United States v. Cooper
Decision Date | 02 September 1966 |
Docket Number | No. 16187.,16187. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Taylor Harding COOPER, Defendant-Appellant. |
Court | U.S. Court of Appeals — Sixth Circuit |
Dale Quillen, Nashville, Tenn., for appellant.
Carrol D. Kilgore, Asst. U. S. Atty., Nashville, Tenn., for appellee, James F. Neal, U. S. Atty., Nashville, Tenn., on the brief.
Before EDWARDS, Circuit Judge, TAYLOR, District Judge*, and THORNTON, Senior District Judge**.
Appellant was indicted for conspiracy to operate a distillery, in violation of Title 26 U.S.C. §§ 5601(a), 5602 and 7201. The co-conspirator, Charlie Washington, began working with the Federal agents on October 4, 1961. Although the indictment alleged that the conspiracy commenced in August 1961 and continued past October 4, 1961, the Trial Court ruled that the conspiracy ended when Washington began working with the Federal agents and that no acts done by the defendant after October 4, 1961 could be considered as overt acts. At the trial, recordings and recollections of telephone conversations occurring on and after October 4, 1961 were offered to corroborate the testimony of the co-conspirator, Washington, as to the prior existence of the conspiracy.
The case was tried twice; the first trial was declared a mistrial because of the jury's inability to agree. At the conclusion of the first trial the exhibits in the case were stored in an envelope in the Clerk's vault and the docket entries do not show that any exhibits were withdrawn between the first and second trials.
Before working with Federal Agent Hahn, Washington had operated a distillery behind his home for about one month; the appellant, Cooper, furnished the money for Washington to set up the still. During this period of operation Washington had no knowledge that the government agent had located the distillery. Prior to the time he agreed to work with the agents he had talked by telephone to Cooper a number of times about their joint enterprise, Cooper having previously furnished Washington with his unlisted home telephone number on a slip of paper that Washington subsequently turned over to Agent Hahn. Thereafter Washington made a number of telephone calls to Cooper, with Agent Hahn and a brother Agent listening in. The appellant asserts that the Trial Court erred in allowing Hahn to testify about statements made during a telephone communication between the co-conspirator, Washington, and a person whose voice Hahn could not identify.
The arrangement between the co-conspirator and Agent Hahn regarding the "listening in" activity of Hahn is found in that part of Washington's trial testimony that is as follows:
The answer to the contention of the appellant that the Trial Court was in error in allowing Agent Hahn to testify about statements which he had heard made over a telephone by a voice which he could not identify is found in the foregoing testimony, which clearly establishes that on the occasion of each telephonic conversation the voice on the other end of the conversation was identified by Washington as the voice of appellant Cooper.
Here for our determination is the question of whether the Trial Court erred in admitting the testimony of the Federal Agent as to conversations overheard by him and in allowing the use of recordings of intercepted conversations under the circumstances here present. Section 605 of Title 47, U.S.C.A. reads, in part, as follows:
"* * * No person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person * * *."
Rathbun v. United States, 355 U.S. 107, 110, 78 S.Ct. 161, 2 L.Ed.2d 134 is authority for the following:
In describing how the telephonic recordings were made Agent Hahn testified that he and Agent Lauderdale had a telephone upon which they placed an extension. They then took a suction mike and put it on the telephone and connected it to the recording machine. They could thus make recordings off the telephone, through the suction mike, and listen to the conversations simultaneously.
The appellant also claims that the Trial Court was in error in playing the sound...
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