subsequently erased, destroyed or preserved, nor did he receive any instructions regarding the same.
Juell R. Ness, a member of McWilliams' squad, participated in electronic surveillances 4001-S* and 4002-S* on May 9 and May 12, 1963.
Ness corroborates the testimony of other Agents that he was instructed by McWilliams to record any significant information that was overheard in the surveillance operation. It was up to the individual Agent to determine what was significant and worthy of recordation and log notation. No one, other than McWilliams, said Ness, gave him any instructions with respect to monitoring or recording the conversations that were overheard.
Ness testified he never discussed his investigation of Ivanov with Mr. Jaffe (the Assistant United States Attorney who tried the case), nor did he inform Jaffe that he (Ness) had participated in the electronic surveillances, and Jaffe did not question him about such surveillances. Ness did not personally turn anything over to Jaffe, but said he believed that when he was interviewed by Jaffe, he (Jaffe) had in his possession a copy of Ness's physical surveillance of Ivanov. As to any other material in Jaffe's possession, the witness was unable to say.
Paul J. Blasco was a Special Agent stationed in the Newark Office of the FBI.
On various occasions prior to and during the course of the trial of Ivanov and Butenko, Blasco would act in a liaison capacity in relaying reports between Mr. Jaffe and the New York Office of the FBI, and would also be instrumental in alerting witnesses as to times to be available to give testimony in court.
At the time of Ivanov's arrest on October 29, 1963, Blasco was not aware that Ivanov or Butenko were the subjects of electronic surveillances. Blasco first learned about the surveillances some two or three years after the trial had been concluded.
Sanford M. Jaffe, as already stated, was the Assistant United States Attorney who prosecuted Ivanov and Butenko.
Jaffe was very definite in his testimony that in the course of his preparation of the case for trial, he never came across any electronic surveillance logs involving either Ivanov or Butenko, nor was he informed by any FBI Agent or anyone else that any electronic surveillances of Ivanov or Butenko or any of the alleged co-conspirators had taken place. It was not until years after the trial was concluded, that Jaffe learned that Ivanov and Butenko had been the subjects of electronic surveillances.
The stipulated testimony of the other FBI Agents, 21 in number, who participated in electronic surveillances 4001-S* and 4002-S*, all indicate, to the Court's satisfaction, that none of the material gathered as a result of such surveillances found its way into the trial of Ivanov, and that none of it could possibly be considered as in any way tainting the conviction of Ivanov.
There is no question in the Court's mind, based on personal knowledge of the trial, and a careful review of the evidence adduced at the taint hearing, that the arrest and subsequent conviction of Ivanov resulted from the Government's independent investigation of the case, in which electronic surveillances 4001-S* and 4002-S* played no part.
Ivanov contends that a new final judgment of conviction is precluded in his case for a number of reasons. These will now be considered.
One of the grounds urged by Ivanov is that his Fourth Amendment rights were violated by electronic surveillances 4001-S* and 4002-S* and that the Government has failed to sustain the burden of proving that Ivanov's conviction was not tainted by such violation.
Since the Government, for the purposes of this case, has conceded that the electronic surveillances in question were unlawful, there is no need to further pursue this issue.
As to the burden of proof on the taint issue, the record discloses that during the critical period covered by the indictment in this case (April 21 through October 29, 1963), the FBI conducted visual surveillances of Ivanov and his co-conspirators. During some of this same period, FBI Agents also engaged in an electronic surveillance of Ivanov to aid them in their investigation of Ivanov's alleged illegal activity. Although the Government pursued such electronic surveillance in the hope of gathering material of value to buttress their suspicions concerning Ivanov, it is clear that the hoped for fruits of the illegal electronic surveillance did not materialize, and that this unlawful activity did not in any way taint Ivanov's conviction. The electronic surveillances in this case were ineffective and unsuccessful. What they produced was, at best, innocuous, even when viewed by the specially trained and experienced FBI Agents. An examination of the logs, reflecting summaries of the surveillance tapes, reveals nothing more than a history of small talk and unintelligible chatter of such obvious insignificance that the FBI discontinued its electronic surveillance of Ivanov on June 18, 1963, because of its demonstrated consistent showing of non-productivity.
The recognized synthesis, indicating whose burden it is to show taint from an illegal search, and what the Government must do to overcome such proof, was set forth by Mr. Justice White in Alderman v. United States, 394 U.S. 165, 183, 89 S. Ct. 961, 972, 22 L. Ed. 2d 176, where he said:
"The United States concedes that when an illegal search has come to light, it has the ultimate burden of persuasion to show that its evidence is untainted. But at the same time petitioners acknowledge that they must go forward with specific evidence demonstrating taint. '[The] trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.' Nardone v. United States, 308 U.S. 338, 341 [60 S. Ct. 266, 268, 84 L. Ed. 307] (1939)."
The principles enunciated by the Supreme Court in Nardone and adhered to in Alderman are readily apparent. The initial burden of going forward and showing specific evidence of taint, and that a substantial portion of the Government's case is traceable to that taint, rests with a defendant. As against this, the Government has the ultimate burden of proving that its evidence is not tainted. But in the absence of a defendant meeting his initial burden, the Government must prevail. The Government's burden to disprove taint arises only after a defendant has shown specific evidence of taint materially affecting the proof adduced in the Government's case. Viewing the testimony and exhibits in the instant case in a light most favorable to Ivanov, and after a careful consideration of all the evidence, the Court is convinced beyond a reasonable doubt, that no specific evidence of taint has been shown by Ivanov.
Ivanov's attempt to show taint to invalidate his conviction is based in large part on inference, innuendo, and speculation. Such will not suffice to meet the initial burden of showing specific evidence of taint. United States v. Nolan, 420 F.2d 552 (5 Cir. 1969); United States v. Brown, 317 F. Supp. 531 (E.D. La. 1970); United States v. Annoreno, 321 F. Supp. 957 (N.D. Ill. 1971). As was stated in Annoreno, at 958:
"Consistent with the standards set by the Supreme Court in the Alderman decision, the defendants have the burden of coming forward with specific evidence of taint. This they have clearly failed to do * * *. The defendants must show a connection between the [overheard] conversations and the case made against them. In doing so, they may not rely on speculation and tenuous generalizations, as these defendants have done."