*2 dеtermine whether conviction wiretaps. affected Jr., Boult, Morgan, Charles Reber F. Jr., Atlanta, Ga., Chauncey Eskridge, grant Supreme Court’s Pursuant 111., Plummer, Houston, Chicago, lengthy M. W. then certiorari, of Tex., defendant-appellant; for Ingraham Melvin L. Joe held before District Wulf, Norton, Houston, Eleanor Holmes New York 4, 5, on June City, of counsel. Texas, con- time the at which logs wire- of five Anthony sidered the FBI Farris, Atty., J. P. U. S. telephone tapped delivered conversations Atty., James R. Gough, Asst. U. S. hearing by the Houston, Tex., to it advancе plaintiff-appellee; Joseph The Court then ordered Government. Connolly, J. Epstein, Michael T. logs wiretapped Attys., Dept, Justice, of counsel. 1, 2, 3, and 4 received in evidence and be Greenberg, Jack Nabrit, III, James M. fully their de- disclosed to the contents Shapiro, Jonathan DuBois, Elizabeth B. four wire- fendant. As to these New York amicus City, curiae. tapped conversations, telephone the Court Before WISDOM, AINSWORTH and standing held that the defendant had Judges. CLARK, Circuit illegality assert the surveillance challenged illegality and that was not AINSWORTH, Judge. Circuit Government. The fifth wiretapped conversation in which defend- This Selective Service involves the participated ant considered by a"jury conviction on June Judge, camera the District Clay, Jr., Cassius Marsellus also known exhibits, related and held to be a lawful Ali, professional Muhammad former pursuant surveillance the FBI heavyweight boxing champion of Attorney General’s authorization world, wilfully refusing be in- purpose gathering ducted into Armed Forces of the fоreign intelligence. in violation of 50 U.S.C. App. and is before us for § The District Court concluded second time.1 We affirmed the con- first four did bear on the issues May rehearing viction on involved conviction; in defendant’s request Defendant’s now February heard en bane was denied on Court, (5 its Cir.). second time before the F.2d 1330 telephone Elijah to show failed Muhammad was conviction; tapped Phoenix, relevancy person A of these Arizona. named Herbert called must stand. the conviction and that asking Clay, physical which him about his conversation gathering prospective fights, condition, person- related family.2 lawful al details intelligence to be relative to was held *3 necessary surveillance, to and reasonable Log 2 wiretap referred to another interest. protection national of the telephone a telephone conversation of the 2, 3, stated, and have As we Elijah Muhammad on March 1964. to to defendant available were made Elijah Clay, telling called defendant him opportunity to show him an afford making he wanted to see him about wiretapped con- of these relevance a minister quit out of him when “he Service law to his Selective versations thinking fighting all the time” and (The logs evi- all of the are conviction. Clay would make a better minister possesses of the the FBI dence which fighter.3 than a conversations, tapes on originally conversations were which the Log of a was another having when the been erased recorded Phoenix, Arizоna, telephone telephone typed.) The five were Elijah telephone con- Muhammad of a tapped in conversations were a versation on when October Clay electronic surveillance a to man Ali talked believed to be John with surveil- but were connection made defendant, Clay, person having believed to be the others, lance the defendant subject giving message Elijah about been the surveillance. him a from people,” up who were “those TV telеphone con- Log to a pertained Clay.4 apparently about interview April when to on versation Log reproduced reproduced in full as follows: Log follows: 3. is in full as 2. 1 is Elijah Clay. “Elijah operator, called, call from C. 305-635- took to via “Herbert speak it was there then said Cas- asked the time to to and asked in Miami Elijah Clay said Clay. here faster than here. he was hr. told Herbert sius going Clay Clay to he was. to as how he wanted see Arizona asked quite he to him when down a minister Clay make out he was fine and said fighting (sic) thinking to all the time. pounds. him not Herbert told Elijah min- better make a him if he said he would asked Herbert it. overdo anyhow. Elijah yes, fighter then going a and he said ister than soon to Boston had he him when he Herbert said he contact half. said would week and a about fight Elijah him also told him to talk him. to see time to there be down would Clay keep quiet.” call him to to told brother. with his Clay days one mentioned that before. two Log reproduced how in full follows: as boy He asked Herbert is out. backed going Her- Ali is diаl- long to John heard be out here and “Man believed be he was phone long might dis- Her- tomorrow. out on Albert’s he leave bert said everything then talks was and direct dial. He else tance call via how asked bert person Ali Clay how his be Muhammad asked believed to Herbert said fine. just Clay (Clay) says with has talked mentioned he brothers were temple being Messenger Messenger put got would out of the James up people night those TV women. Herbert like for him to hold all out they going here Clay like are to be do with a case a while since what knew they Saturday want that, get him hack will what and send and he see him ticket (Elijah) (Clay) what Herbert asked about so that he will know came from. where he * * * 'Clay say. wife) going (probably men- John to be asked lady coming probably gone with a will to Jackson tions that he had said she probably Phoenix should there when he leaves said he friend. Herbert easy Saturday Sunday. tomorrow, He it if be there for to take him call closing.” gives anything him do to let then the Muslim could there was somеthing Clay about mentioned know. he, having cheek his car when Herbert Chicago. Herbert, got to /Recorded/.” Log September taken on him admonished that he “should whities,” with surveil- connection watch Atlanta, out them etc.5 telephone lance of the of Dr. Martin The Trial held that “the King, (ostensibly Luther Jr. MLK Dr. totally are so innocuous that exchanged King) greetings with defend- any bearing could had on the Clay, ant him well on his recent wished defendant’s conviction under circum marriage, invited and in turn was Judge’s stances.” The District rеasons championship defendant’s next attend regard, ably expressed, with which fight. Clay told MLK take care agree, also reproduced pertinent we are margin.6 wide, himself, part world that he is known Department’s reproduced bearing Log in full follows: would have a “Chauncey MLK, in Miami said he is conclusion the defendant’s beliefs *4 they Cassius, Cassius, political spoke racial, MLK were with exchanged to and rather than reli- gious. secondly greetings, attempted him MLK wished He to demon- marriage, strate rеcent invited how information was well on his C transmit- champion- upward through guest channels, ted through MLK at next F.B.I. to be his his Department ship fight, MLK like to at- the said he would Justice and keeping up recommendation, into with the back the tend. C said that he is and to brother, appeals with draft board. MLK that MLK is his argument, any chances, “As him can’t to the second in take that the 100% himself, Department formation was used that MLK should take care of the making recommendation, Justice in that MLK known world wide its positive testimony whities, logs оut for them said there was should watch that the preparation people Nigeria, Egypt in were at and Ghani not used all in the report. Only the the asked about MLK.” most strained con struction of the cross-examination testi support mony contrary finding. 6. The Trial : a “Turning significance logs, ques But the court to need not reach this only foregoing tion, believes, holds, manner in for it which so that the argued totally they conversations were relevant to the are so innocuous could any bearing not defendant’s conviction centered around have had on the defend rejection of the defendant’s conscien- ant’s conviction under circumstances. objector plausible because, regards first, Log 2, tious claim. This was a This is as argument, Department duty for if the recommendation of Justice’s towas Department deny concerning to Justice submit a recommendation upon illegally claim was based obtained defendant’s status as a conscientious ob evidence, jector, the ‘basis а in fact’ which this not minister. It is obvious that Department have, court found for his classification would could had it believ warranted, have been defective. ed Without such a it was recommended fact’, granted ‘basis of the defendant could effec- a conscientious tively challenge jurisdiction objector despite deferment the fact religion. draft board which him classified and or- a minister of his report Moreover, dered him to for even if induction. this issue had been be specific relevancy sought Department, “The between fore the it is clear that up defendant’s classification and the over evidence that he was not a minister to overwhelming. heard conversations involves the at March statement least Clay in the States, of Justice’s recommen See in discussion v. United ‘registrant’s objections par supra examining dation that to at 915-918. Thus ticipation light in war likely insofar as are based in to most demonstrate upon teachings prejudice of the Nation of Islam there is more grounds primarily enough dispel “rest possible which are than evidence to political racial. These ob constitute conclusion taint. The the defendant jections types in certain of war should not have been entitled to a minis circumstances, gen exemption springs clearly certain rather than a terial ‘independent from an scruple against participation eral origin’. in war Nardone v. United ’ Clay 338, form.” v. United 308 U.S. (5 1968). F.2d (1939). C.A. The defendant L.Ed. 307 attempted first, Log attempt show Log that because “Defendant’s to link his Elijah’s Clay similarly reflects wish that become conviction must fail. To con- minister, Log passing and because 4 reflects strue a reference ‘them whities’ Clay’s whities’, Department’s being basis, reference to ‘them or even com likewise error There was U.S. rejecting (1969). District 22 L.Ed.2d It is clear
mitted
testimony
sweeping
for
from
demands
uncontradicted
that none
the broad
discovery
counsel
five
defendant’s
of the information obtained
files, documents, wiretapping
in
wiretapped telephone
FBI
conversations
transcriptions,
tapes
investigation
defend
formation and
in the FBI
used
persons
relating
and conversations
claim,
objector
or
conscientious
ant’s
participated
All of the
defendant.
Depart
the adverse
preparation
de
recorded conversations
made in
recommendation
ment of Justice
inspection
produced
fendant were
defendant’s
with
connection
pertained
except
which
objector class
request
conscientious
gathering
information
Trial Court
In our view
ification.7
defend
will
later. The
which we
discuss
discretion,
good
“informed
exercised
logs of
right
records
see
ant had no
supra,
fairness,” Alderman,
sense, and
he was
to which
deny
at
at
89 S.Ct.
394 U.S.
rummage in
party,
Government
nor to
discovery
demands
defendant’s
files. Alderman v.
for inter
perceive
reason
we
no sound
22 L.Ed.
89 S.Ct.
fering
his decision.8
(1969);
2d 176
States; supra,
reason,
partial
In Alderman
the defendant’s
*5
‘(n)one
political
means
said that
this
com-
the
and racial
beliefs to be
petitioner
any
un-
will have an
pletely
was
that
The conversation
untenable.
rummage in the files
theological
common
limited license
The
discussion.
not a
slang
Department
Armed
of Justice.
context
not within a
was
reference
specific
any bearing
the
of overheard
right
with the
records
have had
which could
Negro
cross
a
with the
mem-
conversations and
A
not
beliefs.
defendant’s
appropriate
in re-
officials
be as
examine the
of Islam would
ber of the Nation
addition,
gard
thing.
likely
say
those
to the connection between
In
the same
him,
against
context,
it
and the case made
in
a
records
been
such
if it had
viciously
petitioner may
or be entitled
need
to be even
be construed
could
ample
nothing
again
derogatory,
Whether this is the
was
evi-
else.
there
origin
independent
left
informed
before
or not must be
to the
an
dence from
discretion,
sense,
good
fairness of
Mus-
that the
conclude
judge.’
religion
Id. at
89 S.Ct.
in con-
the trial
holds the white race
Clay
lim
supra
States,
tempt.
in
v.
at 961. And
United
See
S.Ct.
394 U.S.
n. 16.
F.2d at 919
(1969),
3, they
Logs
the Court said
regards
are so to-
L.Ed.2d
1 and
“As
tally
‘(n)othing in
v.
Alderman
that
defendant’s counsel
innocuous even
specific
language
point
Bu-
Ivanov v. United
could not
States, ante, p.
re-
con-
tenko v. United
which could bear on the defendant’s
quires
adversary proceeding
argu-
and full
an
The thrust of defendant’s
viction.
by
every
concerning
logs,
issue raised
disclosure for
these
as well as
ment
**
*
Logs
Here
electronic surveillance.
4 was that
there must
par-
by
see
tran-
the defendant was entitled to
script
other
been
matters discussed
Depart-
relayed
his
and noth-
own conversations
which were
to the
ties
right
rummage
else. He had no
not
The
does
credit
ment of Justice.
court
government
testimony
argument.
in
Id. at
files.’
was clear
The
this
Despite
foregoing,
tapes
im-
S.Ct. 1099.
were erased
that
insistently requested
mediately
typed,
defendant’s counsel
after the
were
be,
essence,
in
what would
a full-scale
in
received
evidence were
that
inquiry
practices.
prepared.
into F.B.I.
court
The
ones
The individuals
anything
does not believe that
in
monitored
who
shown which would warrant
such an
that
communicated
Phoenix testified
oppor-
inquiry.
ample
anyone.”
Defendant had
no other information to
tunity
first,
to demonstrate
that the
copy
of the ad-
7. Defendant
mailed
prejudicial material,
sec-
contained
on November
verse recommendation
ond,
that
was communi-
material
1966. See
United 394 U.S. law of (1969), 22 there, 302 issues decided unless S.Ct. L.Ed.2d here, presented are wiretapped telephone affected the circumstances “Under view, is task too conversations.10 In our the de- ‘the we cannot hold mаrgin complex, for error too fendant’s conviction was not so affected whc>lly accordingly judgment rely camera convic- great, on the tion judgment trial court.’ Alderman should U.S., States, supra, 394 at v. Affirmed.11 S.Ct., L.Ed.2d No one at 22 176.” ON PETITION REHEARING FOR seriously time in this doubt AND PETITION RE- FOR insecurity peril international serious EN HEARING BANC necessity imperative is an there intelligence obtaining informa- PER CURIAM: gather- tion, not believe such and we do Rehearing The Petition for is denied the Constitution forbidden is having polled Court been at the including by statutory provision, request оf one members U.S.C. § majority Court and a the Circuit urged reconsider We are Judges regular are in who active service original by us in our decided issues having it, (Rule voted in favor of 397 F.2d decision Procedure; Appellate Federal Rules of declined en banc we decline to do so.9 We 12) Local Fifth Rule Peti- Circuit original decision of our reconsideration Rehearing tion for En Banc also is de- considerá and further refused en banc nied. have, however, general scruple against the recеnt par We examined rather than a Supreme any ticipation (Empha Welsh in war in form.” supplied.) v. United 1792, 398 U.S. 90 S.Ct. sis See at 397 F.2d 918-919. (1970), Kentucky Appeals L.Ed.2d 308 to de Board of there termine if decision affects after I-A continued the classification of present view, Clay. our case. In it does not. That there also a “basis in Supreme granted board, Welsh a fact” for the local numerous state objector appeal conscientious status because (Kentucky Texas) boards sincerely” “deeply and held ethical or Appeal Presidential Board I-A classifica imposed moral beliefs Clay, thereby which on Welsh “a including tions of an ad duty partici conscience refrain from question verse determination of the pating Clay’s at war time.” The sincerity, amply basic shown Court found that Welsh’s beliefs function opinion and detailed in our religion life,” thereby ed “as titling in his en in the record to which reference made. “religious” him to a conscientious See F.2d at 918-921. objector exemption 6(j) under Section Presbyterian 10. Defendant has cited the Military Training the Universal and Serv Mary Church States E. B. (50 U.S.C.App. 456(j)), ice Act § Ch., Hull Mem. Pres. U.S. at at Section sup- (1969), L.Ed.2d 658 6(j) grants exemption from service port itsof contention that the registrant “who, the Armed to a Forces analysis teachings n of Justice’s that the *8 religious training belief, reason of primarily political Nation Islam are conscientiously opposed participation interpretation and racial and that (Emphasis sup in war form.” violates establishment сlause plied.) pointed As we out our reject argu- First Amendment. We opinion ment for reasons which we discussed (made Justice recommendation in connec original opinion in full in our in this case objector tion with the conscientious in relative Muslim tenets. See F.2d vestigation), Kentucky Board of at 918-921. Appeals, Clay’s stated that beliefs insofar upon teachings are based carefully 11. We have considered all grounds Nation of Islam “rest on additional contentions of primarily political which are merit, and racial. find to be accord- them without objections rejected. These ingly they constitute certain are types war circumstances, in certain