Opposition Brief — Hoffa v. United States

at | Fo en eee oo *

. 3 SS i

II. The original proceedings culminating in thi Court's

order of GJ)... pickin

2. The Burris-Bigelbaum conversation..___

(1) The Burris, Dranow, and Hoffa

interests in Sun Valley..

(3) & bank's claim against the

Dranow-Burris

Burris ond Kipais 3

9

———̃ — —⅜ 24

I. Issues arising from the eavesdrop hearing... 25

W 25

B. Other issues atining from the eavesdrop hear-

—V — — 33

U. The original issues on appeal........ 42

11 — — 44 A

CITATIONS

Baker v. United States, 401 F.24058._.. = 35, 36

Black v; Dun, s US. . 37

Brady v. Maryland, 373 US.83......... = 33.

Bruton v. United States, 301 U.S. 1422. 3, 24, 42, 43°

Bujese v. United States, 302 U.. 27. 43

Chapman v. California, 386 US. 18. — 25

Dusky v. United States, 3 U.. 4%ꝗjRn one 40

u. United States, 302 F. 2d 214, certiorari ä

denied, 371 U. 8 ꝶꝶ2222... 42

Goldstein v. United Se, 316 U.S. 114. 36

Granello v. United States, 386 U.S. 10199. 4, 37

Holt v United States, 329 F. 2d 368, certiorari denied,

1 0

Jones v. United States, 362 U.. 287. 36

Killian v. United States, 368 U.S. 21. 31

Koled v. United States, 390 1 4

Lown v. United States, 355 U.S. 20%%%ꝗ.ꝗ 25, 34, 37

Mancusi v. DeForte, 302 U.S. 26. 8 36

Merrill v. United States, 338 F. 2d 763. 42

Nardone v. United States, 308 U.S. 338 16 36

_ OBrien v. United States, 86 U.. 3. 37, 39

Ocrtle v. United States, 370 F. 2d 719, certiorari denied,

387 U.S. 943

sub Ounningham v. United States, 384 U.S. 910. 33

aA v. United Nn 242.7 24 627 6 34

MEPIS BOF MO on >

—— 95

u the Supreme Goto the Waited Sits

OcToBeR TERM, 1968

No. 895

JAMES R. Horra, ZACHERY A. Strate, In., S. GEORGE

Burris, Ase I. WEINBLATT, AND CALVIN Kovens,

PETITIONERS ‘

K V.

Untrep Srarꝝs or AMERICA

No. 911

BENJAMIN DRANOW, PETITIONER

v.

UxTrꝑD States or AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH OIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals on remand ~

(Pet. No. 895 App. 91-104, 104-117) are not yet re-

ported. The opinion of the district court on remand

(Pet. No. 895 App. 78-90) is reported at 273 F. Supp.

141; The original opinions of the court of appeals

(1)

(Pet. No. 895 App. 1-33, 34-71) are reported at 367

F. 2d 698, 716. The per curiam opinion of this Court

remanding the case (Pet. No. 895 App. 74-77) is re-

ported at 387 U.S. 231.

The judgment of the court of appeals was entered

on August 15, 1968 (Pet. No. 895 App. 118). A peti-

tion for rehearing was denied on November 7, 1968

(Pet. No. 895 App. 119). On November 26, 1968, the

Chief Justice extended the time for filing the peti-

tions for writs of certiorari until January 6, 1968.

The petition in No. 895 was filed on January 3 and

the petition in No, 911 was filed on January 6, 1968.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

1. Whether the government establisix i that its case

at trial was not tainted by the overheard Burris-Sigel-

baum conversation.

2. Whether the petitioners were prejudiced at trial

because they were not given access to certain docu-

ments in the government’s possession.

3. Whether it was proper for the district court at

the eavesdrop hearing to allow the government to rely

upon affidavits to show the nonexistence of certain

documents.

4. Whether it was proper for the district court to

examine in camera certain overhearings of defendants

which the government had represented to be wholly

irrelevant to petitioners’ convictions and to deny dis-

closure to the defense of such overhearings when the

the court found that they were in fact irrelevant. |

5. Whether the district court erred in refusing to

order the government to produce any overhearings

it might have involving defense counsel and whether

petitioners were prejudiced because five overhearings

of counsel of record not relevant to this case were dis-

closed to the court of appeals following oral argument.

6. Whether the district court acted within its dis-

cretion in finding petitioner Dranow competent to

participate in the eavesdrop hearing.

7. Whether the temporary admission against peti-

tioner Dranow of certain statements made by him de-

prived the other petitioners of their right to con-

frontation under Bruton v. United States, 391 U.S.

123, where this evidence was ultimately excluded as

to all petitioners including Dranow (and the jury

was so advised) and wheré.Dranow was a witness in

his own defense and was .fhus available for cross-

examination by the other petitioners.

STATEMENT

I

INTRODUCTION |

In August 1964, following a jury trial in the

United States District Court for the Northern Dis-

trict of Illinois, petitioners were found guilty of

various counts of a 28-count indictment returned on

June 4, 1963, charging wire and mail fraud in viola-

tion of 18 U.S.C. 1341 and 1343 in the procurement

of loans from the Teamster Union Pension Fund and

of conspiracy to commit these substantive offenses

4

(I D. A. 41-77, 28). They were variously sentenced

to fines and terms of imprisonment (I D.A. 31-32,

III D. A. 2245-2257 ; see Government’s Brief in Oppo-

sition in No. 1003, O. T., 1966, pp. 3-4, n. 3). On

October 4, 1966 the court of appeals affirmed as to

each petitioner, Judge Swygert dissenting (367 F. 2d

698, 716; Pet. No. 895 App. 1-33, 34-71). There-

after, upon the government’s disclosure in its re-

sponse to the petition for a writ of certiorari (No.

1003, O. T., 1966) that it had overheard a conversa-

tion between defendant George Burris and one Ben-

jamin Sigelbaum on December 2, 1963, in which .

Burris discussed certain matters relevant to this case,’

In order to avoid confusion, our references to the extensive

record in the case will be the same form as used by petitioners.

Thus, “D.A.” designates the three-volume appendix summariz-

ing the trial transcript filed by petitioners on the original ap-

peal; “G.A.” is the 1-volume government’s appendix in the

original ‘appeal; “H.D.A.” refers to the three-volume appendix

of the eavesdrop hearing held pursuant to the remand. “Tr.”

refers to the voluminous transcript of the original trial; and

H. Tr.” designates the transcript of the eavesdrop hearing.

At the time of the disclosure to this Court the government

was proceeding under the policy of reviewing whether theve

had been prior instances in which an unlawful electronic sur-

veillance had affected a case which had been brought to trial.

and of notifying the appropriate court whenever it discovered

monitoring information which was arguably relevant to the

litigation before the court. See the Government’s Supplemental

Memorandum in Schipani v. United States, No. 504, O.T., 1966;

see also Memorandum for the United States in Opposition in

Kolod v. United States, No. 133, O. T., 1967, pp. 3-8. Cf. Granello

v. United States, 386 U.S. 1019, and the Brief in Opposition for

the United States in that case, No. 750, O.T., 1966 at p. 19 n. 12.

This Court did not hold that the government was not au-

thorized ew parte to make the determination of relevancy until

long after the conclusion of the hearing in this case. Kolod v.

United States, 300 U.S. 136, decided on January 29, 1968

+

this Court remanded the case to the district court

for a hearing to determine whether that or any other

electronically overheard conversation had tainted any

of the convictions (387 U.S. 231; Pet. No. 895 App.

74-77). Following such a hearing the district court

found no taint (273 F. Supp. 141; Pet. No. 895 App.

78-90). The court of appeals affirmed, Judge Swygert

dissenting (Pet. No. 895 App. 91-104, 104-117).

II

THE ORIGINAL PROCEEDINGS CULMINATING IN THIS

COURT’S ORDER OF REMAND

The evidence adduced at trial to support the charge

of mail and wire fraud and conspiracy is fully de-

tailed in the government’s brief in opposition filed in

response to the first petition for writ of certiorari in

the October Term, 1966. We rely on that brief for

the detailed presentation of the relevant facts (see

government’s brief in opposition in No. 1003, O. T.,

1966, pp. 5-33, hereinafter Br.“). Here, we shall

only summarize the nature of the crime and the pur-

poses and roles of the various petitioners.

The core of the scheme proved at trial was the

illegal procurement of money from the Teamster

Pension Fund through the filing of fraudulent loan

applications. The unlawful conduct of the petitioners

was prompted by a need to extricate from financial

difficulties Sun Valley, Inc., a Florida real estate cor-

poration in which petitioners Hoffa, Burris and

(pending on Motion to Amend Order of January 29, 1968,

sub nom. Alderman v. United States, No. 188, O. T., 1967).

882-226 692

Dranow had substantial interests (Br. 6-9). To this

end, falsely inflated loan applications were filed with

the Pension Fund and money so obtained was diverted

to the rescuing of Sun Valley and to the personal

profit of the petitioners. The evidence showed that

approval for these loans was obtained by exploiting

petitioner Hoffa’s position of dominance over the

Board of Trustees of the Fund (¢.g., Br. 14, 16, 17,

18-19, 20, 23, 26). Hoffa was anxious to revitalize

Sun Valley because of his own personal interest in

that venture and because he had been harmed by the

public disclosure of the involvement of Teamster

funds in that failing enterprise (Br. 6-7, 8-9, 11-13).

Dranow, Burris (and to a lesser extent Kovens) were

variously Pension Fund “borrowers” (¢.g., First

Berkely and Good Samaritan Hospital transactions,

Br 22-28), agents for the procurement of loans (e. g.,

the Connelly-Everglades transaction, Br. 10-13), and

participants in the rehabilitation of Sun Valley (Br.

9, 13, 24-25). In addition to their interest in rescuing

Sun Valley, they were also motivated by a desire for

personal enrichment (see, ¢.g., Br. 11, 13, 14-15, 19).

Strate and Hyman’ were primarily borrowers from

the Fund (Strate-Pelican transaction Br. 13-17;

Hyman-Key West Foundation transaction, Br. 17-22)

who, knowing of the overriding goal, joined the scheme

with the understanding that to obtain loans for them-

selves and their projects, they would have to divert

funds to Sun Valley (Br. 17, 19). Weinblatt partici-

pated as Dranow’s alter ego in several transactions

_ *Hyman died some time prior to the eavesdrop hearing (see

I H.D.A. 176-177).

7

(Br. 8-9).“ As a result of petitioners’ fraud on the

Pension Fund, Sun Valley was rendered substantial

financial assistance in its successful efforts to with-

draw from bankruptey proceedings (Br. 31-32) and

petitioners themselves were personally enriched (e. g.,

Br. 13, 17, 21-22, 23-25, 28).

III

THE HEARING HELD BY THE DISTRICT COURT

A. THE SCOPE OF THE HEARING

Pursuant to this Court’s order remanding the case

to the district court (Hoffa v. United States, 387 U.S.

231; Pet. No. 895 App. 7477), hearings were held

in the summer of 1967. Early in the -hearing the

court (Judge Austin) stated-that, in the first instance,

it would require the government to establish prima

facte that the admittedly overheard Burris-Sigelbaum

conversation of December 2, 1963, did not “taint”

any of the convictions and that there were no other

‘electronic trespasses which resulted in the obtain-

ing of any evidence which aided in the conviction

in this case“ (II H. D. A. 797; 798). The court deemed

this latter category to include any electronically over-

heard conversations in which any of the defendants

participated. Accordingly, it directed the government

to disclose what electronically eavesdropped conver-

sations involving these defendants that there is a

record of in the Federal Bureau of Investigation and

in the Internal Revenue Department, 5 (II

* Weinblatt’s lesser role was recognized by the trial judge who

sentenced him to 1 hour in the custody of the United States

Marshal and to a fine of $5,000 (ID. A. 32).

. r

0

a

H.D.A. 858; see also III H. D. A. 1365, 1430). When

the defense objected to the fact that the government

was not being directed at that time to disclose over-

heard conversations of lawyers, the judge responded

that such disclosure was not within theambit of this

Court’s order (II H.D.A. 857-858; see also III

H.D.A. 1069). The court stated, however, that the

defense would be permitted to “produce whatever

evidence [it] can find in regard to electronic eaves-

dropping and the other defendants. in this case, or

the lawyers in this case, in which this trial was dis-.

cussed, or preparations for this trial was discussed’’

(IIAI. D. A. 805-806, 807, 857-858).

B. THR EVIDENCE ADDUCED BY THE GOVERNMENT AT THE HEARING

J. Overheard conversations other than Burris-Sigelbaum

Government counsel represented to the district

court that, in addition to the Burris-Sigelbaum con-

versation of December 2; 1963, it had in its possession

nine logs of certain isolated accidental and abso-

lutely irrelevant overhearings of some of these defend-

ants.“ (II H. D. A. 849, 852-853; III H. D. A. 1524-.

1525). The government introduced into evidence an

affidavit from Charles Bolz, Chief of the Accounting

and Fraud Section of the F. B. I., to the effect that

“diligent searches” of F. B. I. records regarding “elec-

* Government counsel advised the court that the discovery of

such “trivial” items was the result of a “massive search” over

a period of almost nine months (II H. D. A. 852).

tronic eavesdropping of conversations participated

_in by any of the defendants in this case, disclosed

only the Burris-Sigelhaum conversation of Decem-

her 2, 1963 and the conversations which were contained

in sealed Exhibit 1-A (II H.D.A. 850-851, 863-864).

This sealed exhibit, containing the logs of the nine

conversations, was attached to the Bolz affidavit (II

H.D.A. 851-852). The government turned over Ex-

hibit 1-A to the court for an in camera inspection

(G. Ex. 1-A, II H. D. A. 848-849). Following its in-

spection of all the logs contained in Exhibit 1-A, the ;

district court concluded that they were “not remotely

relevant” to the issues involved in the case and ac-

cordingly denied the defense request to examine them. 5

The court further ordered that the logs be resealed

and made available to the court of appeals on appeal

(II-H.D.A. 864-865).

An affidavit sworn to by Leon Green, Deputy As-

sistant Commissioner for Compliance of the Internal

-Revenue Service, was also read into the record. This

affidavit stated that diligent searches of the files and rec-

ords of the Internal Revenue Service had failed to

disclose any electronic overhearings of the defendants _

(II H.D.A. 854-855). The court denied the defense

_ Fequest to strike the Bol and Green affidavits (II

Government counsel pointed out that the term “electronic

eavesdropping” was meant to include not “only bugging or the

placing of an clectronic device device by trespass” but also “wire-

10

H. D. A. 855, 862-863), pointing out that no restrictions

would be placed upon the defense calling these affiants

as witnesses or otherwise endeavoring to establish. the

falsity of their affidavits (II H.D.A. 860-861). The

defense never sought to call either Bolz or Green as

witnesses.” ; 5

9. The Burris -· Sigelbaum conversation 5

The government introduced into evidence all records

it had cf the December 2, 1963, conversation between

petitioner Burris and Benjamin Sigelbaum—i.c., a

certified copy (of the F. B. I. log of that inter-

cepted con ti G. Ex. 1, I H.D.A. 233-249; see

II H.D.A. 820-823), and two memoranda summariz-

ing the log—one dated December 26, 1963 (G. Ex. 3-1,

I H.D.A. 253-257) and the othe? dated January 11,

1964 (G. Ex. 2-3, I H. D. A. 250-252).

a. The substance of the conversation as it appears

in the log is as follows: Burris mentioned certain tax

problems he had and requested that Sigelbaum buy

out some of his deals“ (I H. D. A. 234). There then

followed a short discussion of the political situation

in Washington, D.C. (I H.D.A. 234). Burris returned

to his personal financial problems, and mentioned the

possibility of transferring a 10% interest in Sun

Valley to Sigelbaum (I H.D.A. 234-235). The latter

responded that he had a prior claim against that

interest but had not pressed it because of his concern

Joseph Harmon who, in 1968, was assistant Chief of the Intel-

ligence Division of the Internal Revenue Service was called as a

defense witness at the hearing and testified that to his knowledge

there was no electronic eavesdropping or wiretapping of any con-

versations of the defendants in the instant case, from 1961 —

1964 (III H. D. A. 1421, 1425, .

ee

. 8 11 ;

wanted Dranow and Hoffa to get ‘straightened out“

(I H.D.A. 235-236, see also I H. D. A. 239-240), Sigel-

baum also spoke of an unnamed bank’s claim against ;

Sun Valley, and allowing it to precede his (I H. D. A. ial

235-236 ; see also I H. D. A. 242). Burris advised Sigel- |

baum that he had paid for his 10% Sun Valley in-

terest by borrowing $57,000 from one Kipnia, which

amount he later repaid from a fee he received from

Kipnis. He said that they “were supposed to get

another ninety thousand dollars” (I H. D. A. 236-237).

Sigelbaum mentioned that he had tried to get Burris

more money, which the latter would not

(I H. D. A. 237). Sigelbaum referred again to his own

and others’ claims against Sun Valley and noted that

Willis“ was the trustee of these claims (I H. D. A.

237-239). Sigelbaum referred to his “bail-out” of

Dranow and Sun Valley, pointing out that others who

knew nothing of this just sat back and made their

profit (I H. D. A. 240-241). Burris said that he had

given the bank $5,500 out of his personal account

(I H.D.A. 243). When Sigelbaum inquired about the

nature of the charges against Burris and how far he

was involved, Burris replied that the government's

case was not a good one but that the jury might con-

clude that where there is smoke there must be some

fire” (I H. D. A. 243-244), He said that the case had

nothing to do with income tax and that his fee from

the Airport“ was in the form of a check and he had

reported it (I H. D. A. 244-245). Burris further stated

that the government could not prove any fraud or

conspiracy involving the Pension Fund because of the

12

strict mantier in which the Fund was run (I H.D.A.

245-246). Sigelbaum then referred to Bill Man-

height' who, he said, was an attorney who had been

interviewed by the FBI concerning his Pension Fund

loan application and, who, Sigelbaum believed, would

make an excellent defense witness (I H. D. A. 246-247,

248). Sigelbaum inquired about defendant Hyman

and his Key West Foundation transaction. Burris

responded that Hyman had used Pension Fund loans

‘ta little bit differently’? than he was supposed to

but that ‘he had ultimately spent the money on the

property for which the loans had been obtained (I

H.D.A. 248).

b. The government also introduced evidence as to

the preparation and distribution of the iog. It showed

that a listening device had been installed by trespass

in the Sigelbaum office in January, 1963 (III H. D. A.

1335-1339). The Burris-Sigelbaum conversation was

monitored by F.B.I. Agent Fleck on December 2,

1963 (III H.D.A. 1168-1169). In accordance with

normal practice, at the start of the conversation,

Fleck activated a tape recorder and took hand-written

notes. From the notes and tapes, he prepared a log

which he turned over to his relief agent who, in turn,

passed it on to Agent Swinney, his supervisor (III

H.D.A. 1131-1133, 1168-1169, 1208-1209). Swinney

wrote the name of F.B.I. agent Connors on the first

page of the log so that agent would see it since

In accordance with usual practice the notes were destroyed

and tapes erased after the log was prepared (III H. D. A.

1151-1152, 1171-1172, 1193-1199, 1203, 1250, 1336, 1345, 1348).

13

Swinney knew that Connors had “an investigation

going concerning Sun Valley” (III H. D. A. 1342,

1356-1357; see also III H.D.A. 1269, 1384). Swinney

did not discuss the contents of the log with Connors

(III H.D.A. 1356-1357) and knew nothing of the

substance of the Sun Valley investigation (III

H. D. A. 1384-1385). Swinney also wrote on the log

the name ‘‘Doerner”’ the F. B. I. agent in charge of the

Sigelbaum investigation (III H.D.A. 1342, 1243-

1244).

Agent Connors testified that he had seen the log, but

not the notes nor the tapes from which the log was

prepared (III H. D. A. 1046). Connors routed the log

to agent Doerner, the next name on the list, and

advised Doerner that the George“ mentioned in the

log was George Burris (III H. D. A. 1045-1047, 1247

248). Doerner did not send the log on or discuss it

with anyone but Connors (III H. D. A. 1248-1249,

1258).

Connors prepared two summary memoranda of the

log, on December 26, 1963, and J anuary 11, 1964,

and forwarded them to F.B.I. headquarters in Chi-

cago and Washington, D.C. (III H.D.A. 1032-1033,

1051-1052). Connors did not forward either report to

»The monitoring agent (Edward Fleck) had thought

“George” was possibly George Simon (III H. D. A. 1176-1177).

0 Connors testified that the second memorandum differed

from the first in that it contained “administrative correc-

tions”—i.e. it was written “in more general terminology, leav-

ing out some of the direct quotations and excessive wording”

(III H.D.A. 1058). The two memoranda are set out at I

H.D.A. 251-252, 253-257.

332-226—69-—_ 3

14

government counsel and never discussed their contents

with government attorneys or special investigator

Walter Sheridan (III H.D.A. 1054-1056). Connors

further testified that he had examined the files in the

Miami office of the F.B.I. relating to this case for the

period December 1, 1963 to the date of the hearing

and that such examination revealed that no one had

requested or conducted an investigation based on the

log or the two memoranda he prepared therefrom

(III H. D. A. 1160-1162; H. Tr. 1320). The Janu-

uary 11 memorandum was sent to the attention of

Walter J. Sheridan, a special investigator of the Crim-

inal Division of the Department of Justice (G. Ex.

2-3, I H. D. A. 250, III H. D. A. 1272-1273, 1276-1277).

Government trial attorney, William Ryan, testified

that since his initials appeared on the routing slip

attached to the January 11 memorandum, he apparently

had seen a copy, although he had no independent recol-

lection (III H. D. A. 1113-1115, 1117)." He had no ree-

ollection of discussing it with any other attorney in-

volved in the prosecution of the case until sometime in

1967, long after the prosecution had been concluded

(III H.D.A. 1118). He did not see the actual log of the

conversation before 1967 (III H.D.A. 1109-1110). Ryan

testified that his review of Department of Justice files

for the period December 1, 1963 until the end of July

1964 (the verdict in the trial of this case was returned

on July 26, 1964, I D.A. 28) showed that he never re-

quested nor conducted an investigation based on the

n The December 1963 memorandum was not seen by govern-

ment attorneys until after the trial (III H.D.A. 1059).

>

—

FF

15

January 11, 1964 memorandum. To the best of his

knowledge no one else requested such an investigation

(III H.D.A. 1125-1126).

b. The government also established in detail that it

had independent sources for all the relevant facts men-

tioned during the overheard conversation."

(1) The Burris, Dranow, and Hoffa interests in Sun Valley

The evidence as to Hoffa’s financial interest in Sun

Valley beginning in 1955 or earlier, his deposit of Team-

ster Union Funds in a ‘‘restricted” account in a Flor-

ida bank to secure $400,000 in loans made to Sun Valley

by that bank, Sun Valley’s financial difficulties, and the

creation of Union Land & Home Company by Dranow

and Burris to purchase a Sun Valley stock option from

Hoffa and to rehabilitate Sun Valley, is fully detailed

* Other government trial counsel—i.e., Messrs, Poretz, Smith,

Canavan, and McTiernan—had also been sent the January 11,

1964 memorandum shortly after its preparation and certain of

them had written comments thereon (I H. D. A. 250-252, 126-127).

The government sought to introduce the affidavits of every gov-

ernment attorney who came into contact with the January 11,

1964 memorandum to the effect that the information contained

therein never provided any leads and that no governmental inves-

tigation was conducted based on it (III H.D.A. 1226-1227). The

court sustained the defense objection to the admission of such affi-

davits (III H.D.A. 1242-1243).

** Most of this independent source material consisted of inter-

views conducted by government agents predating the Burris-

Sigelbaum conversation. The agents who had conducted these

interviews (including several with Burris and with Sigelbaum )

testified that the documents the government introduced at

the hearing to show independent source were the accurate reports

they had prepared of such interviews (II H.D.A. 869-870, 884

886, 921-922, 932-934, 943-947, 965-972; III H. D. A. 1004-1007;

see also II H. D. A. 882-884, 928-931).

16

in our original brief in opposition (Br. 6-9). Extensive

information relating to these matters was in the gov-

ernment’s possession. long before the December 1963

conversation. This information derived, among other

sources, from Burris’ sworn testimony before a Senate

(McClellan) Committee on June 29, 1959 and before

a grand jury in October 1959 (See G. A. 74-@2, 92-103) ;

Hoffa’s statement under oath on September 17, 1958

(G. A. 83-91); an F. B. I. interview with Burris on Feb-

ruary 17, 1960 (G. Ex. 17A I H.D.A. 310-315) and on

October 2, 1962 (G. Ex. J9A, I H.D.A. 321-324).

(2) Sigelbaum’s interest in Sun Valley

In an interview with the F.B.I. on November 8, 1960

Sigelbaum described in some detail his membership

in a group which, after conferences with Dranow,

had invested $250,000 for a 50% interest in Sun Val-

ley stock and stated that his own investment amounted

to over $66,000 (G. Ex. 4A, I H. D. A. 257-262; III

H.D.A. 1228-1229). Similar information was con-

tained in the statement of Edwin Willis (one of Sigel-

baum’s associates in the Sun Valley venture) to the

F. B. I. on December 22, 1960 (G. Ex. 9A, I H. D. A.

279-282, III H. D. A. 1229). “ Also introduced at the

hearing was the November 15, 1960 statement of Ju-

lius Friedman, the attorney representing the Sigel-

baum interests in this venture, which referred to that

group's further investment in Sun Valley (G. Ex.

5A, I H. D. A. 262-270, 267).

2. Willis’ statement of December 22, 1960 (G. Ex. 9A, I

H.D.A. 279-282, 280) further directly provided the informa-

tion contained in the log that Willis was to be the “trustee”.

17

(3) A bank’s claim against the Dranow-Burris

| interest in Sun Valley :

Information relating to this matter was contained

in detailed testimony before a federal grand jury on

October 9, 1962 from Lou Poller, an officer of the

Miami National Bank, which had numerous dealings

with the Teamster Pension Fund. According to Pol-

ler’s testimony, Dranow had an account at the Miami

bank which became overdrawn by more than $50,000

and Poller covered this from his own account. Poller

thereafter threatened to overturn the sale of Sun

Valley stock unless he or the bank received 10% from

the Dranow-Burris interests in that stock (See G. Ex.

25A, I H. D. A. 437-440; III H. D. A. 1229-1232). See

also, Poller's F. B. I. interview of July 25, 1962 (G.

Ex. 14A, I H. D. A. 299-300).

(4) The $57,000 transaction between Burris and Kipnis

The government’s information relating to this

transaction came from several sources pre-dating

the Burris-Sigelbaum conversation of December 196%.

This transaction was referred to by Kipnis in F.B.I.

interviews on July 2, 1962, July 31, 1962 and Octo-

ber 31, 1963 (G. Exs. 6A-8A, I H. D. A. 270-279; IIT

The trial evidence revealed that, in 1960, Irving Kipnis had

agreed to pay Burris a fee to obtain a Pension Fund loan to

build the Causeway Inn. At about the same time, Kipnis gave

Burris $57,000 for an option to buy 10% of Sun Valley with

tho further agreement that the option would become a loan if

Kipnis decided not to exercise it. The option ultimately became

a loan to Burris which was used to rehabilitate Sun Valley.

Burris repaid it in 1962 out of fees he had received in procur-

ing the Causeway Inn loan for Kipnis (II D. A. 1886, 1389-

1891). |

H. D. A. 1004-1007). In addition, Kipnis diseussed this

transaction in an affidavit given to the Internal Reve- .

nue Service on May 31, 1963 (G. Ex. 11, I H. D. A.

284-290; see III H. D. A. 1103-1105), and in an inter-

view with the F.B.I. and I.R.8. on August 6, 1962

(G. Ex. 12A, I H. D. A. 290-294, 291).

(5) Sigelbaum's use of the term “bail-out”

The government showed that the use of the phrase

‘*bail-out’’ to describe the attempt to take Sun Valley

out of reorganization long preceded the Burris-Sigel-

baum conversation of December 1963. At trial, Carl

Langford, the trustee of SunValley during reorga-

nization, had testified that in 1960 defendant Hyman

had asked him what it would take to “bail the corpo-

ration out of its difficulties’? (II D. A. 1399-1400).

(6) Burris received a fee from the airport.

This apparently refers to transactions involving

the procurement gf loans to construct a hotel at the

Miami Airport>Between 1959 and 1961 George Simon,

a Miami accountant, secured Teamster Pension Fund

loans for such construction with the assistance of

Burris. Simon paid Burris a finder’s “fee” for his serv-

ices in procuring the loans (II D. A. 1174, 1179-1185).

Detailed information relating to this transaction came |

from Simon’s statements to the F.B.I. on daa 2,

1961, and February 14, 1961 (G. Exs. 15A-16A, I

H.D.A. 301-310); see also, the February 15, 1961,

statement of one Jack B. Cooper, a stockholder in

% Kipnis also recounted the details of this transaction in testi-

mony before a federal grand jury sitting in Chicago, on Septem-

ber 18, 1962 (G. Ex. 22A, see I H.D.A. 373).

re ee — — — 2

10

Airway Hotel Inc., stating his awareness that “find-

ers’s deen“ had bee paid to Burris (G. Ex. 10A, I

H. D. A. 283-284).

(7) The procedures of the Pension Fund

The safeguarding procedures said to have been em-

ployed by the Teamster Pension Fund in processing

loan applications were described before a federal

grand jury on February 8, 1962, by Morris Lieber-

‘man, Appraiser for the Pension Fund (G. Ex. 20A,

I H.D.A. 324-349), and on October 17, 1962, by

Stanford Clinton, General Counsel for the Pension

Fund (G. Ex. 26A, I H. D. A. 441-448).

(8) Hyman’s expenditures of Key West Foundation loan

proceeds

As developed at the trial, defendant Hyman had ob-

tained Pension Fund proceeds in 1959 and 1960 for

Key West Foundation for the avowed purpose of

building a shopping center and for remodeling an

apartment development and had used such proceeds

during the period in question for purposes other than

those represented to the Pension Fund (See Br. 19-

22). At interviews with F.B.I. agent Godwin on June

20 and July 7, 1961, Hyman advised that he had

used $100,000 of Pension Fund proceeds loaned) to

Key West Foundation to purchase a one-half intereat

in Sun Valley (II D. A. 900, see also II D.A. 892-\.

897). There was also the testimony of Cecil Black

(who did carpentry and masonry work for Hyman)

who testified before a grand jury on August 27, 1 62

(G. Ex. 27A, I H.D.A. 449-460) and at trial (II D. A.

919-930, erroneously titled in the Appendix, “Testi-

mony of Burton Harrison that he had signed waivers

8

for receipt of Iban funds for construction payments

from Hyman (some $656,000), when, in fact, he had not

actualy been paid such funds (see G. A. 138-145).

There was also testimony at trial that payment had not

been made to another creditor, contrary to what Hyman

had represented to the Fund (see II D. A. 908, 935-

936, 938-939). This testimony and supporting docu-

mentary evidence thus showed that from May to No-

vember 1960 Hyman obtained the full amount of the

second Pension Fund loan: ($400,000) by misrepre-

senting to the Fund that construction expenses

amounting to $706,000 had in fact been incurred (see

G. A. 134-145, 323-324, 344-345). a

At the hearing, agent Connors testified that he had

examined the books of Key West Foundation in 1962

and at the end of September 1963, at the request of

government counsel then involved in preparation for

the trial, and had used these records to prepare sched-

ules relating to the disposition of Pension Fund loans

by Key West Foundation (III H. D. A. 1007-1008,

1081). * Based upon his examination of the books of

Key West, ledger sheets, checks and- other exhibits in

evidence (III D. A. 1681-1682), he had testified at

trial that during this period of allegedly heavy con-

struction expenses hy Key Wart Foundation (Novem.

ber 1959 through December 1960), with Hyman mak-

ing periodic construction draws’’ on the Pension

Fund loans assertedly to pay creditors (see, ¢.g., G. A.

138--142), no payment to creditors in the amount al-

* Government Exhibits 21A and 24A reveal that théQooks

and records of Key West Foundation had been turned over

to the government in September and October 1002 (I II. D. A.

350-352, 482-436).

21

leged appeared in the books and records of Key West

Foundation (III D. A. 1683, 1686, 1687, 1693, 1701,

1709, 1740; see II H. D. A. 585-586).

Agent Connors testified that certain of his account-

ing schedules (those dealing with Key West Founda-

tion books for the latter part of 1962) were prepared

in 1964 (III H. D. A. 1027, 1038). This was after he

had seen the log of the Burris-Sigelbaum conversa-

tion of December 2, 1963 and had prepared the two

memoranda of that log (III H. D. A. 1027). He also

testified that the accounting “summaries” he had ac-

tually used nt trial were prepared a few weeks before

his trial testimony at the direction of the government

prosecutors, and were basically ‘‘a recap of the older

summaries” (III H. D. A. 1028-1030, 1011). He stated

that the December 1963 conversation „meant nothing

to“ him and he “did not consider that conversation”

in preparing his accounting documents (III H.D.A.

1027-1028) ; that the Key West books and records

showed that by the end of December 1960, all Pension

Fund loans received up to that time had been spent

(III H.D.A. 1041); that when he ‘prepared his ac-

counting summaries, he did not know that it would be

“During cross-examination at trial, Connors had tectifed

that some of the accounting worksheets he had earlier prepared

were destroyed—some at the end of 1962 and others about seven

weeks before trial—because he had been advised by the govern-

ment prosecutors that they were not to be used. He further

stated that “some” of these destroyed worksheets dealt with a

period beyond December 31, 1960—ie., the cut-off date of the

summaries used at trial (See III D.A. 1726-1728; II H.D.A.

593-504, 597). He further explained that his trial summary “of

the whole picture” superseded these earlier worksheets (IIT

D. A. 1727, 1781-1782),

en

the defense’s contention at trial that Hyman had ulti-

mately spent all the Key West Pension Fund loan

proceeds in a proper fashion (III H. D. A. 1078-1079) ;

and that he never directed that the memoranda he

prepared from the log be sent to. government trial

counsel, nor discussed the log of the Burris-Sigelbaum

conversation or either of the two memoranda based

thereon: with any government — counsel (IIT

H. D. A. 1030, 1033, 1034-1035, 1057, 1086-1087).

(9) Reference to potential witness Bill Manheight |

William Ryan, one of the Department of Justice

attorneys involved in the prosecution of this case, tes-

tified that he had never heard of nor interviewed any

“Bill Manheight” and that ‘‘Manheight” was not called

as a witness to testify at trial (III H.D.A. 1120).

Agent Qonnors testified that he had never heard of

“Manheight” nor seen any report concerning an in-

vestigation of ‘‘Manheight”’ (III H.D.A. 1052).”

O. THE FINDINGS OF THE COURTS BELOW

1. After summarizing the evidence adduced at the

hearing; including that presented by the defense (see

Pet. No. 895 App. 78-89), the district court concluded

“that the government obtained no new information

from the electronically eavesdropped overhearings in

10 “Philip Monheit” testified as a defense witness at the hear

ing that he had in the past applied for a Teamster Pension

Fund loan, but had never gone through “with the deal” and

that in February 1963 he had been interviewed by an F.B.I.

agent (I H. D. A. 224-2260; III H. D. A. 1330-1335). Monheit

never testified at trial nor was his name mentioned in connec-

tion with any evidence adduced at trial (H. Tr. 1723).

0 Uͥꝓ2

the record and that none of the overhearings had any

relevance to the convictions of any of the defendants.” .

Accordingly, it found (that the convictions of none of

the defendants were tainted by the use of evidence im-

properly obtained” (United States v. Hoffa, 273 F

Supp. 141, 147 (N. D. Ill); Pet. No. 895 App. 89-

90). With particular reference to the nine overhear-

ings submitted for in camera inspection (G. Ex. 1A),

the distriet eourt stated that it had carefully read the .

“extremely brief overhearings and that they con-

tain no information either remotely or peripherally ~~

| relevant to the transactions and evidence on which

| these defendants were indicted and convicted” (273

| F. Supp. 141, 143; Pet. No. 895 App. 79-80), The dis-

_ trict court thereupon denied the motions for a new

trial, entered new final judgments of conviction

against each of the defendants and reimposed the

sentences originally imposed (I H.D.A. 155-164).

2. The court of appeals affirmed, Judge Swyge

dissenting. The majority agreed with the district court

that none of the convictions was based on tainted evi-

dence; that the nine overhearings of defendants which

had been submitted for in camera inspection to the dis-

trict court were not “remotely” relevant; and that the

other questions raised on appeal were without substance

(Pet. No. 895 App. 91-104). In response to inquiry

during oral argument of the appeal government coun-

sel disclosed to the court of appeals that certain law-

yers of record for the defendants in the original

Except as to defendant Hyman who had died sometime _

prior to the hearing (See I H. D. A. 176-177),

24

Pension Fund trial had been electronically overheard

talking to persons other than defendants about mat-

ters not related to this case and submitted the logs of

these overhearings to the court for in camera inspec-

tion. Based upon its in camera examination of these

logs the court concluded that “the information is com-

pletely irrelevant to the Hoffa case before this Co

(Pet. No. 895 App. 98).”

ARGUMENT

Petitioners’ contentions fall into two broad cate-.

gories: It is first urged that this Court should grant

plenary review to remedy allegedeerrors resulting

from the eavesdrop hearing held pursuant to this

Court’s order of remand (Pet. No. 895, pp. 55-77;

Pet. No. 911). It is next asserted that errors flowing

from the original conviction in 1964 justify issuance

of the writ (Pét. No. 895, pp. 76-106). Since the al-

leged errors flowing, from the conviction were raised

in the original petition (No. 1003, O.T. 1966) and are

fully answered in our original brief in opposition, we

do not repeat those responses here but rely upon that

brief.“ However, since one of the earlier contentions

has been recast to rely on Bruton v. United States,

391 U.S. 123, we shall answer that contention in this

brief.

21 Both the sealed defendant n and the overhear-

ings of attorneys are on file with the Clerk of this Court.

22 We are filing herewith 10 additional copies of our original

brief in opposition which we have asked the Clerk to distribute

to the Court.

25

I

ISSUES ARISING FROM THE EAVESDROP HEARING

A. THE BURRIS-SIGELBAUM OVERHEARING

The facts detailed in the Statement show that the

government’s evidence at trial stemmed from sources

wholly independent of the Burris-Sigelbaum conver-

sation and that the conversation did not provide in-

vestigative leads and was not used in any fashion at

trial.“ The government’s case was predicated upon

years of extensive, independent investigation predat-

ing the unplanned overhearing of Burris on December

For the first time in this Court petitioners urge (Pet. No.

895, pp. 66-67) that the “beyond a reasonable doubt” standard

of Chapman v. California, 386 U.S. 18, should be applied to

determine whether the government has established lack of taint

in the Burris-Sigelbaum conversation. This standard was not,

however, urged in the district court or in the court of ap-

peals. There the government agreed with the view expressed

by petitioners in their brief that the “clear and convincing

evidence” test announced in United States v. Wade, 388 U.S.

218, 240, was the appropriate standard (see petitioners’ brief

in the court of appeals, p. 57; cf. the government’s brief in

the court of appeals, p. 38). Petitioners have not shown any

“exceptional circumstances” which would allow them to make

this contention for the first time in this Court. See Lawn v.

United States, 355 U.S. 339, 362-363, n. 16. Nor do the court

of appeals cases which petitioners cite (Pet. 67) point to the

adoption of the Chapman standard in the present context.

They hold only that if illegally seized evidence is introduced

at trial, the government must meet the Chapman test in order

to show lack of prejudicial error.

In any event, our position is that whatever standard is ap-

plied, the government met its burden of establishing lack of

taint arising out of the Burris-Sigelbaum conversation.

— —— e l U—

2, 1963.“ Indeed, the detailed indietment in this case

which was returned some six months before the Bur-

ris-Sigelbaum conversation took place—dealt with all

the loan transactions proved at trial (1 D.A. 41-

77). As the majority below noted, “[i]t is apparent

the charges made against the defendants in the in-

dictment were drawn in such detail and particularity

that they could have come only from a full investiga-

tion of all the facts underlying the scheme. It is

neither conceivable nor realistic to believe that this in-

formation could have been obtained from a cryptic half

hour conversation which occurred six months after

the indictment had been returned’’ (Pet. No. 895,

App. F 97).”

1. a. Petitioners contend that the government ob-

tained a theory of the defense because of overhearing

Sigelbaum comment to Burris that Bill Manheight”’

would make a good defense witness to show how dif-

ficult it was to get a Pension Fund loan (Pet. No.

895, p. 57). The government, however, did not know

who this*‘‘potential’’ witness was until it learned at

the eavesdrop hearing that Bill Manheight”’ was

actually Philly Monheit“ one of numerous loan

As the evidence adduced at the hearing made quite plain,

the overhearing occurred as a result of the government’s sur-

veillance of Benjamin Sigelbaum and “his connection with or-

ganized crime” and was not the result of any investigation

conducted as to any defendant (See III H.D.A. 1253, 1337, 1349,

1352).

The trial lasted about 13 weeks and involved the testimony of

approximately 140 witnesses and the introduction of several

thousand exhibits. The trial transcript exceeds 16,500 pages.

*

27

applicants who had been interviewed by the govern-

ment before trial but whose testimony was never ad-

duced. at trial (III H.D.A. 1119-1120, 1052, 1330-

1333). Moreover, the government was fully aware of

the Pension Fund’s loan screening procedures from

wholly independent sources (see supra, p. 19; G. Ex.

20A, I H.D.A. 325, 330-349; G. Ex. 26A, I H. D. A.

441, 443-448). Nor does the fact that one of the gov-

ernment trial counsel wrote “such testimony would

not be admissible” next to the J anuary 1964 mem-

orandum’s reference to “Manheight”’ (see G. Ex. 2-3,

I H.D.A. 126, 252) support the argument that this

individual or his information was ever used by gov-

ernment counsel; the notation reflects only govern-

ment counsel’s normal reaction to information which

he believed was clearly not relevant to the ease.

b. Petitioners’ major argument on this aspect of

the case (Pet. No. 895, pp. 57-59) stems from the fact

that F.B.I. agent Connors, who had prepared the

January 1964 memorandum which had been circulated

to the government prosecutors, was also a government

witness at trial testifying as an accounting expert

concerning the expenditures of Hyman’s Key West.

Foundation. Relying on the fact that Connors re-

ported in the memorandum that Burris told Sigel-

baum that, while Hyman had used Pension Fund

Proceeds „a little differently“ at first, he had “ulti-

mately put it into the property”? (See I H. D. A.

252), and that government counsel had written the

notation does this check out“ on this portion of the

memorandum (see I H.D.A. 126), petitioners argue

— — —————————————ͤZ ͤ—ö——————ꝗ;ꝶ

28 65

that Connors, at the behest of the prosecutors, must

have tailored his testimony at trial to avoid mention-

ing Key West's expenditures in 1961, in an effort to

anticipate and thwart the defense theory (allegedly

learned from the memorandum) that in this later

period Hyman had properly expended the Pension

Fund loan proceeds.

The Key West Foundation loans from the Pension

Fund were obtained in the fall of 1959 and the spring

of 1960 (Br. 19-22). It was a condition of the $400,-

000 loan in 1960 that Hyman would have to expend

one dollar for every two dollars loaned by the Fund

and that detailed, written proof of expenditures had

* to be submitted to secure construction ‘‘draws.’’ The

evidence showed that Hyman withdrew the full $400,-

000 in 1960 on the basis of documents purporting to

show the expenditure of $706,000. The government

showed that this documentation was false. In particu-

lar it showed, payments of $656,000 allegedly made to

Black Construction Company, were not made and that

Black was a salaried employee of Hyman who never

received more than $125.00 per week for himself. In

addition Connors testified that the books of Key West

showed expenditures of $186,000, not $706,000, during

1960.

Since the money was paid out by the Fund for

money allegedly spent by Hyman in 1960, the govern-

ment properly proved its case by showing that the al-

- leged expenditures had not in fact been made in 1960.

The claim that Hyman did actually spend the money

| | | 1

29

on remodeling in 1961 was at best a defense in miti-

gation not going to_proye the absence of falsity in the

earlier representations made to the Pension Fund.

There is thus no reason to read sinister implications

into the fact that government counsel told Connors

that it was confining his accounting evidence to 1960.”

Connors testified at the hearing that at the time he

prepared his accounting summaries he did not know

“it was Hyman’s position that he had spent all of the

money from the loan on his property“ (III H.D.A.

1040), nor did he learn of that fact from any of the

defendants “‘directly or indirectly’’ (III H. D. A. 1078

1079). He further testified that he had not discussed

the log or the memorandum he prepared therefrom

with the government prosecutors (see III H. D. A.

1030, 1033, 1034-1035, 1054-1057, 1086-1087) and un-

equivocally stated that the December 1963 Burris-

Sigelbaum conversation “meant nothing to“ him in

preparing his accounting documents (III H.D.A.

1027-1028).

20 Richard Furman, an accountant whose firm audited the

books of Key West Foundation, testified, as a defense witness,

that Key West’s book showed expenditures for construction

and improvement in 1961 but his testimony did not show that

these expenditures were the ones that Hyman had represented

to the Pension Fund were made in 1960 (III D.A. 1776-1781).

* Connors testified in cross-examination at trial that he had

limited his accounting summary to December 31, 1960 because

of a decision by government counsel to that effect shortly be-

fore trial and that he had destroyed his earlier prepared ac-

counting papers—-some of which related to the post 1960 pe-

riod—because he had been told by government prosecutors that

they were not going to be used (see III D.A. 1701, 1727, 1731-

1732). g

I SAL — — — — UU— —

30

2. As a variant of the foregoing argument, peti-

tioners urge that the failure of the government to

produce for inspection at trial the two memoranda 3

of the log prepared by agent Connors or a memo-

randum he had prepared in October 1963, violated

their rights under 18 U.S.C. 3500 (Pet. No. 895,

pp. 59-63).

a. The memoranda which Connors prepared from

the log of the Burris-Sigelbaum conversation did

not relate to the direct testimony of Connors at trial.

The agent testified at trial solely as an expert ac-

countant with regard to the books and records of

Key West Foundation. Indeed, one of defense counsel

at trial objected to Connors’ testimony on the ground

that the records of Key West Foundation spoke for

themselves (III D.A. 1689). In short, Connors’ sole

function and the entire tenor of his testimony was

to provide the jury with an expert’s analysis of these

documents. Cf. United States v. Donlon, 256 F. Supp.

336, 341-342 (D. Del.), affirmed, 370 F. 2d 987 (C. A.

3), vacated and remanded for other reasons (No. 121,

O. T. 1967), in Stone v. United States, 390 U.S. 204.

The basic purpose of 18 U.S.C. 3500 is to provide

for production of documents which have some con-

ceivable relevance to the witness’ cross-examination.

See, e.g., Palermo v. United States, 360 U.S. 343,

349-351; Rosenberg v. United States, 360 U.S. 367,

370; Ogden v. United States, 303 F. 2d 724, 740

(C. A. 9); Oertle v. United States, 370 F. 2d 719,

724-725 (C. A. 10), certiorari denied, 387 U.S. 943;

United States v. Heap, 345 F. 2d 170, 171 (C.A. 2).

31

Here the memoranda did not bear any relevance to

Connors' testimony.”

In any event, the superficial hearsay comment by

Burris added nothing to what the defense already

- knew of Hyman’s expenditures for Key West Foun-

dation. The defense introduced its own expert anal-

ysis concerning the 1961 expenditures during their

direct case at trial (see III D.A. 1774-1783). Al-

though the factual setting may be different, the rea-

soning of Rosenberg v. United States, 360 U.S. 367,

371 applies here: “Since the same information that

would have been afforded had the document been

given to defendant was already in the possession of

the defense * * * it would deny reason to entertain

the belief that defendant could have been prejudiced

by not having had opportunity to inspect the [docu-

ment].’’ See, similarly, Killian v. United States, 368

U.S. 231, 243-244.”

b. Petitioners also claim that the government im-

properly failed to produce at trial a memorandum

prepared by Connors on October 8, 1963 relating to

When, at trial, Connors testified on cross-examination that

he rendered no report concerning his work, the inquiry and

his answer were obviously directed to accounting work con-

-- cerning the matters about which he had testified (III D.A.

1726-1727, see also III H. D. A. 1062). | |

We see no valid basis for distinguishing Rosenberg or Kil-

lian because the information in those cases came into the pos-

session of the defense in a way different from this case—i.e., in

Rosenberg by way of the witness’ testimony at trial and in

Killian, by way of other statements turned over to the defense.

Whatever the source, the defense had full and independent

access to information which it is said was denied it by the

government.

32

conversations with government trial counsel concern-

ing his preparation of accounting summaries (See D.

Ex. H-7, I H. D. A. 221-224). It is not clear, how.

ever, that this document was a statement“ within

the purview of 18 U.S. C. 3500. It contained neither

recommendations nor conclusions, but was simply a

general outline concerning the format that Connors

proposed to follow in preparing his accounting papers

(See I H. D. A. 221-224). When, at the hearing, de-

fense counsel asked Connors why he had said at trial

that he had made no report of his accounting work

when in fact he had prepared this report of October 8,

1963, government counsel pointed ott that this

document was not a report of his accounting work

but rather “a report on a conversation in which work

was asked to be performed” (LIL II. D. A. 1062),

But even if this October 1963 memorandum was a

“statement” of the witness relating to his direct testi-

mony at trial within the reach of 18 U.S.C, 3500, it had

marginal—if any—impeaching value. The document's

single reference to 1961 was contained in the heading

of an example“ of the type of accounting schedules

the agent was preparing, with no reference to any money

spent by Hyman during that period of time (I H. D. A.

221-222). Moreover, as we have already stressed, the

manner in which Hyman spent funds in 1961 was im-

material to the government’s case. By independent evi-

dence the government had established that Hyman had

in 1960 misrepresented the extent of construction ex-

penditures to the Pension Fund. Agent Connors simply

corroborated this evidence by testifying that Key

West’s books and records for 1960 showed that no such

SN ne — SL eT

33

expenses had, in fact, been incurred (See Br. 17-22)."°

c. The foregoing discussion fully disposes of peti-

tioner’s related claim (Pet. No. 895, pp. 63-65) that

the principles of Brady v. Maryland, 373 U.S. 83, re-

quire reversal for failure to disclose these documents

at trial. In view of their extremely limited value the

failure to disclose these documents for impeachment

purposes hardly can be categorized as a due process

violation,

B. OTHER I88UES ARISING FROM THE EAVESDROP HEARING

1, Petitioners assert that the introduction by the

government of the affidavits of Charles Bolz, Section

Chief of the Accounting and Fraud Section of the Fed-

eral Bureau of Investigation and of Leon Green, Dep-

uty Assistant Commissioner of the Internal Revenue

Service, to carry its burden of showing that neither the

F. B. I. nor the Internal Revenue Service had any over-

hearings of defendants except those turned over to the

defense or the district court for in camera inspection“

denied them the right of confrontation guaranteed by

the Sixth Amendment (Pet. No. 895, pp. 72-75). Rule

27 of the Federal Rules of Criminal Procedure, and

Rule 44 of the Federal Rules of Civil Procedure, how-

It should also be noted that the Key West Foundation trans-

action itself was only a one of nine multi-faceted Pension Fund

transactions proved at the trial establishing a far-flung scheme to

defraud the Pension Fund.

These affidavits, in essence, stated that both the F. B. I. and the

Internal Revenue Service had caused searches to be made of their

files to determine if there were any other overhearings of the

defendants not turned over to the defense or to the court and that

the searches revealed no such additional overhearings (See

H. D. A. 118-119, II H. D. A. 851-852, 854-855). 5

—

34

ever, embody the reasonable principle that there is no

occasion to burden government officials with the duty

of personal appearance with respect to official records.

Lack of a record may be proved by a certified state-

ment of an official that, after diligent search, no such

records exist. The sworn affidavits of Bolz and Green

satisfied these requirements. See T’Kach v. United

States, 242 F. 2d 937, 938 (C.A. 5); United States v.

Ansant, 138 F. Supp. 454, 461 (N. D. III.), affirmed, 240

F. 2d 216 (C. A. 7), certiorari denied sub nom. Milner v.

United States, 353 U.S. 936; Smith v. United States,

353 F. 2d 838, 844 (C.A.D.C.), certiorari denied sub

nom, Cunningham v. United States, 384 U.S. 910.2

In recognition of these controlling precedents, peti-

tioners argue that there is “an apparent“ conflict be-

tween Rule 27 of the Federal Rules of Criminal Pro-

cedure, and the Sixth Amendment (Pet. No. 895, p. 75).

The decisions relied upon for this argument, however,

are inapposite (Pet, No. 895, pp. 74-75). They basically

deal with the denial, of the right to be confronted with

and cross-examine the witnesses whose evidence is

sought to be introduced on the issue of guilt or innocence

at a criminal trial. They have no bearing on the present

situation—an eavsedrop hearing at which the officials

in a position to know have submitted affidavits confirm-

ing the repeated representations of government counsel

(see IT H. D. A. 845-849, 853, III H. D. A. 1524) that the

only records of overhearings of defendants in the gov-

ernment’s possession are those which have been turned

* Compare Lawn v. United States, 355 U.S. 339, 348-349, where

this Court deemed affidavits submitted by government agents and

prosecutors sufficient without a hearing to overcome an allegation

of taint.

.

over to the defense or to the trial court. Indeed,

petitioner’s argument is particularly weak since the

district court stated that the defense could call Bolz

and Green as witnesses (II H.D.A. 860-861), and the

defense chose not to avail itself of that opportunity.

Cf. Baker v. United States, 401 F. 2d 958, 980 n. 92

(C. A. D. C.). 8

2. At the express direction of the district court at

the eavesdrop hearing the government submitted to

1 that court for in camera inspection nine logs of over-

hearings which government counsel described as “iso-

lated accidental and absolutely irrelevant overhearings

of some of these defendants’? (see II H. D. A. 849,

852-853; III H.D.A. 1524-1525). After inspecting the

logs the district court found that they were “not re-

motely relevant” to the issues involved in the case

(II H. D. A. 864-865). Based on its own independent

examination, the majority below agreed without qual-

ification and, relying upon its holding in United States

| v. Battaglia, 394 F. 2d 327, pending on petition for a

: writ of certiorari, No. 168, O. T., 1968, found no error

in this procedure (Pet. No. 895 App. 96).

We recognize that the issue whether the results of

eavesdropping may first be examined by a judge who

in his discretion may then decide that they are un-

related to the case and thus should not be turned over

) to the defense, is presently before this Court on re-

argument in Alderman v. United States (on Motion to

Amend the Court’s Order of January 29, 1968, No. 133,

O.T. 1967) and that the Court may wish to defer

consideration of this question pending its decision in

Alderman. We point out, however, that the few logs of

° 261; Goldstein v. United States, 316 U.S. 214; ef.

Baker v. United States, #1 F. 24.958 CAD) as

well as this s earlier admonition in Nardone v.

* a

of “euch euxitiary inquiries” ave within the sound

discretion of tee trial jude and may be “closely con-

fined” eo tong as the ieee. of taint is fully explored.

Of. Lawn . United States, 355:'U.8. 338, 908-300,

Here, the district court required the government te

Ace all overhearing: of defendants, whether rele-

vand or not, On their side, the defense was allowed to

te electronic caveadropping ated the other def-ndants

im this case, or the lawyers in this case, in which this

trial was disctesed or preparations for this trial was

@ineuseed” (TT Fi.1..A. 805-806; see also IT n.

857-858). That the defendants were not able to make

from cnying thet a defendant, either under his own

in his professional capacity and otherwise; obviously

remotest bearing on the case of client A. The fact

c. The logs of the overhearings of counsel of record

were turned over to the court below for in camera

that they had any relation to this case but because, dur.

ing oral argument, the court of appeals evineed con-

cern as to the nature and extent of such overhearings,

apparently prompted hy petitioner's bread claims to

that effect. Our purpose was simply to remove any

concern the court might have by showing that

overhearings of record counsel in our possession had

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