Massicot v. United States, 16521.

• Decision Date: 08 May 1958
• Docket Number: No. 16521.,16521.
• Citation: 254 F.2d 58
• Parties: Sidney J. MASSICOT, Robert R. Lirette and James F. Donnelly, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F.2d 58 (1958)

Sidney J. MASSICOT, Robert R. Lirette and James F. Donnelly, Appellants, v. UNITED STATES of America, Appellee.

No. 16521.

United States Court of Appeals Fifth Circuit.

April 7, 1958.

Rehearing Denied May 8, 1958.

Richard Dowling, New Orleans, La., Guy Johnson, Racivitch, Johnson, Wegmann & Mouledoux, New Orleans, La., for appellants.

Jack C. Benjamin, Asst. U. S. Atty., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellee.

Before BORAH, TUTTLE, and CAMERON, Circuit Judges.

BORAH, Circuit Judge.

Appellants, Sidney J. Massicot, Robert R. Lirette, and James F. Donnelly, were tried, convicted, and sentenced on three counts of a five-count indictment charging them with certain violations of the Federal Communications Act, 47 U.S. C.A. §§ 605 and 501,¹ in that they did willfully and knowingly and without authority of the sender intercept and cause and suffer to be intercepted certain telephone communications by and between deLesseps S. Morrison and other named persons, and did divulge and publish and cause and suffer to be divulged and published to one or more persons the existence, contents, substance, purport, effect and meaning of the said telephone communications.

These separate and consolidated appeals from the judgments of conviction raise eight specifications of error. However, before considering these assignments, a brief statement setting forth the uncontroverted facts which were established at the trial would appear in order as background for the discussion and determination of whether there was error in respect to any of the matters complained of.

On January 17, 1956, the date of the Louisiana Democratic primary election, deLesseps S. Morrison, a candidate for governor, was at his home in the City of New Orleans. That evening, following the closing of the polls, he spoke over his residence telephone to several persons in the city, including his wife, David R. McGuire and Claude Kirkpatrick. One or two days thereafter, appellant Massicot, while in a New Orleans hotel suite then occupied by the successful gubernatorial candidate, Earl K. Long, played back in the presence of at least five persons a tape recording of the aforementioned telephone conversations.

On February 3, 1956, following an investigation by the city police and the telephone company, a wire-tap was found in the terminal box on the service pole in front of the Morrison residence. The tap consisted of a service wire leading into Apartment "G" of an apartment house which was directly across the street from the Morrison residence and it was so connected at the terminal box that calls transmitted or received on the Morrison telephone would be transmitted or received simultaneously on the wire serving the apartment, with the result that such conversations could be overheard by third persons by the use of a telephone or other listening device.

The evidence further shows that Massicot operated the United Detective Agency in the City of New Orleans, that Lirette was a full time employee of the agency, and that in April, 1955, Donnelly had been employed by the agency on a part-time basis. The identity of Massicot as the person who played back the tape recording was definitely established by the testimony of several of the witnesses there present. The owner of the apartment building identified Lirette as the man who, on January 14, 1956, under the name "Sirette" rented and thereafter occupied Apartment "G" for four consecutive nights. This witness further testified that during the period in question, she overheard a conversation between Lirette and another man in which one of them remarked that he was glad the other had brought a recorder. As to Donnelly, the evidence shows that he was employed by the telephone company from March 14, 1949 to May 1, 1956, as an installer-repairman, but that he was absent from duty during the period January 10 through January 22, 1956. In a statement which he made to agents of the Federal Bureau of Investigation, which was admitted over objection, Donnelly stated that he knew where the Morrison home was as he had previously worked there when there had been trouble with the telephone system; that he knew that Morrison's telephone lines ran directly to a pole in front of his house on which there was a cable terminal; that he climbed this pole and attached the pair of wires leading from Apartment "G" onto the terminal pair serving the Morrison residence telephone; and that thereafter he went into the apartment, checked the wires, and found that the tap was working. Donnelly further stated that prior to the day the tap was installed he made a headset consisting of one earphone with small alligator clips and a condenser, and that the headset was in Apartment "G".

This brings us to a consideration of appellants' specifications of error. Their principal contention, which is the subject matter of specifications Nos. 1 and 8,² is that the statute under which they were convicted is merely a rule of evidence and does not define a crime against the United States, and that in any event, as urged in their motion in arrest of judgment, Congress did not intend that the crime denounced by the statute should apply to intrastate communications. We find no merit in either of these assignments. In Rathbun v. United States, 355 U.S. 107, 111, 78 S.Ct. 161, 163, 2 L.Ed.2d 134, the Supreme Court had occasion to consider the second clause of the statute under which appellants were convicted, and in language which is destructive of appellants' contention that the statute does not define a crime, the Court pertinently said: "* * * Section 605 is penal in nature, the first violation being punishable by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both." See 47 U.S.C.A. § 501. And it is clear from the authorities that this clause of Section 605 applies both to intrastate and to interstate communications. Benanti v. United States, 355 U.S. 96, 104, 78 S.Ct. 155, 2 L.Ed.2d 126; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298; United States v. Gris, 2 Cir., 247 F.2d 860. As to appellants' motion in arrest of judgment, we think the trial court was clearly right in holding that it was without jurisdiction to entertain this motion for the reason that the motion was not made "within 5 days after determination of guilt" and no further time for filing the motion had been fixed by the Court during the five-day period. Rule 34, Federal Rules of Criminal Procedure, 18 U.S.C.A.;³ Drown v. United States, 9 Cir., 198 F.2d 999; Marion v. United States, 9 Cir., 171 F.2d 185, certiorari denied 337 U.S. 944, 69 S.Ct. 1500, 93 L.Ed. 1747.

Appellants' second and third specifications of error⁴ relate to the admissibility of the unsigned statement which appellant Donnelly made to agents of the F. B. I. Counsel first contends that in order to discharge its burden of showing that Donnelly's statement was free and voluntary, it was the Government's obligation to explain the absence of Donnelly's signature thereon and this it failed to do. It is further contended that the statement which was admitted in evidence over objection is not a correct account of what Donnelly told the agents, in that the original and concurrent memoranda made on the date of the conversation between Donnelly and the agents includes spontaneous utterances which were necessary to his defense and which, if included in the written statement, would have established his innocence. The exculpatory statements to which reference is made are that Donnelly "didn't know anything about the tap" on Morrison's telephone, and "didn't know of Sirette or Massicot putting the tap on Morrison." This argument is not at all persuasive. The record shows that Donnelly was questioned first on the afternoon of April 25, 1956, when he was met in a parking lot in the City of New Orleans by two special agents of the F. B. I. At the outset the agents told Donnelly of the nature of their mission and carefully explained to him that anything he said would have to be voluntary, that he was entitled to have an attorney present during the interview, and they advised him of the consequences of making false statements to an agency of the government. During the first ten or fifteen minutes of the interview Donnelly made the aforesaid exculpatory statements and denied knowledge of the wiretap installation. Then, on Donnelly's suggestion that they have a cup of coffee in order to give him time to "think it over", the three went to a nearby restaurant, and after talking baseball and other unrelated matters, Donnelly informed the agents that he was ready to talk about the case if they would return to the car. This they did, and it was then that Donnelly made the admissions which were included in the statement which was admitted in evidence. At the end of this initial interview, it was agreed that Donnelly would, on the following day, meet with the agents at their office in New Orleans. In accordance with this arrangement, on April 26th Donnelly appeared at the office of the F. B. I. alone, at which time and with his express consent the information he had given them on the previous day was reduced to the form of a written statement. Prior to the dictation of the statement, and upon being again fully advised as to his constitutional rights, Donnelly stated that he did not desire the presence of counsel. Whereupon, and in Donnelly's presence and with his participation, the statement was dictated by one of the agents from notes which he had made during the previous interview. The statement was immediately transcribed by an F. B. I. stenographer and was read by Donnelly who, while admitting that it was true, said he preferred not to sign it until he had an opportunity to show it to his attorney. He was then given a copy of the statement and it was agreed that after he consulted with his attorney he would communicate with the agents and...