The opinion of the court was delivered by: AUGELLI
Defendant Ivanov and a codefendant, John William Butenko, were convicted of conspiring to transmit to the Soviet Union information relating to the national defense of the United States.
The convictions, with a modification not here material, were affirmed by the Court of Appeals. United States v. Butenko, 384 F.2d 554 (3 Cir. 1967).
Following affirmance of the convictions, and while the cases were pending in the United States Supreme Court, it was there revealed that the Government 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 (1) if the electronic surveillances of defendants were illegal and (2) if so, did such illegal electronic surveillances taint the convictions. Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), which included the Ivanov and Butenko cases. See, also, Giordano v. United States, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297, and Taglianetti v. United States, 394 U.S. 316, 89 S. Ct. 1099, 22 L. Ed. 2d 302. This memorandum is concerned only with the Ivanov conviction.
After remand, and prior to the hearing conducted pursuant thereto, the Government voluntarily turned over to Ivanov's counsel logs of electronic surveillances, designated in the record as 4001-S* and 4002-S*, alleged by the Government to be all of the logs of the electronic surveillances directed against Ivanov and one Vladimir I. Karatsuba. These surveillances were conducted by Agents of the Federal Bureau of Investigation (FBI) in their investigation of possible espionage activity by Ivanov and Karatsuba.
Surveillance 4001-S* was directed against Karatsuba and 4002-S* against Ivanov. Both were put into operation on May 7, 1963. The one against Ivanov was discontinued on or about June 18, 1963, and the one against Karatsuba was discontinued on or about September 10, 1963.
At the hearing on the remanded issues, the Government conceded the illegality of the electronic surveillances 4001-S* and 4002-S*. This admitted violation of Ivanov's Fourth Amendment rights reduces the issue to be decided to a determination of whether Ivanov's conviction was tainted by such violation. The hearings were extensive, covering the period from March 29 to April 2, 1971, with many exhibits. The Government made available to Ivanov for examination by his counsel, all Officials, Supervisors and Agents of the FBI who directed, supervised or participated in the electronic surveillances. These were:
John F. Malone, Assistant Director of the FBI, in charge of the New York Office of the FBI. This man had general overall responsibility for the investigation and prosecution of Ivanov;
Joseph L. Schmit, Special Agent in Charge of the Espionage and Foreign Intelligence Division. It was Schmit who, based on information in his possession, recommended the electronic surveillance of Ivanov;
Lawrence McWilliams, Special Agent of the FBI, and Supervisor of a squad in the Espionage and Foreign Intelligence Division of the FBI New York Office. McWilliams is the Agent who supervised the electronic surveillances of Ivanov and Karatsuba;
Grover T. Martin, Special Agent of the FBI assigned to the Espionage and Foreign Intelligence Division of the FBI New York Office. Martin was a member of McWilliams' squad, but did not participate in the electronic surveillances. He did, however, conduct a visual surveillance of Ivanov in New York;
Joseph L. Conway, Special Agent of the FBI assigned to Supervisor Edward F. Gamber's squad in the Espionage and Foreign Intelligence Division of the FBI New York Office. Conway participated in the electronic surveillances of Ivanov and Karatsuba under Supervisor McWilliams' direction;
Thomas J. Manning, Special Agent of the FBI assigned to Supervisor Solomon's squad in the New York Office of the FBI. Manning was ordered by Solomon to assist in the electronic surveillances of Ivanov and Karatsuba under the supervision of Supervisor McWilliams;
Juell R. Ness, Special Agent of the FBI and a member of Supervisor McWilliams' squad;
Paul J. Blasco, Special Agent of the FBI assigned to the FBI Office in Newark, New Jersey. Blasco functioned in a liaison capacity between the New York Office of the FBI and the United States Attorney's Office prior to and during the course of the trial of Ivanov and Butenko; and
Sanford M. Jaffe, the Assistant United States Attorney who prosecuted Ivanov and Butenko.
In addition to the "live" testimony of these witnesses, the testimony of 21 other FBI Agents was a matter of stipulations made during the course of the hearings or filed separately in the case.
At the outset, let it be stated that this Court, on the basis of the record and representations made by the Government, is satisfied that there were only five electronic surveillances on which Ivanov was overheard, and further, that the logs resulting from electronic surveillances 4001-S* and 4002-S* are the only ones that may properly be considered on the taint issue, and to which Ivanov is entitled.
A careful review of the evidence adduced at the hearing conclusively shows that Ivanov's conviction was not in any way tainted by reason of the unlawful electronic surveillances conducted by the Government. A summary of the testimony at this point, before proceeding to a consideration of the arguments advanced in Ivanov's behalf, will be helpful.
John F. Malone had the overall responsibility for the investigation and prosecution of Ivanov. In the chain of command, Malone was the immediate superior of Special Agent in Charge Joseph L. Schmit. Malone was advised periodically by Schmit of developments in the case and was consulted about any major decisions made in connection therewith.
Malone testified that it was not until 1971 that he learned about the electronic surveillance of Ivanov; that he at no time discussed any electronic surveillances concerning Ivanov with Schmit or any other Agent; and that he never did see the logs of the electronic surveillances. Malone further testified that he never gave any instructions regarding preservation or destruction or erasure of any tapes used in the course of the Ivanov electronic surveillance, nor was he aware of any published instructions on the subject. Malone said that in 1963, and up to 1968, it was established FBI procedure to erase electronic surveillance tapes and to preserve their contents by summary log entries. Prior to 1968, such tapes would be kept for a period of two weeks and then, if there were no court order or other reason to keep them beyond that period, the tapes would be erased in the interest of saving space and expense, and used over and over again.
Joseph L. Schmit, as Special Agent in Charge of the Espionage and Foreign Intelligence Division of the New York Office of the FBI, had approximately 400 Agents working under him. The Division was broken down into a number of squads, each squad being headed by a Supervisor. The Supervisors would report to Schmit, and be responsible for the details of carrying out the investigations entrusted to them. The Supervisor in charge of the electronic surveillances of Ivanov and Karatsuba was Lawrence McWilliams. These surveillances were instituted on Schmit's recommendation.
During the course of the electronic surveillances, McWilliams would provide Schmit with written 90-day progress reports. These reports, said Schmit, were "non productive" in that they contained no information of any espionage activity. Schmit testified that if anything of significance were disclosed as a result of the electronic surveillances, the Supervisor would ordinarily be required to bring it to Schmit's attention. In this particular case nothing of any intelligence value was reported by McWilliams to Schmit. There was further testimony by Schmit that at no time did he read the logs of the Ivanov electronic surveillances, and further, that he never discussed the matter with anyone other than McWilliams and with whomever was in charge of the espionage section of the FBI in Washington.
The procedures to be followed in recording and preserving electronic surveillance tapes were left by Schmit to the judgment of his Supervisors. The determination as to whether the tapes used in the Ivanov electronic surveillance should be preserved, erased or destroyed was left to McWilliams, and it was his responsibility to advise the Agents working under his supervision as to what procedures were to be followed.
As previously mentioned, Lawrence McWilliams was the Supervisor under whose direction the Ivanov and Karatsuba electronic surveillances were conducted. McWilliams first heard of Ivanov in 1962, when the latter came to this country. It was McWilliams' responsibility, as a matter of routine, to ascertain the names and places of assignment of Soviet citizens entering the United States. It was not until April 21, 1963, or shortly thereafter, that McWilliams was informed that Ivanov was observed in New Jersey on April 21, 1963, engaged in what was suspected of being an intelligence operation. The record indicates rather clearly that this information was passed on to McWilliams by Supervisor Edward F. Gamber, who was the FBI Special Agent in charge of the investigation of Ivanov's codefendant Butenko and the other conspirators named in the indictment that was handed down in this case on November 7, 1963. The information went from Gamber to McWilliams because each handled certain phases of the then ongoing investigations, and the investigation of Ivanov was within McWilliams', and not Gamber's, area of responsibility.
The Agents who participated in the electronic surveillances of Karatsuba (4001-S*) and Ivanov (4002-S*) were all instructed by McWilliams to report to him on the progress and operation of the surveillances. The Agents were under orders to "cut" a tape, that is, record the sounds that came over the equipment whenever they heard distinguishable adult voices in English or Russian.
It was left to the judgment of each monitoring Agent to determine if what he heard was of any value from an intelligence viewpoint. If the Agent determined that information of value had come over the equipment, he was required to report it to McWilliams immediately, preferably by phone, day or night. McWilliams was very definite in ...