Petition — Turk v. United States

MAY 7 1976

in the

MICHAEL RODAK, JR., CLERK

Supreme Cour

of the

Gnited States

OCTOBER TERM, 1975

No. —25-1633

FREDERICK JOSEPH TURK,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GEORGE D. GOLD and

WILLIAM M. MORAN

MORAN & GOLD, P.A.

Suite 608 Concord Building

66 West Flagler Street

Miami, Florida 33130

Telephone: (305) 373-5475

Attorneys for Petitioner

MIAMI REVIEW — 371-4853 — 977-3721

—~

INDEX TO PETITION

CITATION TO OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL, STATUTORY AND

RULE PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS RELIED UPON FOR

GRANTING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

4-5

6-9

9-16

17

18

II

TABLE OF AUTHORITIES

Case Page

Linkletter v. Walker,

381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601

GNI | tutinintinsicetchrdigiiaiies ieee 10

Mapp v. Ohio,

367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081

(1961) ; ) | CALA 10

Michigan v. Tucker,

417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974) — ebinlicetiii diate 12

United States v. Calandra,

465 F.2d 1218 (6th Cir, 1972) 9

United States v. Calandra,

1974, 414 U.S. 338 , 3, 8, 9, 10, 11, 12, 13

United States v. Karathanos,

F.2d____, 18 Cr.L. 2465 (2d Cir, 2%2/76) 13

United States v, Peltier,

1975, ____U.S.___., 95 S.Ct. 2313 9,10, 11

United States v. Turk,

526 F.2d 654 2,12

Weeks v. United States,

232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 654

(1914) 3, 12, 13

ll

TABLE OF AUTHORITIES (cont.)

Case Page

Wolf v. Colorado,

338 U.S. 25, 69 S.Ct. 1859, 93 L.Ed. 1782

(1949) 7 lita take (eee 10

UNITED STATES CONSTITUTION

Fourth Amendment _.. . TAS Fn ct he 4

UNITED STATES CODE

19 U.S.C. Chapter 119 15

18 U.S.C. Section 2510 4,15

Section 2510(2) 4, 16

Section 2510(4) 4,16

Section 2510(8) . 4, 16

18 U.S.C. Section 2515 5, 16

28 U.S.C. Section 1254(1) — 2

OTHER AUTHORITY

1968 United States Code and Cong. and Admin,

News, Vol. 2, p. 2154 200000... pene tas 15

Rules of the Supreme Court of the United States

Rule 19(1) (b) ula i 2,5

in the

Supreme Court

of the

Anited States

OCTOBER TERM, 1975

NO.

FREDERICK JOSEPH TURK,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, FREDERICK JOSEPH TURK, prays

that a Writ of Certiorari issue to review the judgment

and opinion of the United States Court of Appeals for

the Fifth Circuit entered in this matter on January 29,

1976. Petition for Rehearing and Rehearing En Banc

was denied on March 8, 1976.

2

CITATION TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit is reported at 526 F.2d 654, and

appears in the appendix hereto. (App. A, pp. 1-38). The

order denying rehearing and rehearing en banc is pres-

ently unreported and also appears in the appendix. (App.

B, p. 39).

JURISDICTION

The judgment, decision and opinion of the United

States Court of Appeals for the Fifth Circuit sought to

be reviewed was entered on January 29, 1976. (App. A,

pp. 1-38). The date of the order respecting rehearing is

March 8, 1976. (App. B, p. 39).

An order granting an extension of time until May 7,

1976, within which to petition for certiorari has been en-

tered in this Honorable Court and is dated April 9, i976.

(App. C, p. 40).

The jurisdiction of this Court is invoked under Title

28, U.S.C. Section 1254(1), and under Rule 19(1) (b) in

that (i) a court of appeals has decided a federal question

in a way in conflict with applicable decisions of this court;

(ii) a court of appeals has rendered a decision in conflict

with the decision of another court of appeals on the same

matter; and (iii) a court of appeals has decided an impor-

tant question of federal law which has not been, but should

be, settled by this Court.

3

QUESTIONS PRESENTED FOR REVIEW

I

MAY A CONVICTION FOR PERJURY PROP-

ERLY BE BASED UPON GRAND JURY

QUESTIONING OCCURRING PRIOR TO THE

EFFECTIVE DATE OF UNITED STATES

V. CALANDRA, 1974, 414 U.S. 338, WHICH

QUESTIONING ADMITTEDLY RELATED TO

AND GREW OUT OF ILLEGALLY SEIZED

EVIDENCE?

Il

MAY THE “EXCLUSIONARY RULE” OF

WEEKS V. UNITED STATES, 1914, 232 U.S.

383, BE SUSPENDED ON AN AD HOC BASIS

IN THOSE CASES IN WHICH (a) THE

COURT DETERMINES THAT THE PARTIC-

ULAR ORDER OF SUPPRESSION WOULD

HAVE NO DETERRENT EFFECT ON FU-

TURE POLICE ACTIVITY OR (b) IN WHICH

THE ALLEGED OFFENSE IS COMMITTED

SUBSEQUENT TO THE ILLEGAL SEARCH?

Ill

DOES THE CONCEDEDLY ILLEGAL SEI-

ZURE OF A TAPE RECORDING OF A PAST

TELEPHONE CONVERSATION AND THE

SUBSEQUENT REPRODUCTION THEREOF

CONSTITUTE AN “AURAL ACQUISITION”

WITHIN THE MEANING OF THE OMNIBUS

CRIME CONTROL AND SAFE STREETS

ACT?

4

CONSTITUTIONAL, STATUTORY AND RULE

PROVISIONS INVOLVED

United States Constitution, Amendment Four:

The right of the people to be secure in their

persons, houses, papers and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the person or things to be seized.

United States Code: 18 U.S.C., Section 2510:

(2) “oral communication” means any oral

communication uttered by a person exhibiting an

expectation that such communication is not sub-

ject to interception under circumstances justify-

ing such expectation ;

* _ &

(4) “intercept” means the aural acquisition

of the contents of any wire or oral communica-

tion through the use of any electronic, mechani-

cal, or other device;

* ° *

(8) “contents,” when used with respect to

any wire or oral communication, includes any

information concerning the identity of the parties

to such communication or the existence, sub-

stance, purport, or meaning of that communica-

tion;

5

United States Code, 18 U.S.C., Section 2515:

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived there-

from may be received in evidence in any trial,

hearing, or other proceeding in or before any

... grand jury ... if the disclosure of that in-

formation would be in violation of this chapter.

Rules of the Supreme Court of the United States,

Revised, and as amended to November 15, 1975:

Rule 19(1) (b):

Where a court of appeals has rendered a deci-

sion in conflict with the decision of another court

of appeals on the same matter; or has decided

an important state or territorial question in a

way in conflict with applicable state or territorial

law; or has decided an important question of

federal law which has not been, but should be,

settled by this court; or has decided a federal

question in a way in conflict with applicable de-

cisions of this court; or has so far departed from

the accepted and usual course of judicial pro-

ceedings, or so far sanctioned such a departure

by a lower court, as to call for an exercise of this

court’s power of supervision.

6

STATEMENT OF THE CASE

On July 13, 1973, one Charles Kabbaby and another

individual (Glenn Roblin) were stopped by local Dade

County police and arrested based upon a tip by an in-

formant that Kabbaby would be carrying a quantity of

drugs in his automobile. Incident to the arrest of these

two men, the police inventoried the car and found a tape

player and a cassette recording in the trunk.

When asked by the police whether there was anything

on the cassette, Kabbaby stated that there was “nothing”

on it. Nevertheless, the police, soniewhat tongue-in-cheek,

took the position that they would have to “inventory” the

words on the cassette in order to make sure that “nothing”

was not lost. The police officers testified that they soon

realized that they were listening to a recording of a pri-

vate telephone conversation which, obliquely, appeared to

relate to a smuggling venture involving certain quantities

of unknown goods.

One of the parties to the conversation being overheard

mentioned his telephone number. The police checked with

the telephone company in order to determine who the

subscriber of the telephone number was, and thereby dis-

covered the existence and identity of the petitioner as one

of the parties to the conversation.

Subsequently, Mr. Turk was subpoenaed before a

Grand Jury, invoked the protection of the Fifth Amend-

ment, and was granted immunity. Nevertheless, his coun-

sel took the position that (a) the action of the police in

replaying and retaping the telephone conversation was an

“aural acquisition” of the contents of a telephone conver-

7

sation within the ambit of Title 18 U.S.C., §2510(2), (4)

and (8); (b) that acting without warrant or consent, the

police conduct was illegal and not a valid inventory at all;

and ¢c) that under 18 U.S.C., §2515, the illegally obtained

contents of a telephone conversation could not be the basis

for questioning petitioner before the Grand Jury. The

trial court refused to suppress the cassette recording on

the basis that the police had illegally overheard its con-

tents and further ruled that the electronic and mechanical

recording provisions of the Omnibus Crime Control and

Safe Streets Act did not apply. Under threat of contempt,

petitioner testified before the Grand Jury.

Thereafter, petitioner was indicted for committing

perjury before the Grand Jury as a result of his having

denied that his tape recorded telephone conversation with

Kabbaby concerned a recent drug smuggling venture.

Prior to petitioner’s trial, his attorney once again moved

to suppress for the use as evidence in the trial of the case

the cassette tape recording. The trial] court ruled that

while Kabbaby had standing to attack the police seizure

and replaying of the cassette and while it was of the opin-

ion that the police conduct was illegal, petitioner did not

have standing to assert a violation of his Fourth Amend-

ment rights. Accordingly, during petitioner’s trial, the

court ruled that the tape was admissible as a part of the

Government’s case-in-chief and allowed the tape to be

played before the Jury.

On appeal, the Fifth Circuit ruled that petitioner did

have standing to object to the police overhearing his pri-

vate telephone conversation with Kabbaby and that, as

the trial court ruled, the conduct of the police in listening

to the tape was not sustainable on the basis of needing to

8

inventory the words on the tape. Hence, the Fifth Circuit

ruled that the acquisition by the police of the contents of

the tape was illegal and that petitioner had standing to

object to it. The court, however, would not accede to peti-

tioner’s argument that the police listening constituted an

interception as that term is defined in 18 U.S.C., $2510(2).

Notwithstanding its determination that petitioner had

standing, and that his private telephone conversation with

Kabbaby had been illegally overheard, the court ruled

that it was necessary to employ a “balancing process,”

like that reflected in United States v. Calandra, 1974, 414

U.S. 338, in order to determine whether or not exclusion

of the tape would have a sufficient deterrent effect upon

the police in the future, \o justify denying the Government

this valuable evidence in the presentation of its case. The

court found that the police would not be deterred in the

future if this evidence was excluded, and that, therefore,

the Government could use the tape in its case-in-chief.

Finally, the Court also held that the holding in United

States v. Calandra, supra, applied to petitioner’s pre-1974

Grand Jury appearance and that, therefore, there was no

error in the use of the illegally seized tape before the

Grand Jury.

9

REASONS RELIED UPON FOR GRANTING

THE WRIT

WITH RESPECT TO QUESTIONS ONE AND

TWO, DEALING WITH THE RETROAC-

TIVITY OF CALANDRA AND THE CREA-

TION OF A NEW EXCEPTION TO THE

EXCLUSIONARY RULE, THE DECISION

BELOW CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER COURTS OF

APPEAL AND DISTINCTLY DECIDES IM-

PORTANT QUESTIONS OF FEDERAL LAW

WHICH HAVE NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT.

A. Gross departure from retroactivity standards.

Existing law at the time of petitioner’s appearance

before the Grand Jury in November-December, 1973, was

embodied in the Sixth Circuit’s decision in United States

v. Calandra, 465 F.2d 1218 (6th Cir. 1972), to the effect

that the exclusionary rule may be invoked by a witness

subpoenaed to appear before a grand jury in order to bar

questioning based on evidence obtained in an unlawful

search and seizure. What is so deeply disturbing about

the Fifth Circuit’s treatment of the retroactivity issue

implicit in its decision is either its misinterpretation (or

misapplication) of United States v. Peltier, 1975, ——

U.S.— , 95 S.Ct. 2313, or its creation of a double stand-

ard in determining retroactivity in new “search and seiz-

ure cases,” which is what this Court’s decision in Calandra

heralded.

10

In Peltier, this Court held:

“It is indisputable ... that in every case in which

the court addressed the retroactivity problem in

the context of the exclusionary rule, whereby

concededly relevant evidence is excluded in order

to enforce a constitutional guarantee that does

not relate to the integrity of the factfinding

process, the court has concluded that any such

new constitutional principle would be accorded

only prospective application.” (Emphasis

supplied).

The Fifth Circuit refused to accord to petitioner the

benefit of the above “indisputable” rule. Even though

petitioner’s appearance before the Grand Jury was pre-

Calandra and, even though the Fifth Circuit assumed,

arguendo, that pre-Calandra law was contrary to this

Court’s ultimate holding in Calandra, it, nonetheless, ap-

plied a new rule of “search and seizure” retroactively.

Perhaps even more startling is the rationale for this

novel ruling. Peltier recognized that the “imperative of

judicial integrity” could not be offended where, prior to

the announcement of a new search and seizure standard,

courts upheld, and applied, then-existing law in evaluating

police search and seizure conduct. Accordingly, Peltier

noted that the Mapp' decision was not retroactive because

the use in state trials of illegally seized evidence had long

been authorized by the court since Wolf v. Colorado,? Link-

letter v. Walker, 381 U.S. 618, 638, 85 S.Ct. 1731, 1742,

14 L.Ed.2d 601 (1965).

1367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

2338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949),

11

In the instant case, however, the rule of law existing

at the time of petitioner’s grand jury appearance barred

the interrogation of a witness based upon evidence seized

in violation of his Fourth Amendment rights. If judicial

integrity is thought not to be offended when, prior to a

new search and seizure ruling, courts had consistently

applied the then existing law, it surely must be offended

when a court did not properly apply the law extant at the

time of its ruling.

The Fifth Circuit’s answer to this anomaly was to

disregard analysis along the lines of “judicial integrity.”

Instead, it decided that where, because of a change in the

law, a previously erroneous ruling was now “right.” it

saw no sense in overturning the lower court’s decision—

even though it was wrong at the time. Besides engender-

ing a taste of distinct unfairness, such a decision creates,

in effect, a double-standard, to wit: a new rule of law in

the area of Fourth Amendment rights is not retroactive,

except where it takes away from, or narrows, a person’s

former rights, in which case the new rule applies. But if

the new rule broadens one’s Fourth Amendment rights,

then the old rule applies so as to deprive you of the new,

more expansive, changes.

The Fifth Circuit’s decision neither accords with the

“indisputable” rule against retroactivity recognized in

Peltier nor proceeds in accordance with the deference paid

the “imperative of judicial integrity” in that decision.

Though on its merits Calandra obviously changed existing

law, the decision below has distorted, if not discarded,

classic retroactivity tests in order to arrive at its decision.

12

B. The “Exclusionary Rule’ Under Attack.

This may well be the first case in the federal judicial

system in the sixty-two (62) years since Weeks v. United

States’ where a court has held that the Government may

use illegally seized evidence in its case-in-chief under cir-

cumstances where (1) the court concedes that the evidence

was taken in violation of the defendant’s Fourth Amend-

ment rights; (2) the defendant is acknowledged to have

standing to complain as to the Government’s seizure; and

(3) there is no finding that the use of the evidence was

harmless error, Oddly enough, this monumental departure

from existing law did not emerge from an analysis, for

example, of this Court’s recent trend toward determining

whether the police acted in “good faith.” Michigan v.

Tucker, 417 U.S, 433, 94 S.Ct. 2357, 41 L.Ed.2d 182

(1974). Of course, the lower court could not have travelled

that road at all because even it had held that the govern-

ment’s claim that the police felt a need to “inventory” the

words on the cassette was “at the least, disingenuous.”

United States v. Turk, supra, at p. 666.

Instead, the Court relied almost solely on Calandra,

supra, where this Court had explicitly held that the il-

legally seized evidence which it was allowing the govern-

ment to use before the Grand Jury could not be used at or

in any later trial of the putative defendant:

“* * * The incentive to disregard the requirement

of the Fourth Amendment solely to obtain an in-

dictment from a grand jury is substantially ne-

gated by the inadmissibility of the illegally seized

~ 3232 U.S. 383, 34S.Ct. 341, 58 L.Ed. 654 (1914).

13

evidence in a subsequent criminal prosecution of

the search victim.” Id., 414 U.S., at 351, 94 S.Ct.

at 621.

In a footnote the Court even specifically cautioned

that a grand jury witness had other remedies available to

redress the injury to his privacy caused by an illegal

search :

“He may also seek .. . exclusion of the property

and its fruits from being used as evidence against

him in a criminal trial. * * *” Jd., 414 U.S., at

354, 948.Ct., at 623.

With respect to the admission of illegally seized evi-

dence vt the trial of a case, Calandra absolutely did not

suggest the employment of a “balancing process” by which

to gauge the value of deterrence and, thereby, arrive at a

judgment as to whether evidence is admissible or not. But

that is what the Fifth Circuit effectively held below. To

date, this court has not receded one bit from the “exclu-

sionary rule” or from Weeks v. United States.

More recently, the Second Circuit in United States v.

Karathanos, ___. F.2d ____, 18 Cr.L. 2465 (2d Cir., 2/2/

76) expressly declined to modify in any way the exclusion-

ary rule, even in cases where it perceived that the deter-

rent purposes of the rule might not be fulfilled.

The decision below, if permitted to stand, has the

real potential for causing District Courts in the Fifth Cir-

cuit to begin deciding, under some type of “balancing proc-

ess,” whether they will admit illegally seized evidence or

not in spite of the fact that the “law of the land” is that

14

if evidence has been illegally taken in derogation of a de-

fendant’s Fourth Amendment rights, it is flatly inadmis-

sible in the Government’s case-in-chief. Case by case, the

courts will determine when to suspend the rule and when

not to, while this court has never created such an ad hoc

test.

Review is earnestly sought and strongly urged on this

point.

THE DECISION BELOW, RESPECTING THE

INAPPLICABILITY OF CERTAIN PROVI-

SIONS OF THE OMNIBUS CRIME CON-

TROL AND SAFE STREETS ACT, RAISES

IMPORTANT QUESTIONS CONCERNING

THE INTENDED CONGRESSIONAL REACH

OF A FEDERAL LAW WHICH HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY

THIS COURT.

“Cassettes,” or tape reels, are a very current means

of oral communication, as well as recordation, in the

United States today. Families communicate by cassette

with sons overseas; messages are left on record-a-phone

reels which can be replayed at the leisure and convenience

of the receiver; instructions and directions in the comple-

tion of components installations are transmitted by cas-

sette and tape; secret (and “impossible’) missions and

reports are communicated between high level government

agents and officers.

15

The iegislation underlying Chapter 119, Title 18,

United States Code (known as the “Omnibus Crime Con-

trol and Safe Streets Act of 1968”) was formulated and

passed by Congress in response to the disturbing increase

in America in the use of electronic and mechanical

“techniques” to overhear private, oral communications be-

tween persons. 1968 U.S. Code and Cong. and Admin.

News, Voi. 2, p. 2154.

Title III of the Act, according to its legislative history,

has as its dual purpose “(1) protecting . . . oral communi-

cations, and (2) delineating on a uniform basis the cir-

cumstances and conditions under which the interception

of ... oral communications may be authorized.” J/d., at

p. 2153. “To assure the privacy of oral . . . communica-

tions, title III prohibits all . . . electronic surveillance

[except as authorized by law}].” /bid. Certain, specific

exceptions are noted thereto, none of which are applicable

here.

The import of the problem is not limited to certain

types of electronic interception and surveillance, or certain

types of devices. As described in Title III’s history, Con-

gress was deeply concerned with “|tjhe tremendous sci-

entific and technological developments that have . . . made

possible . . . the widespread use and abuse of electronic

surveillance techniques.” Not just the privacy of telephone

conversations were being impaired, but, on a whole, Con-

gress unhappily found that “privacy of communication is

seriously jeopardized by these techniques of surveillance.”

The definitions employed in Section 2510 of the Act

(Title 18, Chapter 119, United States Code) were inten-

tionally broad. “Oral communication” is defined as “any

16

oral communication uttered by a person exhibiting an

expectation that such communication is not subject to

interception under circumstances justifying such expecta-

tion.” Section 2510(2). “Intercept” in subparagraph (4)

of Section 2510 was defined as the “aural acquisition of

the contents of any .. . oral communication through the

use of any mechanical, or other device.” Finally, “contents”

with respect to an “oral communication” is defined in

subparagraph (8) as “any information concerning . . .

the existence, purport or meaning of that communication.”

The “joyride” taken by the police through the private,

oral communications of the petitioner and others in this

case was without a semblance of judicial authorization,

and without the consent of any of the parties to those

communications. It constituted exactly the type of irre-

sponsible, abuse of privacy prohibited by the legislation—

aided by current technological developments in the area of

“aural acquisition.”

The decision below erred in not strictly enforcing the

congressional sanction designed to be imposed by Section

2515 in cases where telephone conversations are seized

moments or days after their memorialization.

17

CONCLUSION

For the above and foregoing reasons a writ of cer-

tiorari should issue to review the judgment and opinion

of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

GEORGE D. GOLD and

WILLIAM M. MORAN

MORAN & GOLD, P.A.

Suite 608 Concord Building

166 West Flagler Street

Miami, Florida 33130

Attorneys for Petitioner

18

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies hereof were

mailed to the Solicitor General, Department of Justice,

Washington, D.C. 20530, this 7th day of May, 1976.

;

j

i

'

APPENDIX

INDEX TO APPENDIX

Page

APPENDIX A

Opinion of the Fifth Cirevit - Siaecoaias App. 1-38

APPENDIX B

Order Denying Rehearing Petition and

Rehearing En Bane >= App. 8889

APPENDIX C

Order Granting Extension of Time to

PRE STEED sninttsceinecisiieaneinecenanteecniemnnencudiiign App. 40

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

No. 74-3626,

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

FREDERICK JOSEPH TURK,

Defendant-Appellant.

Jan, 29, 1976.

By a judgment of the United States District Court for

the Southern District of Florida, at Miami, Peter T. Fay,

J., the defendant was convicted of perjury and he appealed.

The Court of Appeals, Goldberg, Circuit Judge, held, inter

_ alia, that the police playing of seized tape-recorded tele-

phone conversation of defendant did not constitute an in-

terception of the conversation within meaning of protective

statute, that the playing of tape without a warrant and

without consent of person from whose automobile it was

seized was illegal but that the policies underlying exclu-

sionary rule showed that the tape was properly admitted,

that government did not violate terms of immunity order

by using defendant’s truthful statements to grand jury

against him and that any error in court’s instructions on

reasonable doubt was harmless.

Affirmed.

App. 2

Dyer, Circuit Judge, with whom Gewin, Circuit Judge,

joined, filed a specially concurring opinion.

1. Telecommunications —495

Action of party to telephone conversation in recording

conversation with defendant was an “interception” within

statutory definition under the Omnibus Crime Control and

Safe Streets Act, but was not violative of Act which spe-

cifically exempts situations in which one party to the con-

versation is the interceptor, 18 U.S.C.A. §§2510(4),

2511(2) (d), 2515.

2. Telecommunications —495

Party exemption from prohibition against interception

of wire or oral communication is inapplicable only if the

interception is for the purpose of criminally committing

any criminal or tortious act, and the exemption applies

even if the purpose of the conversation is criminal as long

as the purpose of the recording is not. 18 U.S.C.A.

§ 2510(4).

3. Telecommunications —494

For purpose of statutory definition of interception as

the aural acquisition of contents of wire or oral communi-

cation the tape recorder can be the agent of the ear, so

that if person secrets a recorder and thereby records con-

versation between others an “aural acquisition” occurs at

the time recording is inade. 18 U.S.C.A. § 2510(4).

App. 3 |

4. Telecommunications —494

Within meaning of statute defining the interception of

a communication as the aural acquisition of contents of any

wire or oral communication, an “interception” requires,

at least, involvement in the initial use of the device con-

temporaneous with the communication to transmit or to

preserve the communication. 18 U.S.C.A. § 2510(4).

5. Telecommunications —492

While Congress in enacting proscriptions against the

unauthorized interception of oral communications was

clearly concerned with protection of individual’s privacy

interest against unjustifiable intrusions, it did not attempt

to deal with all such intrusions; its specific focus was on

problem of wiretapping and electronic surveillance. 18

U.S.C.A. § 2510.

6. Telecommunications —495

No new and distinct interception of telephone conver-

sation occurred when the contents of the conversation were

revealed through action of police in replaying of previous

recording made by one of the parties to conversation. 18

U.S.C.A. §§ 2510-2520.

7. Telecommunications —495

Action of police in playing, without a warrant, tape of

telephone conversation between arrestee and defendant

without consent of arrestee after seizure of tape from

arrestee’s stopped car along with cocaine and firearms, was

improper notwithstanding claim of government that play-

App. 4

ing of tape, which arrestee told police contained nothing,

constituted a valid inventorying procedure. U.S.C.A. Const.

Amend. 4.

8. Courts —100(1)

Court must look at purposes of exclusionary rule to

determine whether Supreme Court decision should be

applied retroactively.

9. Criminal Law —394.4 (1)

Prime purpose of rule excluding illegally seized evi-

vidence is deterrent of future illegal searches.

10. Grand Jury —33

Since a holding that the illegally seized tape recording

should have been suppressed at grand jury proceedings held

prior to United States Supreme Court decision stating that

Fourth Amendment exclusionary rule cannot be invoked by

a witness before grand jury would have absolutely no de-

terrent effect, there was no error in using tape at grand

jury which returned perjury indictment. U.S.C.A.Const.

Amend. 4.

11. Searches and Seizures —7 (1)

Fourth Amendment does not require adoption of every

proposal that might deter police misconduct. U.S.C.A.

Const. Amend. 4.

App. 5

12. Criminal Law —394.4(1)

Where government had granted immunity to defend-

ant who knew that government had seized tape recording of

incriminating conversation between defendant and another

and was familiar with its contents and defendant then

proceeded to commit crime of perjury before grand jury,

the suppression of the illegally seized tape at perjury trial

would have no significant deterrent effect, and it was not

error to admit the tape. U.S.C.A.Const. Amend. 4.

13. Criminal Law —394.4(1)

Evidence obtained in an illegal search may properly

be admitted in perjury trial of victim of search where the

alleged perjury occurs after the searcu and with the knowl-

edge on part of victim that the search has taken place.

U.S.C.A.Const. Amend. 4.

14. Criminal Law —42

In view of record showing that government had no

need to use defendant’s truthful statements at grand jury

proceeding to identify individual named in incriminating

taped telephone conversation of defendant, since police had

seized the tape from car in which they found and arrested

the occupants, including such individual who became a ma-

jor witness against defendant in his perjury prosecution,

it could not be successfully claimed that government had

violated terms of the use immunity order covering his

grand jury testimony by using his truthful statements to

identify person named in recording. 18 U.S.C.A. § 6001.

App. 6

15. Criminal Law —789 (12)

District courts should employ the “would not hesitate”

language in defining reasonable doubt as meaning proof

of such convincing character that the jurors would not

hesitate to act upon it in the most important of their

affairs.

16. Criminal Law —818

Where judge has made an accurate and correct charge

the extent of its amplification must rest largely within his

discretion.

17. Criminal Law —822(16)

Upon reading entire charge on reasonable doubt in

perjury prosecution, it could not be said that the inclusion

of one ambiguous sentence that “such doubt must be sub-

stantial” and the failure to include the desirable “would not

hesitate” language rose to the level of reversible error,

since charge as a whole conveyed the proper idea and any

error that might be found in ambiguous sentence was

harmless,

Appeal from the United States District Court for the

Southern District of Florida.

Before GEWIN, GOLDBERG and DYER, Circuit

Judges.

App. 7

GOLDBERG, Circuit Judge:

Frederick Joseph Turk was convicted of committing

perjury in his testimony before a federal grand jury. Most

of the issues in this appeal relate to the manner in which

law enforcement officials became privy to a telephone con-

versation between Turk and an acquaintance. Although our

analysis of these issues differs from that of the trial court,

our conclusions are to the same effect — Turk is entitled to

no relief on his claims that the Government has abridged

his statutory and fourth amendment rights. We are also

unpersuaded by Turk’s other arguments, and thus we af-

firm the conviction.

I. THE FACTS

On July 13, 1973, officers of the Dade County Public

Safety Department received a tip that two individuals

would soon leave a specified Miami residence in a silver

sports car containing cocaine and firearms. The officers

stopped the car, discovered these illicit contents and ar-

rested the two individuals, Charles Kabbaby wud Glenn

Roblin. At that time the officers removed from the car

among other objects, a box containing a cassette tape re-

corder-player and two cassette tapes. Kabbaby told them

that “nothing” was on the tapes. The officers then pro-

ceeded to play the tapes at the stationhouse, without Kab-

baby’s permission and without attempting to obtain a

warran.. They soon realized that they were listening, on

one of the tapes, to a recording of a private telephone con-

versation between Kabbaby and someone called “Freddy.”

The officers continued to listen out of “curiosity.”

App. 8

In the course of the recorded conversation, Freddy

mentioned his telephone number, which the authorities

were able to use to locate him. Freddy was, of course, Fred-

erick Turk, the appellant. Turk was then subpoenaed to

appear before a federal grand jury that was investigating

possible violations of federal narcotics laws, He initially

invoked his fifth amendment privilege not to testify. After

he was granted immunity from prosecution pursuant to 18

U.S.C. § 6001, he returned to testify before the grand jury

on November 27 and December 11 of 1973. During Turk’s

testimony, the following colloquy, and others like it, took

place between government counsel (Q.) and Turk (A.):

Q. Let me ask you one final question, Mr. Turk.

Have you ever at any time been engaged in

buying, selling, or otherwise trafficking in

marijuana or any other narcotic substance?

A. No. Sir.

Turk was subsequently indicted on two counts of mak-

ing “irreconcilably contradictory statements” and two

counts of obstruction of justice. A superseding indictment,

dated July 10, 1974, added two counts of perjury. In a

jury trial in September, 1974, Turk was found guilty on

one count of perjury, for having denied any involvement in

marijuana trafficking. Over Turk’s objections and motions

to suppress, the tape seized from Kabbaby’s car was played

both at the grand jury before which he is alleged to have

perjured himself, and at his perjury trial, The Govern-

ment’s other evidence at the trial consisted primarily of

the testimony of Glenn Roblin and two other individuals

who purported to have some personal knowledge relating

to Turk’s involvement in the importation of marijuana.

<=

App. 9

Il. THE SEARCH

A. The Omnibus Act.

[1,2] Title III of the 1968 “Omnibus Crime Control

and Safe Streets Act,” codified at 18 U.S.C. $§ 2510-2520,

proscribes generally the interception or disclosure of wire

or oral communications, and provides a procedure through

which law enforcement officials can be authorized to in-

tercept such communications in certain limited circum-

stances. Turk argues that the action of the officers in lis-

tening to the cassette tape seized from Kabbaby’s car con-

stituted an impermissible “interception” of Turk’s oral

communication, as defined in 18 U.S.C. § 2510(4). If this

argument is valid, then the introduction of the tape into

evidence at the grand jury proceeding and at Turk’s trial

might have been barred by 18 U.S.C. § 2515, a statutory

exclusionary rule.

“intercept” means the aural acquisition of the

contents of any wire or oral communication

through the use of any electronic, mechanical, or

other device.

§ 2510(4) provides:

Kabbaby’s action in recording his conversation with Turk

was clearly an interception under this definition. This in-

terception was not violative of the Act, however, because

§ 2511(2) (d) specifically exempts situations in which one

party to the conversation is himself the interceptor'

1See Smith v. Cincinnati Post & Times-Star, 6 Cir. 1973, 475 F.2d

740; Smith v. Wunker, S.D.Ohio 1972, 356 F.Supp. 44. The party ex-

emption is inapplicable only if the interception is “for the purpose of

committing any criminal or tortious act.” The exemption ies, then,

even if the purpose of the conversation is criminal, as long as the

purpose of the recording is not.

App. 10

Whether the seizure and replaying of the cassette tape

by the officers was also an “interception” depends on the

definition to be given “aural acquisition.” Under one con-

ceivable reading, an “aural acquisition” could be said to

occur whenever someone physically hears the contents of

a communication, and thus the use of the tape player by the

officers to hear the previously recorded conversation might

fall within the definition set out above. No explicit limita-

tion of coverage to contemporaneous “acquisitions” appears

in the Act.

[3,4] We believe that a different interpretation —

one which would exclude from the definition of “intercept”

the replaying of a previously recorded conversation — has

a much firmer basis in the language of § 2510(4) and in

logic, and corresponds more closely to the policies reflected

in the legislative history. The words “acquisition .. .

through the use of any . . . device” suggest that the central

concern is with the activity engaged in at the time of the

oral communication which causes such communication to

be overheard by uninvited listeners. If a person secrets a

recorder in a room and thereby records a conversation be-

tween two others, an “acquisition” occurs at the time the

recording is made. This acquisition itself might be said to

be “aural” because the contents of the conversation are

preserved in a form which permits the later aural disclo-

sure of the contents.” Alternatively, a court facing the issue

might conclude that an “aural acquisition” is accomplished

only when two steps are completed — the initial acquisition

by the device and the hearing of the communication by the

2In a forest devoid of living listeners, a tree falls. Is there a

sound? The answer is yes, if an active tape recorder is present, and

the sound might be thought of as “aurally acquired” at (almost) the

instant the action causing it occurred. For § 2510(4) purposes, the

recorder can be the agent of the ear.

App. 11

person or persons responsible for the recording.’ Either of

these definitions would require participation by the one

charged with an “interception” in the contemporaneous ac-

quisition of the communication through the use of the de-

vice. The argument that a new and different “aural ac-

quisition” occurs each time a recording of an oral commu-

nication is replayed is unpersuasive. That would mean

that innumerable interceptions,” and thus violations of

the Act, could follow from a single recording.*

Another provision of the Act lends support to the view

that “interception” should not be read to include the de-

rivative acquisition at issue here. § 2511(1)(c) makes un-

lawful the disclosure of the contents of wire or oral com-

munications which have been illegally intercepted. At least

one sort of derivative acquisition, then, is not an “inter-

ception” — if the acquisition through disclosure from a

primary interceptor were meant to be a new “intercep-

3In the typical case of wiretapping or electronic surveillance, these

two steps would probably occur simultaneously. If, however, the re-

cording is made, but is destroyed before anyone can hear it, whether

there has been an “aural acquisition” is a nice question. Since the

Act provides for civil damages, 18 U.S.C. §2520, in addition to the

statutory exclusionary rule, 18 U.S.C. § 2515, the question could be

significant. We need not reach it here, of course, since we conclude

that an “interception” requires, at the least, involvement in the initial

use of the device contemporaneous with the communication to transmit

or preserve the communication.

*Also, for a replaying to be an “acquisition,” the listener would

have to preserve the contents in her memory. Further, one already

familiar with the contents presumably could not “acquire” them again.

Absent express language so indicating, we find it very difficult to

believe that Congress intended the applicability of Title III to turn on

such fortuities.

App. 12

tion,” Congress in its wisdom presumably would not have

added a separate section providing a redundant sanction.’

(5, 6] Appellant concedes that he reads the defini-

tion sections of the Act “rather broadly,” but argues that

such a reading is buttressed by the legislative history. We

disagree. While Congress clearly was concerned with the

protection of individual’s privacy interests against unjusti-

fied intrusions, it did not attempt through Title III to deal

with all such intrusions. The specific focus of Title III is

reflected in the many references in the legislative history

to the problem being dealt with as “wiretapping and elec-

tronic surveillance.” See 2 U.S. Code, Cong. & Admin.

News, pp. 2153-63, 2177-97 passim (90th Cong., 2d.Sess.

1968). The Senate Report, in explicating § 2510, contains

the following:

Paragraph (4) defines “intercept” to include

the aural acquisition of the contents of any wire

or oral communication by any electronic, mechan-

ical, or other device. Other forms of surveillance

are not within the proposed legislation.

Id. at 2178 (emphasis added). This passage indicates that

the act of surveillance and not the liters’ “aural acquisi-

tion” (i.e., the hearing), which might be contemporaneous

with the surveillance, or might follow therefrom, was at the

center of congressional concern. “Aural acquisition” seems

to have been used by the Congress neither as a term of art

The facts in this case reveal no “disclosure” by Kabbaby and, in

any event, Kabbaby’s interception was not illegal under Title III.

§ 2511(1)(c) is noted here only to demonstrate that the § 2510(4)

definition of “intercept” should not be read to include every situation

in which a person “aurally acquires” (read: “hears”) the contents of

a communication through the use of a device.

App. 13

nor as a term of technology. Whatever the precise temporal

parameters under Title III of an “aural acquisition” (and

thus of an interception), we conclude that no new and dis-

tinct interception occurs when the contents of a communi-

cation are revealed through the replaying of a previous

recording.

B. The Fourth Amendment.

Turk argues that whatever the relation of the Omni-

bus Act to this unusual situation, his conviction was

tainted independently through the violation by the officers

of his fourth amendment rights. The assertion is that the

manner in which the police played and listened to the cas-

sette tape constituted an illegal search and seizure. For

Turk’s conviction to be reversed on this ground, we would

need to come to the following conclusions: that Turk had

“standing” to raise this claim; that there was in fact an

illegal search and seizure; and the introduction of the il-

legally seized evidence (and other evidence developed from

it) at Turk’s perjury trial was error; and that such error

was not harmless.

1. Standing.

In this fourth amendment context, the requirement of

“standing” means that only a “person aggrieved” by an

unlawful search can invoke the rule that no evidence un-

covered by such a searcn may be admitted in a criminal

prosecution, The trial court expressly stated that the “sole

basis” for its denial of Turk’s motion to suppress the tape

was that Turk lacked standing. Whether a party to a con-

versation recorded by the second party has standing to

complain that police illegally seized the recording from the

App. 14

second party is a new and intriguing question. We would

not be compelled to reach the merits of the search and

seizure issue if we were able simply to agree with the dis-

trict court’s conclusion on standing, and so I feeij that it is

appropriate to indicate the analysis which leads me to a

different conclusion.‘

6As evidenced by their concurring opinion, my Brothers believe

that the threshold question of whether Turk had standing to contest the

search need not be answered. Our disagreement over whether the stand-

ing issue should be pretermitted does not turn on any substantive con-

siderations but rather reflects slightly differing views of the norms of

judicial prudence. Pretermission of issues is clearly appropriate in

many instances—as a general rule of prudence, a court should reach

the minimum number of issues necessary to decide the case before it.

Consideration of the issue of jurisdiction, however, can never be elided.

In my view, the question of standing to contest a search is similar, for

purposes of determining the propriety of pretermission, to the question

of jurisdiction. As with the general question of standing to sue, see

note 7, infra, the question of standing to contest a search is one which

asks whether an issue is justiciable. It seems to be a sound jurispruden-

tial principle that before an issue is decided, a court should first decide

that the issue is justiciable.

I cannot agree, then, that the proper technique for review in a

situation such as this is to decide, as a first question, whether the

evidence is suppressible, and to decide, as a second question, whether

the first question is properly before the court only if the answer to the

first question is yes. I think that it is particularly appropriate to indi-

cate why we conclude that the party had standing when the district

court expressly made the party’s lack of standing the basis of its dis-

position of the issue. See Diggs v. Shuitz, 1972, 152 U.S.App. D.C.

313. 470 F.2d 461, cert. denied. 411 U.S. 931, 93 S.Ct. 1897, 36

L.F.d.2d 390. (McGowan, J.), in which the district court had dismissed

for lack of standing to sue. The Court of Appeals discussed the stand-

ing question and concluded that plaintiffs did have standing, but af-

firmed the dismissal on the ground that the claim was not one in

respect of which relief could be granted.

Unlike the ancient conundrum of chicken and egg, I feel that the

issues before us here present themselves in a discernable order to

which we would adhere—I believe substantive issues should not be

ciacked unless we first determine that the parties are postured to strike

at them. In the circumstances of this case, my colleagues do not agree,

so my discussion of standing should be read as a concurring opinion,

and the remainder of the fourth amendment discussion should be read

as if prefaced by. “Assuming, arguendo, that Turk had standing. . . .”

App. 15

The analytical basis of the doctrine of standing for

motions to suppress cannot be found in “case or contro-

versy” principles.’ Rather, one must look to the policies

underlying the exclusionary rule itself in seeking to under-

stand this limitation on its invocation. The Supreme Court

has recently stated:

The purpose of the exclusionary rule is not to

redress the injury to the privacy of the search

victim .... Instead, the rule’s prime purpose is to

deter future unlawful police conduct and thereby

effectuate the guarantee of tk “ourth Amend-

ment against unreasonable searches and seizures

.... In sum, the rule is a judicially created

remedy designed to safeguard Fourth Amend-

ment rights generally through its deterrent ef-

fect, rather than a personal constitutional right

of the party aggrieved.

United States v. Calandra, 1974, 414 U.S. 338, 347-48, 94

S.Ct. 613, 619, 38 L.Ed.2d 561.°

7See United States v. Hunt, 5 Cir. 1974, 505 F.2d 931. The general

requirement that a litigant demonstrate standing in order to be permit-

ted to pursue a lawsuit is based on the concern that unless the claimant

alleges a specific, unique injury resulting from the wrong, a court

cannot be assured that a concrete “case or controversy” is presented,

and the court may be unable to tailor relief closely to well defined

claims. See Korioth v. Briscoe, 5 Cir. 1975, 523 F.2d 1271. In con-

trast, there is little doubt that a defendant seeking to have evidence

against him suppressed will eagerly pursue the issue of the legality of

the search, and no problems of unspecific or overbroad requests for

relief inhere in such a motion.

8Calandra quoted with approval the following language from

Elkins v. United States, 1960, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444,

4, L.Ed.2d 1669:

The rule is calculated to prevent, not to repair. Its purpose is

to deter—to compel respect for the constitutional guaranty in

(Footnote Continued on Next Page)

App. 16

The Court has often noted another function served

by the rule—‘“the imperative of judicia] integrity.’”® As

stated in Terry v. Ohio, 1968, 392 U.S. 1, 12-13, 88

S.Ct. 1868, 20 L.Ed.2d 889, 1875:

Courts which sit under our Constitution cannot

and will not be made party to lawless invasions of

the constitutional rights of citizens by permitting

unhindered governmental use of the fruits of

such invasions.

This second rationale for the rule has been criticized.'®

and recent Supreme Court opinions have left its exact sta-

tus unclear."

(Footnote Continued from Preceding Page)

the only effectively available way—by removing the incentive

to disregard it.

See also Mapp v. Ohio, 1961, 367 U.S. 643, 656, 81 S.Ct. 1684, 6

L.Ed.2d 1081.

°Elkins v. United States, supra note 8, 364 U.S. at 222, 80 S.Ct.

1437. See also, e. g. Mapp v. Ohio, supra note 8, 367 U.S. at 660, 81

S.Ct. 1684; Linkletter v. Walter, 1965, 381 U.S. 618, 637-38, 85 S.Ct.

1731. 14 L.Ed.2d 601.

10The “judicial integrity” rationale has been criticized on the

vround that popular perception might see judicial integrity as better

served by convicting dangerous criminals, than by freeing them be-

cause of trivial police errors. See Kaplan, The Limits of the Exclusion-

ary Rule, 26 Stan.L.Rev. 1027, 1036 n. 53. It has also been suggested

that this rationale is inconsistent with principles of separation of

power, with the requirement that defendant object to the introduction

of the evidence, and with other limitations on the application of the

rule. See Monaghan, The Supreme Court, 1974 Term-Foreward: Con-

stitutional Common Law, 89 Harv.L.Rev. 1,5 & n. 33 (1975).

"United States v. Peltier, 1975, US. : , 95 S.Ct.

2313, 45 L.Ed.2d 374, dealt with the judicial integrity rationale in

this manner (citations omitted) :

Decisions of this Court applying the exclusionary rule to un-

constitutionally seized evidence have referred to “the impera-

App. 17

The exclusionary rule, as an attempt to promote these

objectives, is in direct conflict with another important so-

cial policy—‘“it is desirable that criminals should be de-

tected, and to that end that all available evidence should

be used.” Olmstead v. United States, 1928, 277 U.S. 438,

470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (Holmes, J., dis-

senting). The chief objection to the exclusionary rule, and

the chief impediment to the expansion of its application,

has been the concern that too often “[t]he criminal is to go

free because the constable has blundered.” People v. De-

fore, 1926, 242 N.Y. 13, 21, 150 N.E. 585, 587 (Cardozo,

J.).

tive of judicial integrity. . »., although the Court has relied

principally upon the deterrent purpose served by the exclu-

sionary rule... .

The majority opinion went on to conclude that, in the context of a

good faith search by officials which is of questionable legality because

of a subsequent refinement of search and seizure law, the correct ap-

proach to judicial integrity rationale

does not differ markedly from the analysis the Court has

utilized in determining whether the deterrence rationale under-

girding the exclusionary rule would be furthered by retroactive

application of new constitutional doctrines.

Id. at . 95 S.Ct. at 2318. See Brown v. Illinois, 1975, —— U.S.

. . , 95 S.Ct. 2254, 2263, 2265-66, 45 L.Ed.2d 416, 428,

431-32 (Powell, J., concurring in part) (In cases in which official

conduct is flagrantly abusive of fourth amendment rights, “the de-

terrent value of the exclusionary rule is most likely to be effective,

and the corresponding mandate to preserve judicial integrity, . . . most

clearly demands that the fruits of official misconduct be denied.” )

The imperative of judicial integrity is nowhere mentioned in the

majority opinion in Calandra, despite vigorous arguments by the dis-

sent that this rationale dictated an opposite result in the case. 414 U.S.

at 355-67, 94 S.Ct. 613. The majority opinion in Michigan v. Tucker,

1974, 417 U.S. 433, 450 n. 25, 94 S.Ct. 2357, 2367, 41 L.Ed.2d 182,

a fifth amendment case discussing the policies of the fourth amend-

ment exclusionary rule, stated that the judicial integrity rationale

is really an assimilation of the more specific rationales dis-

cussed in the text of this opinion, and does not in their ab-

sence provide an independent basis for excluding challenged

evidence.

App. 18

The Court’s interest in the goal of convicting those

guilty of breaking laws has led it to refuse to extend the

exclusionary rule to every situation in which the suppres-

sion of evidence might act to deter future illegal conduct

by officials,'? For example, illegally seized evidence is ad-

missible before grand juries,’® and to impeach a defendant

who has testified in his own behalf.'* Also, the doctrine of

“attenuation” permits the introduction of evidence which

bears only a very indirect relation to the illegal search."

“Standing” is now to be perceived, it seems, as an-

other of these limitations on the exclusionary rule which

result from balancing the competing goals.'* This balance

does not in itself, however, explain why the line limiting

the number of individuals who may move successfully for

suppression is drawn through the concept of standing. If

the purpose of the exclusionary rule is only to protect unin-

volved persons against future illegal searches (by remov-

ing incentives police might have for conducting such

searches), and the competing consideration is simply a

feeling that not every criminal should go free because the

evidence against him was illegally obtained, then the bal-

12See United States v. Calandra, supra, 414 U.S. at 350-51, 94

S.Ct. 613.

1d.

1sWalder v. United States, 1954, 347 U.S. 62, 74 S.Ct. 354, 98

L.Ed. 503. Cf. Harris v. New York, 1971, 401 U.S. 222, 91 S.Ct. 643,

28 L.Ed.2d 1 (similar rule in respect to statements obtained from de-

fendant without Miranda warnings).

1SWong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407,

9 L.Ed.2d 441; Nardone v. United States, 1939, 308 U.S. 338, 341,

80 S.Ct. 266, 84 L.Ed. 307.

16See United States v. Calandra, supra, 414 U.S. at 348, 94 S.Ct.

613 (dicta); Alderman v. United States, 1969, 394 U.S. 165, 174-75,

89 S.Ct. 961, 22 L.Ed.2d 176.

et ee ee

App. 19

ance might as well be struck by admitting the evidence

from one out of every four or five illegal searches, on a

random basis.’’

Justice Powell, discussing the standing limitation as

analogical support for the suppression of the exclusionary

rule in grand jury proceedings, suggests the following:

This standing rule is premised on a recognition

that the need for deterrence and hence the ration-

ale for excluding the evidence are strongest

where the Government’s unlawful conduct would

result in imposition of a criminal sanction on the

victim of the search.

United States v. Calandra, 414 U.S. at 348, 94 S.Ct.

at 620. This explanation is persuasive in situations where

the police, seeking evidence against X, have illegally

searched the house of X and discovered unexpected evi-

dence incriminating Y. Assuming the goal of the convic-

tion of lawbreakers dictates that only one of the two can

have evidence from the search suppressed, the future se-

curity of Z’s house is better protected by giving that bene-

fit to X.'* The problem, however, is that the present stand-

ing requirement defines “victim of the search” in such a

way that the object of the search of X’s house might be

The illogical nature of the standing requirement as a means of

balancing the policies for and against the exclusionary rule has been

noted frequently. See, e. g., United States v. Hunt, 5 Cir. 1974, 505

F.2d 931; ome supra note 136, at 1048; Note, Standing to Assert

Constitutional lus Tertii, 88 Harv.L.Rev. 423, 442 n. 95 (1974); The

Supreme Court, 1968 Term, 83 Harv.L.Rev. 62, 167-73 (1969).

'8This hypothetical further assumes that Z, and not Y, would be

the target of the investigation which would lead the police to desire

entry into Z’s house.

App. 20

the evidence against Y, and X, not Y, would still be the

only “victim.”"® A tip that further evidence incriminating

Y might be found in the house of Z would not, presumably,

send the gendarmes scurrying for a warrant.”°

This apparent incongruity between the line drawn by

“standing” and the line which might achieve the optimum

balance between pure deterrence of police illegality and

conviction of as many criminals as possible suggests that

something is a work here beyond the “prime purpose” of

the exclusionary rule, i.e., deterrence. To whatever extent

the “judicial integrity” rationale of the exclusionary rule

has survived as a separate analytical factor, it offers some

explanation.”' If it is generally offensive for courts to re-

19In his opinion in Alderman, concurring in part and dissenting

in part, Justice Fortas urged the adoption of a rule whereby a person

would have “standing” if the authorities had conducted their unlawful

search with the purpose of obtaining evidence to use against that per-

son. 394 U.S. at 200-09, 89 S.Ct. 961. The majority refused to a

such a rule. Justice Harlan, also concurring in part and dissenting in

part, suggested that Justice Fortas’ rule was ill-advised, chiefly because

it would entail substantial administrative difficulties in the attempt

to determine exactly against whom an investigation was directed. See

id. at 188 n. 1, 89 S.Ct. 961.

If Y could show a proprietary interest in the evidence seized in

the house of Z, of course, he still might have standing to object to its

use against him. See srown v. United States, 1973, 411 U.S. 223, 93

oe 1565, 36 L.Ed.2d 208; United States v. Hunt, 5 Cir. 1974, 505

.2d 931.

20In this latter situation, the rule admitting evidence on a limited,

random basis would clearly provide a more effective deterrent. This

anomaly, whereby s ted criminals receive protection in their pri-

vacy interests (through the deterrent effect of the exclusionary rule)

and individuals known to be innocent receive no such protection, is

noted in White & Greenspan, Standing to Object to Search and Sei-

zure, 118 U.Pa.L.Rev. 333, 365-66 (1970). (The authors urge the

adoption of a rule like that suggested by Justice Fortas.)

21See note 11, supra. Peltier’s suggestion that analyses under the

two rationales are the same could conceivably be limited to situations

in which the allegedly illegal search was perpetrated in good faith.

ee ee

A a te

App. 21

view evidence seized in violation of fourth amendment

rights, it is even more offensive when the prosecution is

against the very individual whose rights were violated. To

the extent that the “judicial integrity” rationale is func-

tionally indistinct from the “deterrence” rationale, the

standing requirement can perhaps best be explained as an

equitable judgment that only those whose rights have been

violated should be able to reap the unavoidable benefits to

criminals which accompany the judicial attempt to deter

future police illegality.”

The foregoing illustrates the difficulty of pursuing a

purposive analysis in an attempt to determine standing

vel non in a fact situation not covered by previous cases.

We are told that the exclusionary rule is in no way a

remedy for the violation of personal rights, but that only

those whose personal rights have been violated may invoke

it. I turn, then, to the cases purporting to define the

scope of the standing requirement, and examine them in

whatever light may be shed by the competing considera-

tions discussed above. The rule is often stated thusly:

In order to qualify as a “person aggrieved by an

unlawful search and seizure” one must have been

a victim of a search or seizure, one against whom

22Calandra tells us that the exclusionary rule is not “a personal

constitutional right of the party aggrieved,” 414 US. at 348, 94 S.Ct.

at 620. The Court in discussing the standing requirement, however, has

often stated that “Fourth Amendment rights are personal rights which,

like some other constitutional rights may not be vicariously asserted.”

Brown v. United States, supra, 411 U.S. at 230, 93 S.Ct. at 1570, quot-

ing Alderman v. United States, supra, 394 U.S. at 174, 89 S.Ct. 961.

While not technically irreconcilable with Calandra, the continued vi-

tality of the standing requirement leaves me unable confidently to

conclude that the Court has “cut the exclusionary rule entirely free

from any personal right or necessary remedy approach,” Monaghan,

supra note 10, at | (emphasis added).

App. 22

the search was directed, as distinguished from

one who claims prejudice only through the use of

evidence gathered as a consequence of a search or

seizure directed at someone else.

Jones v. United States, 1960, 362 U.S. 257, 261, 80 S.Ct.

725, 731, 4 L.Ed.2d 697.”

One reading of the distinction set out in Jones, would

require a pre-search intent on the part of the police to

gather evidence relating to the individual now challenging

the search. The Supreme Court has indicated, however,

that this is not the test.** Rather, the question whether a

person is a victim of a search is focused on the rights and

expectations of that person. Initially the inquiry was di-

rected to whether some property right of the individual

had been violated, but, largely in response to the prolifera-

tion of electronic surveillance techniques, the Court has

added a new test—when officials intrude into a tangible or

intangible area in which an individual has a “reasonable

expectation of privacy,” that individual is a “victim” of the

search.”

The electronic surveillance cases in which this new

standard for standing has emerged contain language which

seems to bear closely on the situation before us. For ex-

23The quoted language was intended as a construction of Fed.R.

Crim.P. 41(e), but also expresses the constitutional standard. See

Alderman v. United States, supra, 394 U.S. at 173 & n. 6, 89 S.Ct. 961.

24See note 19, supra.

25See Alderman y. United States, supra, 394 U.S. at 171-80, 89

S.Ct. 961; United States v. Hurt, supra, 505 F.2d at 935-41; Gutter-

man, “A Person Aggrieved”: Standing to Suppress Illegally Seized

Evidence in Transition, 23 Emory L.J. 111 (1974).

0 a et cen Te ©

App. 23

ample, the majority in Katz v. United States, 1967, 389

U.S. 347, 352-53, 88 S.Ct. 507, 512, 19 L.Ed.2d 576, stated

that a caller from a phone booth

is surely entitled to assume that the words he

utters into the mouthpiece will not be broadcast

to the world. To read the Constitution more nar-

rowly is to ignore the vital role that the public

telephone has come to play in private communica-

tion.

. . . [W]e have expressly held that the Fourth

Amendment governs not only the seizure of tan-

gible items, but extends as well to the recording

of oral statements overheard without any “‘techni-

cal trespass under . . . local property law.” ...

[T]he Fourth Amendment protects people—and

not merely “areas”’—against unreasonable

searches and seizures.

In Alderman v. United States, 1969, 394 U.S. 165,

176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176, the Court, after

quoting the “person aggrieved” language from Jones,

supra, held in part as follows:

[A] ny petitioner would be entitled to the suppres-

sion of government evidence originating in elec-

tronic surveillance .. . if the United States un-

lawfully overheard conversations of a petitioner

himself .. .

Private conversations, then, are at the core of the area

in which individuals may have reasonable expectations of

App. 24

privacy.” Further, it is clear that when officials wiretap a

telephone, both parties to the conversation have standing

to move to suppress. Thus, at least in wiretap cases, the

phrase “person against whom the search is directed” ap-

parently must be read to include a person whose identity is

unknown at the initiation of the search, but whose reason-

able expectations of privacy are compromised by the police

in circumstances in which the police can foresee that some

such person’s expectations might be compromised.”’

Although direct electronic surveillance by the Govern-

ment is lacking in the unique case before us, I feel that

the general principles just stated are applicable. It was

foreseeable that the tapes seized from Kabbaby’s car

might contain discussions in which the participants would

have reasonable expectations of privacy. To the extent

that Kabbaby’s assertion to the police that the tapes were

empty mitigated the foreseeability of the invasion of

privacy, the immediate discovery that the recording was

one of a private phone conversation was sufficient to ap-

prise the officers of the nature of their intrusion.** That

26Cf. United States v. Holmes, 5 Cir. 1975, 521 F.2d 859, rehear-

ing en banc granted, F.2d . In Holmes, the panel held that

because an electronic “beeper” secretly applied to a van by police

invaded a reasonable expectation of privacy, it constituted a violation

of the Fourth Amendment. The court noted that the government

tries to distinguish the beeper in the instant case from the

phone tap at issue in Katz because the latter picks up con-

versation, an area in which, according to the government, a

citizen has an extraordinary expectation of privacy. Id. at

[865] (footnote omitted}.

27The foreseeability requirement would seem to be necessary in

order that exclusion of the evidence would serve a valid deterrent

purpose.

*8Officer Rivers, testifying at the hearing on Turk’s motion to

suppress, said of the tape, “When I started to play it, | wanted to hear

a ao eh A 0

App. 25

Turk rapidly became a target of the continuation of their

search is evidenced by the following testimony elicited

from Officer Rivers (A.) during the hearing on the motion

to suppress:

Q. In fact, the only reason you proceeded to

listen through this whole tape was curiosity;

isn’t that true?

A. I wanted to hear what was on the rest of

the tape, yes, sir.

Q. Searching for the possibility that there might

be something incriminating there?

A. Possibly, yes, sir.

Q. Isn’t it true, in fact, what you were doing

was hoping that there might be something on

that tape that would lead to evidence with which

you could charge Mr. Kabbaby with the commis-

sion crimes?

A. Mr. Kabbaby or possibly the other person on

the other end of the phone conversation.

the rest of it. It’s very simple.” The following interchange then took

place between Turk’s counsel (Q) and Rivers:

Q. Was it not obvious to you that what you were doing was

overhearing a conversation between two men on the phone?

A. Very obvious, yes, sir—it became obvious.

I note that Turk was apparently unaware that the conversation

was being recorded (as evidenced by his concern, in the conversation,

that Kabbaby have pencil and paper handy). This factor is not de-

cisive, but does buttress the presumption that a person intends his

telephone conversation to be private. Also reinforcing that presumption

here are the exceptional number of “expletive deleted[’s]” which ap-

pear in transcript, a phenomenon we have witnessed in transcripts of

other conversations intended by the participants to remain secret.

Nothing in the record appears to rebut the presumption that Turk had

a reasonable expectation of privacy in this conversation.

App. 26

The officers were aware that they were listening to

a conversation in which the parties might have had rea-

sonable expectations of privacy. The rationale, such as it

is, underlying the standing requirement indicates that

Turk should have standing—allowing him to move to sup-

press the evidence could serve the purpose of deterrence

of unlawful searches, and, as a party to the private con-

versation overhead, Turk had a type of expectation of

privacy for which the Supreme Court in other contexts

has shown special solicitude.

The Government directs our attention to a different

line of cases, which are said to dictate a different result.

In Hoffa v. United States, 1966, 385 U.S. 293, 87 S.Ct. 408,

17 L.Ed.2d 374, the defendant argued that the Govern-

ment had illegally acquired evidence against him when it

received information transmitted voluntarily by a man

in whom the defendant had confided. The Court concluded

that the defendant had assumed the risk that his con-

fidant would cooperate with the police, and rejected the

view “that the Fourth Amendment protects a wrongdoer’s

misplaced belief that a person to whom he voluntarily con-

fides his wrongdoing will not reveal it.” Id. at 302, 87 S.Ct.

at 413.”

The Government argues that the distinction between

Hoffa and this case—that here, Kabbaby never consented

to the “search”—makes no difference. I think that this

distinction is very important. The decision in Hoffa was

based on the conclusion that there was no governmental

2°See also United States v. White, 197], 401 U.S. 745, 91 S.Ct.

1122, 28 L.Ed.2d 453; Lopez v. United States, 1963, 373 U.S. 427,

83 S.Ct. 1381, 10 L.Ed.2d 462.

App. 27

illegality. The Court there noted that Hoffa “clearly has

standing” to challenge the activity he alleged to be illegal.*”

Turk may have assumed the risk that Kabbaby would tape

the conversation and voluntarily take it to the police, but

no case requires the holding that Turk assumed the risk

that the police would illegally seize the tape.*! The Hoffa

line of cases, then, leaves undisturbed my initial conclu-

sion—Turk should be considered to have standing to move

to suppress the tape seized by the officers.

2. Legality.

There are two actions of the officers in relation to

this tape which conceivably could be challenged—the

initial seizure of the tape at the time of Kabbaby’s arrest,

and the later playing of the tape at the stationhouse. In

ruling on Turk’s motion to suppress, the trial court made

the following statements:

... [I]t was a proper arrest, based on informa-

tion from the confidential informant[.| I want

the record to show very clearly that, if the sole

question before me were whether or not this was

a proper inventorying procedure, my ruling

would be that it is not.

30385 U.S. at 300, 87 S.Ct. 408. Hoffa does not compel the con-

clusion, however, that Turk must have standing. The Government could

argue that the same factor which rendered its activity lawful—the

cooperation of Hoffa’s confidant with the police—was also the factor

central to Hoffa’s standing.

‘'There is no indication in this record that Turk’s “belief that a

person to whom he voluntarily confide[d] his wrongdoing [would]

not reveal it” was misplaced. Kabbaby never consented to the police

playing of the tape. Turk did assume the risk, of course, that Kabbaby

would tape the call and then behave in a manner which could enable

the police to acquire a warrant to listen to the tape.

App. 28

For purposes of clarification only, in other

words, if the question were could the contents

of this tape be used against Mr. Kabbaby, I

would rule that it could not, that the playing of

the tape was an illegal search by virtue of the

playing, not by virtue of taking the tapes into

custody or retaining them, but by playing them.

[7] Appellant apparently concedes that the initial

seizure of the tape was lawful, but argues that the district

court was correct in concluding that the warrantless play-

ing of the tape by the officers was improper. We agree.

The Government’s arguments that the playing of the tape

constituted a valid inventorying procedure are, at the

least, disingenuous.’ As this Court cautioned in United

States v. Griil, 1973, 484 F.2d 990, 991-92, cert. denied, 1974,

416 U.S. 989, 94 S.Ct. 2396, 40 L.Ed.2d 767:

The so-called “inventory searches” can, of course,

be employed as subterfuges and can be the sub-

ject of abuse. It is temptingly simplistic to employ

the phrase “inventory” as though uttering it

solves everything, and all too easy to state over-

broadly the interests which “inventory searches”

vindicate, and to automatically give to those in-

terests a primacy which, in the balance between

public and private interest, they do not neces-

sarily enjoy.

*2The contention is that the officers were concerned that Kabbaby

might later complain that the tape had been altered or erased. I note

that Kabbaby had told the officers that nothing was on the tape.

SO Re Ay i be ey stl, tne.

SF.

App. 29

None of the valid objectives of an inventory search re-

quired the officers in this situation to play the tape.*> The

tape could have been sealed and later returned to Mr.

Kabbaby in that condition, or, if the officers had prob-

able cause to listen to it, a warrant easily could have been

obtained.** We refuse to hold that the officers’ actions in

playing the tape without a warrant were proper.

3. Relief.

Assuming that Turk had standing to object to this

search, and that the search was illegal, we examine now

the question of the appropriate relief. Turk objected to

the requirement that he answer questions based on this

evidence before the grand jury, and moved to suppress

the tape and its “fruits” at his perjury trial. Shortly after

Turk’s grand jury appearances, the United States Su-

preme Court handed down United States v. Calandra, 1974,

414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561, holding that

the fourth amendment exclusionary rule could not be in-

voked by a witness before a grand jury.** Our only ques-

33Cf. United States v. Ducker, 5 Cir. 1974, 491 F.2d 1190, 1192,

where we said, in discussing an inventory search of a car:

Inventory searches have two purposes: to protect the vehicle

and the property in it, and to safeguard the police or other

officers from claims of lost possessions.

34Cf. United States v. McDevitt, 10 Cir. 1974, 508 F.2d 8, 12-13

& n. 4 (“It is difficult to understand why the officers would proceed

without seeking a warrant ...”).

35See United States v. Worobyzt, 5 Cir. 1975, 522 F.2d 196. If

Title II] of the Omnibus Act applied to this search, 18 U.S.C. § 2515

might compel a different conclusion in — to relief available before

the grand jury. See United States v. Worobyzt, supra; United States v.

Calandra, supra, 414 U.S. at 355 n. 11, 94 S.Ct. 613; Gelbard v.

United States, 1972, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179.

App. 30

tion in regard to the use of the tape at the grand jury,

then, is whether the holding in Calandra applies to pre-

1974 grand jury proceedings.

[8-10] United States v. Peltier, 1975, ~ i sarm

95 S.Ct. 2313, 45 L.Ed2d 374, teaches us to look to the pur-

poses of the exclusionary rule to answer this kind of retro-

activity question. Even if we assume that the prior law as

expressed by lower courts was contrary to the result in

Calandra, we can find no rationale for saying now that

the tape should have been suppressed at Turk’s grand jury

appearance (or that Turk should not have been required

to answer questions based on the tape). The “prime pur-

pose” of the exclusionary rule is deterrence of future illegal

searches, a holding that illegally seized evidence should

have been suppressed at pre-Calandra grand juries could

have absolutely no deterrent effect, because Calandra rules

the future. The Calandra majority was unimpressed with

arguments that the “judicial integrity” rationale man-

dated exclusion of the evidence,** and we see no reason why

this unstated view of the norms of judicial integrity at

grand juries is not controlling in the case before us. There

was no error in the use of the tape at the grand jury.

[11] We turn, then, to appellant’s claim that the tape

should have been suppressed at his perjury trial. Again we

must refer to the purposes of the exclusionary rule, and

attempt a balancing process like that reflected in Calandra.

We note first that the exclusion of the tape could have only

minimal] deterrent effect. The Government granted im-

munity to Turk, so that none of his truthful statements

36See note 1], supra.

App. 31

to the grand jury might be used against him.*’? Knowing

this, and knowing that the Government had seized the

tape and was familiar with its contents, Turk proceeded

to commit a new crime—perjury—specifically exempted

from the immunity order. For suppression of the tape at

the perjury trial to have any significant deterrent effect,

we would have to assume that the police could be so confi-

dent that an immunized search victim would prevaricate

before a grand jury that they would be willing to seize

evidence of a crime illegally, and thus to forego the possi-

bility of direct prosecution. We refuse to make such an

assumption. Undoubtedly, suppression would have more

deterrent effect than failure to suppress in this situation,

but the fourth amendement does not require the ‘‘adoption

of every proposal that might deter police misconduct.”’**

When the Government is effectively denied the possibility

of direct prosecution on the basis of illegally seized evi-

dence, no significant additional deterrent effect could be

realized by suppressing the evidence at a trial of the search

victim for a crime committed after the illegal search and

with the knowledge that the illegal search occurred.”

[12, 13] Similar considerations lead to the conclusion

that the other side of the balance—the “good” to be realized

--37See 18 U.S.C. § 6001 et seq.; Kastigar v. United States, 1972,

406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212.

38United States v. Calandra, supra, 414 U.S. at 350, 94 S.Ct. at

621. See also Alderman v. United States, supra, 394 U.S. at 174, 89

S.Ct. 961.

The situation might be very different if Turk had not known

before he testified that Kabbaby had recorded the conversation and

that the officers had seized and listened to the tape. Arguably, there

would be a deterrent value in prohibiting the surprise use of illegally

seized evidence to obtain a perjury conviction. In the situation before

us, however, Turk was the master of his own fate, and he ran onto

the shoals of perjury with his eyes wide open.

App. 32

by permitting the evidence to be used—is perhaps even

weightier here than in cases of direct prosecution on the

basis of illegally seized evidence. The usual factor that

the evidence is probative and reliable is present, but an-

other factor is also apparent, This is perhaps best stated

in the negative—a holding that the tape should be sup-

pressed in these circumstances would in effect give the

victim of an illegal search a license to commit any new

crimes he cared to, free from the concern that the illegally

seized evidence might be used against him in prosecutions

for these subsequent crimes. Avoiding the issue of such a

license is a “good” to be realized by admitting the evi-

dence here. We hold, then, that evidence obtained in an

illegal search may properly be admitted in the perjury

trial of a victim of the search when the alleged perjury

occurred after the search and with the knowledge on the

part of the victim that the search had taken place.*®

The strength of the other evidence of Turk’s perjury indicates

that we might conclude that the admission of the tape itself into evi-

dence was at most harmless error. The question would remain,

however, of whether the other evidence was sufficiently attenuated

from the illegal seizure so as not to be considered “fruit of the poison-

ous tree.” See Wong Sun v. United States, supra note 15; United States

v. Houltin, 5 Cir. 1976, 525 F.2d 943 [No. 74-4144]. We do not

reach that question, because our conclusion that the tape was admissible

necessarily applies to the “fruit.” See United States v. Calandra, supra,

414 US. at 354, 94 S.Ct. 613.

Our rationale is akin to that in “attenuation” cases, but differs

in that rather than finding the fruit sufficiently removed from the

tree, we have found that any toxin in the tree itself evaporated when

it was uprooted and transplanted into a trial for a new and different

crime.

ae

App. 33

III. OTHER ISSUES

A. Useof Grand Jury Testimony

[14] Turk contends that the Government violated the

terms of the use immunity order which covered his grand

jury testimony. His specific allegation is that the Govern-

ment was able to use his truthful identification of the

“Glenn” referred to on the tape as Glenn Roblin to locate

Roblin, who became perhaps the major witness against

Turk at the perjury trial. Turk relies on United States v.

Hockenberry, 3 Cir. 1973, 474 F.2d 247, which held that

an immunized witness’ truthful statement to a grand jury

could not be used to impeach him as a witness in his own

trial on charges of making unrelated false statements to

that same grand jury. Turk asks us to extend the principle

of Hockenberry to cover a situation in which the Govern-

ment seeks to use not the truthful statement itself, but

rather evidence derived from the truthful statement, in a

subsequent prosecution of an immunized grand jury wit-

ness.

We need not decide if Hockenberry fruits are as toxic

as the Hockenberry bush, however, because another con-

sideration convinces us that the Government had no need

to use Turk’s statement to identify the “Glenn” on the

tape as Glenn Roblin. The police seized the tape from the

car in which they had found and arrested Kabbaby and

Glenn Roblin, long before Turk’s grand jury testimony.

To suggest that, absent Turk’s answer, the police might

rever have guessed the identity of the “Glenn” referred to

in the conversation between Kabbaby and Turk is to sug-

gest an investigative incompetence we cannot assume.

There is no indication that these cops were of the Key-

App. 34

stone variety, and we are confident that the Glenn in the

car would have occurred to them as a possibility for the

identity of the Glenn referred to on the tape.

B. The Charge on “Reasonable Doubt”

The trial court’s final charge to the jury contained

the following:

A defendant in a criminal case is presumed by

law to be innocent. That presumption remains

with him throughout the trial unless and until

he is proven guilty of the crimes charged by

credible evidence beyond a reasonable doubt.

The burden of proving a defendant guilty be-

yond a reasonable doubt rests upon the Govern-

ment. This burden never shifts throughout the

trial.

The law does not require a defendant to prove

his innocence or to produce any evidence. He may

rely upon evidence brought out on examination

of witnesses for the Government, and if the

Government fails to prove that defendant guilty

beyond a reasonable doubt, the jury must acquit

him.

A reasonable doubt, as it is used in these in-

structions, means a doubt that is based on reason

and common sense. Such doubt must be substan-

tial rather than speculative, that is, a defendant

is never to be convicted upon mere suspicion or

conjecture.

ee

~~ wen

App. 35

Such doubt, however, must be a doubt that is

reasonable and one which arises from the evi-

dence or lack of it. It does not mean a mere pos-

sible doubt or a speculative, imaginary or forced

doubt, because anything delating to human af-

fairs is open to some possible or imaginary doubt.

The defendant objected to this charge, asking that his

requested instruction be read in place of the language

above which defines reasonable doubt. The only signifi-

cant change which would have resulted from this would

have been the omission of the paragraph which begins “A

reasonable doubt, as it is used... .,” and the substitution

for it of the following:

A reasonable doubt is a doubt based upon rea-

son and common sense—the kind of doubt that

would make a reasonable person hesitate to act.

Proof beyond a reasonable doubt must, therefore,

be proof of such a convincing character that you

would not hesitate to act upon it in the most im-

portant of your own affairs.

[15, 16] The charge requested by the defendant clearly

would have been appropriate.*! We have specifically urged

41We note that the Government requested almost exactly the same

instruction on reasonable doubt as that requested by Turk, the only

difference being that the Government would say “. . . you would be

willing to act upon it unhesitatingly . . .” rather than “. . . you would

not hesitate to act upon it . . .” The Government did not, however,

object to the charge given by the court.

App. 36

district courts to employ “would not hesitate” language in

their reasonable doubt instructions,** and we reiterate that

plea today. Except for one sentence in the charge given

by the trial court, however, we could conclude that “the

judge has made an accurate and correct charge” and thus

that “the extent of its amplification must rest largely in

his discretion.’’*

[17] The offending sentence reads, “Such doubt must

be substantial rather than speculative, that is, a defendant

is never to be convicted upon mere suspicion or conjec-

ture.” Appellant argues that this constitutes reversible

error, citing United States v. Alvero, 5 Cir. 1972, 470

F.2d 981. The instructions given in that case, however,

were clearly prejudicial to the defendant.** By contrast,

42United States v. Richardson, 5 Cir. 1974, 504 F.2d 357, 361.

See id. at n. 10 for a list of similar pleas from other circuits. Rich-

ardson disapproved the use of “would be willing” and approved “would

not hesitate,” but refused to find the error to be substantial enough

to mandate reversal in the absence of objection. Turk did request a

“would not hesitate” instruction, of course, but since the court here

did not give the “would be willing” language, any error committed

here was in that respect less egregious than that in Richardson.

*3Cf. United States v. Bayer, 1947, 331 U.S. 532, 536, 67 S.Ct.

1394, 1396, 91 L.Ed. 1654; United States v. Clark, 5 Cir. 1975, 506

F.2d 416, 418; United States v. Banks, 5 Cir. 1973, 485 F.2d 545, 549,

cert. denied., 1974, 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764.

**The instruction in Alvero was az follows:

It is not a speculative doubt, but any substantial reasonable

doubt. It is one that remains after all the evidence is in that

would cause a reasonable person to entertain a reasonable

and proper doubt; a very substantial doubt, let me put it that

way, of the guilt of the defendant. Then, of course, you must

find him not guilty.

470 F.2d at 982-83. Both defendant and the Government objected to

this language, and we held that even a curative instruction was in-

= to cure the prejudice caused by the phrase “very substantial

doubt.”

OE he nc oe tte ae Pea a et

App. 37

the problem with the present sentence lies in its ambiguity

—the “that is” introduces a clause which is in no way a

paraphrase or explanation of the preceding clause. This

very ambiguity, however, undermines Turk’s contention

that he was prejudiced by the phrase, “such doubt must

be substantial.” The end of the sentence makes the in-

struction read as if it were one meant to favor the de-

fendant.

Reading the entire charge given by the court in con-

text, see United States v. Steinkoenig, 5 Cir. 1973, 487

F.2d 225, 230, we cannot say that the inclusion of one am-

biguous sentence and the failure to include the desirable

“would not hesitate” language rose to the level of revers-

ible error. The charge as a whole, while not perfect, ‘“‘con-

veyed the proper idea,” id., and any error that might be

found in the ambiguous sentence was harmless.*

CONCLUSIONS

To recapitulate: there was no “interception” by the

officers in this case which could trigger the protections or

sanctions of Title III of the Omnibus Act; Turk had stand-

ing to challenge the officers’ playing of the tape, and such

playing violated the fourth amendment, but even so, the

policies underlying the exclusionary rule indicate that the

tape was properly admitted into evidence at Turk’s per-

jury trial; the Government did not violate the terms of the

immunity order by using Turk’s truthful statements to

*5See Kotteakos v. United States, 1946, 328 U.S. 750, 769-65, 66

S.Ct. 1239, 90 L.Ed. 1557; United States v. Steinkoenig, supra, 487

F.2d at 229.

App. 38

the grand jury against him; and, any error in the court’s

instruction on reasonable doubt was harmless. The judg-

ment is

Affirmed.

DYER, Circuit Judge, with whom GEWIN, Circuit

Judge, joins, specially concurring:

Since I agree that, even if Turk has standing to chal-

lenge the search and seizure, the introduction of the seized

evidence at the perjury trial was not error, I would pre-

termit deciding the standing issue.

App. 39

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 74-3626

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

FREDERICK JOSEPH TURK.

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion January 29, 1976, 5 Cir., 197__, ____ F.2d ___)

(MARCH 8, 1976)

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

Applicant’s motion for leave to supplement his petition

for rehearing and suggestion for rehearing en banc is

GRANTED.

The Petition for Rehearing is DENIED and no member

of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en banc, (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the Petition for

Rehearing En Banc is DENIED.

App. 40

|

APPENDIX C

SUPREME COURT OF THE UNITED STATES

No. A-880

FREDERICK JOSEPH TURK,

Petitioner

vs.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner,

It Is Ordered that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including May 7, 1976.

/S/ LEWIS F. POWELL, JR.

Associate Justice of the Supreme

Court of the United States

Dated this 9th day of April, 1976.