302 U.S. 379 (1937), 190, Nardone v. United States

Docket Nº:No.190
Citation:302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314
Party Name:Nardone v. United States
Case Date:December 20, 1937
Court:United States Supreme Court
 
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Page 379

302 U.S. 379 (1937)

58 S.Ct. 275, 82 L.Ed. 314

Nardone

v.

United States

No.190

United States Supreme Court

Dec. 20, 1937

Argued November 15, 1937

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. In view of the provisions of § 605 of the Communications Act of 1934, 47 U.S.C. § 605, evidence obtained by federal agents by tapping telephone wires and intercepting messages is not admissible in a criminal trial in the federal district court. P. 382.

2. In the provision of § 605 of the Communications Act of 1934 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; . . . ,

the phrase "no person" embraces federal agents engaged in the detection of crime, and to "divulge" an intercepted communication to "any person" embraces testimony in a court as to the contents of such a communication. P. 383.

3. Evidence in congressional committee reports indicating that the major purpose of the Federal Communications Act was the transfer of jurisdiction over wire and radio communication to the newly constituted Federal Communications Commission, and other circumstances in the legislative history of the Act, held insufficient to negative the plain mandate of the provisions of § 605 forbidding wiretapping. P. 382.

4. Whether wiretapping as an aid in the detection and punishment of crime should be permitted to federal agents is a question of policy for the determination of the Congress. P. 383.

5. The canon that the general words of a statute do not include the Government or affect its rights unless that construction be clear and indisputable from the language of the Act is inapplicable to this case, but applicable is the principle that the sovereign is embraced by general words of a statute intended to prevent injury and wrong. Pp. 383-384.

90 F.2d 630 reversed.

Certiorari, post, p. 668, to review a judgment affirming a judgment of conviction on an indictment charging violation of the Anti-Smuggling Act and conspiracy.

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ROBERTS, J., lead opinion

MR. JUSTICE ROBERTS delivered the opinion of the Court.

The importance of the question involved -- whether, in view of the provisions of § 605 of the Communications Act of 1934,1 evidence procured by a federal officer's tapping telephone wires and intercepting messages is admissible in a criminal trial in a United States District Court -- moved us to grant the writ of certiorari.

The indictment under which the petitioners were tried, convicted, and sentenced, charged, in separate counts, the smuggling of alcohol, possession and concealment of the smuggled alcohol, and conspiracy to smuggle and conceal it. Over the petitioners' objection and exception, federal agents testified to the substance of petitioners' interstate communications overheard by the witnesses who had intercepted the messages by tapping telephone wires. The court below, though it found this evidence constituted such a vital part of the prosecution's proof that its admission, if erroneous, amounted to reversible error, held it was properly admitted, and affirmed the judgment of conviction.2

Section 605 of the Federal Communications Act provides that no person who, as an employee, has to do with the sending or receiving of any interstate communication

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by wire, shall divulge or publish it or its substance to anyone other than the addressee or his authorized representative or to authorized fellow employees, save 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.

Section 5013 penalizes willful and knowing violation by fine and imprisonment.

Taken at face value, the phrase "no person" comprehends federal agents, and the ban on communication to "any person" bars testimony to the content of an intercepted message. Such an application of the section is supported by comparison of the clause concerning intercepted messages with that relating to those known to employees of the carrier. The former may not be divulged to any person, the latter may be divulged in answer to a lawful subpoena.

The government contends that Congress did not intend to prohibit tapping wires to procure evidence. It is said that this Court, in Olmstead v. United States, 277 U.S. 438, held such evidence admissible at common law despite the fact that a state statute made wiretapping a crime, and the argument proceeds that, since the Olmstead decision...

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