Appeal from the United States District Court for the Southern District of Illinois, Alton Division No. A-CR-74-12 ROBERT D. MORGAN, Judge.
Clark, Associate Justice (Retired),*fn* Stevens, Circuit Justice,*fn** and Grant, Senior District Judge.**fn**
GRANT, Senior District Judge.
The appellants were charged in a 58-count indictment which alleged one count of conspiracy against all defendants, in violation of 18 U.S.C. § 371, and 57 counts of substantive offenses, in violation of 18 U.S.C. §§ 659 and 2. Each defendant was not charged in each substantive count; some defendants were charged with as many as 18 substantive counts, while others were charged with only two. All charges related to the theft and disposition of property being transported as interstate freight through the Terminal Railroad Yards in Madison, Illinois, during a period from May 1, 1971, through October 12, 1973. After trial, all defendants were convicted of the conspiracy count, and all defendants were convicted of at least one of the substantive counts in which they were named. The appellants received sentences ranging from a maximum of 22 years to a minimum of four years.
Appellants have now instituted the present appeal in which they challenge their convictions in the court below. In support of their appeal, appellants have raised a myriad of issues for this Court's consideration. This Court has embarked upon an extensive review of all of the issues raised by appellants in their briefs and in oral argument. However, because we are convinced, on the basis of the record, that many of the issues herein presented are clearly without merit, this opinion will discuss only those matters which have impressed the panel as being substantial enough to require extensive treatment. Having considered all of the issues presented, and for the reasons stated below, we affirm the convictions of the appellants in the district court.
I - ELECTRONIC SURVEILLANCE
Prior to trial, it was learned that the Terminal Railroad Police at the Madison Yard had engaged in extensive electronic surveillance in which conversations between and among several of these defendants had been intercepted. The district court held a two-day hearing on defendants' several motions to produce and to suppress the fruits of that surveillance. It developed during that hearing that, although no true logs were kept to monitor the three yard office extensions, a piece of paper was kept at each of the three extensions on which notes were made by the persons who used the monitor, one of which was William S. Wagner, then Chief of Police for the Terminal Railroad Association. Unfortunately, all tapes and notes were subsequently destroyed by Chief Wagner prior to his retirement in late 1973. At the conclusion of the hearing, the court below denied defendants' motions to suppress. In this appeal, appellants contend that the district court erred in so ruling because the government's disclosure of the information obtained by the wiretap was grossly inadequate and in violation of 18 U.S.C. § 2518(8)(a), which reads, in pertinent part, that: "The contents of any wire or oral communication intercepted . . . shall, if possible, be recorded on tape or wire or other comparable device. * * * They shall not be destroyed except upon an order of the issuing or denying judge . . . ." Based on the destruction of the material which occurred herein, appellants argue that there has been a total failure to comply with the provisions of the above statute.
Appellants further argue that the court below erred in failing to find that all defendants were "aggrieved persons" under 18 U.S.C. § 2510(11). In any event, appellants maintain that in the instant case the electronic surveillance upon them violated their reasonable expectation of privacy under the Fourth Amendment to the Constitution.
In response to these claims, the appellee, although conceding that there were irregularities involved as to the surveillance, nonetheless maintains that it met its initial disclosure obligation by means of written disclosures and by making certain witnesses available for examination by defendants, thereby affording defendants the opportunity to develop any indication of taint that might have existed. Further, appellee contends that appellants herein failed to meet their burden of showing that a substantial portion of the case against them was tainted. In any event, appellee argues that the evidence which it adduced, even if taint was demonstrated, was derived from a legitimate independent source; and finally, that any existing taint was sufficiently attenuated when witness Joel Koen made a free and voluntary choice to cooperate with the government in its prosecution of the case. It is argued, then, that the court below properly ruled that the illegal surveillance by the Railroad Police did not require suppression.
We turn initially to a discussion of the ramifications of 18 U.S.C. § 2518(8)(a). As noted earlier, it would appear that the underlying purpose of the statute is to insure an adequate disclosure of the contents of any and all intercepted communications. Alderman v. United States, 394 U.S. 165, 183, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1967). In this regard, it has been held that where the tapes of monitored conversations have been destroyed, substitutes (such as logs) have been found to be sufficient under certain circumstances. United States v. Giordano, 440 F.2d 449, 451 (6th Cir. 1971). We must keep in mind, nevertheless, that where, as here, there has been a destruction of evidence, the interest of fair play demands that it must not be impossible for a defendant to carry his burden of demonstrating taint at the taint hearing. Accordingly, we are compelled herein to "strictly scrutinize the government's claim of independent source." United States v. Huss, 482 F.2d 38, 48 (2d Cir. 1973). As noted in Alderman, supra, 394 U.S. at 183, although petitioners must initially go forward with specific evidence demonstrating taint, the United States in a case where (as here) an illegal search is involved, has the ultimate burden of persuasion to show that its evidence is untainted. This leaves ample opportunity to the government to convince the trial court that its proof had an independent origin.
Although we do not condone the activity of the private railroad police in the destruction of the material pertaining to the monitored conversations, we are convinced, first of all, that even though said material was destroyed, the record herein adequately demonstrates, and the district court so found in its "informed discretion, good sense, and fairness"*fn1 that, under the particular circumstances of this case, the government met its disclosure obligations under Alderman and Giordano, supra, and United States v. Balistrieri, 436 F.2d 1212 (7th Cir. 1971), cert. denied, 402 U.S. 953, 29 L. Ed. 2d 124, 91 S. Ct. 1620 (1971). Initially, we note that at the two-day evidentiary hearing on the electronic surveillance issue, the government made available for examination some eleven witnesses who had some connection - in some instances, even personal knowledge - with respect to the surveillance that took place within the Madison Yard complex during the time period in question. These witnesses included two F.B.I. agents who participated in the investigation of the electronic surveillance, the F.B.I. agent in this case, as well as two undercover agents who had been instrumental in developing evidence in the case. Also available for examination by defendants were the three persons who used the monitor, Inspector James Lockett, Lt. James Davis, and Chief Wagner. Under these circumstances, although the defendants admittedly lacked the benefit of tapes and/or memoranda upon which to attack the nature of the surveillance which was conducted, we conclude that the availability of these witnesses afforded the defendants sufficient information as to the character and totality of the surveillance involved herein so that they might be able to go forward to show taint. Needless to say, we are not convinced that defendants met their burden in this regard. Nevertheless, as noted above, in such a situation it was then incumbent upon the government to meet the ultimate burden of persuasion and show that its evidence was untainted. Alderman, supra, 394 U.S. at 183. This burden which devolved upon the government, we believe, was satisfied when appellee demonstrated that it obtained its basic evidence from the witness Joel Koen - who, as an eyewitness to the events that transpired herein, made a voluntary choice to divulge much of the information upon which the government's case rested. Wong Sun v. United States, 371 U.S. 471, 491, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); United States v. Marder, 474 F.2d 1192, 1196 (5th Cir. 1973); United States v. Hoffman, 385 F.2d 501, 504 (7th Cir. 1967). Further, we have no doubt that the potential of Koen as a witness and/or defendant was not learned solely from the overheard conversations. Rather, it is totally consistent in the record that information as to the significance of Koen as a witness was discovered through the efforts of F.B.I. Agent David True who, it appears, had no knowledge of the wiretap, during his investigation of and direct contact with many defendants, including Ronald Ridgeway and William Ryan. Accordingly, since it is apparent that the government's source of information was indeed wholly independent of the illegal surveillance, it is clear that any alleged taint was completely attenuated thereby. Nardone, supra, 308 U.S. at 341.
As to the appellants' argument that the court below failed to find that all defendants were "aggrieved persons" under 18 U.S.C. § 2510 (11), we note that the trial court found that only defendants Nordstrom, Frederick, and possibly Ryan were aggrieved parties and that the other seven defendants lacked standing to seek suppression. We need not tarry long over this issue, however, in light of our conclusion immediately above that suppression was not required under the circumstances of the instant case. Accordingly, the question of whether or not the district court correctly determined that three of the defendants had standing and seven of them did not need not be addressed by the panel at this juncture.
II - INSTRUCTION ON REASONABLE DOUBT
When the court below gave its charge to the jury, it included the following instruction on burden of ...