RIVES, Circuit Judge:
This appeal is from judgments of conviction on counts one, four and five of a five-count indictment. Count one was directed against the defendant Hanna, and charged him with violating 18 U.S.C. § 1343 (wire fraud). Counts four and five were directed against both defendants, Hanna and Modell, and charged them with violating 18 U.S.C. § 1084 (wagering by wire) and § 1952 (using the telephone in interstate commerce to promote an unlawful activity). The defendants were convicted as charged in the three counts, and each was sentenced to six months' imprisonment followed by five years' probation. Hanna was also fined ten thousand dollars. The sentences were to run concurrently.
There was no dispute about the facts, and we adopt (with the exception noted in footnotes 1, 2 & 3, infra) the statement contained in the Government's brief:
"In the twenty-seven day period from November 24, 1965, to December 21, 1965 over 500 telephone calls were placed from defendant Hanna\'s phone to a distant information operator (e. g. 1-area code-555-1212) (R. 35). This was discovered during an investigation of Hanna\'s phone conducted solely by the American Telegraph and Telephone (sic) Company and its subsidiary, Southern Bell Telegraph and Telephone (sic) Company. Hanna\'s phone had become the focus of an investigation by the telephone company after an official of the company in New York detected an unusual condition on Miami phone number 945-9723. He notified Gerard Doyle, Security Manager of Southern Bell Telegraph and Telephone (sic) Company, of this unusual condition and that the condition indicated that in all likelihood a device known as a `blue box\'1 was being
"1. A `blue box\' is technically known as a multi-frequency signal generator. It enables a caller to by-pass the toll equipment of the telephone company and complete long distance calls without any record of the call being made. Thus, the caller avoids being billed for all calls placed while using a `blue box\'. (R. 35, 295).
"To operate a `blue box\' a person dials any number through his regular telephone which would provide access to the toll network (e. g. 1-area code-555-1212). Once this connection is established he is able to disconnect the number he has called by inducing on the line a 2600 cycle tone from his `blue box\'. Then by pushing buttons on his `blue box\' he is able to send sounds into the toll network corresponding to the sounds assigned to the digits in the called number and reach any number he desires without any reflection on his bill other than the original free call (R. 35, 36, 69).
used on the line. (R. 34, 295). Doyle investigates toll frauds for the telephone company. Doyle knew from experience that bookmakers use these devices. (R. 40-42, 295). So when he discovered that 945-9723 was subscribed to by Kenneth Hanna, whom Doyle knew to be a local bookmaker (R. 40, 295), he instructed company engineer, Ray Fowler, to determine if the unusual condition was a `blue box\'. On November 24, 1965 Fowler attached a piece of electronic equipment to Hanna\'s line capable of sensing a 2600 cycle tone originating at the subscriber\'s telephone. (R. 42).2 It was attached
"2. Normally the 2600 cycle tone originates from a toll office within the long distance network and is not found on a subscriber\'s line. (R. 42). If a 2600 cycle tone does appear on the subscriber\'s line fairly often, it is a highly unusual situation suggesting that a `blue box\' is being used. (R. 44, 81). This is because a `blue box\' emits a 2600 cycle tone and although a 2600 cycle tone is within the upper reaches of the audible range (e. g. a high pitched scream) the frequent appearance of such a tone on the subscriber\'s line is very unlikely. (R. 64, 83).
to Hanna\'s line before the line reached the toll network. (R. 66). Each time the detection unit sensed a 2600 cycle tone it activated a `peg counter meter\' which is simply a counting device for totalling the number of times a 2600 cycle tone is perceived by the detection unit. (R. 42, 80, 41).
"That night Fowler called Doyle and indicated that the counter was registering. (R. 43). Doyle then advised him to put a tape recorder on Hanna\'s line to record the sounds made by the `blue box\'. (R. 43, 80, 82). The tape recorder was unattended and was set to cut off automatically 35-45 seconds after being activated by the 2600 cycle tone on the subscriber\'s line. (R. 43, 44).3 Fowler was certain that a `blue
"3. The placing of a recorder on the line was necessary to determine whether the telephone company was being defrauded. This is because although the appearance of a 2600 cycle tone on subscriber\'s line is unusual it is nonetheless possible that a high pitched scream could approximate 2600 cycles. (R. 64). Only by having a tape recorder on the line could the company determine the source of any 2600 cycle tone appearing on Hanna\'s line. (R. 81-83). Because the company\'s only interest was in toll fraud it was concerned with establishing two items: first, that the 2600 cycle tone on Hanna\'s line originated from his line by a `blue box\' and, second, a connection was completed. (R. 43, 44). Thus the tape recorder operated only for 35-45 seconds on each call. Naturally, the tape was made to preserve the evidence of fraud.1
box\' was being used and notified Doyle. (R. 45, 46, 83, 84). The detection unit, counter and unattended recorder remained on Hanna\'s line sporadically for twenty-three of the next twenty-six days until on December 21, 1965, Doyle received a subpoena directing him to produce all the recordings before a Federal Grand Jury in Philadelphia, Pa. (R. 46-49, 296). He appeared the following day and turned the tapes over to the Grand Jury. (R. 57). This is the first time anyone in the Federal Government had knowledge that Hanna\'s line was being monitored. (R. 50).2 Attorneys for the United States Department of Justice handling the Philadelphia Grand Jury turned the tapes over to the Federal Bureau of Investigation. The tapes were in turn given to Special Agent William Heist in Miami who contacted Doyle on December 30, 1965. (R. 61). This is the first time Doyle was ever contacted by an agent of the Federal Government relating to this matter (R. 50, 51, 61, 94) and he never did tell anyone outside the Grand Jury what was on the tapes. (R. 57)."3
"Based on the conversations contained in the tapes, Heist and Special Agent Maurice Roussell obtained a search warrant for Hanna\'s home and an arrest warrant for his person. (R. 91). Heist also determined that defendant Modell was one of the people called by Hanna in New York City. (R. 87, 92, 160). Because the conversations between Hanna and Modell revealed they were engaged in the use of interstate facilities in aid of bookmaking, as they later admitted by stipulation, arrest and search warrants were also issued against defendant Modell and his apartment. On January 8, 1966, agents of the Federal Bureau of Investigation executed the warrants and bookmaking paraphernalia was seized at both places. The `blue box\' was seized at Hanna\'s residence. (R. 100)."
We adopt also the further statement contained in the brief for appellants:
"* * * The tape recordings and gambling paraphernalia constituted all the evidence against the defendants in the instant case (R. 294).
"The defendants filed a pre-trial motion to suppress the tape recordings, bookmaking, paraphernalia and the `blue box\' on the ground that they were obtained in violation of 47 U.S.C. § 605, and the Fourth Amendment to the United States Constitution (R. 178-179.) The lower court denied the motion and filed a written opinion which is now recorded at 260 F.Supp. 430 (S.D.Fla.1966) (R. 292-293, 294, 306). The lower court adjudged the defendants guilty based on the evidence sought to be suppressed in this case (R. 314-315).
"The defendant Hanna moved to dismiss the first count of the indictment on the ground that it failed to state an offense under 18 U.S.C. § 1343 (R. 227-228). The lower court denied the motion (R. 293)."
In accordance with Fifth Circuit Rule 24-2(b), the appellants filed the following:
"SPECIFICATION OF ERRORS RELIED UPON
"I
"THE LOWER COURT ERRED IN DENYING THE DEFENDANTS\' MOTION TO SUPPRESS (a) THE TAPE RECORDING OF THE DEFENDANTS\' MONITORED TELEPHONE CONVERSATIONS AND (b) GAMBLING PARAPHERNALIA FOUND IN CONSEQUENCE THEREOF, ON THE GROUND THAT THE EVIDENCE WAS SECURED IN VIOLATION OF 47 U.S. C. § 605.
"II
"THE LOWER COURT ERRED IN DENYING THE DEFENDANT HANNA\'S MOTION TO DISMISS COUNT ONE OF THE INDICTMENT ON THE GROUND THAT SAID COUNT OF THE INDICTMENT FAILED TO STATE A CRIME UNDER 18 U.S.C. § 1343."
The second specification may be disposed of summarily. If the first specification is sustained, both judgments of conviction must be reversed entirely. If the first specification is not sustained, the judgments must be affirmed. Since the sentences were to run concurrently, it is not necessary to consider questions raised with respect to any one count.4
Thus our consideration is limited to the question of whether the defendants' motion to suppress the tape recordings, bookmaking paraphernalia and the "blue box" should have been sustained because they were obtained in violation of 47 U.S.C. § 605.5 That question may be further limited to: "Was the evidence obtained as a result of violating 47 U.S. C. § 605?"6
Four other district courts have held that similar evidence...
