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UNITED STATES v. HOFFMAN

November 23, 1971

UNITED STATES
v.
Abbott HOFFMAN, also known as Abbie Hoffman


John Lewis Smith, Jr., District Judge.


The opinion of the court was delivered by: SMITH, JR.

JOHN LEWIS SMITH, Jr., District Judge.

 On May 13, 1971 the defendant was indicted for violations of 18 U.S.C. §§ 231(a)(3) and 2101. On June 30, 1971 he moved, pursuant to Rules 16 and 41, F.R. Crim. P., and the Fourth, Fifth and Sixth Amendments to the Constitution, for disclosure of all records of electronic surveillance of any communications to which he was a party or which were conducted at his premises. He also requests such records for any premises in which he had an interest; of any surveillance conducted for the purpose of gathering leads or evidence against him; any such surveillance conducted at a place where he was present; any such surveillance during which he was referred to; any such surveillance in which any party is unidentified; and any such surveillance involving his attorneys.

 Defendant also seeks an evidentiary hearing prior to trial to determine whether the government has fully complied with all of his requests, to determine his standing to raise the issue of the legality of such surveillance, and to determine the extent to which such surveillance has tainted the evidence upon which the indictment is based.

 In opposition to that motion the government states that Hoffman has never been the subject of direct electronic surveillance but that conversations believed to be his have been overheard during five surveillances conducted without prior judicial approval but authorized by the President to obtain foreign intelligence information or safeguard the national security. The government has, in a sealed exhibit, submitted the records of those five surveillances as they pertain to the defendant and requested that the Court examine those records in camera. On July 21, 1971 this motion was extensively argued by counsel.

 In Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), the Supreme Court held that the government must disclose to the defendant any conversations participated in by him or occurring on his premises, provided those conversations were overheard during the course of an illegal electronic surveillance. Disclosure is required so that the defendant may determine whether any evidence against him is based on illegal surveillance. Hoffman has standing to object to the use of any of the five surveillances which this Court finds to be illegal because he was a party to the overheard conversations. Alderman v. United States, supra. The government contends that disclosure of these surveillance records is not required by Alderman because they were not illegal, in spite of being initiated and conducted without prior warrant. A finding by this Court that the surveillances in this case were lawful would make disclosure and further proceedings unnecessary. Giordano v. United States, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297 (1969).

 As Justice Stewart pointed out in his concurring opinion in Giordano, Alderman did not specify the procedures to be followed by the district court in making the preliminary determination of whether the surveillance violates the Fourth Amendment.

 Neither does Alderman require an adversary hearing and full disclosure for resolution of every issue raised by an electronic surveillance or give the defendant the right to rummage through government files. Taglianetti v. United States, 394 U.S. 316, 89 S. Ct. 1099, 22 L. Ed. 2d 302 (1969). Upon examination, in camera, of the documents submitted in the sealed exhibit, the Court deems it appropriate to make the required preliminary determination of whether any of the conversations of the defendant were overheard in violation of his Fourth Amendment rights. An evidentiary hearing is not required to make that determination.

 The surveillance records submitted by the government clearly indicate that they were not directed against the defendant nor at his premises. Those five surveillances were expressly authorized by the President, acting through the Attorney General, without judicial approval, and deemed necessary to protect national security.

 The government contends that the President has the inherent power to gather intelligence information through electronic surveillance, upon his determination that it is necessary to protect the national security, without securing a prior warrant. Reliance for this authority is grounded upon the presidential power in the field of foreign affairs, a thirty-year history of authorizations by Presidents recognizing the necessity for such surveillance where national defense is involved, and the congressional recognition of that power by the enactment of 18 U.S.C. § 2511(3). It is contended that the power to authorize surveillance deemed necessary to protect national security is closely related to the power to obtain foreign intelligence information.

 The government maintains that the protection of national security could not be adequately achieved within the context of a warrant procedure because of the wide range of factors which bear on the decision, the secrecy of some of those factors, and the possibility of leaks. It claims that even without the warrant requirement, the Presidential prerogative is not without restraints. For instance, only the President and his sole delegate, the Attorney General, may exercise the power; the President must apply the strict standard of "national security" involvement; such surveillance is subject to in camera judicial review, such as is suggested here; and the President is subject to the will of the electorate if his exercise of the power is not approved by a majority.

 The government position in likening the foreign intelligence justification to situations where the President determines that the national security warrants it is especially pertinent in this case where four of the five surveillances were of domestic organizations and were instituted for the express purpose of gaining information regarding the activities of those organizations, obtaining evidence of violations of federal law, or both, and the fifth surveillance was for the purpose of gathering foreign intelligence information which was deemed necessary in the conduct of foreign affairs. This Court must, therefore, determine the legality of both the "foreign" and the "domestic" surveillances.

 The government contends that foreign and domestic affairs are inextricably intertwined and that any attempt to legally distinguish the impact of foreign affairs from the matters of internal subversive activities is an exercise in futility. That argument is not compelling, however, after an examination by the Court of the five surveillance authorizations involved in this case. Further, in view of the important individual rights protected by the Fourth Amendment, any such difficulty in separating foreign and domestic situations should be resolved in favor of interposing the prior warrant requirement. The government has apparently chosen to deal with dissident domestic organizations in the same manner as it does with hostile foreign powers.

 The same arguments presented by the government here have recently been considered by several district courts and at least one circuit. United States v. United States District Court for Eastern Dis. of Mich., So. Div., 444 F.2d 651 (6th Cir., 1971), cert. granted, 403 U.S. 930, 91 S. Ct. 2255, 29 L. Ed. 2d 708 (1971); United States v. Donghi, Cr. No. 1970-81 (W.D.N.Y., May 14, 1971); United States v. Hilliard, Cr. No. 69-141 (N.D. Cal., May 4, 1971); United States v. Smith, 321 F. Supp. 424 (C.D. Cal., 1971); United States v. O'Neal, Cr. No. KC-CR-1204 (D.C. Kan., September 1, 1970); and United States v. Dellinger, Cr. No. 180 (N.D. Ill., February 20, 1970). All of those cases appear to involve the surveillance of domestic organizations to protect national security rather than the mation. The clear weight of those augathering of foreign intelligence inforthorities is that disclosure is required by Alderman where the ...


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