United States v. Kahn, 71-1931.

Decision Date31 October 1972
Docket NumberNo. 71-1931.,71-1931.
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Irving KAHN and Minnie Kahn, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

James R. Thompson, U. S. Atty., Allan E. Lapidus, Chicago, Ill., for plaintiff-appellant.

Anna R. Lavin, Edward J. Calihan, Jr., Chicago, Ill., for defendants-appellees.

Before KNOCH, Senior Circuit Judge, and KILEY and STEVENS, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 29, 1973.

KILEY, Circuit Judge.

The government has appealed1 from an order of a district judge suppressing as evidence conversations between Irving and Minnie Kahn, husband and wife, gathered from wiretaps authorized by a district judge's order permitting interception of their telephone communications by virtue of the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.2 We affirm in part and reverse in part.

On March 20, 1970 the judge issued the wiretap order on application of the government, through a specially designated Assistant Attorney General, supported by an FBI agent's affidavit.3 The order authorized interception of Irving Kahn's conversations with "others as yet unknown" using the two Kahn home telephone numbers. Minnie Kahn was not named in the order. The government presumed the order authorized interception of her conversations as a member of the class of "others as yet unknown." The judge accepted the FBI status report he required under authority of § 2518(6) of the Act4 and presumably approved the government's interpretation of the order.

The order cautioned that execution of the order should be as "soon as practicable" and "in such a way as to minimize the interception of communications not otherwise subject to interception under Chapter 119 of Title 18, United States Code,5 and must terminate upon attainment of the authorized objective or, in any event, at the end of fifteen (15) days from the date of this order." On March 25, 1970 the government reported interception had been terminated by attainment of the objective. The report6 stated the objective was attained by gathering information, inter alia, that on March 21, 1970 Irving Kahn called his wife from Arizona and discussed gambling wins and losses, and that the same day Minnie Kahn called a known gambling figure twice and discussed numbers and amounts of bets placed and the identity of the bettors by numbers.

On February 24, 1971 Irving and Minnie Kahn were indicted for using a telephone "facility in interstate commerce" with intent to promote gambling in violation of Illinois law. On April 27, 1971 the Kahns filed motions to suppress the wiretap evidence pursuant to 18 U.S.C. § 2518(10) (a).7 The joint motion asserted that the Kahns' Fourth and Fifth Amendment rights were violated by the wire taps. It also challenged the sufficiency of the application for the order, the necessity for the order and the FBI use of telephone company records allegedly in violation of 47 U.S.C. § 605 and 18 U.S.C. § 2515, the duration of the order, and its excessive breadth. The Kahns also challenged the order for its lack of directions for minimizing interception, and alleged that it violated the marital privilege under the Ninth Amendment, the common law and 18 U. S.C. § 2517(4).8

The judge9 found that the Attorney General's application for the intercepting order was adequately supported by the FBI agent's affidavit and that the order was valid and enforceable under 18 U.S.C. § 2518(3-5).10 The judge further found that the statute authorizing the wiretap order was "undoubtedly" constitutional when limited to conversations participated in by "Irving Kahn with persons unknown at the time." However, the judge, without hearing testimony, suppressed any conversations "exclusively" between Irving and Minnie Kahn as being within the marital privilege doctrine as applied through 18 U.S. C. § 2517(4). The judge also decided that the wiretap order did not authorize interception of Minnie Kahn's conversations. The government's appeal followed.

I.

The government contends that the judge erroneously applied the marital privilege rule because (1) Minnie Kahn was not testifying against her husband, and (2) the privilege in this proceeding must give way to the public interest in discovering the truth about crime, and in enforcement of criminal law.

We agree with the government. If the intercepted conversations had to do with the commission of a crime and not with the privacy of the Kahn marriage, the judge's ruling is erroneous. Society has an interest in protecting the privacy of marriage because invasion of the privacy endangers the family relationship. The privilege has been interpreted in some jurisdictions to exclude conversations between spouses about business, since their role as spouses is merely incidental.11 That rule reinforces the exception to the privilege; "where both spouses are substantial participants in patently illegal activity, even the most expansive of the marriage privileges should not prevent testimony."12

This court recently, in United States v. Doughty, 460 F.2d 1360, 1364 (7th Cir. 1972), said:

The Doughtys were in the unlawful enterprise together, and we think it highly unlikely that the court\'s admission of the testimony of an agent . . . militated against their domestic peace or offended the public interest which the rule in Hawkins 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958) sought to protect.

That language reflects Exception (2) (e) of Uniform Rule of Evidence 28; see also United States v. Pugliese, 153 F.2d 497, 500 (2nd Cir. 1945).13 We realize that "the law of evidence has demonstrated a degree of solicitude toward the intimacy of marriage not manifested with regard to other protected relationships,"14 but the conversations before us between the Kahns were with respect to ongoing violations of Illinois gambling laws. We hold therefore that the judge erred in suppressing those conversations.

The cases cited by the Kahns do not aid them. The point here was not raised in Wolfle v. United States, 291 U. S. 7, 54 S.Ct 279, 78 L.Ed. 617 (1934), and there was no evidence in that case of dual participation in crime. In Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951), the husband refused to disclose the whereabouts of his wife, sought as a grand jury witness, who secretly entrusted her address to him. The privileged communication was not in furtherance of a crime. The decision in Ivey v. United States, 344 F.2d 770 (5th Cir. 1965), is also distinguishable, since the objectionable testimony of Mrs. Ivey did not deal with the furtherance of a crime, but was an admission of a past crime. In Peek v. United States, 321 F.2d 934 (9th Cir. 1963), the court found no abuse of discretion in the trial court's denying a pre-trial motion for severance which urged the possibility that the government would use statements in violation of the marital privilege — the district court had deferred ruling to the actuality of the trial. In the case before us the judge used his discretion to rule before trial. No claim is made that the ruling was an abuse of discretion.

II.

In the motion to suppress the Kahns alleged that the affidavit supporting the eavesdrop order "nowhere states facts" showing probable use of the Kahn telephones for illegal purposes by "others as yet unknown;" that the government "knew, or should have known," the occupants of the Kahn home and made no request for permission to intercept conversations other than those of Irving Kahn; and that the conversations of Minnie Kahn were "recklessly and illegally" intercepted. The government's answer to the motion asserted that Minnie Kahn fell into the class of "others as yet unknown." The judge suppressed the conversations.

The vital issue is whether Minnie Kahn can properly be included in the class of "others as yet unknown." The judge, in granting the motion, had before him the government's failure to deny that it knew Minnie Kahn was an occupant of the Kahn home and accordingly would use the home phones. We agree with the judge's finding and we hold that the wiretap order did not authorize interception of Minnie Kahn's conversations as she was neither identified in the order nor was she within the class of "others as yet unknown."

Section 2518(1) (b) (iv) of the Act requires the government to identify, in an application, any person, "if known," whose communications are to be intercepted. The implication is that if not known, such a person's conversations may be intercepted if that person's probable complicity in the offenses being committed is not yet known. The wiretap order was limited to conversations of "Irving Kahn and others as yet unknown." Thus in order to satisfy the limitations of the judge's order the wiretap had to meet two requirements: 1) that Irving Kahn be a party to the conversations, and 2) that his conversations intercepted be with "others as yet unknown."

The issue before us rests upon the scope of the term "others as yet unknown." A narrow construction of the term would limit the meaning of "others as yet unknown" literally to persons whom the government did not know. Under this construction Minnie Kahn would be excluded from the reach of the interception order, since she was admittedly known to the government as Irving's wife. A second construction would confine the term "others as yet unknown" to those persons whom the government did not know were engaging in illegal conversations with Irving Kahn. The first construction of "unknown" refers to the identity of the person; the second construction refers to the illegal activities of the person. Under the second construction, even if the government knew a person it might still not "know" of that person's probable illegal activities. If Minnie Kahn, although known to the government, was not...

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