United States v. Hubert Geroid BrownUnited States v. Hubert Geroid Brown
Lead Opinion
This appeal is from a judgment of conviction entered on a jury verdict finding defendant guilty of transporting a firearm from New Orleans to New York while a passenger on Delta Airlines flight 818 in violation of
I.
The somewhat contorted history of this case, with the long delay between conviction in 1968 and the present appeal, is the result of two prior appeals. On April 3, 1969, in accordance with the procedure followed in Alderman v. United States, 1969, ,
Following an Alderman hearing and in camera inspection, the district court,
The fourth document (Exhibit 1-4), contained information overheard by Louisiana state officials who monitored some of the telephone conversations of prisoners in their custody by listening on a telephone extension. The federal government used the state jail facilities in New Orleans for holding federal prisoners. After indictment and while incarcerated in the state facility, jail officials recorded some of defendant’s conversаtions and passed one recording to New Orleans police. The substance of this recording was then divulged to an F.B.I. agent who incorporated it in a memorandum which is Exhibit 1-4.
The only part of Exhibit 1-4 which is related to defendant’s case is the report of a conversation between defendant Brown and his attorney, William Kunst-ler, Esq., as follows:
At approximately 2:30 PM, on February 29, 1968, H. Rap Brown tele-phonically contacted his attorney William Kunstler in New York City. Brown advised Kunstler that New Orleans was “ready to go” as was Bаton Rouge which was especially “hot” at Southern University in that city. Brown indicated that all that was necessary was mobilization of forces and he requested that Stokley Carmichael come to New Orleans on March 2, 1968. Kunstler stated he would attempt to make arrangements with Carmichael and that Carmichael would most likely also travel to Baton Rouge, Louisiana.
Kunstler advised Brown that he had obtained 30 minutes of time on three radio stations (location not indicated) and that a big press relеase had been prepared regarding Brown’s cause. Kunstler indicated that Brown has the full cooperation of all Civil Rights organizations.
Kunstler advised that Ed Milbrook (Phonetic) would be visiting Brown at the Orleans Parish Prison, New Orleans, Louisiana, where he is presently incarcerated. Kunstler stated that Brown could expect to remain in Orleans Parish Prison until March 20, 1968, at which time Kunstler would attempt to obtain his release for re- ■ turn to New York City.
While finding Exhibit 1-4 to be the product of illegal surveillance, the district court held that the information obtained in no way prejudiced defendant or tainted his conviction.
Following the district court’s findings on the wiretap claims, this case was
II.
There are seven assignments of error to be considered on this appeal:
(1) the government’s proof of an essential element of the crime, actual knowledge of the Maryland indictment, was insufficient as a matter of law;
(2) the court’s instructions on the issue of actual knowledge were contradictory and prejudicial;
(3) the court should have granted defendant’s motion for a change of venue because the security measures employed at his trial denied him a fair trial;
(4)
(5) the alleged invalidity of the Maryland indictment necessitates a reversal ;
(6) the overhear of counsel in the telephone conversation between defendant and his attorney (Exhibit 1-4, supra), violated defendant’s right to counsel under the Sixth Amendment and mandates at least a new trial, and
(7) the court erred in refusing to hold an adversary hearing on the relevance of the materials contained in Exhibits 1-1, 1-2, and 1-3, discussed supra.
We will consider these assignments of error seriatim.
III.
First, as to lack of proof,
Defendant argues that the government’s proof of his actual knowledge of the pending Maryland indictment was insufficient as a matter of law. On appeal the jury’s finding of actual knowledge must be sustained if there is substantial evidence taking the view most favorable to the government to support it. Glasser v. United States, 1942,
When the indictment was returned, about noon on August 14, 1967, Brown was in Los Angeles. Shortly thereafter he boarded a plane and returned to New York where he was met by a group of friends at the airport. The government proved that news of Brown’s indictment was carried by all major news media in the New York area, as well as news media in New Orleans and Baton Rouge, Louisiana. For the next day and a half, Brown remained in New York visiting with friends including his attorney, William Kunstler, Esq. On the afternoon of August 16, Brown and his bodyguard, Frazier, flew to New Orleans carrying the weapon in question, an “M-l carbine.” Although traveling incognito,
Based on this evidence, the government argued that it would have been unreasоnable to conclude that Brown was unaware of the indictment. The jury verdict implicitly included a finding that Brown did have actual knowledge of the indictment. It can be overturned only if we conclude that the jury must necessarily have had a reasonable doubt as to his actual knowledge. United States v. Warner, 5 Cir., 1971,
Second, defendant urges that the district court gave contradictory instructions on the issue of actual knowledge. We have carefully examined the charge and find no merit in this contention.
Some evidence of the care with which the jury followed the instructions on the necessity of knowledge of the indictment and proof by circumstantial evidence will be seen in the finding of not guilty on the count involving transportation of the firearm from New York to New Orleans. The additional proof of thе headline in the Baton Rouge newspaper was substantial and could well have been the factor which caused the guilty ver-diet on the count which related to transporting the firearm thereafter.
We likewise find without merit the claim asserted in the third ¿ assignment of error, that defendant’s motion for a change of venue should have been granted. We are unable to conclude that the security measures employed at the trial reached such proportions as to deny defendant a fair trial. There was no mob dominated atmosphere as in Moore v. Dempsey, 1923,
Four, we find no merit in the claim that
We note that Congress has broad power to regulate interstate activities under its commerce power. See Heart of Atlanta Motel v. United States, 1964,
Nor do we find any merit in the contention that
Five, defendant contends that the invalidity of the Maryland indictment necessitates a reversal of his Louisiana conviction. Even assuming arguendo that the underlying indictment is later found invalid, the crime under
IY.
With respect to Exhibit 1-4 defendant urges that a new trial is required because (1) the unlawful wiretap and subsequent overhear invaded his Sixth Amendment right to counsel, and (2) the contents of the invasion were not disclosed until after conviction. This contention is discussed at some length in the opinion of the district court. United States v. Brown, E.D.La., 1970,
This argument is premised on the proposition that any undisclosed government overhear of an attorney-client conversation requires a new trial irrespective of whether the information obtained is relevant. Defendant maintains that the per curiam decisions in Black v. United States, 1966,
In Hoffa v. United States, 1967,
In light of the discussion in Hoffa with regard to “intrusion of the grossest kind”, and the fact that neither Black nor O’Brien expressly states that any undisclosed overhear, regardless of circumstances or relevancy, violates the Sixth Amendment, we decline to adopt such a rule. Instead, we proceed to consider the circumstances which led to the overhear and the question of whether the overhear could have in any fashion tainted the conviction.
The overhear involved in the instant case resulted from the actions of the state officials. There is no indication that defendant’s telephone conversations were monitored for the purpose of gaining information to use at his trial, a practice we would immediately proscribe with appropriate remedy. Instead, testimony adduced at an adversary hearing on the question disclosed that state prison officials followed a practice of monitoring some of the telephone conversations of prisoners in their custody for security reasons. The surveillance was neither authorized nor approved by fed
Concluding that neither the type of оverhear, standing alone, nor the circumstances surrounding it resulted in a violation of the right to counsel, the question remains whether the overhear tainted defendant’s conviction. The substance of the only conversation between defendant and his counsel, Kunstler, is quoted supra, p. 421. Defendant does not seriously contend and we cannot conclude that this conversation in any way tainted defendant’s conviction. Cf. In Re Tierney, 5 Cir., 1972,
V.
We turn now to Exhibits 1-1, 1-2, and 1-3, warrantless wiretaps authorized by the then Attorney General acting for the President, prior to January 10, 1968, the date of the wiretaps. The district judge examined these exhibits as well as the authorization in camera and concluded (1) that they were legal wiretaps made for the purpose of gathering foreign intelligence and (2) that they contained nothing which would be even arguably relevant to defendant’s case. In fact, the- involvement of defendant in the wiretaps was happenstance at the most. On appeal, defendant argues that the wiretaps werе illegal and therefore under Alderman he is entitled to disclosure and an adversary hearing on relevancy.
Alderman requires disclosure and an adversary proceeding only if the trial court determines that the government’s electronic surveillance was unlawful. Alderman, supra,
In United States District Court, the Supreme Court held that the President did not have the power to authorize electronic surveillance in internal security matters without prior judicial approval. However, the Court was at pains to distinguish between surveillance of domestic organizations deemed threats to national security and surveillance involving the activities of foreign powers or their agents.
While the Court carefully reserved the question of presidential power with respect to foreign threats to national security, reference was made in a footnote to the view of others that warrantless surveillance may be constitutional where foreign powers are involved even though
In United States v. Clay, 5 Cir., 1970,
We found that authority in the inherent power of the President with respect to conducting foreign affairs. We took our text from Chicago & Southern Air Lines v. Waterman S.S. Corp., 1948,
[T]he President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant informatiоn, should review and perhaps nullify actions of the Executive taken on information properly held secret.333 U.S. at 111 ,68 S.Ct. at 436 .
See also United States v. Belmont, 1937,
The constitutional power of the President is adverted to, although not conferred, by Congress in Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
“Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1103; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or pоtential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. . . . ”
As United States District Court teaches, in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial approval. However, because of the President’s constitutional duty to aсt for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence. Accord, Zweibon v. Mitchell, D.D.C.1973,
Our holding in Clay is buttressed by a thread which runs through the Federalist Papers: that the President must take care to safeguard the nation from possible foreign encroachment, whether in its existence as a nation or in its intercourse with other nations. See e. g., The Federalist No. 64, at 434-36 (Jay); The Federalist No. 70, at 471 (Hamilton) ; The Federalist No. 74 at 500 (Hamilton) (J. Cooke ed. 1961).
We thus conclude that the wiretaps involved in Exhibits 1-1, 1-2, and 1-3 were lawful and that their dis- ' closure was not required. Alderman, supra,
In sum, we agree with the following statement of the District Court which is
From an in camera examination of Exhibits 1-1, 1-2, and 1-3, we find that these logs were authorized by the then Attorney General in writing; they were not made pursuant to a surveillance of defendant but rather of others, and the premises were identified; that they were made in connection with obtaining forеign intelligence information; that the Executive Branch of the Government has properly and reasonably requested these exhibits not be disclosed to the defendant or the public because “it would prejudice the national interest to disclose the particular facts concerning this surveillance other than to the Court in camera” and its contents do not in any manner bear upon the issues involved in this case, and in no way have these wiretaps prejudiced defendant, helped build а case against him, or assisted in bringing about his conviction.
We thus find no merit in the assignments of error.
Affirmed.
Notes
. It shall be unlawful for any person who is under indictment or who has been convicted of a crime punishable by imprisonment for a term exceeding one year . . . to ship, transport, or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition.
. This question is to be distinguished from “silver platter” problems arising from state originated evidence being made available to federal prosecutions. Elkins v. United Stаtes, 1960,
Concurrence Opinion
(specially concurring):
I concur not only in the affirmance of this conviction, but also in the opinion of the Court. My words of special concurrence relate only to Part V and are intended merely to make explicit what is now implicit in the excellent opinion of my Brother Bell.
There can be no quibble or quarrel with the findings and cоnclusions that the wiretap under consideration here had its origin and complete implementation in the field of foreign intelligence. This Court and the able district judge have conducted inescapably independent reviews of the action of the then Attorney General in authorizing this warrant-less electronic surveillance. All agree in the determination that the wiretap was indeed directly related to legitimate foreign intelligence gathering activities for national security purposеs; and that it was, therefore, a legal wiretap and not within the ambit of Alderman v. United States, 1969,
It is unfortunate for the development of the law in this area of foreign intelligence wiretapping that the essential information on which the legality of executive action turns — the subject, location, scope, and duration of the surveillance —cannot be revealed. This circumstance places tremendous responsibility for both national security and cherished constitutional rights in the hands of individual judges, acting largely in ignorance of the related decisions of their colleagues and permanently insulated from the hеlpful criticisms and suggestions that result from the adversary process and the publication of explanatory opinions. Nevertheless, it remains the difficult but essential burden- of the courts to be ever vigilant, so that foreign intelligence never becomes a pro forma justification for any degree of intrusion into zones of privacy guaranteed by the Fourth Amendment. Courts must insure that there be no future tidal wave of warrantless wiretaps and that the floodgates controlling their use not be opened for domestic intеlligence purposes. The judiciary must not be astigmatic in the presence of warrantless surveillance; rather judges must microscopically examine the wiretaps in order to determine whether they had their origin in foreign intelligence or were merely camouflaged domestic intrusions. The serious step of recognizing the legality of a warrantless wiretap can be justified only when, as in the case before us, the foreign and sensitive nature of the government surveillance is crystal clear.