United States of America v. Michael Lemonakis, Appellant.united States of America v. Paul Enten, Appellant, 485 F.2d 941 (D.C. Cir. 1973)

* * *

The surveillance was authorized by the President of the United States, acting through the Attorney General in the exercise of his authority related to the nation's foreign affairs as set forth in 18 U.S.C. § 2511(3).29 (Emphasis added).

Following its in camera examination of the exhibit, the District Court denied by order appellant's motion for discovery and inspection. Conforming to the requirement it found in Alderman v. United States, 394 U.S. 165, 186, 89 S. Ct. 961, 973, 22 L. Ed. 2d 176 (1969), which set forth the standards and procedures to be followed by a trial court in determining whether any evidence used to support the convictions there challenged was the product of an illegal electronic surveillance, the court also issued a memorandum opinion which was to constitute its findings of fact and conclusions of law. The opinion characterized the issue before the court as "whether the Attorney General's authorization of a wire tap for the purpose of gathering foreign intelligence information violates the Fourth Amendment," and found the warrantless surveillance at issue to be lawful for the reasons expressed in the unreported opinion of the District Court in United States v. Clay30 and its affirmance on review, 430 F.2d 165, 172 (5th Cir.), rev'd on other grounds, 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810 (1971). Having so found, the court concluded that disclosure would be unnecessary, relying upon Giordano v. United States, 394 U.S. 310, 313, 89 S. Ct. 1163, 22 L. Ed. 2d 297 (1969). Appellant contends that the order denying his motion and the court's decision-making procedures related to it were error.

The issue of whether the President may, consistently with the Fourth Amendment, authorize through the Attorney General a national security electronic surveillance to gather foreign intelligence information without first obtaining a judicial warrant, was expressly reserved by the Supreme Court in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 308, 322-323, 92 S. Ct. 2125, 32 L. Ed. 2d 51 (1972).31 Neither do we find it necessary to address this issue definitively in order to decide the case before us, for the reason that the logs supplied by the Department of Justice under seal are part of the record on appeal, albeit under seal and available only for in camera inspection by the court; and we-that is to say, the three judges of the panel acting together in camera-have examined those documents.

That was, we hasten to add, a far from burdensome task, because the points of contact between Enten and the surveillance operations in question were as few in number as they were ephemeral in relation to this case. We were readily able to determine beyond all peradventure that (1) the surveillance itself was strictly within the framework of executive authorization of foreign intelligence gathering (2) neither Enten nor physical premises in which he had any interest was in any way the object of it, and (3) the occasions, and the contents, of his appearance in the logs have no relevance whatsoever to the circumstances, the issues, or the evidence involved in his having been criminally charged, tried, and convicted.

The care we have taken to limit access to the logs upon this appellate examination of them suggests our own awareness of the significant differences that exist between foreign intelligence operations and information, on the one hand, and that of the domestic variety, on the other. It is not in the national interest for revelation of either the existence or the product of the former to extend beyond the narrowest limits compatible with the assurance that no injustice is done to the criminal defendant accidentally and peripherally touched, as was Enten. In a field as delicate and sensitive as foreign intelligence gathering, we think there is every reason why the court should proceed in camera and without disclosure to explore the issue of whether the contents of a foreign intelligence surveillance have any relevance to a criminal prosecution plainly unrelated as to subject matter. In a context where, as here, external circumstances indicate such an improbability that the criminal defendant is likely to be adversely affected, we think that

it is permissible . . . that information vital to the national security . . . be examined only in camera to determine its relevance or materiality, although . . . [in other circumstances] all . . . information that may be the subject of a motion to suppress must be shown to the defendant or his counsel so that its materiality can be determined in an adversary hearing.

Alderman, supra, 394 U.S. at 201, 89 S. Ct. at 981 (Fortas, J., concurring in part and dissenting in part). See also the procedure followed in Russo v. Byrne, supra note 31; Title VII, Organized Crime Control Act of 1970, 18 U.S.C. § 3504(a) (2) (1970); Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(10) (1968).

In the present circumstances the task of ascertaining relevance is not "too complex, and the margin of error too great, to rely wholly on the in camera judgment" of this court "to identify those records which might have contributed to the Government's case." Alderman, supra, 394 U.S. at 182, 89 S. Ct. at 971. At the same time, the potentiality for needless damage to fragile international relationships-inherent and inescapable as the circle of disclosure widens -is correspondingly greater. We, therefore, find no basis for disturbing appellant Enten's convictions by reasons of this claim of error.

IV

Appellants' remaining claims which merit discussion concern challenges to their convictions based upon asserted weaknesses or anomalies in the Government's evidence. Most serious among them is appellant Enten's claim that he was denied due process of law by the failure of the Government to produce until after trial an exculpatory memorandum of a May 13, 1971 interview between Scouloukas and a United States Attorney. In it Scouloukas stated that he did not approach Enten with regard to joining the conspiracy until after the first burglary had been accomplished, contrary to what he had told the grand jury on August 26, 1970.

Enten had, both before and during trial, moved for production of documents as required by the Jencks Act, 18 U.S.C. § 3500 (1970), and Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The Government agreed to these requests, and pursuant thereto and by pretrial order of the District Court, all materials in the so-called "Scouloukas file" deemed appropriate for production by the Government, whose good faith we do not question, was provided to appellant.32 In preparing its brief on appeal, the Government discovered the memorandum in question, and, after bringing it to the attention of this court and appellant, moved at oral argument to vacate Enten's conviction on, and to remand the case to the District Court to dismiss, the counts of burglary (count 2), grand larceny (count 3), and interstate transportation of stolen property (count 4) arising out of the first burglary, see note 1 supra; and conceded that the remand should include resentencing on the remaining counts. We hereby grant that motion and include for vacation of the conviction and remand for dismissal count 5 of the indictment, another charge of interstate transportation of stolen property from that same burglary.

In view of his proper request for such information, appellant complains now that, irrespective of the absence of bad faith, the memorandum that was withheld was "material" within the meaning of Brady, supra, 373 U.S. at 87, 83 S. Ct. 1194. He bases this claim on the assertion that the "main thread" of the prosecution was that appellant "was the mastermind and financier" of the conspiracy,33 and that the memorandum establishes that appellant "was only an afterthought," concluding that its non-disclosure to the defense constituted prejudice that cannot be limited to the convictions which that non-disclosure permitted. We do not agree.

As the Supreme Court recently stated, a finding of "materiality" of the undisclosed evidence is required before a new trial is necessitated. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972). While the Court has not yet provided a definition of such materiality, Giles v. Maryland, 386 U.S. 66, 73-74, 87 S. Ct. 793, 17 L. Ed. 2d 737 (1967), the rule in this jurisdiction is that reversal is called for when, in the context of the case at bar, the undisclosed evidence "might have led the jury to entertain a reasonable doubt about appellant's guilt." Levin v. Katzenbach, 124 U.S.App.D.C. 158, 363 F.2d 287, 291 (1966), on appeal after remand, Levin v. Clark, 133 U.S.App.D.C. 6, 408 F.2d 1209, 1212 (1967).

Unlike the possibility of impeachment of the prosecution's key witness which was foreclosed by the Government's non-disclosure in Giglio, 405 U.S. at 154, 92 S. Ct. 763, and Levin, 363 F.2d at 292; 408 F.2d at 1215; cf. United States v. Bryant, 142 U.S.App.D.C. 132, 439 F.2d 642, 645, 648 (1971), in the context of this case the issue of whether Enten was a member of the conspiracy at the time of the first of the six burglaries named in that part of the indictment against him was not so important a feature of the prosecution that its removal might have resulted in the creation of a reasonable doubt concerning appellant's guilt of the five later burglaries and fifteen other counts of which he was also convicted, see note 1 supra.

We do not think our application of the standard, speculative though it may be, is harsh under the circumstances of this case for, as two members of this panel stated in denying rehearing en banc in Levin, supra, this is not one of "those particular situations where a fair trial may have been significantly blurred" by the nondisclosure. 408 F.2d at 1222. See Xydas v. United States, 144 U.S.App. D.C. 184, 445 F.2d 660, 667, cert. denied 404 U.S. 826, 92 S. Ct. 57, 30 L. Ed. 2d 54 (1971). Appellant's emphasis on the prosecution's view of Enten as the "mastermind" of the conspiracy is unpersuasive, first, because our careful examination of the lengthy record before us reveals the prosecution did not present its case in that light during trial,34 and second, to the extent that Enten's role was presented as central to the conspiracy in a financial sense, his non-participation as to the first burglary would surely have had minimal influence on the likelihood of his involvement in the numerous remaining burglaries charged,35 and was as well a role fully supported by the evidence brought forth regarding those later burglaries.36

Thus, proper disclosure of the memorandum would not have affected the great portion of the Government's presentation in either its characterization of appellant or the evidence brought forth against him, nor, had those minimal alterations in the case been made, could they have led the jury to entertain the kind of doubt that would compel us to reverse. Aside from the absence of suggestion from appellant as to how the conduct of his defense might have been altered to his advantage, we can imagine no significant addition to his basic position that he received the stolen property without guilty knowledge, see note 18 supra, that timely provision of the memorandum would have permitted. Whatever change counsel for appellant might have made would not, in our view, have been influential in the jury's verdict.

Of the fifteen remaining counts of which appellant Enten was convicted, he raises objection to three more which arise out of a single burglary. He complains that he cannot be convicted of both burglary (count 6) and grand larceny of the stolen property (count 7) and receiving that property in Maryland knowing it was stolen and bringing it into the District of Columbia (count 8), relying on Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961). Enten was sentenced to not less than five nor more than fifteen years imprisonment on each of six counts of burglary, to run concurrently; to not less than forty months nor more than ten years on the single count of receiving stolen property; and to not less than forty months nor more than ten years on each of six counts of grand larceny, to run concurrently. All the foregoing sentences are to run consecutively with the sentence imposed for the conspiracy count, which was imprisonment for not less than twenty months nor more than five years.

Ignoring the convictions on the counts of burglary and grand larceny for the instant offense, and the convictions stemming from the first burglary which we earlier ordered vacated, appellant still stands properly convicted of four counts each of burglary and grand larceny for which identical concurrent sentences were imposed. Since it is the convictions for grand larceny and burglary on the one hand, and receiving stolen property on the other, that are mutually exclusive, the former sentences being the longer, we think that giving appellant the benefit of the doubt concerning which counts a properly instructed jury would have convicted him of, and vacating his conviction as to the longer counts, suffices "to cure any prejudices resulting from the trial judge's failure to instruct the jury properly," which failure is conceded by the Government. Milanovich, supra, 365 U.S. at 555, 81 S. Ct. 728.37

The judgment of conviction on the fourteen counts in No. 71-1745 is affirmed. The convictions on counts 2, 3, 4, 5, 6 and 7 in No. 71-1774 are vacated and remanded for dismissal, and that case is remanded for resentencing on the judgment of conviction on the remaining thirteen counts, which we affirm.

It is so ordered.

Sitting by designation pursuant to Title 28, U.S.Code, Section 294(d)

Appellant Lemonakis was originally charged with fifteen offenses by the indictment of January 26, 1971, subsequently reduced to fourteen pursuant to the Government's motion during trial to dismiss one of the counts, and was convicted of the remaining fourteen as follows: one count of conspiracy (18 U.S.C. § 371), five counts of burglary (22 D.C.Code Sec. 1801), five counts of grand larceny (22 D.C.Code Sec. 2201), and three counts of interstate transportation of stolen property (18 U.S.C. § 2314). Appellant Enten was originally charged with twentytwo offenses, subsequently reduced to nineteen pursuant to the Government's motion during trial to dismiss three of the counts, and was convicted of the remaining nineteen as follows: one count of conspiracy, six counts of burglary, six counts of grand larceny, five counts of interstate transportation of stolen property, and one count of bringing stolen property into the District of Columbia (22 D.C.Code Sec. 108). Six of the Enten convictions-two of grand larceny, two of burglary, and two of interstate transportation of stolen property-are to be vacated, and all but one count each of burglary and grand larceny are to be dismissed, on the remand we order for resentencing. See Part IV of the opinion, infra

Of the two other persons charged in the same indictment, one Alfred Dolder, who testified at trial as a Government witness, pleaded guilty to one count each of this and an earlier indictment against him, and was sentenced following appellants' trial; the other, Harry Schmidt, remained a fugitive until his death on December 30, 1971. This January indictment superseded an earlier fourteen-count indictment, brought against these same four persons on October 30, 1970.

Scouloukas was also questioned in connection with his possible involvement in the armed robbery of Capitol Cadillac garage, an offense during which Alfred Dolder was seriously wounded and for which he was convicted in May, 1970, causing him to retire from the conspiracy with which he was charged, supra note 1

Testimony by the police investigators at trial reveals that they had also apparently obtained information from an antique dealer in New York City, who described an article shown to him by Enten which fit the description of an item stolen in the Charles burglary

The Government's theory of the case respecting the burglaries adopted the view that there were two separate conspiracies formed to carry out the criminal purpose. Each conspiracy involved the same persons who planned and carried out the burglaries (Scouloukas, appellant Lemonakis, Dolder and Schmidt); they differed only in the person(s) selected to help dispose of the property after it was stolen. The first conspiracy employed as a "fence" appellant Enten; he and the other co-conspirators, less Scouloukas who had been given testimonial immunity, were indicted as stated in note 1, supra

The second conspiracy, embracing burglaries of the remaining locations identified by Scouloukas, involved the same four conspirators, who used as Enten's counterparts in helping to dispose of the contraband Harold Schreiber, a New York antique dealer, and Giovanni Perelli, who acted as a go-between, both of whom appeared as Government witnesses in appellants' trial; and Jacob Maislish and Fred Schatzmann. The members of this conspiracy, again less Scouloukas, were separately indicted on the same day (October 30, 1970) in which the superseded indictment was returned against members of the first conspiracy.

See note 4, supra

See note 1, supra

"It cannot be seriously doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him." Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923 (1965)

Of three motions to suppress the recordings made prior to trial and Scouloukas' suicide, Lemonakis early relied upon statutory grounds and later followed Enten's assertion of a violation of his right to counsel. At trial and after the suicide their motion was orally renewed and discussed on five separate days by counsel for Enten, who asserted as new grounds (1) inaudibility of a portion of the recordings, (2) use of testimony from agents who monitored the conversations, and (3) provision to the jury of transcripts of the recordings. Scouloukas' unavailability was relied upon only to the extent that counsel asserted "a great deal of hearsay testimony from Scouloukas telling the [monitors] what actually went on" would likely appear in their testimony. The opinion then rendered denying the renewed motion thus mentions Scouloukas' death in this context, and permits the monitors' testimony principally by reference to United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971). Counsel for Lemonakis referred to the recordings and Scouloukas' hearsay only to support the introduction of both certain hearsay testimony by a Government witness, and the suicide note discussed infra. The court's agreement with the Government at the latter colloquy, again by reference to White, that Scouloukas' statements as presented by the monitors were not hearsay, accords with the issue addressed in its opinion. In sum, Lemonakis' present concern with the possibility Scouloukas' remarks were used to prove their content was not urged upon the trial judge in his consideration of their admissibility, but only in the attempt to introduce other hearsay evidence for the defense. This is consistent with both the statement to the jury in his behalf, made prior to the introduction of the recordings, that they contain nothing of any probative value concerning him, and the absence of this concern in his motion for a new trial, where he again relied on a right to counsel violation as well as the Fifth Amendment in objecting to the introduction of the recordings

Indeed, counsel for appellant Lemonakis conceded at trial that his client's recorded remarks would be meaningless without Scouloukas' remarks. Recorded conversations have been admitted in other contexts where the contents of the recordings were offered to establish matters other than their truth. See, e. g., People v. Feld, 305 N.Y. 322, 113 N.E.2d 440, 443 (1953) (despite implication of defendant, recordings admitted to show prior consistent statements of Government witnesses whose credibility defendant attacked); State v. Meyer, 37 Wash. 2d 759, 226 P.2d 204, 209 (1951) (despite implication of defendants, transcription of recording admitted to show rape victim mentally incapable of consenting to sexual intercourse)

The proposed Rules of Evidence for United States Courts and Magistrates which the Supreme Court, Douglas, J., dissenting, recently authorized the Chief Justice to transmit to the Congress, reported with advisory committee notes at 56 F.R.D. 183 (1973) (hereinafter Proposed Rules), provide in Rule 801(d) (2) (B) that:

A statement is not hearsay if . . . [t]he statement is offered against a party and is . . . a statement of which he has manifested his adoption or belief in its truth. . . .

See also 4 Wigmore, Evidence Secs. 1069-75 (Chadbourn rev. 1972).

The Proposed Rules, supra note 10, provide in Rule 403 that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . .

See Part II(c) infra. Our discussion there (1) accords the trial judge a broad discretion in the admission of evidence in the unique circumstances of this case, (2) establishes the relatively minimal inculpatory impact of the Scouloukas-Lemonakis recordings, (3) sets forth the further weakening of that impact by Lemonakis' efforts to impeach the absent Scouloukas, and (4) stresses as most important and illustrates the substantial independent evidence introduced not just in respect of the matters to which the recordings may be said to attest, but also regarding Lemonakis' guilt of the other offenses charged

As an example, the conversation recorded on August 20, 1970 contains the following colloquy:

LEMONAKIS: Well, how did your boy Paul get busted?

SCOULOUKAS: He told me he took a piece of jewelry down to the pawn shop; the antique dealer recognized it. [He called the police].

SCOULOUKAS: Now this is the story he tells me, he tells me that he told them . . . he got another piece resembling the piece he took down there and that's his cover, the stuff that came out of the big yellow house. Remember the big yellow house up on the hill?

Disregarding the jury's continuing knowledge of Scouloukas' attempt to elicit admissions and his disregard of the truth in doing so, as testimony revealed he had also done in making statements to the police; and even assuming "your boy Paul" refers to appellant; nevertheless Enten's asserted possession of a stolen piece of jewelry in no way implies he received the jewelry knowing it was stolen. Nor does it suggest Lemonakis' own belief that Enten had guilty knowledge since the jury knew from previous recordings that Lemonakis' reference to Enten was derived from information he had earlier gotten from Scouloukas. At oral argument counsel for appellant Enten appeared to concede these points, but maintained that the references to Enten were still unacceptably prejudicial. Under either claim we adhere to the analysis that follows.

We refer particularly to the damaging admissions made by appellant Enten as they appear in the monitored Scouloukas-Enten conversations, which include Enten's offer to Scouloukas for the latter to plead guilty to the offenses being investigated, leaving Enten, as the more capable of the two, free to pursue professional success and share the financial rewards with Scouloukas once the latter's imprisonment terminated. And see notes 35 and 36 infra

As concerns the potentially most damaging testimony, Enten's counsel acquiesced to its introduction and expressed reliance on prophylactic instructions. His counsel's objection to the potentially harmful introduction of another witness' testimony was sustained; and, in addition to only equivocal and brief references to one the jury might have believed was Enten, the final two witnesses whose testimony is complained of stated at trial that they knew only appellant Lemonakis, not Enten

We note in this regard the care the trial judge exercised in following, with respect to Enten's pretrial motion, the suggestion of the 1966 Amendment to the Rule that proposed evidence be inspected in camera prior to a ruling on such a motion. See Bruton, supra, 391 U.S. at 131-132, 88 S. Ct. 1820

Such defenses are best exemplified by DeLuna itself. There the defendant who was erroneously permitted at trial to comment on his co-defendant's (DeLuna) failure to testify attempted to put full blame for the narcotics offense at issue on DeLuna, contending the latter was the only person who knew narcotics were contained in the package both had handled

To illustrate this asserted antagonism, Enten points to what he sees as comparatively much stronger evidence linking Lemonakis to the conspiracy; and to Lemonakis' asserted antagonism toward Enten as demonstrated by the Lemonakis-Scouloukas recordings. Neither feature, accepted arguendo as true, results in the kind of inconsistency necessary to raise the dilemma present in DeLuna. Indeed, the principal argument in Enten's defense was that the Government failed to prove that Enten received the stolen property with knowledge of its stolen character. It was urged that such a failure would remove Enten from his membership in the conspiracy as charged and thereby exonerate him from all other crimes for which he was indicted. This defense does not point the finger of guilt at Lemonakis since Enten claims he received the stolen property from Scouloukas, not from his co-defendant. Enten's defense does not therefore result in such a conflict with Lemonakis' basic position (that he did not steal the property in question) that the jury would unjustifiably infer both were guilty. Robinson, supra, 432 F.2d at 1351. Nor does it result in Enten's need to comment on Lemonakis' silence such that a comment would be "integral" to Enten's defense. DeLuna, supra, 308 F.2d at 143. Finally, the disparity of evidence was not so damaging that an impermissible risk of transference of guilt to Enten was present. McHale v. United States, 130 U.S.App.D.C. 163, 398 F.2d 757, cert. denied, 393 U.S. 985, 89 S. Ct. 462, 21 L. Ed. 2d 447 (1968)

18a Appellant Enten alone, and for the first time on appeal, complains of the fact that the tapes given to the jury at its request during its deliberations contained conversations in addition to those which had been admitted into evidence. The record shows, however, that the parties were aware of this fact at the time, and, at the suggestion of both defense counsel, the judge instructed the jury to listen only to those portions of the tapes which had been in evidence. This was feasible for the jury to do because the prosecution had prepared a memorandum from which the jury could tell from the markings on the tapes the areas that involved conversations not in evidence; this memorandum was given to the jury and the jury was fully instructed in open court as to how to operate the tape recorder. Under these circumstances there is reasonable ground for belief that the 12 jurors would not deliberately, in each other's presence, disregard such an instruction; and this was presumably why trial counsel for both appellants professed themselves completely satisfied with this means of handling the matter.

As set forth earlier in the text, those activities were the questioning of Enten by the police pursuant to the grand jury's request, and the issuance of the subpoena to Lemonakis to testify before the grand jury concerning a possible conspiracy offense. It should be noted, however, that Scouloukas himself did not testify before the grand jury until August 26, 1970-six days after the last recorded surveillance

Appellants suggested at oral argument, though not in their briefs, the applicability of the Fifth Amendment privilege against self-incrimination to this challenge of the recordings. Kirby, supra, decided after submission of the briefs in this case, appears to suggest that aspect as the only substantial one of continuing viability present in Escobedo, supra, upon which case appellants placed heavy reliance. In this respect, we note that Johnson, supra, emphasizes that the Fifth Amendment facet of Escobedo (and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966)) is directed toward insuring, by the provision of the right to counsel in custodial interrogations, that suspects have an intelligent understanding of their rights whether coercion is overt and obvious, or otherwise. Absent that necessary element of compulsion, which is the case in the type of surveillance at issue, neither the Government's prior knowledge of the representation of appellants, nor the prior investigative activities involving appellants as suspects, engages the right to counsel to insure effectuation of the Fifth Amendment privilege. See, e. g., Hoffa v. United States, 385 U.S. 293, 304, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966). As we stated in Wallace, applicable with equal force in this context:

No danger of coercion compels police officers and courts to pick a peril-point in an investigation at which the right to counsel attaches to bar further undercover investigation.

412 F.2d 1101.

Although we have had occasion to comment on a prosecuting attorney's action in light of his ethical responsibilities, none of those cases presented the extension of such responsibility here urged. Ricks v. United States, 118 U.S.App.D.C. 216, 334 F.2d 964, 970 n.18 (1964) (in-custody, post-arrest police interrogation of suspect who had not retained counsel); Mathies v. United States, 126 U.S.App.D.C. 98, 374 F.2d 312, 316 (1967) (in-custody, post-arrest police interrogation of suspect without notifying his retained counsel). The factual circumstances present in these cases reveal their constitutional dimension, in terms of Fifth and Sixth Amendment guarantees relating to the right to counsel, which does not, as we have concluded, inhere in the instant case

ABA Code of Professional Responsibility (1970) provides under Canon 7 the Ethical Consideration that, in part,

[t]he legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person. . . . EC 7-18. (Emphasis added, footnote omitted);

and the Disciplinary Rule that, in part,

[d]uring the course of his representation of a client a lawyer shall not:

Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so. . . . DR 7-104. (Emphasis added, footnote omitted).

A review of the cases and materials that have noted objection to a prosecuting attorney's "communication" with a suspect without notifying the lawyer who represents him illustrates that, with the exception of the lower court case in Massiah as quoted in the text to follow, that "communication" has been in the form of custodial or post-indictment questioning of a criminal suspect by the Government's attorney, law enforcement officer, or retained psychiatrist. All involve undisguised Government inquiries pressed by official members of the prosecutorial effort at a point in time when their questions would be sharpened by the factual posture of the case against the suspect. United States v. Carlson, 423 F.2d 431, 440-443 (9th Cir. 1970); United States v. Four Star, 428 F.2d 1406 (9th Cir. 1970); Schantz v. Eyman, 418 F.2d 11, 13 (9th Cir. 1969); Coughlan v. United States, 391 F.2d 371, 376-378 (9th Cir. 1968) (Hamley, J., dissenting); United States v. Smith, 379 F.2d 628, 633 (7th Cir. 1967); Mathies, supra note 21; Lee v. United States, 322 F.2d 770, 777 (5th Cir. 1963); United States v. Ferguson, 243 F. Supp. 237 (D.D.C. 1965); Ricks, supra note 21; Note V, Criminal Law and Procedure, 20 Hastings L.J. 949, 958 (1969); Recent Development, 1968 Duke L.J. 816, 821-22; Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 Neb.L.Rev. 483, 601-604 (1963); Drinker, Legal Ethics 201-03 (1953)

In addition to his basic claim in this regard, Lemonakis also urges that the suicide note was impressed with sufficient indicia of reliability to qualify it as an exception to the hearsay rule. Whether taken as a separate ground for reversal or supportive of the due process claim to follow above, we do not agree. Insofar as appellant relies on the expanded nature of the exception relating to dying declarations found in Rule 804(b) (3), Proposed Rules, supra note 10, we note first that this claim would not appear available to him on appeal in view of the fact that he expressly denied its application three times at trial. Apart from that, the note was clearly not made with the belief that death was imminent, nor did it concern the cause or circumstances of what was believed to be impending death, both of which the Rule continues to require. 56 F.R.D. at 321, 326. And, if taken as a declaration against Scouloukas' penal interest-an interest of no moment to a dead man-Rule 804(b) (4) expressly requires corroboration not present here before such an exculpatory statement may be admissible. Finally, we cannot believe Scouloukas' interest against exposure to hatred, ridicule or disgrace, even if translated to his surviving family, is sufficient to meet the intent of that exception in Rule 804(b) (4)

Only twice did the conversations even generally refer to illegal acts charged, and both times Lemonakis negated his involvement. In the conversation referred to in note 13, supra, Scouloukas, making reference to the "stuff' from the big yellow house which he said was property the police thought Enten had, asked Lemonakis if he remembered "the big yellow house up on the hill" (presumably the Charles house). Lemonakis replied "I don't know. . . ." Earlier in the same conversation, Scouloukas asked whether Lemonakis remembered "The first load of stuff that we took out, me, you and Dolder." Lemonakis replied: "What the hell do I know."

In so holding we do not ignore three other factors that appeared to concern the trial judge as militating against introduction of the note. First, as we suggested above, had the note been admitted the Government would have been able to challenge its trustworthiness, specifically by the introduction of a conversation Scouloukas had shortly before committing suicide with the same woman to whom he addressed the suicide note. At trial the Government proffered the testimony of that woman which would have revealed that Scouloukas told her he then believed that Lemonakis was in the area to kill him-a proffer suggesting the involuntariness of the exculpation in the suicide note. While the proffered evidence was no reason to exclude the note, it does appear to weaken the note's value to the defense. Second, the feature of the suicide note expressing Scouloukas' concern for his family itself suggested reason to suspect fabrication of the exculpation of Lemonakis. The fact that he had come to the aid of Mrs. Scouloukas and her three children, when joined with Scouloukas' separate bond with Lemonakis as his cousin and long time associate, seem to indicate, as they did to the trial judge, feelings of gratitude and affection strong enough to prompt Scouloukas to attempt to exculpate Lemonakis in disregard of the truth. Finally, the trial judge expressed concern over the prejudice to appellant Enten's case because the Government might stress the note's failure to exonerate Enten. Although admission of the note was urged by Enten's counsel as well, he used the same argument separately to urge the court to permit Enten to testify as to assertedly exculpating conversations Enten had had with Scouloukas. The court's rejection of that argument to permit such testimony, not objected to here, may if done earlier have caused the potential prejudice of the note to outweigh Enten's reason for initially supporting its introduction

There was also strong evidence connecting Lemonakis to the burglaries themselves, and not just the conspiracy, aside from Dolder's testimony. Illustratively, persons from Lemonakis' place of employment in Pennsylvania testified that his employment records reflected his absence during nearly all of the offenses with which he was charged, including that attested to by Dolder. Carolyn Corey, who lived in Pennsylvania, whose brother was a co-worker of Lemonakis, and who was self-described as being "very friendly" with Lemonakis, testified that she stayed at Schmidt's Maryland apartment during part of the most concentrated period of burglaries, and that Lemonakis was there before, during, and after she was, and with her while Scouloukas was discussing the value of what appears to have been stolen property. Miss Corey further testified that Lemonakis gave her what was an item of contraband, seen at Schmidt's apartment by Perelli, and her brother confirmed that he saw the item in the Corey parental home. She stated that, having falsely represented to Lemonakis that she had been subpoenaed by the grand jury investigating the burglaries, she was told by him not to say anything; and that Lemonakis had requested that she ask her brother to obtain from his employer Lemonakis' time records referred to above. One of the witnesses who testified to seeing Lemonakis, Scouloukas, and Schmidt together at the latter's apartment also stated that at that time Scouloukas gave him contraband from one of the homes Lemonakis was charged with burglarizing, and that Lemonakis and Schmidt appeared to express disapproval of the gift. And with regard to the large amount of contraband returned to the authorities by Enten during trial, Lemonakis' fingerprint was found on a painting stolen during another of the burglaries charged against Lemonakis

The statute provides in relevant part that

(a) In any trial . . .

(1) Upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;

(2) disclosure of information for a determination if evidence is inadmissible . . . shall not be required unless such information may be relevant to a pending claim of such inadmissibility;

(b) As used in this section "unlawful act" means . . . the use of any electronic . . . device . . . in violation of the Constitution or laws of the United States. . . . (Emphasis added).

The provision cited, part of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1968), provides in relevant part that

Nothing contained in this chapter or in section 605 of the Communications Act of 1934 . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential 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. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power. (Emphasis added).

The extracted portion of that opinion reads in part that the District Court there was

aware, of course, of the abuses possible should an Attorney General authorize extensive wiretaps under the guise of collecting foreign intelligence information. But the court also recognizes that such investigations are, in many instances, vital to the maintenance of national security. The court agrees with the government's counsel that in determining whether to employ wiretapping the President or the Attorney General must make a judgment based on foreign policy considerations. It would not be feasible for the executive to attempt to bring to the court's attention all the factual and policy considerations supporting the decision. Moreover, it is the executive, not the judiciary, which alone possesses both the expertise and the factual background to assess the reasonableness of such a surveillance. From a purely practical standpoint, it is ridiculous to place on a United States Commissioner the burden of deciding what is and what is not a threat to national security. The court does not believe the judiciary should question the decision of the executive department that such surveillances are reasonable and necessary to the protection of the national interest.

That case invalidated warrantless electronic surveillance for domestic national security purposes. The Court was at pains to differentiate this activity from intelligence gathering in respect of foreign powers and external threats to national security, and noted that support had been voiced for the view that prior judicial authorization was not required in this latter area. See 407 U.S. at 322 n. 20, 92 S. Ct. 2125. See also the concurring opinion of White, J., in Katz v. United States, 389 U.S. 347, 364, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Compare the concurring opinion of Douglas, J., joined in by Brennan, J., in Katz, supra, 389 U.S. at 359-360, 88 S. Ct. 507. See also the opinion of Douglas, J., in granting a stay in Russo v. Byrne, 409 U.S. 1219, 93 S. Ct. 21, 34 L. Ed. 2d 30 (1972), and his dissent from the denial of the petition for certiorari in the same case, in which Brennan, J., also voted to grant the petition. 409 U.S. 1013, 93 S. Ct. 21 (1972)

In the last-mentioned case, which was an effort by a criminal defendant to prevent his prosecution from going forward, the Government conceded that a foreign intelligence surveillance had picked up conversations by one of the defense counsel. It made the logs available to the District Court, which examined them in camera and declared that they had no relevance to the case before it. The Ninth Circuit Court of Appeals, also with the logs available in camera (as was the Supreme Court on the subsequent petition for certiorari), declared that there was no standing to make the claim.

The file contained approximately twenty items, the bulk of which, including a 132-page memorandum of an interview with Scouloukas upon his resignation from the police force, memoranda of several subsequent interviews, his suicide note, a report in his own handwriting and the transcript of his grand jury testimony, were produced either before trial or during its first week. Given the voluminous nature of the file's contents and the court's own in camera examination of those contents to determine producibility, we cannot say the memoradum at issue was producible evidence which could not have escaped the attention of a diligent and fair-minded prosecutorial staff

Appellant cites the prosecution's pretrial characterization of himself as the ringleader of the conspiracy, Wash. Eve. Star, Nov. 2, 1970, Sec. B, at 1; and its opening statement at trial that the evidence would reveal a conspiracy with appellant "at the top as the fence mastermind."

As an example we note that in the nearly 100 pages of transcript containing the Government's closing and rebuttal arguments, only one brief description of the nature of Enten's role was provided, and that was as a "criminal entrepreneur, the financier of this conspiracy, the man who made two-thousand per cent on each and every purchase that he made from the burglars." Later the Government stated:

The issue in this case . . . is a very simple one. Did [Enten] enter into an arrangement with Scouloukas and Schmidt to burglarize houses, to steal, and to fence the stolen goods?

As mentioned earlier, Alfred Dolder testified that he, Scouloukas, Lemonakis and Schmidt participated in the first burglary in question on or about March 26, 1969. He stated that up until that time they did not have a fence to whom they could sell the stolen goods, but that after the burglary Scouloukas told him he thought he had a fence in "an interior decorator in Georgetown," with whom Scouloukas was going to meet the next day. Carolyn Corey, see note 27 supra, testified for the Government that during her stay at Schmidt's Maryland apartment in August 1969, she had occasion to hear Scouloukas complain that he was unable to cash a check he had received from an "interior decorator" for doing some work for him. We need not set forth further evidence, such as that contained in the Enten recordings, supra note 14, to illustrate that the jury would not likely be shaken in its belief of Enten's guilt as to other offenses charged were it to have known that Enten had not been a part of the conspiracy for that first burglary. This is especially so considering Enten's uncontested possession of a substantial amount of contraband which he turned over to the authorities on July 15, 1971, without being able to produce any documentation regarding its purchase, and abundant testimony showing Enten's possession of other contraband throughout the post-burglary period

The financing function is inherent in the activities of one who operates as a fence; and the evidence indicating appellant paid his co-conspirators for the goods they stole, see, e. g., note 34, supra, and in turn sold those goods to third parties, establishes his position as the middle-man essential to the financial success of the conspiracy. As to the potential profitability of the enterprise, one of the purchasers of the contraband from Enten, Mary Wortman-a professional interior designer and appraiser who purchased the Charles clock, which she valued at $2,000.00, for $300.00-testified that the value of goods Enten temporarily stored at her home was approximately $250,000.00

Appellant Enten's final objections challenge the trial judge's submission of certain charges to the jury on assertedly insufficient evidence, and his failure to grant appellant's motion for judgment of acquittal as to other charges. We think the evidence, though circumstantial, when viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v. Fench, D.C. Cir., 470 F.2d 1234 (D.C. Cir. 1972), cert. denied, 410 U.S. 909, 93 S. Ct. 964, 35 L. Ed. 2d 271 (1973), supports the denial of the motion as to both appellant's membership in the conspiracy and his guilt of the substantive crimes for which he was convicted, particularly in view of the derivative guilt made possible by Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). See, e. g., notes 3, 14, 35 and 36 supra. Similarly do we dispose of the nearly identical challenge to appellant Lemonakis' convictions, which were supported by comparatively stronger evidence. See, e. g., note 27, supra and accompanying text