determining that the Court does not require "an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance" and finding that, in that case, the task was not "too complex . . . to rely wholly on the in camera judgment of the trial court"Summary of this case from U.S. v. Laden
Decided March 24, 1969.
The Government purportedly furnished petitioner, who has been convicted of income tax violations, all of his own conversations which had been overheard by unlawful electronic surveillance, and the District Court examined all the records in camera to ascertain if the Government had correctly identified petitioner's voice and had turned over all his conversations. Held: Alderman v. United States, ante, p. 165, requires an adversary proceeding only where in camera procedures are inadequate to safeguard a defendant's Fourth Amendment rights, but here it cannot be said that "the task is too complex, and the margin of error too great, to rely wholly on the in camera judgment of the trial court."
Certiorari granted; 398 F.2d 558, affirmed.
Raymond LaFazia for petitioner.
Solicitor General Griswold and Assistant Attorney General Rogovin for the United States.
The petition for certiorari is granted and the judgment of the Court of Appeals is affirmed. Following a jury trial in the District Court, petitioner was convicted on three counts of wilfully attempting to evade his income tax for the years 1956, 1957, and 1958. Following a remand to the District Court, the Court of Appeals affirmed the convictions. In the District Court on remand, the Government purported to turn over to petitioner all of his own conversations which had been overheard by means of unlawful electronic surveillance. Petitioner argues that he was entitled to examine additional surveillance records because neither the Government nor the District Court was able to determine with certainty which conversations petitioner had been a party to. In fact, the District Court examined all the records in camera to ascertain if the Government had correctly identified petitioner's voice and had turned over to petitioner each conversation in which he had participated.
Although this petition for certiorari was not filed within the 30 days allowed by the Court's Rule 22(2), the time limitation is not jurisdictional, Heflin v. United States, 358 U.S. 415, 418, n. 7 (1959), and does not bar our exercise of discretion to consider this case.
Petitioner sought disclosure only of his own conversations and apparently lacks standing as to any others. "We do not understand appellant to argue that he has a right to inspect logs or memos of conversations in which he was not a participant. Indeed, that point he wisely conceded before the district court." 398 F.2d 558, 571.
Nothing in Alderman v. United States, Ivanov v. United States, or Butenko v. United States, ante, p. 165, requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance. On the contrary, an adversary proceeding and disclosure were required in those cases, not for lack of confidence in the integrity of government counsel or the trial judge, but only because the in camera procedures at issue there would have been an inadequate means to safeguard a defendant's Fourth Amendment rights. Here the defendant was entitled to see a transcript of his own conversations and nothing else. He had no right to rummage in government files. The trial court was asked to identify only those instances of surveillance which petitioner had standing to challenge under the Fourth Amendment exclusionary rule and to double-check the accuracy of the Government's voice identifications. Under the circumstances presented here, we cannot hold that "the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court." Alderman v. United States, supra, at 182.
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE MARSHALL took no part in the consideration or disposition of this case.