Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
The indictment in the cases at bar charges the appellants and others with a conspiracy to commit offenses against the United States in violation of Section 37 of the Criminal Code, R.S. § 5440, May 17, 1879, c. 8, 21 Stat. 4, March 4, 1909, c. 321, Sec. 37, 35 Stat. 1096, 18 U.S.C.A. § 88. Specifically the defendants below were charged with a conspiracy to manufacture, withdraw, transport, sell, remove, conceal and possess distilled spirits upon which revenue taxes had not been paid and to commit other crimes.
The United States contends that it has proved in accordance with the allegations of the indictment that the appellants Jake Sablowsky, Benny Sablowsky and Leonard Sablowsky, Sam Korenberg, Abe Shrinsky and Billy Birch, bought and procured non-tax-paid distilled spirits from persons operating illegal stills. Among these persons were the appellants Philip Piazza, James Totino, Fred Owens, Joe Parise, Sam Caldorni, Tony Caldorni, Sam Polito or Sam Epolito and Charles Murgie. The spirits so purchased from the persons named were sold to other individuals who operated speakeasies in and about Pittsburgh. Included in this last group are the appellants Harry Grob, Isaac Stein, Anderson Taylor and Nathan Sternberg.
The testimony thorough which the appellants were brought into the conspiracy and without which the United States could prove neither the conspiracy nor the appellants' connection with it, was procured by government agents' intercepting and divulging intrastate telephone communications between the parties to the conspiracy. Agents of the United States intercepted and recorded approximately sixteen hundred such telephone conversations. Five hundred or more of these intrastate communications were introduced in evidence during the course of the trial. Some of these conversations were in themselves criminal acts. If the communications referred to were properly admitted in evidence, the convictions of the appellants must be sustained. If the conversations were inadmissible, the judgments of conviction must be reversed. The issue presented for our determination is therefore a narrow one.
We state that 18 P.S. Pa. § 2014*fn1 makes it unlawful for any person connected " * * * with any telegraph or telephone line in this state * * * " to divulge or cause to be known the contents of any message. It is apparent, however, that this statute refers solely to the acts of officers of employees of communication agencies within the State of Pennsylvania. We therefore must deal solely with the Federal Communications Act of 1934, June 19, 1934, c. 652, Section 1 et seq., 48 Stat. 1064 et seq., 47 U.S.C.A. § 151 et seq. Section 605 of the Communications Act, 47 U.S.C.A. § 605, provides:
"No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers, of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpoena issued by a court of competent jurisdiction, or on demand of other lawful authority; 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 not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and 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, 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: * * * ".
It is apparent that the determination of the question presented by the cases at bar turns upon the interpretation to be placed upon that portion of Section 605 in italics above. the appellants contend that Congress in enacting this part of Section 605 intended to lay down a rule in respect to the admissibility of evidence in the Federal courts and by the language employed intended to prohibit and did prohibit the admission in evidence of communications procured by wire tapping whether the intercepted communications were interstate or intrastate in character. The United States contends, however, that by the express terms of the Communications Act the prohibitions of Section 605 may be applied only to interstate communications and since those at bar were intrastate in character they were properly admitted in evidence.
Turning now to an examination of Section 605 we find that its first clause, that lying prior to the first semicolon, prohibits employees of communication agencies from divulging any interstate or foreign communication except upon lawful authority. Next occurs the clause which the appellants contend prohibits the consideration by the jury of the intercepted communications in the case at bar. It will be noted that the qualifying phrase "interstate or foreign" is omitted before the word "communication" and that the clause upon its face prohibits the intercepting or divulging of any communication whatsoever. The third clause obviously refers again to employees of communication agencies and provides that no person, not entitled, shall receive or divulge interstate or foreign communications or use them for his own benefit or for the benefit of others not entitled thereto. The fourth clause of the section provides that no person who has received an intercepted communication shall publish it or use it for his own benefit or for the benefit of others not entitled to receive it. This clause also omits the qualifying phrase "interstate or foreign" but refers simply to "such intercepted communication", obviously the communication designated in the second clause of the section. It follows therefore that if the section be accepted at its face value it does in fact prohibit employees of communication agencies from divulging, except upon lawful authority, making use of, or permitting others to make use of any interstate or foreign communications. This is the gist of clauses one and three. The section also prohibits any person from intercepting, divulging or making use of any communication. Such is the gist of clauses two and four.
Section 1, 47 U.S.C.A. § 151, setting forth the purpose of the Communications Act, states that it is to regulate " * * * interstate and foreign commerce in communication by wire and radio * * * ." Section 2, 47 U.S.C.A. § 152, provides that the provisions of the chapter shall apply " * * * to all interstate and foreign communication by wire or radio * * * ". This section also provides that nothing in the chapter shall given the Communictions Commission jurisdiction of intrastate carriers except in certain cases not pertinent here. Subsection (f) of Section 3, 47 U.S.C.A. § 153(f), defines "foreign communication" as communication from the United States to or from a foreign country or a mobile station outside of the United States. Subsection (h) defines a "common carrier" or a "carrier" as " * * * any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio * * * ". Subsection (e) defines "interstate communication" but specifies that it does not " * * * include wire communication between points within the same State * * * ". Section 301, 47 U.S.C.A. § 301, states that it is the purpose of the Act to maintain control by the United States over all the channels of interstate and foreign radio communication. Section 406, 47 U.S.C.A. § 406, provides that the district courts of the United States shall have jurisdiction to compel by mandamus carriers to furnish interstate or foreign communication facilities without discrimination to those who desire to use them.
The Act nowhere defines "communication". The appellee contends that since the ordinary meaning of that word would include the conveyance of messages of any kind by any means, the phrase "any communication" contained in the second clause of Section 605 must be limited by an interpretation consistent with the express purposes of the Act and therefore the clause must be deemed to refer to that class and only to that class of communications with which the Act purports to deal, namely interstate and foreign communications by wire or radio.
The section sub judice has been before the lower courts of the United States a number of times and has been construed by the Supreme Court in one case, viz., Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314. We think that a discussion of these cases will prove helpful in the expression of our opinion.
In United States v. Bonanzi, 94 F.2d 570, the Circuit Court of Appeals for the Second Circuit held that the provisions of Section 605 of the Communications Act rendered incompetent testimony respecting interstate communications and reversed a judgment of conviction of the appellants because the United States could not distinguish between the interstate communications and the intrastate communications in evidence. The court however did not pass upon the question of the ...