Nardone v. United States, No. 190

CourtUnited States Supreme Court
Writing for the CourtROBERTS
Citation302 U.S. 379,58 S.Ct. 275,82 L.Ed. 314
Decision Date20 December 1937
Docket NumberNo. 190
PartiesNARDONE et al. v. UNITED STATES

302 U.S. 379
58 S.Ct. 275
82 L.Ed. 314
NARDONE et al.

v.

UNITED STATES.

No. 190.
Argued Nov. 15, 1937.
Decided Dec. 20, 1937.

Page 380

Messrs. Louis Halle, of New York City, and Thomas O'Rourke Gallagher, of Brooklyn, N.Y., for petitioners.

Mr. Wm. W. Barron, of Washington, D.C., for the United States.

Mr. Justice ROBERTS delivered the opinion of the Court.

The importance of the question involved—whether, in view of the provisions of section 605 of the Communications Act of 1934,1 evidence procured by a federal officer's tapping telephone wires and intercepting messages is admissible in a criminal trial in a United States District Court—moved us to grant the writ of certiorari.

The indictment under which the petitioners were tried, convicted, and sentenced, charged, in separate counts, the smuggling of alcohol, possession and concealment of the smuggled alcohol, and conspiracy to smuggle and conceal it. Over the petitioners' objection and exception federal agents testified to the substance of petitioners' interstate communications overheard by the witnesses who had intercepted the messages be tapping telephone wires. The court below, though it found this evidence constituted such a vital part of the prosecution's proof that its admission, if erroneous, amounted to reversible error, held it was properly admitted and affirmed the judgment of conviction. 2

Section 605 of the Federal Communications Act provides that no person who, as an employe, has to do with the sending or receiving of any interstate communication

Page 381

by wire shall divulge or publish it or its substance to anyone other than the addressee or his authorized representative or to authorized fellow employes, save in response to a subpoena issued by a court of competent jurisdiction or on demand of other lawful authority; and '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.'

Section 5013 penalizes wilful and knowing violation by fine and imprisonment.

Taken at face value the phrase 'no person' comprehends federal agents, and the ban on communication to 'any person' bars testimony to the content of an intercepted message. Such an application of the section is supported by comparison of the clause concerning intercepted messages with that relating to those known to employes of the carrier. The former may not be divulged to any person, the latter may be divulged in answer to a lawful subpoena.

The government contends that Congress did not intend to prohibit tapping wires to procure evidence. It is said that this court, in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376, held such evidence admissible at common law despite the fact that a state statute made wire-tapping a crime; and the argument proceeds that since the Olmstead decision departments of the federal government, with the knowledge of Congress, have, to a limited extent, permitted their agents to tap wires in aid of detection and conviction of criminals. It is shown that, in spite of its knowledge of the practice, Congress refrained from adopting legislation outlawing it, although bills, so providing, have been introduced. The Communications Act, so it is claimed, was passed only for the purpose of reen-

Page 382

acting the provisions of the Radio Act of 19274 so as to make it applicable to wire messages and to transfer jurisdiction over radio and wire communications to the newly constituted Federal Communications Commission, and therefore the phraseology of the statute ought not to be construed as changing the practically identical provision on the subject which was a part of the Radio Act when the Olmstead Case was decided.

We nevertheless face the fact that the plain words of section 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that 'no person' shall divulge or publish the message or its substance to 'any person.' To recite the contents of the message in testimony before a court is to divulge the message. The conclusion that the act forbids such testimony seems to us unshaken by the government's arguments.

True it is that after this court's decision in the Olmstead case Congressional committees investigated the wire-tapping activities of federal agents. Over a period of several years bills were introduced to prohibit the practice, all of which failed to pass. An Act of 1933 included a clause forbidding this method of procuring evidence of violations of the National Prohibition Act.5 During 1932, 1933 and 1934, however, there was no discussion of the matter in Congress, and we are without contemporary legislative history relevant to the passage of the statute in question. It is also true that the committee reports in connection with the Federal Communications Act dwell upon the fact that the major purpose of the legislation was the transfer of jurisdiction over wire and radio communication to the newly constituted Federal Communications Commission. But these circumstances are,

Page 383

in our opinion, insufficient to overbear the plain mandate of the statute.

It is urged that a construction be given the section which would exclude federal agents since it is improbable Congress intended to hamper and impede the activities of the government in the detection and punishment of crime. The answer is that the question is one of policy. Congress may have thought it less important that some offenders should go unwhipped of justice than that officers should resort to methods deemed inconsistent with ethical standards and destructive of personal liberty. The same considerations may well have moved the Congress to adopt section 605 as evoked the guaranty against practices and procedures violative of privacy, embodied in the Fourth and Fifth Amendments of the Constitution.

The canon that the...

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271 practice notes
  • Legal Issues Relating To The Testing, USE, and Deployment of An Intrusion-Detection System (Einstein 2.0) To Protect Unclassified Computer Networks In The Executive Branch, 09-1
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • January 9, 2009
    ...2.0 operations. Id. § 2510(6) (defining person to include any "agent" of the United States Government). See Nardone v. United States, 302 U.S. 379, 384 (1937) (government bound by wiretap laws because "the sovereign is embraced by general words of a statute intended to prevent injury"); cf.......
  • U.S. v. Santora, Nos. 76-3440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 6, 1978
    ...had been held to prohibit the use of evidence obtained by wiretapping in proceedings in federal courts. (Nardone v. United States (1937) 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Benanti v. United States (1957) 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 4 Senator Scott was then unaware of the sto......
  • U.S. v. Medina, No. CRIM. 98-CR-10041-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 13, 1999
    ...(N.D.Okla.1998) (citing to United States v. Herron, 20 Wall. 251, 87 U.S. 251, 256, 22 L.Ed. 275 (1873)). In Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), the Supreme Court addressed a similar question, whether to apply a statute that allowed "no person" to tap ......
  • Pugach v. Dollinger, No. 306
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 14, 1960
    ...contents, substance, purport, effect or meaning of such intercepted communication to any person * * *" In Nardone v. United States, 1937, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 and 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, the Supreme Court held that under § 605 evidence obtained fr......
  • Request a trial to view additional results
270 cases
  • Legal Issues Relating To The Testing, USE, and Deployment of An Intrusion-Detection System (Einstein 2.0) To Protect Unclassified Computer Networks In The Executive Branch, 09-1
    • United States
    • Opinions of the Office of Legal Counsel of the Department of Justice
    • January 9, 2009
    ...2.0 operations. Id. § 2510(6) (defining person to include any "agent" of the United States Government). See Nardone v. United States, 302 U.S. 379, 384 (1937) (government bound by wiretap laws because "the sovereign is embraced by general words of a statute intended to prevent injury"); cf.......
  • U.S. v. Santora, Nos. 76-3440
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 6, 1978
    ...had been held to prohibit the use of evidence obtained by wiretapping in proceedings in federal courts. (Nardone v. United States (1937) 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Benanti v. United States (1957) 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 4 Senator Scott was then unaware of the sto......
  • U.S. v. Medina, No. CRIM. 98-CR-10041-NG.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 13, 1999
    ...(N.D.Okla.1998) (citing to United States v. Herron, 20 Wall. 251, 87 U.S. 251, 256, 22 L.Ed. 275 (1873)). In Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937), the Supreme Court addressed a similar question, whether to apply a statute that allowed "no person" to tap ......
  • Pugach v. Dollinger, No. 306
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 14, 1960
    ...contents, substance, purport, effect or meaning of such intercepted communication to any person * * *" In Nardone v. United States, 1937, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 and 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, the Supreme Court held that under § 605 evidence obtained fr......
  • Request a trial to view additional results

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