308 U.S. 338 (1939), 240, Nardone v. United States

Docket Nº:No. 240
Citation:308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307
Party Name:Nardone v. United States
Case Date:December 11, 1939
Court:United States Supreme Court

Page 338

308 U.S. 338 (1939)

60 S.Ct. 266, 84 L.Ed. 307



United States

No. 240

United States Supreme Court

Dec. 11, 1939

Argued November 14, 1939




1. In a prosecution in a federal court, evidence procured by tapping wires in violation of the Communications Act of 1934 is inadmissible. This applies not only to the intercepted conversations themselves, but also, by implication, to evidence procured through the use of knowledge gained from such conversations. P. 339.

2. The burden is on the accused in the first instance to prove to the trial court's satisfaction that wiretapping was unlawfully employed. P. 341.

3. Once that is established, the trial judge must give opportunity to the accused to prove that a substantial portion of the case against him was the result of the illicit wiretapping. Id.

4. Claims that this taint attaches to any portion of the Government's case must satisfy the trial court with their solidity, and not be merely a means of eliciting what is in the Government's possession before its submission to the jury. And if such a claim is made after the trial is under way, the judge must likewise be satisfied that the accused could not at an earlier stage have had adequate knowledge to make his claim. P. 342.

106 F.2d 41, reversed.

CERTIORARI, post, p. 539, to review the affirmance of convictions in the District Court under an indictment for frauds on revenue.

Page 339

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

We are called upon for the second time to review affirmance by the Circuit Court of Appeals for the Second Circuit of petitioners' convictions under an indictment for frauds on the revenue. In Nardone v. United States, 302 U.S. 379, this Court reversed the convictions on the first trial because they were procured by evidence secured in violation of § 605 of the Communications Act of 1934 (c. 652, 48 Stat. 1064, 1103; 47 U.S.C. § 605). For details of the facts reference is made to that case. Suffice it here to say that this evidence consisted of intercepted telephone messages, constituting "a vital part of the prosecution's proof."

Conviction followed a new trial, and "the main question" on the appeal below is the only question open here -- namely, "whether the [trial] judge improperly refused to allow the accused to examine the prosecution as to the uses to which it had put the information" which Nardone v. United States, supra, found to have vitiated the original conviction. Though candidly doubtful of the result it reached, the Circuit Court of Appeals limited the scope of § 605 to the precise circumstances before this Court in the first Nardone case, and ruled that

Congress had not also made incompetent testimony which had become accessible by the use of unlawful "taps," for to divulge that information was not to divulge an intercepted telephone talk.

106 F.2d 41.

The issue thus tendered by the Circuit Court of Appeals is the broad one whether or no § 605 merely interdicts the introduction into evidence in a federal trial of intercepted telephone conversations, leaving the prosecution free to make every other use of the proscribed evidence. Plainly, this presents a far-reaching problem in

Page 340

the administration of federal criminal justice, and we therefore brought the case here for disposition.

Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an overriding public policy expressed in the Constitution or the law of the land. In a problem such as that before us now, two opposing concerns must be harmonized: on the one hand, the stern enforcement of the criminal law; on the other, protection of that realm of privacy left free by Constitution and laws but capable of infringement either through zeal or design. In accommodating both these concerns, meaning must be given to what Congress has written, even if not in explicit language, so as to...

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