United States v. Arthur Nasser, United States of America v. Richard W. Hauff

lili in its аre the decision ernment since in that case conviction save the chaos favor, create is bound to required here.” justice in this criminal administration of AND to dis- judges REHEARING decide DENYING ORDER circuit. Some apply attempt regard EN REHEARING BANC. will it. Others although know how I am at loss it, containing rehearing petition A for a supplies no panel since can reheard suggestion the action “indicia guidelines additional as to what by having filed herein en been banc In reliability” some suffice. of will poll appellee, counsel regards judge himself who cases where having judges regular active service expression finds by panel’s as bound request such a been taken indicia, result exclusion will insufficient being majority in judge, no unjustified under acquittal, in an thereof, favor long-standing from which law, rule of thereof, Upon it consideration appeal. unable to will be petition it be and that said Ordered has been the declaration others, In where hereby is denied. convicted, the defendant admitted Judge dissents FRIENDLY Chief obliged to panels court will of this Judge opinion in HAYS which Circuit majority the ac- question á face and TIMBERS concur. today. There judges to avoid seek tive uncertainty Judge many be- dis- MANSFIELD also months will be Circuit put can be in this circuit the law fore sents. Supreme meant Court where back ultimately it, be either will to leave (dissent- FRIENDLY, Judge Chief authority. higher I by by court this ing) : clearly de- more of a case think cannot Judge, whom FRIENDLY, Chief manding consideration. en banc Judges, TIMBERS, HAYS and Circuit dissenting join, from the denial of recon-

ideration en banc: Judge Lumbard, I

Like former Chief impossible

find it to understand how two panel modify

members of a can a rule by applied evidence in scores this Circuit America, STATES UNITED decisions, approved all the com- Plaintiff-Appellee, mentators, see, e.g., Wigmore, Evi- v. (Chadboum 1972); dence Rev. NASSER, Defendant-Appellant. Arthur McCоrmick, 267, Evidence at 645-46 (Cleary 1972); ALI, ed. Model Code America, UNITED STATES Evidence, 508(b); Commissioners’ Rule Plaintiff-Appellee, 63(9) (b); Uniform Rules of Evidence Evidence, Proposed Federal Rules HAUFF, Defendant- W. Richard recognized by 801(d)(2), Rule the Su- Appellant. preme in cases as old as United Court 18600, 18601. Nos. U.S.) Gooding, (25 States v. 12 Wheat. (1827), 469-470, 460, 6 L.Ed. 693 Appeals, United States Court Wong recent as v. United Sun Circuit. Seventh L.Ed.2d U.S. 83 S.Ct. March 1973. (1963), expressly preserved Rehearing As Modified on Denial very decision, Evans, Dutton v. April 27 L.Ed.2d 213 qualified it. now claimed to have panel majority, expression gov- unreviewable at the instance of the

1H3 Walsh, Magid J. Maurice Sherman C. son, Carthy, Terence Mac Federal De Chicago, Program, Ill., fender fendant-appellant. for de Thompson, Atty., R. James U. S. Rob Filpi, Huyck, ert A. and T. William Attys., Chicago, Ill., U. Asst. S. for plaintiff-appellee. FAIRCHILD, Before and STEVENS

SPRECHER, Judges. Circuit FAIRCHILD, Judge. Circuit (cid:127) Appellant Arthur an attor- ney, Septеmber, between May, 1963, employed by he U. S. Internal Revenue He Service. served first in the enforcement division and later in the Tax division of the Court regional office of counsel. December, 1965, In he was indicted violations, leaving for after service, statute,1 of a conflict of interest 207(a) (1964) particular involving spe- provides, 1. 18 U.S.C. § other matter “Whoever, having party parties been an or or in which the United officer cific employee party of the executive branch or has direct States par- Government, United States he inde- substantial interest and pendent agency substantially ticipated personally the United as employment through decision, ceased, employee, . . . after his or an officer knowingly recommendation, attorney approval, disapproval, acts as or anyone rendering advice, investigatiоn, other or than the States any judicial pro- otherwise, employed, connection with or . . . other while so ceeding, application, request ruling $10,000 than for a be fined not more “Shall determination, claim, imprisoned contract, or other than more two for not or ” controversy, charge, accusation, arrest, years, or . both . . (not sion. The standards are matters and Nasser Richard understanding practice common employee) indicted federal among pro- attorneys. This statute same spiracy violation to cause possible precisely perhaps as scribes as statute. practice manifest that can an unethical December, I Count As the itself in infinite forms. Su- August, know- until preme a different statute Court said of August attorney Cir- ingly acted Petrillo, United States v. investigation an cella connection 91 L.Ed. income tax federаl and 1959 of the 1958 (1946): Cireella, in which liability a matter personally and language Nasser had think Con- “We employee substantially of IRS. an gress adequate provides used count, jury on this failed to warning un- to what conduct falls dismissed, on motion then it was bah, der its and marks boundaries government. ju- sufficiently judges distinct for fairly the law ac- charge ries to administer involv- was a similar II Count Congress. cordance with the will 1958 liabili- of Hauff’s the collection marginal charge That there cases ty, similar III a and Count which it is difficult determine investigation volving of Hauff’s particular guilty side of the line on liability. jury found Nasser no sufficient fact situation falls is of counts. both language too reason to hold the am- beginning that Count IV biguous to define a criminal offense.” Hauff, Nasser, December, and Cir- knowingly conspired to have Nasser cella Bill Attainder. B. of attorney Hauff and Cireella act as (not defendant) in which in mаtters a argue Appellants 207(a) that § ‍‌​‌‌‌‌‌‌‌​‌‌‌​​‌‌‌​​‌‌‌‌‌​​‌‌‌‌‌​‌‌​​‌​‌​​‌​‌‌‌​‍participated personally and Nasser had of Arti is a bill of attainder violation substantially employee of IRS. as an I, be cle section 9 of the constitution jury and Hauff The found both Nasser legislative imposes cause it is a act that guilty this count. on ju “punishment” group a without a on They emphasize, dicial trial. both Claims that Statute is

I. the Uncon- claim, respect to their bill of attainder applied stitutional, as to at least post argument the ex later facto Nasser. discussed, “punishment” that penal they which not the sanc refer is Vagueness. A. judicially imposed tion would be which argue Appellants 207(a) vio- § 207(a), completed of a violation § process lates the due clause of the fifth disqualification but former “the vagueness in amendment because of general, employees Nasser, aаs employee at his own must decide practicing attorney particular, suffer (1) participated risk he “sub- whether employment as a result of their former stantially” in em- a matter while he was by the Government.” ployed; (2) whether the mode of by 207(a), group punished § by participation encompassed is it, government see consists all words “or otherwise.” employees, punishment imposed and the practice language is the restriction of their law We believe that leaving gov- sufficiently activity or similar after the statute is definite to representation permit ernment so as to exclude a fact finder decide on the ba matters sis of others the evidence whether defendant’s partici- particular employee participation proscribed which the fell within the substantially Avoiding pated personally when conflicts of interеst conduct. legal profes- employee. he was an is a traditional ethic of the serving disqualified, are anal- are unable from § officer, director, ysis particular is a the same time an or restriction this employee legislatively imposed upon punishment a bank of fed- a member noting Rather, system. specified group. statute is eral reserve After banking provision rule of of a act does within classification deprivation upon political general accomplish- applicability flict legislative group, incorpo- legitimate purpose. the Court said it did not ment-of a judgment censuring govern- any group purpose protecting rate a through men, ment, but act was based a conclusion can against holding agents, form- “that use concurrent of the two from the designated positions agents gained present would er of information clearly agency, prop- temptation just is man —not certain course of their acting restriction, against political men or one. members of a certain er attorney party,” objective agent in a another established person participated in which the standard conduct. matter substantially offi- personally as an 207(a), underlying The conclusion clearly employee, equally cer or is leaving who, us, that one after wholly pursuing rational means government employment, acts for anoth- purpose. he er in a matter in which rely on United States employment, likely while such is 1707, 14 Brown, 437, 85 use advan- case in which being L.Ed.2d tage gained govern- out Supreme law as a down a Court struck ment’s a common conclu- sense disqualified That bill of attainder. law underlying the sion similar to the one (within present five recent all banking provisiоn act considered years) Par- the Communist finding members difficulty in Court. We have no ty holding union office. 207(a) comparable, deem- legislative proper a identified as Court ing generally applicable of con- it a rule office purpose union from exclusion duct rather a than bill attainder. political persons likely to incite Law. Ex Post Facto C. provide for a did not The law strikes. appellant em- an When Nasser became judicial quasi-judicial or determination during States, ployee persons such would of which have subject service, to 18 most of his he was legislative judg- tent, but a was itself 698, 284, restriction U.S.C. 62 Stat. specified § that ment members activity practice on his of law or similar group it and therefore would have government leaving em- in the event of Court stituted a bill of attainder. left, ployment. months he A before few upon sup- impossiblе rely it deemed Congress however, reenacted revised and membership position recent or January, 207(a), in 284 as effective Party § § membership in the Communist 1963. “merely equivalent, shorthand an expressing way those characteristics in The difference has been described po- likely 2213, the incitement Report which render Sept. Senate No. 31, 456, 85 Congressional P. footnote litical strikes.” 2 and Adminis- U.S.Code p. News, 3861, part 1962, p. S.Ct. as in trative follows : in Brown also, happened, It replaces Unit- explained why title the Bank- “Section 32 of Court § dealing Code, ed section 284 not a States Act 12 U.S.C. § postemployment although attainder, activities. be said bill prohibits employee of former upon latter impose those who a restriction period Government, 2-year for a specifications, fulfill certain following engaged em- of his in the termination us. Persons cаse now before prosecuting ployment, a claim from types transactions certain of securities ex involving newly imposing it is not and a law States the United post Garland, p. parte directly Ex law. subject connected any matter facto 379; York, 170 U.S. employed v. New . Hawker he was with which (1898); 42 L.Ed. pro- (a) of section “Subsection States, F.2d 916 v. United Cases offi- former Government vides that a nom„ (1st Cir., 1942) cert. denied sub employee . shall be . . or cer States, Velazquez v. United acting as at- from permanently barred (1943); 1431, 87 L.Ed. 1718 anyone than other torney or 312 F.2d Smith v. United any matter the United States (10th Cir., 1963). party or is a the United States which partici- he in which 207(a) disqualify is interested former does § substantially in a personally government seg- pated employees or from all Thus, capacity. in addi- governmental practice disquali- It ment of the of law. 2-year present replacing particular tion fies cases where bar, a lifetime disqualification Congress rationally judg- could make strengthens present 207(a) participation section ment evil as would be money going beyond claims previous law a result of an individual’s ac- range of property whole government to the tivity employee as a the Government which matters same matter. interest.” argument Appellants’ disqual- 207(a) ap- argue that § implies ification new if itself was post ex law plied to Nasser is an facto 207(a) passed, had not been 9 of the section of Article violation participate, would have been free to aft- closely re- it more constitution because employment, er termination of as at- activity post-employment than stricts torney in matter during most of his did law in effect substantially he had as a period employment. Although employee. to those For reasons similar 207(a) provided penal sanctions which respect at bill discussed with exist, point previously did not we out claim, re do not view we tainder event have Mr. would in activity re post-employment striction pro- been restricted the ethics of his during employment activity lated to accepting private employ- fession from govern having punishment been a ment in a matter he had sub- enact employee the law was ment responsibility public stantial while ed. employee.2 argue, disqualification appellants As profession, on account practicing a theory II. the case. may activity, constitute of offensive newly government support contended in punishment law therefor and a of Count II in disqualification on ac- while an prescribing IRS such employee, per- occurring activity Nasser had сount of post sonally substantially in ex may and the matter passed be an was law facto liability (4 for Cummings Missouri, income tax 1958. 71 U.S. Hauff’s law. April, 1962, proposed In Ex he reviewed a Wall.) 277, and 18 L.Ed. 356 penalty deficiency Wall.) notice of fraud Garland, (4 and parte 1958, together files, for is with related and a But where L.Ed. 366 relationship In recommended that the notice issue. sufficiently be- rational October, 1962, prepared public memoran- he activity past tween the answering legal question involv- unworthy people, dum excluding in interest punishment the 1958 assessment. disqualification is (B), Responsibility, ABA Canon D.R. 9-101 7 Am.Jur.2d Professional 2. ABA Code See . Attorneys Law 158 at § government sup- prepare also claimed but not Hauff. Roche did port participation in the them. of Count III liability matter of Hauff’s evidence, when deem year filed no return for that Hauff had light viewed government, most favorable to Gеrard, attorney, another IRS Mr. support sufficient prosecution. criminal In

recommended Questions by appellants verdict. concerning raised matters, order to coordinate two in electronic surveillance April Gerard and September, 1962, met in Nasser proof ac volve some of the of Nasser’s and discussed 1962; cess files on Hauff in IRS participa- Hauff case. Thus Nasser’s re there are claims of error with respect tion relied to Hauff’s spect points. Bru on other evidence liability, III, inci- Count questions ton of testi are raised because concerning activity dental to his Hauff’s relating mony statements Hauff liability. participation relied tending to incriminate Nasser. Hauff respect liability, on with to Circella’s take the stand. The did I, and Count was also incidental. The contends that such statements Hauff pay- Hauff file disclosed substantial сonspiracy of the in furtherance ments and other transactions a busi- also shown. ness venture Hauff and Circel- argue that as matter of could law associated, la were and there was no guilty conspiracy not be 207(a). to violate § claim that Nasser dealt with other concerning already matter noted, Circella. As jury disagreed I, as to Count propriety III. The and it was dismissed. charge and conviction. 207(a) prescribes penalty for an May Nasser left IRS 1963. In De- ex-employee attorney acts who as cember, sought after Hauff assist- client, circumstances, specified under if ance, Roche, Nasser asked Mr. another knowingly, pre- he acts but does not attorney, repre- to become associated in penalty client, scribe a whether senting concerning Hauff his ’58 liabili- knowingly, wilfully, he acts or other-

ty. There is substantial evidence from wise. which it can be inferred some gave legal months Nasser advice question presented The essential the matter and whether, Roche’s function agrees when a client appearances limited to ex-employee conferences applying Nasser's advice. There ex-employee attorney act shall evidence that said he was con- in a matter from he is fore- possible cerned ‍‌​‌‌‌‌‌‌‌​‌‌‌​​‌‌‌​​‌‌‌‌‌​​‌‌‌‌‌​‌‌​​‌​‌​​‌​‌‌‌​‍about conflict of (as inter- 207(a), client closed and the interpretation est. The defense guilty ex-employee) well evidence is that did knowledge not act prop- purpose, both n attorney, but secured erly Roche for conspiring guilty be found possible order to avoid conflict. 207(a). cause a violation of § There was also evidence arguably that Nasser Count IV was broader prepared return, Hauff’s among conspiracy submitted that it ser, Nas- February accompanying an and Hauff, Circella, and unknown oth- explanatory gave expert letter. An ers, his attorney for to have Nasser act as opinion return, letter, that the the and a Hauff and Circella. There was evidence power attorney Roche, brought were each that Hauff Circella Nasser prepared typewriter, on respec- the representation same obtain and that Nasser tively, arranged as some other document shown to appear with Roche to for Cir- They have been cella, authored Nasser. it under from which circumstances prepared really at a secretarial service could inferred that was Nasser performed Nasser, acting attorney. services for as the do not un- ignorant however, the client is of thе fact that derstand, the that ex-employee such, on the was or had attempts partici- the conviction to sustain pated such, jury theory that Nasser the matter as but we are found the that strongly believe, conspired act inclined to na- the to have and Hauff Circella, e., things, attorney i. ture an unlawfully for that where ex-em- ployee unlawfully, conspiring knowingly B ex-employee to have acts and Aand attorney ex-employee his employ his client will often know the facts. the knowledge The matter. client’s those facts in a forbidden frequently will have been the for motive interpretation of the verdict Such an the retainer. jury could the be dubious that would argue that case falls unlawfully not that Nasser acted exceptions within one to the rule case not Moreover the was Circella. conspir that offense a substantive and rеally argued on nor that submitted acy separate it to commit are dis theory. permitted instructions agree (1) tinct offenses: “where the jury guilty if the IV verdict Count persons necessary ment of two is for the wilfully knowingly found that completion substantive crime and agreed attorney. Nasser act as ingredient conspiracy no in the is There no instruction order present completed which is not guilty, to find Nasser and Hauff (the rule); (2) crime” Wharton jury find that and Hauff must “where the definition substantive agreed wilfully knowingly that Nas- punishment offense excludes from unlawfully attorney for Cir- ser act voluntarily conspiracy partici one who cella. pates in another’s crime.” Pinkerton v. enacting 207(a), Congress In § States, 66 S. ex-employee made offense for the (1946). Ct. L.Ed. attorney knowingly to act as operates rule The Wharton spec type for a client in a matter of the prevеnt conspiracy conviction both Agreement by ified. client offense where impliedly substantive ex-employee attorney act as is not substantive offense could have been required. 207(a) goes, it is far as So § action, so committed without concerted client had whether immaterial really identical is knowledge of facts would with or included the substantive guilty within ex-employee make the the of clearly guilty offense. This most illustrated fense, and the client not made bigamy. dueling, adultery, See under of an offense circumstances. Perkins, government argues Criminal Law if the client case, government points out that our guilty knowledge, element it need knowledge guilty of the client is an agreement prove 207(a), under § ingredient conspiracy, but essential ex-employee shall act offense. of the substantive conspiracy in client violation beсomes of 18 the ex-em Thus really U.S.C. exception § turns second ployee, attorney legislative when he acted as upon intent. a construction of guilty knowledge, client who had would In v. United Gebardi guilty violation of of a L.Ed. 207(a), exposed $10,000 fine to a Supreme Pinkerton, cited in Court years’ imprisonment, Act, and two also of but had it the Mann 18 U. now exposed a violation of addi a man 2421. One defendant was S.C. § tionally years’ $10,000 clearly fine and five who violated the Act had imprisonment, and the client would be transporting for an immoral a woman guilty exposed of the latter and to that purpose. defendant The other penalty. jour- woman, to had consented who They ney purpose. con- possible were ex-em- and the Of course it is that an conspiracy, Supreme ployee may 207(a) victed of when violate § Having participated Cоurt reversed. construed the was in evidence that Hauff punish Mann as not to to ex- Act so wom- devices conceal offense. The though reasoning transported an ed, even she consent- tent to which the Gebardi apply charge principal, the Court concluded there was “an would to un- legislative policy accessory der affirmative leave U.S.C. after § acquiescence preclud- unpunished,” 3, misprision her fact under or 18 U.S.C. § ing punishment felony conspiracy via stat- not under U.S.C. need any proof charges being here, ute. And in the absence be considered those conspired that the man with others than absent. transported, the woman his conviction Right IV. Bruton: could not stand. confront witnesses. see, as the Government witnesses testified con- argues, there are bases for differ cerning a number of conversations with legislative ence between attitude to Hauff, vary- in Nasser’s With absence. transported ward a woman for immoral ing degrees explicitness complete- purposes her with consent and toward a ness, Hauff said these conversations person purposefully, who in order to ad participated that Nasser had as an IRS interests, represen vance his own seeks attorney in tax Hauff’s matters was ex-employee gov tation from an currently acting attorney Hauff’s ernment in a matter which the latter the same Hauff did tes- matters. not employee. when he was an tify opportunity and thus Nasser had no evaluating Congress But in the intent of to cross-examine Nasser's coun- Hauff. failing prescribe penalty in § objected, testimony sel mitted, usually ad- but the regardless 207(a) client, for the of his by awith statement degree guilty knowledge culpable or against court that each was admitted intent, we think it more reasonable to only. Hauff precluding read punish the omission as Ultimately, however, gave leaving ment pun the court client than as conspiracy instruction that if a established, guilty ishment for the client with been knowl

edge, greater up the declarations of a mem- to a much maximum conspiracy, provided than ber by 207(a) furtherance objects, may ex-employee, its be operation to the considered as evi- of the con spiracy dence conspiracy. another member of the statute.3 We conclude that guilty identify Hauff could not court be did Nasser, might with solely which of Hauff, nor statements Hauff’s any conspir- deemed in agreement, reason of furtherance their acy. knowing wilful, that Nasser act as attorney for the forbidden Appellant argues that several matters. Hauff, incriminating statemеnts Nas- Here, too, accepting ser, any evidence that were not in furtherance of representation Hauff knew that spiracy Nasser’s improperly and therefore were unlawful, of him happens joint prinei- received trial under person.” Chadwick v. directly 141 F. 225 other The court did not (6th 1905), govern- question type Cir. relied on address the Gebardi ment, providing provide Congress’ dealt with a statute whether omission penalty any penalty officer of a bank who under circumstances for a wilfully person seeking certified a check when there certification such a deposit. per- not sufficient funds on Mrs. cheek indicated an intent that such Chadwick, officer, punished not an request. was convicted son not be such conspiring unlawfully Considering with an officer the differences between the certify her check. The court held that dealt situations stаtute before apply the Wharton rule did because the court Chadwick and the statute guilty here, the officer “without seem it does answers guilty complicity drawer need be the same. Hauff, (3) request Hauff’s re- at pies in Bruton v. United later announced layed L. to statements about Nas- Circella 123, 88 U.S. employment former ser’s (1968). Ed.2d 476 representation of Hauff. current joint held that at a Bruton Arguably (3) may plan have furthered a de trial, proof confession one of a rep- persuade to to have Nasser Circella fendant, incriminating codefendant him, (2) (1) resent but defendant, in ef well, the first makes as arguably the al- in furtherance of even against fect, Un the second. witness leged conspiracy. op had an defendant has less second Hauff testified to statements Circella first, portunity to cross-examine (3) ar- to him to and these made similar deprived оf the be defendant will second may plan. guably have furthered right witness, con to confront a inspector who Mr. Weber is IRS though excluded, even fession must be investigates by IRS em- misconduct against the defend otherwise admissible April, ployees. He interviewed Hauff gave applied it. Bruton to be ant who his state- and Weber described in retroactively, to and therefore Hauff con- Much of what said ments. Russell, case. Roberts v. stant denial, otherwise stituted or was excul- 1921, 20 L.Ed.2d patory, admis- but there were several which, well sions as as statements to, statements, just referred Hauff’s though talk”, couched in “double could of the sub- described all the elements readily verifying interpreted Nas- be charged against Nas- offenses stantive representation Hauff. unlawful ser’s preju- They clearly must had ser. have thought emphasized that his Hauff impact. dicial testimony any case wоuld essential to be employee of Mrs. McAdams was govern- against Nasser, both the de- She Hauff a restaurant business. Hauff, ment and Nasser needed apparently four conversa- scribed casual hearsay would be case made statements tions which Hauff threatened to leave He without Hauff. incriminating ato Nasser. testified She subpoenaed if “take town ” later, by Hauff, threat several months good though if Even ‘Fifth’ found. suggesting people a violent death portion de- these interviews contained talk, nothing to indicate who but evasions, denials have nials relation- the threat to the Nasser related alleged been furtherance ship. to her Hauff’s earlier statements gov- spiracy, we can not with the relationship could not about Nasser incrim- contention that Hauff’s ernment conceivably furtherance have been were, inating insрector to the statements properly conspiracy, and could discourage tendency because against on the considered investigation, of the con- in furtherance theory permitted an tenuous spiracy and therefore admissible designed inference the threat that, as related We surmise Nasser. . knowledge suppress had she Inspector, had statements these gained from the earlier remarks great jury. impact on the conspiracy. thus furtherance a crim- Even if satisfied that we were girl properly Hauff’s friend testified that been inal had (1) in de- compel proved, various times she aided reversal Bruton would ception purpose significant portions irrele- Circella because (2) request case, testimony vant to at Hauff’s to Hauff’s state- this of this falsely represented incriminating that she ments, Nasser, to Circella could representing paid joint fee course had Nasser his admitted at trial.4 Of mg apparently two offense of which both defendants Bruton commit think, however, conspir- had not both been were convicted. We 1122 trespass was not on the did not involve

we decided the conviction a have unlawful, reversed, applying under conspiracy the rules as to be but count is States, whether, on 389 stood before Katz v. have nevertheless considered United 347, 507, 576, agency theory proved 19 L.Ed.2d parallel or U.S. S.Ct. of a 18, 1967. joint venture, could decided December statements Hauff’s charged against be Nasser. We July in the of de On course they clude can not. appeal, on but motion fendants’ judg government, 250, Harrington California, this court vacated v. 395 U.S. (1969) the dis ment remanded cause to 1726, L.Ed.2d 284 might court, there be trict so that case a established that inspection sur against camera of the electrоnic relying so defendant on Bruton con to whether the overwhelming veillance determine of the “violation beyond “tainted the use had been victions Bruton [is] harmless reasonable improperly doubt”, government obtained evidence.” asked but the not appropriate to we deemed it nor have again While the matter Bruton in this find the error harmless court, Supreme decid- district Court case. applied to retro- ed that Katz was not actively. States, 394 Desist v. United V. Electronic Issues. Surveillance 244, 1030, 22 L.Ed.2d 248 89 S.Ct. long history Much of this case revolves around certain instances Again applying pre-Katz principles, electronic surveillance and the claims the district court held that the electronic surveillance, (1) (2) were unlawful and excep- “untainted” one proper procedure was not taken tion, reimposed had been sen- lаwful determine whether evidence used trial again appealed. tences. Defendants by any was tainted them. agents ’63, In 1962 and of the Internal service, alleged offenses occurred after Security Division government Nasser had left service. investigation Nasser, in- course an government was, however, required microphone office stalled his IRS prove earlier, while still an em clamp to his office attached a “C” ployee, Nasser had in the phone from his office tele- hap Circella tax matters. It phone conversations were transmitted pens government that the had conducted agents. investigating an office electronic surveillance of ‍‌​‌‌‌‌‌‌‌​‌‌‌​​‌‌‌​​‌‌‌‌‌​​‌‌‌‌‌​‌‌​​‌​‌​​‌​‌‌‌​‍while register They pen also installed employed,5 argue appellants still they phone home Nasser’s which recorded given opportu should have been outgoing numbers of calls. Certain nity to learn whether the surveillance agents terviews between and Nasser and proof led to surreptitiously Hauff were recorded. produced. remand, found On the district court verdict this case was rendered Nasser, Hauff, but not had stand- July 9, trial, 1966. Just before the dis- challenge bugging device in trict court had held that the surveillance office, Nasser’s lawful principle necessarily ap- of Bruton 5. This IRS surveillance of Nasser was also plies joint to a trial of Hagarty, defendants involved United States v. conspiracy. jury If the (7th 1968). hears of F.2d Cir. out court declaration of defendant Mo. Supreme yet had Court decided furtherance of inde- Alderman v. United 394 U.S. pendently established and not otherwise (1969), 89 S.Ct. 22 L.Ed.2d 176 admissible defendant No. but inspection an in camera under which

inculpating defendant No. an instruc- unlawfully obtained materials would jury disregard tion to the the declara- have sufficed. tion as to defendant No. is not an ade- quate substitute constitutional right of cross-examination. U.S.App.D.C. 326, trespass 188 F.2d 1019 had been committed no because supervisor’s where a consent to a search planting in States, it. See Goldman police 86 L. local em- ployee’s un- (1942). desk for evidence of a crime 1322 Ed. employee’s held to the work was related that Nasser court found district fourth invalid under the amendment. challenge standing to not Hauff had but reg- pen register. pen It found the the however, doing, the In so of in violation been installed ister had said, court law, wiretapping 605 47 U.S.C. federal her it “No doubt a search of without (1964). of products the It ordered that if consent would have been reasonable given this device by people in some circum- made some hearing the adversary held to determine might supеriors Her official stances. taint, At question Alderman. under reasonably the desk for have searched taint, hearing, court found no the the property for official official needed finding presently not chal- is and the use.” lenged. this of work-related- We believe element de- held that each court district trespass line must be ness where the challenge standing had fendant present drawn. The surveillance in which he was interviews recorded by representatives case undertaken inter- participant. these But it found its work to determine whether IRS principles in under the views lawful being by performed properly an IRS govern- Katz, “a force because before assigned employee to him in the areas record a conversation ment could purpose We con- of such work. knowledge his defendant without with a clude, relationship of the the because of his Fourth Amendment and not violate rights.” activity to the work Nasser surveillance challenged, ruling is not This perform no tres- that there was was pass considered. merit need not be and its that under the law as involved and origi- their here maintain Katz, not an there was stood the nal surveillance assertion within and seizure unreasonable search “indiscriminate office was an Nasser’s fourth amendment. fourth and search” violation Collins, v. 349 F.2d In United States amendments, and that district fifth (2d 1965), denied, U. cert. 383 Cir. production of have ordered court should L.Ed.2d 303 S.Ct. S. hearing granted the materials and aof Cus the warrantless search Lopez question v. taint. See by jacket employee’s Cus toms Service S.Ct. 373 U.S. agents stolen for emeralds toms (1963); cf. United L.Ed.2d 462 held reasonable: mail was Customs White, 401 91 S.Ct. v. States 1122, no that the search “We have doubt (1971). 28 L.Ed.2d 453 including area, defendant’s work primary issue of whеther As to desk, and interior surface agents trespassed planting the when Agents McDonnell ducted Customs devices, emphasize electronic defendants . . constitutional exercise . was a assigned to him office was Nasser’s de- power Government use, making entry his exclusive supervise and employer, to fendant's him, agents, unauthorized investigate performance du- of his trespass. employee. . . . Customs ties investigating agents were defendants that perform- unconnected with crime as one in office as well a as Cus- defendant’s duties ance of area, private public is not a sector employee.” toms trespass can be committed entry sur of electronic occupies This late the office. the one who doc- Blok, into fourth amendment veillance v. illustrated United States analogize requires illegal trines that we seized to be followed “when an search “persons, light.” papers seized words to ef- has come to Id. at Furthermore, fects.” Here the seized were re- at words rationale part lated and of Nasser’s official func- Alderman was not “ tion, “things” analogy re- . . . lack confidence lated to Nasser’s official duties. See Berger tegrity counsel or York, v. New judge, trial but [that] 18 L.Ed.2d 1040 procedures camera issue there Appellants rely on this court’s deci inadequate would have been an means safeguard Hagarty7 sion in United hold States a defendant’s Fourth ing intercepted rights.” that an Taglianetti conversation be v. Amendment Hagarty States, 316, 317, ‍‌​‌‌‌‌‌‌‌​‌‌‌​​‌‌‌​​‌‌‌‌‌​​‌‌‌‌‌​‌‌​​‌​‌​​‌​‌‌‌​‍tween Nasser and could not be United 89 Although Hag- Hagarty. used 1099, 1101, to convict S.Ct. 22 L.Ed.2d 302 arty (without Desist) the benefit of applied retroactively, appellants Katz problem insuring access to argue portions Hagarty that were in govern- formation in the hands the dependent holding of Katz in the that duty ment which it has to disclose IRS could not conduct electronic surveil important proper would be an issue in a employee lance of its in his as own case. But we do not believe this is the signed office, purpose for the of detect case, appellant both because the came perform his failures to his duties. forward with no substantial basis for conclude, however, any We discus doubting government engaged the might Hagarty sion in so in unreported in eavesdropping,7 unlawful terpreted predicated princi on Katz and because have we reviewed the record ples, that, by Desist, reason of does suppression hearing find, the govern occurring not transactions testimony, the reason to believe that the 18, 1967, December the date of the Katz govеrnment did full. disclose decision. Summarizing far, so we Appellant the Hauff raised issue that government with the the records government report not must produced bugging from the device surrounding full all instances and cir- Nasser’s office need not to be disclosed cumstances of electronic surveillance appellants; concerning questions discloses, which it but must also affirm- pen register materials been re have deny atively defendant sub- solved; challenge no there is jected to other electronic surveil- recordings respect to of interviews be lance. And where the ad- appellants representatives tween eavesdropping mits prepared and is government. argue legality, appellant its maintains he adversary hearing entitled appeal, press, not do on govern- which he cross-examine the argument made in the district court that ment witness. interception telephone messages “general Appellant Nasser’s “C” office means of the on relies read- clamp ing” States, violated 47 and enti- of 165, v. U.S.C. 605 Alderman United hearing tled U.S. taint on the S.Ct. 22 L.Ed.2d 176 govern- Accordingly, material. not we do decide claim that point. formally affirmatively ment must state that full. has disclosed in trial, appellants After the discovered We do find this in Administrative Circular No. 41 from the Secretary Alderman be- procedure Treasury, cause that case dealt with dated June (7th 1968). (1932) States, ; 7. v. 388 F.2d 713 Cir. Gordon United (5th 1971). F.2d 865-866 Cir. States, 8. See Nardone v. United L.Ed.

H25 torney-client privilege, court against moni- policy It states 1961. position. Depart- sustained toring telephone from calls to or right provides offices, ment com think it clear that recording or electronic to use mechanical meet of those munications cоurse ap- prior subject equipment shall ings privileged. Leathers Secretary the Under proval (9th 159, 166 250 F.2d Secretary. counters Wigmore Evidence, 1957), citing Cir. Secretary, with a memorandum Ed., 8, p. 602, 3d Vol. asks dated June judgments are reversed and agencies Treasury enforcement chiefs proceedings causes remanded for further Circular “that Administrative be advised opinion. consistent with this investi- not intended to affect 41 is No. employed gative techniques currently Judge STEVENS, (dissenting Circuit responsibili- pursuance their them part). regulations.” existing ty under laws client, lawyer, primari- am material In the absence of avoiding ly responsible conflicts documents, plifying con we those two Indeed, in interest. situations numerous di not that Circular No. 41 was clude poten- the client unaware of, in the course rected at surveillance conflict; might others, reason- tial he investigations еmployed internal such as unobjec- ably assume that the is conflict office. Nasser’s cases, compliance In such with tionable. solely responsibility 207(a) is the Error Procedural VI. Claims lawyer; is consent the since the client’s and at trial. lawyer’s merely then an element of the other crime, conspiracy. make a number not a it does create steps. arguments concerning procedural v. United 287 U.S. Gebardi Cf. unlikely questions 112, 119-123, 35, would be Some L.Ed. 206. 53 S.Ct. posture in presented in the same to be But are cases instance, In the event of a retrial. one impor- involvement of critical client’s is court made do district we disquali- If the client knows the tance. ruling. erroneous history, fying chapter lawyer’s illegal witness. was Circella and also is conscious of the char- suggested testimo- employment, The defense that his neverthe- acter of the ny promisе of immu- him, motivated probable was he is less retains nity. he admitted On cross-examination an ad- motivated a desire to obtain meeting Inspector on a vantage specifically Weber forbids. law company intent, number of occasions unlike In such case client’s attorney. concubine, not he did acquiescence Circella’s He said the mere immunity com- bargain the matter of remember more which is characterizes up had and that it- corrupt offense than the substantive testify- promises opinion, my made to him bargain, self. Such ing. meaning within the Holte, v. United States U.S.C. attorney as a called the defense 271, L.Ed. 35 S.Ct. U.S. been and asked if he had witness 504.1 meeting present at of Circella and jury government. found representatives In this case partners lawyer ground of and his client were He refused to answer on the corrupt bargain. Comments the at- such a to assert his client’s instructions wrongful however, case, the client’s 1. Gebardi involved mere “concurrence lawyer’s sub- more,” not an element of tent is without see 287 U.S. 35; 120, 121, 122, 123, offense. Holte stantive distinguished, In this overruled. acknowledging the client ser retainer “under traditional of evi rules illegal dence,” and its 3, character were therefore see 391 U.S. 128 n. 88 S. against penal interest and Ct. admissible 20 L.Ed.2d if their against lawyer. 804(b)(4) See Rule supported trustworthiness is otherwise Advisory thereon, by adequate Committee reliability.” note “indicia See Rules of Evans, Evidence Dutton United States v. S. Magistrates. Courts Chambers Ct. 210, (opinion 27 L.Ed.2d 213 Mr. Cf. Mississippi, Stewart). Justice Since it unlike seems ly impact 35 L.Ed.2d 297. Hauff’s declara- of Hauff’s declara Weber, Hanel, McAdams, tions jury tions on the disproportionate Circella, reliability, which were question admitted their I the validi against Hauff, ty objection would violate ‍‌​‌‌‌‌‌‌‌​‌‌‌​​‌‌‌​​‌‌‌‌‌​​‌‌‌‌‌​‌‌​​‌​‌​​‌​‌‌‌​‍the Bruton to most of right Nasser’s those confrontation as inter- declarations. preted in Bruton v. United States if part IA, IB, IC, I concur andV VI Judge were either admissible opinion. Nas- Fairchild’s

Case Details

Case Name: United States v. Arthur Nasser, United States of America v. Richard W. Hauff

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 16, 1973

Citation: 476 F.2d 1111

Docket Number: 18600, 18601

Court Abbreviation: 7th Cir.