Carnes v. United States

• Decision Date: 11 January 1962
• Docket Number: No. 18421.,18421.
• Citation: 295 F.2d 598
• Parties: Ralph B. CARNES and Roger W. Smallwood, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

295 F.2d 598 (1961)

Ralph B. CARNES and Roger W. Smallwood, Appellants, v. UNITED STATES of America, Appellee.

No. 18421.

United States Court of Appeals Fifth Circuit.

October 20, 1961.

Rehearing Denied January 11, 1962.

Robert E. Andrews, Everett C. Brannon, Jr., and Frank B. Stow, Gainesville, Ga., for appellants.

Charles D. Read, Jr., U. S. Atty., John W. Stokes, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is an eavesdropping case, a problem that keeps bobbing up before the federal courts. Is evidence obtained by recording or by listening to a telephone conversation with the consent of one party, but without the knowledge or consent of the other, legally admissible evidence under Section 605 of the Federal Communications Act? The appellants seek reversal of criminal convictions based in part upon taped recordings of telephone conversations, asserting that stripped of this inadmissible evidence the judgment lacks substantial support. We hold that the evidence was properly admitted.

The appellants, Ralph B. Carnes and Roger W. Smallwood, with seven others, were indicted for violations of the United States Internal Revenue liquor laws during the fall of 1958.¹ The indictments followed a long period of investigation by state and federal officers. September 10, 1958, the officers raided a large unregistered still located adjacent to property owned by Smallwood. They discovered 403 gallons of nontaxpaid liquor and rounded up several persons implicated in the operation of the still. Destruction of the still merely slowed down operations. September 20 Atlanta policemen found John S. Whitley, one of the defendants previously arrested, driving an automobile containing 158 gallons of non-taxpaid whiskey. During this period numerous telephone calls were made between a store owned by Carnes and the Smallwood residence. In October Wurtele, a federal investigator, initiated an underground contact with the defendants in an attempt to purchase whiskey from Carnes. October 7 Wurtele met Carnes and arranged a purchase at three dollars a gallon. During the next few days the investigator made several purchases of whiskey from various members of the group later indicted. On one occasion he recorded a conversation with Whitley by means of a pocket tape recorder. October 27 and 29, Wurtele recorded two telephone conversations he had with Carnes by means of an attachment placed on the earpiece of his telephone. October 30, other officers, using information obtained through Wurtele's conversation with Carnes, located and destroyed a second still. A third still was seized November 26. These prosecutions were then initiated.

The recorded conversations were introduced at the trial over objections from the defendants. It is not disputed that the evidence was sufficient to support the decision, if the recorded conversations were properly admissible.

The Federal Communications Act of 1934, in part, provides 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 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 * * *." 47 U.S.C.A. § 605.

The Supreme Court has held that evidence obtained in violation of this law is not properly admissible in court proceedings. Nardone v. United States, 1937, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Weiss v. United States, 1939, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298.

Shortly after these cases were decided, a division of opinion developed in lower courts in interpreting the scope of activities prohibited by the statute. The dispute centered on whether the words, "intercept any communication", apply when one party to a conversation, without the knowledge of the other, allows a third person to listen to the conversation or record it by a device attached at or near the consenting party's end of the telephone line. In a 1940 case the Second Circuit, in an opinion by Judge Learned Hand, held that a recording made from an extension phone fell within the statutory ban and was inadmissible. The court said:

"The statute does not speak of physical interruptions of the circuit, or of `taps\'; it speaks of `interceptions\' and anyone intercepts a message to whose intervention as a listener the communicants do not consent; the means he employs can have no importance; it is the breach of privacy that counts. We need not say that a man may never make a record of what he hears on the telephone by having someone else listen at an extension, or, as in the case at bar, even by allowing him to interpose a recording machine. The receiver may certainly himself broadcast the message as he pleases, and the sender will often give consent, express or implied, to the interposition of a listener. Party lines are a good illustration; and it would be unwise to try in advance to mark the borders of such implications. Here, however, we need not be troubled by niceties, because, no matter what the scope of any such implied consent, it cannot extend to the intervention of prosecuting agents bent upon trapping the `sender\' criminally." United States v. Polakoff, 2 Cir., 1940, 112 F.2d 888, 889, 134 A.L.R. 607.

Under this view "each party to a conversation is a sender as well as a receiver whose consent to interception is required before a communication may be divulged." United States v. Hill, D.C.S.D. N.Y.1957, 149 F.Supp. 83, 84.

Courts taking the opposite approach reasoned that "intercept" required the listening to occur between the parties to the conversation, a condition not satisfied when a recording is made at the site of one party and with his consent. Thus, in United States v. Yee Ping Jong, D.C. W.D.Penn.1939, 26 F.Supp. 69, 70, the court admitted a phonographic recording made by attachment of a device to the telephone wire inside the house of a narcotic agent's associate from which a telephone call was made. The conversation "between his interpreter and the defendant", the court said, "was not obtained by a `tapping of the wire' between the locality of call and the locality of answer by an unauthorized person, but was, in effect, a mere recording of the conversation * * * made by a participant."

The Supreme Court gave this interpretation a boost in Goldman v. United States, 1940, 316 U.S. 129, 62 S.Ct. 993, 995, 86 L.Ed. 1322. Federal agents, to overhear a conversation in a business office, gained access to an adjoining room and inserted a detectaphone in a small aperture in the partition wall with a wire leading from the detectaphone to earphones. The Court held Section 605 inapplicable, because no interception at all had occurred; the officers had overheard the speaker directly. In discussing the Communications Act the Court stated: "The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation. * * * What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission. * * * As has rightly been held, citing United States v. Yee Ping Jong this word "intercept" 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."

The Second Circuit has held that the language in Goldman did not call for reversal of its earlier decision; it continued to exclude all testimony as to telephone conversations listened to without consent of the speaker. Reitmeister v. Reitmeister, 2 Cir., 1947, 162 F.2d 691; United States v. Hill, D.C.S.D.N.Y.1957, 149 F.Supp. 83. Most courts, however, follow Yee Ping Jong and Goldman and adopt the narrower interpretation of Section 605. See, for example: Ladrey v. Commission on License to Practice, etc., 1958, 104 U.S.App.D.C. 239, 261 F.2d 68 (en banc), certiorari denied 358 U.S. 920; (listening on an extension line); United States v. Bookie, 7 Cir., 1956, 229 F.2d 130 (officers standing near receiver to hear conversation); United States v....