Hastings, Chief Judge, and Castle and Kiley, Circuit Judges.
We have two appeals for consideration. These have been consolidated in this court, as they were in the district court for hearing on a motion to suppress.
In No. 15456, the indictment charged Rocco Dote and Theodore P. Veesart, who were alleged to be engaged in the business of accepting wagers, with willful failure to pay the special occupational tax on wagering and failure to file a special wagering tax return and application for registry in violation of 26 U.S.C.A. § 7203.
In No. 15457, Nick Guglielmo and Joseph B. Delmonico, also known as Joey D., were charged similarly.
In the United States District Court for the Northern District of Illinois, Honorable William J. Campbell, Chief Judge, presiding, defendants-appellees filed in each case a motion to suppress certain evidence alleged to have been obtained by the Government in violation of Title 47, U.S.C.A. § 605.*fn1 After a full evidentiary hearing thereon, the trial court found such a violation and that but for such violation no search warrant would have issued and no indictment would have been returned. It further found that the indictments were "tied ineluctably with the illegal wire tapping" and, therefore, had to be dismissed.
Accordingly, an order was entered granting the motion to suppress the evidence obtained through the illegal use of a "pen register" system and dismissing the indictments. This action was supported by a well-reasoned memorandum opinion reported as United States v. Guglielmo, 245 F. Supp. 534 (D.C. 1965).
The Government has appealed from such orders entered by the trial court.
A pen register was accurately described in the district court's memorandum opinion, as follows:
"The pen register is a mechanical device attached on occasion to a given telephone line, usually at central telephone offices. A pulsation of the dial on a line to which the pen register is attached records on a paper tape dashes equal to the number dialed. The paper tape then becomes a permanent and complete record of outgoing calls as well as the numbers called on the particular line. Immediately after the number is dialed and before the line called has had an opportunity to answer (actually the pen register had no way of determining or recording whether or not the calls are answered) the pen register mechanically and automatically is disconnected. There is neither recording nor monitoring of the conversation." Guglielmo, supra, at 535.
The facts relevant to the issue before us are largely undisputed.
In June, 1963, Illinois Bell Telephone Company "indicated" to the Internal Revenue Service that a certain telephone was being used for bookmaking purposes. After verification by the Revenue Service and at its request, Illinois Bell installed pen registers on the lines used by bookmaking wirerooms. Neither the wirerooms, the defendants, nor any of the parties called knew of or acquiesced in this request by the Revenue Service.
The pen register tapes, which recorded the calls from the wirerooms, "were turned over by the Illinois Bell Telephone Company to the Internal Revenue Service agents who in turn used these records to develop leads and to conduct gambling investigations resulting in the obtaining of the ...