United States v. Bryson

• Citation: 418 F. Supp. 818
• Decision Date: 21 May 1975
• Docket Number: Crim. No. 75-70.
• Parties: UNITED STATES of America, Plaintiff, v. Ken Richard BRYSON, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

418 F. Supp. 818

UNITED STATES of America, Plaintiff, v. Ken Richard BRYSON, Defendant.

Crim. No. 75-70.

United States District Court, W. D. Oklahoma.

April 21, 1975.

On Motion for New Trial May 21, 1975.

William R. Burkett, U. S. Atty., by John E. Green and O. B. Johnston, III, Asst. U. S. Attys., Oklahoma City, Okl., for plaintiff.

Don Hamilton, Phillip E. Lambert, Oklahoma City, Okl., for defendant.

ORDER

DAUGHERTY, Chief Judge.

The above Defendant has filed herein a Motion For Disclosure Of Electronic Surveillance, For Pre-Trial Hearing To Suppress Evidence And To Dismiss The Indictment. A Brief supports the Motion. The Plaintiff has responded thereto with Brief. The Court has conducted an evidentiary hearing on that part of the Motion seeking Disclosure and to Suppress Evidence.

In its Response the Plaintiff asserts that the results of all electronic surveillance of the Defendant conducted by it have been furnished the Defendant. This appears to involve three recorded telephone conversations between Defendant and one Leslie Gail Jeffreys. The Court assumes from what transpired at the evidentiary hearing that the Defendant is satisfied with such furnishing of the results of these three recorded telephone conversations. If this assumption is not correct, the Defendant should advise the Court in writing not later than April 23, 1975. The Court notes from the evidentiary hearing conducted herein that Special Agent Elroy of the Federal Bureau of Investigation testified that as far as this case is concerned only said three telephone conversations were recorded. He did testify that he had knowledge of prior tape recordings of the Defendant which, however, had nothing to do with this case and which were made apparently by the City Manager of Shawnee. The Court will assume that the Defendant is satisfied that any such tape recordings of Defendant made by someone other than the Plaintiff and reportedly having no connection with the crime charged in this case are not relevant to this case as the Defendant did not pursue this disclosure or make any request in connection therewith at the evidentiary hearing. If Defendant should feel otherwise, the Court is agreeable if such tapes can be obtained to make an in camera inspection thereof to ascertain if they have any relation to this case. If the Defendant is inclined in this direction he should notify the Court in writing herein on or before April 23, 1975. Otherwise, the Court will indulge in the assumption above made.

The Plaintiff further asserts in its Response that there are no applications, affidavits, memoranda or other papers in connection with recording said three telephone conversations as they were recorded with the prior consent of the said Leslie Gail Jeffreys who was on one end of the telephone line on each occasion with the Defendant on the other end of the line. On this basis, there is nothing to disclose or furnish by Defendant in this respect.

The Court therefore finds and concludes, subject to the foregoing assumptions, that Plaintiff has made the required disclosure and that Defendant is satisfied therewith.

In said Motion Defendant also requests the Court to suppress all evidence illegally obtained by the Plaintiff by means of electronic surveillance of the Defendant. Defendant further requests that the Indictment be dismissed if the Plaintiff illegally obtained evidence against the Defendant.

Nardone v. United States, 308 U.S. 338, 60 S.Ct. 226, 84 L.Ed. 307 (1939) holds that testimony obtained from intercepted telephone messages in violation of Section 605 of the Federal Communications Act, 47 U.S.C. § 605,¹ is inadmissible and should be suppressed as evidence on motion. The case of Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957) holds that there is no violation of 47 U.S.C. § 605 if a telephone interception is done with the consent of one party to the telephone conversation.

Congress in 18 U.S.C. § 2511 appears to have codified the ruling of Rathbun by providing in legislation that:

"(2) * * * (c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

(d) 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."

Nardone, supra, also provides that a defendant in a criminal case who asserts that evidence against him was improperly obtained by wire tapping has the burden of proving to the trial court's satisfaction the truth of the assertion. Our Circuit in Nolan v. United States, 423 F.2d 1031 (Tenth Cir. 1970) had occasion to treat with the procedure and the burden of proof in a case in which it was alleged that evidence had been obtained by the Government by illegal wire tapping. It was held in Nolan, supra, that after inspecting the recordings and transcripts of alleged illegal electronic surveillance, the burden was on the defendant to prove that illegal electronic surveillance of himself had occurred and then the ultimate burden of persuasion against illegality and taint was on the Government and at the same time defendant was required to go forward with specific evidence demonstrating illegality and taint.

The Defendant appears to claim with reference to his Motion To Suppress that the evidence obtained by electronic surveillance of him was illegally obtained by the Government only on the basis that the said three recorded telephone conversations were for the purpose of the said Leslie Gail Jeffreys committing a criminal or tortious act or some other injurious act and hence a violation of 18 U.S.C. § 2511(d), supra.

The Defendant presented no evidence of a direct² 47 U.S.C. § 605 violation. The Court finds and concludes therefore that no evidence has been presented to show a direct 47 U.S.C. § 605 violation.

The evidence discloses and the Court finds that the three telephone conversations which were recorded were between the Defendant and Leslie Gail Jeffreys; that Leslie Gail Jeffreys gave prior consent to the three telephone conversations being monitored and recorded; that she signed a written consent to this effect; that such consent was not obtained by the Government by means of any promises, force, threats or coercion practiced on the said Leslie Gail Jeffreys for the same; that her consent was freely, voluntarily and intelligently given; that the owner of the telephone involved likewise gave prior consent to it being used, monitored and recorded as used by said Leslie Gail Jeffreys. The Court finds and concludes that the prior consent contemplated by 18 U.S.C. § 2511(2)(c) and (d) has been shown by the evidence without dispute regarding said three recorded telephone conversations between Defendant and Leslie Gail Jeffreys.

There was no evidence presented to the Court that in the use of said telephone by the said Leslie Gail Jeffreys regarding the said three recorded telephone conversations that she used the same and allowed the recordings therefrom for the purpose of committing a criminal or tortious act or any other injurious act. The Defendant has failed to submit any evidence in support of his contention to this effect and has failed to meet his burden in this regard.

The Court therefore finds and concludes that the recordings made of the three telephone conversations involved were not illegally made or illegally obtained by the Plaintiff and should not be suppressed as evidence in the case but should be admitted as evidence in the case under appropriate instructions to the jury. The Motion of Defendant that the Indictment herein be dismissed because of illegally obtained evidence is denied for there has been no showing made either in the pleadings or in the evidentiary hearing conducted herein that the Indictment was based upon illegally obtained evidence.

The Motions to Suppress Evidence and To Dismiss are overruled this 21 day of April, 1975.

ON MOTION FOR NEW TRIAL

The above Defendant after being convicted by a jury of the crime of extortion (18 U.S.C. § 1951) has filed a Motion For New Trial with supporting Brief. The Plaintiff responds in opposition thereto. Nine numerical grounds are asserted in the Motion and others are discussed in the Brief. None are believed to be meritorious as hereinafter indicated and the Motion should be overruled.

GROUND 1

THE COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS AT THE CLOSE OF THE GOVERNMENT'S EVIDENCE AND AT THE CONCLUSION OF ALL THE EVIDENCE.

This Ground is related to Ground 2 as the Motion To Dismiss under consideration should have been embraced within Defendant's Motion For Judgment Of Acquittal under Rule 29, Federal Rules of Criminal Procedure as a trial motion.

However, in discussing this Ground the evidence showed jurisdiction in this Court of the offense. There was no claim of an inadequate Indictment, jeopardy or a bar of limitations. The Government's evidence established each of the essential elements of the offense involved and was sufficient to sustain a conviction. This evidence revealed that the Defendant induced one of his victims to co-sign or guarantee a $10,000.00 note in connection with a bank loan and induced his other victim to part with an $8,000.00 check (certainly the Defendant attempted to do so); that the above was accomplished by the Defendant by extortion in that be obtained such guarantee and check from his victims with their consent but...