# Petition — Seidlitz v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2451%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 441 U.S. 922 ## Text 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 (i) TABLE OF CONTENTS Page PE 5 ook ccc rwiwcwenccecncdesccecvacccese ii CE arSccbbessecsdevebecceusscsdvcnecees 1 FR Sores ccc cccesewccccccccvevescssiccves 2 QUESTIONS PRESENTED ..... 2. ccc cc ccccccccccccccceee 2 CONSTITUTIONAL PROVISIONS INVOLVED .............. 2 MUNN GT UME cc ccacccscccccscccccccccencs 3 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 EE wu caaseccscscessvcccccccs B. The Tracing of Telephone Calls From Peti- tioner’s Residence Violated His Fourth Amendment ee chica cesacsucccceses (ii) 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 (iii) 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, ee a eae eo babe eee 8 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2451%3A1. Public record. Not legal advice.