Swygert, Chief Judge, and Duffy and Castle, Senior Circuit Judges. Swygert, Chief Judge (concurring in part).
DUFFY, Senior Circuit Judge.
This is the third time that an appeal in the case at bar has been before this Court. Our previous decisions in this case are reported at 367 F.2d 698 (October 4, 1966) and 402 F.2d 380 (August 15, 1968).
The indictment herein contained twenty-eight counts. The first twenty-seven counts charged substantive violations of the mail and wire fraud statutes (18 U.S.C. §§ 1341, 1343). The twenty-eighth count charged a conspiracy to commit the substantive counts.
After a jury trial, all appellants were convicted on the conspiracy count and each appellant was convicted on certain of the substantive counts.
The Court directed a judgment of acquittal of all defendants on counts 2, 5, 11, 26 and 27. The Court granted the motion of the Government to dismiss counts 10 and 18.
Upon appeal (first appeal) the judgments of convictions were affirmed by this Court with one judge dissenting. On that appeal a petition to this Court for a rehearing en banc was denied, with two judges of the entire Court dissenting.
In response to a petition for a Writ of Certiorari (No. 1003, O.T.1966), the Government disclosed that on December 2, 1963, it had overheard a conversation between defendant Burris and one Benjamin Sigelbaum at the latter's office in Miami, Florida, in which Burris discussed certain matters at most peripherally relevant to this case and which were neither introduced in evidence nor used as a basis for any investigative leads.*fn1
The Supreme Court remanded the case to the District Court for a hearing to determine whether that or any other electronically overheard conversations had tainted any of the convictions. Hoffa et al. v. United States, 387 U.S. 231, 87 S. Ct. 1583, 18 L. Ed. 2d 738 (1966).
The District Court was instructed by the Supreme Court that if it found taint from any such intercepted conversations, it was to direct a new trial as to the particular defendant whose conviction was thus found to be infected. If the District Court found no taint, it was instructed to enter final judgments of convictions. 387 U.S. at page 234, 87 S. Ct. 1583.
The Supreme Court expressly limited the issue to be presented when it stated: "In such proceedings, the District Court will confine the evidence presented by both sides to that which is material to questions of the content of this and any other electronically eavesdropped conversations, and of the relevance of any such conversations to petitioners' subsequent convictions." 387 U.S. at pages 233-234, 87 S. Ct. at page 1584.
An evidentiary hearing was held before the District Court. That Court found that the Government had prior knowledge of all the information revealed by the Burris-Sigelbaum conversation. United States v. Hoffa, 273 F. Supp. 141, 143-144 (N.D.Ill., 1967). The Court also found that none of the convictions of any of the other defendants was tainted.
At the hearing before the District Court, the Government also tendered to the Court for an in camera inspection, the records of nine additional overhearings of conversations in which various of the defendants were possible participants. After inspection, the District Court found the tendered records consisted of "* * * extremely brief overhearings that contain no information either remotely or peripherally relevant to the transactions and evidence on which these defendants were indicted and convicted." (273 F. Supp. at page 143).
There was an additional finding by the District Court that defendants had failed to establish that the Government possessed any additional and unproduced records of electronically overheard conversations which ...