UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Rehearing denied August 28, 1970.
Danaher, Senior Circuit Judge, and Wright and MacKinnon Circuit Judges. Danaher, Senior Circuit Judge (concurring).
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WRIGHT
These cases involve four of 16 individuals charged with being members of a highly organized burglary ring in the greater Washington, D.C. area. During a 15-month period in 1964 and 1965, this organization, which included several Washington policemen, was allegedly responsible for several hundred burglaries involving more than two million dollars in stolen property. The four appellants here were each charged with *fn1 and convicted of single counts of conspiracy, housebreaking and grand larceny. *fn2 Appellants urge numerous grounds for reversal. For the sake of convenience, we consider in Part I appellants' assignments of error which affect all of their convictions, and in Part II those arguments which reach solely to the conspiracy count. I
Initially, appellants urge they were prejudiced by the trial court's refusal to order a psychiatric examination of the Government's principal witness, Robert Earl Barnes. The trial court's opinion denying such an order emphasized that appellants had not provided any substantial factual predicate for their request and that the results of a previous psychiatric evaluation of Barnes -- which found no psychosis -- would be available to the defense. United States v. Klein, D.D.C., 271 F. Supp. 506 (1967). On the basis of the trial court's opinion, we find no reason to disturb its ruling.
Appellants next challenge the trial court's failure to provide them with some 250 pages of Barnes' grand jury testimony, relying on Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966). We find no merit in appellants' position. The portions of Barnes' grand jury testimony that were not turned over to the defense constituted a small fraction of Barnes' total testimony before the grand jury. The trial court granted discovery to appellants of the vast majority of Barnes' testimony. *fn3
In Dennis, the Supreme Court explicitly stated:
"The trial judge's function in this respect is . . . to supervise the process: for example, to cause the elimination of extraneous matter and to rule upon applications by the Government for protective orders in unusual situations . . .."
384 U.S. at 875, 86 S. Ct. at 1871. The trial court specifically found in the present case that the materials denied the defense were "information unrelated to the instant charges, matters unrelated to the present trial and currently under investigation, and matters pertaining to individuals identified in the testimony who are entitled to protection from adverse publicity attendant on having their names raised in connection with the instant case." Moreover, the trial judge itemized the portions denied the defense, and this material was transmitted to this court. We have carefully examined it and, with one exception, *fn4 find the trial courts description entirely accurate. Consequently, appellants were properly denied access to it.
Appellants also challenge the legality of a police search of Klein's office and the seizure of his business records, pursuant to a search warrant. The trial court conducted a suppression hearing on appellants' motions and held against appellants. We have reviewed the lengthy affidavit which was the basis on which the search warrant was issued and find that it substantially exceeds the requirements set out in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). Moreover, the affidavit sets out in some detail the extensive conspiracy alleged, the specific premises to be searched, and the business records used in furtherance of the conspiracy which were to be seized. While the large amount of written business records seized undoubtedly lies close to the boundary of seizures permitted by the Fourth Amendment, we think the police officers' affidavit supplied the substantial justification and specificity necessary for the search conducted.
Appellants' next objection is to the introduction into evidence of out-of-court statements made by appellant Klein. *fn5 The Government obtained these statements by electronically monitoring Klein's conversations with an informer who was cooperating with the Government. Appellants, relying on United States v. White, 7 Cir., 405 F.2d 838, cert. granted, 394 U.S. 957, 89 S. Ct. 1305, 22 L. Ed. 2d 559 (1969), argue that the Government "seized" these conversations in violation of the Fourth Amendment and they were, therefore, improperly admitted in evidence. The Seventh Circuit in White applied the principle announced in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), retroactively. Since White the Supreme Court, in Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), has limited the Katz ruling to prospective application. So neither Katz nor White can help appellants here. We are, of course, aware that the Supreme Court in White may reconsider its prospective only ruling in Desist. We need not wait on White, however, because appellants' position on this issue can be protected through an application for a writ of certiorari. *fn6
Finally, appellants challenge the trial court's action in permitting the jury during its deliberations to hear the Klein tape recordings, while denying the jury's request to see Barnes' grand jury testimony. The tape recordings were in evidence, and it is within the discretion of the trial court to send exhibits which have been admitted in evidence to the jury. Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (1954). It is similarly apparent that the trial court's refusal to send the jury Barnes' grand jury testimony which was not in ...