U.S. v. Eschweiler, 83-2747

Decision Date24 October 1984
Docket NumberNo. 83-2747,83-2747
Citation745 F.2d 435
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Andrew ESCHWEILER, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Ted S. Helwig, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Edward Mogul, Chicago, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Andrew Eschweiler was convicted by a jury of federal narcotics violations and was sentenced to five years in prison. His appeal raises a number of questions, most revolving around Harold Abrahamsen, who as government informer and prosecution witness played a key role in Eschweiler's apprehension and conviction.

Eschweiler sold cocaine and other illegal drugs from his apartment. He befriended Abrahamsen and let him live in the apartment rent free. Abrahamsen bought some drugs from Eschweiler for his own use and that of his friends, and also assisted Eschweiler in a minor way in his dealings. Abrahamsen needed money, and went to the FBI and offered to help apprehend Eschweiler if the FBI would pay him for his services. The FBI accepted the offer; and fitted out with a recording device, Abrahamsen thrice visited Eschweiler's apartment (Abrahamsen was no longer living there) and recorded conversations highly incriminating to Eschweiler. The prosecution played these conversations to the jury. Eschweiler's first argument on appeal is that the introduction of this evidence violated both the Fourth Amendment and the federal electronic-eavesdropping statute (Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510 et seq.).

Both the Fourth Amendment, by judicial interpretation, and Title III, expressly, allow an undercover agent to record his conversations with a suspect and allow the government to introduce the recording in evidence. See Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963); 18 U.S.C. Secs. 2511(2)(c), 2515. Eschweiler points out, however, that Lopez did not involve a conversation in the suspect's home; notes that the Supreme Court has held that the home is entitled to special protection under the Fourth Amendment, see, e.g., United States v. Karo, --- U.S. ----, 104 S.Ct. 3296, 3303, 82 L.Ed.2d 530 (1984); Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980); and conjures up a frightening specter of the government's sending undercover agents into the home to record every sound audible there, using "enhancement" devices to enable the recording of sounds in other rooms besides the one the agent is in.

But this is not the case in which to decide whether Lopez or Title III should be deemed inapplicable to surveillance within the home (a difficult position to sustain in the face of cases like United States v. White, 401 U.S. 745, 747, 91 S.Ct. 1122, 1123, 28 L.Ed.2d 453 (1971) (plurality opinion); United States v. Janik, 723 F.2d 537, 547 (7th Cir.1983), and United States v. Yonn, 702 F.2d 1341, 1346-47 (11th Cir.1983)), or what difference amplification makes, or whether--though this is not something we are authorized to decide--the time has come to reconsider Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), which held that planting an undercover agent does not invade any interests protected by the Fourth Amendment. See generally Stone, The Scope of the Fourth Amendment; Privacy and the Police Use of Spies, Secret Agents, and Informers, 1976 Am.B. Foundation Research J. 1195. To begin with, this is not a case of an officer's worming his way into the confidence of a criminal suspect, gaining entry into the suspect's home, and then recording everything audible (and maybe some things not audible) within it. The FBI did not send one of its employees into Eschweiler's apartment; it did not even "turn" Abrahamsen; the initiative was his. This is a classic case of misplaced trust in an associate's loyalty. Once Abrahamsen decided to help the government, wiring him for sound was a reasonable measure to obtain reliable evidence of Eschweiler's conversations with him--particularly since, as we shall see, Abrahamsen's personal reliability was not great. It is true that, maybe because the conversations did take place in a home rather than in a more conventional place of business, the recordings captured many conversations of a private nature, conversations ranging from the lurid (sex) to the banal (baking cookies). But a drug dealer cannot obtain immunity from customary methods of criminal investigation simply by conducting his business in his home rather than in a regular office. Lewis v. United States, supra, 385 U.S. at 211, 87 S.Ct. at 427. Eschweiler does not argue that the content of the recordings so prejudiced the jury against him as to deprive him of a fair trial.

He does argue that the microphone concealed on Abrahamsen was more sensitive than the human ear, suggesting a possible analogy to Gouled v. United States, 255 U.S. 298, 305-06, 41 S.Ct. 261, 263-64, 65 L.Ed. 647 (1921), where the Supreme Court held that a government agent who had gained admittance to Gouled's office by pretending he was paying him a social visit could not, while Gouled was out of the room, ransack the office and seize private papers of an incriminating nature. (This holding is unrelated to the holding in Gouled that was overruled by Warden v. Hayden, 387 U.S. 294, 300-10, 87 S.Ct. 1642, 1646-52, 18 L.Ed.2d 782 (1967)--that a search is improper if the object is merely to secure evidence. See 255 U.S. at 307-09, 41 S.Ct. at 264-65.) Dicta in United States v. Llanes, 398 F.2d 880, 884 (2d Cir.1968), and United States v. Agapito, 620 F.2d 324, 330 and n. 7 (2d Cir.1980), suggest that an undercover agent who uses amplifying equipment to overhear conversations in another room that would have been inaudible to his naked ear invades interests protected by the Fourth Amendment; and there are similar holdings with regard to spying on the interior of a house or an office building through a telescope or binoculars. See United States v. Taborda, 635 F.2d 131, 138-39 (2d Cir.1980); People v. Arno, 90 Cal.App.3d 505, 511-12, 153 Cal.Rptr. 624, 627-28 (1979); United States v. Kim, 415 F.Supp. 1252, 1255-57 (D.Haw.1976). But there is contrary authority on telescopic and binocular observation, illustrated by Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970), including dicta in two Supreme Court decisions, On Lee v. United States, 343 U.S. 747, 754, 72 S.Ct. 967, 972, 96 L.Ed. 1270 (1952), and United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927). And here there is the fact, which distinguishes Llanes and Agapito, that Eschweiler consented to Abrahamsen's presence. We know from Lopez that in order to be effective the consent did not have to extend to Abrahamsen's being wired. But there was also limited consent in Gouled. See also Lewis v. United States, supra, 385 U.S. at 211, 87 S.Ct. at 427.

Fortunately we do not have to resolve the issue of amplification in this case. The only conversations used in evidence against Eschweiler were his own conversations with Abrahamsen, which of course Abrahamsen could and did hear; the amplifying feature of the equipment he wore did not produce any evidence used against Eschweiler.

The next issue is whether the district judge should have ordered Abrahamsen to submit to a psychiatric examination as a condition of letting the government proceed with its case. Eschweiler argues that Abrahamsen was mentally incompetent to agree to become an undercover agent for the FBI and insufficiently trustworthy to be allowed to testify at the trial. We have expressed recently our reluctance to encumber criminal proceedings with psychiatric examinations of witnesses, United States v. Gutman, 725 F.2d 417, 420 (7th Cir.1984), and nothing in this case causes us to change our position. It is true that Abrahamsen lied repeatedly to the FBI about whether he carried a gun (he did), and almost certainly lied when he told the grand jury that he had gone to the FBI to do his citizen's duty rather than to make money, and that he makes $36,000 a year--in fact he seems to have no regular work, and to live from hand to mouth. Besides often telling lies, Abrahamsen sometimes hallucinates--he has seen people coming up at him through the floor. These hallucinations apparently are drug-induced; and a doctor speculated that Abrahamsen may have been in a self-induced drug stupor when he decided to cooperate with the FBI. But neither the doctor's affidavit nor any other evidence about Abrahamsen's mental state required the district judge to order a psychiatric examination to determine the voluntariness of his agreement to become an undercover agent for the FBI. An informer's mental state is too collateral an issue in a criminal trial to require such an examination. As for Abrahamsen's competence to testify at trial (a different issue from the voluntariness of his consent to help the FBI), there is no serious argument that he was an incompetent witness as opposed to being an unreliable one; and his unreliability was an issue the jury was capable of evaluating without the help of a psychiatrist's report.

We also reject the argument that Abrahamsen should not have been allowed to testify because he was effectively immune from prosecution for perjury--that since he was the government's witness, the government would not prosecute him for perjury, provided he lied for the government. If accepted, this argument would make it impossible for anyone to testify for the government. An argument that leads to such a result cannot be right, and is in any event inconsistent with the principle that the government can agree not to prosecute a criminal in exchange for his...

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