belonging to him were stolen from Mr. Gold's automobile.
13. Mr. Pollack also contended that certain documents relating to Control Metals were unlawfully taken from his possession at his Ft. Lee residence by a Postal Inspector named Mr. Liddle and a Mr. Cuddy of the Department of Justice. This contention is contradictory to the testimony given by Mr. Pollack in the New Jersey hearing on September 4, 1975. It is also contrary to testimony given by Mr. Cuddy and Mr. Liddle. The Court credits their testimony.
14. Mention was made in one of the thousands of documents produced as a result of Mr. Pollack's various subpoenas duces tecum of a "Mr. Flagg." If such a person exists, there was no showing that he could add any material evidence to this case.
15. Prior to trial and at a time when Mr. Pollack was contending that charges against him should be dismissed for failure to accord him a speedy trial, he was seeking further delay by alleging a serious heart condition. The focal point of the inquiry was a heart attack which Mr. Pollack alleged took place in Newark, New Jersey, on November 1, 1973. The attending physician's report was forwarded to this Court. The government brought down a heart specialist from New York City who had examined Mr. Pollack there in connection with a case pending in Federal court. This Court appointed a heart specialist in this City to examine Mr. Pollack and to give testimony. The defense also arranged for an examination and testimony by a heart specialist. Mr. Pollack's motion for severance and continuance was heard and extensive testimony from these three heart specialists was taken. The hearing took approximately two days. The Court was and is satisfied that Mr. Pollack was able to proceed without impairment to his health and the motions were denied.
16. Whatever information is contained in the various prison hospital files in the prisons where Mr. Pollack has been confined is not newly discovered. The Court questions whether it could add anything to what was presented to the Court at the hearing. In observing closely the activities of Mr. Pollack from time to time both during the trial and particularly during this hearing, the Court has been impressed by his prodigious energy, his alertness, and his vigorous advocacy. His condition then did not warrant a continuance nor does it at the present time indicate any diminution of flow of energy.
17. Mr. Pollack has referred to what he describes as a "mail cover." There is no showing that the government either resorted to such a technique or obtained any evidence material to the case tried in this Court by this expedient.
18. It is another of Mr. Pollack's contentions that he was interviewed while in prison without being given the required Miranda warnings. He conceded in a colloquy with the Court that he had made no incriminating statements nor were any brought to the attention of the Court.
19. Jencks material was given the defense either before or immediately after a witness for the government testified. Extensive use of such material was made. There has been no showing that the defense was denied access to such material. The Court credits the testimony of Mr. Ogren and Mr. Kelly.
20. In connection with his plea of guilty, the codefendant Rothman turned over certain material to the government. This material was made available to the defense, and was examined by Mr. Feissner. It was equally available to Mr. Pollack and his counsel.
21. Mr. Pollack, while a prisoner at Danbury, Connecticut, indicated he wished to appear before the grand jury investigating this case. Pursuant to his request, he was brought to this District. Thereafter he decided not to appear before the grand jury. He now questions the manner in which he was transported and lodged in jail. The Court finds no failure on the part of the government to follow appropriate procedures.
22. Mr. Pollack, on cross-examination at this hearing, admitted that he was the same person who was convicted on December 3, 1969, of grand theft by the State of California, and the same person who was convicted on May 12, 1972, in the Southern District of New York of mail fraud and conspiracy to violate the mail fraud statute, and the same person who was convicted of various counts, including conspiracy, mail fraud, fraud in the sale of securities, fraud by wire, and transportation of securities taken by fraud, in the Northern District of Alabama, Southern Division, on July 15, 1971. These may be considered by the Court in evaluating his credibility.
23. Mr. Sachs, while present and represented by counsel throughout these extensive hearings, maintained a noticeably low profile. He indicated that he adopted some of the positions taken by Mr. Pollack and for that reason the same findings heretofore made would be applicable to him, with the exception of Finding No. 22. Significantly, Mr. Sachs did not take the stand as a witness in his own behalf. In his proposed findings and conclusions he has asked that consideration be given to a number of exhibits, some of which, it is said, came from the so-called Liakakis documents. The Liakakis documents as such were not offered or received in evidence in the trial. Some of them are duplicative of exhibits obtained earlier by the government from independent sources, which were offered and received in evidence. Mr. Sachs' exhibits in the hearing, nos. 7, 8, and 9, said to have been taken from the so-called Liakakis documents are statements which counsel now says Mr. Sachs was entitled to as his statements under Fed. R. Crim. P. 16. These statements appear to have very little to do with the case which was tried. No. 7 is a telegram from Mr. Sachs to Mr. Pollack with respect to an Ocean City, Maryland, transaction which had nothing to do with the Control Metals case and presents a demand on the part of Mr. Sachs that Mr. Pollack pay him for legal services rendered. No. 8 is a letter from Mr. Sachs to Mr. Pollack, again demanding that his legal fees be paid. No. 9 is a photocopy, almost illegible, of a handwritten letter from Mr. Sachs to Mr. Pollack which the government denies was part of the Liakakis material or that it was shown on the Cox microfilms. Again Mr. Sachs makes demand for the payment of his legal fees. That Mr. Pollack should have paid Mr. Sachs is clear, but this fee dispute between these two friends, while unfortunate, is of no probative value insofar as the merits of the case are concerned. That these urgent demands for compliance with Rule No. 1 existed among the mountains of paper that have accumulated in this case is of no significance in ruling upon the motion for new trial. It does not negative the existence of a conspiracy or show that Mr. Sachs' connection was solely that of a lawyer.
24. Mr. Sachs, with Mr. Pollack, also contends that certain other exhibits are in the nature of Brady material. In this regard reliance is placed upon a transcript before the Securities and Exchange Commission of Miss Liakakis' testimony in 1970. Miss Liakakis was not a government witness at trial. On voir dire at the request of the defense her name was disclosed to the jury panel as a possible witness. She elected to take the Fifth Amendment when called as a witness by Mr. Pollack at this hearing. The Court has read the Securities and Exchange Commission transcript referred to by Mr. Sachs' counsel. Had Miss Liakakis been called as a witness and testified at the trial contrary to the testimony contained at page 35 of the transcript, obviously the transcript could have been used to refresh her recollection or to impeach her credibility. Since she did not take the stand as a witness, her SEC testimony contained at page 35 is of no importance. Her testimony contained at page 41 of the transcript simply reflects Miss Liakakis' conclusion as to Mr. Sachs' involvement with the Control Metals transaction. She had previously testified that Mr. Sachs had business dealings with Mr. Pollack; that they were on the phone quite a lot, and that Mr. Pollack consulted Mr. Sachs, but she stated she really didn't know what Mr. Sachs was doing with Mr. Pollack. At the page mentioned by Mr. Sachs' counsel, she mentioned getting a check from Mr. Sachs in the amount of $15,000 which she was instructed by Mr. Pollack to cash and to wire it to him in New York by Western Union. This material is not exculpatory nor is failure to deliver it to Mr. Sachs a violation of the standards set by the Supreme Court either in the Brady case or in Moore v. Illinois, 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972).
CONCLUSIONS OF LAW
I. Independent Source.
Evidence introduced at trial by the government was obtained from the investigation of the Denver Regional Office of the Securities and Exchange Commission, which took place largely in 1969. This investigation was conducted by Mr. John Kelly of that office. Information was obtained from the stock transfer records of Control Metals Corporation and conferences with Mr. Thayer Lindauer, counsel for Control Metals Corporation, and certain officials of that organization. It also included bank records and brokerage records. Land Records for the State of Arizona at Phoenix were also examined. The Court concludes it was these records and testimony relating thereto which were introduced in evidence and which formed the basis for the jury's verdict in this case.
Assuming without deciding that Mr. Pollack's contention is correct -- that the government illegally came into possession of his documents -- this assumption lends no assistance to Mr. Pollack's case. As the Supreme Court stated in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182 (1920), and reaffirmed in Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963):
The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed. 251 U.S. at 392; 371 U.S. at 485 [Emphasis added].
The investigation that was conducted by the Denver Regional Office of the SEC yielded the records and information on which the government relied to prove the facts in this case. The SEC investigation was not connected in any way with the alleged seizure of Mr. Pollack's documents and therefore provided an evidentiary source entirely independent of the government's allegedly illegal act of seizure. In short, the Court concludes that the evidence adduced by the government did not derive from the exploitation of any illegality. See also, United States v. Baker, 139 U.S. App. D.C. 126, 430 F.2d 499, 503, cert. denied, 400 U.S. 965, 27 L. Ed. 2d 384, 91 S. Ct. 367 (1970).
II. The Liakakis Documents.
The records and documents to which Mr. Pollack has voiced strong objection are primarily the records of three of his corporations, Control Metals Corporation, Fountainhead Corporation, and International Marketing Corporation, as well as certain personal records of his. These records he turned over to his secretary-bookkeeper, Georgia Liakakis, who had also served as an officer of some of his corporations. She continued to perform certain duties with respect to these corporations after Mr. Pollack surrendered himself at the state prison in Lompoc, California, in late November, 1969. Under these facts the Court concludes that Mr. Pollack effectively surrendered possession of the records to Miss Liakakis, and that in surrendering possession to Miss Liakakis, Mr. Pollack abandoned any reasonable expectation of privacy he may have entertained as to the documents. Accordingly, Mr. Pollack's Fourth Amendment rights were not violated by the delivery of those documents to the governmental agents. See Couch v. United States, 409 U.S. 322, 336 n. 19, 34 L. Ed. 2d 548, 93 S. Ct. 611 (1973); Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).
With respect to Mr. Pollack's claim that the government violated his Fifth Amendment rights by obtaining his documents, the Court notes the words of Justice Holmes in Johnson v. United States, 228 U.S. 457, 57 L. Ed. 919, 33 S. Ct. 572 (1913): "A party is privileged from producing the [self-incriminating] evidence, but not from its production." Id. at 458. See also California Bankers' Ass'n v. Shultz, 416 U.S. 21, 55, 39 L. Ed. 2d 812, 94 S. Ct. 1494 (1974); Couch v. United States, 409 U.S. 322, 34 L. Ed. 2d 548, 93 S. Ct. 611 (1973). The governmental agents' actions in obtaining the documents from Miss Liakakis involved no semblance of governmental compulsion against Mr. Pollack's person. Accordingly, no violation of Mr. Pollack's Fifth Amendment rights occurred. See Couch v. United States, 409 U.S. 322, 336, 34 L. Ed. 2d 548, 93 S. Ct. 611 (1973). No Fifth Amendment claim could be premised, in any event, on the corporate records that were handed over by Miss Liakakis, for no Fifth Amendment privilege may be claimed by individuals or corporations with respect to corporate records. See Bellis v. United States, 417 U.S. 85, 88, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974); California Bankers' Ass'n v. Shultz, 416 U.S. 21, 71, 39 L. Ed. 2d 812, 94 S. Ct. 1494 (1974). Since there was no reasonable expectation of privacy and no semblance of governmental compulsion against the person of Mr. Pollack, the actions taken by these governmental agents were not unlawful.
Even if Georgia Liakakis stole Mr. Pollack's documents and made them available to the government, as Mr. Pollack implies, this would not preclude their use by the government unless Miss Liakakis were a government agent. There is no proof of this, however. Documents taken from Miss Liakakis were received pursuant to a grand jury subpoena. See Burdeau v. McDowell, 256 U.S. 465, 65 L. Ed. 1048, 41 S. Ct. 574 (1921).
III. Brady Material.
Defense counsel were given extensive access, pretrial and during the trial, to documents in the possession of the government pertaining to this case with the exception of Jencks material, but the latter was made available prior to the time the witness testified or directly after his direct testimony. No exculpatory material in the government's possession was shown to have been withheld from the defendants. The Court concludes there was no violation of the standards established in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1960). There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all investigatory work on a case. Moore v. Illinois, 408 U.S. 786, 795, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972).
IV. "Newly Discovered" Evidence.
Evidence produced during the course of this extensive hearing was neither newly discovered nor of such character, whether viewed separately or collectively, that it would probably produce an acquittal. Thompson v. United States, 88 U.S.App.D.C. 235, 188 F.2d 652 (1952); United States v. White, 168 U.S.App.D.C. 309, 514 F.2d 205 (1975).
V. Attorney-Client Privilege.
The Court further concludes that there was no violation of Mr. Pollack's attorney-client privilege for the reason that the communications did not relate to anything revealed by Mr. Pollack to his counsel which was confidential in character. Silverman v. United States, 430 F.2d 106, 121 (2d Cir. 1970). It concerned information which his attorney got from others and that is not privileged. Foley & Co. v. Vanderbilt, 65 F.R.D. 523, 526 (1974).
VI. Mr. Sachs' Statements.
Mr. Sachs' reliance on Fed. R. Crim. P. 16 is misplaced. His statements, which he says were withheld from him, were not obtained by the government directly from the defendant without the intervention of any third party. United States v. Pollack and Sachs, 175 U.S. App. D.C. 964, 534 F.2d 964 (1976).
Accordingly, the motion for new trial is denied as to both Mr. Pollack and Mr. Sachs.
Oliver Gasch, Judge
Date: April 13th 1976