United States v. Bonanno

• Citation: 487 F.2d 654
• Decision Date: 20 November 1973
• Docket Number: Docket 73-1852.,No. 194,194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank John BONANNO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

487 F.2d 654 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Frank John BONANNO, Defendant-Appellant.

No. 194, Docket 73-1852.

United States Court of Appeals, Second Circuit.

Argued October 11, 1973.

Decided November 20, 1973.

Gerald L. Shargel, New York City (James M. LaRossa, New York City, of counsel), for defendant-appellant.

Bart M. Schwartz, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y., and Peter L. Truebner and John D. Gordan III, Asst. U. S. Attys., of counsel), for plaintiff-appellee.

Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.

FRIENDLY, Circuit Judge:

Frank John Bonanno appeals from a judgment of the District Court for the Southern District of New York convicting him, on a two-count indictment, of passing, uttering and publishing and of possessing or concealing approximately 250 counterfeit $20 Federal Reserve Notes in violation of 18 U.S.C.A. § 472. The only questions raised concern the use of a tape and a transcript of a telephone conversation between Bonanno and Spiros "Gerry" Dendrinos, a former passer of counterfeit who had become an informer.

I.

The Government's case consisted of the testimony of two Secret Service agents and of the tape and transcript of the telephone call. Agent Zaino apparently first met Dendrinos on September 6, 1972, a day after the latter was arrested for selling counterfeit money to an undercover agent. After having decided to cooperate with the Government and having evidently identified Bonanno as his source, Dendrinos arranged for Zaino to meet Bonanno. When Dendrinos told Bonanno that Zaino had been the recipient of the counterfeit and Zaino offered Bonanno payment therefor, Bonanno answered, "I do not know what you are talking about." Not convinced by this, Government agents arranged for Dendrinos to make a purchase from Bonanno. On September 7 Dendrinos telephoned Bonanno from the New York City headquarters of the Secret Service. Agent Dotson, who did not testify at the trial, monitored the call which was tape-recorded and later transcribed. The tape and transcript showed that, pursuant to what was apparently a slightly less precise arrangement already existing between them, Bonanno agreed to sell Dendrinos what turned out to be $5020 in counterfeit $20 bills for $1250. He said he would pick up the bills and meet Dendrinos about 1 A.M. near a coffee shop at 43d Street and Sixth Avenue. Thoughtfully, he warned Dendrinos not to carry $1250 in the subway. Dendrinos responded to this solicitude by saying he possibly would be with his partner who had a car, but that he would not let his partner see Bonanno.

The partner, of course, was Agent Zaino. After seeing Bonanno in the coffee shop, he parked the car, allowed Dendrinos to leave, and saw Dendrinos and Bonanno enter a Cadillac. The Cadillac drove away briefly and then came back. A few minutes later Dendrinos returned to Zaino with a bag containing a "stack" of counterfeit $20 bills. Agent Zaino then handed Dendrinos $1250 in genuine bills whose numbers had been recorded. Dendrinos approached Bonanno's car with the money but Bonanno was arrested before this was handed to him. Zaino's testimony was corroborated to some extent by a surveilling agent, Thomas Tully, whose testimony, however, was primarily concerned with efforts to equip Dendrinos with a radio transmitter, whose recorder malfunctioned.

Apparently on the morning of trial, defense counsel for the first time raised objections to the use of the tape recording and transcript of the telephone call. After the jury had been sworn early in the afternoon, the judge directed that the trial proceed so far as possible but agreed to hold an evidentiary hearing the next morning with respect to the tape. At this hearing the Government called Secret Service Agent Marquez, who had been present at headquarters when Agent Dotson arranged for the call from Dendrinos to Bonanno. He testified that, after having obtained Dendrinos' agreement to having the call taped, Agent Dotson instructed a special agent to set up the apparatus. This included installing a connection of a tape recorder with the telephone receiver and an earpiece to monitor the conversation. After all this had been done, Dendrinos was brought into the room and Dotson placed identifying information on the tape recorder. Having observed the tape recorder and its installation, Dendrinos then made the call, with Dotson monitoring it. At the conclusion of Marquez' testimony the judge found it credible and overruled a defense objection based on lack of consent by Dendrinos.

Defense counsel protested that the judge had ruled without affording him an opportunity to call Dendrinos, who was present, under a Government subpoena, as a prospective witness at the trial. When called by the defense, Dendrinos promptly claimed the privilege against self-incrimination with respect to practically all questions and specifically those concerning the telephone call and his consent to its being monitored and recorded. The judge declined to order him to testify but suggested that he confer with the lawyer who had represented him when he pleaded guilty to a counterfeiting charge in the Eastern District of New York. Meanwhile the trial was resumed.

A robing room conference was held after the lunch recess. The lawyer reported that he had unsuccessfully urged Dendrinos to testify and thought the latter's unwillingness was due as much to fear of physical violence as to worry about self-incrimination. On return to the courtroom, which had been cleared of spectators, the judge further interrogated Dendrinos. The latter first repeated that to tell what he had said to the Secret Service agents might involve him in a crime, only to say the opposite a moment later and then to revert to his original version. After the prosecutor had offered to investigate whether immunity could be granted, the judge, on the basis of observing the witness' appearance, asked whether he had taken drugs recently and found that he had taken methadone that morning. The judge thereupon asked counsel for both sides to consider whether, apart from the question of privilege, any testimony by Dendrinos should be received. After a short recess, both sides agreed in an off-the-record conference in the robing room that they would not call him back to the stand. The judge thereupon repeated his ruling that the Government had shown consent.

Agent Zaino then resumed his testimony. He identified two of the three voices on the tape as those of Dendrinos and of Bonanno, whom he had heard in person at the meeting Dendrinos had arranged. The court ruled that this identification was sufficient so far as concerned the conversation between Dendrinos and Bonanno and allowed it and the corresponding transcript to be received in evidence.

II.

Bonanno's broadest attack is that a warrantless recording of a telephone conversation violates the Fourth Amendment rights of a non-consenting party even though the other has consented. He argues that United States v. San Martin, 469 F.2d 5, 7 (2 Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1388, 35 L.Ed.2d 598 (1973), indicated that this question was open in this circuit and evidenced some sympathy with his contention by its approving quotation from Judge Learned Hand's opinion in United States v. Polakoff, 112 F.2d 888, 889 (2 Cir.), cert. denied, 311 U.S. 653, 61 S.Ct. 41, 85 L. Ed. 418 (1940), as to the antiphonal nature of a telephone conversation and the consequent need of consent by both parties. But Judge Hand's opinion, which dealt with § 605 of the Federal Communications Act, 47 U.S.C. § 605, which at that time was the sole basis for protecting the privacy of telephone conversations in the absence of trespass, was rejected by the Supreme Court with respect to police officers listening in on a regularly used telephone extension in Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), and in light of that decision, by this court with respect to recording devices in United States v. Ballou, 348 F.2d 467 (2 Cir. 1965), and United States v. McGuire, 381 F.2d 306, 314-315 (2 Cir. 1967), cert. denied, 389 U.S. 1053, 88 S.Ct. 800, 19 L.Ed.2d 848 (1968). Cf. United States v. Jackson, 390 F.2d 317, 318-319 (2 Cir.), cert. denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968).

Bonanno claims all this has been altered by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which extended Fourth Amendment protection to voice communications. We squarely held the contrary in United States v. Kaufer, 406 F.2d 550, 552 (2 Cir.), summarily affirmed on the ground of the non-retroactivity of Katz, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969), with respect to listening in on a telephone conversation with the consent of one party. And United States v. Jackson, supra, which was also decided after Katz and before the Supreme Court had ruled that Katz was not retroactive, seems to have held the same with respect to the recording of a telephone conversation with the consent of one party.

There have been only two relevant subsequent developments. One is the decision in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), which affirmed the continued vitality of On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), and Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), upholding the use of recording and transmitting devices on the person, in the face of a Fourth Amendment claim based on Katz.¹ The other is enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, which, in providing for interception of wire communications pursuant to warrant, expressly excepted from the warrant requirement a case where "one of the parties to the communication has given prior consent to such interception," 18 U.S.C. § 2511(2)(c)—a statute referred to with seeming...