
    Frank STEWART, Plaintiff-Appellant, v. Charles H. DAMERON, District Attorney ad hoc, East Baton Rouge Parish, et al., Defendants-Appellees.
    No. 71-3482.
    United States Court of Appeals, Fifth Circuit.
    June 2, 1972.
    For opinion on remand, see 345 F.Supp. 1086.
    Benjamin E. Smith, Smith & Scheuermann, New Orleans, La., for plaintiff-appellant.
    Carlos G. Spaht, Baton Rouge, La., for John S. Covington.
    Emile C. Rolfs, III, Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, La., for Charles H. Dameron, Dist. Atty. ad hoc, defendant-appellee.
    Carlos G. Spaht, Baton Rouge, La., William M. Shaw, Homer, La., Joseph F. Keogh, Ralph L. Roy, Cheney C. Joseph, Jr., Baton Rouge, La., for Sargent Pitcher, Jr., and Leroy Watson, defendants-appellees.
    Before WISDOM, GOLDBERG and CLARK, Circuit Judges.
   PER CURIAM:

In April of 1970 a grand jury in East Baton Rouge Parish, Louisiana, returned an indictment charging the plaintiff, Frank Stewart, with conspiring to murder the mayor of Baton Rouge, Louisiana. Pursuant to the provisions of 42 U.S.C.A. § 1983 and various amendments to the United States Constitution, Frank Stewart instituted the present action in a federal district court, seeking injunctive relief and damages against the various state officials responsible for the plaintiff’s prosecution on the charge of conspiracy to commit murder. In his complaint, Stewart alleged that the state prosecution against him was entirely without substance, that the prosecution was being conducted by the various defendants in bad faith, and that the real intent of the state prosecution was to harass the plaintiff. Pursuant to the dictates of Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, the district court ordered an evidentiary hearing on the plaintiff’s request for an injunction restraining the state prosecution. At that hearing the district court permitted the state defendants to prove the good faith nature of the prosecution against Stewart, but denied the plaintiff an opportunity to introduce any evidence concerning his allegations of bad faith and harassment. The conclusion of the district judge at this first hearing was that the defendants had reasonable cause to believe that Frank Stewart had committed a crime against the State of Louisiana. On appeal from the original hearing, this Court remanded the case for reconsideration in light of Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and ordered the district court to conduct another evidentiary hearing for the purpose of allowing the plaintiff to introduce evidence regarding his allegations of bad faith and harrassment. Stewart v. Dameron, 5 Cir. 1971, 448 F.2d 396. Pursuant to the mandate of this Court, another evidentiary hearing was held, and at the conclusion of that proceeding the district court found that the plaintiff failed to show any bad faith prosecution or harassment which would justify enjoining the defendants from prosecuting Stewart in a state criminal proceeding. Therefore, the district court denied the requested injunction.

On this appeal, the plaintiff alleges that several errors were committed by the trial court with regard to the second evidentiary hearing. One of those errors concerns evidence which the defendant introduced and which was relied upon by the trial judge in making his factual determination. Essentially, the state’s case against the plaintiff is founded principally upon tape recordings which allegedly contain the voice of the plaintiff and reveal his direct- participation in the conspiracy to commit murder. The record before this Court reflects that these tape recordings were not submitted to the trial judge. Rather, the defendants submitted for in-camera inspection a transcript of the tapes. The district court’s finding to the effect that the state prosecution against Frank Stewart was not undertaken by the defendants in bad faith or for the purpose of harassment was based principally upon the in-camera inspection of the transcripts of the tape recordings, and the district judge himself stated that he never listened to the tapes. Before we undertake appellate review of this latter hearing, we think it necessary that the trial court position its findings on firm evidentiary terrain. The transcripts of the tape recordings reviewed by the trial judge represent simply what the defendants contend can be heard on the tapes themselves. Admitting that the plaintiff has a heavy burden to establish either prosecutorial bad faith or harassment, we think he is nonetheless entitled to a hearing conducted in conformity with constitutional provisions and those traditional rules of evidence that have been engrained in our legal system by statute or common law. Without elaboration of these pertinent rules of evidence and the plaintiff’s due process rights in the presentation and decision of his case, it is axiomatic that the trial judge should have listened to the actual tape recordings before concluding that they supported the defendants’ contentions that Stewart was being prosecuted in good faith and negated the plaintiff’s allegations of bad faith and harassment. Accordingly, the case is remanded to the district court for in-camera inspection of the tape recordings.

Remanded with directions.  