United States v. Caron, 72-2049.
| Decision Date | 29 March 1973 |
| Docket Number | No. 72-2049.,72-2049. |
| Citation | 474 F.2d 506 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Omer Thomas CARON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Henry Gonzalez, Tampa, Fla., for defendant-appellant.
John L. Briggs, U. S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.
Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.
The sole issue in this case is whether evidence procured by means of a wiretap may be introduced by the government for impeachment purposes without a prior determination by the trial court that the wiretap was lawful. We affirm on the basis of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
The facts are as follows. On June 10, 1971, a two count indictment was returned against appellant Caron, charging that he had on two occasions given false testimony in an appearance before a federal grand jury on April 7, 1971. Count One of the indictment alleged that Caron had committed perjury by denying that he had ever done any bookmaking, Count Two, that Caron had perjured himself by denying that he knew a Howard Gardner.
Trial of the case commenced on March 27, 1972. Following the prosecution's case in chief Caron took the stand as the sole witness in his defense. Although he admitted that at the time of his appearance before the grand jury he was well-acquainted with Howard Gardner, he stated that if he had denied knowing him, it had been a mistake. As to the allegation in Count One of the indictment, Caron, on direct examination, testified as follows:
On cross-examination Caron further denied that he was engaged in bookmaking, though he admitted that he knew one alleged bookmaker, a Louis Figueredo, and that he had placed two or three wagers with Figueredo during the 1971 football season. Thereafter, the prosecutor, on the basis of tape recordings which the government had procured by means of a wiretap on Figueredo's telephone in November and December, 1971, asked Caron a series of questions as to whether Caron, on specified dates, had had telephone conversations with Figueredo in which they discussed the current lines on games, laying off wagers, and the like. Caron was unable to recall many of the alleged conversations, but he denied having engaged in at least three of them as to which he had been questioned.
In rebuttal and for impeachment purposes the government then sought to introduce into evidence the tape recordings of the intercepted telephone conversations. The district court, over Caron's objection, ruled that the government would be permitted, without a prior evidentiary hearing on the validity of the wiretaps, to introduce in rebuttal the recordings of any conversation about which Caron had been asked and which he had denied having engaged in. Recordings of conversations which he had professed not to remember would not be admitted. Under this limitation the government played to the jury the tapes of two conversations, one on November 13, 1971, the other on December 8, 1971. The two voices were identified as those of Caron and Figueredo and an expert witness testified that the substance of their conversations consisted of the argot of professional bookmakers.
The jury found Caron guilty on both counts of the indictment and he now appeals, contending that the procedure followed in admitting the tapes into evidence was constitutionally infirm.
We note at the outset that by categorically denying on direct examination that he was a bookmaker, Caron effectively opened the door to the questions which the prosecutor put to him concerning his connections with Figueredo.1 Thus, it is evident that if the tape recordings were the product of a valid wiretap, their use for impeachment purposes would have been proper. The question here, of course, is whether such use is nonetheless proper in the absence of any determination by the trial court that the wiretap in question was lawful. In the light of Walder v. United States, supra, we must answer that question in the affirmative, for, under the holding in that case, even if it had been found that the wiretap was unlawful, use of the tape recordings solely for impeachment purposes would not have been proscribed.
In the Walder case the petitioner had been indicted in 1950 on a narcotics charge, but the indictment was dismissed when his motion to suppress the physical evidence, on the grounds that it had been procured through an illegal search and seizure, was granted. Subsequently in 1952 Walder was again indicted for violations of the narcotics laws. He testified on direct examination that he had never possessed any narcotics and the government sought to impeach this broad assertion by introducing the testimony of one of the officers who had participated in the prior illegal search and seizure and also of the chemist who had analyzed the narcotics seized at that time. The trial court admitted the evidence solely for impeachment purposes and thus, the question which eventually reached the Supreme Court was whether the defendant's assertion "on direct examination that he had never possessed any narcotics opened the door, solely...
To continue reading
Request your trial
-
United States v. Cianfrani
...courts that have restricted it have done so only in a narrow context, i. e., prosecutions for perjury. See, e.g., United States v. Caron, 474 F.2d 506 (5th Cir. 1973). Caron does quote language from the Senate Report that suggests that it was not the intention generally to press the scope o......
-
United States v. Manuszak
...government's position that the statutory exclusionary rules does not apply to probation revocation proceedings is United States v. Caron, 474 F.2d 506, 509-10 (5th Cir. 1973), in which the court held that Section 2515 did not proscribe the use of evidence obtained by unlawful wiretapping fo......
-
Williams v. Poulos
...1249, 75 L.Ed.2d 479 (1983); see also, e.g., United States v. Echavarria-Olarte, 904 F.2d 1391, 1397 (9th Cir.1990); United States v. Caron, 474 F.2d 506, 508 (5th Cir.1973). In so doing, these courts, either explicitly or implicitly, have relied upon a passage in the legislative history of......
-
State v. Kidd
...the issue to which impeachment is directed. Id. at pages 607-90. For cases tending to support this proposition see United States v. Caron, 474 F.2d 506, 508 (5th Cir. 1973); United States ex rel. Wright v. LaVallee, 471 F.2d 123, 125-127 (2nd Cir. 1972); United States v. Keilly, 445 F.2d 12......
-
§ 8.01 Wiretap Act (Title III)
...1404 (6th Cir. 1995).[87] See, e.g.: First Circuit: United States v. Winter, 663 F.2d 1120, 1154 (1st Cir. 1981); United States v. Caron, 474 F.2d 506, 508 (5th Cir. 1973). Fourth Circuit: Culbertson v. Culbertson, 143 F.3d 825, 827-28 (4th Cir. 1998). Sixth Circuit: United States v. Wulige......
-
§ 8.02 Civil Violations Under the Wiretap Act
...of the privilege").[159] See, e.g.: First Circuit: United States v. Winter, 663 F.2d 1120, 1154 (1st Cir. 1981); United States v. Caron, 474 F.2d 506, 508 (5th Cir. 1973). Fourth Circuit: Culbertson v. Culbertson, 143 F.3d 825, 827-28 (4th Cir. 1998). Sixth Circuit: United States v. Wuliger......
-
Evidence for the Family Lawyer Intrafamily Wiretapping the Fifth Amendment and Other Selected Topics
...[FN18]. E.g., Scheib v. Grant, 22 F.3d 149, 153-54 (7th Cir. 1994). [FN19]. 18 U.S.C. § 2515. [FN20]. E.g., United States v. Caron, 474 F.2d 506 (5th Cir. 1973); Jacks v. Duckworth, 486 F. Supp. 1366 (N.D. Ind. 1980), aff'd, 651 F.2d 480 (7th Cir. 1981), cert. denied, 454 U.S. 1147 (1982). ......