United States v. Stassi

¶5GEWIN, Circuit Judge:

¶6Joseph Stassi, Sr. was convicted of conspiracy to smuggle heroin into the United States and to conceal and facilitate the transportation of heroin after unlawful importation, in violation of 21 *354U.S.C. § 174.1 On appeal, this court remanded the ease to the district court for the limited purpose of determining whether electronically collected evidence, disclosed to this court by the government, tainted Stassi’s conviction.2 Following an evidentiary hearing, the district court concluded that Stassi’s conviction was valid and entered a new judgment of conviction.3 The present appeal is taken from that judgment. We affirm.

¶7The electronic surveillance in question was conducted by the Federal Bureau of Investigation under the authorization of the Justice Department. While Stassi was not the subject of the surveillance and his premises were not “bugged”, the F.B.I. overheard several conversations in which Stassi was a participant or was in some way mentioned.4 Stassi initially contends that the court erred in failing either to order the government to produce all of its records relevant to the electronic surveillances in

¶8question or, to dismiss the case against him. This allegation has particular reference to the original tape recordings of conversations. It should be noted that prior to the hearing, the government furnished Stassi with pertinent extracts from the surveillance logs; agents’ reports; and inter-office communications. We feel that the court’s refusal to allow further discovery was a legitimate exercise of its discretion. Stassi had no right to rummage through the government’s files.5

¶9 With reference to the original tapes, Stassi is in effect arguing that his conviction must be reversed, since they are no longer in existence.6 We do not agree. While the surveillances in question violated the Fourth Amendment, it is clear that they in no way tainted Stassi’s conviction. The district court found that on two occasions the F.B.I. overheard innocuous conversations involving Stassi when he visited “bugged” premises.7 On a third ocea*355sion an individual identified only as “Joe” — which may or may not have been Stassi — -entered one of the areas under surveillance but left almost immediately. On a fourth occasion, Stassi’s name was overheard during a conversation in his absence.8 Most importantly, the district court noted that the surveillance in question was conducted by the F.B.I. while the investigation which led to Stassi’s conviction was conducted entirely by United States customs officers. It found that the customs agents had employed no electronic surveillance of Stas-si and that there had been no disclosure of the F.B.I. surveillance to the customs agents. The findings of the district court are amply supported by the record.9

¶10Finally, Stassi contends that the decision of the present appeal should be held in abeyance pending the Supreme Court’s decision of Turner v. United States,10 which involved the presumption embodied in 21 U.S.C. § 174, which authorizes conviction on an unexplained showing of possession. Since this argument was advanced, the Court has decided Turner, and upheld the presumption as it applies to heroin. Moreover, Stassi was convicted of conspiracy to violate 21 U.S.C. § 174 principally on the testimony of a co-conspirator, and his conviction was not affected by the presumption of which he complains.

¶11The judgment is affirmed.