U.S. v. Axselle, 78-1213

• Citation: 604 F.2d 1330
• Decision Date: 31 March 1977
• Docket Number: No. 78-1213,78-1213
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry AXSELLE, Defendant-Appellant. . Paul M. Dent, Kansas City, Kan., for defendant-appellant. Douglas B. Comer, Asst. U. S. Atty., Kansas City, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on brief), for plaintiff-appellee. Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges. HOLLOWAY, Circuit Judge. Defendant-appellant Jerry Axselle was convicted on a jury verdict of conspiring to distribute a Schedule I non-narcotic controlled substance, marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846, and 18 U.S.C. Sec. 2. Defendant was sentenced to a term of imprisonment for three years and a special parole term of 2 years, 1 and he appeals. The issues raised on appeal require some review of the evidence. I Outline of the evidence The Government's evidence tended to show that a co-defendant, Herbert Claiborne, 2 checked into a motel in Abilene, Kansas on
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1330

604 F.2d 1330

UNITED STATES of America, Plaintiff-Appellee, v. Jerry AXSELLE, Defendant-Appellant.

No. 78-1213.

United States Court of Appeals, Tenth Circuit.

Paul M. Dent, Kansas City, Kan., for defendant-appellant.

Douglas B. Comer, Asst. U. S. Atty., Kansas City, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., on brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Jerry Axselle was convicted on a jury verdict of conspiring to distribute a Schedule I non-narcotic controlled substance, marijuana, in violation of 21 U.S.C. Sec. 841(a)(1), 21 U.S.C. Sec. 846, and 18 U.S.C. Sec. 2. Defendant was sentenced to a term of imprisonment for three years and a special parole term of 2 years, ¹ and he appeals. The issues raised on appeal require some review of the evidence.

I

Outline of the evidence

The Government's evidence tended to show that a co-defendant, Herbert Claiborne, ² checked into a motel in Abilene, Kansas on March 31, 1977, after having his car towed to a local garage for repair work. While at the motel Claiborne received a telephone call from an unknown party. In connecting the call, the motel switchboard operator overheard the caller ask Claiborne whether he had let anyone near the trunk of Claiborne's car. Claiborne answered negatively and the caller began talking about the "stuff" they had, saying it was the "best stuff they had had for a long time," and that there was a lot of money involved. (III R. 33-34). The switchboard operator continued to listen to the conversation for some 3-5 minutes. (II R. 35, III R. 37). She heard the parties talk about Claiborne's car troubles and the fact that Claiborne told the repairman that he needed two new tires because "the county mounties hung around the gas station and he didn't want attention drawn to his car with the bad tires he had." (III R. 34).

The caller agreed to send money to Claiborne by Western Union to pay for the car repairs. After getting off the phone the operator, Mrs. Padgett, reported the conversation to Mr. Priem, the motel owner. Mr. Priem later relayed the information to Sheriff McKenney of Dickinson County, Kansas who did some investigating on his own and reported the information to the Drug Enforcement Administration (DEA). Mr. Bramwell of the DEA received the information from Sheriff McKenney and relayed it to Mr. Comer of the U. S. Attorney's Office, who obtained a search warrant for Claiborne's car.

A search pursuant to the warrant produced approximately 100 pounds of marijuana in the trunk of the car. (III R. 58). Defendant was linked to Claiborne by money orders sent by him to Claiborne in Abilene (III R. 51-52), and by a phone call made from Claiborne to defendant after Claiborne's arrest and agreement to cooperate with the Government. (Id. at 93-96). This phone call was tape-recorded by the Government and the recording was used at trial.

Before trial defendant moved to suppress evidence of the phone call overheard by Mrs. Padgett, evidence obtained through the search warrant, and evidence, including the tape recording, of the telephone call made by Claiborne after his arrest. A pretrial hearing was held on the motion based on the first call overheard by the motel operator. By a written Memorandum and Order the court found the interception not unlawful and denied the motion. (I R. 7-15). The motion directed to the call made by Claiborne after his arrest was denied orally at trial, the court finding that there was consent by Claiborne to the recording of the call. (III R. 20-21).

Defendant's challenge to the rulings on suppression of evidence is his first argument for reversal.

II

The telephone call overheard by the motel switchboard operator

The defendant argues that Mrs. Padgett, the switchboard operator at Priem's Motel, illegally intercepted the contents of the telephone call from the defendant to Mr. Claiborne who was staying at the motel. (Brief of Appellant 6-16). Defendant says that because the interception and disclosure of this conversation constitutes a violation of 47 U.S.C. Sec. 605 ³ and 18 U.S.C. Sec. 2510 Et seq. ⁴, the testimony should have been suppressed. The Government responds that Mrs. Padgett's conduct comes within exceptions to these statutes, that it was not a violation of the statute, and thus the evidence was admissible. (Brief of Appellee 11-18).

The trial court agreed with the Government and overruled the motion to suppress. (I R. 13-14). The court found that the interception was inadvertent as opposed to willful and that in fact it was not an interception as defined by the statutes since the conversation was overheard during the use of the switchboard in the ordinary course of the motel's business. (I R. 14). ⁵ The defendant vigorously challenges these findings.

Title 18 U.S.C. Sec. 2515 provides that contents of communications obtained in violation of Sec. 2511 and any evidence derived therefrom cannot be received in evidence in any trial, hearing, or other court proceeding. Thus if the communication was obtained illegally its contents and all evidence derived from the telephone conversation must be suppressed. Our first inquiry must be whether the conversation is within the statute and whether Mrs. Padgett's conduct is prohibited by it.

The statute prohibits the interception of any wire or oral communication. The defendant characterizes the telephone conversation as a wire communication, (Brief of Appellant 7), while the Government describes it as an oral communication. (Brief of Appellee 12). The trial court characterized the conversation as an "electronic" communication. (I R. 14). While none of the parties focus on this point, it is important to correctly describe the communication since the rules imposed by the statute differ according to the type of communication involved.

Wire communications are defined in 18 U.S.C. Sec. 2510(1) as

any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.

An oral communication is defined in subsection (2) as

. . . any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.

It seems apparent that the restrictions differ depending on how the communication is characterized. If it is a wire communication, it is protected absolutely from illegal interception. But only those oral communications which are made under circumstances justifying an exception that they are not subject to interception are protected. We feel it clear that the telephone communication in question here was a wire communication within the meaning of the Act. United States v. Harpel, 493 F.2d 346 (10th Cir.); See United States v. Hall, 488 F.2d 193 (9th Cir.).

The main question we face concerns the trial court's finding that the interception of the call was an inadvertent overhearing of a telephone conversation by the motel clerk and not unlawful inasmuch as the statute requires that an interception be willful to be a violation. (I R. 14). See 18 U.S.C. Sec. 2511(1)(a). The events were described by Mrs. Padgett's testimony at the suppression hearing. She said that when a call came in through the switchboard she had to stay on the line to make sure the call was completed, that otherwise the phone could ring indefinitely, and that it was part of her duties to see that the call was connected and put through to the room. (II R. 29). On the night of March 31, 1977, she had the opportunity to connect a call into Mr. Claiborne's room. She described the call in detail, telling how, after he picked up the call and she started to unplug, she heard a remark to Claiborne asking if he had "let anybody near that trunk," which was "interesting," and that she had continued listening and had heard statements that this was the best "stuff" they'd had for a long time and other remarks causing her to conclude that drugs were being discussed by the parties. (II R. 33, 39). ⁶

The question raised is serious because of the length of time Ms. Padgett admits staying on the line up to five minutes. ⁷ See State v. Dwyer, 585 P.2d 900, 903 (Ariz.App.) (holding a 15-minute interception by an operator willful). We are also concerned about her remarks that the comments overheard were "interesting" and that they aroused her "curiosity." (II R. 31, 38).

Nevertheless, the question is whether the interception was done " willfully" within the meaning of 18 U.S.C. Sec. 2511(1)(a). The burden of proving that the interception was "willfully" done rested on the defendant as the party seeking to suppress the evidence. United States v. Phillips, 540 F.2d 319, 325 (8th Cir.), Cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611. Where such a motion to suppress is heard, the credibility of the witnesses, the weight to be given the evidence, and the drawing of inferences are for the trial judge. United States v. Donahue, 442 F.2d 1315, 1316 (10th Cir.). In view of the procedure followed at the motel we cannot say that overhearing the first remark must be held willful. And after hearing that opening remark, the listening which continued could be found not willful, as the trial court did. ⁸ We cannot agree that his findings here were clearly erroneous and thus they cannot be set aside. United States v. Miles,449 F.2d 1272, 1274 (10th Cir.). And we feel that the findings lead to a reasonable and proper conclusion that the interception of the call was not unlawful. State ex rel. Flournoy v. Wren, 108 Ariz. 356, 498 P.2d 444, 448; See United States v. Savage, 564 F.2d 728, 731-32 (5th Cir.). ⁹

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