United States v. Frank, Crim. No. 134-63.

• Decision Date: 15 January 1964
• Docket Number: Crim. No. 134-63.
• Citation: 225 F. Supp. 573
• Parties: UNITED STATES of America, Plaintiff, v. John J. FRANK, John W. Leon, Oliver W. Angelone, Defendants.
• Court: U.S. District Court — District of Columbia

225 F. Supp. 573

UNITED STATES of America, Plaintiff, v. John J. FRANK, John W. Leon, Oliver W. Angelone, Defendants.

Crim. No. 134-63.

United States District Court District of Columbia.

January 15, 1964.

David C. Acheson, U. S. Atty., Harold J. Sullivan, Asst. U. S. Atty., Washington, D. C., for plaintiff.

Edward L. Carey, Walter E. Gillcrist, Washington, D. C., for defendants.

YOUNGDAHL, District Judge.

Various motions of defendants came on to be heard before this Court on November 1, 1963. Thereafter defendants and the Government filed briefs, which this Court has considered, together with the original papers and the oral argument, in reaching the following conclusions:

1. The motion (filed April 2, 1963) to suppress upon the ground that certain property was seized in violation of the Constitution must be denied. The articles were seized in connection with a civil case by persons who had no connection with any law enforcement officer of the Government. The subsequent use of such property by a grand jury which later began an investigation into certain matters first revealed in the civil proceedings and the similar use by the Government in the forthcoming trial of this case do not violate any prohibition of the Constitution. See Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The exclusionary rule applied to evidence seized in violation of the Fourth Amendment is designed to force law enforcement agents to observe the procedural safeguards of the Constitution. Where, as here, any possible irregularity —actually, it is not clear that there was any such irregularity — was solely the responsibility of private persons, with no connection or collusion of any kind with any law enforcement agent, the exclusionary rule does not apply.

2. The motion (filed April 2, 1963) to dismiss for alleged violations of Rule 6(e), Federal Rules of Criminal Procedure, must also be denied. The affidavits, based solely upon hearsay, presented by defendants to show that there was an improper disclosure on the part of the Assistant United States Attorney are insufficient to raise any legitimate issue of fact in the face of the uncontradicted affidavits based on direct personal knowledge filed by the Government, which demonstrate that there was no improper disclosure of matters before the grand jury. There is thus no necessity for oral testimony on this motion.

3. The motion (filed April 2, 1963) to dismiss the indictment will be denied to the extent that it refers to counts two and three of the indictment. Defendants cannot complain of any unnecessary specificity in count two. There is no need for the Government to elect between count two (charging a violation of 47 U.S.C. § 301, operating a radio apparatus without a station license) and count three (charging a violation of 47 U.S.C. § 318, operating a radio apparatus without an operator's license). And any possible regulations modifying the requirements of 47 U.S.C. § 318, as permitted by the statute,¹ are matters for defense, and need not be negatived in the indictment.

The motion to dismiss count one, however, will be granted. Count one charges Housebreaking, under D.C.Code 22-1801 — specifically, an entry of the room of a certain person with intent to commit certain wilful and knowing violations of the Federal Communications Act, namely 47 U.S.C. § 301 (operating without a station license), § 318 (operating without an operator's license), and certain regulations contained in 47 C. F.R. 15.206 (dealing with frequencies, power, and other technicalities of operation).

Congress has specified that wilful and knowing violations of the Communications Act are misdemeanors, carrying short prison terms but high fines. 47 U.S.C. § 501 provides for a penalty of a fine of not more than $10,000 or imprisonment for not more than one year, or both, for wilfully and knowingly violating any statutory provision. And 47 U.S.C. § 502 provides for a penalty of a fine of not more than $500 for each and every day during which there occurs a wilful and knowing violation of any rule or regulation of the Federal Communications Commission. Congress has thus considered the matter of punishment for these offenses with great particularity, and it would ignore the purpose of Congress to permit an indictment to enlarge these penalties to a 15-year prison term simply by alleging that the defendants entered a certain room with intent to commit the above misdemeanors.

Generally, entry with intent to commit a misdemeanor, such as petit larceny, is sufficient to support a charge of Housebreaking. But the nature of these offenses under the Federal...