Cole v. Kelley, Civ. No. 73-2322 LB.

• Decision Date: 02 September 1977
• Docket Number: Civ. No. 73-2322 LB.
• Citation: 438 F. Supp. 129
• Court: U.S. District Court — Central District of California
• Parties: Marvin R. COLE, Plaintiff, v. Frank C. KELLEY, director, Federal Bureau of Investigation, et al., Defendants.

438 F. Supp. 129

Marvin R. COLE, Plaintiff, v. Frank C. KELLEY, director, Federal Bureau of Investigation, et al., Defendants.

Civ. No. 73-2322 LB.

United States District Court, C. D. California.

September 2, 1977.

Michael Kennedy, San Francisco, Cal., Peter J. Marx, Beverly Hills, Cal., for plaintiff.

Richard L. Fruin, Jr., of Lawler, Felix & Hall, Los Angeles, Cal., for defendant Pacific Tel. & Tel. Co.

Robert L. Brosio, U. S. Atty., James Stotter, II, Barry J. Trilling, Asst. U. S. Attys., Los Angeles, Cal., for all other defendants except Joel R. Benton.

MEMORANDUM OPINION ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT—STATUTES OF LIMITATION

BREWSTER, District Judge.

The following motions are before the Court:

1. Motion of Pacific Telephone and Telegraph Company (Pacific Telephone) to dismiss the plaintiff's action against it pursuant to Rule 12(b), F.R.Civ.P. on the ground that such action is barred by certain statutes of limitation.¹

2. Motion of the personal defendants, except Joel R. Benton,² to dismiss the complaint against them pursuant to Rule 12(b), F.R.Civ.P., or in the alternative for summary judgment pursuant to Rule 56, F.R. Civ.P., on the ground that the plaintiff's claim is barred by certain statutes of limitation.

The affirmative defense of limitations may be properly presented by motion for summary judgment, even though it does not appear on the face of the pleadings. Suckow Borax Mines Consol. v. Borax Consolidated, 9 Cir., 185 F.2d 196, 205 (1950), cert. den. 340 U.S. 943, 71 S.Ct. 506, 95 L.Ed. 680.

The Court was of the opinion that the motions should be treated as motions for summary judgment pursuant to Rule 12(b); and, after having held a full hearing on them, concludes that summary judgment should be entered for each of the moving defendants on the ground that plaintiff's claim is barred by the statutes of limitation hereinafter set out.

Additional grounds for dismissal are urged by some of the defendants, but the result reached from the Court's ruling on the limitations question makes it unnecessary to discuss them.

Plaintiff's cause of action is based upon unauthorized electronic surveillance of him by government officers and agents, and the use of the information thereby obtained to convict him in his federal court trials in Los Angeles in May, 1963, for obstruction of the due administration of justice, and in New York in January, 1971, for violations of the income tax laws, and upon the concealment by the defendants of such surveillance until on or about August 10, 1970. He alleges that the surveillances were accomplished by implanting electronic devices in his Beverly Hills, California office at intervals during the period from May, 1961, to and including August 29, 1962, and in a room at the Holiday Inn, Marion, Ohio, in June, 1964, where he was present. He further alleges that the defendants conspired to commit such acts and make such use in violation of his constitutional, statutory and common law rights.

The defendants, Edward Levi, former Attorney General of the United States, and Frank C. Kelley, Director, Federal Bureau of Investigation (FBI), were not in those respective offices at the time the acts complained of by plaintiff were committed. William P. Rogers and Robert F. Kennedy were each Attorney General during some of that time. The plaintiff has been in the habit of dismissing an Attorney General when he went out of office and substituting his successor as a defendant. The failure to do this when Mr. Levi ceased to be Attorney General appears to have been an oversight. The other personal defendants and the respective capacities in which they are alleged to have been acting are:

Herbert J. Miller, Jr., Assistant Attorney General, Criminal Division, and William Foley, Acting Assistant Attorney General, Criminal Division.

Francis C. Whelan, United States Attorney at Los Angeles.

Thomas R. Sheridan, Timothy M. Thornton, and Benjamin S. Farber, Assistant United States Attorneys under Francis C. Whelan.

William G. Simon, Inspector and Special Agent in Charge of the Los Angeles Field Office of the Federal Bureau of Investigation (FBI).

William J. Nolan, Howard Zellers, Earl F. Dudley, L. H. Dudley, Sam K. Mitchell, J. L. Mahan, Gary Powell, Robert F. Jacobs, and R. J. Dobens, Special Agents, FBI. Robert K. Lund and Frances S. Sullivan, Internal Revenue Service (IRS) Agents.

Joel R. Benton was, as has been pointed out in a footnote above, an individual in private life who is alleged to have entered into a scheme with the other defendants to entrap the plaintiff and to testify against him before two Los Angeles federal grand juries and at trial.

Pacific Telephone is alleged to have leased or rented to defendants audio cable equipment which enabled conversations picked up by the implanted electronic devices to be heard at a distance from the places where they were spoken.

General Telephone & Telegraph Co. was dismissed by plaintiff before the hearing on the motions.

Based on such unauthorized electronic surveillance, the use thereof, and the alleged illegal conspiracy of the defendants to commit such acts and make such use, the plaintiff asserts three separate claims in his amended complaint:

1. The defendants' actions were an invasion of plaintiff's federal constitutional rights: to be secure in his person, house, papers and effects (Fourth Amendment); to be free from deprivation of his liberty and property without due process of law (Fifth Amendment); to effective assistance of counsel and to confrontation (Sixth Amendment); and to privacy (First Amendment).

2. The actions of the defendants were a violation of 18 U.S.C. §§ 2510-20, "and of related and predecessor litigation", giving plaintiff "a civil cause of action under 18 USC 2520."

3. The actions of defendants violated Article 1, Section 19, of the California Constitution, the California Penal Code, "and the law of California defining the torts, among others, of trespass, abuse of process, deceit, interference with prospective advantage and negligent infliction of physical and mental harm."³

The plaintiff prays for legal and equitable relief.⁴

Rule 56, F.R.Civ.P., provides in pertinent part that a motion for summary judgment shall be granted if it is shown that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

"The object of summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Scarboro v. Universal C.I.T. Credit Corporation, 5 Cir., 364 F.2d 10, 15 (1966). See also United States v. Gossett, 9 Cir., 416 F.2d 565, 567 (1969).

The sources from which the Court must get the facts to act on the motions for summary judgment are: admissions in the plaintiff's pleadings; the depositions of plaintiff and of Patrick M. Wall, one of his attorneys in his case in New York involving violations of the federal income tax laws; the plaintiff's answers to the defendants' Request for Admissions; affidavits of Harlow M. Huckabee, a trial attorney in the Department of Justice, and of John P. Gildea, a Special Agent of the IRS; and documents attached to any of the above or on file herein. The Court may also take judicial notice of the proceedings and fact findings in related cases involving Cole to the extent that the issues presented here were there litigated. St. Paul Fire & Marine Ins. Co. v. Cunningham, 9 Cir., 257 F.2d 731 (1958); Lambert v. Conrad, 9 Cir., 308 F.2d 571 (1962); Granader v. Public Bank, 6 Cir., 417 F.2d 75, 83 (1969), cert. den.⁵ 397 U.S. 1065, 90 S.Ct. 1503, 25 L.Ed.2d 686; Paul v. Dade County, Florida, 5 Cir., 419 F.2d 10, 12 (1969),⁶ cert. den. 397 U.S. 1065, 90 S.Ct. 1504, 25 L.Ed.2d 686; Moore v. Estelle, 5 Cir., 526 F.2d 690, 694 (1976).

The related cases here are: Cole v. United States, 9 Cir., 329 F.2d 437 (1964), affirming Cole's 1963 conviction in Los Angeles for obstruction of justice, opinion by Judge Barnes; United States v. Cole, 325 F.Supp. 763 (D.C.1971), United States v. Cole, 334 F.Supp. 961 (D.C.1971), and United States v. Cole, 351 F.Supp. 795 (D.C. 1972), all opinions of Judge Pollack, United States District Judge for the Southern District of New York, in connection with Cole's income tax violations case tried before him in New York. United States v. Cole, 2 Cir., 463 F.2d 163 (1972), cert. den. 499 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193, affirming Cole's conviction in the New York case on five counts charging violations of federal income tax laws, opinion by Chief Judge Friendly. Each one of the claims plaintiff is making here was litigated one or more times in, or in connection with, the New York trial.

The facts herein set forth are established beyond dispute by the sources above mentioned. Cole was the subject of unauthorized electronic surveillance at his Beverly Hills office at intervals during the period from about May 5, 1961, to August 29, 1962. He was also in Room 223, Holiday Inn, Marion, Ohio, during a part of the time it was under unauthorized electronic surveillance about June 24, 1964. All the surveillance involving Cole was by eavesdropping through the use of a "bug" implanted in the room where the overheard conversations took place. There was no wiretapping. Those conversations in Cole's office were recorded and the government made logs of them. The ones in the Holiday Inn room were not recorded, so there were no logs of them. The only records relating to that eavesdrop are a teletype and an airtel, each dated June 24, 1964. All of the surveillance was conducted by the FBI. The IRS had no part in it, and, during its investigation of Cole, had no knowledge of the information gained by it.

The eavesdropping of Cole was brought about by his misrepresentations to FBI agents working on an organized crime investigation involving, among others, one Joseph "Doc" Stacher, a well-known Los Angeles...