The opinion of the court was delivered by: Foreman, District Judge:
Defendants Charles Merritts, Sr., and Donald Hodges,
currently under a one-count indictment for violations of
18 U.S.C. § 2 and § 1952, have filed Motions to Suppress certain
Merritts is President of the School Board District 189,
East St. Louis, Illinois. He is charged with causing and
Hodges is charged with aiding and abetting Merritts in
causing the use of an interstate facility with the intent to
commit a crime of violence, that is, to cause the death of
Clyde Jordan, another member of School Board 189, to further
an illegal activity without interference from Jordan. The
illegal activity being the receiving of bribes from
contractors and vendors doing business with School District
189. The indictment further charges that thereafter Merritts
attempted to perform an act of bribery.
Defendants seek to suppress (1) oral statements made by
defendants to Marvin Schwartz from October 27, 1973 to
December 12, 1974, inclusive; (2) oral statements made by
defendants to James Kammermeyer, Jr., from August 15, 1974
to December 12, 1974, inclusive; and (3) oral statements
made by defendants to Don Jones. Defendants contend that the
failure to suppress these conversations would violate rights
guaranteed them by the Fourth, Fifth and Sixth Amendments of
the Constitution. As an alternative ground for suppression,
they also assert that the Government failed to comply with
the provisions of 18 U.S.C. § 2510 et seq. in recording the
Schwartz and Kammermeyer had been working with the FBI
during that agency's investigation of certain alleged
kickbacks and bribes. These two men carried electronic
equipment which recorded conversations which they had with
various individuals, including the defendants. Both Schwartz
and Kammermeyer consented to the recording of these
conversations. Neither defendant ever knew that his
conversations were being recorded, and, of course, neither
defendant consented to the recording of those conversations.
Neither Schwartz nor Kammermeyer were employed by the
Government at the time the conversations were being
recorded, but both are currently receiving funds from the
Government. Donald Jones is an FBI agent and he gave his
consent to the recording of one conversation between himself
and defendant Hodges in a St. Louis hotel room. Kammermeyer,
Schwartz, and Jones, apparently had the confidences of the
defendants who spoke freely and willingly to them.
The Government neither sought nor received court
authorization for recording these conversations.
Nevertheless, the defendants' reliance upon the Omnibus
Crime Control and Safe Streets Act of 1968 is misplaced. The
statute states that it shall not be unlawful for a person
acting under color of law to intercept wire or oral
communications where such person is a party to the
conversation or where one party gives his consent to the
interception. 18 U.S.C. § 2511(2)(c). This exception to the
general statutory scheme is applicable in this action. For all
of the relevant conversations at least one party to the
conversation consented to the recording and thus their
recording was not unlawful.
Defendants also contend that the "seizure" of their
conversations constitutes a violation of the Fourth
Amendment. The Fourth Amendment is applicable when a
defendant justifiably relies upon an expectation of privacy.
Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). The defendants in this action, however,
spoke freely and certainly could not reasonably expect that
the persons to whom they were speaking would not hear or
record those statements.
The Supreme Court has approved the use of a concealed tape
recorder by a participant of the conversation to record the
conversation. Where an IRS agent, who had been offered a
bribe wore a concealed tape recorder during a conversation
with the defendant, the Court held the tapes were admissible
to confirm the agent's testimony about the conversation.
Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10
L.Ed.2d 462 (1963). See also On Lee v. United States,
343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).
The Supreme Court has also approved the use of recorded
conversations in a situation substantially similar to the
one at bar. United States v. White, 401 U.S. 745, 91 S.Ct.
1122, 28 L.Ed.2d 453 (1971). In that case, during
conversations with the defendant, an informer wore a
transmitter which permitted the recording of certain
incriminating statements. The Court approved the use of the
testimony of the agents who conducted the warrantless
Accordingly, the use of the recordings or tapes would not
violate defendant's Fourth Amendment rights.
The Court will next examine defendants' Fifth Amendment
claims. The Fifth Amendment provides in part, "No
person . . . shall be compelled . . . to be a witness against
himself." The Supreme Court has consistently held that a
necessary element of compulsory self-incrimination is some kind
of compulsion. Hoffa, supra. The conversations of the
defendants with Schwartz, Kammermeyer and Jones were entirely
voluntary on the part of the defendants. Thus, no right
protected by the Fifth Amendment's privilege against compulsory
self-incrimination was infringed in this case, because there
was no compulsion.
Defendant Hodges also claims that the Government violated
Illinois Revised Statutes, Ch. 38, §§ 14-1 through 14-7.
Assuming arguendo that there was a violation of state law, this
violation would not compel a suppression of the conversations.
The admission of evidence obtained in violation of state law is
not ordinarily precluded in a federal criminal prosecution,
unless the violation of state law, in addition, constituted a
violation of federal law or the Constitution. United States v.
Scolnick, 392 F.2d 320 (3rd Cir. 1968), cert. denied, sub nom.
Brooks v. United States, 392 U.S. 931, 88 S.Ct. 2283, 20
L.Ed.2d 1389; United States v. Addonzio, 313 F. Supp. 486
(D.N.J. 1970), affirmed 451 F.2d 49, cert. denied 405 U.S. 936,
92 S.Ct. 949, 30 L.Ed.2d 812, rehearing denied 405 U.S. 1048,
92 S.Ct. 1309, 31 L.Ed.2d 591. See also United States v. Keen,
508 F.2d 986 (9th Cir. 1974), and United States v. ...