United States v. Borgese

• Citation: 235 F. Supp. 286
• Parties: UNITED STATES of America v. Pasquale Vincent BORGESE et al., Defendants.
• Decision Date: 09 November 1964
• Court: U.S. District Court — Southern District of New York

235 F. Supp. 286

UNITED STATES of America v. Pasquale Vincent BORGESE et al., Defendants.

United States District Court S. D. New York.

November 9, 1964.

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Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, for the United States; Andrew J. Maloney and John R. Bartels, Asst. U. S. Attys., of counsel.

Edward Bennett Williams and Vincent J. Fuller, Washington, D. C., for defendant Pasquale Vincent Borgese.

WYATT, District Judge.

These are two motions, and two further motions in the alternative, for defendant Borgese, who is charged (along with three other defendants) in an indictment of 38 counts. Borgese is named in each of the counts.

The first count is for conspiracy (18 U.S.C. § 371) to violate 18 U.S.C. § 1084 ("transmission of wagering information") and 18 U.S.C. § 1952 (use of facility in interstate commerce "in aid of racketeering enterprises"). Counts 2 through 36 charge Borgese and one or another of the other defendants, or Borgese alone, with substantive violations of 18 U.S.C. § 1084 or 18 U.S.C. § 1952. Count 37 charges Borgese with failure to pay the special tax related to wagering (26 U.S.C. §§ 4401, 4411, 7262). Count 38 charges Borgese with failure to register in respect of his alleged wagering (26 U.S.C. §§ 4401, 4411, 4412, 7203, 7272).

The motions for Borgese are (A) under Fed.R.Crim.P. 41(e) for the return and suppression as evidence of certain property (including in this term transcripts of overheard conversations) and (B) under Fed.R.Crim.P. 12 (1) to dismiss all counts of the indictment because it was procured by evidence unlawfully obtained (2) to dismiss counts 1 through 36 on the ground that 18 U.S.C. §§ 1084 and 1952 are unconstitutional (3) to dismiss counts 7 through 10, 17 through 21, 28 through 30 and 34 through 36 on the ground that these counts do not set forth an offense, and (4) to dismiss count 38 for "duplicity" in that it is said to charge a violation of two separate provisions and further that compliance with such provisions would violate constitutional rights of defendant (this last motion has not been pressed).

The motions for Borgese in the alternative (that is, if the indictment be not dismissed) are (c) under Fed.R.Crim.P. 7(f) for a bill of particulars, and (D) under Fed.R.Crim.P. 16 for discovery and inspection.

A. Motion for return of property and to suppress evidence under Fed.R. Crim.P. 41(e)

1.

It is undisputed in the affidavits that for a period prior to the indictment government agents, by the use of scientific devices, overheard conversations of Borgese. A small radio transmitter was placed from time to time by the agents in various unoccupied public coin operated telephone booths. Thereafter Borgese, as expected by the agents, used these telephone booths to make telephone calls. His words were picked up by the device concealed in the booth and were by it transmitted through the air to a receiving device not far away, where agents overheard what Borgese said and recorded or made notes of it. The government represented in affidavits that only what Borgese said in the booth was overheard and not what was said by the other party or parties to the conversations.

The same technique was employed by the government agents to overhear and record conversations of Borgese in a public restaurant (in such instances the conversation of all parties present, as well as Borgese, was presumably overheard).

The present motion to suppress is based on the contention that the eavesdropping of the agents was in violation of 47 U.S.C. § 605 and of the rights of Borgese under the Fourth and Fifth Amendments.

So far as 47 U.S.C. § 605 is concerned, a violation would occur if by any sort of device, however placed with reference to the telephone, the agents overheard the telephone conversation (including the words of the other parties to the conversations with Borgese) and later divulged or used them. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937); United States v. Hill, 149 F. Supp. 83, 84-85 (S.D.N.Y.1957).

On application of defendant Borgese, the Court received evidence at a hearing on the issue whether the eavesdropping device employed by the agents was such that they could hear the telephone conversation (that is, what was said by all parties to it) or whether (as the government contended) the device picked up the words of Borgese, not from or through the telephone, but from the air inside the telephone booth.

The Court had this hearing on September 23, 1964, (at which defendant Price, having a similar motion, was also represented) to receive evidence as to the physical means employed by the government agents to overhear the conversations, especially whether both sides of the conversations were overheard or only the words of movant Borgese. All government agents involved in the particular surveillance testified. A further hearing was held on November 6, 1964 to permit further cross-examination (on the basis of material ordered under 18 U.S.C. § 3500 delivered to movant) of one of the agents. The testimony of the agents establishes that small radio transmitters (trade name "Kel" or "Fargo") were placed in public telephone booths while the booths were unoccupied; generally the devices were attached by magnetic attraction to the underside or one of the sides of the bell box under a shelf at the lower end of the telephone apparatus but sometimes were otherwise fastened to the bell box and on one occasion a device was placed in the lighting fixture in the top of the booth; that there was no entry into or interference with the telephone apparatus but only a use of an exterior wall thereof as a support for the transmitter; that the telephone company was not advised of the activities indicated and no specific consent was secured from it; that the telephone booths had doors which could be closed from the inside and that generally Borgese closed the door but occasionally left it open; that the transmitter could not transmit any part of the telephone conversation itself but could only transmit sounds from within the booth; that no part of the conversation of those to whom movant Borgese spoke was transmitted; that these sounds were transmitted by radio to a receiver operated by the agents a short distance away; that there were several types of portable receivers which could receive the transmitted words of Borgese within a range of 100 to 150 feet or about a third of a block; the receiver in the automobile of the agents could also receive the overheard words and its range was presumably greater but is not shown by the record; that the devices were left in the phone booths for less than 15 minutes except in one instance when it was left for two hours; that, while it was technically possible to overhear the words of anyone entering the booths where transmitters had been placed, no words were actually overheard from the booths except those of Borgese; that over 95% of the overheard words of Borgese related to the subject under investigation by the agents but some words of his were overheard which related to other matters; and that none of the overheard words of Borgese indicated that he was talking to his lawyer.

It must first be determined whether on the facts established there was a violation of 47 U.S.C. § 605.

The words of Borgese were picked up by the radio transmitter, not from the telephone, but from Borgese himself. It is the same — so far as the statute is concerned — as if the agents had stood outside the telephone booth and there heard Borgese's voice. Goldman v. United States, 316 U.S. 129, 133-134, 62 S.Ct. 993, 86 L.Ed. 1322 (1942). 47 U.S.C. § 605 makes it unlawful to "intercept" a telephone "communication". The decision in Goldman, above, was that overhearing words spoken into a telephone was not to "intercept" a "communication". The Court said (316 U.S. at 133, 62 S.Ct. at 995):

"Words spoken in a room in the presence of another into a telephone receiver do not constitute a communication by wire within the meaning of the section."

It seems reasonably clear that in the case at bar there was no violation of 47 U.S.C. § 605.

The contention is also made for movant Borgese that use of the radio transmitter to transmit the words of Borgese (a) required a license of the Federal Communications Commission (47 U.S.C. §§ 301, 307) and (b) required that the operation of the radio transmitter be in accordance with administrative rules of the Federal Communications Commission.

Admittedly there was no license for the use of the radio transmitters here. The movant argues that there was thus a violation of law and that evidence obtained thereby should be suppressed. It would seem most remarkable if the use of radio by federal agents as an investigative aid required a federal license. The short answer is that 47 U.S.C. § 305 specifically exempts government "radio stations" from any licensing requirement. Mr. Kiser, Engineer in charge of the New York area for the Federal Communications Commission, testified at the November 6, 1964 hearing that any radio transmitter is a "radio station" and this would be my conclusion even without such testimony.

As for the administrative rules of the Federal Communications Commission, movant has asked for a hearing so that violations of such rules may be established. This request is denied because even if the administrative rules were violated, it would not affect the motion to suppress.

The licensing provisions of the statute and the administrative rules of the Commission (which deal with such matters as frequencies to be employed, length of operation, etc.) regulate radio transmission in the public interest to avoid interference of signals, overcrowding of the air waves and the like conditions. There is nothing in any of this to create any right of privacy or any special protection for movant Borgese as a user of a telephone. This...