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January 14, 1975


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 electronic eavesdropping.

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 conversations.

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 electronic surveillance.

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. ...

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