316 U.S. 129 (1942), 962, Goldman v. United States

Docket Nº:No. 962
Citation:316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322
Party Name:Goldman v. United States
Case Date:April 27, 1942
Court:United States Supreme Court
 
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Page 129

316 U.S. 129 (1942)

62 S.Ct. 993, 86 L.Ed. 1322

Goldman

v.

United States

No. 962

United States Supreme Court

April 27, 1942

Argued February 5, 6, 1942

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. Refusal of the judge in the trial of a criminal case in the federal court to allow defendant to inspect the memoranda of Government witnesses -- where the memoranda were not used by the witnesses in court, but only to refresh their recollection prior to testifying, and were also part of the Government's files -- held not an abuse of discretion. P. 132.

2. Divulgence of a person's telephone conversation, overheard as it was spoken into the telephone receiver, does not violate § 605 of the Federal Communications Act, as in such case there is neither a "communication" nor an "interception" within the meaning of the Act. P. 133.

3. Evidence obtained by federal agents by use of a detectaphone, applied to the wall of a room adjoining the office of the defendant, held not unlawfully obtained as a consequence of a prior trespass committed by the agents in the defendant's office where such trespass, as found by the courts below, did not aid materially in the use of the detectaphone. P. 134.

4. The use by federal agents of a detectaphone, whereby conversations in the office of a defendant were overheard through contact on the

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wall of an adjoining room, did not violate the Fourth Amendment, and evidence thus obtained was admissible in a federal court. P. 135.

118 F.2d 310 affirmed.

Certiorari, 314 U.S. 701, to review the affirmance of convictions of conspiracy to violate the Bankruptcy Act.

ROBERTS, J., lead opinion

MR. JUSTICE ROBERTS delivered the opinion of the Court.

The petitioners and another were indicted for conspiracy1 to violate § 29(b)(5) of the Bankruptcy Act2 by receiving, or attempting to obtain, money for acting or forbearing to act in a bankruptcy proceeding. They were convicted and sentenced, and the judgments were affirmed by the Circuit Court of Appeals.3 The facts are fully stated in the opinion below, and we shall advert only to those essential to an understanding of the questions open in this court.

The petitioners were lawyers. One of them, Martin Goldman, approached Hoffman, the attorney representing

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an assignee for the benefit of creditors, with the proposition that the assignee sell the assets in bulk for an ostensible price which would net the creditors a certain dividend, but in fact at a secret greater price, and that Hoffman and the petitioners should divide the difference between them. Hoffman refused. Shulman, one of the petitioners, then filed an involuntary petition in bankruptcy against the assignor in such form that it could be dismissed on motion and without notice, and obtained a stay of the assignee's sale. The bankruptcy court refused to revoke the stay, and Shulman again approached Hoffman, stating that, if he agreed to the proposed arrangement, the bankruptcy petition could be dismissed and the plan consummated. Hoffman said he would agree, but he went at once to the referee and disclosed the scheme. A federal investigator was consulted, and it was arranged that Hoffman should continue to negotiate with the petitioners. He did so. Numerous conferences were had, and the necessary papers drawn and steps taken. Success was frustrated only by the refusal of a creditor to release for the offered percentage of his claim.

Meantime, two federal agents, with the assistance of the building superintendent, obtained access at night to Shulman's office and to the adjoining one and installed a listening apparatus in a small aperture in the partition wall with a wire to be attached to earphones extending into the adjoining office. This was for the purpose of overhearing a conference with Hoffman set for the following afternoon. The next afternoon, one of the agents returned to the adjoining room with two others and a stenographer. They connected the earphones to the apparatus, but it would not work. They had with them another device, a detectaphone having a receiver so delicate as, when placed against the partition wall, to pick up sound waves originating in Shulman's office, and means for amplifying and hearing them. With this,

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the agents overheard, and the stenographer transcribed, portions of conversations between Hoffman, Shulman, and Martin Goldman on several occasions, and also heard what Shulman said when talking over the telephone from his office.

Before the trial, Shulman learned the facts and made a motion, in which the other petitioners joined, to suppress the evidence thus obtained. A preliminary hearing was had, and the motion was denied. At the trial, the evidence was admitted over objection that its receipt violated [62 S.Ct. 995] the Fourth Amendment of the Constitution and, as respects Shulman's talk into the telephone receiver, violated also § 605 of the Federal Communications Act.4

At the preliminary hearing and at the trial, counsel for petitioners demanded that they be permitted to inspect the notes and memoranda made by the agents during the investigation, the agents having admitted they had refreshed their recollection from these papers prior to testifying. The trial judge ruled that the papers need not be exhibited by the witnesses.

1. We hold there was no error in denying the inspection of the witnesses' memoranda. The judge was clearly right in his ruling at the preliminary hearing, as the petitioners should not have had access, prior to trial, to material constituting a substantial portion of the Government's case.

We think it the better rule that, where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them. Where, as here, they are not only the witness' notes, but are also part of the Government's files, a large discretion must be allowed the trial judge. We are unwilling to hold that the discretion was abused in this case.

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2. We hold that the overhearing and divulgence of what Shulman said into a telephone receiver was not a violation of § 605.

The petitioners contend that a communication falls within the protection of the statute once a speaker has uttered words with the intent that they constitute a transmission of a telephone conversation. The validity of the contention must be tested by the terms of the Act fairly construed. So considered, there was neither a "communication" nor an "interception" within the meaning of the Act. The protection intended and afforded by the statute is of the means of communication, and not of the secrecy of the conversation. Section 3 embodies the following definition:5

(a) "Wire communication" or "communication by wire" means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.

What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission.6 Words written by a person and intended ultimately to be carried as so written to a telegraph office do not constitute a communication within the terms of the Act until they are handed to an agent of the telegraph company. Words spoken in a room in the presence of another into a telephone receiver do not constitute a communication by wire within the meaning of the section. Letters deposited in the Post Office are

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protected from examination by federal statute,7 but it could not rightly be claimed that the office carbon of such letter, or indeed the letter itself before it has left the office of the sender, comes within the protection of the statute. The same view of the scope of the Communications Act follows from the natural meaning of the term "intercept." As has rightly been held, this word indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver.8 The listening in the next room to the words of Shulman [62 S.Ct. 996] as he talked into the telephone receiver was no more the interception of a wire communication within the meaning of the Act than would have been the overhearing of the conversation by one sitting in the same room.

3. We hold that what was heard by the use of the detectaphone was not made illegal by trespass or unlawful entry.

The petitioners contend that the trespass committed in Shulman's office when the listening apparatus was there installed, and what was learned as the result of that trespass, was of some assistance on the following day in locating the receiver of the detectaphone in the adjoining office and this connection between the trespass and the listening resulted in a violation of the Fourth Amendment. Whatever trespass was committed was connected with the installation of the listening apparatus. As respects it, the trespass might be said to be continuing and, if the apparatus had been used, it might, with reason, be claimed that the continuing trespass was the concomitant

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of its use. On the other hand, the relation between the trespass and the use of the detectaphone was that of antecedent and consequent. Both courts below have found that the trespass did not aid materially in the use of the detectaphone. Since we accept these concurrent findings, we need not consider a contention based on a denial of their verity.

4. We hold that the use of the detectaphone by Government agents was not a...

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