U.S. v. Phillips
| Citation | 540 F.2d 319 |
| Decision Date | 26 July 1976 |
| Docket Number | No. 75-1413,75-1413 |
| Parties | UNITED STATES of America, Appellee, v. William Fred PHILLIPS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Michael De Feo, Sp. Atty., U. S. Dept. of Justice, Kansas City, Mo., for appellee; Bert C. Hurn, U. S. Atty., and Gary Cornwell, Sp. Atty., Organized Crime & Racketeering Section, Crim. Div., U. S. Dept. of Justice, Kansas City, Mo., on brief.
Joseph P. Jenkins, Estes Park, Colo., for appellant; Phillip L. Waisblum, Kansas City, Mo., on the brief.
Before GIBSON, Chief Judge, and LAY and ROSS, Circuit Judges.
William Fred Phillips appeals his conviction of perjury in violation of 18 U.S.C. § 1623. The case was submitted to a jury which returned a guilty verdict. We vacate the conviction and remand with directions for further proceedings.
Phillips was prosecuted for knowingly making material false statements before a grand jury convened in Kansas City, Missouri. The grand jury was convened in December 1971 to investigate a conspiracy involving certain persons engaged in organized crime from Kansas City and certain nightclub owners from northeastern Oklahoma. The objective of the conspiracy was to establish illegal gambling and prostitution activities in the Oklahoma nightclubs by offering bribes to local government officials in return for protection from the law.
One of the principals was Frank Grayson, an Oklahoma district attorney, who was providing protection for gambling at certain local clubs. Defendant Phillips, then a practicing attorney and Oklahoma state senator, was a close friend and political supporter of Grayson. Grayson testified before the grand jury that certain persons had told him that Phillips had stated that he could control Grayson with respect to illegal club operations. Specifically, Grayson testified that Charles Davis, owner of a major development named Shangri La Lodge, told him that Phillips stated he could arrange anything that Davis needed in the way of local protection.
In this context, Phillips was called before the grand jury on August 1, 1972. Defendant repeatedly denied that he had ever stated to anyone that he could arrange protection from local law enforcement officials. He specifically denied that he made any representations to persons affiliated with the Shangri La that he could control local law enforcement officials with respect to illegal gambling, liquor, narcotics or prostitution. 1
The critical evidence admitted at trial was a tape recorded meeting between Phillips Davis and George Overton, manager of the Shangri La. The conversation was recorded on July 7, 1971, at a time when Phillips was representing Davis and Overton before the Grand River Dam Authority regarding certain improvements of the Shangri La. The conversation was recorded by a private detective, not under color of law, at the instigation of Davis and Overton. Phillips was not aware that the conversation was recorded.
The apparent purpose of the July 7 meeting was to settle on a fee arrangement between Phillips and the Shangri La management. The purpose of recording the conversation is unknown.
During the course of the meeting, Phillips told Davis and Overton that illegal liquor and gambling operations could be run at the Shangri La on a limited basis. At one point, Phillips stated, "I can, I can control Frank(,)" in obvious reference to district attorney Grayson. At trial, the government's theory was that Phillips' statement was a representation that he could induce Grayson to provide protection for illegal operations at the Shangri La.
Before trial, defendant filed a supplemental motion to suppress the tape recording on the grounds that the conversation was recorded in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et. seq. Defendant also moved to suppress the tape recording on the grounds that he was not admonished of his Miranda rights before the grand jury. The motion was denied in all respects and the tape and its contents were admitted at trial.
The case was originally assigned to Judge Duncan who ruled on all pretrial motions and presided throughout the trial. At the conclusion of trial, defendant moved for a directed acquittal and a new trial. The motions were pending when Judge Duncan died on July 31, 1974. Judge Hunter was then assigned to the case. Pursuant to Fed.R.Crim.P. 25(b), Judge Hunter certified that he could fairly and adequately dispose of the post-trial motions. After reviewing the record, Judge Hunter denied defendant's motions for acquittal and a new trial.
Defendant alleges numerous points of error on this appeal. Because of the limited nature of our remand, we review all of these contentions.
Defendant's supplemental motion to suppress alleged that the conversation between himself, Davis and Overton was recorded for the purpose of committing a tortious act in violation of 18 U.S.C. § 2511(2)(d). No evidence was adduced before or during trial as to why Davis and Overton caused the conversation to be recorded. Defendant argues that the government held the ultimate burden of proving that the conversation was not recorded for any criminal, tortious or other injurious purpose, and, since no evidence was proffered in this regard, the tape should have been suppressed. While we hold that the ultimate burden rested with the defendant to show that the tape was "unlawfully" recorded, our review of the record convinces us that defendant was denied a meaningful opportunity to meet this burden. Accordingly, we vacate the judgment of conviction and remand for a hearing in order to afford the parties an opportunity to present evidence as to the purpose of the recording.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 sets forth a comprehensive legislative scheme regulating the interception of oral and wire communications. This legislation attempts to strike a delicate balance between the need to protect persons from unwarranted electronic surveillance and the preservation of law enforcement tools needed to fight organized crime. S.Rep. 90-1097, U.S.Code Cong. & Admin.News, pp. 2112, 2153-2158 (1968).
Section 2511(1)(a) generally prohibits the willful interception of any wire or oral communication. Section 2511(2)(d) provides an exception and subexception to the general rule. That section reads as follows It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act. (Emphasis supplied.)
This section was missing from Title III when the bill was first reported out of committee. S.Rep. 90-1097, U.S.Code Cong. & Admin.News, pp. 2112, 2182 (1968); Meredith v. Gavin, 446 F.2d 794, 798 (8th Cir. 1971). At the urging of Senators Hart and McClellan however, § 2511(2)(d) was added to the bill, 114 Cong.Rec. 14695 (May 28, 1968), " * * * to prohibit a one-party consent tap, (where the monitoring is conducted not under color of law,) except * * * for private persons who act in a defensive fashion." Id. at 14694. In the words of Senator Hart:
* * * (W)henever a private person acts in such situations with an unlawful motive, he will violate the criminal provisions of title III and will also be subject to a civil suit. Such one-party consent is also prohibited when the party acts in any way with an intent to injure the other party to the conversation in any other way. For example the secret consensual recording may be made for the purpose of blackmailing the other party, threatening him, or publicly embarrassing him. The provision would not, however, prohibit such activity when the party records information of criminal activity by the other party with the purpose of taking such information to the police as evidence. Nor does it prohibit such recording in other situations when the party acts out of legitimate desire to protect himself and his own conversations from later distortions or other unlawful or injurious uses by the other party.
Id. The effect of § 2511(2)(d), then, is to prohibit any interception, use or disclosure of oral or wire communications by a person not acting under color of law where the purpose is to commit any criminal, tortious or injurious act. Meredith v. Gavin, supra, 446 F.2d at 798. This determination must be made on a case-by-case basis. Id. at 799.
18 U.S.C. § 2515 imposes an evidentiary sanction to compel compliance with § 2511. That section provides that any oral communication intercepted in violation of the Act shall not be received in evidence in any judicial proceeding. 2 Section 2515 is not self-executing however. Section 2518(10) (a) provides that any aggrieved person may file a motion to suppress the contents of any unlawfully intercepted oral communication. This section " * * * provides the remedy for the right created by section 2515." S.Rep. 90-1097, U.S.Code Cong. And Admin.News, pp. 2112, 2195 (1968). Thus, as the government asserted at oral argument, whether the conversation was recorded for a permissible or impermissible purpose is a matter of suppression properly cognizable at a pretrial suppression hearing. Id.
Under traditional search and seizure law, "(t)he burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wire-tapping was unlawfully employed." Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307 (1939). Accord, Canaday...
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