U.S. v. Harvey

• Decision Date: 24 August 1976
• Docket Number: No. 75-1846,75-1846
• Citation: 540 F.2d 1345
• Parties: UNITED STATES of America, Appellee, v. James A. HARVEY, a/k/a Ray Stewart, a/k/a Joseph R. Stewart, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1345

540 F.2d 1345

UNITED STATES of America, Appellee, v. James A. HARVEY, a/k/a Ray Stewart, a/k/a Joseph R. Stewart Appellant.

No. 75-1846.

United States Court of Appeals Eighth Circuit.

Submitted April 14, 1976.

Decided Aug. 24, 1976.

R. David Lewis, Little Rock, Ark., for appellant.

Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dillahunty, U. S. Atty., Little Rock, Ark., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

James Allen Harvey appeals from his conviction by jury of violation of the Wire Fraud Act, 18 U.S.C. § 1343, by use of a device sometimes known as a "blue box". Such a device circumvents the billing system of telephonic communication carriers and allows a caller to place long distance calls without charge. To utilize a "blue box" device, a caller first completes a long distance call to a toll free telephone number. The device is then operated to emit a 2600 cycle tone which disconnects the completed call and clears the line. The caller may then place a call to any telephone number without being detected by the billing system by operating the "blue box" to emit multifrequency tones of the type otherwise used by the communication carrier.

On appeal, Harvey contends (1) that evidence seized in his home should have been suppressed as the fruits of an illegal wire interception; (2) that certain of the evidence seized should have been suppressed as not properly described in the search warrant; (3) that the District Court erred in reading the indictment as a part of the instructions; and (4) that the District Court erred in denying the post-trial motions based on newly discovered evidence of perjury by a government witness and suppression of evidence by government counsel. We affirm the judgment of conviction.

The principal focus of the appeal is upon the detection procedures employed by telephone company employees and the subsequent investigative efforts of the Federal Bureau of Investigation, an understanding of which requires a more detailed recitation of the facts.

On July 11, 1974, James Handloser, the Security Manager for Southwestern Bell Telephone Company in Little Rock, Arkansas, determined from a computer analysis of lengthy long distance telephone calls to toll free numbers that a "blue box" device might be operating from the telephone number of James Harvey. A Hekimian Dial Number Recorder, which is a paper-tape recording device, was attached to Harvey's telephone line on August 1, 1974, in order to detect any "blue box" activity emitting from his transceiver. The Hekimian tape printed information on all outgoing calls, including the time the transceiver was lifted off the hook and the number dialed, as well as indicating the emission of a 2600 cycle tone and the numbers represented by the multi-frequency tones used to make a second long distance call.

On August 2, 1974, the Hekimian device detected 2600 cycle tones but failed to print properly the numbers called immediately after the emission of the tones. The failure of the Hekimian device to print the numbers was apparently the result of the poor quality of the multifrequency tones emitted by the "blue box". Handloser then determined that a voice tape recorder should also be attached to Harvey's line, and this was accomplished on August 5. The tape recorder was attached to the line on an "off-hook" basis, so that recording was automatically activated at the instant the transceiver was lifted from its cradle, thus capturing the multifrequency dialing tones, which revealed the number called as well as the opening salutations between the parties to the call. The tape recorder was usually programmed to record the contents of the first two minutes of each incoming and outgoing call, although at times the use of a one minute recording time was attempted.

On each weekday during the entire period of the wire interception, Southwestern Bell Security Representative Robert Hubble inspected the Hekimian paper tape. If the paper tape did not indicate the emission of a 2600 cycle tone on Harvey's line, it would be immediately destroyed. The voice recordings for the day would then be erased by Hubble without anyone listening to their contents. If the paper tape indicated the emission of a 2600 cycle tone, Hubble would retain the paper tape, and only the voice recording of the call following the 2600 cycle tone would be audited by Hubble in an attempt to identify the parties involved in the conversation. The remaining portions of the voice recording would be erased.

On August 18, the Hekimian device again noted the emission of a 2600 cycle tone but failed to designate the number dialed immediately thereafter. Examination of the voice recording of this call by Hubble revealed that the caller was addressed in the salutation as "Roland". In the conversation, a male voice identified by the caller only as "Dad" indicated an interest in tennis. Hubble checked the current newspapers and discovered a father-son tennis tournament was to be played on August 19 at the Little Rock Country Club. From an inquiry with the Arkansas Tennis Patrons Association, Hubble learned that a Rollin Caristianos and his father were to play in the tournament. Rollin Caristianos had given the tennis association an address and telephone number identical to those of the residence of James Harvey. ¹

Surveillance continued on the Harvey line, and "blue box" calls were again recorded by the Hekimian device on August 25, September 4, and September 16. On August 25, during a weekend, the voice recorder ran out of tape and thus failed to produce a recording. On September 4, a one-minute voice recording disclosed only the name "Roland" as that of the caller. On September 16, however, the voice recording produced significant results. The caller, though not identified by name, was clearly not "Roland". The called party was identified when the recipient stated "Good afternoon, Memorex" and the caller asked for an extension belonging to a person named "Elaine". Handloser listened to this tape and thereafter called several Memorex listings to determine whether one had an identical extension number belonging to a person named Elaine. The recipient of the call was in this way identified as Elaine Vetter, who worked at a Memorex office in Los Angeles, California. ² On the following day, September 17, 1974, Handloser contacted the Federal Bureau of Investigation for the first time in regard to the investigation of Harvey. On September 18, another "blue box" call was recorded and the caller was again identified in the salutation as "Roland".

Handloser terminated the monitoring of Harvey's telephone by the Hekimian device and voice recorder on September 19 after being informed by the FBI that a search warrant would be executed. That day, FBI Special Agent Robert Matthews obtained a warrant for the search of Harvey's residence which described the subject of the search as a "blue box", stating that it was "an electronic device that allows a caller to make long distance phone calls without them being recorded for billing by the telephone company". The affidavit for the search warrant by Agent Matthews stated in part that "(a) blue box has approximately 13 buttons or switches which emit tones that cause the telephone switching network to react as it would to dialed long distance calls".

Agent Matthews and three other special agents, including Edward Holt, who had received special training in electronics, executed the search warrant in the presence of Harvey at approximately 5:00 p. m. the same day. Four telephones, two of them unconnected, were found in the residence. The agents discovered and seized a plastic device with a phone jack on one side and a toggle switch on the other, which they believed to be a "black box". ³ The search did not, however, disclose a mechanical device of the physical composition described in Agent Matthew's affidavit. Agents Matthews and Holt were aware that a tape recording could effectively replicate the 2600 cycle and multifrequency tones emitted by a "blue box". Holt discovered a substantial number of cassette tapes in Harvey's office and, ignoring those which were plainly commercial or blank tapes, proceeded to play tapes on one of the many tape machines present on the premises. After approximately a dozen of the tapes were played, three were seized, two of them as components of a "blue box" operation. One of these tapes contained an ordered series of the multifrequency tones used by Southwestern Bell equipment to complete long distance calls. The second was later analyzed by the FBI and found to contain a multifrequency tone sequence which, played after the emission of a 2600 cycle tone, would enable completion of a toll free call to a particular number.

Several pretrial motions were submitted by Harvey, generally seeking to suppress the use in evidence of (1) the cassette tapes and the "black box" device seized at his residence, as the subjects of an illegal search and seizure; and (2) these objects as well as the testimony of Caristianos and Vetter, as the fruits of an illegal wire interception by Southwestern Bell. These motions were denied by the District Court. ⁴ United States v. Harvey, 394 F.Supp. 228 (E.D.Ark.1975). Following conviction by a jury, Harvey filed motions for new trial, a rehearing on the motions to suppress, and a continuance of sentencing. These motions were also denied, and the District Court ⁵ proceeded to sentence Harvey to two years imprisonment with all but two weeks suspended.

I.

18 U.S.C. § 2511(1) prohibits the willful interception and disclosure of wire or oral communication by communication carriers, unless such action is justifiable under 18 U.S.C. § 2511(2), subsection (a)(i) of which provides It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of...