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494 FEDERAL REPORTER, 2d SERIES
The Supreme Court so held with respect to federal officers in the Nardone case, decided in 1937. And it so held with respect to state officers in the Benanti case, decided in 1957. Indeed, the federal courts refuse to receive in evidence, not only the substance of the intercepted conversation, but any evidence obtained as a result of leads which that conversation gave. As a result, wiretapping cannot be used effectively by the federal government or the states to aid in law enforcement, even for the most serious crimes.
The strange paradox is that under this federal law a private individual is free to listen in to telephone conversations for the most improper motives, but law enforcement officials cannot use wiretapping effectively to protect society from major crimes. Hearings on Nominations of William H. Rehnquist and Lewis F. Powell Before the Senate Committee on the Judiciary, 92nd Cong., 1st Sess., at 145 (1971). (Emphasis supplied.)
Attorney General Kennedy stated that the passage of the bill was needed for national security cases:
Wiretapping is an important tool in protecting the national security. In 1940, President Roosevelt authorized Attorney General Jackson to approve wiretapping in national security cases. Attorney General Clark, with President Truman's concurrence, extended this authorization to kidnapping cases.
As Congress has been advised each year by the Director of the Federal Bureau of Investigation, the practice has continued in a limited number of cases upon express permission from the Attorney General. But, as I have pointed out, the evidence received from these wiretaps or developed from leads resulting from these wiretaps cannot be used in court. It is an anomalous situation to receive information of a heinous crime and yet not be able to use that information in court.
And, of course, this applies not only in cases of espionage and treason but
in pressing the fight against organized crime.
H.R. 10185 would authorize wiretapping and introduction of wiretap evidence in court for the following federal offenses:
Crimes affecting the national security: Espionage, sabotage, treason, sedition, subversive activities and unauthorized disclosure of atomic energy information;
Ibid., at 146-147. (Emphasis supplied.)
I am persuaded, therefore, that the district court erred in equating an assumed presidential power to intercept with the right to "divulge or publish" that which was intercepted. I would hold that assuming a constitutional prerogative of the Chief Executive to intercept, the doctrine of Nardone prevents, under strictures of § 605, divulging or publishing the contents of the interception. In this context any use of the intercepted material beyond the confines of the Executive Branch would have been contrary to the statutory prohibition. I would remand these proceedings to the district court for reconsideration in accordance with the foregoing analysis.
On the present state of the record I would agree with the government's contention that additional overhearings of Ivanov's conversations following his conviction were not within the mandate for disclosure of "electronic surveillance which might have violated defendants Fourth Amendment rights and tainted their convictions."
Judge Van Dusen joins in this opinion.
GIBBONS, Circuit Judge (dissenting in part).
I concur in the court's determination that the district court did not err in concluding that the evidence used at Ivanov's trial was not the tainted fruit of anything heard in the electronic surveil lances the contents of which are preserved in the first set of logs. I dissent from the majority's conclusion that the
UNITED STATES v. BUTENKO
tainted fruits of the electronic surveillances the contents of which are preserved in the second set of logs were admissible at his trial because the interWhile I agree ceptions were lawful.
with much that Judge Aldisert says in
Judge Learned Hand had no difficulty
1. Nardone v. United States, supra, expressly rejected any general governmental prerogative exemption to § 605. 302 U.S. at 383. 58 S.Ct. 275. Compare with 1 W. Blackstone, Commentaries on the Laws of Eng
Obviously Congress thought as much
We do not intimate, at this time, any
605 in the foreign affairs field, we should not lightly ascribe to Congress an intent that § 605 should reach electronic surveillance conducted by the President in furtherance of his foreign affairs responsibilities. This would seem to be far too important a subject to justify resort to unsupported assumptions. Majority Opinion at 601.
He suggests, in other words, that had it
Judge Adams' interpretation of § 605 as exempting the executive's foreign af
land 261 (5th ed. 1773), which explains that "the king is not bound by any act of parliament, unless he be named therein by special and particular words."
Marvin TEICHER, Appellant.
Court of Appeals of New York.
May 12, 1981.
Dentist charged with sexual abuse of patients filed motion to controvert warrant to secretly place a camera in his dental office to videotape events of patient's visits, and to suppress film of tape used at trial. The Supreme Court, Robert M. Haft, J., 90 Misc.2d 638, 395 N.Y.S.2d 587, denied motion.
Defendant was thereafter convicted in the Supreme Court, New York County, Cropper, J., on two counts of sexual abuse in the first degree, and he appealed. The Supreme Court, Appellate Division, Kupferman, J., 73 A.D.2d 136, 425 N.Y.S.2d 315, affirmed, and appeal was taken. The Court of Appeals, Gabrielli, J., held that: (1) evidence was sufficient to support finding that first victim lacked capacity to consent to original touching because of her generally weakened condition and to establish element of sexual gratification under statute providing that person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless; (2) warrant permitting surveillance is authorized by provisions of article providing that personal property is subject to seizure pursuant to search warrant if there is reasonable cause to believe that it constitutes evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense; and (3) where probable cause was clearly established by affidavit offered by district attorney in support of his application for warrant, warrant particularly described place to be searched and things to be seized, warrant explicitly provided that surveillance be conducted in such way as to mini
52 N.Y.2d 638
mize required activities not related to specified crimes, and there were no less intrusive means for obtaining needed evidence, warrant authorizing video electronic surveillance of dentist's office was valid.
Evidence established that first victim was incapable of consenting to touching and that touching was for sexual gratification to support defendant's conviction under statute providing that a person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless. Penal Law § 130.65, subd. 2.
2. Assault and Battery 59
Defendant's act of placing victim's hand against his genital area constituted crime of sexual abuse under statute provid
ing that a person guilty of sexual abuse of first degree when he subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless. Penal Law § 130.65, subd. 2.
3. Assault and Battery 92(5)
Evidence was sufficient to prove that second victim was incapable of consenting by reason of being physically helpless under statute providing that a person is guilty of sexual abuse of first degree when he subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless. Penal Law § 130.65, subd. 2.
4. Assault and Battery
Second victim's status as a police decoy did not result in implicit consent to physical touching on ground that she voluntarily placed herself in a position to incur such abuse for purposes of statute providing that a person is guilty of sexual abuse of first degree when he subjects another person to sexual contact when the other person is incapable of consent by reason of being physically helpless. Penal Law § 130.65, subd. 2.
52 N.Y.2d 642
5. Assault and Battery
PEOPLE v. TEICHER Cite as, CL.App., 439 N.Y.S.2d 846 9. Telecommunications
Where visual material on tape did not disprove conclusion that an unlawful touching occurred, even though camera angle precluded an unobstructed view of all of defendant's activities, and trier of fact was entitled to consider police inspector's testimony as direct evidence that described touching actually occurred, there was sufficient proof that an improper touching occurred for purposes of statute providing that a person is guilty of sexual abuse in first degree when he subjects another person to sexual contact when the other person
is incapable of consent by reason of being
physically helpless. Penal Law § 130.65, subd. 2.
OPINION OF THE COURT GABRIELLI, Judge.
The present appeal arises out of nonjury trial of a dentist who stands convicted of sexually abusing two female patients while they were under the effects of sedation at defendant's office. A camera, which had been secreted in defendant's treatment room pursuant to a warrant, recorded one of the alleged incidents of sexual abuse. Several issues are raised on appeal, including the propriety of admitting into evidence a video tape of defendant's activities. In affirming defendant's conviction, we hold today that a warrant may issue to authorize the video taping of evidence to be admitted at a subsequent trial, provided certain procedures are followed and certain safeguards are observed.
439 NEW YORK SUPPLEMENT, 2d SERIES
The defendant, a dentist practicing in Manhattan, was convicted of two counts of sexual abuse in the first degree (Penal Law, § 130.65, subd. 2) for allegedly subjecting two female patients to sexual contact while they were "incapable of consent by reason 1643 of being physically helpless". The indictment upon which defendant was tried contained three counts of sexual abuse predicated upon the complaints of three of defendant's patients: Susan Hyman, Randi Carson and Dorothy Beineix. Each of the complainants alleged that they were subjected to physical contact of a sexual nature as they were recovering from the effects of sedation administered by defendant.
Susan Hyman first went to defendant's office to have a wisdom tooth extracted. After she expressed her fear that novocaine would not sufficiently deaden her pain, Dr. Teicher offered to use another method. Then, presumably to determine if she would suffer any adverse effects from the administration of a general sedative, he performed several tests on his patient and thereafter injected a fluid into her arm causing her to lose consciousness.
At trial Hyman testified that she awoke from her state of unconsciousness when she heard someone calling her name and felt something was touching her face. She opened her eyes and saw an exposed penis directly in front of her. Closing her eyes again, she reopened them to see a pair of trousers being zipped shut. Defendant then slapped her face, touched her blouse and lifted her from the dental chair. Hy man was still groggy and could not control her arms and legs. Defendant told her to "ventilate" her arms and he then drew her close to him and kissed her. While the patient was still unable to stand, defendant, while supporting her body, moved his hands over her breasts and thighs.
Several days following this encounter Ms. Hyman reported the incident to the police. The police equipped her with a hidden microphone before her next visit to the dentist, but when she questioned defendant about his prior activities he refused to admit that he had sexually assaulted her. He
52 N.Y.2d 642
did, however, ask Ms. Hyman to join him at his hotel room. She refused his invitation, agreeing instead to meet with him at a nearby bar. On this next rendezvous Hy. man was once more equipped with a recording device, but once again defendant made no admission of illegal conduct.
The police also received a complaint from Randi Carson, who had initially gone to defendant's office for an examination and X rays and later returned for further treatment. As in Ms. Hyman's case, the defendant gave Ms. Carson a drug, which caused her to lose consciousness immediately. When she awakened she was assisted into a recovery room and, while she was resting there and still overcoming the effect of the drug which had been injected, defendant entered the room and closed the door behind him. No one else was present. Defendant at first tried to lift Carson to a standing position, but his efforts were unsuccessful. He then lifted her hand and placed it on his pants directly over his penis. Although she was still weak, Carson testified she was able to pull her hand away. Carson also testified that defendant kissed her during this encounter and made a remark which she understood as a request to perform an act of oral sex. In addition, according to Carson, he repeatedly asked her to meet with him at his hotel room.
Later, upon arriving home, Carson noticed
that her underwear was wet and that there was a soreness on the left side of her vagina which she had not felt before her visit to the doctor. That evening Carson brought her complaints to the police.
Carson later returned to defendant's office wearing a hidden microphone supplied by the police, but no further acts of sexual abuse were recorded or observed by the patient. After this visit defendant telephoned Carson several times at her home to ask her if he could visit with her. Finally, Ms. Carson again returned to defendant's office with a microphone. In response to her attempts to elicit admissions of sexual abuse from the dentist, however, defendant told her only that the drug he had injected had caused her to imagine the incident of
which she later testified.