that he was a source of the documents sometime during his conversation with Truong. As well, when the government eavesdrops on clandestine groups like this one, investigators often find it necessary to intercept all calls in order to record possible code language or oblique references to the illegal scheme. See United States v. Clerkley, 556 F.2d 709 (4 Cir.1977), cert. denied sub nom. London v. United States, 436 U.S. 930, 98 S.Ct. 2830, 56 L.Ed.2d 775 (1978) (approving blanket surveillance of numbers operation in order to determine the participants). Thus, on the facts of this case, surveillance conducted by the government agents was reasonable."

the

C. Package Search

[5] The FBI and the CIA searched one of the packages Truong sent to Paris by Krall without either the authorization of the Attorney General or a search warrant. Because the government agents did not receive executive authorization, the foreign intelligence exception to the warrant requirement does not legitimate this search. Nevertheless, because Truong did not have a legitimate expectation of privacy in the package, see United States v. Rabinowitz, 339 U.S. 56, 65-66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950), the district court did not err in permitting the contents of the package to be admitted into evidence.

The package of documents was contained within an unsealed manila envelope. Inside the envelope was a transparent bookbag, loosely tied with twine. Although the documents were partially shielded from view by opaque pieces of paper, some parts of the documents could be seen through the bookbag. Thus, Truong had not made a diligent effort to conceal the documents from view.

917

Moreover, Truong knew that this flimsily wrapped package would cross at least two national boundaries on its way to Paris. This risk of inspection when Krall left the United States and when she entered France militates against any expectation of privacy by Truong. See United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). Therefore, because the package was poorly wrapped and because it was destined for foreign delivery, Truong could not have harbored a reasonable expectation that the contents of the package would remain undisclosed; and consequently neither a search warrant nor executive authorization was necessary for this search.

7.

In addition to the surveillance of Truong, the government installed a secret video tape camera in Humphrey's office at the United States Information Agency. In his brief, Humphrey does not discuss this intrusion at length, perhaps because the evidence obtained from the video tape did not play an important role at trial. In any case, we affirm the ruling of the district court that the video-taping was reasonable up to July 20, because the FBI took steps to minimize the intrusion and because the tap

III.

The defendants were convicted of several violations of the espionage statutes and related provisions. Truong and Humphrey raise a number of challenges to these convictions.

A. Espionage Statutes

The jury found that the defendants had violated three espionage provisions, 18 U.S.C. § 794(a), § 794(c), and § 793(e). Two principal objections are made by the defendants to their convictions under these statutes, and we will consider them in or der:

(1) National Defense

[6] A common prerequisite for a conviction under each of the statutes is that the defendant transmit information "relating to the national defense." The defendants argue that this phrase limits the reach of the statutes to military matters and assert that none of the materials transmitted by

ing was necessary to determine how Humphrey handled government documents while at work

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[8] We are mindful of the strict standard of review of jury verdicts on the issue of contributory negligence. However, with knowledge of the precise location and dimensions of the defective pavement, Garr proceeded "not thinking" down the sidewalk. We hold that under Pennsylvania law, Garr was contributorily negligent as a matter of law. The judgment of the district court will be reversed.

KEY NUMBER SYSTEM

UNITED STATES of America, Appellee,

V.

Bertram E. SEIDLITZ, Appellant.
No. 76-2027.

United States Court of Appeals,
Fourth Circuit.

Argued July 19, 1978.

Decided Dec. 5, 1978.

Defendant was convicted in the United States District Court for the District of Maryland, Alexander Harvey, II, J., of two counts of fraud by wire, and he appealed. The Court of Appeals, Field, Senior Circuit Judge, held that: (1) use of telephone tracers and "spy" attachment to computer in order to trace the unauthorized user of information stored in computer system did not constitute invalid electronic surveillance so as to invalidate warrant to search defendant's premises, and (2) there was sufficient evidence from which jury could find that computer system was "property" and that defendant had fraudulent intent in using information in computer system without authorization.

Affirmed.

1. Criminal Law 394.4(1) A judicially fashioned rule of exclusion applies where surveillance does not comport with Fourth Amendment requirements. U.S.C.A.Const. Amend. 4.

2. Telecommunications

494

Communications Act of 1934 had no bearing on legality of activities involving interception of communications with computer system where such communications took place over commercial telephone circuits. Communications Act of 1934, § 605, 47 U.S.C.A. § 605.

3. Telecommunications 494

Telephone traces which did not interfere with or observe the contents of dialogues but merely traced source of communications did not constitute "interceptions" of communications proscribed by Title III of Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C.A. § 2510(4).

7(1)

It is no part of policy underlying Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost in their ability in the apprehension of criminals; Fourth Amendment and the exclu sionary rule by which it is enforced come into play only where it appears from all of

Q. Well, isn't it true that if you have a reason for extending beyond the half hour, like gloves, that you wouldn't be docked for that?

A. You wouldn't be docked for anything. App. at 96a.

David M. Dorsen, Washington, D. C. (Sachs, Greenebaum & Tayler, Washington, D. C., Beverly Sherman Nash, Washington, D. C., Sachs & Greenebaum, Chevy Chase, Md., on brief), for appellant.

1. The federal wire fraud statute, 18 U.S.C. § 1343, provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

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Robert A. Rohrbaugh, Asst. U. S. Atty, Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and HALL, Circuit Judge.

FIELD, Senior Circuit Judge:

Bertram Seidlitz appeals from his conviction on two counts of fraud by wire in violation of 18 U.S.C. § 1343. As grounds for reversal, he urges that the trial court erred in its denial of a pretrial motion to suppress evidence, and that the prosecution failed to establish certain material elements of the crime. Although advanced in a somewhat novel factual context, we find appellant's contentions to be without merit

On January 1, 1975, defendant Seidlitz assumed the position of Deputy Project Director for Optimum Systems, Inc. (OSI), a computer service company which was under contract to install, maintain, and operate a computer facility at Rockville, Maryland, for use by the Federal Energy Administration (FEA). Under the arrangement between OSI and FEA, persons working for FEA in various parts of the country could use key boards at communications terminals in their offices to send instructions over telephone circuits to the large computers in Rockville, and the computers' responses would be returned and reflected on a CRT (cathode ray tube) terminal which is a typewriter-like device with a keyboard and display screen similar to a television screen upon which the information is displayed as it is sent and received. Mr. Seidlitz helped 2. A remote user would dial on an ordinary telephone one of the several unpublished telephone numbers to which OSI subscribed and which were assigned to the computers. would then connect the telephone to his termnal so that messages could be relayed between the terminal and the computers in the form of signals traveling over the telephone line. Be cause any of a number of commercially available terminal units could accomplish such a link to the computers, the user, as a security pre caution, had to enter on his terminal keyboard a special access code before he would be permitted full use of the system. The code con

He

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to prepare the software which was installed at the Rockville facility as part of the project, and he was also responsible for the security of the central computer system. During his tenure, he had full access to the computers and to a software system known as "WYLBUR" which resided within them.' In June, 1975, Seidlitz resigned this job and returned to work at his own computer firm in Alexandria, Virginia.

William Coakley, a computer specialist employed by FEA, was assigned temporarily to the OSI facility. On December 30, 1975, in an attempt to locate a friend who might be using the OSI system, he had the computer display the initials of everyone who was then using the WYLBUR software. Among the initials displayed by the computer were those of his supervisor, who was standing nearby and who was not using the computer. Suspicious that an unauthorized "intruder" might be using these initials in order to gain access to the system, Coakley asked Mr. Ewing, an OSI employee, if Ewing could determine what was happening. He also asked Mr. Wack, an OSI supervisor, if he (Wack) could determine whether the mysterious user was at a remote terminal or at one of the terminals within the OSI complex which were directly wired to the computer and did not employ telephone circuits. Ewing instructed the computer to display for him the data it was about to transmit to the possible intruder, and it proved to be a portion of the "source

tained, among other things, the user's personal initials, which were to be invalidated when he left OSI or FEA. This "access code" would be communicated to the central computers which, if they recognized the code as belonging to an authorized user, would proceed to perform the work the individual sent along.

3. To be distinguished from "hardware", which is the tangible machinery of the computer, "softwear" refers to the logic and directions loaded into the machine that cause it to do certain things on command.

4. The WYLBUR software system facilitated the computers' exchanges with FEA users at the remote terminals. It contained no classified FEA information, but rather enabled the computers to perform tasks assigned to them by FEA personnel. An OSI manual described WYLBUR as "an online interactive text editor

code" of the WYLBUR software system. Using other data provided by the computer, Wack concluded that the connection was by telephone from outside the complex. At his request, the telephone company manually traced the call to the Alexandria office of the defendant.' Wack was told that the trace was successful, but the telephone company informed him that it could not divulge the results of the trace except in response to a legal subpoena.

The following day, OSI activated a special feature of the WYLBUR system known as the "Milten Spy Function," which automatically recorded, after they had been received by the machinery at Rockville, any requests made of the computer by the intruder. The "spy" also recorded, before they were sent out to the intruder over the telephone lines, the computer's responses to such requests. Mr. Wack again asked the telephone company to trace the line when it was suspected that the unauthorized person, employing the same initials, was using the computer to receive portions of the WYL

BUR source code. This manual trace on December 31 led once more to the defendant's office in Virginia, although OSI was not so informed.

Advised by OSI of the events of December 30 and 31, the FBI on January 3, 1976, secured, but did not then execute, a warrant to search the defendant's Alexandria office. At the FBI's suggestion, the tele

designed to facilitate the creation of text and to provide a powerful and comfortable tool for changing, correcting, searching and displaying text."

5. See n. 2, supra.

6. A source code is a programming language, understandable to humans, in which a computer is given instructions.

7. A manual trace is accomplished without listening in on the line or breaking into the conversation. It entails a physical tracing of the telephone circuitry backward through the various switching points from the equipment which receives the call.

8. The affidavit in support of the application for the warrant related that the intrusions had

phone company conducted two additional manual traces when alerted to incoming calls by OSI, but in each instance the calls were terminated before the traces had progressed beyond the telephone company's office in Lanham, Maryland, which served 10,000 subscribers. The phone company then installed "originating accounting identification equipment” in the Lanham office, the function of which was to automatically and quickly ascertain, without intercepting the contents of any communication, the telephone number of any of the 10,000 area telephones from which any subsequent calls to the OSI computers originated. Two such calls were made on the morning of January 9, and the equipment attributed both of them to a phone at the defendant's Lanham residence. That afternoon, the FBI executed the warrant to search Seidlitz' Alexandria office, seizing, among other items, a copy of the user's guide to the OSI system and some 40 rolls of computer paper upon which were printed the WYLBUR source code. A warrant was then issued to search the Seidlitz residence in Lanham, where officers found a portable communications terminal which contained a teleprinter for receiving written messages from the computer, as well as a notebook containing information relating to access codes" previously assigned to authorized users of the OSI computers.

10

The indictment handed down on February 3, 1976, charged that the defendant had, on December 30 and 31, transmitted tele

been detected, that OSI had "furnished written release" to receive information regarding the telephone traces of December 30 and 31, and that the telephone company had disclosed to the FBI that the calls originated from the defendant's office. It also stated that, as a result of an investigation of former OSI employees and interviews with OSI personnel, the FBI, prior to the receipt of the trace information, had ascertained Seidlitz' business address and concluded that he was the chief suspect.

9. The information on these printouts was identified at trial as being identical to the information recorded by the "spy" program on December 31.

10. The affidavit in support of the application for this warrant in essence contained the same statements made in the application for the pri

155

phone calls in interstate commerce as part of a scheme to defraud OSI of property consisting of information from the computer system.12 A motion to suppress the evidence seized from the office and the resi dence was considered at a hearing on April 30,13 after which the district judge rendered an oral opinion rejecting the defendant's argument that the searches were invalidated by the use of illegal electronic surveillance to obtain the information contained in the affidavits supporting the warrants. Specifically, the district judge ruled that (1) as to the information obtained by use of the "spy", Section 605 of the Communications Act of 1934, 47 U.S.C. § 605, does not apply, and neither Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et seq., nor the Fourth Amendment were violated, since the information was obtained with the consent of a party to the defendant's telephonic communications, and (2) with respect to the trac ing of the telephone calls, neither Title III nor the Fourth Amendment are offended when, as in the "pen register" cases, the number of the telephone from which a call is placed is determined by a process which does not entail the interception of the conobjection, much of the challenged evidence tents of the communication. Over defense was admitted at trial, and the telephone traces, as well as the operation of the "Milten Spy", were described to the jury. In the face of this evidence, the defendant conceded that he had retrieved the informa.

or warrant. See n. 8, supra. In addition, it related that the FBI had been informed that Seidlitz maintained a communications terminal at his home, that the search of the office had not uncovered the terminal, and that the telephone company's trace of the calls that morning indicated that they were made from the defendant's residence.