United States of America, Appellee, v. William J. Adams, an Individual, Trading As Vitamin Products Co. of Maryland, Appellant, 410 F.2d 755 (4th Cir. 1969)

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US Court of Appeals for the Fourth Circuit - 410 F.2d 755 (4th Cir. 1969) Submitted May 6, 1969
Decided May 13, 1969

Daniel H. Honemann, Baltimore, Md. (Court-appointed counsel), on brief, for appellant.

Stephen H. Sachs, U. S. Atty., Nevett Steele, Jr., Asst. U. S. Atty., William W. Goodrich, Asst. General Counsel, and Joanne S. Sick, Attorney, Dept. of Health, Education, and Welfare, on the brief, for appellee.

Before HAYNSWORTH, Chief Judge, and BRYAN and WINTER, Circuit Judges.

PER CURIAM:


The appellant was tried and convicted of violations of The Food, Drug, and Cosmetic Act (21 U.S.C. § 331(k)). On various occasions inspectors of the Food and Drug Administration visited the appellant and represented themselves to be prospective customers. During their conversations incriminating statements made by the appellant were transmitted, via a transmitter hidden on one of the inspectors, outside to Inspector Bullard who overheard and recorded them on a tape-recorded. The appellant urges that this was a violation of the Fourth Amendment. We need not reach this constitutional question, for, at the appellant's trial, Inspector Bullard did not testify nor were the tape recordings offered in evidence. The incriminating statements were repeated in court only by the inspectors who were parties to the conversations. Even though the inspectors concealed their true identity, they were not an "uninvited ear." The appellant assumed the risk that the inspectors as well as all of his other customers might repeat statements he made to them.

In avoiding the constitutional question, we do not intend to intimate that we think it one of substantiality, or insubstantiality.

This Court has carefully considered the appellant's other contentions and finds them to be without merit.

Affirmed.