United States v. Harpel
493 F.2d 346
In the United States Court of Appeals for the Tenth Circuit
Case Number 73-1408
Before Chief Judge Lewis, Circuit Judge Murrah, and Circuit Judge McWilliams
Decided on March 12, 1974

Relevancy of the case: Appeal against the conviction in a case involving disclosure of an unlawfully intercepted wire communication

Statutes and Provisions Involved

• The Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520

Relevant Facts of the Case

• A telephonic conversation took place between two law enforcement parties from the Colorado Police Department and the Bureau of Narcotics and Dangerous Drugs in Denver, Colorado.
• Harpel played a tape recording of this conversation in a local bar on at least two occasions. However, there is no evidence pointing to who recorded it and how.
• However, it has been established there was no consent to record from the parties to the conversation.
• A jury trial at the District Court found Harpel guilty of disclosing an unlawfully intercepted wire or oral communication violating Section 2511.

Prominent Arguments by the Advocates

• The appellant’s counsel argued that the conversation did not fall under the statutory definition of interception of oral communication. He further contended that there is no interception of wire communication in this case. Using a telephone extension is a statutory exception. The evidence does not directly point out if a telephone extension was used. Hence, the burden of proof lied with the government to establish that the interception did not involve a telephone extension.
• The Assistant US Attorney argued that telephone extension is a statutory exception. As such, the defendant must establish that he used such a device. Moreover, there was no consent or judicial authorisation to record the conversation.

Opinion of the Bench

• The tape recorder is not an intercepting mechanism as it was connected to a telephone receiver.
• The government has the burden of proof to establish that the defendant obtained the contents of a wire or oral communication through a device other than the telephone used by the subscriber in the ordinary course of business.
• However, the evidence of the defendant’s guilt is substantial.

Final Decision

• The bench affirmed the trial court’s judgment.