United States v. Turk

• Decision Date: 08 March 1976
• Docket Number: No. 74-3626.,74-3626.
• Citation: 526 F.2d 654
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick Joseph TURK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 654

UNITED STATES of America, Plaintiff-Appellee, v. Frederick Joseph TURK, Defendant-Appellant.

No. 74-3626.

United States Court of Appeals, Fifth Circuit.

January 29, 1976.

Rehearing and Rehearing Denied March 8, 1976.

COPYRIGHT MATERIAL OMITTED

George D. Gold, Miami, Fla., for defendant-appellant.

Robert W. Rust, U.S. Atty., Miami, Fla., Ted Greenberg, Washington, D.C., for plaintiff-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied March 8, 1976.

GOLDBERG, Circuit Judge:

Frederick Joseph Turk was convicted of committing perjury in his testimony before a federal grand jury. Most of the issues in this appeal relate to the manner in which law enforcement officials became privy to a telephone conversation between Turk and an acquaintance. Although our analysis of these issues differs from that of the trial court, our conclusions are to the same effect — Turk is entitled to no relief on his claims that the Government has abridged his statutory and fourth amendment rights. We are also unpersuaded by Turk's other arguments, and thus we affirm the conviction.

I. THE FACTS

On July 13, 1973, officers of the Dade County Public Safety Department received a tip that two individuals would soon leave a specified Miami residence in a silver sports car containing cocaine and firearms. The officers stopped the car, discovered these illicit contents, and arrested the two individuals, Charles Kabbaby and Glenn Roblin. At that time the officers removed from the car, among other objects, a box containing a cassette tape recorder-player and two cassette tapes. Kabbaby told them that "nothing" was on the tapes. The officers then proceeded to play the tapes at the stationhouse, without Kabbaby's permission and without attempting to obtain a warrant. They soon realized that they were listening, on one of the tapes, to a recording of a private telephone conversation between Kabbaby and someone called "Freddy." The officers continued to listen out of "curiosity."

In the course of the recorded conversation, Freddy mentioned his telephone number, which the authorities were able to use to locate him. Freddy was, of course, Frederick Turk, the appellant. Turk was then subpoenaed to appear before a federal grand jury that was investigating possible violations of federal narcotics laws. He initially invoked his fifth amendment privilege not to testify. After he was granted immunity from prosecution pursuant to 18 U.S.C. § 6001, he returned to testify before the grand jury on November 27 and December 11 of 1973. During Turk's testimony, the following colloquy, and others like it, took place between government counsel (Q.) and Turk (A.):

Q. Let me ask you one final question, Mr. Turk. Have you ever at anytime been engaged in buying, selling, or otherwise trafficking in marijuana or any other narcotic substance?

A. No, sir.

Turk was subsequently indicted on two counts of making "irreconcilably contradictory statements" and two counts of obstruction of justice. A superseding indictment, dated July 10, 1974, added two counts of perjury. In a jury trial in September, 1974, Turk was found guilty on one count of perjury, for having denied any involvement in marijuana trafficking. Over Turk's objections and motions to suppress, the tape seized from Kabbaby's car was played both at the grand jury before which he is alleged to have perjured himself, and at his perjury trial. The Government's other evidence at the trial consisted primarily of the testimony of Glenn Roblin and two other individuals who purported to have some personal knowledge relating to Turk's involvement in the importation of marijuana.

II. THE SEARCH

A. The Omnibus Act.

Title III of the 1968 "Omnibus Crime Control and Safe Streets Act," codified at 18 U.S.C. §§ 2510-2520, proscribes generally the interception or disclosure of wire or oral communications, and provides a procedure through which law enforcement officials can be authorized to intercept such communications in certain limited circumstances. Turk argues that the action of the officers in listening to the cassette tape seized from Kabbaby's car constituted an impermissible "interception" of Turk's oral communication, as defined in 18 U.S.C. § 2510(4). If this argument is valid, then the introduction of the tape into evidence at the grand jury proceeding and at Turk's trial might have been barred by 18 U.S.C. § 2515, a statutory exclusionary rule.

§ 2510(4) provides:

"intercept" means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.

Kabbaby's action in recording his conversation with Turk was clearly an interception under this definition. This interception was not violative of the Act, however, because § 2511(2)(d) specifically exempts situations in which one party to the conversation is himself the interceptor.¹

Whether the seizure and replaying of the cassette tape by the officers was also an "interception" depends on the definition to be given "aural acquisition." Under one conceivable reading, an "aural acquisition" could be said to occur whenever someone physically hears the contents of a communication, and thus the use of the tape player by the officers to hear the previously recorded conversation might fall within the definition set out above. No explicit limitation of coverage to contemporaneous "acquisitions" appears in the Act.

We believe that a different interpretation — one which would exclude from the definition of "intercept" the replaying of a previously recorded conversation — has a much firmer basis in the language of § 2510(4) and in logic, and corresponds more closely to the policies reflected in the legislative history. The words "acquisition . . . through the use of any . . . device" suggest that the central concern is with the activity engaged in at the time of the oral communication which causes such communication to be overheard by uninvited listeners. If a person secrets a recorder in a room and thereby records a conversation between two others, an "acquisition" occurs at the time the recording is made. This acquisition itself might be said to be "aural" because the contents of the conversation are preserved in a form which permits the later aural disclosure of the contents.² Alternatively, a court facing the issue might conclude that an "aural acquisition" is accomplished only when two steps are completed — the initial acquisition by the device and the hearing of the communication by the person or persons responsible for the recording.³ Either of these definitions would require participation by the one charged with an "interception" in the contemporaneous acquisition of the communication through the use of the device. The argument that a new and different "aural acquisition" occurs each time a recording of an oral communication is replayed is unpersuasive. That would mean that innumerable "interceptions," and thus violations of the Act, could follow from a single recording.⁴

Another provision of the Act lends support to the view that "interception" should not be read to include the derivative acquisition at issue here. § 2511(1)(c) makes unlawfully the disclosure of the contents of wire or oral communications which have been illegally intercepted. At least one sort of derivative acquisition, then, is not an "interception" — if the acquisition through disclosure from a primary interceptor were meant to be a new "interception," Congress in its wisdom presumably would not have added a separate section providing a redundant sanction.⁵

Appellant concedes that he reads the definition sections of the Act "rather broadly," but argues that such a reading is buttressed by the legislative history. We disagree. While Congress clearly was concerned with the protection of individual's privacy interests against unjustified intrusions, it did not attempt through Title III to deal with all such intrusions. The specific focus of Title III is reflected in the many references in the legislative history to the problem being dealt with as "wiretapping and electronic surveillance." See 2 U.S.Code, Cong. & Admin.News, pp. 2153-63, 2177-97 passim (90th Cong., 2d.Sess.1968). The Senate Report, in explicating § 2510, contains the following:

Paragraph (4) defines "intercept" to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation.

Id. at 2178 (emphasis added). This passage indicates that the act of surveillance and not the literal "aural acquisition" (i. e., the hearing), which might be contemporaneous with the surveillance, or might follow therefrom, was at the center of congressional concern. "Aural acquisition" seems to have been used by the Congress neither as a term of art nor as a term of technology. Whatever the precise temporal parameters under Title III of an "aural acquisition" (and thus of an interception), we conclude that no new and distinct interception occurs when the contents of a communication are revealed through the replaying of a previous recording.

B. The Fourth Amendment.

Turk argues that whatever the relation of the Omnibus Act to this unusual situation, his conviction was tainted independently through the violation by the officers of his fourth amendment rights. The assertion is that the manner in which the police played and listened to the cassette tape constituted an illegal search and seizure. For Turk's conviction to be reversed on this ground, we would need to come to the following conclusions: that Turk had "standing" to raise this claim; that there was in fact an illegal search and seizure; and the introduction of the illegally seized evidence (and other evidence developed from it) at Turk's perjury trial was error; and that such error was not harmless.

1. Standing.

In this fourth...