinois, Alton Division, No. A-CR-74-12. Petitioner

was sentenced to 13 years in prison on December 10, 1974.

JURISDICTION

The judgment that is sought to be reviewed is the final order

issued in the United States Court of Appeals for the Seventh

Circuit on January 16, 1976, at which time the Appellate Court

affirmed the trial court’s conviction of the petitioners. A copy

of this order is attached hereto at page A-1 of the Appendix.

On April 27, 1976, the United States Court of Awpeals for

the Seventh Circuit denied petitioner's motion for reco eration

and rehearing and suggestion that the rehearing be held ea banc.

A copy of this order is attached hereto at page A-15 of the

Appendix. The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Petitioners, REID and WATTS, assert that the use of

electronic surveillance and the information obtained therefrom

violated their Fourth Amendment rights of privacy. Further,

petitioners, REID and WATTS, had a “reasonable expectation

of privacy” regarding said conversations and were also “ag-

grieved persons” under 18 U.S.C. 2510(11).

2. Petitioners, CARYLYE, WATTS and REID, were denied

due process by the denial of their motions for severance and,

in addition, were prejudiced by the District Court's refusal to

give a multiple conspiracy instruction.

3. Petitioners, CARLYLE, WATTS and REID, assert that

the District Court prejudicially erred in accepting an improper

reasonable doubt instruction which equated reasonable doubt

with substantial doubt.

CONSTITUTIONAL PROVISIONS, STATUTES

AND RULES INVOLVED

The United States Constitution, Amendment Four.

18 United States Code 2510(11).

18 United States Code 2511.

18 United States Code 2518(8) (See Appendix).

STATEMENT

The petitioners, DONALD R. CARLYLE, WILLIAM

BRADFORD WATTS and BERNARD P. REID, were among

10 defendants charged in a joint indictment which alleged one

count of conspiracy against all of the defendants—18 United

States Code 371—and 57 substantive offense counts.

Petitioner, CARLYLE, was convicted of 5 substantive of-

fenses (Counts 13, 52, 53, 54 and 59) and Count I of the Con-

spiracy offense.

Petitioner, WATTS, was convicted of 4 substantive offenses

(Counts 19, 24, 28 and 29) and Count I of the Conspiracy of-

fense.

Petitioner, REID, was convicted of 2 substantive offenses

(Counts 28 and 29) and Count I of the Conspiracy offense.

All three petitioners were sentenced on December 10, 1974

and each received a total of 13 years imprisonment. A timely

appeal was taken to the United States Court of Appeals for the

Seventh Circuit where, on January 16, 1976, said Appeals

Court affirmed the decision of the District Court. Petitioners’

motion for reconsideration and rehearing and suggestion that

said rehearing be held en banc was denied on April 27, 1976.

REASONS FOR GRANTING THE WRIT

I

The United States Court of Appeals’ Affirmance of the Trial

Court’s Decision Not to Suppress the Fruits of the Illegal Elec-

tronic Surveillance Which Violated 18 U.S.C., Sections 2511

and 2518(8), or to Find the Petitioners, REID and WATTS, Ag-

grieved Parties Within the Meaning of 18 United States Code

2510(11), Deprived the Petitioners of Due Process of Law.

Prior to the trial, it was learned that the Terminal Railroad

police had engaged in extensive electronic surveillance in which

conversations between and among several of the defendants had

been intercepted. Throughout the instant case, the Government

continually agreed that the wire-tapping of the Terminal Rail-

road Company phones and recording of certain conversations

in Company automobiles was a violation of 18 United States

Code 2511. Not only was no search warrant issued, permitting

the interception of the monitored conversations, but, in addition,

all tapes of the unlawfully monitored conversations were inten-

tionally destroyed as a result of the illegality involved. The dura-

tion of the wire-tap was unclear and unknown. It was known

that special agents of the F.B.I. were consulted regarding the

legality of these interceptions. Information in the form of notes

and tapes were given to this Agency. Tapes were actually played

for the Government agents. Various accounts of leads, suspects

and other information were communicated to the Government.

Yet, no action was taken by the Government to preserve these

tapes, notes, memoranda and statements of relevant conversa-

tions or to preserve their existence before such time as they were

destroyed. We have no objective or independent verification of

what these interceptions contained or how these interceptions

were used—all we have is the self-serving testimony of four Gov-

ernment agents and those Terminal officials responsible for the

— oa

initial interceptions. The Appeals Court correctly commented

that with these stated facts the Government was called upon to

meet the ultimate burden of persuasion and show that its case

was not the product of the tainted evidence. But, how could the

defense counter the Government's proffer of such evidence? By

the destruction of the tapes and with only pro-prosecution wit-

nesses available to give their version of what the surveillance re-

vealed and how it was used, the defendants were in an unenvi-

able position. The defendants had an intolerable obstacle in

presenting their suppression arguments. The only independent

source of information which the Government introduced to

demonstrate that this case was purged from the wiretap taint was

the testimony of Joel Koen. Mr. Koen’s testimony was that of a

co-conspirator who first became known to the F.B.I. as a result

of an illegal wiretap during a conversation with co-defendant,

David Nordstrom. In an attempt to dispel any taint upon the

testimony of Joel Koen, an informant testified that he did not

know of any illegal wiretaps at the time he made his confession

to certain F.B.I. agents, yet, on cross-examination, he admitted

that during the interview he was as'ced very specific information

concerning dates, names, and goods that were purportedly stolen.

At no time were the sources of such information revealed. The

specificity of this knowledge assisted in getting cooperation. (T.

32-33). Yet, the Government offered no evidence to show the

specific source of the knowledge they used in their investigations.

Clearly, this would be necessary to show the independent source

of such knowledge. If the Court strictly scrutinizes the Govern-

ment’s claim of independent source, as required by United States

v. Huss, 482 F. 2d 38 (2d Circ. 1973), it is far from clear that

the wiretap taint was sufficiently attenuated. This difficulty in

concluding sufficient attenuation is narrowed to the question of

whether the F.B.I. made use of the electronic surveillance in its

discovery of Koen and, alternatively, even if Koen was dis-

covered by independent F.B.I. investigation, whether said tapes

were used as an extortive device to induce his cooperation. Such

are serious questions which the Government never answered and

=

since the tools to answer such questions were in the Govern-

ment’s hands:

“To compel the parties who object to the use of evi-

dence obtained as a result of unlawful wire-tapping to go

forward with a shelling of the taint, Alderman v. United

States, 394 U.S. 165, 183, and then to withhold from him

the means to meet that burden is to create an absurdity in

the law.” United States v. Huss, supra at 47.

To prevent this absurdity, the burden of proof was upon the

Government and the record reveals the burden of demonstrating

an independent source was not carried. The disclosure of infor-

mation as required by 18 U.S.C., Section 2518(8) was never

complete nor was it shown to be free of taint.

Petitioners, WATTS and REID, believe that this illegal sur-

veillance was directly prejudicial to their case. The Court should

have held that petitioners were aggrieved persons within the

meaning of 18 United States Code 2510(11). Since the Gov-

ernment’s disclosures were incomplete and inadequate, the pe-

titioners were handcuffed and were unable to actually deter-

mine whether they were, in fact, monitored. In addition,

petitioners believe that they were aggrieved parties since, being

Terminal Railroad employees, they were lawfully upon the

premises and held the status of invitees. The petitioners had a

privacy interest since they, as business invitees, were regular

users of the Terminal Railroad phone. United States v. Ram-

sey, 503 F. 2d 524, 532 (7th Circ. 1974); Cert. Denied 420

U.S. 932 (1975).

The United States Court of Appeals’ affirmance of the Dis-

trict Court decision not to suppress the fruits of the illegal

electronic surveillance presents a substantial and significant

question concerning the construction and effect of the Omni-

bus Crime Control and Safe Streets Act of 1968, 18 U.S.C.,

—

Sect. 2511, et seq. Congress, in passing Title 3 of 18 U.S.C.

2511, et seq., recognized that:

“The tremendous scientific and technological develop-

ments that have taken place in the last Century have made

possible today the widespread use and abuse of electronic

surveillance techniques. As a result of these developments,

privacy of communication is seriously jeopardized by

these techniques of surveillance.” United States Code Con-

gressional & Administrative News, 90th Congress, 2nd

Session, pages 2112, 2154.

In the instant case, the electronic eavesdropping was flagrant,

gross and patently improper. The existence of this illegality

was known to the Government and no steps were taken to

preserve or protect the resultant information that was received

from the eavesdropping. In the instant case, the Title 3 safe-

guards, to allay the fears of wnat law enforcement surveillance

could become, were cast out the window. None of the Title

3 safeguards were followed. This court is now called upon to

refortify and explicitly delineate those safeguards. Neither this

Court nor any other Federal Court has ever been called upon

to decide the legality of the introduction of the fruits of a total

patent and gross violation of the Omnibus Crime Control and

Safe Streets Act. Petitioners submit their case presents an ex-

cellent opportunity to give full meaning to the protections Con-

gress intended Title 3 of this Act to have.

In addition, the instant case presents a substantial question

to be decided before this Court since it involves a conflict

among the 2nd, 6th and 7th Circuits. In the United States v.

Huss, 482 F. 2d 38 (2d Circ. 1973), illegal tapes of moni-

tored conversations were destroyed and no transcripts were

made therefrom. There, the Government turned over a sum-

mary of logs. Still, the Court, in determining that Title 3 of

the Act had been violated, felt compelled to dismiss the action

= vn

concerning one of the defendants, Sheldon Seigel. In the in-

stant case, not even logs or summaries of the intercepted com-

munication were given to the petitioners. Similarly, in the

United States v. Giordano, 440 F 2d 449 (6th Circ. 1971),

all tapes of an unlawfully monitored conversation had been

lost. The defendants were thereafter furnished with an F.B.I.

log of the conversations. The 2, the Qourt of Appeals found

that it was necessary to remand since the Government had not

shown that only logs were available to thus meet the disclosure

requirements of Alderman v. United States, 394 U.S. 165

(1967). In the instant case, more than logs were shown to

have been received by the Government. The web of communi-

cations and interceptions is so complex and unrevealed as to

require dismissal of these charges against the petitioners. Only

such an interpretation of Title 3 of the Omnibus Crime Con-

trol and Safe Streets Act would withstand the Constitutional

dictates of the Fourth Amendment to the United States Con-

stitution.

Il

Although the Petitioners, DONALD R. CARLYLE, WIL-

LIAM B. WATTS and BERNARD P. REID, Were All Charged

With the Same Conspiracy, in Fact, the Record Established That

Multiple Conspiracies Existed and, as Such, the District Court

Erred in Failing to Grant the Petitioners’ Motions for Severance

and Further Erred in Not Instructing the Jury in Regard to the

Multiple Conspiracies.

The District Court ruled that petitioners’ due process rights

were not compromised by the denial of their motions for sever-

ance in that there was an insufficient showing of prejudice by rea-

son of the joint trial. However, a critical examination of the in-

stant record will show that a sizeable portion of the evidence was

totally irrelevant to the petitioners, CARLYLE, WATTS and

REID. It was this damaging, yet irrelevant evidence which was

received and considered by the jury. Such a situation was per-

mitted to exist by the very reason of the improper prejudicial

joinder of 10 defendants and 58 counts, including a conspiracy

count alleging 53 overt acts. Of the approximate 100 witnesses

who were called by the Government, only a small number testi-

fied against the appellants.

The petitioners respectfully submit to this Court's attention

the recent case of United States v. Bertolotti, 75-1107 (2d Circ.

11-10-75) in which the 2nd Circuit ruled that while the in-

dictment charged a single conspiracy, the evidence adduced

at trial demonstrated at least 4 conspiracies, which were lumped

together in the interest of convenience. This situation war-

ranted reversal, as does the situation of the instant case. Here,

there was no evidence of a scheme or overall agreement or

plan.

Due to the complicated nature of this case—evidenced by the

large number of witnesses and exhibits—the petitioners were

confounded in their defense. This situation was conducive to

confusion. After having failed in their severance attempts, peti-

tioners attempted to salvage what they could of their defense

by requesting a multiple conspiracy instruction consistent with

United States v. Kotteakos, 328 U.S. 750 (1945). The Appel-

late Court held that the District Court's refusal to give the Kotte-

akos instruction was not error since the evidence “when viewed

in the light most favorable to the Government, together with

all reasonable inferences flowing therefrom, permitted the jury

to conclude, as it did, that there was a single over-all conspiracy

and that each defendant was a participating member of it at

some point in its duration.” The District Court and the Appel-

late Court thereby misplaced the burden of proof in that there

was also evidence to support a multiple conspiracy theory and

the jury should have been given the alternative of so finding.

Ill

In Giving the Reasonable Doubt Instruction, the District Court

Erred by Equating Reasonable Doubt With Substantial Doubt.

The use of the LaBuy 6.01-3 instruction placed an unconsti-

tutional burden upon the petitioners, CARLYLE, WATTS and

REID to prove their own innocence. Even the Appeliate Court

noted that had the decision of United States v. Gratton, 75-1232

(7th Cir. 11-6-75) been available to the District Court at the

time of trial, the panel would be required to reverse because of

the improper reasonable doubt instruction (See Footnote 2 of

the Appellate Court decision). However, the Appellate Court

failed to note that United States v. Bridges, 499 F. 2d 179, 186

(7th Circ. 1974) was in existence at the time of trial and that

Gratton was merely a reaffirmance of Bridges. Bridges was not

only available at the time of trial but was specifically cited to

the District Court as well. This instruction, even examined as a

whole, was the final blow to the petitioners’ efforts to salvage

a fair trial—this instruction was the finale of a litany of abuses

which deprived the petitioners of their constitutional rights to a

fair and impartial trial.

CONCLUSION

It is respectfully submitted that the petition for writ of cer-

tiorari should be granted, and, in addition, due to the inter-re-

lationship of the defenses and the issues involved in this con-

spiracy trial, petitioners, DONALD R. CARLYLE, WILLIAM

BRADFORD WATTS and BERNARD P. REID, request that

any issues raised by their co-defendants in their petitions for writ

of certiorari be made applicable to this petition and incorporated

herein.

Respectfully submitted

APOIAN, ROSS & FUNK, P.C.

Attorneys for Petitioners

Donald R. Carlyle, William Bradford

Watts and Bernard P. Reid

APPENDIX

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In the United States Court of Appeals

for the Seventh Circuit

Nos. 74-2057 through 74-2066

United States of America,

| Plaintiff-A ppellee

v.

Teddy R. Crouch, Donald R. Carlyle, William T. Ryan, Glenn

A. Frederick, Thomas Reyes, a/k/a Pancho, David M.

Nordstrom, Willie Albert Mize, William Bradford Watts,

Bernard P. Reid, and William Evans,

Defendants-A ppellants.

bow nt

Appeal from the United States District Court for the

Southern District of Illinois, Alton Division

No. A-CR-74-12

ew

Robert D. Morgan, Judge

Argued June 11, 1975—Decided January 16, 1976

Before Clark, Associate Justice (Retired),* Stevens, Circuit

Justice,** and Grant, Senior District Judg.***

* Associate Justice Tom C. Clark of the Supreme Court of the

United States (Retired) is sitting by designation.

** Mr. Justice Stevens participated initially as Circuit Judge, and

on and after December 19, 1975 as Circuit Justice.

: *** Senior District Judge Robert A. Grant of the United States

District Court for the Northern District of Indiana is sitting by

designation.

a

— ee

Grant, Senior District Judge. The appellants were charged

in a 58-count indictment which alleged one count of conspiracy

against all defendants, in violation of 18 U.S.C. § 371, and 57

counts of substantive offenses, in violation of 18 U.S.C. §§

659 and 2. Each defendant was not charged in each substantive

count; some defendants were charged with as many as 18 sub-

stantive counts, while others were charged with only two. All

charges related to the theft and disposition of property being

transported as interstate freight through the Terminal Railroad

Yards in Madison, Illinois, during a period from May 1, 1971,

through October 12, 1973. After trial, all defendants were con-

victed of the conspiracy count, and all defendants were convicted

of at least one of the substantive counts in which they were

named. The appellants received sentences ranging from a maxi-

mum of 22 years to a minimum of four years.

Appellants have now instituted the present appeal in which

they challenge their convictions in the court below. In support

of their appeal, appellants have raised a myriad of issues for this

Court’s consideration. This Court has embarked upon ex-

tensive review of all of the issues raised by appellants in their

briefs and in oral argument. However, because we are convinced,

on the basis of the record, that many of the issues herein

presented are clearly without merit, this opinion will discuss

only those matters which have impressed the panel as being sub-

stantial enough to require extensive treatment. Having con-

sidered all of the issues presented, and for the reasons stated

below, we affirm the convictions of the appellants in the district

court.

I—ELECTRONIC SURVEILLANCE

Prior to trial, it was learned that the Terminal Railroad Police

at the Madison Yard had engaged in extensive electronic sur-

veillance in which conversations between and among several of

these defendants had been intercepted. The district court held

—— *

a two-day hearing on defendants’ several motions to produce and

to suppress the fruits of that surveillance. It developed during

that hearing that, although no true logs were kept to monitor

the three yard office extensions, a piece of paper was kept at

each of the three extensions on which notes were made by the

persons who used the monitor, one of which was William S.

Wagner, then Chief of Police for the Terminal Railroad As-

sociation. Unfortunately, all tapes and notes were subsequently

destroyed by Chief Wagner prior to his retirement in late 1973.

At the conclusion of the hearing, the court below denied de-

fendants’ motions to suppress. In this appeal, appellants contend

that the district court erred in so ruling because the govern-

ment’s disclosure of the information obtained by the wiretap

was grossly inadequate and in violation of 18 U.S.C. § 2518

(8)(a), which reads, in pertinent part, that: “The contents of any

wire or oral communication intercepted . . . shall, if possible,

be recorded on tape or wire or other comparable device. * * *

They shall not be destroyed except upon an order of the issuing

or denying judge . . .” Based on the destruction of the material

which occurred herein, appellants argue that there has been

a total failure to comply with the provisions of the above statute.

Appellants further argue that the court below erred in failing

to find that all defendants were “aggrieved persons” under 18

U.S.C. § 2510(11). In any event, appellants maintain that in the

instant case the electronic surveillance upon them violated their

reasonable expectation of privacy under the Fourth Amend-

ment to the Constitution.

In response to these claims, the appe!lee, although conceding

that there were irregularities involved as to the surveillance,

nonetheless maintains that it met its initial disclosure obligation

by means of written disclosures and by making certain witnesses

available for examination by defendants, thereby affording de-

fendants the opportunity to develop any indication of taint that

might have existed. Further, appellee contends that appellants

SY

herein failed to meet their burden of showing that a substantial

portion of the case against them was tainted. In any event,

appellee argues that the evidence which it adduced, even if taint

was demonstrated, was derived from a legitimate independent

source: and finally, that any existing taint was sufficiently at-

tenuated when witness Joel Koen made a free and voluntary

choice to cooperate with the government in its prosecution of

the case. It is argued, then, that the court below properly ruled

that the illegal surveillance by the Railroad Police did not require

suppression.

We turn initially to a discussion of the ramifications of 18

U.S.C. § 2518(8)(a). As noted earlier, it would appear that the

underlying purpose of the statute is to insure an adequate dis-

closure of the contents of any and all intercepted communica-

tions. Alderman v. United States, 394 U.S. 165, 183 (1967).

In this regard, it has been held that where the tapes of moni-

tored conversations have been destroyed, substitutes (such as

logs) have been found to be sufficient under certain circum-

stances. United States v. Giordano, 440 F.2d 449, 451 (6th

Cir. 1971). We must keep in mind, nevertheless, that where, as

here, there has been a destruction of evidence, the interest of

fair play demands that it must not be impossible for a defendant

to carry his burden of demonstrating taint at the taint hearing.

Accordingly, we are compelled herein to “strictly scrutinize the

government's claim of independent source.” United States v.

Huss, 482 F.2d 38, 48 (2d Cir. 1973). As noted in Alderman,

supra, 394 U.S. at 183, although petitioners must initially go

forward with specific evidence demonstrating taint, the United

States in a case where (as here) an illegal search is involved, has

the ultimate burden of persuasion to show that its evidence is

untainted. This leaves ample opportunity to the government to

convince the trial court that its proof had an independent origin.

Although we do not condone the activity of the private rail-

road police in the destruction of the material pertaining to

the monitored conversations, we are convinced, first of all, that

—

even though said material was destroyed, the record herein ade-

quately demonstrates, and the district court so found in its “in-

formed discretion, good sense, and fairness”! that, under the par-

ticular circumstances of this case, the government met its dis-

closure obligations under Alderman and Giordano, supra, and

United States v. Balistrieri, 436 F.2d 1212 (7th Cir. 1971):

cert. denied, 402 U.S. 953 (1971). Initially, we note that at the

two-day evidentiary hearing on the electronic surveillance issue,

the government made available for examination some eleven

witnesses who had some connection—in some instances, even

personal knowledge—with respect to the surveillance that took

place within the Madison Yard complex during the time period

in question. These witnesses included two F.B.I. agents who

participated in the investigation of the electronic surveillance,

the F.B.I. agent in this case, as well as two undercover agents

who had been instrumental in developing evidence in the case.

Also available for examination by defendants were the three

persons who used the monitor, Inspector James Lockett, Lt.

James Davis, and Chief Wagner. Under these circumstances.

although the defendants admittedly lacked the benefit of tapes

and/or memoranda upon which to attack the nature of the

surveillance which was conducted, we conclude that the avail-

ability of these witnesses afforded the defendants sufficient in-

formation as to the character and totality of the surveillance in-

volved herein so that they might be able to go forward to show

taint. Needless to say, we are not convinced that defendants

met their burden in this regard. Nevertheless, as noted above,

in such a situation it was then incumbent upon the government

to meet the ultimate burden of persuasion «.ad show that its evi-

dence was untainted. Alderman, supra, 394 U.S. at 183. This

burden which devolved upon the government, we believe, was

satisfied when appellee demonstrated that it obtained its basic

evidence from the witness Joel Koen—who. as an eyewitness to

the events that transpired herein, made a voluntary choice to

' See Nardone v. United States, 308 U.S. 338, 341-342 (1939).

_~*

divulge much of the information upon which the government's

case rested. Wong Sun v. United States, 371 U.S. 471, 491

(1963); United States v. Marder, 474 F.2d 1192, 1196 (Sth

Cir. 1973); United States v. Hoffman, 385 F.2d 501, 504 (7th

Cir. 1967). Further, we have no doubt that the potential of

Koen as a witness and/or defendant was not learned solely from

the overheard conversations. Rather, it is totally consistent in

the record that information as to the significance of Koen as a

witness was discovered through the efforts of F.B.I. Agent David

True who, it appears, had no knowledge of the wiretap, during

his investigation of and direct contact with many defendants,

including Ronald Ridgeway and William Ryan. Accordingly,

since it is apparent that the government's source of information

was indeed wholly independent of the illegal surveillance, it is

clear that any alleged taint was completely attenuated thereby.

Nardone, supra, 308 U.S. at 341.

As to the appellants’ argument that the court below failed

to find that all defendants were “aggrieved persons” under 18

U.S.C. § 2510 (11), we note that the trial court found that

only defendants Nordstrom, Frederick, and possibly Ryan were

aggrieved parties and that the other seven defendants lacked

standing to seek suppression. We need not tarry long over this

issue, however, in light of our conclusion immediately above

that suppression was not required under the circumstances of

the instant case. Accordingly, the question of whether or not the

district court correctly determined that three of the defendants

had standing and seven of them did not need not be addressed

by the panel at this juncture.

II—INSTRUCTION ON REASONABLE DOUBT

When the court below gave its charge to the jury, it included

the following instruction on burden of proof and reasonable

doubt:

—

A defendant in a criminal case is presumed by law to be

innocent. That presumption remains with him throughout

the trial unless and until he is proven guilty of the crime

charged by credible evidence beyond a reasonable doubt.

The burden of proving defendant guilty beyond a reason-

able doubt rests upon the government. This burden never

shifts throughout the trial. The law does not require a de-

fendant to prove his innocence or to produce any evidence.

He may rely upon evidence brought out on cross-examina-

tion of witnesses for the government. If the government

fails to prove defendant guilty beyond a reasonable doubt

the jury must acquit him.

A reasonable doubt means a doubt that is based on reason

and must be substantial rather than speculative. It must be

sufficient to cause a reasonably prudent person to hesitate

to act in the more important affairs of his or her life.

The defendants timely challenged the giving of this instruction,

grounding their objection on the court’s attempt to define rea-

sonable doubt, and in particular, the equating of reason-

able doubt with substantial doubt. The government responds

by contending that the instruction given by the court, which

was taken directly from LaBuy, Jury Instructions in Federal

Criminal Cases § 6.01-3, instead of equating reasonable doubt

with substantial doubt, equates reasonable doubt with a doubt

based on reason. In any event, appellee argues that the court's

instruction, taken as a whoie, properly conveyed to the jury the

concept of reasonable doubt.

This Court, as of recent months, has engaged in a thorough

review of the propriety and impropriety of instructions which

attempt to define the term reasonable doubt and the language

used therein. In United States v. Bridges, 499 F.2d 179, 186

(7th Cir. 1974), for example, we stated that the equating of

reasonable doubt with substantial doubt is objectionable. More

recently, in United States v. Gratton, No. 75-1232 (7th Cir.

—.

Nov. 6, 1975), where the trial court gave the challenged LaBuy

instruction, we reaffirmed our position as stated in Bridges,

supra. However, in Gratton, we failed to find plain error in

the absence of an objection under F.R. Crim.P. 30. Finally, in

what is probably our most extensive discussion on the question,

we gave our approval to the form of the instruction which was

used in the instant case (minus the “two hypothesis” portion)

in the case of United States v. Shaffner, No. 75-1324 (7th Cir.

Oct. 28, 1975). In Shaffner, after noting our approval of that

portion of the instruction which had been given by the trial

court, we reaffirmed our adherence to the general proposition

that reviewing courts will not reverse where the instruction

considered as a whole is not prejudicially erroneous.

In regard to the instant case, although we recognize the ob-

jectionable nature of the particular portion of the instruction

which refers to reasonable doubt and substantial doubt, we are

not prepared to say, in light of the instruction considered as a

whole, thai reversible error was committed. As we stated in

Shaffner, supra, “considering the instruction as a whole, we do

not think that the defendant's rights to be presumed innocent, to

remain silent, and to have the government bear its burden of

proof were violated.” We are of the opinion that that same rule

is applicable here.*

III—CONSPIRACY

Appellants contend that there existed in the instant case

not one scheme or conspiracy, but a multitude of separate con-

* Although we want to make it clear that the language incorpo-

rated into the reasonable doubt instruction in the instant case is

indeed suspect and definitely not preferred, it should be noted that

when the court below gave the instruction in question to the jury in

this case, it did not have the benefit of this Court's decision in

Gratton, supra, or the reasoning therein. Had this Court’s decision

in Gratton been available for the trial court’s consideration, it would

be necessary to exercise our supervisory power and decide other-

wise.

—

spiracies; and that, because of the existence of this host of

conspiracies, it was error for the trial court to deny their motions

for severance. Further, appellants argue that because of the

multitude of conspiracies that allegedly existed, the court below

was in error in submitting the conspiracy issue to the jury on a

single conspiracy instruction. For these reasons, it is argued

by appellants that they did not receive a fair trial.

On the other hand, appellee claims that the evidence estab-

lished that all of the appellants herein were members of a

large-scale, open-ended conspiracy to steal from shipments

passing through the Terminal Railroad Association and there-

after to “fence” said merchandise. In this regard, it is argued

that each defendant was a member of the overall conspiracy at

some point in time during its existence and that the defendants

worked together in a variety of combinations and roles, the only

reasonable inference being that all of them shared in a common

plan or design. Accordingly, this Court is urged to affirm the

trial court’s denial of appellants’ motions for severance as well

as the trial court’s decision not to instruct the jury on multiple

conspiracies.

As to the question of severance, it is clear that severance

should not be granted except for the most cogent reasons. United

States v. Kahn, 381 F.2d 824, 838 (7th Cir. 1967); cert. de-

nied, 389 U.S. 1015 (1967); reh. denied, 392 U.S. 948 (1968).

One of the most, if not the most, compelling factors in favor of

granting severance is if the moving party shows prejudice—that

is, that he will be unable to obtain a fair trial without severance.

United States v. Cervantes, 466 F.2d 736, 739 (7th Cir. 1972).

Absent a strong showing of prejudice, the denial of a motion

for severance will not be reversed on appeal. United States v.

Griffin, 464 F.2d 1352, 1358 (9th Cir. 1972). In the present

case, we are unable to conclude, on the basis of our careful re-

view of the record, that any of the appellants was prejudiced by

being tried jointly.

— A-10 —

Likewise, we fail to agree with appellants’ argument that they

were substantially prejudiced by the district court’s failure to

give a multiple conspiracy instruction. It is clear to this panel

that the evidence, when viewed in the light most favorable to

the government, together with all the reasonable inferences

flowing therefrom, permitted the jury to conclude, as it did, that

there was a single, overall conspiracy and that each defendant

was a participating member of it at some point in its duration.

United States v. Santana, 503 F.2d 710, 715 (2d Cir. 1974);

Glasser v. United States, 315 U.S. 60, 80 (1942). Therefore, we

decline to find error or that appellants did not receive a fair

trial when the district court denied their motions for severance

and when the court below refused to give a multiple conspiracy

instruction to the jury.

IV—IMMUNITY OF JOEL HARDY KOEN

Appellants assert that the district court committed reversible

error in refusing to grant their motion for mistrial when: (1)

the government permitted the witness Koen to take the stand

with knowledge that he would invoke his Fifth Amendment

privilege; and (2) when the court and the prosecutor commented

to the jury regarding the immunity which had been granted to the

witness. It is argued that the comments made as to Koen’s im-

munity served only to enhance his credibility in the eyes of the

jury and thus resulted in substantial prejudice. Additionally, in

a related argument, appellants maintain that the trial court un-

duly restricted the cross-examination of Joel Koen on the ques-

tion of his immunity and as to various other subjects concerning

his credibility.

In response, appellee contends that there was no flagrant at-

tempt by the prosecution herein to bolster its case as a result of

Koen’s invocation of the privilege, nor were there any impermis-

sible inferences that could have been drawn therefrom which

ee ee

— A-1ll —

might have added critical weight to the government's case. It is

further asserted by appellee that the court's comments to the

jury as to Koen’s grant of immunity merely served to enhance

their understanding of an otherwise difficult concept. Such com-

ment could not possibly, appellee argues, have resulted in any

prejudice against appellants. Additionally, the government con-

tends that its own remarks as to Koen’s immunity, which were

made in rebuttal to defendants’ closing remarks, were merely

an invited response to, and fair comment upon, a matter which

had already been raised and focused upon by defendants’ counsel

in their closing statements to the jury. Finally, appellee con-

tends that the district court, in its discretion, properly controlled

the extent of Koen’s cross-examination, as well as the cross-

examination of other witnesses, based on valid considerations of

relevancy, raateriality, and keeping such examination within the

scope of the subjects covered on direct examination.

As to appellants’ first contention—that of prosecutorial mis-

conduct—we have carefully viewed the record and fail to find

therein evidence of a conscious and flagrant attempt on the part

of appellee to build its case out of the inferences arising from

the use of the testimonial privilege. Moreover, we cannot find

any indication that any impermissible infer-nces could have been

drawn from the fact that Koen invoked his testimonial privilege

since the witness took the stand, testified, and was the subject

of rather extensive cross-examination. United States v. Puntillo,

440 F.2d 540, 543 (7th Cir. 1971).

With respect to the trial court’s comments to the jury on

Koen’s grant of immunity and appellants’ claim that said com-

ment simply compounded an already prejudicial situation, we

note that the court below made the following explanation:

Ladies and gentlemen of the Jury, I feel constrained to

make a statement to you. As you will recall on yesterday

wher this witness was placed on the stand, he exercised his

— A-12 —

constitutional right under the Fifth Amendment and de-

clined to answer questions. Pursuant to a statute, adopted

by the Congress of the United States, the United States At-

torney is authorized, upon approval provided by law, to

request that a witness be granted immunity from prosecu-

tion arising directly or indirectly from answers that he gives

after exercising his rights under the Fifth Amendment.

Such a petition was filed yesterday out of the presence

of the Jury. The Court considered the petition before this

court and granted the petition.

At the request of counsel for the defendants at that

time, after conferring together, the court agreed to make

no statement to the Jury about the matter at their request,

and the court did not at that time for that reason.

The court did state to counsel at that time, however,

that if they made reference to it in cross-examination the

court would make this statement to the Jury, which I have

just done.

This explanation was made only after the trial court had in-

dicated to counsel, outside the presence of the jury, that such

a statement would be made if the issue of immunity was raised

on cross-examination, which it eventaully was. We fail to con-

clude, on the basis of our review of the record herein, that the

court’s comments to the jury in regard to Koen imparted the

slightest indication to the jury that the court was somehow giving

its approval to or enhancing the credibility of Koen’s testimony.

Nor are we convinced that said comments gave the jury the im-

pression that the court was playing the role of an advocate for

the prosecution. In any event, if, by some stretch of the imagina-

tion, the conclusion could be drawn that the trial court’s com-

ments were in any way inappropriate, any significance that may

have been attached thereto was dissipated in light of the court's

instructions on the care to be exercised by the jury in weighing

pee ee od

— A-13 —

accomplice and informer testimony and, additionally, the court's

final instructions to the jury that “if during the trial, the Court

has intimated any opinion as to the facts, the jury is not bound by

that opinion.”

Likewise, as to certain remarks regarding immunity which

were made by the United States Attorney in rebuttal argument,

we find that those remarks amounted to nothing more than fair

comment upon, and a response to, a matter which counsel for

appellants had raised on several occasions in closing argument.

Accordingly, based on the circumstances of the instant case, ap-

pellants’ position herein as to the impropriety of the statements

made by the prosecutor in response to their own closing argu-

ment indeed, in our opinion, is virtually devoid of merit.

Finally, we address ourselves to appellants’ claim that the dis-

trict court unduly restricted the cross-examination of Joel Koen

as to his immunity and other matters pertaining to his credibility.

In this regard, we need only say that the trial court did not, in its

sound discretion, violate or unduly interfere with appellants’

right to conduct a full and reasonable cross-examination as to the

subjects brought out on direct examination. Alford v. United

States, 282 U.S. 687, 694 (1931). One need only refer to the

transcript herein which recounts the length and content of the

cross-examination of Koen to realize that appellants were in no

significant way curtailed in their examination of Koen or any

other witness in the case.

V—REMAINING ISSUES

The remaining issues which have been raised by appellants

in this appeal, and which have not been discussed up to this

point, include the following: (1) the admission of hearsay evi-

dence and the court's instruction to the jury regarding its use;

(2) the court’s supervision of peremptory challenges; (3) the

— A-14—

court's supervision of the voir dire examination; (4) the court's

admission into evidence of certain exhibits, particularly govern-

ment’s Exhibits 2A-26A and a map contained in government's

Exhibit 1D; (5) the trial judge’s demeanor in conducting the

trial, and his attitude toward counsel; (6) the trial court’s in-

struction to the jury as to separate verdicts and the forms of ver-

dicts used by the jury; and (7) the trial court’s sentencing of

defendants.

We have scrutinized the above issues and the law applicable

thereto with the utmost care and diligence. Nevertheless, having

done so, we are of the firm conviction that none of them, in the

context of the circumstances and facts of the instant case, is

substantial enough to require this Court to embark upon an

exhaustive analysis thereof. Accordingly, in the interests of

reason and judicial economy, yet not at the expense of a just

determination of this appeal, it is the considered judgment of

this panel that we need not at this time make separate determi-

nations as to each and every issue alluded to above. In short,

we decline to expand this opinion any further with a discussion

of matters which we feel would result in mere surplusage.

The judgments of conviction in the district court are now and

hereby Affirmed.

A true Copy:

Teste:

ee ere oe 2 eeeere eS @2esvae@ 2 eee 24 68 2 S's. e.e ee

Clerk of the United States Court of

Appeals for the Seventh Circuit

— A-15 —

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 27, 1976

Before

Hon. Tom C. Clark, Associate Justice*

Hon. John Paul Stevens, Circuit Justice**

Hon. Robert A. Grant, Sr. District Judge***

United States of America, \) Appeal from the

Plaintiff-Appellee, United States Dis-

trict Court for the

Nos. 74-2058, 74-2064 vs. { Southern District of

and 74-2065 Illinois, Alton Di-

vision.

Donald R. Carlyle, William Bradford

Watts, Bernard P. Reid, (A Cr 74 12)

Defendants-Appellants. ) Morgan, Judge

On consideration of the petition for rehearing and suggestion

that it be reheard in banc filed in the above-entitled cause, no

judge in active service having requested a vote thereon, nor any

judge having voted to grant the suggestion, and all of the mem-

bers of the panel having voted to deny a rehearing,

It Is Ordered that the petition for rehearing in the above-

entitled cause be, and the same is hereby, Denied.

* Associate Justice Tom C. Clark of the Supreme Court of the

United States (Retired) is sitting by designation.

** Mr. Justice Stevens participated initially as Circuit Judge, and

on and after December 19, 1975 as Circuit Justice.

*** Senior District Judge Robert A. Grant of the United States

District Court for the Northern District of Indiana is sitting by

designation.

ene a eS

— A-16 —

18 USC § 2510

$ 2510. Definitions

As used in this chapter—

(1) “wire communication” means any communication

made in whole or in part through the use of facilities for

the transmission of communications by the aid of wire,

cable, or other like connection between the point of origin

and the point of reception furnished or operated by any

person engaged as a common carrier in providing or oper-

ating such facilities for the transmission of interstate or for-

eign communications;

(2) “oral communication” means any oral communica-

tion uttered by a person exhibiting an expectation that such

communication is not subject to interception under cir-

cumstances justifying such expectation;

(3) “State” means any State of the United States, the

District of Columbia, the Commonwealth of Puerto Rico,

and any territory or possession of the United States;

(4) “intercept” means the aural acquisition of the con-

tents of any wire or oral communication through the use

of any electronic, mechanical, or other device.

(5) “electronic, mechanical, or other device” means any

device or apparatus which can be used to intercept a wire

or oral communication other than—

(a) any telephone or telegraph instrument, equip-

ment or facility, or any component thereof, (i) fur-

nished to the subscriber or user by a communications

common carrier in the ordinary course of its business

aw fet? —

and being used by the subscriber or user in the ordi-

nary course of its business; or (ii) being used by a

communications common carrier in the ordinary

course of its business, or by an investigative or law

enforcement officer in the ordinary course of his

duties;

(b) a hearing aid or similar device being used to

correct subnormal hearing to not better than normal;

(6) “person” means any employee, or agent of the

United States or any State or political subdivision thereof,

and any individual, partnership, association, joint stock

company, trust, or corporation;

(7) “Investigative or law enforcement officer” means any

officer of the United States or of a State or political subddi-

vision thereof, who is empowered by law to conduct inves-

tigations of or to make arrests for offenses enumerated in

this chapter, and any attorney authorized by law to prose-

cute or participate in the prosecution of such offenses,

(8) “contents”, when used with respect to any wire or

oral communication, includes any information concerning

the identity of the parties to such communication or the

existence, substance, purport, or meaning of that com-

munication;

(9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court or

United States court of appeals, and

(b) a judge of any court of general criminal juris-

diction of a State who is authorized by a statute of that

State to enter orders authorizing interceptions of wire

or oral communications;

— A-18 —

(10) “communication commor carrier” shall have the

same meaning which is given the term “common carrier”

by section 153(h) of title 47 of the United States Code; and

(11) “aggrieved person” means a person who was a

party to any intercepted wire or oral communication or a

person against whom the interception was directed.

Added Pub.L. 90-351, Title III, § 802, June 19, 1968, 82

Stat. 112.

sete ere wo 78 oo

— A-19 —

18 USC § 2511

§ 2511. Interception and disclosure of wire or oral communica-

tions prohibited

(1) Except as otherwise specifically provided in this chapter

any person who—

(a) willfully intercepts, endeavors to intercept, or pro-

cures any other person to intercept or endeavor to intercept,

any wire or oral communication;

(b) willfully uses, endeavors to use, or procures any other

person to use or endeavor to use any electronic, mechanical,

or other device to intercept any oral communication

when—

(i) such device is affixed to, or otherwise transmits

a signal through, a wire, cable, or other like connec-

tion used in wire communication; or

(ii) such device transmits communications by radio,

or interferes with the transmission of such communica-

tion; or

(iii) such person knows, or has reason to know, that

such device or any component thereof has been sent

through the mail or transported in interstate or for-

eign commerce; or

(iv) such use or endeavor to use (A) takes place on

the premises of any business or other commercial

establishment the operations of which affect interstate

or foreign commerce; or (B) obtains or is for the pur-

pose of obtaining information relating to the opera-

tions of any business or other commercial establish-

ment the operations of which affect interstate or

foreign commerce; or

— A-20 —

(v) such person acts in the District of Columbia, the

Commonwealth of Puerto Rico, or any territory or pos-

session of the United States;

(c) willfully discloses, or endeavors to disclose, to any

other person the contents of any wire or oral communica-

tion, knowing or having reason to know that the informa-

tion was obtained through the interception of a wire or oral

communication in violation of this subsection; or

(d) willfully uses, or endeavors to use, the contents of

any wire or oral communication, knowing or having reason

to know that the information was obtained through the

interception of a wire or oral communication in violation

of this subsection;

shall be fined not more than $10,000 or imprisoned not more

than five years, or both.

(2) (a) (i) It shall not be unlawful under this chapter for an

operator of a switchboard, or an officer, employee, or agent of

any communication common carrier, whose facilities are used

in the transmission of a wire communication, to intercept, dis-

close, or use that communication in the normal course of his

employment while engaged in any activity which is a necessary

incident to the rendition of his service or to the protection of

the rights or property of the carrier of such communication:

Provided, That said communication common carriers shall not

utilize service observing or random monitoring except for me-

chanical or service quality control checks.

(ii) It shall not be unlawful under this chapter for an officer,

employee, or agent of any communication common carrier to

provide information, facilities, or technical assistance to an in-

vestigative or law enforcement officer who, pursuant to this chap-

ter, is authorized to intercept a wire or oral communication.

(b) It shall not be unlawful under this chapter for an

officer, employee, or agent of the Federal Communications

Ow enmmens* <= tee ee =

—*

Commission, in the normal course of his employment and

in discharge of the monitoring responsibilities exercised by

the Commission in the enforcement of chapter 5 of title

47 of the United States Code, to intercept a wire communi-

cation, or oral communication transmitted by radio, or to

disclose or use the information thereby obtained.

(c) It shall not be unlawful under this chapter for a

person acting under color of law to intercept a wire or oral

communication, where such person is a party to the com-

munication or one of the parties to the communication has

given prior consent to such interception.

(d) It shall not be unlawf»! under this chapter for a

person not acting under color ui law to intercept a wire or

oral communication where such person is a party to the

communication or where one of the parties to the com-

munication has given prior consent to such interception

unless such communication is intercepted for the purpose

of committing any criminal or tortious act in violation of

the Constitution or laws of the United States or of any State

or for the purpose of committing any other injurious act.

(3) Nothing contained in this chapter or in section 605 of the

Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605)

shall limit the constitutional power of the President to take such

measures as he deems necessary to protect the Nation against

actual or potential attack or other hostile acts of a foreign power,

to obtain foreign intelligence information deemed essential to

the security of the United States, or to protect national security

information against foreign intelligence activities. Nor shall

anything contained in this chapter be deemed to limit the consti-

tutional power of the President to take such measures as he

deems necessary to protect the United States against the over-

throw of the Government by force or other unlawful means, or

against any other clear and present danger to the structure or

existence of the Government. The contents of any wire or oral

— A-22 —

communication intercepted by authority of the President in the

exercise of the foregoing powers may be received in evidence in

any trial hearing, or other proceeding only where such intercep-

tion was reasonable, and shall not be otherwise used or dis-

closed except as is necessary to implement that power.

Added Pub.L. 90-351, Title III, § 802, June 19, 1968, 82

Stat. 213.

— A-23 —

18 USC § 2518(8)

$ 2518. Procedure for interception of wire or oral communica-

tions

(8) (a) The contents of any wire or oral communication inter-

cepted by any means authorized by this chapter shall, if possible,

be recorded on tape or wire or other comparable device. The

recording of the contents of any wire or oral communication

under this subsection shall be done in such way as will protect

the recording from editing or other alterations. Immediately

upon the expiration of the period of the order, or extensions

thereof, such recordings shall be made available to the judge

issuing such order and sealed under his directions. Custody of

the recordings shall be wherever the judge orders. They shall

not be destroyed except upon an order of the issuing or denying

judge and in any event shall be kept for ten years. Duplicate

recordings may be made for use or disclosure pursuant to the

provisions of subsections (1) and (2) of section 2517 of this

chapter for investigations. The presence of the seal provided for

+y this subsection, or a satisfactory explanation for the absence

thereof, shall be a prerequisite for the use or disclosure of the

ceatents of any wire or oral communication or evidence derived

therefrom under subsection (3) of section 2517.

(b) Applications made and orders granted under this chapter

shall be sealed by the judge. Custody of the applications and

orders shall be wherever the judge directs. Such applications

and orders shall be disclosed only upon a showing of good cause

before a judge of competent jurisdiction and shall not be de-

stroyed except on order of the issuing or denying judge, and in

any event shall be kept for ten years.

(c) Any violation of the provisions of this subsection may be

punished as contempt of the issuing or denying judge.

io ee, a oa

—~

(d) Within 2 reasonable time but not later than ninety days

after the filing of an application for an order of approval under

section 2518(7) (b) which is denied or the termination of the

period of an order or extensions thereof, the issuing or denying

judge shall cause to be served, on the persons named in the order

or the application, and such other parties to intercepted com-

munications as the judge may determine in his discretion that

is in the interest of justice, an inventory which shall include

notice of—

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized,

approved or disapproved interception, or the denial of the

application; and

(3) the fact that during the period wire or oral com-

munications were or were not intercepted. :

The judge, upon the filing of a motion, may in his discretion

make available to such person or his counsel for inspection such

portions of the intercepted communications, applications and

orders as the judge determines to be in the interest of justice.

On an ex parte showing of good cause to a judge of competent

jurisdiction the serving of the inventory required by this sub-

section may be postponed.

U. S. CONSTITUTION

Amendment 'V—Searches and Seizures

The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particu-

larly describing the place to be searched, and the persons or

things to be seized.