certain incriminating statements, not knowing that the
colleague was a government informer. The Court rejected
defendant's argument that the informer's failure to disclose
his role as a government informer vitiated the defendant's
consent to have the informer present. In affirming the
conviction utilizing the informer's testimony, the Court
noted that the Court had never intimated that the Fourth
Amendment "protects a wrongdoer's misplaced belief that a
person to whom he voluntarily confides his wrongdoing will
not reveal it." (385 U.S. 302, 87 S.Ct. 413.)
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. American
Radiator and Standard Sanitary Corp., 278 F. Supp. 241 (W.D.Pa.
1967); United States v. Alexander, 218 F. Supp. 916 (W.D.Pa.
1963). Thus, the alleged violation of state law would not
require suppression of the conversations.
The Court will next examine the defendants' Sixth
Amendment claims. Defendants contend that any recordings of
conversations after the date of the first indictment must be
suppressed because they were recorded by people working for
or in conjunction with the federal government, at a time
when the defendants did not have counsel present.
As previously noted, the first indictment and the second
indictment charge substantially the same offense. The second
indictment does not contain the allegations of a violation
of 18 U.S.C. § 241, but both indictments charge that Merritts
did cause and Hodges did aid and abet Merritts in causing the
use of an interstate facility with intent to commit a crime of
violence, that is to cause the death of Clyde Jordan to further
an unlawful activity being the receiving of bribes from
contractors and vendors doing business with School Board
District 189 without the interference of Jordan and thereafter
Merritts and Hodges attempted to perform the illegal activity
of bribery. The return of the indictment marks the commencement
the criminal prosecution to which the explicit guarantees of
the Sixth Amendment are applicable. Kirby v. Illinois,
406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Because of
the similarity of the indictments, the Court will treat them
as one, and accordingly, the right to counsel begins on
September 25, 1974, the date of the return of the first
The Supreme Court has held that the Government may not use
as evidence the incriminating statements of a defendant
deliberately elicited by federal agents after the date of
the indictment where defendant did not have counsel present
during those conversations. Massiah v. United States,
377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In that
case, Massiah's co-defendant, Colson, had decided to
co-operate with the Government after the date of the
arraignment. The co-defendant permitted federal agents to
install a radio transmitter under the front seat of his car.
Through this device, the agent was able to hear a
conversation between Massiah and Colson during which Massiah
made several incriminating statements. It was these
statements which the Supreme Court held inadmissible.
As in Massiah, federal agents in this action used a person
who had the confidence of Merritts to confer with him and
elicit certain statements from him. The Government concedes
that if the statements of Merritts were only "incriminating
statements", Massiah would be applicable and would require the
suppression of the post-indictment conversations. The
Government, however, seeks to distinquish the facts at bar from
those of Massiah, by contending that the subject matter of the
post-indictment conversations are concerned not with
defendant's incriminating statements about a prior crime, but
rather with the commission of a crime itself. The Government
draws particular attention to the transcript of an October 10,
1974, conversation between defendant Merritts and Kammermeyer
wherein allegedly the crime of bribery was committed.
Where a defendant has been indicted for one offense and
subsequently commits a separate and distinct offense, a
taped conversation of the commission of that second offense
would be admissible at trial of the second offense, although
the defendant did not have his attorney present at the time
of the conversation. United States v. Osser, 483 F.2d 727
(3rd Cir. 1973), cert. denied 414 U.S. 1028, 94 S.Ct. 457,
38 L.Ed.2d 221; Vinyard v. United States, 335 F.2d 176 (8th
Cir. 1964), cert. denied 379 U.S. 930, 85 S.Ct. 327, 13
L.Ed.2d 342. In Vinyard the defendant was indicted originally
for refilling liquor bottles in violation of 26 U.S.C. § 5301(c).
The defendant offered to pay agents $500. to return
the seized evidence, drop any charge, and release her. The
Court noted that by this conversation she was committing a
different and separate offense — that of attempted bribery.
(335 F.2d 184). Therefore, evidence of this conversation could
be admitted into evidence, notwithstanding the fact that her
retained attorney was not present. In Osser, a grand jury had
indicted the defendant for his alleged involvement in
fraudulent schemes involving rigging of contracts for election
machines. The grand jury continued its investigations of the
defendant. In a conversation with Leon Freedman who was to
appear before the grand jury, the defendant pleaded with
Freedman not to tell the Government of their previous
commission-splitting practices. Unbeknownst to the defendant,
Freedman had agreed to cooperate with the Government and the
conversation was recorded. Later the grand jury returned a
second indictment against the defendant charging him with nine
counts of mail fraud, one count of conspiracy for his alleged
involvement in rigging city contracts, and one count of
endeavoring to obstruct justice based upon his entreaties to
Freedman. In Osser both the District Court and the Court of
Appeals rejected a claim based upon Massiah and approved the
use of this tape because the two indictments were sufficiently
separate and distinct. The District Court noted, "The two
display no more than a thin veneer of similarity. They
exhibit basic differences sufficient to establish separate
and distinct offenses and indictments" (483 F.2d at 732).
The Court of Appeals observed, "The two indictments were
sufficiently separable and different; we do not consider the
crimes alleged in each to be multiple charges in related
criminal activity. No indication exists that in taping the
Freedman-Osser conversation the Government anticipated or
sought further information to be used in the trial of the
election machine rigging indictment." (483 F.2d at 734).
Both of these cases permitted the use of the conversations,
where defendants did not have counsel, because those
conversations were evidence of offenses separate and
distinct from those in the original indictment.
It appears to the Court that the conversations at issue in
this action do not contain evidence of offenses separate and
distinct from those in the indictment. They represent
evidence of a necessary element of the offense — the
performance or attempted performance of unlawful activity after
the attempt to commit the crime of violence. This evidence,
although it may constitute an offense per se, is still an
essential element of this offense and, therefore, does not
constitute a separate and distinct offense. Thus, Massiah is
applicable to the case at bar and evidence of conversations on
or after September 25, 1974 must be suppressed.
The Court does not dispute the Government's contentions
that it has the right or even the obligation to continue its
criminal investigation after the return of the indictment.
See Massiah, supra 377 U.S. at 207, 84 S.Ct. 1199. Nor does the
Court quarrel with the proposition that a defendant is not
entitled to the presence of counsel while he is committing a
crime. See e.g. Garcia v. United States, 364 F.2d 306 (10th
Cir. 1966); Grier v. United States, 345 F.2d 523 (9th Cir.
1965). Nevertheless, the Government must proceed in its
investigation in the proper manner.
Accordingly, as it pertains to conversations prior to
September 25, 1974, the Motion to Suppress must be and is
hereby denied. As to conversations on or after September 25,
1974, the Motion to Suppress must be and is hereby granted.
Therefore, the Government shall not introduce at trial any
evidence of conversations occuring on or after September 25,
It is so ordered.
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