Pugach v. Dollinger

• Citation: 275 F.2d 503
• Decision Date: 11 February 1960
• Docket Number: No. 26116.,26116.
• Parties: Burton N. PUGACH, Petitioner-Appellant, v. Honorable Isidore DOLLINGER, District Attorney of Bronx County and Honorable Stephen P. Kennedy, Police Commissioner of the City of New York, Respondent-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

275 F.2d 503 (1960)

Burton N. PUGACH, Petitioner-Appellant, v. Honorable Isidore DOLLINGER, District Attorney of Bronx County and Honorable Stephen P. Kennedy, Police Commissioner of the City of New York, Respondent-Appellees.

No. 26116.

United States Court of Appeals Second Circuit.

Argued February 1, 1960.

Decided February 11, 1960.

Herbert S. Siegel and Louis Fusco, Jr., Bronx, New York City, for petitioner-appellant.

Irving Anolik, Asst. Dist. Atty., Bronx County, New York City (Isidore Dollinger, Dist. Atty., Bronx County, and Alexander E. Scheer, Asst. Dist. Atty., Bronx, New York City, on the brief), for respondent-appellees.

Before MEDINA and WATERMAN, Circuit Judges, and MADDEN, Judge, United States Court of Claims.^*

MEDINA, Circuit Judge.

Burton N. Pugach and others were indicted by the Grand Jury of Bronx County, New York, charged with the crimes of burglary in the second degree, maiming, assault in the second degree and conspiracy. Another indictment charges Pugach with felonious possession of fire-arms. Proceedings are pending in the County Court of Bronx County and we are informed by the Assistant District Attorney in charge that "it will not be possible to delay this case beyond February 15."

The present action was brought in the United States District Court for the Southern District of New York against the District Attorney of Bronx County and the Police Commissioner of New York City for a permanent injunction restraining the use by them and their agents and employees on the forthcoming trial of certain wiretap evidence. A motion for a preliminary injunction was denied and the complaint was dismissed. Pugach appealed to this Court from the order denying the preliminary injunction and dismissing his complaint. The matter comes before us on a motion for a stay pending the hearing of the appeal.

It is not disputed that defendants or their agents on June 15, 1959 procured an order of the Supreme Court of the State of New York permitting Pugach's telephone wires to be tapped, that they were tapped and that the contents of the wiretaps were divulged to the Grand Jury. It is also asserted and not denied that the wiretaps were divulged "to the press and to other persons." We agree with the statement by the District Judge: "It appears highly likely that the prosecution will use such evidence against plaintiff on the trial of the indictments." Indeed, the position of the District Attorney on this motion is not that no wiretap evidence will be used on the trial but rather that the order permitting the wiretap was authorized by Article I, Section 12 of the New York Constitution, by Section 813-a of the New York Code of Criminal Procedure, and the evidence thereof held to be admissible in criminal prosecutions by the recent decisions of the New York Court of Appeals in People v. Variano, 1959, 5 N.Y.2d 391, 185 N.Y.S.2d 1, and People v. Broady, 1959, 5 N.Y.2d 500, 186 N.Y.S. 2d 230; and he further contends that a federal court not only should not interfere with the use of such wiretap evidence but is without power or jurisdiction to do so. Under these circumstances we see no reason to doubt that the wiretap evidence will be used at the trial unless we take action to prevent such use.

Pugach's argument is: that Section 605 of the Federal Communications Act, 47 U.S.C.A. § 605, makes it a federal crime to tap a telephone and "divulge or publish the existence, contents, substance, purport, effect or meaning of such intercepted communication"; that defendants or their agents are about to commit this federal crime by further divulging and offering the wiretaps in evidence at the trial; that the Supreme Court has in effect held in United States v. Benanti, 1957, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126, that the constitutional and legislative authorization of wiretaps by the State of New York is illegal and void; that if the evidence is received at the trial and Pugach is convicted he will be wholly without remedy, since under Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, which is still in effect, the evidence will be admissible under the New York rules of evidence, even though illegally obtained, and his conviction will not be reversed. He also claims that the result of such violations of federal law will deprive him of his liquor license and his license to practice law. Pugach argues that, unless we grant the injunctive relief he prays, defendants and their agents will go ahead and violate the federal statute with impunity, shielding themselves behind a constitutional and legislative scheme of the State of New York that has been held by the Supreme Court to be invalid. This is a powerful argument and we have been unable to find any satisfactory answer to it.

It is interesting to note that on the same day the motion now under consideration was argued we also heard argument in United States ex rel. Graziano v. McMann, another wiretapping case. The regular New York procedure had been followed, the wiretap evidence was received at the trial and Graziano was convicted. The judgment of conviction was affirmed by the Appellate Division, 1957, 3 A.D.2d 1010, 165 N.Y.S.2d 445, and by the Court of Appeals, 1958, 4 N.Y.2d 881, 174 N.Y.S.2d 465, 150 N.E. 2d 768. A motion to amend the remittitur to note that a question arising under the federal Constitution had been argued and decided was denied, 1958, 4 N.Y.2d 1046, although Graziano had objected to the wiretap evidence and claimed it should not have been received as it violated the federal statute against intercepting and divulging telephone messages, and the Supreme Court denied certiorari, 1958, 358 U.S. 851, 79 S.Ct. 79, 3 L.Ed.2d 85. Thereafter Graziano applied for habeas corpus in the United States District Court for the Northern District of New York on the ground that his conviction violated his right to due process of law under the Fourteenth Amendment and the writ was dismissed. It was the appeal from the order dismissing the writ in Graziano that was argued before us on the same day Pugach's motion was argued. This Court has affirmed the order dismissing the writ in Graziano in an opinion filed herewith. This gives point to what may happen to Pugach if this motion is denied. In other words, once the federal law against wiretapping has been violated by state enforcement officers testifying at the trial to the contents of the wiretap, and a conviction has been obtained by use of such proof, the only remedy may well be a criminal prosecution against the enforcement officers who have violated the law or perhaps a civil suit by the convicted defendant for damages. That such remedies are hopelessly inadequate and that the convicted man will have suffered irreparable injury would seem to be self-evident. But here we can act in time to prevent the additional violation of Section 605 that will occur when the wiretap evidence is divulged and used at the trial.

In United States v. Benanti, 2 Cir., 1957, 244 F.2d 389, 391, we held:

"Despite the warrant issued by the New York State court pursuant to New York law, we have no alternative other than to hold that by tapping the wires, intercepting the communication made by appellant and divulging at the trial what they had overheard, the New York police officers violated the federal statute. Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Id., 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298. Section 605 of 47 U.S.C.A. is too explicit to warrant any other inference, and the Weiss case made its terms applicable to intrastate communications. The section provides:

`* * * 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 * * *.\'"

We also held, following as we thought the earlier cases, especially Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 that the fact that the federal officers had not participated in the wiretap and had no knowledge of it until the fact was brought out at the trial on cross-examination required us to affirm the conviction. In this we were mistaken, as the Supreme Court held the evidence was not admissible. United States v. Benanti, 1957, 355 U.S. 96, 78 S.Ct. 155, 2 L.Ed.2d 126. But our ruling¹ that the New York police officers had violated the federal law against divulging the contents of a wiretap, even though authorized by New York state law, was not disturbed. Instead, the Court held at pages 105-106 of 355 U.S., at page 160 of 78 S.Ct.:

"In light of the above considerations, and keeping in mind this comprehensive scheme of interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress, setting out a prohibition in plain terms, did not mean to allow state legislation which would contradict that section and that policy.18"

Footnote 18 reads:

"In passing, it should be pointed out that several Attorneys General of the United States have urged Congress to grant exceptions to § 605 to federal agents under limited circumstances. See, e. g., Hearings before Subcommittee No. 5 of the House Committee on the Judiciary on H.R. 762, 867, 4513, 4728, 5096, 84th Cong., 1st Sess., 28; Rogers, The Case for Wire Tapping, 63 Yale L.J. 792 (1954). But Congress has declined to do so. In view of this, it would seem unreasonable to believe that Congress is willing to allow this same sort of exception to state agents with no further legislation on its part."

We find nothing to the contrary in Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, which merely construed Section 605 as precluding "the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect." See Benanti, ...