The opinion of the court was delivered by: ROSENBERG
Counsel for the seventeen defendants in the above entitled case have filed a joint motion to suppress twenty-five reels of tape recordings of telephone conversations and meetings and evidence derived therefrom. A previous joint motion to suppress, presented by the defendants on February 16, 1967, was denied by order of this Court on October 23, 1967, for the reasons that the tape recordings had not been illegally made and were not illegally procured and used by the Government. 278 F. Supp. 241, 1967.
The present motion to suppress is based upon what counsel for the defendants say is "consistent with 18 U.S.C. §§ 2510-2520, recently enacted in the Omnibus Crime Control and Safe Streets Act of 1968, Pub. Law 90-351, effective June 19, 1968." The defendants move to suppress the contents of the tape recordings on the ground that disclosure of that information or its use in evidence would violate specifically § 2515 of the Omnibus Crime Control Act.
On October 6, 1966, after a lengthy inquiry into the activities of the plumbing manufacturers throughout the United States, a grand jury in the United States District Court for the Western District of Pennsylvania presented two separate indictments charging the defendants variously named in the two criminal actions with antitrust violations. The first indictment at Criminal No. 66-295 charges eight corporate defendants, a trade association and eight individual defendants, with engaging in a conspiracy, in violation of § 1 of the Act of Congress of July 2, 1890 (15 U.S.C. § 1), commonly known as the Sherman Act. This indictment charges, in substance, that the defendants conspired to fix the prices of enameled cast iron and vitreous china plumbing fixtures beginning sometime in September 1962 and continuing at least until sometime in 1966.
The second indictment at Criminal No. 66-296 charged ten corporate defendants and the trade association with engaging in a conspiracy in violation of § 1 of the Sherman Act, to fix the prices of staple vitreous and china plumbing fixtures beginning in November 1960 and continuing to June 1962.
The joint motion of the defendants here is based upon the contention that the Omnibus Crime Control Act is procedurally retroactive in effect and controls admissibility of all evidence of wire and oral interception in criminal proceedings, no matter when the interception may have occurred. This they support on the theory that the Act itself specifically states the intention to make it retroactive and so prohibit the introduction of all wire and oral interception not made as prescribed by the Act; and, even if the Act does not plainly so state, statutory construction requires that the Act be applied retroactively.
Attached to the present motion is an affidavit of Clayton Sweeney, Esquire, counsel for one of the defendants, in which he deposes to hearsay facts. However, the findings of fact have already been made heretofore on affidavits presented by the parties in previous motions. 278 F. Supp. 241, 1967.
Briefly, I here present the facts pertinent to this motion as follows: that William E. Kramer was Executive Secretary of the defendant Plumbing Fixture Manufacturers Association from February 1954 until August 5, 1963; that in the period from 1961 to 1963, allegedly in pursuance of a scheme for embezzlement, Kramer surreptitiously had a mechanical electronic device placed on the office telephone to intercept and record telephone conversations which he had with various persons, including some of the individual defendants and counsel for the Association; that on January 9, 1962, Kramer had private detectives, using hidden electronic recording devices attempt unsuccessfully to tape record a meeting of the Association which took place in the Morrison Hotel, Chicago, Illinois; that on February 21, 1962, the same detectives successfully recorded the conversations which took place at a meeting of the Association at the Knickerbocker Hotel, Chicago, Illinois; that Kramer thereafter absconded and it was allegedly learned that he had embezzled over $200,000; that counsel for the Association communicated with Kramer in the Bahama Islands at various times; that Kramer informed him that he had secretively made tape recordings of various persons connected with the Association, which contained evidence of antitrust violations by them; that if the Association prosecuted him on the embezzlement charges, he would turn over the tapes to the Government; that this information was reported to the Executive Committee and later to the members of the Association; that they considered this a "desperate effort on his part to prevent any attempt by the Association to recover the funds" and as such a "mere threat"; that the Association Executive Committee and the membership ordered the matter to be turned over to the United States Internal Revenue Service for investigation of possible violations by Kramer; that the IRS men consequently came to the Association office and, with the consent of the Executive Officer of the Association, received a certain number of tapes which they found in Kramer's desk; that subsequently on learning of possible antitrust violations as the tapes divulged such information, the IRS agents turned the tapes over to the Antitrust Division of the Department of Justice; that later a certain number of tapes were received from Kramer's sister, and still later the Department of Justice received a certain number of tapes from Mrs. Kramer, which had been in her possession and which had been directed to be turned over by Kramer; and, that from these tapes and other matters the Government commenced an inquiry and presented the tapes and other evidence to the Grand Jury at Pittsburgh which presented the indictments which followed.
We need not here discuss the various questions which have heretofore been raised and determined, except to state that many motions, many arguments and many conferences have occurred since the start of this action, which, as stated, was linked to the one at Criminal No. 66-296 already disposed of by nolo contendere pleas. At the last one of these conferences, held informally but on the record before me, on June 26, 1968, counsel for the Government agreed to turn over a copy of the tapes which the Government contemplated using in evidence at the trial of the case, and the defendants agreed to receive them through one of their number of the defendants' counsel. Thus, a set of copies of the tapes were turned over to Attorney Sweeney acting on behalf of all counsel for the defendants in this action. However, upon learning that the Omnibus Crime Control and Safe Streets Act of 1968 had become effective on June 19, 1968, Mr. Sweeney refused to permit the defendants to use or hear any of the tapes in his possession and this motion to suppress was filed.
At the argument counsel for the defendants agreed that the issue presented on the facts of this case was whether or not the Omnibus Crime Control Act precludes the use of the tapes as evidence in the forthcoming criminal proceeding trial.
Judge John Lord, Jr. of the Eastern District of Pennsylvania was recently called upon to make a determination on the production of these tapes in the hands of Mr. Sweeney for discovery purposes in civil actions for treble damages
brought by a large number of plaintiffs against the same corporate defendants in this case. In an opinion dated July 29, 1968, Judge Lord determined that the Act did not apply to the tape recordings as the action was commenced for the production of the tape recordings on the plaintiffs' motion for production under Federal Rule of Civil Procedure 34.
Counsel for the defendants here argue that Judge Lord's determination did not decide the question of admissibility of the tapes in evidence as prohibited by § 2515 of the Omnibus Crime Control Act but only as they were usable or productive under Rule 34 motions. It is not necessary for me to deal with the effect of Judge Lord's ruling in this criminal proceeding because after hearing arguments of counsel and researching their briefs, a careful examination of the Act convinces me that the Congress did not intend to and did not prohibit the use of tapes in the instant action.
The defendants argue that Congress indicated, by the language contained in the Act, that the Act was intended not only to protect the right to privacy of the public and to ban interceptions such as were engaged in by Kramer, but the Act was also intended to maintain the integrity of the court and court proceedings, and to do so retroactively. The distinction was made by the defendants between the punitive sections of the statute which delineated the crime and provided the penalties therefor and, what they called, the "remedial" ...