Petition — Seidlitz v. United States

Supreme Couet, 0,

FILED

28-1228 | FEB ? 1979

No. ’

SEE eee

_ ————————————————

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

BERTRAM E. SEIDLITZ,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID M. DORSEN

SACHS, GREENEBAUM & TAYLER

1620 Eye Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

a en

THE CASILLAS PRESS. INC. -1717 K Street. N W.-Westungton. ©. C.-223:1220

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TABLE OF CONTENTS

Page

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QUESTIONS PRESENTED ..... 2. ccc cc ccccccccccccccceee 2

CONSTITUTIONAL PROVISIONS INVOLVED .............. 2

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REASONS FOR GRANTING WRIT ............-eeeeeeeeee 7

A. Contrary to Decisions of This Court and

Courts of Appeals, the Fourth Circuit

Erroneously Held That the Tracing

of Petitioner’s Telephone Calls Involved

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B. The Tracing of Telephone Calls From Peti-

tioner’s Residence Violated His Fourth Amendment

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TABLE OF AUTHORITIES

Cases:

Application for an Order Authorizing the

Use of a Pen Register or Similar

Mechanical Device, 538 F.2d 956 (2nd

SEER RMN SA SUE USE ates ees ceccewegerins

Application of the United States for

an Order Authorizing Installation and

Use of Pen Register, 546 F.2d 243 (8th

Cir. 1976), cert. denied, 434 U.S.

ES 6 «Mane Ud as Whe oh. 00s bade cedecces es

Corngold v. United States,

367 F.2d 1 (9th Cir. 1966) ...... ln ceseecbecesecess

Lustig v. United States,

SEIN cei ede b Uo bs Oe i's vod enscares

Smith v. Maryland,

283 Md. 156, 389 A.2d 858 (1978), cert.

granted, 47 U.S.L. Week 3391 (No. 78-5374,

er eee Tere eee ee

United States v. Clegg,

SOP F.20 GOS GD Cit. 1975) . wc ccccrvccscvecies

United States v. Crabtree,

ae AB SOOM CE. 197O) on ccc ciccecccccccccs

United States v. Ford,

S25 F206 1SOB (iGthh Cle. 1997S). cece ccccceens

United States v. Giordano,

SOP ETE Bese weeds na sederorcenerrucde

United States v. Illinois Bell Tel. Co..,

SPE Fae SOP UPUN CE DIED s ce ccceccccesceuceses

id

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United States v. Lanza,

O08 F.Sepe. SOS CE.D. Fie. USTED oc cece ccccccccccscece 9

United States v. New York Tel. Co..,

eb ecu 6 coo 6 8 oo eek doeeceeeveer 9

United States v. West,

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Statutes and Other Authorities:

United States Constitution, Amendment IV ............... passim

IOU.SA. OEP 2 veces. Piawi wes stands wibeah tieke ens 2,6

UL Be NG. wc ccc vr vasecccccceceecccteccetenceccs 4

PB UGA. GZS oc eee c ce dsc eesti encuvescccusecces 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

BERTRAM E. SEIDLITZ,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner prays this Court to issue a Writ of Certiorari to

review the Judgment and Opinion of .the United States

Court of Appeals for the Fourth Circuit.

DECISION BELOW

The Judgment and Opinion of the United States Court of

Appeals for the Fourth Circuit in United States v. Bertram

E. Seidlitz, No. 76-2027 (4th Cir. Dec. 5, 1978), has not yet

been officially reported. A copy of that Judgment and

Opinion is appended hereto.

2

JURISDICTION

Jurisdiction is invoked under Title 28, United States

Code, Section 1254(1), and the Fourth Amendment to the

United States Constitution. Judgment was entered by the

Court of Appeals on December 5, 1978. A timely petition

for rehearing was filed but denied on January 9, 1979.

QUESTIONS PRESENTED

1. Must the provisions of the Fourth Amendment to the

United States Constitution be complied with when the

Federal Bureau of Investigation requests a private party to

conduct a search, the private party conducts it because of

the request, and the fruits of the search are immediately

turned over to the FBI and utilized in a search warrant as

well as introduced in evidence at trial?

2. Does the installation of a telephone tracing device on a

person’s telephone in the above circumstances without a

court order or search warrant violate the Fourth Amend-

ment to the United States Constitution?

CONSTITUTIONAL PROVISION INVOLVED

AMENDMENT IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and’no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATEMENT OF THE CASE

Petitioner was tried and convicted of two counts of fraud

by wire in violation of 18 U.S.C. § 1343. Prior to trial,

petitioner filed a motion to suppress certain evidence, in-

3

cluding the evidence that forms the basis for this Petition,

on the ground, inter alia, that it was obtained ‘> violation of

the Fourth Amendment. The trial court denied the motion.

Following a six-day trial before the court and a jury,

petitioner was convicted and sentenced to serve three

months in custody as well as a period of probation.

The facts are as follows:

On January 1, 1975, petitioner was employed as a com-

puter specialist and project director with Optimum

Systems, Inc. (OSD in connection with a project to install,

maintain and operate a computer facility for use by the

Federal Energy Administration (FEA). When completed,

persons working for FEA in various parts of the country

could communicate with the OSI facility, located in Rock-

ville, Maryland, over telephone wires. In June 1975,

petitioner resigned his position and returned to work at his

own computer firm in Alexandria, Virginia.

In late December 1975, FEA and OSI employees, in an

effort to see who was using the OSI system, observed that

an unauthorized person had gained access to the computer.

The employees determined that the computer was trans-

mitting to the unauthorized person a portion of a “source

code”’ for the system, programming language that is used to

give instructions to the computer. They also ascertained

that the data was being transmitted outside the OSI

facility. At the employees’ request, the telephone company

twice manually traced calls, without listening to their con-

tent, to the Alexandria, Virginia, office of petitioner’s com-

pany.

The FBI was then contacted. At the FBI’s request, the

telephone company conducted two additional manual

traces, but in each instance the calls were terminated before

the traces had progressed beyond the telephone company’s

office in Lanham, Maryland, which served 10,000 sub-

scribers. The telephone company then installed “original

4

accounting identification equipment’’ in the Lanham of-

fice, which would automatically ascertain, without hearing

the content of the call, the telephone number of any of the

10,000 telephones from which calls to OSI were being

made.

Two such calls were made to OSI on the morning of

January 9, 1976, both of which were traced to petitioner’s

residence in Lanham, Maryland, which, like Rockville,

where OSI’s facility was located, is a Maryland suburb of

Washington, D.C. On the same day, relying on these traces,

the FBI secured and executed a search warrant on

petitioner’s residence, as well as a search warrant for the

premises of petitioner’s computer company, which it had

obtained on January 3, 1976. The execution of the search

warrants produced incriminating evidence.

In an oral opinion, the trial judge denied petitioner’s

motion to suppress, including the portion relating to the

January 9, 1976, traces, on the ground that neither the

Fourth Amendment nor Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 ff.,

were violated since no “‘interception’”’ took place. Over ob-

jection, the results of the January 9, 1976, traces as well as

evidence seized at petitioner’s residence were introduced at

trial.

The Court of Appeals affirmed. In its opinion the Court

of Appeals concluded that following the telephone traces

that led to petitioner’s computer company, “‘[a]t the FBI’s

suggestion” the telephone company conducted two ad-

ditional manual traces which led to its Lanham, Maryland,

office and then proceeded to instal] the automatic tracing

equipment, which identified petitioner’s residence as the

source of the calls (Appendix A-5). The Court’s conclusion

as to the FBI’s role is fully supported by the record. The

testimony at the suppression hearing on the subject was

provided by a telephone company security supervisor, who

testified under questioning by government counsel:

S

Q. Now, as a result of the two incomplete traces on

January 5, 1976, what, if anything, did you do?

A. Because I was informed by Phil Muello, Special

Agent, FBI, that it was an on going in-

vestigation and requested Telephone Com-

pany’s cooperation to ascertain any future calls

to the Optimum Systems, calls in question on

demand, and because we had a local area

location in Lanham, on the 6th of January,

preceding [sic] the traces on the Sth, I placed an

automatic test in the Lanham office. . ..

In its opinion, the Court of Appeals nevertheless stated:

The last of the objections raised in the court

below to the evidence secired by Milten Spy and

the telephone traces was that it was detected and

obtained in contravention of the Fourth Amend-

ment. The district judge rejected this contention

on the ground that even though the ‘‘spy” and the

traces were utilized without prior judicial author-

ization, the evidence was obtained by searches

to which the appropriate persons had con-

sented. We need not review the soundness of that

ruling or the implicit conclusion that the ‘‘spy”’

and the traces raised questions under the Fourth

Amendment, since in our opinion the activities

complained of were, at most. conducted by

private persons — OSI and the telephone com-

pany — to which the constitutional prohibition

against warrantless searches does not apply. [Ap-

pendix A-2.] [Footnote omitted.]’

The Court of Appeals affirmed petitioner’s conviction

and denied his petition for rehearing.

‘In the omitted footnote (numbered 20) the Court of Appeals stated

that “the parties have not briefed” the applicability of the Fourth

Amendment to the telephone traces. That statement is incorrect. By

6

REASONS FOR GRANTING WRIT

In sum, there are two Questions Presented, each of which

merits consideration by this Court. First, the decision of the

Court of Appeals that compliance with the provisions of the

Fourth Amendment was not required is inconsistent with a

decision of this Court, decisions of other Courts of Appeals

and a decision of the Court of Appeals of the State of

Maryland in a case in which this Court has granted a

petition for certiorari. Michael Lee Smith v. Maryland, 283

Md. 156, 389 A.2d 858 (1978), cert. granted, 47 U.S.L.

Week 3391 (No. 78-5374, December 4, 1978). Second, this

case raises an issue, namely, whether the installation of a

tracing device on a person’s telephone without a court order

or search warrant violates the Fourth Amendment, on

which this Court has granted certiorari in Smith v.

Maryland, supra.

A. Contrary to Decisions of This Court and Courts

of Appeals, the Fourth Circuit Erroneously

Held That the Tracing of Petitioner’s

Telephone Calls Involved No Governmental

Action.

In connection with its investigation into fraud by wire, 18

U.S.C. §1343, the Federal Bureau of Investigation

requested the telephone company to ascertain who was

making interstate telephone calls to OSI (Appendix A-5).

leave of court, and prior to oral argument, petitioner filed a Sup-

plemental Brief, whose only point related to the January 9, 1976, traces.

Indeed, the only argument heading in that brief reads: ‘“The Telephone

Company Acted Unlawfully in Tracing Telephone Calls of Mr.

Seidlitz.” The telephone company employee's testimony quoted above

appears in the Supplemental Brief and virtually all the cases discussed

below are cited therein. The Petition for Rehearing filed in the Court of

Appeals dealt solely with the January 9, 1976, traces.

The Milten Spy referred to in the opinion was an internal monitoring

system of OSI and indicated the content of what was being transmitted.

7

Because of that request, the telephone company put a

tracing device on petitioner’s home telephone, along with

the telephones of approximately 10,000 other subscribers.

On January 9, 1976, the tracing device identified

petitioner’s home telephone as the one originating the call

to OSI. Also on January 9, that information was supplied to

the FBI, which incorporated it into an application for a

search warrant and obtained and executed upon that

warrant. Nevertheless, the Court of Appeals held that the

actions complained of were ‘‘conducted by private parties ”’

(Appendix A-12).

Thirty years ago, in Lustig v. United States, 338 U.S. 74,

78-79 (1949), this Court articulated the test that has been

applied ever since to determine whether there was govern-

mental versus private action under the Fourth Amend-

ment:

The crux of that doctrine is that a search is a

search by a Federal official if he had a hand in it.

. . . The decisive factor in determining the ap-

plicability of the Byars case is the actuality of a

share by a fed -al official in the total enterprise of

securing and selecting evidence by other than sanc-

tioned means. It is immaterial whether a federal

agent originated the idea or joined in it while the

search was in progress. So long as he was in it

before the object of the search was completely ac-

complished, he must be deemed to have par-

ticipated in it.

In the present case, the federal government had a major

share in the search — the search was requested by the FBI,

the search was conducted because of the FBI’s request, the

search was conducted to further the FBI’s investigation and

the results of the search were promptly turned over and

used by the FBI. In fact, unlike in Lustig, the FBI ‘was the

moving force of the search,’”’ a circumstance which this

Court assumed would make the search federal action.

Courts that have faced the question of whether a search is

federal action when it is motivated by federal officials and

conducted for federal law enforcement purposes have

uniformly answered the question in the affirmative. Corn-

gold v. United States, 367 F.2d 1, 5 (9th Cir. 1966); United

States v. West, 453 F.2d 1351, 1356 (3d Cir. 1972); United

States v. Ford, 525 F.2d 1308, 1312 (10th Cir. 1975); see

United States v. Crabtree, SAS F.2d 884 (4th Cir. 1976).

Furthermore, in a case in which this Court has granted a

writ of certiorari to the Court of Appeals of Maryland, this

Court’s jurisdiction is based upon the circumstance that

police officers requested a private person to do un act in

furtherance of theit investigation. Smith v. Maryland,

supra, 389 A.2d at 859-60.

B. The Tracing of Telephone Calls From

Petitioner’s Residence Violated His Fourth

Amendment Rights.

In Smith v. Maryland, supra, this Court has granted cer-

~tiorari on the precise question on which petitioner seeks

review. Thus, certiorari is pending in order to decide

whether it is violative of the Fourth Amendment for the

government to place tracing devices on a suspect’s

telephone without securing a search warrant or court order.

As the petition for certiorari in that case correctly points

out, the clear weight of authority is contrary to the decision

in that case, which was that no constitutional rights of the

defendant were violated. See United States v. Giordano,

416 U.S. S05, 548, 553-54 (1974) (Powell, J., concurring);

Application for an Order Authorizing the Use of a Pen

Register or Similar Mechanical Device, 538 F.2d 956 (2d

Cir. 1976) aff'd in part on other grounds sub nom.; United

States v. New York Tel. Co., 434 U.S. 159 (1977); United

States v. Illinois Bell Tel. Co., 531 F.2d 809 (7th Cir. 1976);

Application of the United States for an Order Authorizing

Installation and Use of Pen Register, 546 F.2d 243 (8th Cir.

9

1976), cert. denied, 434 U.S. 1008 (1978); United States v.

Lanza, 341 F.Supp. 40S (M.D. Fla. 1972); but see United

States v. Clegg, 509 F.2d 605, 610 (Sth Cir. 1975).

In the present case, the telephone company, at the in-

stigation of the FBI, did just what the telephone company

did in Smith v. Maryland, namely, place a device on the

suspect’s end of the telephone transmission in order to see

who was placing calls to the victim of a crime. The Court of

Appeals in the present case, however, concluded that no

governmental action was involved and it therefore did not

have to decide “‘the ‘open’ question of whether the Fourth

Amendment applies to such traces.”” (Appendix A-12 n.20).

Since the Court of Appeals was in error on the issue of

whether there was governmental action and this Court has

agreed to decide the question of whether a search warrant

or other court order is required to install a tracing device in

these circumstances, there is compelling reason for this

Court to grant certiorari herein as well.

CONCLUSION

For the reasons heretofore cited it is respectfully sub-

mitted that a writ of certiorari to the United States Court of

Appeals for the Fourth Circuit be issued herein.

David M. Dorsen

Attorney for Petitioner

A.1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-2027

UNITED STATES OF AMERICA,

Appellee,

versus

BERTRAM E. SEIDLITZ,

Appellant.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Alexander Harvey, II,

District Judge.

Argued July 19, 1978 Decided December 5, 1978

Before WINTER, Circuit Judge, FIELD, Senior Circuit

Judge, and HALL, Circuit Judge.

David M. Dorsen (Sachs, Greenebaum & Tayler; Beverly

Sherman Nash, Sachs & Greenebaum on brief) for Ap-

pellant; Robert A. Rohrbaugh, Assistant United States At-

torney (Russell T. Baker, Jr., United States Attorney on

brief) for Appellee.

A.2

FIELD, Senior Circuit Judge:

Bertram Seidlitz appeals from his conviction on two

counts of fraud by wire in violation of 18 U.S.C. § 1343.' As

grounds for reversal, he urges that the trial court erred in

its denial of a pretrial motion to suppress evidence, and

that the prosecution failed to establish certain material

elements of the crime. Although advanced in a somewhat

novel factual context, we find appellant’s contentions to be

without merit.

On January 1, 1975, defendant Seidlitz assumed the

position of Deputy Project Director for Optimum Systems,

Inc. (OSD, a computer service company which was under

contract to install, maintain, and operate a computer

facility at Rockville, Maryland, for use by the Federal

Energy Administration (FEA). Under the arrangement be-

tween OSI and FEA, persons working for FEA in various

parts of the country could use keyboards at com-

munications terminals in their offices to send instructions

over telephone circuits to the large computers in Rockville,

and the computers’ responses would be returned and re-

flected on a CRT (cathode ray tube) terminal which is a

typewriter-like device with a keyboard and display screen

similar to a television screen upon which the information is

displayed as it is sent and received.? Mr. Seidlitz helped to

'The federal wire fraud statute, 18 U.S.C. § 1343, provides:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses,

representations, or promises, transmits or causes to be trans-

mitted by means of wire, radio, or television com-

munication in interstate or foreign commerce, any writings,

signs, signals, pictures, or sounds for the purpose of

executing such scheme or artifice, shall be fined not more

than $1,000 or imprisoned not more than five years, or both.

*A remote user would dial on an ordinary telephone one of the several

unpublished telephone numbers to which OSI subscribed and which

A.3

prepare the software’ which was installed at the Rockville

facility as part of the project, and he was also responsible

for the security of the central computer system. During his

tenure, he had full access to the computers and to a soft-

ware system known as ‘““‘WYLBUR” which resided within

them.’ In June, 1975, Seidlitz resigned this job and re-

turned to work at his own computer firm in Alexandria,

Virginia.

William Coakley, a computer specialist employed by

FEA, was assigned temporarily to the OSI facility. On

December 30, 1975, in an attempt to locate a friend who

might be using the OSI system, he had the computer

display the initials of everyone who was then using the

WYLBUR software. Among the initials displayed by the

computer were those of his supervisor, who was standing

nearby and who was not using the computer. Suspicious

were assigned to the computers. He would then connect the telephone

to his terminal so that messages could be relayed between the terminal

and the computers in the form of signals traveling over the telephone

line. Because any of a number of commercially available terminal units

could accomplish such a link to the computers, the user, as a security

precaution, had to enter on his terminal keyboard a special access code

before he would be permitted full use of the system. The code con-

tained, among other things, the user’s personal initials, which were to

be invalidated when he left OSI or FEA. This ‘‘access code”’ would be

communicated to the central computers which, if they recognized the

code as belonging to an authorized user, would proceed to perform the

work the individual sent along.

*To be distinguished from ‘“‘hardware,’’ which is the tangible

machinery of the computer, ‘‘softwear’’ refers to the logic and direc-

tions loaded into the machine that cause it to do certain things on com-

mand.

‘The WYLBUR software system facilitated the computers’ exchanges

with FEA users at the remote terminals. It contained no classified FEA

information, but rather enabled the computers to perform tasks

assigned to them by FEA personnel. An OSI manual described

WYLBUR as “an online interactive text editor designed to facilitate the

creation of text and to provide a powerful and comfortable tool for

changing, correcting, searching and displaying text.”

A.4

that an unauthorized “intruder” might be using these

initials in order to gain access to the system,® Coakley asked

Mr. Ewing, an OSI employee, if Ewing could determine

what was happening. He also asked Mr. Wack, an OSI

supervisor, if he (Wack) could determine whether the

mysterious user was at a remote terminal or at one of the

terminals within the OSI complex which were directly wired

to the computer and did not employ telephone circuits.

Ewing instructed the computer to display for him the data

it was about to transmit to the possible intruder, and it

proved to be a portion of the “source code” of the

WYLBUR software system.* Using other data provided by

the computer, Wack concluded that the connection was by

telephone from outside the complex. At his request, the

telephone company manually traced the call to the Alexan-

dria office of the defendant.’ Wack was told that the trace

was successful, but the telephone company informed him

that it could not divulge the results of the trace except in

response to a legal subpoena.

The following day, OSI activated a special feature of the

WYLBUR system known as the “Milten Spy Function,”

which automatically recorded, after they had been received

by the machinery at Rockville, any requests made of the

computer by the intruder. The“‘spy” also recorded, before

they were sent out to the intruder over the telephone lines,

the computer’s responses to such requests. Mr. Wack again

asked the telephone company to trace the line when it was

suspected that the unauthorized person, employing the

same initials, was using the computer to receive portions of

*See n. 2, supra.

*A source code is a programming language, understandable to

humans, in which a computer is given instructions.

"A manual trace is accomplished without listening in on the line or

breaking into the conversation. It entails a physical tracing of the

telephone circuitry backward through the-various switching points

from the equipment which receives the call.

A.S

the WYLBUR source code. This manual trace on Decem-

ber 31 led once more to the defendant’s office in Virginia,

although OSI was not so informed.

Advised by OSI of the events of December 30 and 31, the

FBI on January 3, 1976, secured, but did not then execute,

a warrant to search the defendant’s Alexandria office.* At

the FBI’s suggestion, the telephone company conducted

two additional manual traces when alerted to incoming

calls by OSI, but in each instance the calls were terminated

before the traces had progressed beyond the telephone

company’s office in Lanham, Maryland, which served

10,000 area telephones from which any subsequent calls to

“originating accounting identification equipment” in the

Lanham office, the function of which was to automatically

and quickly ascertain, without intercepting the contents of

any communication, the telephone number of any of the “

10,000 area telephone from which any subsequent calls to

the OSI computers originated. Two such calls were made

on the morning of January 9, and the equipment attributed

both of them to a phone at the defendant’s Lanham

residence. That afternoon, the FBI executed the warrant to

search Seidlitz’ Alexandria office, seizing, among other

items, a copy of the user’s guide to the OSI system and

some 40 rolls of computer paper upon which were printed

the WYLBUR source code.’ A warrant was then issued to

*The affidavit in support of the application for the warrant related

that the intrusions had been detected, that OSI’had ‘‘furnished written

release’ to receive information regarding the telephone traces of

December 30 and 31, and that the telephone company had disclosed to

the FBI that the calis originated from the defendant's office. It also

stated that, as a result of an investigation of former OSI employees and

interviews with OSI personnel, the FBI, prior to the receipt of the trace

information, had ascertained Seidlitz’ business address and concluded

that he was the chief suspect.

*The information on these printouts was identified at trial as being

identical to the information recorded by the ‘‘spy’’ program on Decem-

ber 31.

A.6

search the Seidlitz residence in Lanham,’ where officers

found a portable communications terminal which con-

tained a teleprinter for receiving written messages from the

computer, as well as a notebook containing information

relating to access codes" previously assigned to authorized

users of the OSI computers.

The indictment handed down on February 3, 1976,

charged that the defendant had, on December 30 and 31,

transmitted telephone calls in interstate commerce as part

of a scheme to defraud OSI of property consisting of in-

formation from the computer system.'? A motion to suppress

the evidence seized from the office and the residence was

considered at a hearing on April 30,'° after which the

district judge rendered an oral opinion rejecting the defen-

dant’s argument that the searches were invalidated by the

use of illegal electronic surveillance to obtain the in-

formation contained in the affidavits supporting the

warrants. Specifically, the district judge ruled that (1) as to

the information obtained by use of the “‘spy’’, Section 605

of the Communications Act of 1934, 47 U.S.C. § 605, does

not apply, and neither Title III of the Omnibus Crime Con-

trol and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et

seq., nor the Fourth Amendment were violated, since the

information was obtained with the consent of a party to the

defendant’s telephonic communications, and (2) with

‘The affidavit in support of the application for this warrant in essence

contained the same statements made in the application for the prior

warrant. See n. 8, supra. In addition, it related that the FBI had been

informed that Seidlitz maintained a communications terminal at his

home, that the search of the office had not uncovered the terminal, and

that the telephone company’s trace of the calls that morning indicated

that they were made from the defendant's residence.

"'See n. 2, supra.

*A motion for acquittal on a third count of interstate transportation

of stolen property was granted during the course of the trial.

"The evidence presented at the suppression hearing established all

the facts which we have summarized above.

A.7

respect to the tracing of the telephone calls, neither Title III

nor the Fourth Amendment are offended when, as in the

“pen register” cases, the number of the telephone from

which a call is placed is determined by a process which does

not entail the interception of the contents of the com-

munication. Over defense objection, much of the

challenged evidence was admitted at trial, and the

telephone traces, as well as the operation of the “Milten

Spy”, were described to the jury. In the face of this evidence,

the defendant conceded that he had retrieved the in-

formation from the computers, but claimed to have acted

only out of concern for the security of the OSI system. In

negation of fraudulent intent, Seidlitz testified that he

acquired the data with the sole intention of presenting the

printouts to OSI officials to prove to them that the steps

taken to prevent unauthorized use of the computers were

inadequate. Additionally, it was his position at trial that the

WYLBUR software was not a trade secret or other property

interest of OSI sufficient to qualify as ‘“‘property’’ within

the meaning of the wire fraud statute. On appeal he renews

the “‘illegal surveillance” claims and also argues that the

evidence before the jury was insufficient to establish either

his fraudulent intent or that WYLBUR constituted

‘ ‘property. 9

In considering the surveillance questions, we assume that

if, as the defendant contends, either the “‘spy”’ activities or

the traces were conducted illegally, then the evidence seized

at both the office and the residence should have been sup-

pressed, since the affidavits upon which the warrants were

issued contained information attributable to the “‘spy’”’ and

the telephone traces which was essential to the finding of

probable cause to search.'* Furthermore, if the statutory or

'*In ruling on the motion to suppress, the district court also made this

assumption. “[TJhe question is whether the information * * * was

legally or illegally secured. If, of course, it was illegal, then the searches

must fail. * * *’’. Appendix, p. 133.

A.8

constitutional standards upon which the defendant relies

were transgressed, then the jury should not have been in-

formed of the deployment of the “spy” and the traces of the

telephone calls.’*

It can safely be said, however, that even if, as the defen-

dant argues, the Milten Spy or the telephone traces resulted

in the “interception” of his communications with the com-

puters, these communications were wire or telephone com-

munications since in each instance the defendant was ex-

changing messages with the computers over commercial

telephone circuits."® For this reason the district court

correctly concluded that Section 605 of the Com-

munications Act of 1934, 47 U.S.C. § 605, could have no

bearing whatever upon the legality of these activities. While

at one time Section 605 did contain standards for deter-

mining the legality of the interception of telephone con-

versations, the statute was amended by Section 803 of Pub.

L. 90-351, 82 Stat. 223, in 1968, for the express purpose of

excluding from its scope the interception of wire com-

munications and of transferring the regulation of such ac-

tivity to certain provisions of Title III of the Omnibus

Crime Control and Safe Streets Act of 1968. See United

States v. Clegg, S09 F.2d 605, 611-612 (5S Cir. 1975); United

States v. Falcone, 50S F.2d 478, 482 (3 Cir. 1974), cert.

denied 420 U.S. 955 (1975); S. Rep. No. 1097, 90th Cong.,

2d Sess. 107 (1968), reprinted in [1968] U.S. CODE CONG.

‘SSection 60S of the Communications Act has been interpreted to

require the exclusion of evidence obtained in violation thereof, Nardone

v. United States, 302 U.S. 379 (1937), and an express exclusionary rule

is contained in Title III of the Omnibus Act at 18 U.S.C. § 2515. A

judicially-fashioned rule of exclusion applies where surveillance does

not comport with Fourth Amendment requirements. Katz v. United

States, 389 U.S. 347 (1967).

‘6The same can be said of Mr. Ewing’s inquiry of the computer on

December 30 by which he ascertained, as did the Milten Spy on the

following day, that the intruder was receiving part of the WYLBUR

source code.

A.9

& AD. NEWS 2112, 2196. Today Section 605 pertains to

the interception of only radio communications, and there is

no indication that radio communications of any kind were

involved in the apprehension and conviction of the defen-

dant. The appropriate inquiry, then, is whether any of the

questioned activities amougted to the kind of interceptions

of wire communications condemned by Title ITI.

The language, the legislative history, and the Supreme

Court’s interpretation of the relevant provisions of Title III

support the district court’s conclusion that the telephone

traces in this case were not the sort of “interceptions” of

communications proscribed by the statute. “Intercept” is

defined in 18 U.S.C. § 2510 (4) to mean “the aural

acquisition of the contents of any wire or oral com-

munication through the use of any electronic, mechanical,

or other device” (emphasis added); ‘‘‘contents’ * * * in-

cludes any information concerning the identity of the par-

ties to [the] communication or the existence, substance,

purport, or meaning of [the] communication.” 18 U.S.C. §

251 (8). The evidence adduced at the suppression hearing

conclusively shows that neither the manual traces con-

ducted on December 30 and 31, nor the traces which were

achieved by use of the special equipment later installed, en-

tailed interference with or observation of the contents of the

defendant’s dialogues with the computers. That Congress

intended to exempt such procedures from the coverage of

the statute is borne out by the Senate Report which ac-

companied the legislation, and explained that

“(t]he proposed legislation is not designed to

prevent the tracing of phone calls * * *. The

proposed legislation is intended to protect the

privacy of the communication itself and not the

means of communication.”

S. Rep. No. 1097, supra, at 90; U.S. CODE CONG. & AD.

NEWS, supra, at 2178. See Michigan Bell Tel. Co. v.

United States, 565 F.2d 385, 387-389 (6 Cir. 1977).

Especially in view of United States v. New York Telephone

A.10

Co., 434 U.S. 159 (1977), which held that ‘“‘pen registers”

(which similarly ‘‘overhear’’ none of the substance of a

telephone communication, 434 U.S. at 161, n.1) do not run

afoul of the statute, we perceive no reason to invalidate the

telephone traces on statutory grounds.

We also concur in the disposition by the court below of

the challenge under Title III to the information obtained

through the use of the Milten Spy. First, the statute

proscribes only the ‘‘aural’’ acquisition of the contents of

wire communications, 18 U.S.C. § 2510 (4), supra, and

there is no evidence to suggest that the ‘‘spy’’ relied in any

fashion upon sounds in retrieving information from the

computers in written form. Cf. United States v. New York

Telephone Co, supra, 434 U.S. at 166-167. We find no

merit in the defendant’s suggestion that, in the absence of

either a statutory definition of the word ‘‘aural’’ or of

legislative history to indicate that Congress even considered

the relationship of Title III to computer systems, we should

ignore the plain meaning of the term ‘‘aural’”’” and should

hold that, regardless of whether a device detects sound, its

ability to interpret the substance of a transmission brings it

within the restrictions of the statute. Canons of statutory

construction require that we attribute to legislatively un-

defined words their commonly accepted meaning and that

we give effect to what must be presumed to have been the

purposeful inclusion in the legislation of a qualifying term

such as “aural” which restricts the statute’s scope.'*

Second, to the extent that the Milten Spy disclosed, before

they were sent out over the telephone lines, the substance of

'’The words ‘aural acquisition’ literally translated mean to come in-

to possession through the sense of hearing (Webster’s Third New In-

ternational Dictionary, 1967 Ed.).’’ Smith v. Wunker, 356 F.Supp. 44,

46 (S.D. Ohio 1972).

'*See Platt v. Union Pacific R.R. Co., 99 U.S. 48, 58-59 (1878); State

Water Control Board v. Train, 559 F.2d 921, 914 n. 20 (4 Cir. 1977).

These rules are applicable here because the legislative history indicates

neither what Congress meant by ‘‘aural’”’ nor why the word was written

into the statute.

A.11

the replies generated by the computer to the intruder’s

commands, the information was not a “wire com-

munication’ at the time of its retrieval, and its disclosure

thus did not violate the statute. Under Title III, a “wire

communication”’ is a communication made “‘in whole or in

part’’ through the facilities of a common carrier, 18 U.S.C.

§ 2510 (1), and the portion of the WYLBUR source code

requested by Seidlitz was obtained by the “spy” before it

had travelled through such facilities. While arguably this

reasoning might not apply to the spy’s duplication, after

they had been received by the computer, of any of the in-

structions Seidlitz sent by telephone, it unquestionably

legitimizes under the statute that portion of the retrievals

which identified the outgoing information as the WYLBUR

source code. Finally, Title III specifically authorizes the in-

terception of a wire communication by a party to the com-

munication or by a person acting with the consent of a par-

ty to the communication. 18 U.S.C. § 2511 (2) (c), (d). In our

opinion OSI, which leased, housed, programmed, and

maintained the computers and subscribed to the relevant

telephone numbers, was for all intents and purposes a party

to the communications initiated by the defendant, since in

a very real sense the company used the computers solely as

a medium for imparting to customers, via telephone lines,

its own expertise. Insofar as OSI installed on its line a com-

puter which was capable of recording the messages ex-

changed in the course of responding to a remote user’s

requests, we consider this case analogous to those which

recognize that a party may, consistent with Title III, use a

device to capture and record both sides of his telephone

conversation with another party. See, e.g., United States v.

Turk, 526 F.2d 654 (S Cir. 1976), cert. denied, 429 U.S. 823

(1976); Smith v. Cincinnati Post & Times-Star, 475 F.2d

740 (6 Cir. 1973); Smith v. Wunker, 356 F.Supp. 44 (S.D.

Ohio 1972). Cf. United States v. Bragan, 499 F.2d 1376 (4

Cir. 1974).'°

'°The three reasons set forth in this paragraph also apply to Mr.

Ewing's actions of December 30. See n. 16, supra.

A.12

, The last of the objections raised in the court below to the

‘evidence secured by the Milten Spy and the telephone

traces was that it was detected and obtained in con-

travention of the Fourth Amendment. The district judge

rejected this contention on the ground that even though the

“spy” and the traces were utilized without prior judicial

authorization, the evidence was obtained by searches to

which the appropriate persons had consented,we need not

review the soundness of that ruling or the implicit con-

clusions that the “spy” and the traces raised questions un-

der the Fourth Amendment,” since in our opinion the ac-

tivities complained of were, at most, conducted by private

persons — OSI and the telephone company — to which the

constitutional prohibition against warrantless searches

does not apply. “[I}t is no part of the policy underlying the

Fourth and Fourteenth Amendments to discourage citizens

from aiding to the utmost of their ability in the ap-

prehension of criminals,” and consequently the Fourth

Interceptions of two-party conversations were discussed in the con-

text of the Fourth Amendment in the cases cited by the district court to

support its conclusion. In each instance, government law enforcement

officers had arranged and actively participated in the challenged sur-

veillance. See United States v. White, 401 U.S. 745 (1971); United

States v. Bernstein, SO9 F.2d 996 (4 Cir. 1975); United States v. Dowdy,

479 F.2d 213 (4 Cir. 1973). White and Dowdy do support the view that

the voluntary participation in such surveillance by one of the parties to

a telephone call will satisfy the Fourth Amendment, and as already in-

dicated, we tend to agree that even if Seidlitz’s data transmissions were

made with a legitimate expectation of privacy (a question we do not

decide and about which we have serious reservations), the fact that OSI

voluntarily recorded them obviates Fourth Amendment concerns as to

the “spy’’. But we are not sure that a similar approach is valid with

respect to the traces of the telephone numbers, and the parties have not

briefed this aspect of the constitutional issue. Rather than decide either

the “open’’ question of whether the Fourth Amendment applies to such

traces, see United States v. New York Tel. Co., supra, 434 U.S. at 165 n.

7, or the more perplexing question of whether the recipient of a call

can, under the Fourth Amendment, consent to a warrantless trace of

the caller’s telephone, we choose to rest our opinion as to the con-

stitutionality of the “‘spy’”’ and the traces on the ground set forth in the

text.

A.13

Amendment and the exclusionary rule by which it is en-

forced come into play only where it appears from all of the

circumstances that in a particular case the challenged

evidence was obtained as a result of a search conducted by

government officers or by private persons acting as agents

or instrumentalities of the government. Coolidge v. New

Hampshire, 403 U.S. 443, 487-490 (1971). See also Burdeau

v. McDowell, 256 U.S. 465, 475-476 (1921); United States v.

Mekjian, SOS F.2d 1320 (S Cir. 1975); United States v.

Pryba, 502 F.2d 391 (D.C. Cir. 1974), cert. denied, 419 U.S.

1127 (1975); Corngold v. United States, 367 F.2d 1 (9 Cir.

1966) (en banc). Cf. United States v. Crabtree, SAS F.2d 884

(4 Cir. 1976). Emphasizing that FEA’s Mr. Coakley, upon

discovering the suspicious initials, asked OSI’s Ewing “‘if

there was some way that he could determine what this ac-

count was doing,’”””' and that he asked OSI’s Wack “‘if he

could determine where the call was coming from,”™ the

defendant would have us find that the subsequent deter-

mination by OSI that the intruder was receiving the

WYLBUR source code, as well as the telephone company’s

identification of the originating phone numbers, were ac-

tions for which the government should be held accountable

and to which the Fourth Amendment applies. In our

opinion, however, these nonspecific, innocuous remarks by

a civilian employee of the FEA were in stark contrast to the

active involvement by a Secret Service agent which tainted

the search in Lustig v. United States, 338 U.S. 74 (1949),

cited by the defendant,”’ and they do not amount to the

”* Appendix, p. 41.

” Appendix, p. 42.

*Tustig presented the related question of whether, under the now

defunct “silver platter” doctrine, a federal officer was so involved in an

illegal search by city police as to require the suppression in a federal

prosecution of the evidence uncovered by the search. The facts reveal

that a federal Secret Service agent, who was charged with enforcing the

counterfeiting laws, joined the unlawful search of a hotel room by city

police after it had already begun. While there, he sifted through the

A.14

kind of conduct on the part of the government which has

been held sufficient to deprive a citizen’s search of its

private character.* Under the criteria uniformly con-

sidered by the courts in assessing the degree of federal in-

volvement in an otherwise private search for purposes of the

Fourth Amendment, the instant “‘searches” and their fruits

are not subject to scrutiny under the exclusionary rule.”*

While we base our affirmance of the denial of the sup-

pression motion upon our consideration of the statutory

and constitutional arguments advanced by the appellant,

and addressed by the court below, we think it appropriate

to observe that we discern a certain speciousness which in-

fects all of the illegal surveillance contentions made by the

defendant with respect to the evidence which was obtained

through use of the Milten Spy. Unlike the typical telephone

user who employes the telephone merely as a convenience to

converse with other persons over distances, Seidlitz used

the telephone to tamper with and manipulate a machine

which was owned by others, located on their premises, and

items uncovered by the local officers (who were aware of his interest in

the case), selecting those articles which were later used as evidence in a

federal counterfeiting prosecution of one of the occupants of the room.

The Court found that the agent “had an active hand” in the search,

and held that the trial court should have suppressed the evidence ob-

tained by him.

**See the cases collected in Annot., 36 A.L.R. 3d 553 (1971).

**The test most frequently employed is borrowed from the Lustig

case, supra, 338 U.S. at 79, which recognized that “the decisive factor

* * ® is the actuality of a share by a federal official in the total enterprise

of securing and selecting evidence by other than sanctioned means.”

See also, United States v. Sherwin, 539 F.2d 1, 7-8 (9 Cir. 1976); United

States v. Entringer, S32 F.2d 634, 637 (8 Cir. 1976), cert. denied, 429

U.S. 820 (1976); United States v. Clegg, 509 F.2d 605, 609-611 (S Cir.

197S); United States v. Cangiano, 464 F.2d 320, 324-325 (2 Cir. 1972),

vacated and remanded on other grounds, 413 U.S. 913 (1973), on

remand, 491 F.2d 90S (1973), cert. denied, 418 U.S. 934 (1973); United

States v. Johnson, 451 F.2d 1321, 1322 (4 Cir. 1971), cert. denied, 405

U.S. 1018 (1972).

A.15

obviously not intended for his use. Unlike the party to a

personal telephone call who may have little reason to

suspect that his words are being covertly recorded, Seidlitz,

a computer expert, undoubtedly was aware that by their

very nature the computers would record the data he sent

and received, and that OSI, also expert in the use of com-

puters, could detect such exchanges if alerted to the pres-

ence of an intruder. In this sense the use by the witnesses

below of the term “‘intruder” to describe an unauthorized

user of the computers is aptly applied to the defendant,

since by telephonic signal he in fact intruded or trespassed

upon the physical property of OSI as effectively as if he had

broken into the Rockville facility and instructed the com-

putets from one of the terminals directly wired to the

machines. Under these circumstances, having been

“caught with his hand in the cookie jar’, we seriously

doubt that he is entitled to raise either statutory or con-

stitutional objections to the evidence.

We have carefully reviewed the other issues raised by the

appellant and find them to be without merit. Viewed in the

light most favorable to the government, Glasser v. United

States, 315 U.S. 60 (1942), there was sufficient evidence

from which the jury could find that the WYLBUR system

was “property” as defined in the instruction given by the

trial judge which is not contested on appeal. Even though

software systems similar to OSI’s WYLBUR were in use at

non-OSI facilities, the evidence that OSI invested sub-

stantial sums to modify the system to suit its peculiar needs,

that OSI enjoyed a multi-million dollar competitive ad-

vantage because of WYLBUR, and that OSI took steps to

prevent persons other than clients and employees from

using the system permitted a finding that the pilfered data

was the property of OSI and not, as the defendant con-

tends, property in the public domain subject to ap-

propriation by persons such as himself. In a similar vein,

the defendant disputes the sufficiency of the evidence to

establish fraudulent intent, but in essence his argument is

aca

A.16

only that he feels the jury should not have discredited his

own explanation of the purpose for which he acquired the

WYLBUR data. It is of no consequence that Seidlitz was

not shown by the government to have used the data

retrieved from the OSI computers in his own business or to

have attempted to sell it to others, see United States v.

Painter, 314 F.2d 939 (4.Cir. 1963), cert. denied, 374 U.S.

831 (1963); United States v. Bagdasian, 291 F.2d 163 (4 Cir.

1961), cert. denied, 368 U.S. 834 (1961), and the cir-

cumstantial evidence in this case is ample to support a

finding of the requisite intent.

ee ea kn Cor ce

en ln

On appeal, the defendant raises other objections relative

to the searches of his office and residence, but these points

were neither fairly raised in the motion to suppress evidence

nor urged upon the trial court at the suppression hearing.

Absent plain or fundamental error, we need not consider on

appeal legal points which were available to the appellant

but not presented for the district court’s consideration.

United States v. Braunig, 553 F.2d 777, 780 (2 Cir. 1977),

cert. denied, 431 U.S. 959 (1977); United States v. Rollins,

522 F.2d 160, 165-166 (2 Cir. 1975), cert. denied, 424 U.S.

918 (1976); United States v. Anderson, 481 F.2d 685, 694-

695 (4 Cir. 1973), aff'd, 417 U.S. 211 (1974). See Rules 12 (f)

and $2, Federal Rules of Criminal Procedure.

AFFIRMED.