United States v. Frankenthal

Defendant-appellant Betty Frankenthal was charged in the first count of a five-count indictment with conspiring to intercept, to endeavor to intercept, and to procure other persons to intercept wire communications and, by means of electronic devices, oral communications, in violation of 18 U.S.C. §§ 371, 2511(1)(a), 2511(1)(b)(iv)(A). Her co-conspirators were alleged to be her deceased father, Siegfried Frankenthal, and a private investigator hired by the Frankenthals, Jerome Leonard. The second, third, and fourth counts of the indictment charged her with endeavoring to use and procuring others to use electronic devices to intercept oral communications at three commercial establishments which were in competition with the Frankenthal family business. Count V charged appellant with intercepting, endeavoring to intercept, and procuring another person to intercept wire communications at one of the meat-packing plants in the family business. A jury convicted appellant on all counts, the district court sentenced her to two years of probation, and fined her $3,000 for each count, and this appeal followed. Our disposition of the issues presented to us requires no extensive statement of the facts proved at trial. It suffices to state that the evidence tended to prove that Siegfried Frankenthal felt, in the fall of 1976, that certain of his competitors, with the possible aid of some of his employees, were conspiring to ruin his business by spreading rumors about his health. At his direction appellant communicated with Jerome Leonard, an investigator previously used by the Frankenthals, and arranged a meeting. The Frankenthals knew Leonard had been convicted of illegal wiretapping. At the first meeting, at which appellant was present, her father proposed electronic surveillance. Leonard replied that that was illegal, and the discussion proceeded into consideration of possible physical surveillance. After receiving a large retainer, Leonard approached a fellow investigator, one Layman, and proposed using electronic surveillance on the job. He returned to the Frankenthals and told them he would use wall taps to monitor conversations in the competitors' plants, at which point Mr. Frankenthal again proposed recording the conversations overheard. Layman subsequently approached the Federal Bureau of Investigation and told them what he knew, and it was agreed that Layman would continue to ""cooperate"" with Leonard. The F.B.I. subsequently arranged for the consented taping of staged conversations at the competitors' plants. These tapes were given to Leonard, and by him to the Frankenthals. In various telephone calls between appellant and Leonard, instructions on continuation of the monitoring were given. Appellant also worked with and instructed another person obtained by Leonard in eavesdropping on and recording various telephone calls made by Frankenthal employees from a Frankenthal plant.