Seeber v. United States

• Decision Date: 16 March 1964
• Docket Number: No. 18706.,18706.
• Parties: Harry Oliver SEEBER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.2d 572 (1964)

Harry Oliver SEEBER, Appellant, v. UNITED STATES of America, Appellee.

No. 18706.

United States Court of Appeals Ninth Circuit.

March 16, 1964.

Langerman & Begam and Frank Lewis, Phoenix, Ariz., for appellant.

C. A. Muecke, U. S. Atty., and Tom Karas, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Harry Oliver Seeber (hereinafter the defendant) appeals from a judgment of conviction upon a jury verdict. The indictment contained four counts. The first three charged defendant with "transmitting in interstate commerce * * * communications containing * * * threats to injure the person of another * * * in violation of the Federal Extortion Act, 53 Stat. 743 (1939), particularly 1(a) thereof, 18 U.S.C. § 875(c). The last charged the defendant and his wife jointly with a conspiracy to violate that section.

The conspiracy charge was eliminated at the conclusion of the government's case in chief, when the court granted Mrs. Seeber's motion for acquittal on the ground of lack of evidence. The trial of defendant continued and he was found guilty on all three substantive counts.

Defendant's points on appeal relate principally to rulings on evidence and the giving and refusal to give several instructions. They do not include an assignment that the evidence was insufficient to sustain the verdicts, and indeed the proof of defendant's guilt was overwhelming.

Thus it appears that during the night of March 2-3, 1962, the defendant made three telephone calls from Phoenix, Arizona to the home of Wm. Herbert Weese, in Barberton, Ohio, a suburb of Akron. During each conversation he expressly threatened to have "Bill Weese" killed unless the latter repaid a debt of $10,000 that "Bill" owed defendant's wife. Parenthetically, it later appeared that defendant in fact intended to call one Wm. Hayes Weese, but, by mistake, secured the telephone number of Wm. Herbert Weese and, for that reason, talked to the wrong persons. However, at the time neither he nor the others were aware of the error.

Mrs. Weese was alone when the first call came in. When her husband returned home they notified the local police, who responded by immediately sending Officer Francis to their home. While they were talking, the defendant made his second call; the officer answered and, with permission of Weese, identified himself to the caller as "Bill Weese." During the ensuing conversation defendant disclosed his identity and whereabouts. The third call was received by Mr. Weese himself. It was similar to the others, except Mrs. Weese joined in the conversation.

Defendant first complains of the admission into evidence, over his objection, of three completed "toll slips." The slips themselves were merely forms of the kind regularly employed by the telephone company in Phoenix to record the fact that long distance telephone calls were made. The notations that appeared on these slips, however, reflected that during the night in question calls had been placed and made from defendant's home to the Weese number in Akron (Barberton). The operators who put through the calls could not identify the person who made them, or state their source except insofar as the caller had supplied that information.

If there had been no other proof on the subject, save the testimony of the operators, then the slips, without any collateral proof tending to link defendant with the calls, lacked authenticity and should not have been admitted. But, as we recently held in Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963), Appeal Pending, "the connection between a telephone call and the caller may be established circumstantially"; and in this case there was ample proof, consisting of both circumstantial and direct evidence, to afford a foundation for their admission. Thus it appeared that defendant was arrested the same day the last of the calls was made. He was arrested in the living room of his home. At the same time, one of the F.B.I. agents went into an adjoining room and there, lying beside the telephone, he observed two notes on which were pencilled the name "Wm. Hayes Weese," the William Herbert Weese telephone number, and several statements similar to those the caller had made to Mr. and Mrs. Weese. On being shown the notes, the defendant admitted his authorship of them and further acknowledged that during the previous night he had called that number.

This evidence was admitted, over objections and defendant now urges that, since it appears the notes were found and admissions were made during a period when the officers had denied him the right to counsel, the trial court, in the exercise of its supervisory powers, should have rejected the evidence because of the "method" in which it was obtained. We read nothing in Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Cicenia v. La Gay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed. 2d 1523 (1958), or any other decisions, that would have required such a ruling under the circumstances of this case. Here the notes were received pursuant to a reasonable search incident to a lawful arrest. They constitute relevant circumstantial evidence and were found in a setting which rendered them admissible without further foundation. Defendant's admissions clearly were voluntary; moreover, it is unlike the situation disclosed in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), where the record was replete with proof that the agents "* * * subjected the accused to the pressures of a procedure which is wholly incompatible with the vital but very restricted duties of the investigating and arresting officers of the Government and which tends to undermine the integrity of the criminal proceeding. * * *" Here, it equally appears that the agent's conduct was well within the prescribed limits of their legitimate investigatory duties. The agents first identified themselves to the defendant and made the arrest. They then advised him of his right to remain silent; afterward they seized the notes and, although they asked him about them, they did not press the inquiry when he declined to explain fully, and they did take defendant immediately before the United States Commissioner, from whose office he was allowed to call a lawyer.

Defendant also assigns as error the ruling of the trial court allowing Officer Francis to testify concerning defendant's second telephone call. Section 605 of the Federal Communications Act 48 Stat. 1103, 47 U.S.C. § 605 forbids any "* * * person not being authorized by the sender to intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * * *" and defendant points out that he asked to speak to Bill Weese but instead he talked to Officer Francis, because the latter impersonated Weese. Defendant contends that the officer thus intercepted the communication within the meaning of the statute. His argument is that "The key word in the statute is `intercept'." This has been defined as "the taking or seizure by the way or before arrival at the destined place." Goldman v. United States, 316 U.S. 129, 134, 62 S.Ct. 993, 995, 86 L.Ed. 1322 (1942). Here the destined place was the ear of "Bill Weese" and the message never got to him.

Defendant misconceives the law. We are satisfied that the testimony was properly admitted. Counsel have not cited any case, either federal or state, discussing the question,¹ but our independent research has brought to light a recent opinion rendered by the Supreme Court of New Jersey in a case entitled State v. Carbone, 38 N.J. 19, 183 A.2d 1 (1962). That case dealt with facts almost identical to those here. In our estimation, it provides both the correct answer to the problem and an invulnerable rationale. We take the liberty of quoting at some length:

"The statute was not designed to create a new category of confidential communications. * * * `The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation.\' Goldman v. United States, supra, 316 U.S., at p. 133, 62 S.Ct. 993, 995, 86 L.Ed., at p. 1327. `The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone.\' Rathbun v. United States, 355 U.S. 107, 110, 78 S.Ct. 161, 2 L.Ed.2d 134, 137 (1957).

"The * * * statute protects the established line of transmission; the prohibition is against intervention into that channel. This is the view of it we find in Goldman, supra, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, and Rathbun v. United States, supra, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134. The facts of our case do not match those of either Goldman or Rathbun, but they do fall within their composite thesis. In Goldman a detectaphone was attached to a partition wall and thereby officers heard a man in the next room participate in a telephone conversation. The court found no violation of section 605, saying (316 U.S., at p. 134, 62 S.Ct. 993, 995, 86 L.Ed., at p. 1327):

"`* * * As has rightly been held, this word intercept indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes

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