United States v. Tane

• Decision Date: 24 March 1964
• Docket Number: No. 91,Docket 28312.,91
• Citation: 329 F.2d 848
• Parties: UNITED STATES of America, Appellant, v. Mack S. TANE, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

329 F.2d 848 (1964)

UNITED STATES of America, Appellant, v. Mack S. TANE, Appellee.

No. 91, Docket 28312.

United States Court of Appeals Second Circuit.

Argued December 11, 1963.

Decided March 24, 1964.

G. Robert Blakey, Attorney, Dept. of Justice, Washington, D. C. (Joseph P. Hoey, U. S. Atty., for the Eastern District of New York, on the brief), for appellant.

Michael Levi Matar, New York City, for appellee.

Before SMITH, KAUFMAN^* and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

The government appeals from a pre-trial order, entered by Judge Jacob Mishler in the Eastern District of New York, dismissing an indictment against Mack Tane. The order sustained the defendant's objection to certain proffered testimony and dismissed the indictment on the ground that it had resulted from illegal wiretapping.

Mack Tane was indicted on February 7, 1961 on a charge of violating 29 U.S.C. § 186(b) and (d) (1958)¹ by accepting $1000 from an employer, Pase Motors, Inc., on or about February 10, 1956, while Tane was a business agent of Local 239 of the International Brotherhood of Teamsters. Tane moved by an order to show cause, dated February 7, 1962, for suppression of any testimony obtained because of unlawful wiretapping and for dismissal of the indictment if unlawfully obtained evidence was presented to the grand jury. At a hearing on the motion, it appeared that state officials had tapped a telephone conversation on December 6, 1955 between Leo Guzik, a lawyer for Pase Motors, and Sam Goldstein, president of Local 239. This conversation first indicated to the government that officials of Local 239 might be receiving unlawful payments from Pase Motors, Inc. Government investigators questioned Wesley Pase, an officer of Pase Motors, Inc. At first Pase denied making any payments to union representatives, but when confronted with information that the conversation between his attorney and Sam Goldstein had been tapped, Pase admitted making the payments to secure labor peace. Pase subsequently testified before a New York County Grand Jury in May of 1956, before the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations in January of 1961, and before the Grand Jury that indicted Tane in February of 1961. Tane's motion was aimed at suppressing Pase's testimony.

On September 10, 1962 Judge Mishler denied Tane's motion on three grounds: (1) that neither Tane nor Pase were parties to the intercepted telephone conversation, and under Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L. Ed. 1312 (1942), testimony procured by an illegal wiretap is admissible against one not a party to the conversation; (2) that Pase was motivated to testify by a variety of reasons and did not acquire knowledge of facts to which he testified through illegal monitoring; and (3) that evidence is not subject to suppression under Rule 41 (e) of the Federal Rules of Criminal Procedure unless it is obtained by an unreasonable search and seizure, and a wiretap in the absence of a physical intrusion is not an unreasonable search and seizure.

Through an error by the clerk of the court, the defendant was given a March 8, 1956 memorandum of James J. Mahoney, a New York County investigator. The memorandum, which the court had refused to allow the defendant to examine since it was not in evidence, indicates that on December 6, 1955, Leo Guzik called Sam Goldstein and Max Tane, but the digest of the call which follows does not indicate that Tane took part in the reported conversation.² After a rehearing on the motion, the court found that the memorandum did not substantiate the claim that Tane was a party to the conversation, and in a decision dated October 17, 1962, adhered to its original decision of September 10, 1962.

Prior to the selection of a jury, the defendant renewed his application to suppress the testimony of Wesley Pase. The court viewed this application as an objection to the anticipated testimony and a renewal of the motion to dismiss the indictment. On rehearing, additional testimony was adduced that showed that the identity of Wesley Pase was first derived from the unlawful wiretap of December 6, 1955, and that disclosure of the conversation between Guzik and Goldstein to the Assistant District Attorney led to the testimony of Wesley Pase. Moreover, a summary report prepared by detectives Herzfeld and Lynch, who actually listened in on the December 6 wiretap, was introduced. This report revealed that Tane was in on the intercepted December 6 telephone call in which Guzik and Goldstein discussed a payment from Pase Motors and that Tane discussed the Pase labor situation with Guzik on the same call.³ Finding the source of the government's evidence thus tainted, Judge Mishler, in an opinion filed April 10, 1963, sustained the defendant's objection to Wesley Pase testifying and dismissed the indictment because it was the product of an unlawful wiretap.

APPEALABILITY

The threshold question is whether this court has jurisdiction to hear this appeal. We deny Tane's motion to dismiss for lack of appellate jurisdiction and hold the order appealable. 18 U.S.C. § 3731 (1958) permits appeal to the Court of Appeals by the government in criminal cases where the district court has rendered "a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section."⁴

It is clear that, standing alone, a pre-trial order suppressing evidence is not appealable. Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). Here the suppression order did not stand alone; it was coupled with the dismissal of the indictment, which was found to be the product of illegal wiretapping. The pre-trial dismissal of an indictment, after the granting of a pre-trial motion to suppress the evidence on which the indictment is based is appealable under 18 U.S.C. § 3731. United States v. Wheeler, 256 F.2d 745 (3 Cir. 1958), cert. denied 358 U.S. 873, 79 S.Ct. 111, 3 L.Ed.2d 103 (1958); United States v. Ashby, 245 F.2d 684 (5 Cir. 1957). Where, as here, the basis of the dismissal of the indictment is inextricably intertwined with the basis of the suppression order, both orders must be reviewed together.

DEFENDANT'S STANDING TO OBJECT

On this appeal the government contends that Tane was not a party to the intercepted conversation, and therefore, has no standing to object to the use, if any, to which the tapped phone conversation was put. Section 605 of the Federal Communications Act provides in pertinent part:

"* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *."

In the two Nardone cases,⁵ the Supreme Court declared that the plain words of this statute prohibited any person not authorized by the sender from violating the integrity of a telephone conversation and that evidence acquired from a statutory violation may not be used to obtain a federal conviction. The Court suggested that in enacting § 605, Congress had deemed it "less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty." 302 U.S. at 383, 58 S.Ct. at 277, 82 L.Ed. 314. Cf. 308 U.S. at 340, 60 S.Ct. at 267, 84 L.Ed. 307.

But in Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312 (1942), the Supreme Court refused to extend the sanction of inadmissibility to testimony induced by revealing that conversations to which the defendant was not a party had been tapped. The chief government witnesses in an insurance swindle, Messman and Garrow, had turned state's evidence after being confronted with the contents of unlawfully intercepted telephone conversations implicating them in the swindle. The witnesses were parties to some of the calls, but the defendants were not. Though the product of a violation of § 605, the testimony was held admissible on the narrow ground that the defendants lacked standing to object because they were not parties to the calls. The Court reasoned that since a sender may consent to the divulgence of the conversation, the statute was intended to protect only senders against divulgence. 316 U.S. at 114, 62 S.Ct. 1000, 86 L.Ed. 1312.

The word "sender" is perhaps more appropriately ascribed to one who starts a telegram or letter on its way. In a telephone conversation, the caller and the receiver alternately exchange information, and both parties are senders within the meaning of § 605. See United States v. Polakoff, 112 F.2d 888, 889 (2 Cir. 1940), cert. denied 311 U.S. 653, 61 S.Ct. 41, 85 L.Ed. 418 (1940). Cf. Rathbun v. United States, 355 U.S. 107, 113, 78 S.Ct. 161, 165, 2 L.Ed.2d 134 (1957), where Mr. Justice Frankfurter's dissent states explicitly the implicit basis of the majority opinion — that the Court read "`sender' to mean one of the parties to the communication, whether sender or receiver."

The government asks that we reverse the district court's implicit finding that Tane was a party to the intercepted telephone call because there was no evidence to show that it was the defendant's wires and defendant's talk that was being tapped. But the defendant is not deprived of standing because the wires tapped were not his in that sense that the phone was listed to another. In Benanti v. United States, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126 (1957), the defendant had standing to object to evidence obtained as a result of a wiretap on a phone located in a bar that he frequented. We can see no reason for treating Tane's union office differently from Benanti's bar.

The Mahoney Memorandum and...