United States v. Salvatore Battaglia and Dave Evans

394 F.2d 327

Opinions

On Motion to Remand

CUMMINGS, Circuit Judge.

Since our opinion was announced, defendants have filed a motion to remand to the District Court to determine the effect of any eavesdropping on this trial in accordance with the procedure prescribed in Kolod v. United States, 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d 962. In response, the Government has transmitted the transcripts of ■certain overheard conversations involving defendant Battaglia. This Court had not previously been advised that any ■electronic monitoring had occurred. A careful in camera examination of the transmitted material reveals that these conversations were utterly irrelevant to these convictions. We are frequently called upon to determine relevancy as a matter of law. This case is still pending here on a petition for rehearing en banc and the documents are also before us. These factors, coupled with the utter irrelevancy of the documents, make it appropriate to dispose of the matter here. Review here also avoids additional delays to defendants. In our view, Kolod does not require further District Court action in the circumstances of this case. If there were any doubt as to the tainting of these convictions by the use of these documents, we would afford relief to defendants. There being no such doubt, there is no need to vacate our judgment and remand for a District Court documentary review. Defendants’ motion is denied.