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UNITED STATES v. BUTENKO

October 13, 1970

UNITED STATES of America
v.
John William BUTENKO and Igor A. Ivanov


Augelli, Chief Judge.


The opinion of the court was delivered by: AUGELLI

AUGELLI, Chief Judge:

 Defendants were convicted of conspiring to transmit to the Soviet Union information relating to the national defense of the United States. The convictions, with one modification, *fn1" were affirmed by the Court of Appeals. United States v. Butenko, 384 F.2d 554 (3 Cir. 1967).

 Following affirmance of the convictions, defendants filed petitions for certiorari in the United States Supreme Court. While the cases were pending in that Court, it was revealed that the United States had engaged in electronic surveillances which might have violated defendants' Fourth Amendment rights and tainted their convictions. A remand to this Court was ordered to determine whether any of the Government's evidence supporting the convictions of defendants was the product of illegal surveillances to which they would have the right to object. See Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), which includes the Butenko and Ivanov cases; also, Giordano v. United States, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297 (1969); and Taglianetti v. United States, 394 U.S. 316, 89 S. Ct. 1099, 22 L. Ed. 2d 302 (1969).

 After remand, the United States voluntarily turned over to Ivanov's counsel, subject to a protective order, some of the logs reflecting overhearings of Ivanov's conversations. *fn2" These logs covered the periods from May 15, 1963 to June 11, 1963, and from June 27, 1963 to August 13, 1963, and are alleged by the Government to be the logs of the surveillance directed against Ivanov. However, the Government has refused to turn over to Ivanov's counsel certain other logs of telephone conversations of Ivanov that were overheard on wiretaps maintained on three separate premises.

 The Ivanov logs withheld by the Government have been submitted to the Court for an in camera examination, *fn3" accompanied by an affidavit of John N. Mitchell, Attorney General of the United States, and a memorandum of law in support of the Government's position that the logs in question should not be disclosed to Ivanov. Copies of the Mitchell affidavit and memorandum of law were furnished to Ivanov's counsel at the same time the withheld material was delivered to the Court. The issue of Ivanov's right to examine these logs, and for an evidentiary hearing with respect thereto, has been extensively argued, and the Court has been favored with briefs which fully explore the question.

 Preliminarily, Ivanov contends that there has been an admitted violation of his Fourth Amendment rights with respect to the logs delivered to the Court for an in camera examination. This is based on an alleged concession of illegality made by the Solicitor General when he argued Ivanov's case before the Supreme Court. See footnote No. 1 of Mr. Justice Stewart's concurring opinion in Giordano v. United States, 394 U.S. 310, 313, 89 S. Ct. 1163, 22 L. Ed. 2d 297. In the argument before this Court, the Government, in response to a request made by Ivanov, admitted that the Ivanov logs turned over for an in camera examination were submitted pursuant to the Supreme Court mandate. Armed with this admission, Ivanov argues that it must be assumed, for the purposes of the present proceedings under the mandate, that the Solicitor General had these very logs in mind when he made his alleged concession of illegality, and that, having made such concession in the Supreme Court, the Government should not be permitted to repudiate that concession in this Court. The Government denies that any concession of illegality was made or intended.

 This Court does not believe that the record, when viewed as a whole, and especially in light of the posture of the case when it was argued before the Supreme Court, supports Ivanov's contention that the Solicitor General made a binding concession (such as would preclude a determination of the issue here) that the logs of the overheard Ivanov conversations submitted for an in camera examination were, in fact, illegal. In connection with this it should be noted that the Solicitor General's argument was made pursuant to grants of certiorari which limited the questions to be considered by the Supreme Court on the assumption that the surveillances were illegal. See footnotes Nos. 3 and 4, Alderman v. United States, 394 U.S. 165, 170, 89 S. Ct. 961, 22 L. Ed. 2d 176. In any event, the fact remains that the Supreme Court not only declined to accept the Solicitor General's proffered concession of illegality (footnote No. 1 in Giordano v. United States, 394 U.S. 310, 314, 89 S. Ct. 1163, 22 L. Ed. 2d 297), but remanded the case to this Court for the express purpose of determining whether the challenged surveillances were legal or illegal. The directions of the mandate are controlling and must be followed.

 Ivanov argues that if this Court does not accept the alleged concession of illegality made by the Solicitor General, the Government should nevertheless be directed to turn over to him for examination the withheld material, following which the Court should hold an evidentiary hearing in order to determine whether there has been a violation of his rights under the Fourth Amendment or Section 605 of the Federal Communications Act of 1934, 47 U.S.C. ยง 605.

 The Government argues to the contrary, and claims that an in camera examination of the logs reflecting the overhearings of Ivanov's conversations will establish that the surveillances were not directed against him, but that such overhearings occurred in the course of electronic surveillances expressly authorized by the Attorney General for the sole purpose of gathering foreign intelligence information, and that, such being the case, the surveillances were legal. It is also argued that a determination of the legality of the surveillances can and should be made in camera, and that a determination of legality would make unnecessary a disclosure of the withheld material or further proceedings in connection therewith.

 In Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176, the Supreme Court held that the Government must disclose and make available to a defendant any conversations he participated in or that occurred on his premises which the Government overheard during the course of any illegal electronic surveillance. In his concurring opinion in Giordano v. United States, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297, Mr. Justice Stewart pointed out that Alderman required disclosure only where the surveillance was illegal, and that a finding by the District Court that the surveillance was lawful would make disclosure and further proceedings unnecessary. As to the procedure to be followed in making a determination of the legality of a challenged surveillance, Justice Stewart, at page 314, 89 S. Ct. at page 1165, said:

 
"We have nowhere indicated that this determination cannot appropriately be made in ex parte, in camera proceedings. 'Nothing in Alderman v. United States, Ivanov v. United States, or Butenko v. United States, * * * requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.' Taglianetti v. United States, [394 U.S. 316, 89 S. Ct. 1099, 22 L. Ed. 2d 302]."

 It thus becomes apparent that the initial determination to be made is whether, under the facts of this case, the Ivanov surveillances were illegal and in contravention of his rights under the Fourth Amendment or Section 605 of the Communications Act of 1934. The Court is satisfied that this determination may be made in camera. See United States v. Clay, 430 F.2d 165 (5 Cir. 1970).

 At the outset, it should be noted that while the Ivanov surveillances were conducted prior to the decision in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), the Government does not rely on pre-Katz law, such as that set forth in Olmstead v. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928). The position of the Government, simply stated, is that electronic surveillances authorized by the President for the sole purpose of gathering foreign intelligence information, are not violative of the Fourth Amendment or Section 605 of the Communications Act of 1934. The validity of the Government's position on this issue, under the Fourth Amendment, has not yet been decided by the Supreme Court. See footnote No. 23 in Katz, 389 U.S. 347, ...


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