Hays and Feinberg, Circuit Judges, and Jameson, District Judge.*fn*
This is an appeal from a judgment of conviction entered December 6, 1968, after trial without a jury, on five counts of willful income tax evasion through failure to file returns for the years 1956-1960 inclusive, in violation of 26 U.S.C. § 7201.*fn1
Appellant was first found guilty of the same offenses, after a non-jury trial,*fn2 on October 15, 1965, and was sentenced on December 3, 1965. This conviction was affirmed by this court on June 29, 1966. United States v. Schipani, 2 Cir. 1966, 362 F.2d 825. Certiorari was denied on November 7, 1966, 385 U.S. 934, 87 S. Ct. 293, 17 L. Ed. 2d 214.
On November 30, 1966, the Solicitor General filed a supplemental memorandum in the Supreme Court advising the Court that material evidence against appellant was based in part on electronic surveillance and suggesting that by reason of this taint the "Court vacate its order denying certiorari, grant certiorari, vacate the judgment of the court of appeals, and remand the cause to the district court for a new trial, should the government seek to prosecute the petitioner anew."*fn3 On December 12, 1966, acting " upon the suggestion of the Solicitor General and upon an independent examination of the case," the Supreme Court remanded to the district court "for a new trial should the Government seek to prosecute petitioner anew." 385 U.S. 372, 87 S. Ct. 533, 17 L. Ed. 2d 428.
Following remand, appellant filed a motion to suppress all evidence obtained as a result of any electronic surveillance. A full evidentiary hearing on the motion commenced May 6, 1968, and continued for five days. The Government made full disclosure of all available information relating to electronic surveillance of any conversations in which appellant had participated.*fn4 In a thorough and well-reasoned opinion, Judge Weinstein suppressed all evidence introduced at the first trial relating to appellant's "likely sources of income"*fn5 and otherwise denied the motion. United States v. Schipani, E.D.N.Y.1968, 289 F. Supp. 43.
At the second trial, the entire record of the first trial was received in evidence as an exhibit, pursuant to a stipulation entered into by the Government, appellant, and appellant's trial counsel. Since "likely source" evidence had been excluded, the Government's case rested solely on a negation of all non-taxable sources of income, a theory approved in United States v. Massei, 1958, 355 U.S. 595, 78 S. Ct. 495, 2 L. Ed. 2d 517.
Following detailed findings, the court concluded: "During each of the years charged in the indictment the defendant had substantial taxable income greatly in excess of six hundred dollars. During each of these years he should have paid a substantial income tax. He failed to file income tax returns and concealed his income wilfully in order to defraud the government of income taxes due by him to the government. The government has proved beyond a reasonable doubt all the elements of the crime charged for each of the years charged in the indictment. The defendant is guilty as charged on all counts." United States v. Schipani, E.D.N.Y.1968, 293 F. Supp. 156, 163, 164.
Appellant first questions the propriety of the proceedings upon remand and contends that the Government could not constitutionally retry the case on the basis of "first-trial proofs." He argues that the ruling of the district court that there was sufficient taint-free evidence to permit a retrial on the same evidence constituted a "collateral finding" that "the Supreme Court of the United States was 'in error' in having adjudicated to the contrary in deciding the same electronic issues in December, 1966, on the merits and 'upon an independent examination of the case.'"
We do not so read the Court's opinion. It is significant that the Supreme Court, after its "independent examination of the case," did not order a dismissal. Appellant had petitioned for a "remand with direction to vacate the judgment of conviction and to dismiss the indictment." The Court did not grant the petition but instead provided expressly for a "new trial should the Government seek to prosecute * * * anew."*fn6 Had the Court intended the construction placed upon its order by appellant, it would have granted his motion.
Clearly it was necessary to determine in some manner what evidence was tainted. This the district court did in an extended suppression hearing, with complete disclosure to appellant by the Government of all available information in the Government's files and with an opportunity to cross-examine the key agents and investigators who had any knowledge of the electronic surveillance.*fn7
The per curiam opinion of the Supreme Court did not hold or even suggest that all evidence at the first trial was tainted by electronic surveillance. The Court had been advised by the Solicitor General that some of the leads and evidence were tainted. Neither the Solicitor General nor the Supreme Court had the benefit of the careful analysis and testimony with respect to the sources of all evidence which were available to the district court as a result of the suppression hearing.*fn8
The evidence at the suppression hearing disclosed that the F.B.I. had been compiling information on appellant since 1958. In a report dated October 10, 1960, the defendant was described by one source as "one of the most influential and most powerful figures in New York underworld" and "considered to be associated with several of New York's top hoodlums" (289 F. Supp. at p. 46). The first information obtained by electronic surveillance was in 1961 through an investigation of Michael Clemente and covered the "Prisco Travel Bureau, a 'front' for Clemente's criminal activities and a meeting place for many of New York's top mobsters." Although appellant was not the subject of that ...