into Kramer's threatened plan. Because of the cooperation of the general meeting of the Association and its executive committee the first three tapes as they were turned over to the Internal Revenue Service constituted no seizure requiring a formal warrant. Therefore, the cases cited in respect to the requirements for search and seizure are not appropriate here.
As for the other twenty-two tapes, did the surrender by Kramer and his wife and sister of these violate any of the defendant's constitutional rights?
First, we are factually informed that the Association's counsel, McKay, directed the Government's agents to Kramer's sister, Mrs. Gray. We may well conclude that this was done for the purpose of involving Kramer by a seizure of any of Kramer's self-incriminating possessions. We have no indication that the Association or its counsel considered that the tapes may have contained evidence to incriminate any of the Association's members or officers. However, there was no objection by anyone at the time of the "seizure" of such evidence by the agents. On the contrary, there was a showing of consent. Mrs. Gray cooperated and turned over the tapes and Mrs. Kramer personally delivered nineteen of the tapes, as she was authorized to do by Kramer. There is a lack of information in this connection, but in any event, it is obvious that the Association and the general membership, as evidenced by the August and November meetings, wanted the Government to get everything that it could which might produce evidence against Kramer. The Government acquired twenty-five tapes from Kramer in three different ways, and only the first three of these were procured from the premises of the Association with the consent of its executive vice-president and with the authorizations by the two meetings.
In connection with these various tapes, the defendants argue that these belong to the Association and presumably were paid for from Association funds. Even if they were the property of the Association, the Association did consent to cooperate with the Internal Revenue Service and "any government agency" and agreed to turn over not only checks, papers and other records relating to Kramer, in cooperating with the Government and its agents, and in this connection it turned over the first three tapes. As to those tapes which came to the Government from Mrs. Gray and Mrs. Kramer and not directly from the Association, even if we assume that the tapes were the property of the Association and that Kramer misappropriated them, the Burdeau case controls and the evidence can be used in a criminal proceeding.
In Burdeau the thief took the papers directly to the Government. Following Burdeau, in Geniviva v. Bingler, 206 F. Supp. 81 (W.D. Pa., 1961), Judge Sorg refused to suppress evidence which had been burglarized from the plaintiff's house and which evidence the Internal Revenue Service obtained from the thief.
The case before us falls somewhere between Burdeau and Geniviva on its facts, for while Kramer, the alleged thief, himself did not turn over the tapes to the Government, nevertheless he authorized someone else to do so and the Government did not resort to legal process to obtain them from the bailees, possessors or custodians of the tapes.
The defendants' third contention is that the tapes were made in violation of Federal statutes, FCC regulations and State laws without the knowledge or consent of the defendants, for all of which reasons they were not legally constituted evidence in these proceedings.
Almost identical contentions were discussed and disposed of by the United States Court of Appeals for the Second Circuit in United States of America v. McGuire, Blumner and Perry, 381 F.2d 306, C.A. 2, 1967, in an opinion filed on July 20, 1967, upholding the admissibility of certain recordings of telephone conversations: (Page 314)
"Appellants also claim that the disc recordings were inadmissible because their receipt in evidence violated Section 605 of the Federal Communications Act, 47 U.S.C. § 605. They first urge that interception of a telephone conversation by one of the parties to the conversation is a violation of the Act even though this position has been rejected by the Supreme Court in Rathbun v. United States, 355 U.S. 107, 2 L. Ed. 2d 134, 78 S. Ct. 161 (1957) . . .