Lipinski v. United States, 5665.

• Decision Date: 08 January 1958
• Docket Number: No. 5665.,5665.
• Citation: 251 F.2d 53
• Parties: Richard A. LIPINSKI, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

251 F.2d 53 (1958)

Richard A. LIPINSKI, Appellant, v. UNITED STATES of America, Appellee.

No. 5665.

United States Court of Appeals Tenth Circuit.

January 8, 1958.

James R. Toulouse, Albuquerque, N. M. (McAtee, Toulouse & Marchiando, Albuquerque, N. M., was with him on the brief), for appellant.

Ruth C. Streeter, Asst. U. S. Atty., Albuquerque N. M. (James A. Borland, U. S. Atty., Albuquerque, N. M., was with her on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

The indictment in this case contained three counts. The first count charged that appellant conspired with one Matt A. Beller to intercept telephone wire communications between a named woman and others and to divulge and publish to another person the existence and contents of such communications without the authority of the persons between whom the communications took place. The second count charged that appellant intercepted a telephone communication between two persons and divulged and published to a third person the existence and substance of such communication without the consent or authority of either of the persons between whom the communication took place. The third count was dismissed and therefore no further reference need to be made to it. Appellant moved to dismiss the indictment upon the ground that it failed to charge a crime against the United States in that all of the telephone communications allegedly intercepted and published were within the State of New Mexico and therefore did not involve interstate commerce. The motion was denied D. C., 151 F.Supp. 145, and trial by jury was waived.

The cause was submitted to the court on stipulated facts. In respect to the charge contained in the first count, these facts were stipulated. Appellant agreed with Matt A. Beller that appellant would intercept telephone wire communications made by Leota Beller to other persons or by other persons to her without the consent of Leota Beller and the persons calling her. Such interception would be made on the telephone located at the home of Leota Beller in Albuquerque, New Mexico, and appellant would divulge to Matt A. Beller the fact that telephone calls were made and would reveal to him the contents and substance of them. Appellant installed a tape recorder in a certain residence in Albuquerque for the purpose of having a telephone wire run from the home of Leota Beller to the tape recorder. Appellant engaged an employee of the telephone company to aid him in connecting the tape recorder with the telephone in the residence of Leota Beller, and appellant made the connection. And appellant attempted to intercept calls made to Leota Beller but was unable to do so. In respect to the charge contained in the second count of the indictment, these facts were stipulated. Appellant intercepted a telephone communication between Pearl Brewer in Albuquerque and another person and divulged and published to a third person the existence and substance of such communication without the consent or authority of the persons between whom the communication took place. And in addition, these facts were stipulated generally. There were two telephone systems in Albuquerque, one local and the other long distance. All of the telephone calls involved in both counts were intrastate, but all of the telephone lines and telephones could be used in interstate communications by simply dialing "o" and requesting the operator to connect the line with the interstate system. The court adjudged appellant guilty upon both counts, suspended imposition of sentence, and placed appellant on probation for a period of six months.

The contention urged for reversal of the judgment is that the indictment failed to charge an offense against the laws of the United States in that sections 501 and 605 of the Federal Communications Act of 1934, 48 Stat. 1064, 47 U.S.C.A. §§ 501, 605, do not make it a crime to intercept and divulge and publish intrastate telephone communications. All of the telephone communications referred to in the indictment were intrastate communications. But Congress has plenary power to enact appropriate legislation for the government of interstate commerce, for its protection and advancement, and for its growth and safety; and within the range of that power lies power to regulate intrastate activities when it is necessary for the protection of interstate commerce. Houston, East and West Texas Railway Co. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341; United States v. State of Louisiana, 290 U.S. 70, 54 S.Ct. 28, 78 L.Ed. 181; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 57 S.Ct. 615, 81 L.Ed. 893; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298.

Section 605, supra, consists of four clauses, separated...