driver was a member, the inference does not necessarily follow that a Grand Jury impaneled two years later also had presented for their consideration the same or similar unlawful evidence. In United States v. Pillon, D.C., 36 F.Supp. 567, two prior indictments had been dismissed because they were based upon intercepted telephone communications. A petition was filed calling the court's attention to the two previous proceedings and resulting dismissal of the indictment. On page 568 of 36 F.S upp. of the opinion, Judge Byers answered the petitioners contention:
'* * * having suffered the dismissal of the earlier indictments for the reason stated, it is manifestly improbable that the Government would do such idle thing as to again rely upon evidence which the Supreme Court has condemned in plain and unmistakable terms.'
The defendant is further precluded from the relief he presently seeks because he is not in a position to assert this right. The measure of the straits in which the defendant has placed himself becomes apparent at this point. Defendant denies he knew the Nelsons at any time prior to 1949; yet he is now seeking to have the evidence suppressed, because there was an interception of an 'alleged' telephone call between 'Joe' and Mrs. Nelson in March of 1943. This is the only telephone call alluded to by the defendant. The court asked counsel for Dr. Weinberg if the latter was admitting he made such a telephone call. Counsel replied no such admission was being made. Thus, the record does not disclose, as a matter of fact, that the defendant was a participant in any intercepted telephone conversation. In Goldstein v. United States, 316 U.S. 114, 62 S. Ct. 1000, 86 L. Ed. 1312, the Supreme Court was petitioned to extend Sec. 605 of the Federal Communications Act, 47 U.S.C.A. 605, so as to make available to one, not a party to the intercepted communication,the standing to object to the divulgence of such evidence. The Supreme Court refused to be so persuaded and by analogy on page 121 of 316 U.S., on page 1004 of 62 S. Ct. of the opinion explained:
'No court has ever gone so far in applying the implied sanction for violation of the Fourth Amendment. While this court has never been called upon to decide the point, the federal courts in numerous cases, and with unanimity, have denied standing to one not the victim of an unconstitutional search and seizure to object to the introduction in evidence of that which was seized. A fortiori the same rule should apply to the introduction of evidence induced by the use or disclosure thereof to a witness other than the victim of the seizure. We think no broader sanction should be imposed upon the Government in respect of violations of the Communications Act. The court below was of the view that a divulgence of the intercepted messages might lawfully be made with the consent of the sender, and we agree. The court further thought that, as the sender might make such divulgence lawful by his consent, none but he was intended to be protected against divulgence by the statute. Again we agree.'
The same reasoning quoted from the Goldstein case, supra, apply to the facts surrounding the alleged interception of mail in this case. Defendant once more is saddled to his position and so long as he refuses to affirmatively identify himself as the sender of the letter he is not within the purview of the Fourth Amendment protecting victims against unlawful search and seizure.
Although defendant requests suppression of all recordings of conversation in private homes he indicates no knowledge of any such recordings ever having been made. Even if there were a basis, in fact, upon which the court might proceed there is serious question whether the defendant's legal theory has any support in light of Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 and On Lee v. United States, 343 U.S. 747, 72 S. Ct. 967.
Defendant's motion to suppress the evidence on the grounds that it was illegally obtained and the motion to dismiss based on the alleged use of unlawful evidence are, accordingly, denied.
There is remaining one additional matter. Apparently, the defendant presupposed a hearing would be granted to enable him to prove his belief regarding alleged wiretapping. The hearing having been denied and the subpoenas, served on the Director of the F.B.I and the Attorney General of the United States, having no independent standing, they are hereby quashed. United States v. Hiss, D.C., 9 F.R.D. 515; United States v. Frankfeld, supra; and United States v. Flynn, supra.
Although the present motion seeking a hearing is overruled, the order to that effect will be without prejudice to any subsequent motion, based on knowledge of a particular intercepted message, wherein the defendant is the sender.
Let an order be submitted accordingly.
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