Petition — Phillips v. United States
Supreme Court brief1976
Ask Donna
What actually matters in this document.
Text
In the Supreme Court of the United States
OCTOBER TERM, 1976
UNITED STATES OF AMERICA.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
JOSEPH P. JENKINS
West Park Center
Estes Park, Colorado 80517
Counsel for Petitioner
PuILuie L. WAISBLUM
Suite 600 Waltower Building
823 Walnut
Kansas City, Missouri 64106
Of Counsel
E. L. Muren, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-8030
Opinions Below 1
Jurisdiction .
. Lae a 2
, RSC SN, STN 4
Statement of Case W i. ce
Reasons for Granting Writ . 7 en
G 28
Appendix A—
Opinion of Court of Appeals Al
Findings and Opinion of District Court un A22
Order Denying Petition for Rehearing ................... A43
Order Staying Issuance of Mandate A44
Appendix B—Statutes Involved en A45
Appendix C—Count II of Indictment 3 A49
TABLE or CASES
Bronston v. United States, 409 U.S. 352 (1973) ....3, 27, 28, 29
Brown v. United States, 245 F.2d 548 (8th Cir. 1957)
25-26
Burse v. United States, 466 F.2d 1059 (9th Cir. 1972) 27
Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971) 21
Fraser v. United States, 145 F.2d 145 (6th Cir. 1944) ... 27
Gelbard v. United States, 408 U.S. 41 (1972) ................ 23, 24
Giordenello v. United States, 357 U.S. 480 (1958) ............ 13
Griswold v. Connecticut, 381 U.S. 479 (1965) ................ 21
Hazlitt v. Fawcett Publications, 116 F.Supp. 538 (D.
e .. 21
II
Katz v. United States, 389 U.S. 347 (19677 21
Meridith v. Gavin, 446 F.2d 794 (8th Cir. 1971) ............ 23
Mullaney v. Wilbur, 421 U.S. 684 (1975) 16
Paramount Pictures v. Leader Press, 24 F.Supp. 1004
CA ee ne F 21
People by Ford v. Doorley, 338 F.Supp. 574 (D.C. R. I.
6 21
Eee 21
Rowan v. Post Office Department, 397 U.S. 728 (1970) 21
Rugg v. McCarty, 173 Colo. 170, 476 P. 2d 753 (1970) — 21
Smith v. Cincinnati Post & Times, 475 F.2d 740 (6th
8 ͤœ DHaM‚ ee 20-21
Speiser v. Randall, 357 U.S. 513 (1953) 16
Stanley v. Georgia, 394 U.S. 557 (1969) 21
Turk v. United States, 429 F.2d 1527 (8th Cir. 1970) . 13
United States v. Becker, 203 F.Supp. 167 (E.D. Va.
— 1
United States v. Blatell, 340 F.Supp. 1140 (N. D. Iowa
— . 8 16
United States v. Burroughs, 379 F.Supp. 736 (D. S. C.
602K ͤ—— — 16
United States v. Cook, 489 F.2d 286 (9th Cir. 1973) — 28
United States v. Cross, 170 F.Supp. 303 (D.C. D.C.
cc ˙ cadiashils 27
United States v. Esposito, 385 F.Supp. 1032 (D.C. N. D.
/ ne eee enw TRON 28
United States v. Harpel, 493 F.2d 684 (10th Cir. 1974) 16
United States v. Icardi, 140 F.Supp. 383 (D.C.D.C.
—— ane 27
United States v. Lattimore, 127 F.Supp. 405 (D.C. D.C.
1955), affd. 232 F.2d 334 (D.C. Cir. 1955) . 28
United States v. Mancuso, 485 F.2d 275 (2d Cir. 1973) 26
United States v. Razzaia, 370 F.Supp. 577 (D.C. Conn.
2 h 28
United States v. Rose, 526 F. 2d 745 (8th Cir. 1975) .... 13
United States v. Wixom, 460 F.2d 206 (8th Cir. 1972) —
Whiteley v. Warden of Wyoming Penitentiary, 401
rr .... 12, 13, 28
In re Winship, 397 U.S. 358 (1970) . 16
STATUTES
r, Ni EE EN A 2,4
18 U.S.C. Sec. 2510(2) ...... re 2,4
r r 2,4
OD ee I» hitetdinenciitisicerintesiditnistelintenctomeninicsces 2,4
t sniidilestenlppretiuinipil ra
18 U.S.C. Sec. 2511(1) (a 1, 14, 16, 18
18 U.S.C. Sec. 2511(b) ............... ** »~ ws
BO TEAR. Gea BRI A 4
18 U.S.C. Sec. 2511(c) rr 4
18 U.S.C. Sec. 2511(1) (d) n 4
18 U.S.C. Sec. 2511(2)(d) ......2, 3, 4, 14, 15, 16, 18, 20, 28, 29
18 U.S.C. Sec. 258185 , N 2, 4
18 U.S.C. Sec. 3504 (a) (1) * 4,17
Text Books
F. Harper and F. James, Jr., The Law of Torts (1956) 22
W. Prosser, Law of Torts, Sec. 112 (3d ed. 1964) .. . 22
MISCELLANEOUS
R. Clark, Crime in America, 287 (1970) 22
M. Ernst & A. Schwartz, she Fngne to Be. Lat Apone
14. ..... 22
Iv
S. Hofstader and G. Horowitz, The Right of Privacy
(1964) 22
Hufstedler, The Directions and Misdirections of a Con-
stitutional Right to Privacy, p. 24 (delivered before
the Association of the bar at New York, 1971) ............ 22
Pound, The Fourteenth Amendment and the Right to
Privacy, 13 W. L. Rev. 34 (1961) 21-22
Warren and Brandeis, The Right to Privacy, 4 Harv.L.
311 TT 21
Senate Report (Judicial Committee) No. 1097 22, 23, 24
House Report (Judicial Committee) No. 433 22
In the Supreme Court of the United States
OCTOBER TERM, 1976
UNITED STATES OF AMERICA.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
To the Honorable, the Chief Justice and Associate Justices
of the Supreme Court of the United States:
William Fred Phillips, the petitioner herein, respect-
fully prays that a writ of certiorari issue to review the
judgment and opinion of the United States Court of Ap-
peals for the Eighth Circuit entered in the above-entitled
case on June 29, 1976.
OPINIONS BELOW
The opinion of the Court of Appeals, whose judgment
is sought to be reviewed, and which has not been reported
as of this date, is printed in Appendix A hereto, infra,
2
at page Al. The prior Findings and Opinion of the
United States District Court for the Western District of
Missouri, Western Division, is also printed in Appendix
A at page A22, and is unreported.
JURISDICTION
The judgment of the Court of Appeals (Appendix
A, page Al) was entered on June 29, 1976. A timely
petition for rehearing was denied on July 26, 1976 (Ap-
pendix A, page A43). An order staying issuance of the
mandate pending the filing of a petition for certiorari
was entered by the Court of Appeals on August 6, 1976
(Appendix A, page A44). Mr. Justice Harry A. Blackmun
entered an order on August 20, 1976, extending the time
for the filing of this petition to and including September
24, 1976. The jurisdiction of the Supreme Court is invoked
pursuant to 28 U.S.C. Sec. 1254(1).
QUESTIONS PRESENTED
1. Whether the Court of Appeals in vacating, the peti-
tioner’s judgment of conviction for making a false declara-
tion before a grand jury in violation of 18 U.S.C. Sec.
1623 should have remanded this case for a new trial on
all of the issues instead of a hearing on the sole question
of whether a surreptitiously taken tape recording, taken
by persons not acting under color of law, was made for
the purpose of committing a criminal, tortious or other
injurious act so as to prohibit its admission into evidence
under 18 U.S.C. Secs. 2511 (2) (d) and 2515 of the Federal
Wire Interception and Interception of Oral Communica-
tions Act?
2. Whether the ultimate burden of alleging and prov-
ing the specific criminal, tortious, or other injurious pur-
pose for which an oral interception is made, as defined
and prohibited by the Federal Wire Interception and Inter-
ception of Oral Communications Act, 18 U.S.C. Secs. 2510
(2) (4) (5), and 2511(2)(d) must be carried by a defen-
dant?
3 Whether the remanding of this case for such spe-
cific purpose only deprives the petitioner of his right to
have such issues determined by a jury?
4. Whether this prosecution should have been dis-
missed because of the failure of the government to prove
that the interception of the oral communication herein
did not fall within the subexceptions provided by 18 U.S.C.
Sec. 2511 (2) (d), and its successful opposition to the peti-
tioner’s efforts to establish the inadmissibility of the inter-
ception by reason of said subexceptions?
5. Whether the tort of invasion of the right of privacy
is a tortious or other injurious act within the meaning
of 18 U.S.C. Sec. 2511 (2) (d)?
6. Whether the petitioner’s alleged false declarations
were relevant to the special grand jury’s investigation
so as to tend to impede, influence or dissuade it from
pursuing such investigation, thereby conferring jurisdiction
upon it to return the indictment herein?
7. Whether the government’s questions and peti-
tioner’s answers thereto, upon which the indictment is
based, were so broad and ambiguous so as to fall within
the proscription of Bronston v. United States, 409 U.S.
352 (1973)?
STATUTES INVOLVED
18 U.S.C. Sec. 1623.
18 U.S.C. Sec. 2510(2).
18 U.S.C. Sec. 2510(4).
18 U.S.C. Sec. 2510(5).
18 U.S.C. Sec. 2510(11).
18 U.S.C. Sec. 2511(1) (a).
18 U.S.C. Sec. 2511 (b).
18 U.S.C. Sec. 2511(b) (iii).
18 U.S.C. Sec. 2511 (e).
18 U.S.C. Sec. 2511(1) (d).
18 U.S.C. Sec. 2511(2) (d).
18 U.S.C. Sec. 2515.
18 U.S.C. Sec. 3504(a) (1).
See Appendix B, infra, for pertinent texts of the above
statutory provisions.
STATEMENT OF CASE
Preliminary Statement
An indictment was handed down by a special grand
jury sitting in the Western District of Missouri, Western
Division, on February 8, 1973, charging petitioner with
two counts of making false declarations before a grand
jury on August 1, 1972, in violation of 18 U.S.C. Sec.
1623. [Appendix C, infra, p. A49] The case was originally
assigned to Chief Judge William H. Becker, who in turn
transferred the case to Judge Richard M. Duncan, Senior
Judge. Judge Duncan ruled on all pretrial motions and
presided throughout the trial. He died on July 31, 1974,
d
before ruling on petitioner’s motion for judgment of ac-
quittal, and before the filing of his motion for a new trial.
The case was then assigned to Judge Elmo B. Hunter, who
filed a certificate pursuant to Rule 25, Federal Rules of
Civil Procedure, certifying that he could properly rule on
all pending matters. Judge Hunter denied the petitioner’s
motions for acquittal and a new trial on April 10, 1975.
A sentence of one year imprisonment was imposed on May
16, 1975.
On appeal, the petitioner charged numerous points
of error, including jurisdiction of the grand jury to hand
down the indictment, error in denying repeated motions
to suppress a secretly taken tape recording, violation of
the Federal Wire Interception and Interception of Oral
Communications Act, which would preclude the use of
the tape in this case, abuse of the grand jury process
by the manner of questioning of petitioner, lack of evidence
to sustain the verdict, and other matters not being pursued
herein.
_ Pretrial Proceedings
The following motions or orders were part of the
pretrial proceedings:
1. Motion to Suppress Tape Recording which raised
questions relating to the probative value of the tape, its
trustworthiness, jurisdiction of the special grand jury, vio-
lation of the petitioner’s constitutional rights, and abuse
of the grand jury’s power. The motion was denied.
2. Supplemental Motion to Suppress which suggested
the applicability of the Federal Wire Interception and In-
terception of Oral Communications Act. The motion was
denied.
3. Motion for a Bill of Particulars. It was also denied.
4. Motion to dismiss which raised questions relating
to the sufficiency of the indictment, the exceeding of its
power by the special grand jury in that it was not func-
tioning as a competent tribunal, entrapment, and jurisdic-
tion. It was denied.
5. Motion for Discovery and Inspection. It was sus-
tained in part in that the court ordered that a copy of
the tape recording be furnished to the petitioner.
6. Motion for Disclosure which sought the identity
of the person who delivered the tape to the government,
and the person who revealed the existence of the tape
recording to any representative of the government. Be-
cause of what appeared to be acquiescence by the govern-
ment, the court ordered that the government supply the
petitioner the name and address of the person who supplied
the tape recording to the government (Overton), and the
person who told the government such tape recording was
in the possession of the person who supplied it (Davis).
The Evidence
The case went to trial on July 10, 1974. The govern-
ment later dismissed Count I of the indictment. The jury
found the petitioner guilty on Count II on July 12, 1974.
It is noted that the petitioner is an attorney, a former
assistant district attorney, a former judge, and a former
Oklahoma state senator.
tripped of peripheral immaterial matters, the govern-
ment’s proof was simple—comparing a transcript of the
petitioner’s testimony before a special grand jury on Au-
gust 1, 1972, and a tape recording of a conference between
the petitioner, Charles Davis and George L. Overton, taken
without the petitioner’s knowledge on July 7, 1971.
7
Government counsel read portions of the grand jury
transcript to the jury which included the questions and
answers upon which Count II of the indictment is bottomed.
Count II contains eight questions in all, some of which
are statements, rather than questions, and some of which
were not answered. [See Appendix C, pp. A49-A52]
The circumstances leading up to the conference were
- furnished by J. Duke Logan, a Vinita, Oklahoma, lawyer,
who was the attorney for the Grand River Dam Authority.
The Authority, an Oklahoma state agency, operates the
Pensacola Dam, reservoirs, and other bodies of vater for
the production of hydropower and the sale of electricity.
He knew George Overton, manager of the Shangri-la
Lodge, which was located on a peninsula extending into
Grand Lake in Delaware County, Oklahoma. On June
25, 1971, he had a conversation with Overton, and as a
result of that conversation, made a phone call to the peti-
tioner. Logan related to him that Charles Davis, the owner
of Shangri-la Lodge, wanted to build a small dam which
would cut off one of the small coves on Grand Lake.
Davis was contemplating building an extensive condomin-
ium project, and to make the project more attractive, de-
sired to build the dam so as to raise the water level
of the cove. Petitioner was advised that approval would
have to be obtained from the Federal Power Commission
and the Corps of Engineers. The petitioner was asked
to represent Davis before the Grand River Dam Authority.
It was known to Logan that the petitioner was very close
to the governor of Oklahoma, and the then new adminis-
tration, and for that reason he felt that petitioner was
the logical person to represent Davis before the Authority.
On July 1, 1971, Logan had a conference with Davis and
Overton, at which time he explained the complex bureau-
cratic procedures required to obtain government approval.
On July 6, 1971, Logan met with the petitioner. At this
meeting it was explained to the petitioner that he would
represent Davis before the Grand River Dam Authority,
and when it approved the project, it would then be possible
for Logan to make the application to the appropriate fed-
eral agencies. It was critical to Davis that the approval
be quickly obtained. A fee of ten thousand dollars was
mentioned by petitioner. At that time Logan called Over-
ton and set up a meeting for the following day, July
7, 1971, at 2:00 P.M. at the Shangri-la. It later developed
that the fee arrangement covered a number of services
to be rendered by petitioner, including several trips to
Washington, D. C., meeting with a number of state offi-
cials and state agencies, and representing Davis on such
matters as collections and defending him or his employees
in the event his club was raided because of illegal liquor
operations. It was undisputed that the Grand River Dam
project involved a complex series of beaureaucratic appli-
cations and presentations, and that the petitioner was in-
strumental in obtaining such approval. It was further
established that the Davis business was not solicited by
the petitioner.
Overton described the ambitious size and character
of the Shangri-la project, and the fact that its club sold
whisky by the drink in violation of Oklahoma law. (Such
club sales appear to be common practice and a fact of
life in Oklahoma.) He admitted that the July 7 conference
was taped by a tape recorder with a hidden microphone.
The taping, which was deliberately accomplished without
the petitioner’s knowledge, was done by a private detective
named J. R. Gates who, with his electronic equipment,
was flown rom Wichita, Kansas, to Afton, Oklahoma, in
Davis’ private plane. The detective, not acting under color
of law, placed a tiny microphone about the size of a dime
under a coffee table in the conference room, and installed
the tape recorder in another room. The tape was turned
over to a government agent on July 8, 1972. It was in
turn given to a Strike Force attorney on July 10, 1972.
The petitioner was subpoenaed to appear before a special
grand jury sitting in Kansas City, Missouri, on August
1, 1972. The indictment followed a little over six months
later. . |
The detective took the Fifth Amendment whenever
questions pertaining to electronic surveillance were asked,
and when he was queried as to whether he knew Davis,
Overton, or the petitioner. He refused to answer questions
relating to being retained by Davis, whether he crossed
a state line to do the job, the hour he started taking
the recording, whether he had taken such a recording,
whether any parts of the conversation were missing,
whether he had started the tape at the beginning of the
July 7, 1971, conference, and whether he had edited the
tape.
The petitioner was serving in the Oklahoma State
Senate when the legislature apportioned the state in 1970,
at which time a part of Delaware County, in which Davis’
project was located, was added to his. district.
The dam project was of a technical nature, and the
petitioner had had extensive engineering experience. He
was not advised in advance of the precise nature of the
July 7 conference, but expected it to cover the engineering
and federal and state agency aspects of the project. He
was not aware that a “bug” had been planted in the
room. The petitioner did not remember the details of
the conversation, but he did recall, after hearing the tape,
that Mr. Overton kept returning to the operation of a
club at the Shangri-la. A statement, “I can, I can control
Frank” which is probably the only basis for the conviction,
was explained by the petitioner within the context of
the entire conversation, at least, that which had been re-
10
corded. He stated that he meant that he would talk to
Grayson and present any problems he had with the Grand
River Dam Authority or the Shangri-la construction. He
pointed out that lawyers often work out problems in this
manner. The conversation relating to slot machines and
the like had nothing to do with being retained for Grand
River Dam Authority work or the fee. He had given
advice about the fee prior to the meeting. He had no
way of knowing that Overton would keep bringing up
club problems (whisky sold across the bar).
The record is replete with the details of the work
done by the petitioner for and on behalf of Mr. Davis,
all on the original fee arrangement which was paid on
a monthly basis over an extended period of time There
is no question that he had no knowledge of the tape record-
ing when it was taken or when he appeared before the
grand jury on August 1, 1972. The Strike Force attorneys
who questioned him before the grand jury did not advise
him that they had a tape in their possession. In fact,
the petitioner did not know of the tape’s existence until
after he was indicted on February 8, 1973. In passing,
it is noted that he was questioned in tandem by two
prosecutors before the grand jury, and there was no effort
made to refresh his recollection of the conference which
had taken place approximately thirteen months before his
appearance.
Davis admitted that the petitioner had certainly as-
sisted him in getting the job done with reference to the
dam, and that the project was satisfactorily completed.
1. Although the government prosecutor constantly referred
to the fee arrangement as a “bribe”, the evidence did not sustain
these assertions. The original trial judge was satisfied that the
fee arrangement was a legitimate one and so stated. The suc-
cessor judge agreed with the trial judge. The Court of Appeals
ignored the accusation although repeated in the government’s
11
The government offered approximately thirty-five
transcripts of the grand jury testimony of other witnesses
in order to establish the materiality of the questions asked
of the petitioner. In no way did any of the witnesses
implicate the petitioner in the activities being investigated
by the special grand jury, to-wit: connections between
Kansas City, Missouri, hoodlums and people in northeast
Oklahoma with respect to prostitution, narcotics, liquor,
or gambling activities. Nor did any witness suggest that
the petitioner could furnish information helpful to the
grand jury in this regard.
A motion for judgment of acquittal was made at the
conclusion of the government’s case and renewed at the
conclusion of all the evidence. The court reserved his
ruling.
After the jury returned its verdict of guilty, the peti-
tioner was granted thirty days in which to file post-trial
motions. Both the petitioner and the government were
directed to file briefs.
Post-Trial Proceedings
Judge Duncan died less than three weeks after the
jury’s verdict was handed down without ruling on the
petitioner’s motion for acquittal, and before he was able
to file his motion for a new trial. The case was then
assigned to Judge Elmo B. Hunter for disposition of the
motions, and for any and all other appropriate action.
Judge Hunter, after filing the certificate required by Rule
25, Federal Rules of Criminal Procedure, denied peti-
tioner’s motions for acquittal and for a new trial. We
note that the petitioner was never given the opportunity
to present oral argument in support of his motions.
12
REASONS FOR GRANTING THE WRIT
I.
The Court of Appeals, in vacating the petitioner’s
judgment of conviction and remanding this case to
the District Court for the limited purpose of a sup-
pression hearing, with authority to reinstate the ver-
dict if he finds that the tape was not taken for a crim-
inal, tortious, or injurious purpose, has failed to act in
accord with Whiteley v. Warden of Wyoming Peniten-
tiary.’
The Court of Appeals found that no evidence was
proffered during the course of the trial as to why Davis
and Overton caused the conversation to be recorded.
While the court held that the ultimate burden of proving
that the conversation was not recorded for any criminal,
tortious, or other injurious purpose, rested with the peti-
tioner, it further held that the petitioner was effectively
denied a meaningful opportunity to present evidence as to
the purpose of the conversation.
The court remanded this case to the district court
for a hearing to determine the purpose for which the
conversation was recorded. If the recording was found
to be made for a legitimate purpose, the judgment of
conviction shall be reinstated. If, however, the petitioner
proves by a preponderance of the evidence that the record-
ing was made for a criminal, tortious, or other injurious
purpose, the tape must be suppressed and a new trial
ordered. This procedure was specifically disapproved in
Whiteley.
2. 401 U.S. 560 (1971).
13
The Court of Appeals relied on United States v. Rose,
526 F.2d 745 (8th Cir. 1975). Rose in turn cites two
other Eighth Circuit cases: Turk v. United States, 420
F.2d 1527 (1970), and United States v. Wixon, 460 F.2d
206 (1972). In Wixon, the Court of Appeals for the Eighth
Circuit conceded that the Supreme Court had refused to
follow such procedures in Whiteley.
In Whiteley, this Court reversed the Court of Appeals
for the Tenth Circuit which had affirmed a district court’s
denial of a petition for a writ of habeas corpus. The
petitioner had complained that his conviction was invalid
because of the use of evidence seized during a warrantless
search of his automobile without probable cause. The
Court refused to remand the case to the state courts of
Wyoming for the sole purpose of giving the state an op-
portunity to develop a record which might show probable
cause for the issuance of a warrant by a magistrate. The
Court, noting that as here, the illegality of the evidence
was brought up at every stage of the proceedings, gave
the state the option of trying the entire case, or letting
the writ issue“ See also Giordenello v. United States,
357 U.S. 480 (1958). Rose, Turk and Wizon all involved
questions of probable cause.
The procedure of remanding for such a limited pur-
pose after a jury trial raises a plethora of vexing questions
for which there is at present no authority within the con-
text of the federal act herein involved.
. record will show that as early as F 27, 1973,
duties on emnious hearing before & United States te, the
petitioner advised that he he would file a motion to suppress the
recording. The motion was filed, pended for a year, and was
— II > — — 0 L IAI
Appeals a
the eve of trial, and the first motion, was summarily denied.
ut
14
Reaching a determination as to whether probable cause
exists is far removed from making a finding as to whether
the activities of several persons involved in a surreptitious
unilateral consensual tape recording are criminal, tortious,
or designed for some injurious purpose. Such activities,
which are impermissible under 18 U.S.C. Sec. 2511(2) (d),
and criminal under 18 U.S.C. Sec. 2511(1)(a), may raise
complex factual issues, and of necessity, a full fabric of
circumstances and background in order to arrive at the
purpose of the transaction and the often vexing and dif-
ficult question of intent—usually a subjective phenomenon.
The petitioner is placed in a dilemma. He may wish
to pursue other specifications of error on certiorari which
are not related to the limited remand procedure. It would
create an incongruity if he were to petition for a writ of
certiorari while a portion of the case is still being heard
in the district court. On the other hand, if he did not peti-
tion for certiorari, he would, if he appeals from an order re-
instating the judgment of conviction, be confined in the
Court of Appeals to the new questions raised by the sup-
pression hearing, thus engendering serious doubt as to
whether he had preserved his other claims of error. Further
pursuing the pressing questions raised by the lower court’s
order, if the Court of Appeals’ judgment is not final until
the lower court rules, will petitioner have to take certiorari
from that ruling, thereby bypassing the Court of Appeals,
which appears to be impermissible, or should he reargue
in that court all of his points in order to preserve them?
Or would he have to apply for a writ of certiorari on part
of the case at the present time and appeal to the Court of
Appeals from new issues raised by the suppression hear-
ing, including the procedure?
The frequently stated objective of Chief Justice Burger
relating to the saving of judicial time would not be served
15
by the multiple appeals which appear imminent in this
case if the Court of Appeals is permitted to remand for a
suppression hearing only. It is vital that this question be
settled by the Court.
II.
The Court should decide as a case of first impres-
sion whether the government is required to prove as a
matter of foundation for the admission of critical evi-
dence that an interception was made for no criminal,
tortious, or other injurious purpose, or whether the
party against whom such evidence is offered be re-
quired to carry the ultimate burden of proving that an
interception was made for a specific criminal, tor-
tious or other injurious purpose.
The allocation of the burden of proof under the con-
sensual provisions and the subexceptions contained in the
Federal Wire Interception and Interception of Oral Com-
munications Act, 18 U.S.C. Sec. 2511 (2) (d), is a matter
of first impression. Is the government required to prove
as part of its case that an interception, not taken under
color of law by a person who is a party to the interception,
or has given his consent thereto, was not taken for a erim-
inal, tortious, or other injurious purpose? Or, is the
ultimate burden of proving that such an interception was
taken for one or more of such purposes placed on a de-
fendant?
The Court of Appeals places such burden squarely on
a defendant.
The Court of Appeals held that “Available legislative
history” reflected no congressional desire to change the
traditional burden of proof so that “existing law” applied
to electronically gathered evidence, and that it perceived
16
sound reasons for preserving the traditional allocation of
burden of proof within the context of 18 U.S.C. Sec.
2511(2)(d). It then gave as its chief reason, outside of
the meager legislative history of the aforesaid provision,
its concern that to require the government to prove as a
matter of foundation that an interception was made for no
criminal, tortious or injurious purpose, would create an im-
possible burden of proving three negatives. It asserted that
logic requires that the party against whom the evidence
was offered should carry the ultimate burden.* Such cases
as Mullaney v. Wilbur, 421 U.S. 684 (1975), and United
States v. Harpel, 493 F.2d 346 (10th Cir. 1974), were dis-
tinguished, while In re Winship, 397 U.S. 358, 364 (1970)
and Speiser v. Randall, 357 U.S. 513, 525-526 (1958), cited
by petitioner, were ignored.’ The burden may at times
be a difficult one, but as Justice Powell stated in the
majority opinion in Mullaney:
„. . . Nor is the requirement of proving a negative
unique in our system of criminal jurisprudence... .
Satisfying this burden imposes an obligation that,
in all practical effect, is identical to the burden in-
volved in negating the heat of passion on sudden provo-
cation. Thus, we discern no unique hardship on the
prosecution that would justify requiring the defendant
to carry the burden of proving a fact so critical to
criminal culpability.” 421 U.S. at 702.
4. The Court of Appeals was obviously concerned about the
question, and directed the parties to file supplemental briefs
treating allocation and burden of proof.
5. See United States v. Blatell, 340 F.Supp. 1140 (N.D. Iowa
1972), where a prosecution under Sec. 2511(1)(a) of the act here
in question was dismissed because the government failed to prove
that Northwestern Bell Telephone Company was a common
carrier. Accord: United States v. Burroughs, 379 F.Supp. 736 (D.
S.C. 1974). (Failure to prove wire communication was used in
interstate commerce.)
17
In the case at bar, the Court of Appeals has not taken
cognizance of the realities of the situation. Circuit Judge
Ross commented during oral argument that he could not
see how the petitioner could carry any burden of proof
with respect to the legality of the tape since he did not
even know of its existence until much later.“ It would
appear that if the law is as held by the Court of Appeals,
an impossible burden is actually placed on the petitioner.
All the government had to do here was call the persons
responsible for the interception and ask them why they
did it. It doesn’t make sense to permit the government
to merely identify the tape and the voices thereon, and
then require the petitioner, with no resources at his com-
mand, confronted by men who would most certainly not
harbor any altruistic motives toward him, and who did not
know of the tape’s existence until a year and a half later,
to explore the purposes which prompted the other par-
ticipants to make the recording. The practical necessities
are far different than those in the ordinary probable cause
situation.
The Court of Appeals has also complicated the question
of proof by further holding that its disposition of the case
does not relieve the government of its obligation under
18 U.S.C. Sec. 3504 (a) (1) to affirm or deny the occur-
rence of the claimed unlawful act. On remand, it directed
that the trial judge should require the government to call
the parties responsible for the interception and to establish
a legal purpose for the interception. (Appendix A, page A9)
What is the burden to be carried by the prosecution?
Does it have to prove legality beyond a reasonable doubt?
If so, then it would appear that the prosecution has the
6. The existence of the tape was not made known to the
petitioner until after he was on February 8, 1973. The
tape was taken on July 7, 1971.
18
same burden it should have been compelled to carry at the
trial: proving the legality of the tape recording as a part
of its case. The procedure ordered by the Court of Appeals
is extremely confusing and time consuming which, we
submit, requires this Court to decide the allocation of
the burden of proof in cases involving 18 U.S.C. Sec.
2511 (2) (d).
Finally, because of the unusual and extremely broad
provisions of the subexceptions contained in 18 U.S.C. Sec.
2511(2) (d), if the burden of proof falls upon a defendant
to prove a criminal act, for example, he would in effect
become a prosecutor.
III.
The remanding of this case for such a specific pur-
pose deprives the petitioner of his right to have such
issues determined by a jury.
The question presented here is of fundamental impor-
tance. If the unique subexceptions contained in Sec. 2511
(2) (d) place the burden of establishing the foundation
for the receiving into evidence of intercepts of oral com-
munications, and such evidence is a critical part of the
government’s case, as here, is it not a part of the entire
case to be proved beyond a reasonable doubt? We suggest
it is, and should be promptly settled by the Court.’
If so settled as the petitioner suggests, he would then
be entitled to a trial by jury of the issue of the criminal
7. It is not arguably defensible that the government may not
be required to negative activities prohibited by Sec. 2511 (2) (d)
when such activities, when not so negatived, may be criminal
in nature subjecting the perpetrators to possible criminal prosecu-
tion, fines up to $10,000.00, and imprisonment for up to five years.
18 U.S.C. Sec. 2511(a). The Court of Appeals noted that it was
not deciding on whom the burden rests when a defendant is prose-
cuted under Sec. 2511(1)(a) and the subexceptions contained in
Sec. 2511(2)(d). (Appendix A, p. A9)
19
or tortious nature of the evidence offered by the govern-
ment which would then bear upon its admissibility for
consideration by the jury. This is particularly critical
in cases such as this when no reliance is placed upon
the memory of witnesses, the case being presented by
merely identifying the tape and voices thereon, and com-
paring it with a defendant’s prior sworn testimony.
IV.
The Court should decide whether a prosecution
should be dismissed when the government fails to
prove that an interception of an oral communication
was legally taken, and not within the subexceptions
provided by 18 U.S.C. Sec. 2511(2)(d), when the gov-
ernment relies solely on the exception in said statute
to establish its case.
We shall be brief. The government made no effort
to establish why the conversation was recorded. In view
of the aforesaid subexceptions, this was fatal to its case.
Without the tape, there could be no comparison with the
petitioner’s grand jury testimony. The government chose
to present its case in this fashion, and is thus bound by
such strategy.
Furthermore, the government conceded its obligation.
The following colloquy took place on the morning the
trial began, and after the petitioner’s second motion to
suppress was denied without a hearing.
“THE COURT: Gentlemen, just a moment, while
we are on that subject. The government would have
to show that the tape was taken under certain cir-
cumstances and make it admissible. Any question
on that?
“MR. CORNWELL: No, sir. As to foundation,
that is true.” (Emphasis supplied)
20
Finally, the petitioner tried to establish tortious and
injurious conduct on the part of Overton and Davis. How-
ever, the government not only convinced the court that
tortious or injurious conduct was irrelevant, but it effec-
tively blocked all efforts of the petitioner to carry any
burden whatsoever to establish illegality under Sec. 2511
(2)(d). Now, the Court of Appeals has by its ruling
given the government a second chance to submit proper
proof, this time without a jury making such a determina-
tion under proper instructions.
A ruling by the Court placing the burden of negativ-
ing the existence of the subexceptions would do much
to eliminate the uncertainty in this area.
V.
The Court should decide that the tort of breach
of the right of privacy is a tortious or other injurious
act within the meaning of 18 U.S.C. Sec. 2511(2) (d).
The Court of Appeals rejected the argument that the
tort of the breach or invasion of the right of privacy
was a tortious or injurious act within the meaning of
the Sec. 2511(2)(d) subexceptions. This is also a matter
of first impression and one of transcending importance.
It is difficult to imagine more comprehensive language
than “tortious or other injurious acts.” It is clear that
a tort means activities generally accepted as a tort, and
it would appear that not being satisfied with a mere des-
criptive term, the Congress made certain that other repre-
hensible acts would be covered although not technically
recognized as criminal or tortious in nature.
The Court should make certain that there can be no
mistake about this, particularly in view of decisions like
Smith v. Cincinnati Post & Times, 475 F.2d 740 (6th Cir.
21
1973), which held that it was permissible for a party
to record a conversation and give the tape to a newspaper.
Use of one’s memory is one thing, but to secretly record
the exact words, the intonations of one’s voice, and the
like, all without the knowledge of the recorded person,
appears incompatible with generally accepted rights of
a person to be left alone, and to be free of demeaning
exposure to electronic devices.
This is not the proper place to engage in an exhaustive
discussion of the common law right of privacy. However,
no discussion of common law rights to privacy is complete
without mentioning Warren and Brandeis: The Right to
Privacy, 4 Harv.L.Rev. 193 (1890). This is a famous writ-
ing and its ideas and arguments helped form the basis of
many legal actions and writings.
The Supreme Court has recognized the right in various
contexts and circumstances. Griswold v. Connecticut, 381
U.S. 479 (1965); Stanley v. Georgia, 394 U.S. 557 (1969);
Rowan v. Post Office Department, 397 U.S. 728 (1970);
Roe v. Wade, 410 U.S. 113 (1973); Katz v. United States,
389 U.S. 347 (1967).
There are many lower court decisions holding sim-
ilarly. People by Ford v. Doorley, 338 F.Supp. 574 (D.C.
R.I. 1972); Dietemann v. Time, Inc., 449 F.2d 245 (9th
Cir. 1971); Paramount Pictures v. Leader Press, 24 F.Supp.
1004 (W.D. Okla. 1938); Hazlitt v. Fawcett Publications,
16 F.Supp. 538 (D. Conn. 1953) applying Oklahoma law.
At least 32 state jurisdictions now have clearly recog-
nized the tort of the invasion of privacy.“ Eminent writers
have proclaimed the viability of the tort. Pound, The
Fourteenth Amendment and the Right to Privacy, 13 W.L.
8. Source: Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753
(1970).
22
Rev. 34 (1961); R. Clark, Crime in America, 287 (1970);
Hufstedler, The Directions and Misdirections of a Constitu-
tional Right to Privacy, p. 24;° W. Prosser, Law of Torts,
Sec. 112 (3d ed. 1964); S. Hofstader and G. Horowitz,
The Right of Privacy (1964); F. Harper and F. James,
Jr., The Law of Torts (1956); M. Ernst and A. Schwartz:
The Right to Be Let Alone (Ist ed. 1962).
It is difficult to attribute to Congress an intent to
exclude the outrageous conduct of Davis and his group
from the reach of the subexceptions in Sec. 2511(2) (d).
Furthermore, what does “other injurious act” mean? We
suggest that the meaning of the comprehensive and broad
language used in the subexceptions should be interpreted
and explained by the Court to mean exactly what they
say since it now appears that the lower courts may
not understand the breadth of the subexceptions, all of
which could result in fines and imprisonments based on
miscomprehension and faulty construction of statutory lan-
guage.
It is even more imperative that the Court construe
the language in the subexceptions since Congress appears
to have intended a broad construction. Senate Report
(Judiciary Committee) No. 1097 and House Report (Judi-
ciary Committee) No. 488, contain these pertinent com-
ments relating to the then proposed act:
“* * * All too often the invasion of privacy itself
will go unknown. Only by striking at all aspects
of the problem can privacy be adequately protected.
The prohibition, too, must be enforced with all appro-
priate sanctions. Criminal penalties have their part
to play. But other remedies must be afforded the
1 1. Delivered before the Association of the Bar at New Vork
victim of an unlawful invasion of privacy. * * *
The perpetrator must be denied the fruits of his un-
lawful actions in civil and criminal proceedings. Each
of these objectives is sought by the proposed legisla-
tion.” (U. S. Code Cong. and Ad. News, p. 2156-
1968) .*°
Meredith v. Gavin, 446 F.2d 794 (8th Cir. 1971) entered
into a full discussion of one-party consensual interceptions
under the subexceptions. The court quoted Senator Hart
who had objected to the statute as originally proposed
because it did not contain the subexceptions under dis-
cussion here. He stated he would not tolerate the consent
of one party as being a defense, or to make the taping then
admissible in legal proceedings. As he pointed out on the
floor of the Senate:
“For example, the secret consensual recording may
be made for the purpose of blackmailing the other
party, threatening him, or publicly embarrassing him.”
(p. 798)
The court also quoted this language:
“The use of such outrageous practices is widespread
today, and I, Senator Hart, believe they constitute
a serious invasion of privacy.” (p. 798)
Senate Report No. 1097, 90th Cong.2d Sess. 1969, at
page 69, contains the following comment:
“The need for comprehensive, fair and effective reform
setting uniform standards is obvious. The protections
for privacy must be enacted. Guidance and super-
10. This was quoted with the same emphasis sup-
plied in Ge v. United States, 408 U.S. 41 (1972).
24
vision must be given to State and Federal law enforce-
ment officers.“ 1
Finally, this language from the Senate Report:
“No aspect, including the identity of the parties, the
substance of the communication between them, or the
fact of a communication itself is excluded. The pri-
vacy of the communication to be protected is intended
to be comprehensive.” (p. 91)
We respectfully submit that the subexceptions be in-
terpreted to include within their ambit the tort of the
breach of the right of privacy. The electronic explosion
is too immediate and all-encompassing to defer considera-
tion of this question to a later date.
VI.
The special grand jury did not have jurisdiction to
return the indictment herein where the matters al-
leged and sought to be proved in order to obtain a
conviction under Count II thereof related to events
that could only have occurred in the Northern District
of Oklahoma, and did not tend to impede or influence
its investigation.
It is urged that the Supreme Court should finally
delineate and circumscribe the jurisdiction of sitting grand
juries so as to afford protection to those whose knowledge
and information pertain to matters outside the grand jury’s
jurisdiction.
In the case at bar, the pertinent parts of the inquiry
as to the petitioner were directed solely at local law en-
11. Quoted in Gelbard v. United States, supra, at page 49,
with same emphasis.
forcement and problems of the state of Oklahoma, not
Missouri. In fact, the very first question to the petitioner
before the grand jury made reference to “local law”. An-
other question relates to “that area”. Oklahoma is liberally
referred to as well as Oklahoma private clubs and the
Shangri-la. Also mentioned are “local authorities”. Those
portions of petitioner’s grand jury testimony read to the
jury related to northeast Oklahoma only, as does the en-
tire taped conversation. No effort was made to expand
the charge against the petitioner beyond the borders of
Oklahoma, and in particular, the local area in which the
petitioner lived, practiced, and had been serving as a state
senator. The only effort to show materiality was made
when the court advised the government that it had failed
to show such materiality, and after much discussion, per-
mitted it to put into evidence, in wholesale fashion through
a court reporter’s testimony, a number of transcripts of
witnesses who appeared before the special grand jury.
The batch of transcripts was received into evidence over
strenuous objections as to materiality and hearsay. Not
one grand jury witness was called to testify.
Nowhere in the grand jury evidence was there the
slightest indication that the petitioner was in any way
connected with any illegal activities, even in Oklahoma,
much less Missouri, or in interstate commerce. Indeed,
we submit that the mere statement of a prosecutor before
a grand jury, as an introduction to questioning a witness,
that he is interested in a certain person, place or activity,
does not confer jurisdiction upon the grand jury so as
to in turn confer materiality on the type of questions
and answers propounded to and given by a witness.
A leading case dealing with the materiality of answers
given in the course of a grand jury investigation is Brown
26
v. United States, 245 F.2d 549 (8th Cir. 1957). Brown
held that where evidence established that a grand jury
caused defendant to be brought before it for the purpose
of extracting testimony from him with the view to pros-
ecute him for perjury, and without any purpose of obtain-
ing from him any evidence upon which it could find a
true bill against anyone for any offense committed in
whole or in part in Nebraska, such grand jury was acting
beyond its powers, and answers of the defendant, even
if false, could not amount to perjury or be made the
basis of a prosecution therefor.
We concede that the scope of the special grand jury’s
inquiry involved other persons and activities which formed
a nexus with the district of Oklahoma, but insofar as
this petitioner is concerned, this is not so. The petitioner
was indicted on questions and answers which concerned
northeast Oklahoma residents and activities within that
area only. The entire 90 pages of the petitioner’s grand
jury testimony, with the exception of some names and
the displaying of several photographs to him, revolved
around local Oklahoma politics, problems, and such other
matters. Under Brown, the answers were immaterial, thus
defeating the grand jury’s jurisdiction to indict petitioner.”
The Court of Appeals disposes of this argument by
simply referring to the grand jury transcripts. We submit
that the test is what would have been the result if the
petitioner had said, “yes”, he had told Davis and his group,
while being secretly taped, that he could control Frank
Grayson, the Miami County, Oklahoma district attorney.
Davis and his group were discussing liquor by the drink
12. Accord: United States v. Becker, 203 F.Su
167 (E. D.
Va. 1962); United States v. Mancuso, 485 F. 2d 275 (
Cir. 1973).
27
and the possibility of having some slot machines such as is
countenanced in the V. F. W., Elks, and Country Clubs in
Miami, Oklahoma. There was no reference whatsoever, or
even the slightest innuendo, that the Davis group and the
petitioner were concerned with Kansas City interests, or
even knew about them. The Court of Appeals was in error
when it expanded the grand jury’s jurisdiction to include
the substance of the taped communication on the grounds
that the petitioner by his answers to material questions
had impeded the investigation of the grand jury.”
The Supreme Court has never delineated the precise
limits of the teachings of Brown. It is of vital importance
that the grand jury’s jurisdiction be circumscribed within
reasonable and clear perimeters if continued public con-
fidence in the grand jury system is to be expected.
VII.
The questions and answers alleged in Count II of
the indictment do not comport with the standards laid
down by the Supreme Court in Bronston v. United
States, 409 U.S. 352 (1973).
Bronston teaches us that a questioner in a perjury
case must be precise in his questions, and that the answers
must be directly responsive. If the question is too broad,
the answer may be declared unresponsive no matter what
it is. It is urged that the broad, rambling, ambiguous
and imprecise nature of the questions upon which this
prosecution is based, which are gleaned from 90 pages
of the same type of questions, do not measure up to Bron-
13. Bursey v. United States, 466 F.2d 1059 (9th Cir. 4073) j
Fraser v. United States, 145 F.2d 145 (6th Cir. 1944); Uni
States v. Icardi, 140
v. Cross, 170 F.Supp. 303 (
383 (D.C. D.C. 1956); United States
C. D.C. 1958).
ston standards.“ As the Court pointed out in Bronston,
the burden is on the examiner to pin the witness down
to the specific object of the questioner’s inquiry. Further-
more, it appears to be simple justice that instead of broad
questions, the examiner should be required to limit himself
to clear, simple questions narrowed to circumstances that
are precisely ascertainable so that the witness can direct
his attention and memory processes to the exact context
and circumstances about which he is being questioned.
Such characteristics are notably lacking here, and it can
be safely said that the questioning during the grand jury
investigation, and the questions chosen therefrom, were
propounded in utter disregard of the Court’s admonition
in Bronston:
“Precise questioning is imperative as a predicate for
the offense of perjury.” (409 U.S. at 362)
Accord: United States v. Lattimore, 127 F.Supp. 405
(D.C. D.C. 1955), affd. 232 F.2d 334 (D.C. Cir. 1955); United
States v. Esposito, 358 F.Supp. 1032 (D.C. N.D. Ill. 1973);
United States v. Razzaia, 370 F.Supp. 577 (D.C. Conn.
1973); United States v. Cook, 489 F.2d 286 (9th Cir. 1973).
CONCLUSION
The Court of Appeals’ remand for the limited purpose
of determining the existence or non-existence of the sub-
exceptions contained in 18 U.S.C. Sec. 2511(2)(d) is
in conflict with this Court’s decision in Whiteley v. Warden
of Wyoming Penitentiary, supra, and has so far departed
from the accepted and usual course of judicial proceedings
14. See Appendix C, infra, pp. A49-A52 for questions and
answers.
so as to call for the exercise of the Court’s power of
supervision.
The allocation of the burden of proof relating to the
subexceptions contained in the Federal Wire Interception
and Interception of Oral Communications Act, Sec. 2511
(2)(d), is an important question of federal law which
has not been, but should be decided by the Court. The
right to a trial by jury of the issues raised by the said sub-
exceptions is also an important question of federal law
which has not been, but should be settled by the Court.
Whether the government’s prosecution should be dis-
missed because of failure to negative the existence of the
said subexceptions is an important federal question, never
previously decided, which should also be settled by the
Court.
Also previously undecided is the important federal
question of whether the tort of breach or invasion of
the right of privacy was intended by the Congress to
be tortious conduct within the meaning of the subexcep-
tions contained in 18 U.S.C. Sec. 2511(2)(d), and should
be settled by the Court.
Whether the Court’s decision in Bronston v. United
States, supra, has been followed by the Court of Appeals
is a question which should be decided by the Court.
And, finally, the scope and perimeters of a federal
grand jury’s jurisdiction when probing activities in another
federal district has never been directly examined and de-
lineated by the Court, and should be settled now, partic-
ularly under the facts of this case.
WHEREFORE, petitioner respectfully prays that a
writ of certiorari issue from the Honorable Court to review
30
the judgment of the United States Court of Appeals for
the Eighth Circuit.
Respectfully submitted,
JOSEPH P. JENKINS
West Park Center
Estes Park, Colorado 80517
Counsel for Petitioner
PHILLIP L. WAISBLUM
Suite 600 Waltower Building
823 Walnut
Kansas City, Missouri 64106
Of Counsel
Al
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 75-1413
United States of America,
Appellee,
v.
William Fred Phillips,
Appellant.
Appeal from the United States District Court for the
Western District of Missouri.
Submitted: November 3, 1975
Filed: June 29, 1976
Before GIBSON, Chief Judge, LAY and ROSS, Circuit
Judges.
ROSS, Circuit Judge.
William Fred Phillips appeals his conviction of per-
jury in violation of 18 U.S.C. § 1623. The case was sub-
mitted to a jury which returned a guilty verdict. We va-
cate the conviction and remand with directions for further
proceedings.
Phillips was prosecuted for knowingly making ma-
terial false statements before a grand jury convened in
Kansas City, Missouri. The grand jury was convened in
December 1971 to investigate a conspiracy involving cer-
A2
tain persons engaged in organized crime from Kansas City
and certain nightclub owners from northeastern Oklahoma.
The objective of the conspiracy was to establish illegal gam-
bling and prostitution activities in the Oklahoma night-
clubs by offering bribes to local government officials in
return for protection from the law.
One of the principals was Frank Grayson, an Okla-
homa district attorney, who was providing protection for
gambling at certain local clubs. Defendant Phillips, then
a practicing attorney and Oklahoma state senator, was a
close friend and political supporter of Grayson. Grayson
testified before the grand jury that certain persons had
told him that Phillips had stated that he could control Gray-
son with respect to illegal club operations. Specifically,
Grayson testified that Charles Davis, owner of a major de-
velopment named Shangri La Lodge, told him that Phillips
stated he could arrange anything that Davis needed in the
way of local protection.
In this context, Phillips was called before the grand
jury on August 1, 1972. Defendant repeatedly denied that
he had ever stated to anyone that he could arrange protec-
tion from local law enforcement officials. He specifically
denied that he made any representations to persons af-
filiated with the Shangri La that he could control local
law enforcement officials with respect to illegal gambling,
liquor, narcotics or prostitution.’
The critical evidence admitted at trial was a tape re-
corded meeting between Phillips, Davis and George Over-
ton, manager of the Shangri La. The conversation was
recorded on July 7, 1971, at a time when Phillips was rep-
resenting Davis and Overton before the Grand River Dam
Authority regarding certain improvements of the Shangri
1. See note 7, infra.
A3
La. The conversation was recorded by a private detective,
not under color of law, at the instigation of Davis and
Overton. Phillips was not aware that the conversation
was recorded.
The apparent purpose of the July 7 meeting was to
settle on a fee arrangement between Phillips and the
Shangri La management. The purpose of recording the
conversation is unknown.
During the course of the meeting, Phillips told Davis
and Overton that illegal liquor and gambling operations
could be run at the Shangri La on a limited basis. At one
point, Phillips stated, “I can, I can control Frank[,]” in
obvious reference to district attorney Grayson. At trial,
the government’s theory was that Phillips’ statement was
a representation that he could induce Grayson to provide
protection for illegal operations at the Shangri La.
Before trial, defendant filed a supplemental motion to
suppress the tape recording on the grounds that the con-
versation was recorded in violation of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18
USC. §§ 2510, et seq. Defendant also moved to suppress
the tape recording on the grounds that he was not ad-
monished of his Miranda rights before the grand jury.
The motion was denied in all respects and the tape and its
contents were admitted at trial.
The case was originally assigned to Judge Duncan who
ruled on all pretrial motions and presided throughout the
trial. At the conclusion of trial, defendant moved for a
directed acquittal and a new trial. The motions were
pending when Judge Duncan died on July 31, 1974. Judge
Hunter was then assigned to the case. Pursuant to FED.
R. CRIM. P. 25(b), Judge Hunter certified that he could
fairly and adequately dispose of the post-trial motions.
Al
After reviewing the record, Judge Hunter denied defen-
dant’s motions for acquittal and a new trial.
Defendant alleges numerous points of error on this
appeal. Because of the limited nature of our remand, we
review all of these contentions.
I. The Admissibility of the Tape Recording under 18
U.S.C. § 2511(2) (d).
Defendant’s supplemental motion to suppress alleged
that the conversation between himself, Davis and Overton
was recorded for the purpose of committing a tortious act
in violation of 18 U.S.C. § 2511(2)(d). No evidence was
adduced before or during trial as to why Davis and Over-
ton caused the conversation to be recorded. Defendant
argues that the government held the ultimate burden of
proving that the conversation was not recorded for any
criminal, tortious or other injurious purpose, and, since no
evidence was proffered in this regard, the tape should have
been suppressed. While we hold that the ultimate burden
rested with the defendant to show that the tape was “un-
lawfully” recorded, our review of the record convinces us
that defendant was denied a meaningful opportunity to
meet this burden. Accordingly, we vacate the judgment
of conviction and remand for a hearing in order to afford
the parties an opportunity to present evidence as to the
purpose of the recording.
Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 sets forth a comprehensive legislative
scheme regulating the interception of oral and wire com-
munications. This legislation attempts to strike a delicate
balance between the need to protect persons from unwar-
ranted electronic surveillance and the preservation of law
enforcement tools needed to fight organized crime. S. Rep.
90-1097, U. S. CODE CONG. & ADMIN. NEWS 2112, 2153-
2158 (1968). *
A5
Section 2511 (1) (a) generally prohibits the willful in-
terception of any wire or oral communication. Section
2511 (2) (d) provides an exception and subexception to the
general rule. That section reads as follows:
It shall not be unlawful under this chapter for
a person not acting under color of law to intercept a
wire or oral communication where such person is a
party to the communication or where one of the par-
ties to the communication has given prior consent to
such interception unless such communication is inter-
cepted for the purpose of committing any criminal or
tortious act in violation of the Constitution or laws of
the United States or of any State or for the purpose of
committing any other injurious act. (Emphasis sup-
plied. )
This section was missing from Title III when the bill was
first reported out of committee. S. Rep. 90-1097, U. S.
CODE CONG. & ADMIN. NEWS 2112, 2182 (1968);
Meredith v. Gavin, 446 F.2d 794, 798 (8th Cir. 1971). At
the urging of Senators Hart and McClellan however,
§ 2511(2)(d) was added to the bill, 114 Cong. Rec. 14695
(May 28, 1968), “* * * to prohibit a one-party consent tap,
[where the monitoring is conducted not under color of
law,] except for private persons who act in a de-
fensive fashion.” Id. at 14694. In the words of Senator
Hart:
* * * [W]henever a private person acts in such situa-
tions with an unlawful motive, he will violate the
criminal provisions of title III and will also be subject
to a civil suit. Such one-party consent is also pro-
hibited when the party acts in any way with an intent
to injure the other party to the conversation in any
other way. For example the secret consensual re-
A6
cording may be made for the purpose of blackmailing
the other party, threatening him, or publicly embar-
rassing him. The provision would not, however, pro-
hibit such activity when the party records information
of criminal activity by the other party with the pur-
pose of taking such information to the police as evi-
dence. Nor does it prohibit such recording in other
situations when the party acts out of legitimate desire
to protect himself and his own conversations from
later distortions or other unlawful or injurious uses
by the other party.
Id. The effect of § 2511(2)(d), then, is to prohibit any
interception, use or disclosure of oral or wire communica-
tions by a person not acting under color of law where
the purpose is to commit any criminal, tortious or injurious
act. Meredith v. Gavin, supra, 446 F.2d at 798. This de-
termination must be made on a case-by-case basis. Id. at
799.
18 U.S.C. § 2515 imposes an evidentiary sanction to
compel compliance with § 2511. That section provides that
any oral communication intercepted in violation of the Act
shall not be received in evidence in any judicial proceed-
ing.“ Section 2515 is not self-executing however. Section
2518(10) (a) provides that any aggrieved person may file
a motion to suppress the contents of any unlawfully inter-
cepted oral communication. This section * * provides
2. Section 2515 reads:
Whenever any wire or oral communication has been
intercepted, no part of the contents of such communication
and no evidence derived therefrom may be received in evi-
dence in any trial, hearing, or other proceeding in or before
any court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the United
States, a State, or a political subdivision thereof if the dis-
ao 6 OS Ee Ce eS ee Se oe
pter.
A7
the remedy for the right created by section 2515.“ S. Rep.
90-1097, U. S. CODE CONG. AND ADMIN. NEWS 2112,
2195 (1968). Thus, as the government asserted at oral
argument, whether the conversation was recorded for a
permissible or impermissible purpose is a matter of sup-
pression properly cognizable a: a pretrial suppression hear-
ing. Id.
Under traditional search and seizure law, “(t]he bur-
den is, of course, on the accused in the first instance to
prove to the trial court’s satisfaction that wiretapping was
unlawfully employed.” Nardone v. United States, 308 U.S.
338, 341 (1939). Accord, Canaday v. United States, 354
F.2d 849, 857 (8th Cir. 1966); United States v. Polizzi, 500
F.2d 856, 910 n.6 (9th Cir. 1974), cert. denied, 419 U.S. 1120
(1975); United States v. Maggadino, 496 F.2d 455, 459-460
(2d Cir. 1974); Nolan v. United States, 423 F.2d 1031, 1041
(10th Cir. 1969), cert. denied, 400 U.S. 848 (1970). The
prima facie burden of proving the ultimate illegality should
be distinguished from the burden to prove taint flowing
from that illegality. “* * * [W])hen an illegal search has
come to light, [the government] has the ultimate burden
to show that its evidence is untainted.” (Emphasis sup-
plied.) Alderman v. United States, 394 US. 165, 183
(1969).
Available legislative history in regard to §§ 2511(2)
(d) and 2515 reflects no congressional desire to change
the traditional burden of proof with respect to suppression
of electronically gathered evidence. As stated in S. Rep.
90-1097, U. S. CODE CONG. AND ADMIN. NEWS 2112,
2185 (1968):
[Section 2515] must, of course, be read in light of sec-
tion 2518(10)(a) discussed below, which defines the
class entitled to make a motion to suppress. It largely
A8
reflects existing law. It applies to suppress evidence
directly (Nardone v. United States, * * *, 302 US.
379 (1937)) or indirectly obtained in violation of the
chapter. (Nardone v. United States, * * 308 US.
338 (1939).) There is, however, no intention to change
the attenuation rule * * * [,] [n]or generally to press
the scope of the suppression role beyond present search
and seizure law. (Emphasis supplied.)
We perceive sound reasons for preserving the tradi-
tional allocation of burden of proof in this context. Sec-
tions 2511(2)(d) and 2515 require the exclusion of an
intercepted communication if it was intercepted for any
criminal, tortious or other injurious purpose. To require
the government or any other party to prove as a matter
of foundation that an interception was made for no crim-
inal, tortious or other injurious purpose would create an
impossible burden oi proving three negatives. Logic re-
quires that the party against whom the evidence is offered,
the defendant here, carry the ultimate burden of alleging
and proving the specific criminal, tortious, or other injuri-
ous purpose for which the interception was made.
This is not a case where the fact to be proved is a
material part of the act proscribed. Compare Mullaney
v. Wilbur, 421 US. 684, 702 (1975) (government must
prove beyond a reasonable doubt the absence of heat of
passion on sudden provocation in a homicide case); United
States v. Harpel, 493 F.2d 346, 351 (10th Cir. 1974) (gov-
ernment must prove beyond a reasonable doubt that the
contents of a wire or oral communication were acquired
through a device other than a telephone used in the ordi-
nary course of business); United States v. McCann, 465
F.2d 147, 162 (5th Cir. 1972), cert. denied, 412 U.S. 927
(1973) (government not required to prove inapplicability
of consent exception under § 2511). Indeed, in this case
— — — — K —
—
; Ad
the fact to be proved, the purpose of the recording, has
no relation to the act proscribed, the crime of perjury.
Thus due process is not offended by requiring the defen-
dant to shoulder the ultimate burden of proof under §§
2511 (a) (d) and 2515. Nardone v. United States, supra,
308 U.S. at 341.
It is clear however that a party seeking to suppress
such matter must be given a full and fair opportunity to
meet his or her burden of proof.“ Our review of the rec-
ord convinces us that defendant was effectively denied this
opportunity in the court below.
Because of pretrial discovery, this point was not raised
until the eve of trial. Nevertheless, at that time the de-
fendant filed his supplemental motion to suppress claiming
that the conversation was recorded for a tortious purpose.
The motion was orally raised the next morning in the
trial judge’s chambers. The motion was summarily denied
before defense counsel was given any opportunity to make
a statement or offer evidence in support of the motion.
The trial judge expressed the view at this time that any
such evidence would be admissible for impeachment pur-
poses only. At trial, defense counsel attempted to pursue
the subject with George Overton, manager of the Shangri
La. The government objected to this line of questioning
on the grounds of irrelevancy and the objection was sus-
3. Our disposition does not relieve the government of its
under S.C. § 3504 1) to or deny the
pron — yoo ee 8 On remand, the trial
whom the burden rests when the de-
11(2)(d). The risk of nonpersuasion
contained in § 2511(2) (d).
i
Al0
tained. Thus, the dearth of evidence on the issue,“ which
both parties acknowledge, was largely created by the un-
willingness of the trial judge to allow defense counsel
to pursue this line of inquiry. Under these circumstances,
we find it necessary to remand to the district court for
a hearing to determine the purpose for which the conver-
sation was recorded. See United States v. Rose, 526 F.2d
745, 749-750 (8th Cir. 1975). If the recording was made
for a legitimate purpose, the judgment of conviction must
be reinstated. If, however, the defendant proves by a
preponderance of the evidence that the recording was made
for a criminal, tortious or other injurious purpose, the
tape must be suppressed. If the tape is suppressed, a
new trial will be necessary.“
4. In its opinion, the district court stated that the evidence
showed that the recording was made by Davis and Overton for
no other purpose than to protect their bargaining position with
respect to any a arrangement reached with *
United States v. Phillips, No. 73-CR-38-W-3-D (WD. Mo.,
April 10, 1975), slip op. at 15. We find no such evidence in the
record. The evidence shows only that this was the purpose of the
meeting. The evidence fails to disclose why Davis and Overton
caused the meeting to be recorded.
another participant may di e the contents of that conversa-
tion. If the conversation is whether by of
the participant or by electronic there is no la-
tion of any priv right. Cf. Rathbun v. United States, 355 U.S.
107, 111 (1957); Smith v. Cincinnati Post & Times-Star, 475 F.2d
740, 741 (6th Cir. 1973). Except as set forth above, we express
no opinion as to whether this recording was made “for the pur-
pose of committing any criminal or tortious act in violation of
the laws of the United States or of any State or for the
of committing any injurious act[,]” under § 2511(2)(d). (Em-
— pe — This determination must first be by the
on the evidence adduced by the parties and upon
relevant federal and state laws.
(Continued on following page)
All
II. Jurisdiction and Materiality.
Defendant next contends that the questions asked of
him were not material to any proper ind iry of the special
grand jury. Since the questions were immaterial, he ar-
any proper inquiry of a grand jury.” United States v.
Masinia v. United States, 296 F.2d 871, 874 (8th Cir. 1961);
Brown v. United States, 245 F.2d 549, 554 (8th Cir. 1957).
- —_._ --
Al2
11; United States v. Koonce, supra, 485 F.2d at 380; La-
Rocca v. United States, 337 F.2d 39, 43 (8th Cir. 1964).
Defendant argues that the questions were not material
because each related to matters of purely local (Oklahoma)
concern and thus were not proper for consideration by
a grand jury convened in Kansas City, Missouri. We
disagree.
The grand jury transcripts admitted at trial show that
the grand jury was investigating a conspiracy between
certain Kansas City persons associated with organized
crime and other persons affiliated with local nightclubs
in northeastern Oklahoma. The purpose of the conspiracy
was to establish illegal gambling, liquor and prostitution
activities in Oklahoma. The method used to accomplish
this objective was the corruption of local Oklahoma law
enforcement officials. Interstate travel and communica-
tion were indisputably involved in the conspiracy.
Two of the central figures in the conspiracy were
district attorney Grayson and Jess Roberts. Both individ-
uals were connected to defendant Phillips during the course
of the investigation. Testimony before the grand jury
from various witnesses, including Grayson himself, estab-
lished that Phillips had represented to others that he could
“control” Grayson. Other testimony established that Phil-
lips had represented coconspirator Roberts in regard to
raids conducted against Roberts’ club operation.
It is well settled that * * if a conspiracy is
what the inquiry is directed at, the acts and conduct of
the alleged conspirators that may have occurred in a dis-
trict other than that where the grand jury is sitting
may be gone into.” Brown v. United States, supra, 245
F.2d at 554; Masinia v. United States, supra, 296 F.2d
at 875. When Phillips was called before the grand jury,
Al3
it was reasonably believed that certain actions on his part
had interstate conspiracy implications. That the grand
jury focused on conduct of Phillips which took place only
in Oklahoma did not defeat its jurisdiction or render the
questions immaterial.
Defendant also argues that the questions were not
material because the prosecution and the grand jury had
access to the tape and its contents before Phillips was
called to testify. Again, we cannot agree.
The latitude of materiality with respect to questions
asked of a witness during a grand jury investigation is
quite broad. United States. v. Calandra, 414 U.S. 338,
343-344 (1974); United States v. Paolicelli, 505 F.2d 971,
973 (4th Cir. 1974); United States v. Stone, 429 F.2d 138,
140 (2d Cir. 1970). As stated in the Stone case:
* * * [M)ateriality of statements made in a grand
jury investigation may more readily appear than that
of similar evidence offered on an issue in civil or
criminal litigation, since the purpose of the investiga-
tion is to get at facts which will enable the grand
jury to determine whether formal charges should be
made against someone rather than prove matters di-
rectly at issue. * * * Leads to further inquiry may
be of material worth to an investigation.
Id. at 140; see also United States v. Paolicelli, supra, 505
F.2d at 973; United States v. Lardieri, 497 F.2d 317, 319
(3d Cir. 1974). A grand jury investigation is not carried
out until every available clue had been run down and
all witnesses have been properiy examined to discover
whether a crime has been committed. United States v.
Calandra, supra, 414 U.S. at 344, quoting, United States
v. Stone, supra, 429 F.2d at 140.
Al4
Phillips’ denials clearly frustrated the investigation
of the grand jury. In pursuing its investigation with an
open mind, the grand jury had to know the truth about
Grayson’s testimony respecting Phillips’ statements that
he could control Grayson. Phillips’ testimony clouded that
issue. Furthermore, Phillips’ blanket denials frustrated
possible inquiry into other areas such as possible connec-
tions between illegal operations at the Shangri La and
persons associated with organized crime in Kansas City.
By testifying that he could not put a fix on Grayson,
Phillips frustrated any further fruitful investigation into
legitimate matters before the grand jury. Therefore, we
hold that the grand jury was acting within its jurisdic-
tion when Phillips testified and that the questions asked
of him were material to the investigation.
III. The Literal Falsity of Defendant’s Testimony.
Defendant next argues that his testimony before the
grand jury was not literally false under Bronston v. United
States, 409 U.S. 352 (1973). He contends that the govern-
ment’s questions in regard to influence peddling were am-
biguous and his responses thereto unresponsive and iit-
erally true. We disagree.
In Bronston, the Supreme Court reversed a perjury
conviction because the defendant’s answers, upon which
the prosecution was based, were unresponsive to the ques-
tions asked and literally true. The Court held that a
willful statement which merely implies a material matter
known to the witness to be untrue does not constitute
perjury. Id. at 357-358.
Bronston is plainly inapposite. In this case, the gov-
ernment’s questions were clear and understandable, not
prolix and ambiguous as defendant argues. Phillips’ re-
sponses were unequivocal. Government counsel initially
Al5
asked Phillips whether he had told anyone associated with
any club that he could influence Grayson with respect
to illegal operations. Phillips responded no. Thereafter,
government counsel asked specifically whether defendant
had made such representations to persons operating the
Shangri La. Phillips again responded no.“
7. The grand jury transcript, at 77-89, reads as follows:
mele Fgh - inn FM 111
other illegal activities in We know and have
perhaps had business dealings with a number of the club
a Sa which would include Jess Roberts, Jack
Al6 ö Al7
Our independent review of the tape recording indi- ting our cards on the table, without having say to
cates that Phillips’ answers were literally false. The tape come up with another legal fee for that. Ah, in the
contains the following collcyuy between Phillips, Overton next twelve months or whatever, you know, reasonable
and Davis: period.
O: Well, here I was gonna ask a direct question.
(Pause) Can I go back you said this project, now
there is another major area that I can see that there
might be problems in and there might not and we,
the three of us sitting here, recognize the operation
of our club as a potential problem. Now, could we,
can we, depend on Fred Phillips
P: I can, I can control Frank.
O: ... to help us in that area without, ah, let's
just putting as Mr. Davis said a while ago, just put-
Footnote continued—
ficial with respect to prostitution, narcotics, liquor or gambling
activities?
A No, sir, I have never ever just carte blanche.
The questioning then focused on the Shangri La:
Now, pursuing our original line of questioning, we also
have indications that we have satisfied ourselves that a
number of these Kansas City People visited the Shangri-la
on at least one and possibly more occasions and conducted
some rather elaborate business discussions or mee there,
and can you tell us whether or not you have ever any
discussion with any of the owners or operators, and I know
there was a George Overton—
A George Overton. Lae
Q Not to affect law enforcement with respect to the liquor
or gambling, prostitution or narcotics, right?
A Yes.
She has to get an audible answer.
A I did not make a statement that he could in any way.
Q Right. To rephrase the question, the conversations which
you had with any representatives of the Shangri-la were
never to the effect that you could furnish any protection from
local law enforcement authorities.
A No. No.
P: Now, there you’re getting into politics there and
the only thing you get in trouble on that is if it
would be down state where I’d have, have advance
notice of any kind of problems, if they was getting
a kick, out of a kick, from some of the local people.
You do it, other people’s gonna want to do it. They
can’t. In other words, it’s got to be this place and
only this place, if you do what you want done and
then, course, Frank’s gonna take the heat. Well, he’s
locked in here for four years and I think you know—
you’ve heard the stories that I ran Frank and he
wasn’t even here.
O: He was a resident up in or—not a resident
P: Yeah, he was registered here, had residence here,
but it was, hell, he was clear out, back East some-
place and this was something had to be done. But
I don’t mean to be, blow things out of perspective,
you know, that I’m bigger than I am. I know I’m
not. But I know what I can do and it won’t make
me mad a bit. In other words if you don’t want
to go on the deal, fine. But I mean what Ill earn
every dime I make from it. I mean that, you pay
me, I know that, Mr. Davis.
This discussion was followed by representations of Phil-
lips that the Shangri La could conduct illegal gambling
operations on a limited basis.
At trial, Phillips repeatedly admitted the accuracy
of the contents of the tape. We agree with the district
court’s determination that the defendant’s testimony before
Als
the grand jury was not only responsive but literally false.
See United States v. Parr, 516 F.2d 458, 470 (5th Cir.
1975); United States v. Paolicelli, supra, 505 F.2d at 973;
United States v. Nickels, 502 F.2d 1173, 1178 (7th Cir.
1974), appeal docketed, 44 US.L.W. 3009 (U.S. July 22,
1975) (No. 74-735); United States v. Isaacs, 493 F.2d 1124,
1155 (7th Cir.) , cert. denied, 417 U.S. 976 (1974).
IV. Miranda Rights.
Phillips also argues that the tape recording should
have been suppressed because he was not admonished of
his Miranda rights when called before the grand jury.
Relying heavily on United States v. Mandujano, 496 F.2d
1050 (5th Cir. 1974), he claims that because the investiga-
tion had focused on him as a virtual or putative defendant,
he was entitled to the Miranda litany.
We note initially that defendant’s suppression motion
in this respect was misdirected. Even assuming error un-
der Miranda, the grand jury testimony, not the tape record-
ing, was the fruit of such error. Thus, only the grand
jury testimony would require suppression in any event.
Construing defendant’s motion broadly however, we pro-
ceed to discuss the merits of the Miranda question.
The Supreme Court has recently reversed the Man-
dujano case, the authority upon which defendant princi-
pally relies, holding unanimously that Miranda rights are
not required in the grand jury context United States
v. Mandujano, 44 U.S.L.W. 4629 (U.S. May 19, 1976) (No.
74-754). In a plurality opinion in which three members
of the Court joined, Chief Justice Burger carefully distin-
guished between custodial interrogation, to which Miranda
was addressed, and interrogation before a grand jury,
which is involved in this case.
Al
The Court [in Miranda] thus recognized that
many official investiga ions, such as grand jury ques-
tioning, take place in a setting wholly different from
custodial police interrogation. * * * To extend
these concepts to questioning before a grand jury in-
quiring into criminal activity under the guidance of
a judge is an extravagant expansion never remotely
contemplated by this Court in Miranda; the dynamics
of constitutional interpretation do not compel constant
extension of every doctrine announced by the Court.
(Citations omitted.)
Id. at 4634. The plurality concluded that even if the
defendant was a putative deferidant before the grand jury,
that fact had no bearing on the validity of a conviction
for testifying falsely. Id. at 4635: |
Mr. Justice Stewart, in a concurring opinion in which
Mr. Justice Blackmun joined, stated the following:
The Fifth Amendment privilege against com-
pulsory self-incrimination provides no protection for
the commission of perjury. “Our legal system provides
methods for challenging the Government’s right to
ask questions—lying is not one of them. A citizen
may decline to answer the question, or answer it hon-
estly, but he cannot with impunity knowingly and
willfully answer with a falsehood.” (Citations
omitted.)
Id. at 4643.
We hold that the failure of the prosecutor to admonish
Phillips of his Miranda rights did not violate defendant’s
privilege against self-incrimination. Phillips was under
oath to tell the truth before the grand jury. When he
proffered false answers, be took ‘a course that
the Fifth Amendment gave him no privilege to take.’”
A20
Id. at 4636, quoting United States v. Knox, 396 US. 77,
82 (1969) (Mr. Justice Brennan, concurring). It is true
that the prosecutor failed to inform Phillips of his right
against self-incrimination as well as his other Miranda
rights. But it would be incredible to assume that defen-
dant, a practicing attorney of many years, a former as-
sistant county attorney, an Oklahoma state senator and
former county judge, was not aware of his Miranda rights
when he testified before the grand jury. See Cargill v.
United States, 381 F.2d 849, 853 (10th Cir. 1967), cert.
denied, 389 U.S. 1041 (1968). Phillips’ decision to proffer
false answers was in no way compelled; it was a volun-
tary decision on his part.“ |
V. The Remaining Contentions.
Defendant asserts several other points of error. We
briefly discuss these points finding each to be without
merit.
Phillips argues that the district court erred in deny-
ing his motions for directed acquittal at the conclusion
of the government’s case and at the close of all the evi-
dence. Phillips’ representations to Davis and Overton con-
tained in the tape, coupled with his testimony before the
grand jury, clearly constituted a submissible case of per-
jury for the jury.
govern-
ment did not solicit Phillips to commit ury. At most a situ-
— os oe ee ae expedient. There is
nothing in this record even remotely any prosecutorial
ce a meld coin of Gate of ee See
United States v. Nickels, 502 F.2d 1173, 1176 (7th Cir. 1974),
appeal docketed, 44 U.S.L.W. 3009 (U.S. July 22, 1975) (No. 74-
735); LaRocca v. United States, 337 F.2d 39, 42-43 (8th Cir. 1964).
A21
Phillips argues that successor Judge Hunter abused
his discretion in refusing to grant a new trial after the
untimely death of Judge Duncan. Under such circum-
stances, the decision to grant a new trial is a matter
committed to the sound discretion of the successor judge.
See FED. R. CRIM. P. 25(b); Connelly v. United States,
249 F.2d 576, 579 (8th Cir. 1957). We refuse to disturb
that discretion here. This is not an exceedingly compli-
cated case. Our review of Judge Hunter’s opinion con-
vinces us that he adequately familiarized himself with
the evidence and legal issues involved and fairly resolved
defendant’s post-trial motions.
Defendant also argues that the district court erred
in excusing the jury during its deliberations. The record
indicates that after deliberating for nearly two hours, cer-
tain members of the jury expressed concern for the safety
of their cars which were parked in various garages sur-
rounding the courthouse. Accordingly, the trial judge al-
lowed the jury to separate in order to move their cars
and eat dinner. We find no error in this regard. Whether
members of the jury are allowed to separate is a matter
resting squarely within the discretion of the trial judge.
Koolish v. United States, 340 F.2d 513, 528 (8th Cir.),
cert. denied, 381 U.S. 951 (1965); Hines v. United States,
365 F.2d 649, 651 (10th Cir. 1966). Defendant has not
alleged nor shown any prejudice resulting from this short
separation.
Lastly, defendant argues that the trial judge erred
in failing to inform defense counsel that he intended to
instruct the jury that the tape recording was legally admis-
sible into evidence. Defendant contends this failure preju-
dicially hampered his closing argument. This claim is
frivolous. The question of admissibility of the tape was
a legal question to be resolved by the trial judge, not
A22
the jury. Defense counsel was repeatedly told throughout
trial that the tape recording would be admitted.
The judgment of conviction is vacated, and the cause
is remanded for further proceedings not inconsistent with
the views expressed in this opinion.
A true copy.
Attest:
Clerk, U. S. Court of Appeals, Eighth Circuit.
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI,
WESTERN DIVISION
No. 73-CR-38-W-3-D
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WILLIAM FRED PHILLIPS,
Defendant.
FINDINGS AND OPINION
(Filed April 10, 1975)
Case History
On February 8, 1973, a federal grand jury for the
Western District of Missouri returned a two count indict-
ment against the defendant, William Fred Phillips, charging
that while under oath and testifying before the grand jury
he willfully and knowingly made certain false material
declarations in response to questions asked him by Govern-
ment counsel. The essence of the charge brought by the
Government was that the defendant had suggested and
A23
represented to certain people that he had control over
District Attorney Frank Greyson and that he could furnish
protection from law enforcement for illegal gambling and
liquor violations, and that defendant falsely denied to the
grand jury making such declarations.
The defendant was given the customary omnibus pro-
ceedings hearing and upon arraignment entered his plea of
mot guilty” to each count.
The case originally was assigned by lot to Chief Judge
William H. Becker, who on July 23, 1973, with the consent
of Judge Richard M. Duncan, transferred the case to Judge
Duncan for all purposes.
A large amount of pretrial discovery was accomplished
by defendant’s counsel, who, among others, filed the fol-
lowing pretrial motions on the dates indicated:
(1) Motion to Suppress a tape recording of a con-
versation by defendant with two other persons (March 7,
1973) ;
(2) Motion to Dismiss (April 26, 1973);
(3) Motion for Discovery and Inspection (April 26,
1973); J
(4) Motion for a Bill of Particulars (April 26, 1973);
(5) Motion for Disclosure (June 3, 1974);
After appropriate presentation of all of these motions
to Judge Duncan, on May 31, 1974 he overruled the motion
to dismiss, specifically holding that the indietment did
validly charge federal offenses, but noting that Counts I
and II might be duplicitous. He reserved the question of
duplicity until trial. At the trial he caused the Govern-
ment to submit the case on Count II only. On June 6, 1974,
A24
he overruled defendant’s Motion to Suppress. On that date
he also overruled defendant’s Motion for a Bill of Partic-
ulars upon being advised that all of the requested items
had been provided by the Government. On June 6, 1974,
he sustained defendant’s Motion for Production of Grand
Jury Transcripts. On June 12, 1974, he sustained in part
and overruled in part defendant’s Motion for Disclosure. A
careful reading of the transcript convinces that Judge Dun-
can correctly ruled each of these motions after they had
been fully presented to him on the merits.
After all previously filed motions had been disposed
of, on June 19, 1974 Judge Duncan set the case for jury
trial to commence on Wednesday, July 10, 1974. The trial
was held as set. It lasted three days and on July 12, 1974
resulted in an unanimous jury verdict of guilty on Count
II, the only count Judge Duncan submitted. Judge Duncan
accepted the jury verdict as duly returned.
Current Motions
At the conclusion of all the evidence in the case, and
before Judge Duncan submitted the case to the jury, de-
fendant’s counsel renewed an earlier filed Motion For
Judgment of Acquittal. Judge Duncan reserved his ruling
on this motion.
On September 9, 1974, and within the time allowed by
Judge Duncan, defendant’s counsel filed a Motion For a
New Trial. The above mentioned two motions were un-
disposed of at the time of Jude Duncan’s untimely death
on July 31, 1974.
Thereafter, by action of the Court en Banc the case
was assigned to the undersigned Judge for disposition of
the motions and for any and all other appropriate action.
A25
Successor Judge Question
At the outset a determination had to be made as to
whether the undersigned judge could properly take over the
case at the point of Judge Duncan’s death and process it to
completion, including the ruling of all outstanding motions.
This matter has been dealt with in the undersigned judge’s
separate certification to that effect. Rule 25, Federal Rules
of Criminal Procedure. There is no need for further dis-
cussion of it in this opinion other than to note that case
law requirements applicable to that rule indicate that the
successor judge must exercise a sound judicial discretion
to determine if in the light of the posture of the case at
the time of death and the applicable law the successor
judge can satisfactorily, fairly, and with justice to all of
the parties perform the duties of the judge who presided
at the trial. This discretion the successor judge has so
exercised and has determined that he should and can serve
as successor judge. See Connally v. United States, 249
F. 2d 576 (8th Cir. 1957) and United States v. Carbo, 314
F. 2d 718, 749 (9th Cir. 1957).
This is not a complicated case. As stated by defen-
dant’s counsel in his memorandum in support of his Mo-
tion For a New Trial, “It soon developed that the Govern-
ment’s case was based solely on the tape—a comparison
of what was said on the tape and before the Grand Jury.”
Thus, the principal evidence in the case is embodied in two
items in evidence: (1) the Grand Jury Transcript of de-
fendant’s under oath answers to Government counsel’s
questions, and (2) the tape containing defendant’s conver-
sation with Charles J. Davis and George Overton. The
case is remarkably free of any need to weigh credibility
A26
matters.“ And as earlier noted, only two motions re-
mained unruled at the time of Judge Duncan’s death— (1)
A reserved Motion For a Directed Verdict of Acquittal, and
(2) A Motion For a New Trial. The record of the case is
such that any judge, upon becoming familiar with it, could
resolve the remaining matters in the case.
Disposition of Motion For
Judgment of Acquittal
The question of the proper disposition of the Motion
For Judgment of Acquittal is easily answered in the light
of the transcript and the applicable law.
Rule 29, Federal Rules of Criminal Procedure, pro-
vides for the taking of a motion for a judgment of acquittal
made at the close of the case under advisement as Judge
Duncan did. The legal test for ruling such a reserved mo-
tion is set out as follows: “If the evidence is such that
1. There is no reasonable doubt that the conversation was
2 cae an Gn a Overton testified he was
present at the conversation, and that the accurately recorded
it. Defendant was asked about those of it upon which
the Government indicted him in Count II and acknowledged its
accuracy. Example (Transcript, page 405) “Q. * * * (from the
tape) I can, I can control Frank”. “Now will you please tell the
jury what was meant by that statement? A. 1
ment, and it was that I could go and talk to Mr. Grayson *
And on cross- examination on this same subject (Transcript, |
A27
able doubt or might fairly not have one, the case is for the
jury, and the decision is for the jurors to make, * * *
“The true rule, therefore, is that a trial judge, in pass-
ing upon a motion for directed verdict of acquittal, must
determine whether upon the evidence, giving full pay to
the right of the jury to determine credibility, weigh the
evidence, and draw justifiable inferences of fact, a reason-
able mind might fairly conclude guilt beyond a reasonable
doubt. If he concludes that upon the evidence there must
be such a doubt in a reasonable mind, he must grant the
motion; or, to state it another way, if there is no evidence
upon which a reasonable mind might fairly conclude guilty
beyond a reasonable doubt, the motion must be granted.
If he concludes that either of the two results, a reasonable
doubt or not reasonable doubt, is fairly possible he must
let the jury decide the matter.” Curley v. United States,
160 F. 2d 229, 232-233 (D.C. Cir. 1947), cert. den. 331 US.
837; Conaway v. United States, 349 F. 2d 907, 910 (8 Cir.
1965), cert. den. 382 US. 976.
Thus, it is not for the judge ruling on a motion for
a judgment of acquittal to assess the credibility of the wit-
nesses, weigh the evidence, or draw inferences of fact from
the evidence. These are functions of the jury. The trial
court is limited to deciding whether a sufficient showing
has been made to the jury on the basis of the view of the
evidence and inferences therefrom favorable to the prose-
cution. See 2 Wright, Federal Practice and Procedure,
§ 467, pp. 259, 290. Moore v. United States, 375 F. 2d 877,
879-880 (8th Cir. 1967); and United States v. Fryer, 419
F. 2d 1346 (8th Cir. 1969), cert. den. 397 U.S. 1055.
The defendant was charged in each of the two counts
of the indictment with making certain false material state-
A28
ments on August 1, 1972, before a federal grand jury in
violation of 18 U.S.C. § 1623. As earlier noted, the evi-
dence relied on by the Government was a duly authenti-
cated copy of the testimony of the defendant before the
federal grand jury and a tape recording of a conversation
between the defendant and two other individuals, Charles
J. Davis and George Overton, with whom he was discuss-
ing a private business transaction. Defendant under oath
denied to the federal grand jury that he had suggested or
represented to any person that he had the power to in-
fluence a public official with respect to gambling and li-
quor violations and denied he had any conversation with
any other person associated with the Shangri-la about fur-
nishing protection from local authorities with respect to
gambling or liquor violations. The taped conversation of
the defendant and the two individuals discloses that the
defendant prior to his grand jury appearance did discuss
these two matters with them, There was ample evidence
as to the authenticity and accuracy of the taped conversa-
tion. There was substantial evidence showing the chain of
possession of the tape. The defendant while he was on
the witness stand stated that he had made some of the
crucial statements recorded on the tape. All of the ele-
ments of the offense charged in Count II of the indictment
were supported by the two items; the federal grand jury
transcript of the defendant’s testimony before the grand
jury, and the taped conversation between defendant and
the two men. There was other evidence adduced at the
trial of a corroborative nature, including the testimony of
one of the men who participated in the taped conversation.
Hence, the motion for a directed judgment of acquittal is
without merit and is denied.
A29
Motion For New Trial Contentions
In his Motion for New Trial defendant’s counsel has
raised twenty-one separate contentions as to why a new
trial should be granted. The first ground that he so raises
is that the evidence is insufficient to sustain a conviction
for the offense charged in Count II of the indictment. It
is unnecessary to give further treatment to that contention
min this opinion. It has been fully covered in the discus-
sion and disposition of the Motion For a Directed Verdict
of Acquittal. Suffice it to say the evidence is sufficient
to sustain the conviction.
Defendant’s second charge of error in the Motion For
a New Trial is that the court erred in failing to grant de-
fendant’s Motion For Judgment of Acquittal at the con-
clusion of the Government’s case and at the close of all of
the evidence. This contention has been earlier disposed of
in this opinion.'
Defendant’s fourth and fifth contentions need to be
considered together. Basically they are that the questions
and answers alleged in Count II of the indictments as
violations cf 18 U.S.C. § 1623 are immaterial in that they
could not have impeded or persuaded the grand jury in
its investigation, nor could they have had any effect
thereon, and further that the grand jury lacked jurisdic-
tion to return the indictment against the defendant in that
the matters alleged and attempted to be proved with re-
spect to Count II of the indictment related to events that
could have occurred only in the Northern District of
Oklahoma.
1. Defendant’s third charge of error will be discussed later.
A30
The Question of Grand Jury Jurisdiction
The above raised question of the jurisdiction of the
grand jury was also raised earlier upon numerous occa-
sions by defendant’s counsel before Judge Duncan, and
Judge Duncan at numerous places in the transcript indi-
cated that the contention was without merit. Basically,
defendant’s counsel’s contention is that the matters al-
leged in the indictment and the questions and answers
given by defendant before the grand jury related to mat-
ters occurring in the Northern District of Oklahoma only,
and that therefore the grand jury was without jurisdic-
tion over the subject matter and over the person of the
defendant. However, the evidence in the case reveals that
the grand jury was conducting an ongoing investigation
into possible federal crimes being committed in the West-
ern District of Missouri in a matter that involved both
Kansas City, Missouri, and the Northern District of Okla-
homa as a part of a conspiracy situation and of a continu-
ing crime type situation.“ Specifically, the investigation
was of certain Kansas City, Missouri hoodlums who were
allegedly setting up or engaging in illegal gambling and
liquor operations in north Oklahoma. In so doing these
persons were allegedly using interstate communication fa-
cilities, interstate highway facilities and were themselves
engaging in interstate travel. The conspiracy being in-
vestigated included conspiratorial activities and overt acts
in connection with and in furtherance of the alleged con-
1. A reading of the testimony before the grand jury of the
thirty-one witnesses (all before Judge Duncan in oe dis-
closes that the ongoing grand jury investigation did inc the
possible conspiracy to commit and the substantive acts of com-
mitting the mentioned illegal gambling and liquor violations by
certain Kansas City hoodlums and by persons in the Northern
District of Oklahoma jointly and severally. These transcripts also
disclosed that these matters involved the use of interstate travel,
interstate transportation, and interstate communication.
A31
spiracy, which activities and overt acts occurred, among
other places, in Kansas City, Missouri.
Judge Duncan received in evidence and viewed in
camera the some thirty-one grand jury transcripts in con-
nection with the described investigation of the federal
grand jury and found that the grand jury did have juris-
diction in all respects. He further found that the ques-
tions asked of the defendant and the answers given which
were the basis of the grand jury indictment were material
to the ongoing investigation of the federal grand jury and
that the untrue answers given tended to impede that in-
vestigation.
It is noteworthy that defendant’s counsel stated at the
October 19, 1973 hearing before Judge Duncan that he was
not questioning the jurisdiction of this grand jury to in-
vestigate what it was investigating. (Transcript of the
October 19, 1973 hearing, page 15.) Judge Duncan asked,
Then the question about the grand jury having juris-
diction to investigate gambling under the Racketeering Act
isn’t any question about that?’ Mr. Jenkins: (defen-
dant’s counsel) ‘Oh, no, we don’t object to that.’” (Tran-
script of October 19, 1973 hearing, page 22.)
It is clear from the transcripts that the federal grand
jury’s mentioned ongoing investigation was directly rela-
tive to the possible commission of federal crimes in the
Western District of Missouri contrary to one or more of
1. Although perhaps immaterial to this opinion, on October
24, „ee TI A
fendant’s counsel advised Judge Duncan that in connection with
the investigation above described there had resulted an indictment
titled United States v. James D.
A32
the following statutes: 18 U.S.C. § 1952 (Racketeering
Enterprises); 18 U.S.C. § 1955 (Illegal Gambling Business) ;
18 U.S.C. § 1511 (Obstruction of State or Local Law En-
forcement); 18 U.S.C. § 892 (Extortionate Credit); 18
U.S.C. § 893 (Extortionate Credit); and 18 U.S.C. § 894
(Credit).
Judge Duncan correctly ruled the federal jurisdiction
question including the question of jurisdiction over both
the person and the subject matter. He correctly overruled
defendant’s counsel’s Motion to Dismiss the Indictment
on the basis of lack of jurisdiction.
Additional Questions Concerning the Grand Jury’s Ju-
diction and the Materiality of Defendant’s Answers
Defendant’s counsel’s contentions of error, Nos. 7, 8
and 9 of the Motion For New Trial likewise need to be
grouped for the purpose of discussion and disposition. Ba-
sically they are: (1) that the grand jury lacked jurisdic-
tion of the defendant since he was brought before it solely
for the purpose of attempting to entice him into making
inconsistent and possibly false statements and not to obtain
information in order to aid and assist its investigation;
(2) that the prosecution was defective in that it was based
on and arose out of entrapment, and (3) that it was an
abuse of the grand jury process for the Government prose-
cutors to utilize repetitive questions to coax compromising
or inconsistent answers from the defendant.
The grand jury was carrying out an investigation of
the posible commission of federal crimes in the Western
District of Missouri. A review of the grand jury testimony
of the defendant, and likewise a review of the grand jury
transcripts of the other witnesses called before the grand
jury (all of which material was before Judge Duncan)
shows that the grand jury did have a proper purpose
A33
in calling the defendant before it for the purpose of en-
deavoring to secure information from him relevant to its
ongoing investigation.
The defendant is an experienced practicing attorney-
at-law who at an earlier time had served in the office
of the prosecuting attorney. A reading of the transcript
of his grand jury testimony shows that there was no at-
‘tempt made by anyone to overreach him, or to induce
him to make false statements. There is no evidence that
he was entrapped into telling any falsehood or into lying
under oath. If indeed a mature, experienced, practicing
attorney can ever be entrapped by grand jury counsel into
intentionally lying under oath to a federal grand jury
there certainly is no evidence of any such event in this
case. Government counsel carefully explained to the de-
fendant several times prior o and during the questioning
just what it was the grand jury was inquiring into. Gov-
ernment counsel indicated to the defendant that there
might be some reason to believe he may have played
some part in some of these alleged illegal activities under
investigation. In the face of all of that, the defendant
elected to proceed to answer the questions, and nothing
occurred that could be said to be either entrapment or
an inducement to make him tell an untruth under oath.
The Questions Concerning the Tapes
In contentions No. 10, 11, 17, 18 and portions of 21
defendant’s counsel takes the position: (1) that the tape
was obtained in an illegal manner; (2) that the tape was
too unclear and unintelligible to be used; (3) that it con-
tained some 36 errors and gaps; and (4) that there was
no proper foundation laid by way of showing its prior
custody to permit it to be used. All of these contentions
made in the motion for new trial had likewise been unsuc-
A34
cessfully urged by defendant’s counsel upon Judge Duncan
in the various pretrial and trial motions. Judge Duncan
found that they were not meritorious.
According to the evidence, Charles J. Davis was a
Kansas City and Oklahoma businessman who owned, oper-
ated and was in the process of developing a resort lodge,
including a “club” and a condominium complex known
as the Shangri-la Estates and Shangri-la Lodge, located
in the vicinity of Afton, Oklahoma. Through contacts
with a third party Davis became aware that defendant
would be interested in representing Davis on certain mat-
ters involving Davis’s resort lodge and condominium com-
plex for the sum of $10,000. A meeting was eventually
arranged to discuss these matters, with the defendant,
Davis, and an employee of Davis, George Overton, to be
present. Davis, with Overton’s knowledge and assistance,
employed J. R. Gates, a Wichita, Kansas, private detective
to secretely record the conference. The conference, un-
known to defendant, was recorded by Gates. The tape
recording of the conference was turned over to Davis who
many months later after the federal government learned
of its existence turned it over to a Government official
who in turn turned it over to the federal grand jury.
It is this tape that the Government relied on at the trial
to show that the defendant perjured himself before the
grand jury as charged in each of the two counts of the
indictment.
The defendant in a pretrial motion moved for the
suppression of this tape and Judge Duncan, after hearing,
overruled and denied the motion to suppress. On numer-
ous additional occasions defendant’s counsel orally renewed
his Motion to Suppress. Each such motion was overruled
and denied by Judge Duncan, who, again over objection,
and after a full showing of the chain of custody of the
A35
tapc permitted it to be used in evidence at the trial. Fur-
ther, George Overton, who was present during the taped
conversation, testified at the trial that the tape was an
accurate recording of that conversation.
There is no evidence that the Government or any
of its employees or agents caused, assisted, or in any way
participated in the taping. The taped meeting was of
a a conversation of private persons, and the taping was made
by a private person at the request of and with the knowl-
edge and consent of two of the three persons who attended
the taped meeting. It was some months later before any
Government agent or employee learned of the existence
of the tape.
18 U.S.C. § 2511(2) (d) specifically provides that, “It
shall not be unlawful under this chapter for a person
not acting under the color of law to intercept a wire
or oral communication where such person is a party to
the communication or where one of the parties to the
communication has given prior consent to such interception
unless such communication is intercepted for the purpose
of committing any criminal or tortious act in violation
of the Constitution or laws of the United States or of
any State or for the purpose of committing any other
injurious act.” Since the taping was at the instance of
and with the consent of two of the three persons taped
in their three way conversation it meets the exemption
above stated. There is no evidence to indicate that the
communication was intercepted by the private detective
employee for any reason other than the desire of the
two consenting persons to have a taped recording of their
business contact and conversation with defendant to protect
their credibility as to any employment reached and as
to the terms of that employment. These two individuals
were under no duty of silence as to their conversation
A36
with defendant. Nor is there any evidence to support
a finding that the intercepted communications were for
the purpose of committing any criminal or tortious act
in violation of the Constitution or laws of the United
States or of any state or for the purpose of committing
any injurious act. See Meredith v. Gavin, 446 F. 2d 794
(CA. 8). Defendant’s memorandum of law in support
of his motion to suppress (denied by Judge Duncan) con-
cedes Oklahoma statutory law is directed only to prevent-
ing invasion of privacy by using one’s name or picture
for commercial purposes without the owner’s consent.
Even without that there simply is no evidence to support
defendant’s contentions of illegality in obtaining the tape.
Judge Duncan did not err in denying the Motion to Sup-
press and there is no proper ground for granting a new
trial based on defendant’s contention.
Section 1623, Title 18, United States Code, proscribes
the making knowingly under oath to a federal grand jury
of “... any false material declarations ....” Defendant's
counsel seeks to escape this proscription for the reason
that the questions and answers alleged in Count II were
too vague, ambiguous, repetitious, argumentative, equivocal
and unresponsive to sustain a conviction. The short an-
swer is that the basic questions asked were clear and
understandable. The answers given by defendant reflected
his understanding of the particular question and those
answers were relatively clear and unequivocal. Defen-
dant’s counsel in his brief in support of this contention
has selected background type statements and some immate-
rial matter and has chosen not to recognize the basic
questions and the defendant’s responsive answers thereto.
These basic questions were sufficiently precise, and the
answers given by defendant were clear and were material
declarations directly responsive to the questions.
A37
Further, there is no support for the claim that the
tape was of such poor quality that it was unusable and
that it had thirty-six errors and gaps in it. A listening
to the tape reveals that it is a good, clear, understandable
recording of the event. There is no evidence that it is
other than an accurate recording of the conversation it
purports to record. Witness George Overton who was
present at that conversation testified at the trial that it
was an accurate recording of the conversation. The defen-
dant who took the stand and was asked about certain
portions of the tape himself conceded that the things read
to him from the tape were accurate and that they did
occur, He simply endeavored to mitigate or to explain
statements that he had made and that were recorded on
the tape by endeavoring to give his explanation of what
he intended or meant. He did not deny that they were
accurately recorded.
In his contention No. 20 defendant’s counsel claims
that the Court erred in failing to inform counsel during
the instruction conference or at any other time that he
was going to instruct the jury that Davis and Overton
had a legal right to take the secret tape, thus mislead-
ing counsel for the defendant and completely hampering
his ability to effectively argue his case to the jury. As
earlier noted, from the inception of this case defendant’s
counsel objected to the tape and sought to suppress its
admissibility and use by the Government. In each of
these numerous earlier instances Judge Duncan took the
position that the tape was validly obtained and it was
usable as evidence by the Government. His rulings are
all in the record. As an example, at Trial Transcript
page 359 Judge Duncan stated: “... my opinion is that
the so-called recording of it is legal, within the law
. And see pages 244-250 and page 3 of the same
A38
transcript. But in spite of all of this, defendant’s counsel
improperly undertook to argue to the jury the invalidity
of the tape as evidence. Judge Duncan properly told the
jury that the tape was legal evidence. He did not err
in so doing.
The Tape Transcript Question
Additionally, defendant’s counsel complains in the mo-
tion for a new trial that the jury was given a typewritten
transcript of the taped conversation without adequate evi-
dence of its correctness. However, without objection,
Judge Duncan allowed the jury to have the transcript
solely and for the limited purpose of being able to dis-
tinguish who was speaking at a particular time. Defen-
dant’s counsel voiced no opposition to this limited use
of the transcript at the trial. Judge Duncan carefully
instructed the jury several times that the transcript itself
was not evidence; that the jury would have the tape record-
ing played and that the tape was the evidence rather
than the transcript, and that they were being allowed
to have the transcript for the sole and only. purpose of
being able to note who was speaking at a given time.
And eventually, because it was clear that the transcript
was no longer needed for voice identification, and again
without any objection, the tape was played to the jury
without the aid of the transcript.
It comes too late for defendant’s counsel now for the
first time to object to the limited use of the transcript
which Judge Duncan so carefully handled. The jury fully
understood from the clear instructions given by Judge
Duncan that they must look only to the tape recording
itself for what was said and not look to the transcript
for that purpose. The evidence given by defendant him-
self at the trial was sufficient to permit voice identifi-
cation,’ and there was no claim that the jury was misled
in any way by permitting the limited use of the transcript
for voice identification purposes only.
Reopening of Trial Question
Defendant’s counsel in his contention No. 15 declares
that the Court erred in permitting the Government after
it had rested to reopen its case in order to receive for
Court use only the grand jury transcripts that showed the
testimony of the various witnesses the grand jury had be-
fore it, all to the end to show the materiality of the mat-
ters alleged in Count II of the indictment. The fact is,
that near the close of the trial, counsel and Judge Duncan
engaged in a colloquy concerning evidence. At no time
did Government counsel announce that the Government
rested. The Government did not formally close its case.
Even so, the circumstances may have caused some belief
by defense counsel that the Government had adduced all
of its evidence. A discussion concerning whether there
was sufficient evidence concerning materiality occurred.
Government counsel, obviously under the impression that
having introduced at the earlier hearing on the Motion to
Suppress the Tapes, the mentioned grand jury transcripts
of its investigation for Court use only, thought they were
in evidence for trial purposes also. As a result, Judge
Duncan at the end of the jury evidence in the exercise
of his discretion permitted the introduction of these tapes
into evidence for Court use only. Regardless of whether
it is viewed that these tapes were introduced in evidence
before the Government had formally rested or immediately
1. He identified his voice on the tape.
2. In fact, defendant’s counsel seemed to go along with
Judge Duncan's handling of the tape and to
with it. See, Trial Transcript, pages 189-195: “269: 530-543.
Ado |
thereafter, there was no error committed by Judge Duncan
in the sound exercise of his discretion to then receive them
into evidence for Court use only. Nothing further was
introduced that went to the jury or that was called to the
attention of the jury. The question of the materiality of
defendant’s statements to the grand jury was solely one of
law for the Court. Not only did no legal error result from
Judge Duncan’s actions but no actual prejudice is shown
to have resulted because of the timing of the event of their
receipt into evidence for Court use only.
Jury Separation Question
Defendant's next contention, No. 19, is that the Court
erred in permitting the jury to separate for a period of
about an hour after they had commenced deliberations.
The transcript reveals that at the time in question and due
to the lateness of the hour, some of the jurors expressed
in open court, with all counsel and defendant present, their
concern about their automobiles, which presumably were
parked in various parking lots. Judge Duncan permitted
those jurors who had such a problem to go and, as he
expressed it, get their cars “out of hock” and to have a
brief meal, advising them they should be back in three
quarters of an hour. During this discussion defendant's
counsel stood by and made no objection and requested no
instructions. After Judge Duncan had permitted the jury
to depart for the mentioned purpose, defendant’s counsel
objected to permitting the jury to separate. There is total
absence of any showing of any prejudice or of any irregu-
larity having occurred at any time while the jury was so
separated. There was no request for a discharge of the
jury. In earlier instructions to the jury, Judge Duncan
had made it clear to them that they were to decide the
A4l
case solely on the evidence in the case. He gave them the
customary instructions concerning their jury conduct.
Under all the circumstances, defendant’s counsel’s ob-
jection came too late. Additionally, the action that Judge
Duncan permitted is not shown to have caused or occa-
sioned any prejudice to defendant whatsoever. Hence, the
contention is without merit. It is correctly stated in the
ease of Hines v. United States, 365 F. 2d 649, that this
circuit has taken the position and held that it is not error
per se to permit a jury to separate for a meal before de-
liberations are completed.“
Defendant's counsel next alleges that prejudicial error
was committed by the prosecutor which could not be cured
by the objections (which objections were promptly sus-
tained by Judge Duncan in the presence of the jury)
when the prosecutor told the jury in closing argument
that the defendant could have moved for immunity for
the detective-witness, J. R. Gates, who set up the taping
and who refused to answer questions based on his fifth
amendment rights.“ However, during the trial and before
the incident, defendant’s counsel had represented to Judge
Duncan, out of the hearing of the jury, that no claim
would be made that defendant’s case was prejudiced by
this witness’s invocation of his fifth amendment rights
(See Trial Transcript, page 358).- This was at a time
the witness could have been immunized. Contrary to that
representation defendant’s counsel did so argue to the jury.
(See Trial Transcript, page 485.) In reply to that argu-
ment Government’s counsel stated only that the Govern-
. See Koolish v. United States, 8 C.C.A., 340 F. 2d 513, 528.
1
1. Defendant’s counsel called J. R. Gates as a witness on
behalf of defendant. There is no showing that his testimony would
have been helpful to defendant.
A42
ment “didn’t attempt to hide the testimony of that man,
Gates” and suggested that defendant’s counsel did not take
up the Government’s offer to assist in obtaining the testi-
mony of witness Gates. (See Trial Transcript, pages 496-
497, and 367.) It was at this point that defense counsel,
not Government counsel, told the jury “he is arguing im-
munity to the jury, we didn’t take immunity for the wit-
ness.” (See Trial Transcript, p. 497.) Even so, Judge Dun-
can promptly and in the jury’s presence sustained the
objection of defendant’s counsel. And Judge Duncan told
the jury “I think it is not proper argument.” Defendant’s
counsel was apparently satisfied. He asked no further
action or instruction. He did not ask that the jury be
discharged. Under all the circumstances, no reversible
error, if indeed it was error at all, occurred. No timely
requested relief was denied.
Conclusion
The above discussed contentions of the defendant are
all that he endeavored to support in his brief. A few
other comments by defendant’s counsel might possibly be
considered as charges of error. However, these have been
carefully considered by the Court and not only are they
not supported either by the transcript or by defendant’s
counsel’s brief, but also they are totally void of any merit
and do not require discussion. They are comparatively
insignificant events.
The defendant has received a fair trial. The evidence
of his guilt is very strong. That evidence is contained
essentially in two instruments: (1) the grand jury tran-
script, and (2) the tape recording. Obviously, the usual
issues of credibility involved in a trial are lacking in this
one for the reason that the Government’s evidence neces-
sary to support its conviction is contained in these two
instruments and does not involve the usual credibility
A43
type considerations.’ It is not in the interest of justice
to permit a new trial in the absence of reversible or
prejudicial error simply because of the unfortunate death
of the trial judge before the two after-trial motions were
ruled.
For all the foregoing reasons, the defendant’s men-
tioned trial and post-trial motions are held to be without
merit and are denied.
/s/ Elmo B. Hunter
Judge
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1975
No. 75-1413
The United States,
Appellee,
vs.
William Fred Phillips,
Appellant.
Appeal from the United States District Court for the
the Western District of Missouri
Petition of appellant for rehearing filed in this cause
having been considered, it is now here ordered by this
Court that the same be, and it is hereby, denied.
A44
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
September Term, 1975
No. 75-1413
The United States,
Appellee,
VS.
William Fred Phillips,
Appellant.
Appeal from the United States District Court for the
Western District of Missouri.
On motion of Appellant, it is now here ordered that
the issuance of the mandate herein be, and the same is
hereby, stayed for a period of thirty days from this date.
If within that time there is filed with the Clerk of this
Court a certificate of the Clerk of the Supreme Court
of the United States that a petition for writ of certiorari
has been filed, the stay hereby granted shall continue
until the final disposition of the case by the Supreme
Court.
August 6, 1976
A45
APPENDIX B
STATUTES INVOLVED
18 U.S.C. Sec. 1623:
“1623. False declarations before grand jury or
court.—(a) Whoever under oath in any proceeding
before or ancillary to any court or grand jury of
the United States knowingly makes any false material
declaration or makes or uses any other information,
including any book, paper, document, record, record-
ing, or other material, knowing the same to contain
any false material declaration, shall be fined not more
than $10,000 or imprisoned not more than five years,
or both.
18 U.S.C. Sec. 2510 (2) : “Definitions.—
“* * * (2) ‘oral communication’ means any oral
communication uttered by a person exhibiting an ex-
pectation that such communication is not subject to
interception under circumstances justifying such ex-
pectation; * * *”
18 U.S.C. Sec. 2510 (4):
“(4) ‘intercept’ means the aural acquisition of the
contents of any wire or oral communication through
the use of any electronic, mechanical, or other device.”
18 U.S.C. Sec. 2510(5):
“(5) ‘electronic, mechanical, or other device’ means
any device or apparatus which can be used to inter-
cept a wire or oral communication other than—
A46
18 U.S.C. Sec. 2510(11):
“(11) ‘aggrieved person’ means a person who was a
party to any intercepted wire or oral communication
or a person against whom the interception was di-
sected.° ° =
18 U.S.C. Sec. 2511(1): “Interception and disclosure
of wire or oral communications prohibited.—
“(1) Except as otherwise specifically provided in
this chapter [18 USCS §§ 2510-2520] any person
who—* * *”
18 U.S.C. Sec. 2511 (a):
“(a) willfully intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor
to intercept, any wire or oral communication;
“(b) willfully uses, endeavors to use, or procures
any other person to use or endeavor to use any elec-
tronic, mechanical, or other device to intercept any
oral communication when—* * *
“(iii) such person knows, or has reason to know,
that such device or any component thereof has been
sent through the mail or transported in interstate or
foreign commerce; or * * *
„(e) willfully discloses, or endeavors to disclose, to
any other person the contents of any wire or oral
communication, knowing or having reason to know
that the information was obtained through the inter-
ception of a wire or oral communication in violation
of this subsection; or
“(d) willfully uses, or endeavors to use, the contents
of any wire or oral communication, knowing or having
A47
reason to know that the information was obtained
through the interception of a wire or oral communica-
tion in violation of this subsection; shall be fined not
more than $10,000 or imprisoned not more than five
years, or both.
18 U.S.C. Sec. 2511(2) (d):
“* © * (d) It shall not be unlawful under this
chapter [18 USCS §§ 2510-2520] for a person not
acting under color of law to intercept a wire or oral
communication where such person is a party to the
communication or where one of the parties to the
communication has given prior consent to such inter-
ception unless such communication is intercepted for
the purpose of committing any criminal or tortious
act in violation of the Constitution or laws of the
United States or of any State or for the purpose of
committing any other injurious act.”
18 U.S.C. Sec. 2515:
“Prohibition of use as evidence of intercepted wire
or oral communications.—Whenever any wire or oral
communication has been intercepted, no part of the
contents of such communication and no evidence de-
rived therefrom may be received in evidence in any
trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regula-
tory body, legislative committee, or other authority
of the United States, a State, or a political subdivision
thereof if the disclosure of that information would
be in violation of this chapter.”
18 U.S.C. Sec. 3504:
„Litigati of evid *
(a) In any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer,
agency, regulatory body, or other authority of the
United States—
“(1) upon a claim by a party aggrieved that evidence
is inadmissible because it is the primary product of
an unlawful act or because it was obtained by the
exploitation of an unlawful act, the opponent of the
claim shall affirm or deny the occurrence of the al-
leged unlawful act; * * *”
A49
APPENDIX C
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
No. 73 CR 38 W-3
UNITED STATES OF AMERICA,
Plaintiff,
V.
WILLIAM FRED PHILLIPS,
Defendant.
INDICTMENT
The Grand Jury Charges That:
COUNT II
On or about August 1, 1972, there was pending before
a Grand Jury of the United States in the Western District
of Missouri a proceeding, that is, an investigation of pos-
sible violations of federal law in connection with illegal
gambling, prostitution and bribery and extortion activities
in the Northeast Oklahoma and Kansas City areas.
Further, that on or about August 1, 1972, at Kansas
City in the Western District of Missouri the defendant
William Fred Phillips, being under oath in said proceeding,
did willfully and knowingly make a false material declara-
tion in that in response to questions by Government counsel
he testified as follows:
Okay. So you understand the people we are talk-
ing about in Kansas City that we have reason to
A50
think moved in or attempted to move into the north-
eastern Oklahoma area, we have reports that they
were attempting to set up gambling and prostitution
and liquor businesses all in opposition to local law.
We have also received other allegations that you may
have counseled people that they could get away with
gambling operations because you could control the
local district attorney.
A. Okay, I understand.
Q. You understand what I am talking about?
A. Iunderstand, of course.
Q. So the broad question is, since you have been
senator, have you discussed with anyone associated
with club operations in that area the possibility of
their setting up and getting away with setting up
gambling in that area?
A. No. No. And I wouldn’t even insult the district
attorney by talking to him about it. (Transcript page
47, line 18 to line 11 page 48)
Q. You have already told me you never talked to
Grayson about that. I want to ask you the other
question though: Have you ever talked to anyone
else about your ability to control Mr. Grayson along
these lines?
A. I told them there was no way of putting a fix
on Frank Grayson. (Transcript page 47, line 18 to
line 22, page 48)
> = =
Q. Now, as you have seen today, I have been in
and out of the room, unfortunately. I don’t know
if my associate here has covered all of these areas
A51
and I just hope you will excuse me if I am repeti-
tious, but I would like to ask you a summary question,
whether or not you have ever suggested, represented
or any words to that effect to any person that you
had the power to influence any public official with
respect to gambling or prostitution activities?
A. No. No. Absolutely not.
Q. Now, we have reason to believe that certain Kan-
sas City hoodlum figures, persons associated with the
criminal element in the Kansas City area, are attempt-
ing or have attempted to establish gambling, prostitu-
tion, illegal liquor and other illegal activities in Okla-
homa. We know and have documented that certain
of these Kansas City hoodlums have visited Oklahoma
and that they visited and talked with and perhaps had
business dealings with a number of the club operators
down there, which would include Jess Roberts, Jack
King, people at the Shangri-la, possibly others. We
are interested and are very eager to determine whether
or not these persons may have talked with the Jocal
operators down there about how they could secure
protection when they moved their illegal activities
in or when they began engaging in illegal activities.
A. I~
Q. Consequently it’s very important for us to know
if you have ever had discussions with anyone, par-
ticularly persons who are associated with private clubs
of any kind, and I mean private clubs or country
clubs or the Shangri-la or any activity of that sort,
in which you have represented that you had the power
to influence the action of public officials with respect
to prostitution, narcotics—excuse me, I didn’t mean
to say narcotics—
A. Well, I want you to put narcotics in there.
A52
Q. All right, whether or not you have ever indicated
to any person associated with any private club opera-
tion of any nature, including country clubs or the
Shangri-la or any others, that you had the power
to influence any public official with respect to prosti-
tution, narcotics, liquor or gambling activities?
A. No, sir. I have never ever just carte blanche
(Transcript page 77, line 24 to line 15, page 79)
Q. Okay. Have you ever had any conversation with
either the—well, with any person associated with the
Shangri-la either at your initiative or their initiative
about the furnishing of protection from local author-
ities with respect to the same four items, gambling,
prostitution, liquor or narcotics?
A. No. No.... (Transcript page 87, line 4 to line 10)
Q. Right. To rephrase the question, the conversa-
tions which you had with any representatives of the
Shangri-la were never to the effect that you could
furnish any protection from law enforcement author-
ities?
A. No. No. (Transcript page 88, line 23 to line 2,
page 89)
> > >
And such testimony was false and contrary to the
oath taken by William Fred Phillips as he then well knew
and believed that he had represented to persons associated
with club operations in the northeastern Oklahoma area,
that he had control over Frank Grayson, District Attorney,
13th Judicial District, State of Oklahoma and could furnish
protection from law enforcement authorities for illegal
gambling and liquor violations.
AS3
All in violation of Section 1623, Title 18, United States
Code.
A True Bill.
/s/ Walter L. Wristen
, Foreman of the Grand Jury
/s/ Bert C. Hurn
Bert C. Hurn
United States Attorney
Western District of Missouri
/s/ Joseph F. Ciolino (by M.D.)
Joseph F. Ciolino
Special Attorney
United States Department of Justice
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.