United States v. Clay

¶5AINSWORTH, Circuit Judge.

¶6This Selective Service case involves the conviction by a"jury on June 20, 1967 of Cassius Marsellus Clay, Jr., also known as Muhammad Ali, former professional heavyweight boxing champion of the world, for wilfully refusing to be inducted into the Armed Forces of the United States, in violation of 50 U.S.C. App. § 462, and is before us for the second time.1 We affirmed the conviction on May 6, 1968, and rehearing en banc was denied June 6, 1968. See Clay v. United States, 5 Cir., 1968, 397 F.2d 901.

¶7The defendant then petitioned the Supreme Court for certiorari, and while the petition was pending before that Court, the Government revealed that there had been five telephone conversations participated in by defendant which were overheard by the Federal Bureau of Investigation by electronic wiretapping. Accordingly, the Supreme Court granted certiorari, sub nom. Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969), and remanded this case to the District Court for further proceedings in conformity with Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), to determine whether the conviction was affected by the wiretaps.

¶8Pursuant to the Supreme Court’s grant of certiorari, a lengthy hearing was then held before District Judge Joe Ingraham on June 2, 4, 5, and 6, 1969, in Houston, Texas, at which time the Court considered the FBI logs of the five wiretapped telephone conversations delivered to it in advance of the hearing by the Government. The Court then ordered that the logs of wiretapped conversations 1, 2, 3, and 4 be received in evidence and their contents fully disclosed to the defendant. As to these four logs of wiretapped telephone conversations, the Court held that the defendant had standing to assert the illegality of the surveillance and that the illegality was not challenged by the Government. The fifth log of a wiretapped conversation in which defendant participated was considered in camera by the District Judge, with related exhibits, and held to be a lawful surveillance by the FBI pursuant to the Attorney General’s authorization of a wiretap for the purpose of gathering foreign intelligence.

¶9The District Court concluded that the first four logs did not bear on the issues involved in defendant’s conviction; that *167the defendant failed to show any relevancy of these logs to the conviction; and that the conviction must stand. The fifth wiretapped conversation which related to the gathering of foreign intelligence was held to be lawful surveillance, reasonable and necessary to the protection of the national interest.

¶10As we have stated, logs 1, 2, 3, and 4 were made available to defendant to afford him an opportunity to show the relevance of any of these wiretapped conversations to his Selective Service law conviction. (The logs are all of the evidence which the FBI possesses of the wiretapped conversations, the tapes on which the conversations were originally recorded having been erased when the logs were typed.) The five telephone conversations were not tapped in an electronic surveillance of defendant Clay but were made in connection with surveillance of others, the defendant not having been the subject of the surveillance.

¶11Log 1 pertained to a telephone conversation on April 22, 1965, when the telephone of Elijah Muhammad was tapped in Phoenix, Arizona. A person named Herbert called the defendant, Clay, asking him about his physical condition, prospective fights, and personal details relative to the family.2

¶12Log 2 referred to another wiretap of a telephone conversation of the telephone of Elijah Muhammad on March 24, 1964. Elijah called defendant Clay, telling him that he wanted to see him about making a minister out of him when “he quit thinking of fighting all the time” and that Clay would make a better minister than a fighter.3

¶13Log 3 was another log of a wiretap of the Phoenix, Arizona, telephone of Elijah Muhammad of a telephone conversation on October 22, 1964, when a man believed to be John Ali talked to a person believed to be the defendant, Clay, giving him a message from Elijah about holding up “those TV people,” who were apparently about to interview Clay.4

¶14*168Log 4 was taken on September 4, 1964, in Atlanta, in connection with surveillance of the telephone of Dr. Martin Luther King, Jr. MLK (ostensibly Dr. King) exchanged greetings with defendant Clay, wished him well on his recent marriage, and in turn was invited to attend defendant’s next championship fight. Clay also told MLK to take care of himself, that he is known world wide, and admonished him that he “should watch out for them whities,” etc.5

¶15The Trial Judge held that “the logs are so totally innocuous that they could not have had any bearing on the defendant’s conviction under any circumstances.” The District Judge’s reasons in this regard, ably expressed, with which we agree, are reproduced in pertinent part in the margin.6

¶16*169There was likewise no error committed by the District Court in rejecting the broad and sweeping demands for discovery by defendant’s counsel of FBI files, documents, wiretapping information and tapes and transcriptions, relating to persons and conversations not participated in by defendant. All of the logs of recorded conversations of defendant were produced for his inspection except the fifth wiretap which pertained to foreign information gathering and which we will discuss later. The defendant had no right to see records or logs of conversations to which he was not a party, nor to rummage in Government files. Alderman v. United States, 394 U.S. 165, 185, 89 S.Ct. 961, 973, 22 L.Ed. 2d 176 (1969); Taglianetti v. United States, 394 U.S. 316, 317, 89 S.Ct. 1099, 1100, 22 L.Ed.2d 302 (1969). It is clear from uncontradicted testimony that none of the information obtained in the five wiretapped telephone conversations was used in the FBI investigation of defendant’s conscientious objector claim, or in the preparation of the adverse Department of Justice recommendation made in connection with defendant’s original request for conscientious objector classification.7 In our view the Trial Court exercised “informed discretion, good sense, and fairness,” Alderman, supra, 394 U.S. at 185, 89 S.Ct. at 973, in denying defendant’s discovery demands and we perceive no sound reason for interfering with his decision.8

¶17*170The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of gathering foreign intelligence information is constitutionally permissible, Giordano v. United States, supra, 394 U.S. at 314, 89 S.Ct. at 1165, 1166, 22 L.Ed.2d 297 (1969), though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 364, 88 S.Ct. 507, 517, 19 L.Ed.2d 576 (1967).

¶18Moreover, in Giordano, supra,394 U.S. at 314, 89 S.Ct. at 1165, Mr. Justice Stewart in a concurring opinion stated the following in regard to the mandate of Alderman, supra,for further hearing and the procedure to be followed in a criminal case where wiretapping information relative to a defendant had been obtained.

“We have nowhere indicated that this determination cannot appropriately be made in ex parte, in camera proceedings. ‘Nothing in Alderman v. United States, Ivanov v. United States, or Bu-tenko v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, requires an adversary proceeding and full disclosure for resolution of every issue raised by an electronic surveillance.’ Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302.”

¶19An in camera examination of the fifth log and a description of the premises which were the subject of the surveillance, together with the Attorney General’s express authorization to the FBI to make the surveillance, was accordingly made by the Trial Judge. It has also been made by the three judges of this panel. From this examination we agree that the log of the fifth wiretapped telephone conversation (1) was authorized by the Attorney General in writing to the FBI; (2) that it was not made pursuant to a surveillance of defendant but rather of others, and the premises were identified; (3) that it was made in connection with obtaining foreign intelligence information; (4) that the Executive Branch of the Government has properly and reasonably requested that the log not be published or disclosed to the defendant or the public because “it would prejudice the national interest to disclose the particular facts concerning this surveillance other than to the court in camera” (see affidavit of Attorney General Mitchell); and (5) its contents do not in any manner bear upon the issues involved in defendant’s draft law violation case, and in no way has this wiretap prejudiced defendant, helped build a case against him, or assisted in bringing about his conviction.

¶20Defendant and amicus contend that the Supreme Court’s decision in Alderman, supra,requires an adversary hearing and mandates that all wiretapped information of defendant's conversations be furnished to him, including the fifth log pertaining to foreign intelligence gathering; that the District Court erred in failing to disclose the fifth log to him and in not holding a hearing thereon to determine if the wiretap tainted defendant’s conviction; that full disclosure is required by the Constitution and the Bill of Rights, and that section 605 of the Federal Communications Act of 1934, *17147 U.S.C. § 605, bars any use of wiretap in a criminal prosecution.

¶21Under the circumstances here, publication of the fifth log to defendant is unwarranted and would be contrary to the national interest, having been obtained in foreign intelligence surveillance. The Court’s in camera examination of the fifth log establishes to our satisfaction that the contents of the wiretap were not germane to any issue in this criminal prosecution and conviction. There has been no use against defendant of the information gained by the Government by the fifth wiretap and the information there obtained would not have been of assistance to the prosecutor in constructing a case against defendant. There is no indication that the information was or could be used in any way against defendant.

¶22Deteí’mination of this case requires that we balance the rights of the defendant and the national interest. The Attorney General, who acts here for the President and Commander-in-Chief, has submitted his affidavit that the fifth wiretap was maintained “for the purpose of gathering foreign intelligence information” and the Attorney General opposed disclosure at the hearing because “it would prejudice the national interest to disclose particular facts concerning this surveillance other than to the court.” The fifth log was submitted by the Government for an in camera examination by the Court, which has been made both here and in the District Court. The rights of defendant and the national interest have thus been properly safeguarded. Further judicial inquiry would be improper and should not occur. It would be “intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948). We, therefore, discern no constitutional prohibition against the fifth wiretap.

¶23Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest. When Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511(3) thereof, it specifically denied any section 605 limitation, as follows:

“ (3) Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measure 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.”

¶24This is a clear statement by Congress itself relative to the scope of the section 605 provisions which are not to limit the President’s constitutional prerogative to obtain foreign intelligence information.

¶25We reiterate that no use of the fifth log was made in this case against defendant. It played no part in his conviction and our in camera scrutiny thereof thoroughly convinces us that defendant was not prejudiced thereby. As the *172Supreme Court said in Taglianetti v. United States, 394 U.S. 316, 317, 318, 89 S.Ct. 1099, 1101, 22 L.Ed.2d 302 (1969), “Under the circumstances presented here, we cannot hold that ‘the task is too complex, and the margin for error too great, to rely whc>lly on the in camera judgment of the trial court.’ Alderman v. United States, supra, 394 U.S., at 182, 89 S.Ct., at 971, 22 L.Ed.2d 176.” No one would seriously doubt in this time of serious international insecurity and peril that there is an imperative necessity for obtaining foreign intelligence information, and we do not believe such gathering is forbidden by the Constitution or by statutory provision, including 47 U.S.C. § 605.

¶26We are urged to reconsider the issues decided by us in our original decision in this case, 397 F.2d 901, but we decline to do so.9 We declined en banc reconsideration of our original decision and further refused en banc considerátion of this second hearing in this case. Our prior decision is the law of the case on the issues decided there, unless they are affected by the wiretapped telephone conversations.10 In our view, the defendant’s conviction was not so affected and accordingly the judgment of conviction should be

¶27Affirmed.11

¶39ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

¶40PER CURIAM:

¶41The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.