Nardone v. United States, 240

Citation308 U.S. 338,60 S.Ct. 266,84 L.Ed. 307
Decision Date11 December 1939
Docket NumberNo. 240,240
CourtUnited States Supreme Court

Mr. David V. Cahill, of New York City, for petitioner nardonne.

Mr. Jesse Climenko, of New York City, for petitioner Hoffman.

Mr. Louis Halle, of New York City, for petitioner Gottfried.

O. John Rogge, Asst. Atty. Gen., for respondent.

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, 58 S.Ct. 275, 82 L.Ed. 314, 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, 47 U.S.C.A. § 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.' 2 Cir., 106 F.2d 41, 44.

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 the administration of federal criminal justice, and we therefore brought the case here for disposition. 308 U.S. 539, 60 S.Ct. 103, 84 L.Ed. —-.

Any claim for the exclusion of evidence logically relevant in criminal prosecutions is heavily handicapped. It must be justified by an over-riding 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 effectuate the policy which Congress has formulated.

We are here dealing with specific prohibition of particular methods in obtaining evidence. The result of the holding below is to reduce the scope of § 605 to exclusion of the exact words heard through forbidden interceptions, allowing these interceptions every derivative use that they may serve. Such a reading of § 605 would largely stultify the policy which compelled our decision in Nardone v. United States, supra. That decision was not the product of a merely meticulous reading of technical language. It was the translation into practicality of broad considerations of morality and public well-being. This Court found that the logically relevant proof which Congress had outlawed, it outlawed because 'inconsistent with ethical standards and destructive of personal liberty.' 302 U.S. 379, 384, 58 S.Ct. 275, 277, 82 L.Ed. 314. To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed 'inconsistent with ethical standards and destructive of personal liberty.' What was said in a different context in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319, 24 A.L.R. 1426, is pertinent here: 'The essence of a pro- vision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.' See Gouled v. United States, 255 U.S. 298, 307, 41 S.Ct. 261, 264, 65 L.Ed. 647. A decent respect for the policy of Congress must save us from imputing to it a self-defeating, if not disingenuous purpose.

Here, as in the Silverthorne case, the facts...

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