United States v. Gruber, 86.

• Decision Date: 10 November 1941
• Docket Number: No. 86.,86.
• Citation: 123 F.2d 307
• Parties: UNITED STATES v. GRUBER.
• Court: U.S. Court of Appeals — Second Circuit

123 F.2d 307 (1941)

UNITED STATES v. GRUBER.

No. 86.

Circuit Court of Appeals, Second Circuit.

November 10, 1941.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

Jacob Gruber, of New York City, in person (I. Maurice Wormser and Frank X. Cronan, both of New York City, of counsel), for appellant.

Mathias F. Correa, U. S. Atty., of New York City (John L. Burling, Asst. U. S. Atty., of New York City, of counsel), for the United States of America, appellee.

AUGUSTUS N. HAND, Circuit Judge.

The appellant, Gruber, was indicted by a jury for conspiring to defraud the United States of the disinterested services of Elizabeth Miller, a telephone operator in the New York Regional Office of the Securities and Exchange Commission and also for the substantive offenses of aiding and abetting her in intercepting and divulging a telephone communication of March 3, 1941, and another one on March 26, 1941.

It is unnecessary to say more about the merits of the case than that the evidence adduced on the part of the government was ample to justify the charge that Gruber induced Miss Miller to connect his office telephone by means of what is known as the conference system with calls from one Earl Edden, an employee of S. E. C. in Chicago, who was calling the latter's superior Byrne at the New York office. Edden was engaged on behalf of the S. E. C. in an investigation of the so-called "Esquire-Coronet" matter involving a client of Gruber. Gruber desired to know what steps were being taken against his client and sought to acquire the information by means of the conference system put into operation by Miss Miller. She testified that on March 3, 1941, and March 26, 1941, she did not overhear either conversation but connected Gruber's office with the Chicago calls and told him "to keep quiet". While Gruber denied the entire story there was substantial evidence to support the verdict that he conspired with Miss Miller and aided and abetted her in violating the "wire tapping" sections of the Communications Act. The clause of that Act to which attention is particularly directed is the second clause of Section 605, Title 47 of the United States Code Annotated, which reads as follows: "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."

The purely verbal argument is made that though Miss Miller intercepted the telephone messages between Edden and Byrne by shunting them to Gruber, she could not have divulged them because she never heard the conversations. The contention seems little less than fantastic. Our decision in United States v. Polakoff, 112 F.2d 888, 134 A.L.R. 607, is oddly enough relied on by the appellant as showing that Miss Miller neither intercepted nor divulged any communication. But that decision was essentially to the contrary. There the telephone messages were carried over an ordinary extension telephone and received upon a recording instrument set up by government agents. The recording was the interception, and the transmission of the record by playing it back to the agents constituted the act of divulging. A hearer not contemplated by the parties to the conversation was introduced without their consent. It can make no difference that the person divulging did not know the contents of the message. Whether he was never engaged in listening or could not understand the communication, so long as he caused it to be transmitted to a third party without the consent of the sender, he intercepted and divulged the communication and violated the statute as surely as though he had abstracted a telegram from a Western Union Office and delivered it to some third party. In the present case the evidence of guilt was plain. The only matters for further consideration are the objections of the appellant to the conduct of the trial.

Particular objection is made to the cross examination by the government of some of the appellant's character witnesses. One of them, Charles S. Colden, the County Judge of Queens County, New York, testified that Gruber had an excellent reputation for truth and veracity. Judge Colden had given answers which indicated that he had in a general way followed the work of the appellant while a Deputy Assistant Attorney General of the...