U.S. v. Jones

• Decision Date: 30 September 1976
• Docket Number: No. 76-1189,76-1189
• Citation: 542 F.2d 661
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William Allan JONES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 661

542 F.2d 661

UNITED STATES of America, Plaintiff-Appellant, v. William Allan JONES, Defendant-Appellee.

No. 76-1189.

United States Court of Appeals, Sixth Circuit.

Argued June 23, 1976.

Decided Sept. 30, 1976.

John L. Bowers, Jr., U. S. Atty., Chattanooga, Tenn., W. Thomas Dillard, Hugh J. Moore, Jr., Ray H. Ledford, Chattanooga, Tenn., for plaintiff-appellant.

H. H. Gearinger, H. H. Gearinger and Associates, Chattanooga, Tenn., for defendant-appellee.

Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal by the Government from the dismissal of an indictment against William Allan Jones which charged him with intercepting telephone conversations of his estranged wife and using the contents of the intercepted communications in violation of 18 U.S.C. §§ 2511(1)(a) and (d) (1970). ¹ Relying principally on the decision of the Fifth Circuit in Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974), the District Court held that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 was not intended to reach interspousal wiretaps placed on telephones in the marital home. On appeal the Government argues 1.) that the District Court followed improper procedures in dismissing the indictment before trial, and 2.) that there is no statutory exception for interspousal wiretaps.

Prior to arraignment, Appellee filed a number of motions with the District Court including a motion for a bill of particulars and a motion to dismiss the indictment for failure to state an offense. At the arraignment before District Judge Frank W. Wilson, Appellee argued that his case fell within an implied statutory exception for interspousal wiretaps and offered to submit affidavits and exhibits. Appellee also offered to withdraw his request for a bill of particulars if the Government would stipulate to the ownership of the house where the tapped telephone was located and the name of the person to whom the telephone was registered. The District Judge granted the motion for a bill of particulars although he stated that the parties could file stipulations in lieu of the bill if they so agreed. He denied Appellee's motion to dismiss the indictment without prejudice indicating that the motion could be renewed at a later date on the basis of the bill of particulars and the affidavit.

In the bill of particulars the Government stated that the residence was owned by the grandmother of Appellee; that the telephone number was listed in Appellee's name; that Appellee and his wife separated in July of 1974 and had not lived together as man and wife after that date; that Appellee filed for divorce on September 25, 1974; that on October 7, 1974 his wife was granted a restraining order by the Chancery Court prohibiting Appellee from "coming about" her; that on January 20, 1975 the divorce decree was granted; and that on one or more occasions Appellee had intercepted his wife's telephone conversations outside the curtilage of the residence. Appellee submitted an affidavit with exhibits attached wherein he stated that he paid the rent on the premises and the telephone bills during the period in question; that he and his wife continued a sexual relationship even though he had moved out of the house in late July of 1974; that he returned to the house on occasion to babysit; that on October 18, 1974 while babysitting he became suspicious that his wife was involved in an extramarital affair and placed a recording device on the telephone; that the recordings of the intercepted telephone calls confirmed his suspicions; and that he used the recordings to obtain a divorce. On December 3, 1975, District Judge Bailey Brown, sitting by designation, ruled on the basis of the proffered materials that Appellee's conduct fell within an implied exception to 18 U.S.C. § 2511(1)(a) for purely interspousal wiretaps placed on telephones within the marital home and he dismissed all counts of the indictment. ²

The Government contends that the District Court erroneously considered factual allegations in the bill of particulars and Appellee's affidavit in ruling on the motion to dismiss. They cite a number of older cases which hold that a court may not look beyond the face of an indictment in ruling on a motion to dismiss. See Las Vegas Merchant Plumbers Ass'n v. United States, 210 F.2d 732, 741 (9th Cir. 1954); United States v. Westbrook, 114 F.Supp.192, 199 (W.D.Ark.1953); United States v. Quinn, 116 F.Supp. 802, 803 (E.D.N.Y.1953). The Government also charges that it was error to order it to submit a bill of particulars when the indictment was sufficient on its face to apprise Appellee of the charges against him. See United States v. Perez, 489 F.2d 51, 71 (5th Cir. 1973); United States v. Marks, 364 F.Supp. 1022, 1030 (E.D.Ky.1973).

Rule 12 of the Federal Rules of Criminal Procedure, as recently amended, ³ states:

(b) Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.

(e) Ruling on Motion. A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a party's right to appeal is adversely affected. Where factual issues are involved in determining a motion, the court shall state its essential findings on the record.

The rule was written to encourage the making of motions prior to trial. See Notes of the Advisory Committee to the 1975 Amendments to Fed.R.Crim.P. 12, reprinted in 8 J. Moore, Federal Practice P 12.01(3) at 12-7, 8 (2d ed. 1976) (hereinafter Moore). District courts are directed to dispose of all motions before trial if they are capable of determination without trial of the general issue. ⁴ Fed.R.Crim.P. 12(b). Generally, motions are capable of determination before trial if they raise questions of law rather than fact. See United States v. Miller, 491 F.2d 638, 647 (5th Cir. 1974). However, Rules 12(e) and (g) clearly envision that a district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motion so long as the court's findings on the motion do not invade the province of the ultimate finder of fact. ⁵ See Moore P 12.04 at 12-24, 25. Thus, a defense is " 'capable of determination' if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969).

The District Court was justified in deciding Appellee's motion to dismiss the indictment before trial, because it raised the legal question of whether 18 U.S.C. § 2511(1)(a) was intended to apply to interspousal wiretaps. His motion was one in bar for purposes of the motion he admitted the offense, interception of another's wire communication, but argued the existence of a statutory exception for interspousal wiretaps which immunized him from prosecution. ⁶ See United States v. Dorneau, 491 F.2d 473, 478 (2d Cir. 1974). The facts surrounding the alleged offense were virtually undisputed and trial of the substantive charges would not substantially assist the Court in deciding the legal issue raised by the motion to dismiss the indictment. The District Court was not limited to the face of the indictment in ruling on the motion to dismiss. See e. g., United States v. Seeley, 301 F.Supp. 811 (D.R.I.1969). Rule 12 vests the Court with authority "to determine issues of fact in such manner as the court deems appropriate." Notes of the Advisory Committee to Fed.R.Crim.P. 12, reprinted in 8 Moore P 12.01(3) at 12-8. Appellee in his affidavit did not contradict the essential allegations in the indictment and the bill of particulars so the Court properly considered it in ruling on the motion. ⁷ See Fed.R.Crim.P 47. See also 8 Moore P 12.04 at 12-26. The Court also was within its authority in ordering the Government to submit a bill of particulars to supplement the allegations in the indictment so that it could determine whether there was a factual basis for ruling on the motion to dismiss the indictment. Cf. 8 Moore P 7.06(2) at 7-35. Under the circumstances, the issue of whether Appellee was exempt from prosecution under 18 U.S.C. § 2511(1) (a) was capable of determination prior to trial and was properly raised by a motion to dismiss the indictment. See Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442, 453-54 & n. 11 (1970).

We now turn to the basic contention of Appellee that he was exempt from prosecution under 18 U.S.C. § 2511(1)(a). The language of 18 U.S.C. § 2511(1) (a) and (d) is straightforward and comprehensive:

(1) Except as otherwise specifically provided in this chapter any person who

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;

(d) willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection;

shall be fined not more than $10,000 or imprisoned not more than five years, or both.

As the Supreme Court stated in United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), "(t)he purpose of the legislation . . . was effectively to prohibit . . . all interceptions of oral and wire communications, except those specifically provided for in the Act . . . ." Despite the unambiguous language of the statute, the District Court chose to follow the Fifth Circuit's holding in Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974), that this section was not intended to prohibit purely interspousal wiretaps placed on telephones in the marital home. Because we i...