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IN RE DELLINGER

April 4, 1973

IN THE MATTER OF DAVID T. DELLINGER ET AL.


The opinion of the court was delivered by: Gignoux, District Judge.

  MEMORANDUM OF OPINION AND ORDER OF THE COURT

At the conclusion of their 1969 trial on Federal Anti-Riot Act and related conspiracy charges (18 U.S.C. § 2101 and 371), the trial judge, acting under Fed.R.Crim.P. 42(a), summarily convicted seven of the defendants and their two trial attorneys (the nine defendants herein) of contempt of court in violation of 18 U.S.C. § 401(1).*fn1 On May 11, 1972, the Court of Appeals reversed all nine convictions and remanded certain of the contempt specifications for trial before another judge. In re Dellinger, 461 F.2d 389 (7th Cir. 1972).*fn2 On November 21, 1972, the Court of Appeals reversed the convictions of the five original defendants who had been convicted on substantive charges, remanding the charges for a new trial if the government elected so to proceed. United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972). The government has since elected not to proceed with its substantive case.*fn3

Presently before the Court are four pretrial motions: defendants' motion to dismiss, defendants' motion for a jury trial, defendants' motion for exculpatory material, and defendants' motion for disclosure of electronic or other surveillance. All have been fully briefed and argued.

I

Defendants' Motion to Dismiss

In their brief on appeal, defendants urged the Court of Appeals to exercise its supervisory power and dismiss the pending contempt charges on the ground that the conduct of the trial judge and the prosecutor toward the defendants was such that a continuance of the prosecution would further undermine the integrity of and regard for the judicial system, and therefore would not be in the public interest. The Court of Appeals, however, rejected the argument. In concluding his opinion, Judge Cummings stated:

    After careful consideration of the arguments of
  appellants and amici curiae, in our judgment,
  except as to those legally insufficient, none of
  the charges merits dismissal "in the interests of
  justice." In the words of Mr. Justice Cardozo,
  "Justice, though due to the accused, is due to the
  accuser also." Therefore, the contempt convictions
  of appellants are reversed and remanded for further
  proceedings not inconsistent herewith. In re
  Dellinger, supra, 461 F.2d at 401 (footnotes
  omitted).

Defendants now move a second time for a dismissal, again on the ground that a continuing prosecution would not be in the public interest. Their basis for renewing their motion is that three events have occurred subsequent to the May 11, 1972 opinion of the Court of Appeals remanding this matter for trial, which now furnish an independent basis for a determination that the public interest would not be served by a continuance of this prosecution. Cf. United States v. Barnett, 346 F.2d 99 (5th Cir. 1963). Specifically, the events are: (1) the government's election on November 17, 1972 to dismiss the contempt charges against their former codefendant, Bobby G. Seale, rather than permit inspection of the contents of a surveillance log as required by the Court of Appeals as a condition to further prosecution of Seale in the companion case of United States v. Seale, supra, 461 F.2d at 364-366; (2) the Court of Appeals' reversal of the substantive convictions of five of the present defendants on November 21, 1972 in an opinion which included the finding that "the demeanor of the judge and prosecutors would require reversal if other errors did not." United States v. Dellinger, supra, 472 F.2d at 391; and (3) the Supreme Court's determination on June 19, 1972 in the case of United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), that the President, acting through the Attorney General, is without power to authorize electronic surveillance in internal security matters without prior judicial approval.

The Court will treat separately of the effect of each of these events on the present proceedings.

A. The Dismissal of the Contempt Charges Against Seale. In its opinion reversing Seale's contempt conviction, the Court of Appeals found that Seale had standing to entitle him to inspect a portion of one of four surveillance logs relating to Seale's contempt conviction, which the Court determined, after an in camera inspection, recorded an unlawful overhearing of a communication from a lawyer to Seale, in violation of Seale's Sixth Amendment right to the assistance of counsel. United States v. Seale, supra, 461 F.2d at 364-366. Accordingly, the court held that following remand the government must either permit Seale to inspect the portion of the log in question or "[i]f the Government is unwilling to permit such inspection, then the contempt proceedings against Seale must be dropped." Id. at 366. At the preliminary conference before this Court on November 17, 1972, the government formally moved to dismiss the contempt charges against Seale for the reason that "it would be inimical to our national security interests to disclose the contents to the defendant as required." The motion was granted, without objection.

Defendants argue that in dismissing the contempt charges against Seale rather than permit his inspection of the surveillance log, the government has revealed a plan to "protect its own lawlessness," which the Court ought not to condone. As the Court of Appeals has held, however, these defendants have no standing to complain about any allegedly illegal surveillance as to Seale. In re Dellinger, supra, 461 F.2d at 392. Furthermore, the legal remedy that the courts have given to a defendant subjected to unlawful surveillance is not outright dismissal, but disclosure of the results of the surveillance and suppression of any evidence obtained or tainted thereby; dismissal is required only if the government elects not to disclose. Alderman v. United States, 394 U.S. 165, 181, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. United States District Court, supra, 407 U.S. at 324, 92 S.Ct. 2125. Seale was provided this relief in the present case: in compliance with the Court of Appeals' mandate, the government has elected to dismiss the charges against him. The law requires no more. Nor is there any basis for questioning the determination of the government that national security interests preclude disclosure of the Seale log.

The Court of Appeals specifically held that "the Seale logs require neither reversal nor dismissal of the contempt charges against appellants." In re Dellinger, supra, 461 F.2d at 392. This Court agrees.

The government's election to dismiss the contempt charges against Seale affords no new ground for a dismissal of the contempt charges against these defendants.

B. The Reversal of the Substantive Convictions in United States v. Dellinger. In reversing the Anti-Riot Act convictions of five of the defendants, the Court of Appeals was indeed critical of the conduct of the trial judge and the prosecutors during the trial. United States v. Dellinger, supra, 472 F.2d at 385-391. Observing that "we are unable to approve the trial in this case as fulfilling the standards of our system of justice," id. at 385, the court concluded that "the demeanor of the judge and prosecutors would require reversal if other errors did not." Id. at 391. Defendants urge that since this determination of judicial and prosecutorial misconduct is now a matter of judicial record, the present contempt charges should be dismissed. There are two aspects of their argument. First, defendants say "it is clear that when the Circuit Court decided the contempt case it had not fully evaluated the record in this case" as regards judicial and prosecutorial misconduct. Second, they assert that the misconduct of the judge and prosecutor, as determined by the Court of Appeals, was so egregious as to render further prosecution of defendants unwarranted.

As to defendants' first point, it cannot be presumed that the Court of Appeals, the identical panel of which rendered all three of the decisions deriving from the original trial, did not until it rendered its decision in the substantive case evaluate the record in terms of judicial and prosecutorial misconduct. In deciding the contempt cases, the court was required to determine whether any of the contempt specifications did not amount to contempt as a matter of law. The court necessarily had to analyze the contempt charges in the context of the entire record, and its exhaustive review of the charges makes clear that it did so. In re Dellinger, supra, 461 F.2d at 397-401; United States v. Seale, supra, 461 F.2d at 366-371.

With respect to defendants' second point, the same argument was presented to and rejected by the Court of Appeals when it remanded the present contempt charges for trial and determined that, except as to those it had found to be legally insufficient, "none of the charges merits dismissal `in the interests of justice.'" In re Dellinger, supra, 461 F.2d at 401. To say that this proceeding should be dismissed because defendants "were at all times acting in a purely responsive manner" and "their conduct was in response to stimuli created by the prosecution and the judge" is to ignore the specific holding of the Court of Appeals in this case:

    As we made clear in United States v. Seale,
  impropriety on the part of the trial judge cannot
  justify or excuse contemptuous conduct. However,
  judicial (or prosecutorial) provocation is to be
  considered by the new hearing judge in
  extenuation of the offense and in mitigation of
  any penalty to be imposed. In re Dellinger,
  supra, 461 F.2d at 401.

Defendants' argument also disregards the explicit language of the Court of Appeals in ruling upon the contempt charges against Seale:

  We note only that the standards of proper
  courtroom decorum are not altered and should not
  be applied differently because a trial may be
  characterized as political or because
  improprieties may be said to spring forth as if a
  "natural human response." Were it not for the
  misconceptions apparent in this case, we would
  have ...

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