United States v. James R. Hoffa, Benjamin Dranow, Zachary A. Strate, Jr., S. George Burris, Abe I. Weinblatt, Calvin Kovens

402 F.2d 380

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 7, 1968
• Docket: 16634_1
• Status: Published

Opinions

DUFFY, Senior Circuit Judge.

In August 1964, following a jury trial, defendants were found guilty on various counts contained in an indictment charging them with wire and mail fraud in the procurement of loans from the Teamsters Union Pension Fund, and of conspiracy to commit the substantive offenses stated. 18 U.S.C. §§ 1341, 1343, 371. This Court, one judge dissenting, affirmed the convictions. United States of America v. Hoffa et al., 7 Cir., 367 F.2d 698 (1966).

EAVESDROPPING

In response to a petition for a writ of certiorari before the Supreme Court, the Solicitor General urged that none of the issues raised by the defendants warranted the issuance of the writ. However, acting sua sponte, the Solicitor informed the Supreme Court that on or about January 21, 1963, the Federal Buréau of Investigation installed a microphone by trespass in the office of one Benjamin Sigelbaum, Miami, Florida, and that this electronic device was maintained on such premises until July 12, 1965; that on December 2, 1963, some six months after the return of the June 4, 1963 indictment in this case, defendant Burris visited Sigelbaum’s office and engaged in a conversation with Sigelbaum which was electronically overheard through this device; that a verbatim transcript of the conversation appeared in the Federal Bureau of Investigation’s logs and was summarized in an FBI report.

The Government pointed out that the overheard conversation was not introduced into evidence at the trial of Burris and his co-defendants. It further represented that any conceivably relevant information was theretofore known to the Government from wholly independent sources. It represented that the information had no relationship to any of the defendants except Burris. The Government suggested to the Supreme Court that if a remand for a hearing be ordered, it should be as to defendant Burris only.

Without reaching the issues raised in the petition, the Supreme Court remanded the case to the District Court for a hearing on the issue of electronic eavesdropping. In its opinion, the Supreme Court said that its purpose in ordering the hearing was to provide each of the defendants with “an opportunity to establish, if he can, that the interception of this particular conversation, or of other conversations, vitiated in some manner his conviction.” Hoffa et al. v. United States, 387 U.S. 231, 233, 87 S.Ct. 1583, 1584, 18 L.Ed.2d 738 (1967). The District Court was directed to hold a hearing and to “confine the evidence presented by both sides to that which is material to questions of the contents of this and any other electronically eavesdropped conversations, and the relevance of any such conversations to petitioners’ subsequent conviction.” (387 U.S. at 233-234, 87 S.Ct. at 1584).

The District Court was instructed that if it found taint resulting from any such intercepted conversations, it was to direct a new trial as to the particular defendant whose conviction was thus found to be infected; if it found no taint, it was to enter new final judgments of conviction. (387 U.S. at 234, 87 S.Ct. 1583)

A hearing was held before District Judge Austin. United States of America v. Hoffa, et al., 273 F.Supp. 141 (N.D.Ill., E.D., 1967). The Court stated it would require the Government to establish prima facie that the 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 obtaining of any evidence “which aided in the convictions in this case.” The District Court considered this category to include any electronically eavesdropped conversations in which any of the defendants participated. The District Court also directed the Government “to disclose what electronically eavesdropped conversations involving these defendants that there is a record of in the Federal Bureau of Investigation and in the Internal Revenue Department * * * "

The District Court stated that the defense would be permitted to “produce whatever evidence [it] can find in regard to electronic eavesdropping involving the other defendants in this case, or the lawyers in this case, in which this trial was discussed, or preparations for this trial were discussed.”

At the District Court hearing, government counsel represented that in addition to the Sigelbaum-Burris conversation, it had in its possession nine logs of “certain isolated, accidental and absolutely irrelevant overhearings of some of these defendants.”

The Government introduced an affidavit from Charles Bolz, Chief of the Accounting and Fraud Section of the FBI. This affidavit stated that diligent searches of the FBI records regarding electronic eavesdropping of conversations participated in by any of the defendants in this case disclosed only the Burris-Sigelbaum conversation of December 2, 1963, and the conversations which were contained in sealed Exhibit 1-A. This sealed exhibit was attached to the Bolz affidavit. At the Court’s direction, the Government turned Exhibit 1-A over to the Court for an in camera inspection. There were no existing notes or tapes of the conversations in Exhibit 1-A.

At the conclusion of the inspection of all the logs contained in Exhibit 1-A, the District Court concluded that they were not remotely relevant to the issues in this case and denied the request of the defendants to examine same. The District Court ordered that the logs be resealed and made available to this Court on appeal.

At the conclusion of the oral argument on this appeal, the three members of this panel examined the logs contained in Exhibit 1-A. We agree with the District Court that nothing contained therein is relevant to the issues in this case.

An affidavit by Loren Green, Deputy Assistant Commissioner of the Internal Revenue Service, also was read into the record at the hearing. This affidavit stated that searches had been made of the records of the Internal Revenue Service, but that these searches failed to disclose records of any electronic over-hearings on the part of the defendants.

Defendants moved to strike the Bolz and Green affidavits. These motions were denied. The District Court pointed out that no restrictions would be placed on the defendants calling these affiants as witnesses or otherwise, in an endeavor to establish the alleged falsity of their affidavits. The defense never sought to call either Bolz or Green as a witness for cross examination or otherwise.¹

Upon oral argument of this appeal, the Court asked defense counsel what cross examination, as a practical matter, could have been had, other than asking the witness if he had searched the records and that no records of eavesdropping had been found.

Counsel for defendant Hoffa told the Court that he would have demanded the right to examine all of the index cards which the witness had checked in his search. In other words, counsel, in effect, argued that he desired the right to freely examine the records and files of the FBI.

We hold that no prejudicial error was committed in receiving into evidence the affidavits of Bolz and Green. (Rule 27, Fed. Rules of Criminal Procedure). Also, the District Court did not err in examining the FBI records in camera. United States v. Battaglia and Evans, 394 F.2d 327 (7 Cir., 1968). Such procedure, in any event, could be no more than harmless error. Chapman et al. v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). If certiorari should be granted in this case, the nine logs of “certain isolated, accidental and absolutely irrelevant over-hearings of some of these defendants” will be available for inspection and examination by the Supreme Court.

The District Court concluded “that the government obtained no new information from the electronically eavesdropped overhearings in the record and that none of the overhearings had any relevance to the convictions of any of the defendants.” (273 F.Supp. at page 147). The record sustains this finding and conclusion.

The District Court found “that the convictions of none of the defendants were tainted by the use of evidence improperly obtained.” (273 F.Supp. at page 147). We agree!

The Court made particular reference to the nine overhearings submitted to the Court for in camera inspection. The Court found that they “contain no information either remotely or peripherally relevant to the transactions and evidence on which these defendants were indicted and convicted.” (273 F. Supp. at page 143). Again, we agree!

The District Court denied motions for a new trial, entered new final judgments of conviction against each of the defendants, and reimposed the original sentences. (273 F.Supp. at pages 147 and 148).

It should be kept in mind that the detailed indictment which was returned against the defendants on June 4, 1963, was some six months prior to the date of the conversation between Burris and Sigelbaum. The indictment spelled out in detail the roles played by each of the defendants in seeking and obtaining inflated loans from the Teamsters Pension Fund. The indictment also charged that defendant Hoffa used his position as a trustee to influence the approval of such fraudulent loan applications.

The indictment mentioned all of the loan transactions which were proved at the trial including Hyman’s Key West Foundation and the Miami Airport hotel loans, both of which were mentioned in the Burris-Sigelbaum conversation.

It is apparent the charges made against the defendants in the indictment were drawn in such detail and particularity that they could have come only from a full investigation of all the facts underlying the scheme. It is neither conceivable nor realistic to believe that this information could have been obtained from a cryptic half hour conversation which occurred six months after the indictment had been returned.

It seems clear that the Government’s case against the defendants was based upon years of extensive investigation which was initiated and completed long before the unintended and unplanned overhearings of defendant Burris on December 2,1963.

It also seems significant to us that the overhearing occurred as the result of a surveilance of Sigelbaum and was not the product of any investigation conducted as to any defendant in this case. It is our decision that the District Court was correct in concluding that any possibly relevant information contained in the talk between Sigelbaum and Burris was known to the Government from wholly independent sources.

There is nothing in the evidence at the hearing to indicate that the Government used the memoranda summarizing the overheard conversations.

At the oral argument on this appeal, the attorney who represented the Government disclosed for the first time in any court proceeding, that eavesdropping of certain attorneys had occurred. The attorney handed to this Court a sealed folder which contained the FBI logs of the conversations. We have examined in camera the contents of the sealed folder and have concluded that the information is completely irrelevant to the Hoffa case before this Court. Since this information is completely irrelevant, we see no need to remand the case to the District Court for findings and conclusions regarding the contents of this folder. United States v. Battaglia and Evans, 394 F.2d 327 (7 Cir., 1968). This is not to say that this Court sanctions eavesdropping of attorneys. We do not. However, the conversations overheard are irrelevant. This case is therefore unlike O’Brien et al. v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967) and Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966). In the latter two cases, the attorney-client relationship was breached. No such circumstances are presented here. cf. Granello et al. v. United States, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967).

NONPRODUCTION OF DOCUMENTS

The defendants argue to this Court that FBI Agent, John Connors’ memoranda of December 26, 1963 and January 11, 1964, summarizing the eavesdropped conversation of Burris and Sigelbaum, and Connors’ memorandum of October 8, 1963, relating to the preparation of the summaries, should have been disclosed to the defendants at the trial. Defendants’ argument is based on the disclosure policy of 18 U.S.C. § 3500. The basic requirement of 18 U.S.C. § 3500 is that “After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement * * of the witness in the possession of the United States which relates to the subject matter to which the witness has testified.” Statement is defined as “a written statement made by said witness and signed or otherwise adopted or approved by him; or * * * a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.”

The memoranda demanded by the defendants failed to meet the statutory requirements of 18 U.S.C. § 3500. The purpose of this statute is to disclose to the defendants those statements which are relevant to the witness’ cross examination. Palermo v. United States, 360 U.S. 343, 349-351, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); Rosenberg v. United States, 360 U.S. 367, 370, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959). This test is not met. Connors testified as an accounting expert for the United States at the trial. He testified that defendant Hyman did not, in 1960, incur expenditures for his Key West Foundation in the amount he had represented to the Pension Fund of the Teamsters Union. Connors’ memoranda of the Burris-Sigelbaum conversation did not relate to his accounting testimony. Therefore, the conclusion is inescapable that it had no impeachment value to the defendants.

Defendants contend that the Burris-Sigelbaum conversation revealed that Hyman spent the Pension Fund loan in 1961 in accord with his agreement with the Pension Fund. The fraud was the false representations made in 1960; the manner in which Hyman spent the money in 1961 is irrelevant. In any event, the defendants knew how Hyman spent the money. As the Supreme Court said in Rosenberg, supra, page 371, page 1234 of 79 S.Ct. “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 * * *” documents.

Defendants also argue that nondisclosure of the log of the BurrisSigelbaum conversation and two summaries of the eavesdrop log which were prepared by Connors, violated their constitutional right to due process. Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963) and Giles et al. v. State of Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). Brady makes clear “* * * that the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Since the log and the summaries were not used as evidence at the trial, and since they did not lead to any other evidence which was used at the trial, it cannot properly be claimed that the log and summaries were evidence “material either to guilt or to punishment.” (373 U.S. at 87, 83 S.Ct. at 1197).

OTHER DEFENDANTS NOT PREJUDICED BY BEING TRIED WITH DEFENDANT DRANOW

Relying on evidence as to Dranow’s mental competency introduced at the hearing in 1967, the defendants, other than Dranow, urge he was mentally incompetent at the time of the trial in 1964, and therefore they were prejudiced by being tried with him.

Despite the Government’s readiness at the trial to have Dranow examined by psychiatrists, and the trial court’s willingness to hold a competency hearing based on such examination, it was at the request of defense counsel that such a hearing was postponed until defendants’ psychiatrists could conclude the examination of Dranow and had filed their report. The trial court made several inquiries as to any such report but none was ever filed. Under such circumstances, the trial court could properly have concluded that any substantial claim of Dranow’s mental incompetency had been abandoned by the defense.

DECISION IN BRUTON v. UNITED STATES

In defendants’ supplemental brief which was filed by permission on the date of the oral arguments on this appeal, it is argued that the recent decision of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) requires a reversal of this case. We disagree!

In Bruton, petitioner and one Evans were tried together on the charge of armed postal robbery, 18 U.S.C. § 2114. At the trial, the confession of Evans that he and Bruton committed the robbery was admitted into evidence. The trial judge instructed the jury that although Evans’ confession was competent evidence against Evans, it was inadmissible hearsay against petitioner and, therefore, must be disregarded in determining petitioner’s guilt or innocence.

The Supreme Court reversed, finding unreasonable the assumption that the jury could consider the confession only as to the confessor. That Court held that in spite of the insulating instruction, the admission of this confession at the joint trial deprived the codefendant (petitioner) of his constitutional right to confront and cross examine his accusers.

In the case at bar, statements made by Burris under oath to a Congressional Committee were read to the jury with the Court admonishing the jury that the questions and answers could be considered by the jury only against the defendant Burris. These statements were not incriminating with respect to the indictment in this case or as to any co-defendant.

The statements to the Committee had to do with the interest of Burris and Dranow in Union Land and Home Company, the purchase by that Company of Hoffa’s and Lower’s interests in Sun Valley, and the payment by Union Land and Home Company to Teamsters Local 299 of interest on money deposited by the Union in a Florida bank which had made loans to Sun Valley. It is important to note that these were matters about which there was no substantial dispute.

There is nothing in Burris’ statements with reference to the procurement of Pension Fund loans by fraud. There was no mention of using Pension Fund loan proceeds to aid Sun Valley in getting out of its financial troubles. The situation which we are here considering is entirely different from the “powerfully incriminating statements” in Bruton. There is no good reason to believe that the jury could not follow the limiting instructions of the Court in regard to these statements.

In Bruton, supra, 391 U.S. page 135, 88 S.Ct. page 1627, the Supreme Court stated: “Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. * * * It is not unreasonable to conclude that in many such cases the jury can and will follow the trial judge’s instructions to disregard such information.”

Defendant makes a further argument claiming error in regard to the socalled “Link” letters. These were originally admitted into evidence only as to Dranow, but the Court ultimately excluded them from evidence as to all defendants, including Dranow. The Court gave an appropriate instruction.

This question was fully covered by our original opinion in this case. We can find nothing in Bruton that affects the validity of our prior decision on this point.

We note that, unlike the situation in Bruton, Dranow was a witness at the trial and was subject to cross examination by his co-defendants. No one prohibited the cross examination of Dranow. It was a matter of trial strategy when the defendants decided not to cross examine.

ISSUES DECIDED ON FIRST APPEAL

Defendants raise three additional issues on this appeal: 1) that the Government failed to prove a single conspiracy; 2) that the indictment was erroneously delivered to the jury, and 3) that the jury was prejudiced by having seen a certain newspaper article.

All of these issues were fully briefed and argued on the original appeal and were decided by this Court. It is, perhaps, true that this Court has the power to reconsider these issues, but we do not choose to do so. There has been no change in the applicable law since the date of our decision as was the situation in several of the court decisions cited by defendants.

It is true that in our previous decision, one judge dissented. It also is true that all of the judges of this Court except two voted to deny a petition for rehearing en banc.

We see no reason for not following the well-established “law of the case doctrine” which is that except in unusual and compelling circumstances, appellate courts should not relitigate issues which they already have decided. Smith v. United States, 118 U.S.App.D.C. 133, 332 F.2d 720-721 (1964); United States v. Meredith, 172 F.2d 745, 746 (7 Cir., 1949); 1B Moore’s Federal Practice Sec. 0.404 (10) at pages 573 and 574 (2d Ed., 1961). No such unusual and compelling circumstances exist in this case.

Several additional issues have been argued by one or more of the defendants. Inasmuch as we consider them to be without merit, we think further reference to such claims in this opinion is not necessary.

The judgment of the District Court is Affirmed.

1 . Joseph Harmon who, in 1963, was Assistant Chief of the Intelligence Division of the Internal Revenue Service, was called as a defense witness at the hearing. He testified that to his knowledge there was no electronic eavesdropping or wire tapping of any conversations of the defendants in the instant casé from 1961 through 1964.