United States v. Perkins

• Decision Date: 08 October 1974
• Docket Number: No. CR 74-288.,CR 74-288.
• Parties: UNITED STATES of America, Plaintiff, v. Roy Francis PERKINS, Jr., Morton Silverman, Defendants.
• Court: U.S. District Court — Northern District of Ohio

383 F. Supp. 922

UNITED STATES of America, Plaintiff, v. Roy Francis PERKINS, Jr., Morton Silverman, Defendants.

No. CR 74-288.

United States District Court, N. D. Ohio, E. D.

October 8, 1974.

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Frederick M. Coleman, U. S. Atty., William J. Edwards, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff.

Vincent J. Fuller, Francis X. Grossi, Jr., Washington, D. C., for defendant Perkins.

Gerald A. Messerman, Cleveland, Ohio, for defendant Silverman.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

I. FACTUAL BACKGROUND

On March 14, 1974, the Federal Grand Jury for the Northern District of Ohio returned an indictment against the defendants, alleging that during the Fall of 1972, they conspired in violation of 18 U.S.C. § 371, to intercept, via electronic listening devices, oral communications of persons present in the office of Kennard Hawkins, General Manager of WJMO Radio in Cleveland, Ohio, thereby committing a violation of 18 U.S.C. § 2511(1)(a) (a part of the Omnibus Crime Control Act) and 18 U.S.C. § 2. The Grand Jury further charged defendants with aiding and abetting another person in performing the monitoring of conversations in Mr. Hawkins office, in further violation of 18 U.S.C. § 2511(1) (a).

During the pre-trial stages, defendant Perkins noted the omission of an essential criminal element from Count II of the indictment and moved to dismiss that count. The Government dismissed the indictment but on June 13, 1974, obtained a second indictment against both defendants, the new indictment being the same as the preceding one except that it remedied the defect noted earlier.

At this point, both defendants have a number of motions before the Court. To facilitate discussion, the Court will treat first the motions of Perkins, then Silverman.

II. DEFENDANT PERKINS

A. Motion to Dismiss the Indictment

The defendant has moved to dismiss the second indictment on two grounds:

1. There is no Constitutional basis for the exercise of Congressional control over the conduct alleged in the indictment; and

2. The statute is so vague that if it covers the conduct alleged in the indictment, it fails to give adequate notice.

In support of the statute, the Government cites the power of Congress to regulate Interstate Commerce. This is not a tenable position in view of the legislative history (1968 U.S.Code Cong. & Admin.News p. 2112 et seq.) and the plain language of the statute. In enacting 18 U.S.C. § 2511(1)(b)(iii) and (iv), Congress clearly relied upon the Interstate Commerce Clause since these sections require, as an element of the offense, proof that there was contact with interstate commerce. In 18 U.S.C. § 2511(1)(a), there is no requirement of involvement in interstate commerce, and therefore, the power to enact such a law must lie elsewhere.

The Government also asserts that if the conduct alleged to violate § 18 U.S.C. § 2511(1)(a) finds jurisdictional support in § 2511(1)(b), then there is jurisdiction since § 2511(1)(a) has a broader scope than does (b). This, too, is wrong. If the Government had desired to prosecute Perkins for violating § 2511(1)(b), that is the offense the indictment should have charged. It charges rather a violation of § 2511(1)(a). It is not Constitutionally permissible to convict an accused for other than the specific offense charged in the indictment. DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.2d 278 (1937); Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948).

But the Court finds there is a Constitutional basis for the action of Congress in enacting § 2511(1)(a). It is a basis which the Congress itself expressly recognized:

Virtually all concede that the use of wiretapping or electronic surveillance techniques by private unauthorized hands has little justification where communications are intercepted without the consent of one of the participants. No one quarrels with the proposition that the unauthorized use of these techniques by law enforcement agents should be prohibited. It is not enough, however, just to prohibit the unjustifiable interception, disclosure, or use of any wire or oral communications. An attack must also be made on the possession, distribution, manufacture, and advertising of intercepting devices. All too often the invasion of privacy itself will go unknown. Only by striking at all aspects of the problem can privacy be adequately protected. 1968 U.S. Code Cong. & Admin.News pp. 2112, 2156. (Emphasis added.)

There is a right of privacy guaranteed to the citizens of this nation. Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). The authorities of the Constitution were perhaps not as concerned with the protection of this right as they should have been. But there were so few in this vast land that express concern for protection of privacy must have hardly seemed justified. Through the Fourth and Fifth Amendments, however, all the protection needed was given; express delineation of a right to privacy was not, and is not, necessary.

Today we live in populous clusters. People exist stacked atop each other. With the uncontrolled development of technological means whereby anyone can invade the privacy of another under virtually any condition, the essential need for protection of this penumbral right becomes apparent. We must be cautious lest through the spread of these devices "we plant the seeds of despotism at our own door." Concededly most of the scientific endeavors of the recent past constitute advances and have aided measurably in the improvement of civilization. But some of these may become the artifacts of tyranny if their utilization is not stringently controlled.¹

The Court concedes that Griswold and the more recent pronouncements of the Supreme Court on the right to privacy (Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)) deal with invasion of the right of privacy by the Government. But when a citizen discovers that this office has been "bugged", the fact that it was his employer rather than the sheriff, affords little comfort. The Fourth Amendment does not protect against unreasonable Governmental searches only but against all unreasonable searches.

The Court, therefore, finds that there is a Constitutional basis for enactment of the specific statutory provision which defendant is alleged to have violated.

The Court also disagrees with defendant's contention that the statute does not afford notice of the conduct prohibited. The language is simple and direct:

Except as otherwise specifically provided in this chapter any person who — (a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. 18 U.S.C. § 2511(1).

The legislative history indicates that precisely this type of conduct was considered by Congress and that it was the intention of Congress to deal with it in the law enacted:

The tremendous scientific and technological developments that have taken place in the last century have made possible today the widespread use and abuse of electronic surveillance techniques. As a result of these developments, privacy of communication is seriously jeopardized by these techniques of surveillance. Commercial and employer-labor espionage is becoming widespread. It is becoming increasingly difficult to conduct business meetings in private. Trade secrets are betrayed. Labor and management plans are revealed. No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor's advantage. 1968 U. S.Code Cong. and Admin.News, p. 2154. (Emphasis added.)

The Court finds that defendant's feeling that the statute in question could not cover the conduct he is alleged to have engaged in affords no basis for dismissal of the indictment. Ignorance of the power of Congress to enact a law is no defense to the offense charged. The statute is clear on its face and gives adequate notice of the conduct proscribed, and is, therefore, constitutionally applicable to the acts alleged in the indictment. See cases cited in 21 Am. Jur.2d Criminal Law § 17.

Defendant Perkins argues that the corporation may surreptitiously monitor the conversations of its employees, and notes in support of this contention that the corporation could have consented to a police search of the premises over objections of the occupants of the building. Assuming this to be correct, this argument is not convincing, particularly in view of the following language of Mr. Justice White, writing for the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967):

The Government stresses the fact that the telephone booth from which the petitioner made his calls was constructed partly of glass, so that he was as visible after he entered it as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye — it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen. No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to

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