The opinion of the court was delivered by: TYLER
Defendant has petitioned to set aside his conviction upon jury verdicts, alleging "taint" in the proceedings by illegal electronic surveillance and eavesdropping at the instance of the government. See Kolod v. United States, 390 U.S. 136, 88 S. Ct. 752, 19 L. Ed. 2d 962 (1968). Upon consideration of the hearing testimony and various documentary material, the petition is found to be lacking in merit and is denied for reasons to be discussed hereinafter.
On April 26, 1966, this indictment was filed charging Edward S. Friedland,
a New York City lawyer, in five counts with receiving and transporting forged debenture certificates in interstate and foreign commerce and with conspiracy so to do, all in violation of Title 18, U.S.C. §§ 2314, 2315, 371 and 2. Trial commenced before the undersigned and a jury on March 29, 1967 and was completed on April 11, 1967 upon verdicts of guilty on each count. Thereafter, on May 18, 1967, this court sentenced Friedland to five years on each of the five counts, the sentences to run concurrently.
The judgment of conviction was affirmed on appeal. United States v. Friedland, 391 F.2d 378 (2d Cir. 1968). Shortly after affirmance, however, the appellate court granted Friedland's motion to remand the case to this court for a hearing pursuant to Kolod. Inexplicably, the copy of the order of remand did not reach this court until December 12, 1968. The record was returned to the clerk's office of this court on December 24, 1968.
There then ensued further delay, apparently occasioned by two circumstances. First, the Department of Justice for some time was unable to locate the logs and other memoranda of "bugs" of conversations between Friedland and other persons.
Second, there are indications that representatives of the Department of Justice were endeavoring to obtain the cooperation of this defendant in respect to other criminal investigations. In any event, it was not until December, 1969 that this application finally surfaced to the direct attention of this court.
In January, 1970, the aforementioned logs and memoranda of the conversations were turned over by the order of this court and on consent of the United States to Friedland's counsel. Further delays were then encountered because of professional and personal commitments of Friedland's counsel. Finally, hearings were commenced on April 7 and continued thereafter on April 9, 17 and 21, and May 5, 6 and 21, 1970. On the latter date, the hearing was closed, subject to possible reopening for taking an affidavit and perhaps as well live testimony of Dennis Lorraine, a codefendant in this case who on May 21, 1970 was serving a sentence at the Federal Correctional Institute in Danbury, Connecticut. When defendant's counsel failed to timely produce a relevant affidavit of Lorraine as directed by this court, the hearing was deemed closed. Moreover, I note and specifically determine that any testimony or affidavit which Lorraine might have offered along lines suggested by Friedland's counsel would have been cumulative.
Because of the difficulties for the parties and the court inherent in this type of proceeding, it may be useful to describe in some detail not only the two issues raised but also the evidence and other materials which were considered.
On March 10, 1970, Friedland's counsel filed a memorandum with the court indicating what he considered to be the thrust of this inquiry. This memorandum suggested that the sole issue turned upon various "bug" logs of the Federal Bureau of Investigation reflecting certain conversations in which Friedland was at least a partial participant. For shorthand purposes, this issue, the only one originally pressed by the defendant, will be referred to as the "electronic bug issue."
As the hearings unfolded, however, Friedland seized upon an argument which will be styled herein as the "surveillance activities" as alleged on the part of Irving Richards, a small-time criminal who, during the relevant period, was a client and criminal confederate of Friedland -- and also an FBI informant. This second issue turned out to be the one to which the parties, most particularly the defendant, devoted most of their energies and arguments as the hearings wound to a conclusion. Indeed, the record suggests that the defense during the hearing virtually conceded that the originally submitted "electronic bug" issue is without merit.
The "Electronic Bug Issue"
There were received into evidence two groups of FBI "logs" or memoranda of electronically overheard conversations which the government asked the court to assume for the purposes of these hearings to have been obtained illegally. The first group (see Exhibits A through P) are logs of "bugs" of the premises of one Arthur Tortorello. The remaining logs (see Exhibits Q through W) are those of "bugs" of the premises of a lawyer named Davis.
The Tortorello logs cover the period from January 8, 1962 through May 15, 1963; the Davis logs cover the period August 22, 1963 through September 5 of the same year. There can be no doubt that these "bugs" picked up conversations of Friedland in relation to such ignoble subjects as judge fixing, shylocking, fencing of stolen watches, trips by Friedland to Miami and Cleveland and at least an eliptical reference to a counterfeiting scheme, about which, according to Friedland's remarks to Tortorello, some unidentified person was "opening up on the stand".
These logs have nothing whatsoever to do with the subject matter of this case resulting in Friedland's conviction. The time periods are two to three years earlier than the events which were the subject of this case; moreover, the subject matter is entirely different and unrelated. For these reasons alone, I conclude that the government has sustained its position on the wiretap ...