United States v. Estes, Crim. No. 84-55-1.

• Decision Date: 08 April 1985
• Docket Number: Crim. No. 84-55-1.
• Citation: 609 F. Supp. 564
• Parties: UNITED STATES of America v. Kenneth Lee ESTES.
• Court: U.S. District Court — District of Vermont

609 F. Supp. 564

UNITED STATES of America v. Kenneth Lee ESTES.

Crim. No. 84-55-1.

United States District Court, D. Vermont.

March 15, 1985.

As Amended April 8, 1985.

Christopher Baril, Asst. U.S. Atty., Rutland, Vt., for plaintiff.

Richard I. Rubin, Barre, Vt., for defendant.

FINDINGS OF FACT, OPINION AND ORDER

BILLINGS, District Judge.

Introduction

This matter came before the Court for a hearing on all pending motions on February 4, 1985. The defendant was present and represented by Richard Rubin, Esq. Present on behalf of the Government were Assistant U.S. Attorneys Peter Hall and Chris Baril.

Defendant stands charged by a three-count indictment with violations of 18 U.S.C. § 2113(b) (bank robbery) and 18 U.S.C. § 1623 (false declarations before a grand jury). The following pretrial motions have been filed on defendant's behalf:

1. Motion to Dismiss Indictment;

2. Motion for Disclosure of Grand Jury Testimony;

3. Motion to Suppress Taped Communications;

4. Motion to Suppress Evidence Obtained Pursuant to Search; and

5. Motion in Limine.

After setting forth the facts surrounding the case, as found from the evidentiary hearing, the Court will address each of the pending motions seriatim. For purposes of the motions now before the Court, we must assume the truth of the evidence admitted at the hearing.

Findings of Fact

On or about February 24, 1982, employees at the Federal Reserve Bank in Boston, Massachusetts discovered that approximately $55,000.00 was missing from a money shipment that had been shipped via the Purolator Armored car service from the Vermont National Bank in Rutland, Vermont. On or about the same day defendant, an employee of Purolator residing in Manchester, Connecticut, arrived home with a motorcycle saddlebag full of money. Defendant's then wife, now Mrs. Lydia Turbert, observed defendant arrive home and noticed he had a strange look on his face. She asked defendant what was wrong and he then showed her the money in the saddlebag. Defendant told his wife he stole the money from Purolator. The couple then proceeded upstairs to their bedroom and defendant poured the money out of the saddlebag and onto the couple's bed.

At first, Mrs. Turbert was surprised and asked defendant if he could return the money to Purolator. She then decided it would be nice to keep the money, as she and her husband were so poor they could not adequately provide for their three children. Accordingly, Mrs. Turbert decided to assist her husband with the money.

Defendant told his wife that he used a "crimper" to open and, then, reseal the canvas bags from which he removed the money. Mrs. Turbert had earlier observed the crimping device used by defendant hidden in a closet in their home.

Mrs. Turbert observed defendant take the first and last bill from each stack of bills, tear them into small pieces and place them in a jar of carpet cleaning solution so that the torn-up bills would dissolve. He then hid the rest of the money in a closet. The next day, defendant, while in his wife's presence, placed as much money as would fit in a plastic cooler. He then covered the cooler with a plastic garbage bag. Defendant took the money, the crimper and the cleaning solution to the Portland Reservoir. He buried the money and threw the crimper and cleaning solution in the reservoir.

While defendant was at the reservoir, Mrs. Turbert removed a front panel from one of the steps in the stairway of their home. This was done in an effort to find a place to hide the money that would not fit in the cooler, estimated by Mrs. Turbert to be approximately $15,000.00. Mrs. Turbert placed the money in a hollow space behind the stair. She then replaced the front panel.

With the money that was hidden behind the stairs, the couple purchased several items for their home, including a television, a stereo, mattresses and linens for their childrens' beds and kitchen supplies. Defendant also purchased a used van with the stolen money. The money used to buy the van was "laundered" by Mrs. Turbert who made trips to several different Hartford banks for the purpose of exchanging smaller, stolen bills for larger bills.

During the course of time, the money supply behind the stairway depleted, so the couple made several trips to the reservoir to unearth and use more of the stolen money that defendant had hid there.

During the summer months of 1982, Mrs. Turbert moved out of the couple's home and moved into a friend's house. During the time they were separated, Mrs. Turbert made several drug purchases on defendant's behalf. These purchases consisted largely of cocaine. Mrs. Turbert made approximately six purchases on defendant's behalf and the cost of each purchase was approximately $2,500.00. Mrs. Turbert felt compelled to buy the drugs, as her husband threatened to file a claim for desertion if she did not.

Mrs. Turbert and defendant were divorced on December 6, 1983. Mrs. Turbert married Mark Turbert on April 14, 1984.

In early July of 1984, Special Agent Callahan, an FBI agent stationed in Waterbury, Connecticut, received a call from Agent Millen, an FBI agent in Hartford, Connecticut, who stated that Mrs. Turbert had information regarding a Purolator robbery. Thereupon, Agent Callahan contacted Mrs. Turbert and arranged to meet with her.

On July 18, 1984, Agent Callahan went to Mrs. Turbert's home in Torrington, Connecticut to meet and discuss with her the information she had regarding the robbery. During the meeting, which lasted approximately three hours, Mrs. Turbert explained that she was defendant's ex-wife and that, in February of 1982 when they were still married, defendant robbed a substantial sum of money from Purolator.

Before detailing the events surrounding the robbery, Mrs. Turbert expressed concern that she would be prosecuted for her involvement with the crime and that she would lose her children as a result. Mrs. Turbert reiterated this concern several times during the course of the meeting. She also explained that she decided to come forward with information about the crime because defendant's present wife's ex-husband, David Nallon, threatened to reveal the information if she (Mrs. Turbert) did not. Accordingly, in exchange for her cooperation and information, Mrs. Turbert wanted assurances from the Government that she would not be prosecuted. Agent Callahan explained that, although he could not give Mrs. Turbert advice as to whether she was privileged from testifying against her former husband or as to what her rights were in general, he could give her verbal assurances that, if she cooperated, she would not be prosecuted.

After receiving the necessary assurances, Mrs. Turbert gave Agent Callahan information regarding the crime. At the end of the meeting, the parties decided to tape a telephone conversation between Mrs. Turbert and defendant. Mrs. Turbert explained that the conversation would have to take place at a public phone, as defendant believed that both his phone and Mrs. Turbert's phone were tapped. At the original meeting, no date was set for taping the conversation, rather, it was decided that Mrs. Turbert would contact Agent Callahan when she was ready.

Subsequently, Mrs. Turbert contacted Callahan to arrange a time to tape the conversation. The parties agreed to do the taping on July 24, 1984. During that conversation, Mrs. Turbert again expressed her desire to receive assurance of immunity before going forward. Agent Callahan told Mrs. Turbert that she would receive a letter of immunity from the United States Attorney's office in Vermont before the date set for the phone call to defendant.

On July 24, 1984, Agent Callahan and Agent John Hooks arrived at Mrs. Turbert's residence for the purpose of taping the conversation. At that time, Mrs. Turbert asked about the letter of immunity and Mr. Callahan again reassured her that she would not be prosecuted and explained that the letter was forthcoming. In exchange for these assurances, Mrs. Turbert agreed to sign a consent form which stated that she "voluntarily and without threat or promise" consented to tape the conversation. If Mrs. Turbert did not receive these assurances, she would not have made the phone call. The parties then proceeded to a public telephone booth and Mrs. Turbert placed a call to her former husband. However, the phone was malfunctioning and the parties were forced to go to another public phone booth in a different part of town. Mrs. Turbert placed a second call to defendant. The defendant then called her back and the ensuing conversation was taped. During the taping, Agents Callahan and Hooks and Mr. Turbert were all standing a few feet away from Mrs. Turbert. At no time during the course of the phone calls did Mrs. Turbert expressly or impliedly withdraw her consent to tape the conversation with defendant.

On September 15, 1984, Mrs. Turbert recorded another conversation with defendant. This conversation was recorded at Mrs. Turbert's residence in Torrington on a Radio Shack home taping device. Mrs. Turbert voluntarily turned over the tape to Agent Callahan, who had no prior knowledge of this second taping.

On or about October 10, 1984, Mrs. Turbert received a letter of immunity from prosecution from Assistant U.S. Attorney Peter Hall. Thereafter, Mrs. Turbert testified against defendant before the Grand Jury investigation of this matter. At no time during the course of her dealings with authorities regarding this matter was Mrs. Turbert advised that she could not claim a privilege against giving testimony about her marital communications with defendant.

Discussion

A. Motion To Dismiss Indictment

Defendant moves to dismiss the indictment, claiming that it is tainted by Mrs. Turbert's incompetent testimony before the Grand Jury and that it was obtained through gross prosecutorial misconduct. The government denies that Mrs. Turbert's testimony amounted to incompetent evidence and further contends that there has been no...