Section 605 of the Federal Communications Act does not render
inadmissible in a criminal trial in a federal court, testimony
(otherwise admissible) of witnesses who were induced to testify by
the use, in advance of the trial, of communications intercepted in
violation of the Act, but to which communications the defendants
were not parties. P.
316 U. S.
117.
120 F.2d 485 affirmed.
Certiorari, 314 U.S. 588, to review the affirmance of
convictions of using the mails to defraud and of conspiracy to do
so.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
This case involves the alleged violation of § 605 of the Federal
Communications Act [
Footnote 1]
by the admission of testimony in a federal criminal trial. The
importance of the
Page 316 U. S. 115
questions presented, and a claimed conflict with our decisions,
moved us to grant certiorari. 314 U.S. 588.
The petitioners and others were indicted under the mail fraud
[
Footnote 2] and conspiracy
[
Footnote 3] statutes. The
alleged scheme was to defraud insurance companies by presenting
false claims for disability benefits.
At the opening of the trial, the petitioners moved that the
court suppress all records and transcripts of intercepted telephone
messages; suppress all evidence the Government obtained by the use
of such messages; suppress the testimony of any witness obtained in
the first instance by the use of such messages, and that of any
witness whose recollection had been refreshed or aided by such
messages.
A preliminary hearing was conducted by the trial judge in
accordance with the practice established in
Nardone v. United
States, 308 U. S. 338. The
principal subject of contention was the prospective testimony of
Messman and Garrow, alleged coconspirators who, the petitioners
asserted, had confessed and turned state's evidence because they
had been confronted with intercepted telephone messages. Messman
and Garrow were parties to these messages, or some of them, but the
petitioners were not. [
Footnote
4] The judge ordered all records and transcripts of intercepted
messages suppressed, as well as all evidence obtained as a result
of such messages, but he refused to order suppression of the
testimony of witnesses whose memories had been refreshed or aided
thereby. He reserved to the trial final decision on so much of the
motion
Page 316 U. S. 116
as requested the suppression of testimony alleged to be the
result of information derived from the messages.
At the trial. government witnesses testified that wiretapping
had not furnished clues used in preparing the case. Messman and
Garrow were permitted to testify to the facts of which they claimed
to have knowledge, over the objection of petitioners. They did not
refer to any intercepted messages or to their contents.
The petitioners were convicted, and the judgments were affirmed
on appeal. [
Footnote 5] The
Circuit Court of Appeals held that the convictions ought not to
stand if either Messman or Garrow should not have been allowed to
testify. It thought that, the petitioners having proved divulgence
by federal officers of the messages to the witnesses, the burden
was upon the Government to prove that their testimony was not
induced thereby; that the trial judge failed to find the
wiretapping had not been a means of inducing them to testify, but
found only that the petitioners had failed to prove it had been the
means. In this situation, the court was of opinion that, if the
admission of testimony induced by use of the messages was
prohibited by the Communications Act, the judgments should be
reversed. The court ruled, however, that, as the petitioners were
not parties to any of the intercepted communications, they had no
standing to object to their divulgence. In the alternative, it
ruled that the testimony was not a divulgence within the meaning of
§ 605, but, at most, the presentation in court of evidence procured
through past divulgences. The court also overruled petitioners'
contentions that they had been denied their full right of
cross-examination at the preliminary hearing, and that the charge
to the jury was improper.
We have considered all the assignments of error, but find no
substance in any of them save those which go to the admission of
Messman's and Garrow's testimony. In
Page 316 U. S. 117
briefs and oral argument, the parties have labored the subject
of the burden of proof at the preliminary hearing. The petitioners
say it lay with the Government after a showing of wiretapping and
divulgence; the respondent says it lay with the petitioners
throughout. Each asserts the other failed to carry it. In our view,
a decision upon the point is unnecessary.
We come to the capital and pivotal question: assuming the
witnesses' testimony was induced by divulging to them the contents
of intercepted telephone messages, was the admission of this
testimony erroneous? We hold that it was not.
The petitioners assert that § 605 of the Federal Communications
Act forbids the admission of evidence obtained by the use in
advance of the trial of unlawfully intercepted telephone
conversations, and that one who was not a party to such
communications has standing to object to the admission of such
evidence. They insist that the decisions of this court in
Weiss
v. United States, 308 U. S. 321, and
Nardone v. United States, 308 U.
S. 338, require us so to hold and that the court below,
in ruling to the contrary, failed to follow those decisions.
It may be helpful in the consideration of these contentions to
quote the relevant portions of the statute and to recapitulate this
court's decisions in cases involving the admission of evidence in
alleged violation of its terms. The relevant provisions of the
section declare that
". . . no person not being authorized by the sender shall
intercept any communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person,"
and that
"no person having received such intercepted communication or
having become acquainted with the contents, substance, purport,
effect, or meaning of the same or any part thereof, knowing that
such information was so obtained, shall divulge or publish the
existence, contents,
Page 316 U. S. 118
substance, purport, effect, or meaning of the same or any part
thereof, or use the same or any information therein contained for
his own benefit or for the benefit of another not entitled thereto.
. . ."
In
Nardone v. United States, 302 U.
S. 379, we held that the Government's introduction of
transcripts and recordings of intercepted interstate messages in
the trial of a criminal case constituted a divulgence of such
messages contrary to the express terms of the statute.
In
Weiss v. United States, 308 U.
S. 321, intrastate telephone communications were
intercepted by federal agents, their contents were divulged to
certain of the defendants, and, as a result, these defendants
confessed and agreed to turn state's evidence. They were permitted
to testify to the contents of the messages. We held that the
interdiction of the statute extended to the interception and
divulgence of intrastate, as well as interstate, messages. In the
light of the facts, we denied the Government's claim that the
witnesses' testifying to the contents of the messages amounted to
an authorization by them, as senders, of the divulgence of the
communications within the meaning of the statute.
In
Nardone v. United States, 308 U.
S. 338, it was claimed that unlawfully intercepted
messages had been used to obtain evidence against the senders, and
that such use, and the introduction of the evidence so obtained
over the objection of the senders, who were defendants, constituted
a violation of the purpose and policy of the statute. We held that,
if the facts sustained the claim, the evidence should have been
excluded, and we formulated a procedure for ascertaining the
facts.
In none of these cases did this court pass upon the question now
presented. In the instant case, the witnesses who confessed and
turned state's evidence did not testify either to the existence of
the communications or to their contents. The contents of messages
to some of
Page 316 U. S. 119
which they were parties, but to which the petitioners were not
parties, were used by the Government, as we assume, to persuade the
witnesses to testify. We further assume that the interception and
divulgence of the messages to these witnesses was unlawful, because
not authorized by the sender.
The petitioners urge that our decision in
Weiss v. United
States, supra, necessarily involved the ruling that one who
was not a party to the intercepted messages has standing to object
to their divulgence at the trial, and, in view of our application
of the statute in
Nardone v. United States, 308 U.
S. 338, he has standing to object to testimony induced
as a result of unlawful interception and use of the messages.
The question now presented was not decided in
Weiss v.
United States, supra. The charge was conspiracy. Goldstein,
who was not a participant, and other defendants who were
participants in the intercepted conversations were tried together.
All objected to testimony respecting the conversations. We held the
evidence inadmissible. The fact that Goldstein was not a party to
the communications was not overlooked. In the opinion rendered by
the Circuit Court of Appeals, it was held that the fact could not
sustain his conviction if the messages were erroneously introduced.
[
Footnote 6] This court
assumed, in deciding the case, that the Circuit Court of Appeals
was right in holding that, if the admission of the evidence was
wrong as to the other defendants, the
Page 316 U. S. 120
judgment ought to be reversed as to all. And the Circuit Court
of Appeals was of opinion in the present case that, in the
circumstances, the messages could not have been used in the
Weiss case against one of the defendants and excluded as
to the others with any reasonable expectation that prejudice would
not have resulted to the defendants as to whom the admission of the
messages would have been error. [
Footnote 7] In this view, we concur.
None of the petitioners was a party to the communications used
in obtaining the evidence in this case. No prejudice, therefore,
could result by reason of the difficulty of nullifying the effect
upon some defendants of evidence incompetent as to them but
competent as against other defendants.
It has long been settled that evidence obtained in violation of
the prohibition of the Fourth Amendment cannot be used in a
prosecution against the victim of the unlawful search and seizure
if he makes timely objection. [
Footnote 8] This for the reason that otherwise the policy
and purpose of the amendment might be thwarted. And we have further
held that the policy underlying the amendment cannot be
circumvented by the direct use against the victim of evidence so
obtained. [
Footnote 9]
Although the unlawful interception of a telephone communication
does not amount to a search or seizure prohibited by the Fourth
Amendment, [
Footnote 10] we
have applied the same policy in respect of the prohibitions of the
Federal Communications Act at the instance of the sender of the
message against whom evidence derived from its unlawful
interception is sought to be introduced.
Nardone v. United
States, 308 U. S. 338.
Page 316 U. S. 121
The question now to be decided is whether we shall extend the
sanction for violation of the Communications Act so as to make
available to one not a party to the intercepted communication the
objection that its use outside the courtroom, and prior to the
trial, induced evidence which, except for that use, would be
admissible.
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, [
Footnote 11] 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. [
Footnote 12]
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. [
Footnote 13] Again, we agree.
Page 316 U. S. 122
The petitioners, however, point out that the statute also
forbids the use of an unlawfully intercepted message, or any
information therein contained, by any person for his own benefit or
the benefit of another not entitled thereto, and they say that the
Government officials violated the Act by using the messages and the
information they contained, to induce the senders' confessions and
testimony. They urge that such use is forbidden by the Act, and
that they have standing to object to the introduction of the
evidence thus obtained. The Government answers that this provision
of the Act was not intended to reach the use of the contents of the
messages by federal officers for obtaining evidence, but was meant
to prevent use for the personal advantage or benefit of the user.
We have no occasion to determine the soundness of the Government's
argument.
We are of opinion that, even though the use made of the
communications by the prosecuting officers to induce the parties to
them to testify were held a violation of the statute, this would
not render the testimony so procured inadmissible against a person
not a party to the message. This is the settled common law rule.
[
Footnote 14] There was no
use at the trial of the intercepted communications, or of any
information they contained as such. If such use as occurred here is
a violation of the Act, the statute itself imposes a sanction.
[
Footnote 15]
The judgments are
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
[
Footnote 1]
Act of June 19, 1934, c. 652, 48 Stat. 1064, 1103, 47 U.S.C. §
605.
[
Footnote 2]
Criminal Code § 215, 18 U.S.C. § 338.
[
Footnote 3]
Criminal Code § 37, 18 U.S.C. § 88.
[
Footnote 4]
It is said that petitioners have now discovered that Goldstein
was a participant in twelve of the intercepted telephone
conversations, but it is admitted that the record does not disclose
this fact, and there is no allegation that any of the twelve
communications were used in obtaining the confessions.
[
Footnote 5]
120 F.2d 485.
[
Footnote 6]
"It may be said with some plausibility that the defendant
Goldstein was not prejudiced, since he was neither a party to, nor
mentioned in, the conversations obtained through wiretapping. These
conversations, however, showed that Goldstein's codefendants were
engaged in a conspiracy which other proof indicated that he joined.
They also gave credence to the testimony of Messman. Such evidence
weighed against Goldstein, and his conviction ought not to stand if
the communications implicating the others were improperly
received."
103 F.2d 348, 352.
See also United States v. Thomson,
113 F.2d 643.
[
Footnote 7]
120 F.2d p. 489.
[
Footnote 8]
Weeks v. United States, 232 U.
S. 383.
[
Footnote 9]
Silverthorne Lumber Co. v. United States, 251 U.
S. 385.
[
Footnote 10]
Olmstead v. United States, 277 U.
S. 438;
Goldman v. United States, 316 U.
S. 129.
[
Footnote 11]
The privilege against self-incrimination afforded by the Fifth
Amendment is personal to the witness.
Hale v. Henkel,
201 U. S. 43;
Wilson v. United States, 221 U. S. 361.
[
Footnote 12]
The principle has been applied in at least fifty cases by the
Circuit Courts of Appeals in nine circuits and in the Court of
Appeals for the District of Columbia, not to mention many decisions
by District Courts. Many of the cases are collected in Note 168 to
the text of the Fourth Amendment in the United States Code
Annotated.
[
Footnote 13]
It has been held that both parties to a telephone conversation
are senders as the statute uses the term.
United States v.
Polakoff, 112 F.2d 888.
[
Footnote 14]
Olmstead v. United States, 277 U.
S. 438,
277 U. S.
466-467.
[
Footnote 15]
Section 501, 47 U.S.C. § 501.
MR. JUSTICE MURPHY, dissenting.
THE CHIEF JUSTICE, MR. JUSTICE FRANKFURTER, and I cannot agree
with the opinion of the Court.
Page 316 U. S. 123
Messman and Garrow were the chief witnesses for the Government,
and the testimony of each was vital. It is not disputed that
Messman turned state's evidence after he was confronted with the
contents of telephone messages which implicated him in the offense,
but which had been obtained by wiretapping in violation of § 605 of
the Federal Communications Act. The extent of the unlawful
"tapping" and the keen desire of the Government officials to use
the "taps" to secure other testimony are graphically illustrated by
the following statement made by an assistant United States attorney
to Messman after his arrest:
"I am telling you before we go any further that there is no use
of us kidding each other. We have watched your telephone; we have
watched all these lawyers' telephones; we have had rooms tapped. We
know what is going on. We are not stabbing in the dark. If you want
to hear your voice on a record, we will be glad to play it. In your
instance, Doctor, there is so much to cover. You have been in this
for so many years that we feel that, in order for you to help
yourself, since you are considered one of the principals here, it
would be wise for you to indicate to us whether you intend to tell
us everything and come clean, or whether you intend to play ball
with the Garrows and the rest of the crowd. We feel that you can be
of great value, and you want to help yourself. That is straight
talk."
And Garrow knew of the existence of records of damaging
conversations made by illegal "taps" on his lines before his
decision to testify for the Government.
Neither the intercepted messages nor their purport were placed
in evidence, and, so far as the record shows, petitioners were not
parties to them. It is evident, nevertheless, that the evidence
adduced by the Government against petitioners through the testimony
of Messman and Garrow
Page 316 U. S. 124
was obtained by the use of information gathered by wiretapping
in violation of law. [
Footnote
2/1]
The main question presented for decision is whether evidence so
obtained is vitiated and rendered inadmissible by § 605, the
relevant part of which reads:
". . . and no person not being authorized by the sender shall
intercept any communication and divulge or publish the existence,
contents, substance, purport, effect, or meaning of such
intercepted communication to any person; . . . and no person having
received such intercepted communication
Page 316 U. S. 125
or having become acquainted with the contents, substance,
purport, effect, or meaning of the same or any part thereof,
knowing that such information was so obtained, shall divulge or
publish the existence, contents, substance, purport, effect, or
meaning of the same or any part thereof,
or use the same or any
information therein contained for his own benefit or for the
benefit of another not entitled thereto. . . . [
Footnote 2/2]"
The statute expresses a rule of public policy. In enacting §
605, Congress sought to protect society at large against the evils
of wiretapping and kindred unauthorized intrusions into private
intercourse conducted by means of the modern media of
communication, telephone, telegraph, and radio. To that end, the
statute prohibits not only the interception and the divulgence of
private messages without the consent of the sender, but also the
use of information so acquired by any person not entitled to it.
The protection of the statute would have been illusory indeed if,
while interception and divulgence were penalized, one was free,
nevertheless, to use information so obtained. Unless the language
of the "use for benefit" prohibition does not mean what it says,
the actions of the Government agents in securing the benefit of the
crucial testimony of Messman and Garrow by the use of illegal
"taps" were clear violations of that prohibition. There is no merit
in the Government's contention that the unequivocal language of the
"use for benefit" clause should be construed as condemning only
such uses as are designed to result in some monetary or other
similar benefit of a private nature, for the prohibitions of § 605
are applicable to the Government and its officers, as well as to
private persons.
Nardone v. United States, 302 U.
S. 379. The prohibition in this last clause of § 605 by
Congress of the "use" of outlawed evidence is so unequivocal
Page 316 U. S. 126
and controlling that failure of the court below even to refer to
this clause can only be explained on the assumption that it was
overlooked.
On the issue of admissibility the second
Nardone case,
308 U. S. 338, the
logical extension of the principles of
Nardone v. United
States, 302 U. S. 379, and
Weiss v. United States, 308 U. S. 321,
should control our decision. In that case, as in this, the evidence
in dispute was not the messages themselves or their purport, but
the claim was made that other evidence against the defendants was
obtained by the use of information gained by unlawful wiretapping.
We held that the policy of § 605 required the exclusion not merely
of the intercepted messages, but also of the other evidence
acquired through their unlawful use. Otherwise, the broad purpose
of the statute to outlaw practices "inconsistent with ethical
standards and destructive of personal liberty" [
Footnote 2/3] would have been largely defeated. We
also suggested the preliminary hearing as a procedure for
determining what evidence was the "fruit of the poisonous tree,"
and hence inadmissible. Since the preliminary hearing in this case
leaves no doubt that the testimony of Messman and Garrow was the
forbidden fruit, it should not have been admitted.
The only possible differentiation between this case and the
second
Nardone case is that here petitioners were not
parties to the illegally intercepted messages, but that calls for
no difference in legal result. While the sender can render
interception, divulgence, or use lawful by his consent, it is a
complete
non sequitur to conclude that he alone has
standing to object to the admission of evidence obtained in
violation of § 605. To say that petitioners have no standing to
object to the testimony of Messman and Garrow because they were not
parties to the intercepted
Page 316 U. S. 127
messages used to secure that testimony, is to ignore the
governing factor that controlled our decision in the second
Nardone case -- namely, that to permit the use of evidence
so obtained would defeat or substantially impair the underlying
policy and purpose of § 605. It is immaterial, for the object to be
served by that section, whether objection is made by the one
sending the communication or by another who is prejudiced by its
use. The rule that evidence obtained by a violation of § 605 is
inadmissible is not a remedy for the sender; it is the obedient
answer to the Congressional command that society shall not be
plagued with such practices as wiretapping.
Lower federal court cases to the effect that only the victim of
a search and seizure contravening the Fourth Amendment can object
to the evidence thereby obtained do not offer a proper analogy. Not
only are those decisions hard to square with statements by Mr.
Justice Holmes in
Silverthorne Lumber Co. v. United
States, 251 U. S. 385,
251 U. S. 392,
[
Footnote 2/4] but, even assuming
their soundness, sufficient difference in scope exists between §
605 and the Fourth Amendment to render analogy unsafe. Thus, § 605
forbids all interception, divulgence, or use by any
Page 316 U. S. 128
person without the consent of the sender, while the Fourth
Amendment bans only unreasonable searches and seizures.
The holding in the opinion of the Court, that evidence obtained
in violation of § 605 is not rendered inadmissible because § 501 of
the Act provides specific sanctions for violations of § 605, is a
direct repudiation of both
Nardone cases and the
Weiss case. In each of those cases, evidence secured by
violation of § 605 was declared to be inadmissible despite the
existence of § 501. This is so because, as we held in the first
Nardone case, "the act forbids such testimony."
302 U. S. 302 U.S.
379,
302 U. S. 382.
That evidence procured in violation of federal law by agents of the
Government is inadmissible in federal prosecutions has been
established and enforced by an unbroken series of decisions in this
Court beginning with
Weeks v. United States, 232 U.
S. 383. By these decisions, this Court has refused to
make itself a participant in lawless conduct by sanctioning the use
in open court of evidence illegally secured. That principle was
forcibly put in a separate opinion in
Sorrells v. United
States, 287 U. S. 435,
287 U. S. 453.
After referring to "the inherent right of the court not to be made
the instrument of wrong," the opinion continues:
"The doctrine [the defense of entrapment] rests, rather, on a
fundamental rule of public policy. The protection of its own
functions and the preservation of the purity of its own temple
belongs only to the court. It is the province of the court, and the
court alone, to protect itself and the government from such
prostitution of the criminal law."
287 U. S. 287 U.S.
435,
287 U. S.
456-457. When Congress condemned the "use" of lawlessly
intercepted communications, the last thing it intended to sanction
was the use of such interceptions in a court of justice. There can
be no reason to ignore or silently overrule our considered
decisions in both
Nardone cases and the
Weiss
case, especially in view of the fact that Congress has had several
opportunities since the first
Nardone case to amend §
605
Page 316 U. S. 129
to obviate the result of that case if it were not a true
interpretation of Congressional policy and intent. [
Footnote 2/5]
[
Footnote 2/1]
Both Messman and Garrow testified at the preliminary hearing
that the "taps" did not influence their decisions to testify for
the Government, but each was an accomplished perjurer. We do not
understand that the trial judge, in ruling that the testimony of
Messman and Garrow was admissible, meant to find that the
Government proved that the "taps" did not contribute to their
breakdown. On the contrary, it is clear that he meant to find only
that petitioners failed to carry the burden of proving that the
Government secured the testimony of Messman and Garrow by use of
the "taps," a burden which he erroneously put upon petitioners.
For, after an accused sustains the initial burden, imposed by
Nardone v. United States, 308 U.
S. 338, of proving to the satisfaction of the trial
judge in the preliminary hearing that wiretapping was unlawfully
employed, as petitioners did here, it is only fair that the burden
should then shift to the Government to convince the trial judge
that its proof had an independent origin. As the court below
said:
". . . this should be the rule in analogy to the well settled
doctrine in civil cases that a wrongdoer who has mingled the
consequences of lawful and unlawful conduct has the burden of
dissentangling them, and must bear the prejudice of his failure to
do so; that is, that it is unfair to throw upon the innocent party
the duty of unravelling the skein which the guilty party has
snarled. To impose the duty upon the prosecution is particularly
appropriate here, for it necessarily has full knowledge of just how
its case has been prepared; given a
prima facie case
against it --
i.e., 'taps' and some use of them -- it
should do the rest."
120 F.2d 485, 488. Since the trial judge did not shift the
burden to the Government after petitioners' initial showing, as he
should have done, there can be no contention on this record that
the testimony of Messman and Garrow was untainted by "taps."
[
Footnote 2/2]
Emphasis added.
[
Footnote 2/3]
Nardone v. United States, 302 U.
S. 379,
302 U. S.
383.
[
Footnote 2/4]
"The essence of a provision forbidding the acquisition of
evidence in a certain way is that not merely evidence so acquired
shall not be used before the Court, but that it shall not be used
at all. . . . [T]he knowledge gained by the Government's own wrong
cannot be used by it in the way proposed."
The guaranties of the Fourth Amendment "are to be liberally
construed to prevent impairment of the protection extended."
Grau v. United States, 287 U. S. 124,
287 U. S. 128,
and cases cited.
It is evident that to allow the Government to use evidence
obtained in violation of the Fourth Amendment against parties not
victims of the unconstitutional search and seizure is to allow the
Government to profit by its wrong, and to reduce in large measure
the protection of the Amendment.
[
Footnote 2/5]
Several attempts to amend § 605 since the first
Nardone
case have failed of enactment.
See S. 3756, 75th Cong., 3d
Sess. (1938) and S.Rep. No. 1790, 75th Cong., 3d Sess. (1938) p. 3.
See also H.J.Res. 571, 76th Cong., 3d Sess. (1940); H.R.
2266, 77th Cong., 1st Sess. (1941); H.R. 3099, 77th Cong., 1st
Sess. (1941); H.R. 4228, 77th Cong., 1st Sess. (1941).