Appeal From the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 72-384).
Before: Gibbons, Rosenn, and Weis, Circuit Judges.
This appeal primarily presents an unusual issue of whether the Government's tapping of a telephone conversation between an indicted defendant and a potential government witness in the absence of defendant's counsel was in violation of the principles set forth in Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964). We find the Massiah principles inapplicable to the circumstances presented here and affirm.
Defendant-appellant Maurice S. Osser served as a County Commissioner (title later changed to City Election Commissioner) in Philadelphia for more than two decades. During early 1972, a federal grand jury investigated various frauds on the city during Osser's term of office. The grand jury indicted Osser on February 25, 1972, for involvement in fraudulent schemes involving rigging of contracts for election machines. That indictment, as amended May 17 and May 24, 1972, led to another trial (District Court No. 72-349) in the Eastern District of Pennsylvania separate from the trial of the indictment involved in the present case.
Following presentment of the first indictment, the grand jury continued to hear evidence against Osser. In March 1972 it subpoenaed Leon Freedman in connection with an investigation of rigging of city council minutes and election ballot printing contracts. Freedman originally invoked the fifth amendment at the hearing, but later decided to cooperate with the Government after receiving a promise of immunity.
On May 17, 1972, Freedman received a telephone call from Osser. Osser, apparently unaware that Freedman had already decided to cooperate with the Government, urged him not to mention Osser's name to the grand jury. Osser visited Freedman the next day at Freedman's store. Freedman told Osser that he was going to see Government officials on May 19; Osser said he would call Freedman again to find out about that meeting.
Later on May 18, Freedman and his attorney met with a Department of Justice attorney and reported Osser's contacts with Freedman. The Government attorney asked Freedman if the Government could tape the expected phone call from Osser. The attorney told Freedman his promised immunity would not be affected by his decision whether or not to consent to the taping. After meeting alone with his attorney, Freedman consented, was instructed how to operate a transmitter placed on his person, and had a recorder placed on his store phone. The Government gave Freedman no instructions on what he should say to Osser.
Osser called Freedman on May 19. He again pleaded with Freedman not to tell the Government of their previous commission splitting practices. The tape of the Freedman-Osser conversation was played in the trial of the case sub judice, following a hearing on, and denial of, a motion to suppress its use.
The grand jury on June 28, 1972, returned a second indictment against Osser, charging nine counts of mail fraud, 18 U.S.C. §§ 1341, 2, and one count of conspiracy, 18 U.S.C. § 371, for his alleged involvement in rigging city printing contracts, and one count of endeavoring to obstruct justice, 18 U.S.C. § 1510, based on his entreaties to Freedman. This indictment (District Court No. 72-384) led to the conviction under appeal here. Two mail fraud counts were dismissed at trial by the court; the jury returned guilty verdicts on the other nine counts. Osser was sentenced to two consecutive three year terms and fined $19,000.
The evidence at trial disclosed that Freedman, a salesman for Weiss Printing House, had sought Osser's assistance in 1957 to procure city council printing contracts for Weiss. Freedman subsequently paid one-third of his fifteen per cent commission from Weiss to Osser in return for his actions in guaranteeing the contract to Weiss. In 1965, Freedman's commission was increased, and he increased his payments to Osser to six and one-half per cent for about three years. The Osser-Freedman arrangement eventually also embraced election ballot printing for the city. Splitting of Freedman's commission from Weiss continued through 1971.
In order to demonstrate the scheme's connection with the United States mails, a necessary element of the federal crime, the Government proved the means by which Osser received his payments. Philadelphia paid Weiss by check. Some of these checks were mailed. Weiss paid Freedman his commission by check; Freedman paid Osser in cash.
Appellant Osser claims reversible error was committed by the trial court both (1) in admitting into evidence the taped conversation between Osser and Freedman; and (2) in failing to instruct the jury that use of the mails ...