United States v. Upton, Crim. No. 80-00028-01-D.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
• Writing for the Court: DEVINE
• Citation: 502 F. Supp. 1193
• Parties: UNITED STATES of America v. John UPTON.
• Decision Date: 24 November 1980
• Docket Number: Crim. No. 80-00028-01-D.

502 F. Supp. 1193

UNITED STATES of America
v.
John UPTON.

Crim. No. 80-00028-01-D.

United States District Court, D. New Hampshire.

November 24, 1980.

502 F. Supp. 1194

Robert J. Lynn, Asst. U. S. Atty., Concord, N. H., for plaintiff.

Richard B. McNamara, Manchester, N. H., for defendant.

MEMORANDUM OPINION

DEVINE, Chief Judge.

This matter came before the Court for hearing on the morning of November 19, 1980, on the defendant's motion to dismiss (and/or to suppress certain evidence), and at the conclusion of said hearing the Court orally denied the motion and stated that the

502 F. Supp. 1195

trial herein would proceed as scheduled on December 1, 1980. The Court added that its written opinion stating the reasons for its denial of said motion would follow as soon as reasonably possible, and the instant Opinion is in compliance with such statement

Defendant John Upton has been indicted for alleged violations of 18 U.S.C. §§ 371, 1001, and 2, the thrust of the indictment being that he received Comprehensive Employment and Training Act (CETA) funds to which he was not entitled by representing that he did certain maintenance work for the Heritage Christian Children's Home (HCCH), a non-profit group care home for children whose needs cannot adequately be met through family living. For the purposes of the instant motion, it was agreed that Reverend James Pearson, the executive director of HCCH, cooperated with agents of the Government (agents of the United States Department of Labor) and agreed to converse with the defendant while equipped with recording devices to record their conversations. Subsequent to this agreement, three telephone conversations and two face-to-face meetings between Pearson and Upton were recorded, and the Government expects to introduce the recordings of these conversations at the trial of the defendant. The telephone conversations were apparently recorded using a standard type of tape recorder attached to the telephone on Pearson's end of the line, while the face-to-face meetings were recorded by a concealed transmitter on Pearson's person which in turn transmitted his conversations to a receiver/recorder maintained by surveillance agents in the vicinity of the meeting.

It is the thrust of the defendant's argument that pursuant to Title III of the Omnibus Crime Control Act, 18 U.S.C. §§ 2510-2520, Wire Interception, Congress has delegated to the states the authority to adopt more but not less restrictive legislation dealing with the subject of wiretapping and eavesdropping. Defendant urges that New Hampshire has followed this delegation in enacting N.H. RSA 570-A, Wiretapping And Eavesdropping, a pertinent section of which, N.H. RSA 570-A:2(I), requires the "consent of all parties" to communications such as were here made to Pearson by the defendant, and that the federal agents are bound by this state statute. Inasmuch as the federal agents (including the United States Attorneys) have allegedly committed felonies, and defendant's counsel could not listen to the tapes without himself committing a felony, and could not therefore determine whether they contained exculpatory evidence, it is argued that the Court must dismiss this action, as its prosecution will "deprive the defendant of his right to effective assistance of counsel and to due process of law". (Pp. 12, 13, Defendant's Memorandum of Law.) Although ingenious, this argument is totally without legal merit.

The law is clear that neither the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants. United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 1467, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); 18 U.S.C. § 2511(2)(c). The rationale for this rule is as follows.

Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances will be substantially different or his sense of security any less if he also

502 F. Supp. 1196

thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition, particularly under the Fourth Amendment which is ruled by fluid concepts of `reasonableness'.

United States v. White, supra, 401 U.S. at 752, 753, 91 S.Ct. at 1126.

Title III of the Omnibus Crime Control Act, 18 U.S.C. §§ 2510-2520 represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression, and much of its content was drawn to meet the constitutional requirement for electronic surveillance enunciated by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). United States v. United States District Court, 407 U.S. 297, 301, 302, 92 S.Ct. 2125, 2128, 2129, 32 L.Ed.2d 752 (1972); United States v. Donovan, 429 U.S. 413, 426, 427, 97 S.Ct. 658, 667, 668, 50 L.Ed.2d 652 (1977). While not as clear in some respects as it might be, United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), its purpose was to effectively prohibit "all interceptions of oral and wire communications, except those specifically provided for in the Act". Id. at 514, 94 S.Ct. at 1826.

In its findings as to the necessity for Title III, Congress, inter alia, specifically found that

To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court.

Section 801(d), Pub.L.No. 90-351, cited in Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972) (emphasis added).

The legislative history of Title III is set forth in S.Rep.No.1097, 90th Cong., 2d Sess., U.S.Code Cong. & Ad.News 1968, pp. 2112, 2177, et seq. (hereinafter cited as S.Rep. with appropriate pagination to the U.S. Code Cong. & Ad.News). The statutory promulgation of the above-quoted congressional finding is found in 18 U.S.C. § 2511, which generally provides certain penalties for wrongful interception or attempts to intercept wire or oral communications. 18 U.S.C. § 2511(2)(c) provides

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.

This exemption of consensual interception of communications was designed, as the legislative history demonstrates (S.Rep. at p. 2182), to reflect existing constitutional law as set forth in 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); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). It is here clearly applicable, as Pearson consented to allow Government agents to "wire" him and to overhear and record the conversations thus transmitted, and the actions of both Pearson and the Government agents were "under color of law".¹

It is true that as the defendant asserts Congress allowed for concurrent state regulation of communication intercepts subject, at the minimum, to the requirements of the Federal regulation. See 18 U.S.C. § 2516(2). Thus Congress made clear that

502 F. Supp. 1197

it did not intend to preempt state legislation with reference to those portions of 18 U.S.C. § 2511 which dealt with the knowledge required to violate (S.Rep. at p. 2181); of 18 U.S.C. § 2512 dealing with the ban on manufacture, distribution, possession, and advertisement of interception devices (S.Rep. at p. 2183); and relative to the recovery of civil damages as set forth in 18 U.S.C. § 2520 (S.Rep. at p. 2196). Congress also provided that although states may pass statutes with standards more stringent than the requirements of federal law, thus excluding from state courts evidence that would be admissible in federal courts, Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819, 833 (1975), a state may not adopt standards that are less restrictive than those set forth in Title III. (S.Rep. at p. 2187.)

As hereinabove indicated, New Hampshire's Legislature in 1969...