United States v. Osser

• Decision Date: 30 July 1973
• Docket Number: No. 73-1061.,73-1061.
• Citation: 483 F.2d 727
• Parties: UNITED STATES of America v. Maurice S. OSSER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

483 F.2d 727 (1973)

UNITED STATES of America v. Maurice S. OSSER, Appellant.

No. 73-1061.

United States Court of Appeals, Third Circuit.

Argued June 12, 1973.

Decided July 30, 1973.

Certiorari Denied November 12, 1973.

Benjamin Paul, Philadelphia, Pa., Frederic J. Barnett, Mark J. Kadish, Gerald Alch, Bailey, Alch & Gills, Boston, Mass., for appellant.

Peter F. Vaira, U. S. Dept. of Justice, Philadelphia, Pa., for appellee.

Before GIBBONS, ROSENN and WEIS, Circuit Judges.

Certiorari Denied November 12, 1973. See 94 S.Ct. 457.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal primarily presents an unusual issue of whether the Government's tapping of a telephone conversation between an indicted defendant and a potential government witness in the absence of defendant's counsel was in violation of the principles set forth in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). We find the Massiah principles inapplicable to the circumstances presented here and affirm.

Defendant-appellant Maurice S. Osser served as a County Commissioner (title later changed to City Election Commissioner) in Philadelphia for more than two decades. During early 1972, a federal grand jury investigated various frauds on the city during Osser's term of office. The grand jury indicted Osser on February 25, 1972, for involvement in fraudulent schemes involving rigging of contracts for election machines. That indictment, as amended May 17 and May 24, 1972, led to another trial (District Court No. 72-349) in the Eastern District of Pennsylvania separate from the trial of the indictment involved in the present case.

Following presentment of the first indictment, the grand jury continued to hear evidence against Osser. In March 1972 it subpoenaed Leon Freedman in connection with an investigation of rigging of city council minutes and election ballot printing contracts. Freedman originally invoked the fifth amendment at the hearing, but later decided to cooperate with the Government after receiving a promise of immunity.

On May 17, 1972, Freedman received a telephone call from Osser. Osser, apparently unaware that Freedman had already decided to cooperate with the Government, urged him not to mention Osser's name to the grand jury. Osser visited Freedman the next day at Freedman's store. Freedman told Osser that he was going to see Government officials on May 19; Osser said he would call Freedman again to find out about that meeting.

Later on May 18, Freedman and his attorney met with a Department of Justice attorney and reported Osser's contacts with Freedman. The Government attorney asked Freedman if the Government could tape the expected phone call from Osser. The attorney told Freedman his promised immunity would not be affected by his decision whether or not to consent to the taping. After meeting alone with his attorney, Freedman consented, was instructed how to operate a transmitter placed on his person, and had a recorder placed on his store phone. The Government gave Freedman no instructions on what he should say to Osser.

Osser called Freedman on May 19. He again pleaded with Freedman not to tell the Government of their previous commission splitting practices. The tape of the Freedman-Osser conversation was played in the trial of the case sub judice, following a hearing on, and denial of, a motion to suppress its use.

The grand jury on June 28, 1972, returned a second indictment against Osser, charging nine counts of mail fraud, 18 U.S.C. §§ 1341, 2, and one count of conspiracy, 18 U.S.C. § 371, for his alleged involvement in rigging city printing contracts, and one count of endeavoring to obstruct justice, 18 U.S.C. § 1510, based on his entreaties to Freedman. This indictment (District Court No. 72-384) led to the conviction under appeal here. Two mail fraud counts were dismissed at trial by the court; the jury returned guilty verdicts on the other nine counts. Osser was sentenced to two consecutive three year terms and fined $19,000.

The evidence at trial disclosed that Freedman, a salesman for Weiss Printing House, had sought Osser's assistance in 1957 to procure city council printing contracts for Weiss. Freedman subsequently paid one-third of his fifteen percent commission from Weiss to Osser in return for his actions in guaranteeing the contract to Weiss. In 1965, Freedman's commission was increased, and he increased his payments to Osser to six and one-half per cent for about three years. The Osser-Freedman arrangement eventually also embraced election ballot printing for the city. Splitting of Freedman's commission from Weiss continued through 1971.

In order to demonstrate the scheme's connection with the United States mails, a necessary element of the federal crime, the Government proved the means by which Osser received his payments. Philadelphia paid Weiss by check. Some of these checks were mailed. Weiss paid Freedman his commission by check; Freedman paid Osser in cash.

Appellant Osser claims reversible error was committed by the trial court both (1) in admitting into evidence the taped conversation between Osser and Freedman; and (2) in failing to instruct the jury that use of the mails must be an integral part of the alleged scheme to defraud.

I

Appellant's objection to the taped telephone conversation is two-fold: (A) Freedman's consent was insufficient to justify admission of the tape; (B) the taping deprived Osser of his right to counsel as set forth in Massiah v. United States.

A

Appellant's contention that Freedman's consent was insufficient is premised on the principle that taping of conversations of persons acting undercover for the Government is permissible only if those persons consent freely to the taping. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U. S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); and 18 U.S.C. § 2511(2) (c):

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. Emphasis added.

See also United States v. Riccobene, 320 F.Supp. 196, 202-203 (E.D.Pa.1970), aff'd per curiam, 451 F.2d 586 (3d Cir. 1971).

Appellant argues that at the time Freedman consented to the taping, any consent he made could not have been voluntary because he had yet to receive officially his promised grant of immunity. Appellant further argues the Government attorney's assurance that immunity did not depend on whether or not Freedman consented to the taping was merely self-serving.

We find no basis in the suppression hearing record for reversing the district court determination that Freedman's consent was given voluntarily. Freedman himself testified clearly that he did not feel pressured by the Government request and that he believed his promised immunity would be forthcoming whether or not he consented. Nothing in the record indicates Freedman's belief was unwarranted. No implied threats were made to Freedman; he was not coerced. The present factual situation is thus quite different from that in United States v. Laughlin, 222 F.Supp. 264 (D.D.C.1963). There, the consent to tape was found involuntary in light of the "consentor's" testimony that "I felt I had to cooperate," 222 F.Supp. at 266, under the implied threat of indictment if she did not. Id. at 268.

Although it is possible to infer from the circumstances of Freedman's consent that he hoped by continuing co-operation with the Government not to disturb forthcoming immunity, such hopes alone do not render his consent involuntary. Our inquiry on appeal is limited to whether the consent was voluntary and uncoerced, not whether the motivations for it were altruistic or self-seeking. As the court said with respect to hopes for leniency in United States v. Zarkin, 250 F.Supp. 728, 737 (D.C.C.1966):

We can think of no time in which a party to a telephone conversation would permit the police to intercept that conversation when he, himself, would not seek something from the police in return, assuming he is of sound mind and knows the police are police. He might merely be seeking police protection from threatening phone calls. Or, he might be an undercover policeman who seeks his pay check. Or, indeed, he may be seeking leniency. However, so long as pressure is not initiated by the police for the purpose of overbearing the will of the party, this Court does not believe that the authorization given by the party is involuntary.

B

Appellant's second attack on admission of the tape of the telephone conversation at trial is based on a contention that the conversation was recorded after Osser was indicted and in the absence of his counsel, thus depriving defendant of his right to counsel's assistance at a critical stage of the prosecution. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). Appellant argues that by virtue of his indictment on February 25, 1972, (which indictment was superseded by amended indictments on May 17 and May 24) the taping of his conversation with Freedman on May 19 was a pretrial confrontation at which he had a right to counsel. He contends that this first indictment (District Court No. 72-349) was "cut from the same block of wood" as the subsequent indictment (District Court No. 73-384) that led to conviction in the case now appealed. Both indictments involved alleged activities of Osser in rigging city contracts between 1965 and 1972; one co-conspirator was named in both. Thus, argues appellant, the May 19 surveillance was part of the Government's continuing investigation of the circumstances of the first indictment. Stripped of its legal trappings, appellant's disingenuous contention is that notwithstanding he initiated the...