Mr. Theodore Kiendl, of New York City, for petitioner Maximillian goldstein.
Mr. Osmond K. Fraenkel, of New York City, for petitioner Benjamin Schwartz.
Charles Fahy, Sol. Gen., for respondent.
Messrs. Herman Rubin and Irving Elentuch, pro se.
Mr. Justice ROBERTS delivered the opinion of the Court.
This case involves the alleged violation of 605 of the Federal Communications Act1 by the admission of testimony in a federal criminal trial. The importance of the [316 U.S. 114, 115] questions presented, and a claimed conflict with our decisions, moved us to grant certiorari. 314 U.S. 588 , 62 S.Ct. 89, 86 L.Ed. --.
The petitioners and others were indicted under the mail fraud2 and conspiracy3 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 , 60 S.Ct. 266. The principal subject of contention was the prospective testimony of Messman and Garrow, alleged co-conspirators 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. 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 [316 U.S. 114, 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 wire tapping 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. 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 wire tapping 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 [316 U.S. 114, 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 wire tapping 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 , 60 S.Ct. 269, and Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266, 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, con- [316 U.S. 114, 118] tents, 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 , 58 S.Ct. 275, 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 , 60 S.Ct. 269, 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 , 60 S.Ct. 266, 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 you 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 [316 U.S. 114, 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 , 60 S.Ct. 266, 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. 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 [316 U.S. 114, 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. 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. 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. 9
Although the unlawful interception of a telephone communication does not amount to a search or seizure prohibited by the Fourth Amendment,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 , 60 S.Ct. 266. [316 U.S. 114, 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,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. 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. 13 Again we agree. [316 U.S. 114, 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. 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.