United States v. Hagarty

• Decision Date: 13 March 1968
• Docket Number: No. 15881.,15881.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brendan J. HAGARTY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

388 F.2d 713 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Brendan J. HAGARTY, Defendant-Appellant.

No. 15881.

United States Court of Appeals Seventh Circuit.

January 11, 1968.

Rehearing Denied March 13, 1968.

Harvey M. Silets, Chicago, Ill., for appellant. Terence J. Moore, Chicago, Ill., Glenn R. Graves, Washington, D. C., Amicus Curiæ. Harris, Burman & Silets, Chicago, Ill., of counsel.

Edward V. Hanrahan, U. S. Atty., Richard G. Schultz, Asst. U. S. Atty., Chicago, Ill., for appellee. John Peter Lulinski, Gerald M. Werksman, Asst. U. S. Attys., of counsel.

Before HASTINGS, Chief Judge, and KILEY and CUMMINGS, Circuit Judges.

CUMMINGS, Circuit Judge.

After a jury trial, defendant Brendan J. Hagarty was convicted of perjury under Section 1621 of the Criminal Code (18 U.S.C. § 1621). Hagarty, a former Chicago police officer, was a criminal investigator for the Internal Revenue Service.

In March 1962, IRS Special Agent Arthur Ontko was assigned to the criminal tax investigation of former Chicago police captain Frank Pape. The next month, Ontko contacted Hagarty to see if he had any information about Mr. Pape, but Hagarty said not.

In March 1962, Victor Weber of the Inspection Service of the Internal Revenue Service commenced an unrelated investigation of Arthur Nasser, a trial attorney employed by the IRS Regional Counsel's office in Chicago. Hagarty knew Nasser. Electronic eavesdropping on Nasser's office conversations commenced in June 1962 and continued through early February 1963.

In January 1963, Inspector Weber and Inspector John T. Kelly installed an eavesdropping device in the baseboard of the wall of Nasser's government office. This consisted of a miniature microphone, a radio transmitter and a power pack. This device carried the conversations in Nasser's office to a receiver in the Regional Inspector's office ten floors below. This eavesdropping was designed to aid the Nasser investigation. No investigation of Hagarty was then authorized.

On the morning of January 28, IRS Inspector Richard G. Moylan was monitoring the receiving unit and heard Nasser telephone Hagarty to arrange a meeting between them in Nasser's office that evening after 5:00 p. m. Nasser told Hagarty to turn left and walk straight back to Nasser's office, thus avoiding the receptionist. Without obtaining a search warrant, Weber intended to intercept and tape-record Hagarty's voice when he arrived at Nasser's office. Neither Hagarty nor Nasser had consented to the eavesdropping.

When Hagarty arrived at Nasser's office at 5:15 p. m. that evening, Inspectors Weber, Moylan and Kelly, through the listening device, heard Nasser and Hagarty discussing the criminal tax fraud investigation of Frank Pape. Although some of the conversation was too inaudible to record, the transcript of the tape shows that Hagarty and Nasser were discussing taxpayer's strategy in that criminal investigation. In their conversation, Nasser referred to Special Agent Arthur Ontko, and Nasser mentioned that he planned to phone Ontko the next day about the Pape case. At the close of the conversation, Hagarty telephoned his home to say that he would be late for dinner.

On January 29, Moylan overheard Nasser telephoning Inspector Ontko, but Nasser was unable to reach him.

From February 5, 1963, to March 13, 1963, Hagarty was assigned to the Organized Crime Division of the Internal Revenue Service, attached to its wagering tax group. On March 7, Hagarty asked Ontko the status of the Frank Pape case, whether it was a good case, and whether it was assigned to the Organized Crime Division. Ontko replied that it was the best case on which he had worked, that he was preparing schedules for it, and that the case was assigned to the Organized Crime Division. However, the investigative file of the Pape case was never inspected by Nasser or Hagarty.

In September 1963, the Internal Revenue Service commenced a year-long investigation of Hagarty. Nothing incriminatory was discovered about Hagarty during this period.

On September 29, 1964, in Inspector Farmer's presence,¹ Ontko interviewed Hagarty who was placed under oath and advised of his Fifth Amendment rights. Ontko asked Hagarty whether he had ever been to Nasser's office, and Hagarty replied, "Not that he could recall." Hagarty also stated that he did not discuss the Pape investigation with Nasser. Hagarty gave Ontko an unsworn written statement to that effect. Afterwards, the tape recording of the Nasser-Hagarty conversation was played two or three times, but Hagarty denied that it refreshed his recollection. Hagarty refused to furnish Ontko with a taped voice exemplar. The next day Hagarty refused to give Ontko a sworn written statement after being reminded of his Fifth Amendment rights. Although the tape recording of the January 28 conversation between Nasser and Hagarty was replayed several times again, Hagarty's memory was not refreshed, and he commented that the voice was not his. At the second interview, he also refused a voice exemplar. Farmer was also present at the September 30 interview.

In December 1964, Hagarty was having coffee with Special Agent Golla and other agents. On this occasion, Hagarty remarked that the way to avoid cooperating with the IRS Inspection Service in a matter which might implicate you is to state that you do not remember.

On December 23, 1964, the District Director of Internal Revenue wrote Hagarty that his interview with Ontko had been unsatisfactory and that Hagarty should appear for another interview under oath. This transcribed interview was conducted by Inspector Weber on January 6, 1965, with Hagarty being sworn and again advised of his Fifth Amendment rights but not advised that the interview was being tape-recorded. At this interview, attended also by Inspector Kelly and court reporter Miss Rimland, Hagarty stated that he did not recall the Nasser meeting of January 28, nor at first did he recall asking Arthur Ontko on March 7 about the status of the Frank Pape case. Shortly thereafter Hagarty categorically denied making such an inquiry of Ontko. Although Inspector Weber repeatedly played portions of an improved recording of the January 28 conversation between Hagarty and Nasser, Hagarty's memory was assertedly not refreshed, and he refused still again to give a voice exemplar.

On January 22, Hagarty returned to the Regional Inspector's office to review, correct and sign the transcript of the December 23 interview. He refused to sign it unless given permission to take it home over the weekend. Inspector Weber advised Hagarty that this would violate the policy of the Inspection Service, but he offered to let Hagarty review the transcript there. This offer was declined and Hagarty left without signing the transcript.

On February 18, 1965, Hagarty was indicted for testifying falsely before Inspector Weber on January 6th. Seven falsehoods were specified in the one-count indictment.

At the trial, Ontko testified that on March 7, 1963, Hagarty came up to him and asked about the status of the Pape case. The rest of the Government's case depended upon matters revealed in the recorded Hagarty-Nasser conversation of January 28.

Concededly, only one of the seven charges in the one-count indictment could be proved without the benefit of the recordings of the January 28, 1963, conversation between Hagarty and Nasser. That particular charge was "Hagarty testified in substance that he did not recall asking Ontko about the status of the Frank Pape case prior to September of 1964." Since Hagarty did not take the stand, Ontko was the only witness of the alleged March 7, 1963, conversation in which Hagarty asked about the Pape case. Under the rule governing perjury prosecutions, falsity must usually be established by two independent witnesses or by one witness and corroborating circumstances. Weiler v. United States, 323 U.S. 606, 610, 65 S.Ct. 548, 89 L.Ed. 495; Hammer v. United States, 271 U.S. 620, 626, 46 S. Ct. 603, 70 L.Ed. 1118.² At the oral argument, the Government conceded that this rule was not satisfied with respect to the March 7 Hagarty-Ontko encounter. Accordingly, the crucial question is whether the evidence of the January 28 Hagarty-Nasser conversation obtained by eavesdropping without a search warrant and without judicial sanction, is banned by the Fourth Amendment.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the Supreme Court reversed a conviction where the Government had introduced evidence of the defendant's telephone conversations overheard by FBI agents through a device they had attached to the outside of a public telephone booth. There too, no search warrant had been obtained, nor had the surveillance been judicially authorized as in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394. In the absence of a warrant or appropriate judicial order, the surveillance was held to be "per se unreasonable under the Fourth Amendment," even though the FBI investigation of Katz's activities established "a strong probability" that he was violating federal law. 389 U.S. at pgs. 354, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. No probable cause is espoused here.

The present appeal was argued before Katz was decided, but most of the Government's arguments have been foreclosed by that opinion. Thus the Government first urges that Nasser's government office was not a constitutionally protected area. A similar argument with respect to the public telephone booth was rejected in Katz, where Mr. Justice Stewart pointed out that "the Fourth Amendment protects people, not places," and that what a person "seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." The key is whether defendant sought to exclude "the uninvited ear." Under this rationale, it is immaterial that the overheard conversation took place in an IRS office. The Fourth Amendment applies "Wherever a man may be * *...