U.S. v. Frankenthal

• Decision Date: 15 August 1978
• Docket Number: No. 77-1781,77-1781
• Citation: 582 F.2d 1102
• Parties: 3 Fed. R. Evid. Serv. 1461 UNITED STATES of America, Plaintiff-Appellee, v. Betty FRANKENTHAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1102

582 F.2d 1102

3 Fed. R. Evid. Serv. 1461

UNITED STATES of America, Plaintiff-Appellee, v. Betty FRANKENTHAL, Defendant-Appellant.

No. 77-1781.

United States Court of Appeals, Seventh Circuit.

Argued March 3, 1978.

Decided August 15, 1978.

Franklyn M. Gimbel, Milwaukee, Wis., for defendant-appellant.

John A. Nelson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before PELL and WOOD, Circuit Judges, and FLAUM, District Judge. ^*

PELL, Circuit Judge.

Defendant-appellant Betty Frankenthal was charged in the first count of a five-count indictment with conspiring to intercept, to endeavor to intercept, and to procure other persons to intercept wire communications and, by means of electronic devices, oral communications, in violation of 18 U.S.C. §§ 371, 2511(1)(a), 2511(1)(b)(iv)(A). Her co-conspirators were alleged to be her deceased father, Siegfried Frankenthal, and a private investigator hired by the Frankenthals, Jerome Leonard. The second, third, and fourth counts of the indictment charged her with endeavoring to use and procuring others to use electronic devices to intercept oral communications at three commercial establishments which were in competition with the Frankenthal family business. Count V charged appellant with intercepting, endeavoring to intercept, and procuring another person to intercept wire communications at one of the meat-packing plants in the family business. A jury convicted appellant on all counts, the district court sentenced her to two years of probation, and fined her $3,000 for each count, and this appeal followed.

Our disposition of the issues presented to us requires no extensive statement of the facts proved at trial. It suffices to state that the evidence tended to prove that Siegfried Frankenthal felt, in the fall of 1976, that certain of his competitors, with the possible aid of some of his employees, were conspiring to ruin his business by spreading rumors about his health. At his direction appellant communicated with Jerome Leonard, an investigator previously used by the Frankenthals, and arranged a meeting. The Frankenthals knew Leonard had been convicted of illegal wiretapping. At the first meeting, at which appellant was present, her father proposed electronic surveillance. Leonard replied that that was illegal, and the discussion proceeded into consideration of possible physical surveillance. After receiving a large retainer, Leonard approached a fellow investigator, one Layman, and proposed using electronic surveillance on the job. He returned to the Frankenthals and told them he would use wall taps to monitor conversations in the competitors' plants, at which point Mr. Frankenthal again proposed recording the conversations overheard. Layman subsequently approached the Federal Bureau of Investigation and told them what he knew, and it was agreed that Layman would continue to "cooperate" with Leonard. The F.B.I. subsequently arranged for the consented taping of staged conversations at the competitors' plants. These tapes were given to Leonard, and by him to the Frankenthals. In various telephone calls between appellant and Leonard, instructions on continuation of the monitoring were given. Appellant also worked with and instructed another person obtained by Leonard in eavesdropping on and recording various telephone calls made by Frankenthal employees from a Frankenthal plant.

Four arguments are made on appeal, three of which may be disposed of summarily. First, appellant says, quite accurately, that wilfulness was an element of all the charges against her, and she argues that there was insufficient evidence to prove it. However, if substantial evidence, taking the view most favorable to the Government, supports a criminal conviction, an appellate court may not reverse it. Glasser v. United States,315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). We have reviewed the record, and are convinced that substantial evidence supports the jury's conclusion that appellant acted wilfully. Second, and relatedly, appellant suggests that the evidence raises a reasonable doubt that she may have been entrapped into committing the offenses. The jury was appropriately instructed, however, and its apparent rejection of the entrapment theory is adequately supported by the evidence.

Appellant's third claim of error arises from the district court's instruction at the close of the Government's case that statements and acts of alleged co-conspirator Leonard, which had earlier been preliminarily admitted, were then admissible, and that the jury could consider the statements and acts along with the other evidence in the case. Frankenthal argues that additional instructions were necessary to protect her right to a fair trial, namely that the Leonard evidence was only admissible as to the conspiracy count and that it could not be considered against appellant at all unless and until the jury found by independent evidence that she knowingly entered the conspiracy. The latter instruction was, in fact, given at the close of all the evidence. In United States v. Papia, 560 F.2d 827 (7th Cir. 1977), this court rejected identical objections to a virtually identical midtrial instruction. We adhere to the views announced therein.

Appellant's primary assertion of reversible error stems from cross-examination of a defense witness about an ex parte meeting he held with United States District Judge Myron Gordon, and from rebuttal testimony given, under subpoena, by Judge Gordon himself. The background facts were as follows: Attorney Bernard Berk was a long-time family friend of the Frankenthals and served Siegfried Frankenthal as his lawyer. He was called by the defense to testify that, in 1975, he had given an oral legal opinion to Mr. Frankenthal that to monitor the telephone conversations of employees of the Frankenthal business would not be unlawful. If true, and if credited, this testimony might have established a defense at least to Count V of the indictment, because appellant testified that she was aware of the opinion and a good faith mistake as to the legality of monitoring employee conversations could have negated the wilfulness requisite to conviction on the count.

On cross-examination, the Government attempted to indicate that Berk's testimony was false. To make this point, Government counsel elicited admissions that Berk had never consulted with law enforcement officials on the subject of his legal opinion, and that he could not remember any of the authorities on which he relied in forming the opinion. The fact that Berk had been a close and long-time friend of the Frankenthal family had been brought out on direct examination, so there was no need to reestablish it on cross-examination. The Government also sought to demonstrate that Berk had a direct stake in the outcome of the litigation. ¹ At Mr. Frankenthal's death, Berk had become the president and chief executive officer of the Frankenthal family business, and Government counsel asked whether it was not true that in that capacity Berk had "a great deal riding on the outcome of this proceeding." Berk denied this, and also denied ever having told anyone that the business had a great deal riding on the proceeding.

Government counsel then proceeded into the area of an ex parte meeting between Berk and District Judge Myron Gordon on May 26, 1977. Judge Gordon was then the judge assigned to preside over the trial of this cause, which had been set for June 20, 1977. The purpose of Berk's requested meeting with Judge Gordon was to urge the judge to postpone the trial date. ² Berk explained that he was the president of the Frankenthal business, which had over 1800 employees, that delicate negotiations were underway for the sale of the business, and that the immediate trial of the instant case could jeopardize the negotiations, imperil the companies' financial health, and risk the jobs of all the employees. According to Berk's testimony, he went no further with Judge Gordon. Berk was quite adamant that he had never said, because it was not true, that he had any special concern for the Outcome of the trial. His only concern was the Timing of the trial. Berk was shown a letter written to counsel for the parties by Judge Gordon, which summarized his meeting with Berk and announced his recusal from the case, and which expressly stated that Berk had said a trial And conviction of Betty Frankenthal would jeopardize the companies of which Berk was president. Berk denied the accuracy of the reference to conviction. The letter was not read to the jury.

Thereafter, the Government called Judge Gordon to the stand. His testimony, which is transcribed as a mere five pages, was a short summary of the Berk meeting, including Berk's statement that "if there should be a conviction," the companies and the employees would suffer financially. On cross-examination, Judge Gordon testified that neither Betty Frankenthal nor her defense counsel had ever engaged in any improper contacts with him. Berk had earlier testified that his visit to the judge was personally inspired, and without the knowledge or approval of appellant or her counsel.

The facts just discussed establish beyond peradventure that evidence of Berk's meeting with Judge Gordon could tend to establish that Berk had bias and an interest in the outcome of the litigation. According to Judge Gordon's version of the meeting, Berk admitted as much to him. To say this much is to come a long way towards affirming appellant's conviction. For "(t)he partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970)." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Because of the importance of evidence of bias or interest, inquiry into the area is never collateral, and a witness' denial of the...