United States v. Bonanzi, 68.

• Decision Date: 07 February 1938
• Docket Number: No. 68.,68.
• Parties: UNITED STATES v. BONANZI et al.
• Court: U.S. Court of Appeals — Second Circuit

94 F.2d 570 (1938)

UNITED STATES v. BONANZI et al.

No. 68.

Circuit Court of Appeals, Second Circuit.

February 7, 1938.

Louis Halle, of New York City, for Wm. J. Bonanzi.

Louis J. Castellano, of Brooklyn, N. Y. (Arthur L. Burchell, of Brooklyn, N. Y., of counsel), for Dominick Butto and Tizio Buda.

Leo J. Hickey, U. S. Atty., of Brooklyn, N. Y., Vine H. Smith and Frank J. Parker, Asst. U. S. Attys., both of Brooklyn, N. Y., and T. Vincent Quinn, Asst. U. S. Atty., of Flushing, N. Y., of counsel).

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

The appellants, with four others who have not appealed, were convicted after a trial by jury in the District Court for the Eastern District of New York. They were charged in an indictment containing three counts with conspiring to violate sections 173 and 174 of U.S.C.A. title 21 by unlawfully, fraudulently, and knowingly importing opium into the United States and afterwards facilitating the transportation and concealment of it and with the substantive offenses of importation of the opium and the facilitation of its transportation and concealment. They were convicted and sentenced on all three counts. But a recent decision of the Supreme Court requires reversal of the judgment as to Bonanzi, and the conviction of the other appellants is not sufficiently supported by the evidence.

The established facts, shortly stated, are that the British steamship Taybank, which had come to New York from Shanghai, China, was docked on March 6, 1937, at Pier 4, United States Army Base, at the foot of Fifty Eighth street, Brooklyn, when about 4,000 ounces of opium were discovered hidden in her dunnage hatch and seized. The convicted defendants who have not appealed were members of her crew. The appellant Bonanzi was the man in New York who, the government claims, was to receive the opium from the ship with the assistance of Butto and Buda.

Evidence connecting Bonanzi with the conspiracy was found upon him after he was arrested and searched but, unless his arrest can be supported upon reasonable cause based in part upon information gained from his telephone communications intercepted by government agents, the arrest itself was unlawful. Moreover, the intercepted conversations were received in evidence over the objection that the interception was unauthorized and that they were inadmissible because of the violation of section 605 of the Communications Act of 1934. 48 Stat. 1064, 1103, 47 U.S.C.A. § 605.

The agents who did the wire tapping testified that they recognized the voice of Bonanzi as that of one of the speakers and related what they heard in each instance except one where a phonographic record was made. The conversation thus recorded was reproduced in court with the record in a reproducing machine. There was evidence that one of the voices was that of Bonanzi and that both speakers were in New York, making it an intrastate communication. The other intercepted communications introduced in evidence may have been either interstate or intrastate. On the assumption that the above-mentioned statute does not apply to intrastate communications, it is urged by the government that the record of the intrastate communication was sufficient without the other evidence gained by wire tapping which should accordingly be held but cumulative and its reception harmless error at most. Taking the assumption for present purposes, but without deciding the point, we are unable to agree that...