United States v. Sugden, 14405.

• Decision Date: 10 November 1955
• Docket Number: No. 14405.,14405.
• Citation: 226 F.2d 281
• Parties: UNITED STATES of America, Appellant, v. Robert V. H. SUGDEN and Jean S. Sugden, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

226 F.2d 281 (1955)

UNITED STATES of America, Appellant, v. Robert V. H. SUGDEN and Jean S. Sugden, Appellees.

No. 14405.

United States Court of Appeals Ninth Circuit.

September 30, 1955.

As Modified on Denial of Rehearing November 10, 1955.

Jack D. H. Hays, U. S. Atty., William A. Holohan, Asst. U. S. Atty., Phoenix, Ariz., Warren E. Baker, Gen. Counsel, F. C. C., Washington, D. C., for appellant.

Snell & Wilmer, Phoenix, Ariz., Bryant W. Jones, Yuma, Ariz., for appellees.

Before STEPHENS, FEE and CHAMBERS, Circuit Judges.

CHAMBERS, Circuit Judge.

Robert V. H. Sugden is a cotton farmer farming in Arizona near Yuma. His wife Jean assists him in the operation, at least as far as operating their farm radio station is concerned.

On October 7, 1953, Mr. and Mrs. Sugden were jointly indicted for conspiracy to violate the immigration laws. Also, Mr. Sugden alone was indicted for concealing and shielding illegal entrants into the United States from detection. The charges revolve around allegations of employing Mexican nationals, commonly called "wetbacks," on the Sugden farm. It is alleged that they took various steps to hide the illegal entrants and avoid being caught with them in their employ.

Consideration of the case will be shortened if, for the discussion of the case, it is assumed the Sugdens are guilty as charged. Of course, this may not be true at all.

The legally offensive events began in August, 1953, and seem to have culminated on September 18 of the same year.

In the matter of detection, of coaxing witnesses to speak freely upon interrogation before indictment and before trial, the government was materially aided by the fact that one Robert J. Stratton, an engineer from the Los Angeles office of the Federal Communications Commission, in early September had come into the Yuma area with monitoring devices. With an assistant, Stratton located the Sugdens' short wave transmitter. He listened to their broadcast instructions to the overseers in the fields. Apparently some of the instructions involved secreting Mexican nationals, illegally entered, from detection by United States immigration officials. An office of the Immigration Service was located in the town of Yuma and its officers patrolled the area.

The legal requirements for a farmer to operate his own radio station for farming purposes are minimal. He must have a license for his stationary transmitting set and any base operator must have a license.¹ It seems none is required for the operator of the mobile end of the two way radio apparatus. See 47 C.F.R., Chap. I, Parts 11 and 13. Licensing is perfunctory. The licensees must not have been convicted of a felony, etc. Ordinarily the salesman who sells the radio equipment to the farmer can handle the necessary paper work for the farmer to obtain his station and operators licenses. At all times when Stratton was monitoring, Sugden's station was licensed. But the operators licenses of Mr. and Mrs. Sugden did not arrive or were not effective until September 17, 1953. They had failed to fill out some blank in their application for operators licenses and so there was delay. The Sugdens make much of the fact that they were honestly trying to get licenses before September 17. On this point, it must be said that they were either licensed or unlicensed. Their good intentions could not serve as a substitute for licensing.

Returning to the subject of Stratton's listening, it should be related that he overheard broadcasts of Mr. or Mrs. Sugden which concerned the matter of secreting the wetbacks on September 9, 10 and 18, 1953. Some of the broadcasts were recorded by Stratton. On others he made notes. The contents of all apparently were made available to the Immigration Service and the district attorney. Also, considerable use was made of the broadcast matter before the grand jury.

At the threshold of trial on separate indictments which were consolidated for trial, the defendants moved to suppress the evidence obtained from Stratton's monitoring of the Sugden broadcasts. A hearing was had inquiring into the circumstances of Stratton's activities and the involvement of his evidence in the case. Most of the facts elicited are summarized hereinabove. During the hearing the Sugdens' counsel said: "If it please the court, I believe that counsel indicated this morning that the government has made substantial use of these transcripts in the preparation of the cause, and that the government proposed to substantially rely upon the testimony of Mr. Stratton in the presentation of its case." And the prosecutor replied: "That is a correct statement, counsel."

The trial court was of the opinion that the government's activities in developing and prosecuting the case ran counter to 47 U.S.C.A. § 605 and granted the motion to suppress. Also, the trial judge quashed the indictments. The government's concession, above quoted, was a factor in quashing of the indictments and suppressing the evidence.

Section 605, above mentioned, reads as follows:

"Unauthorized publication or use of communications

"No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to its destination, or to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena 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; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: Provided, That this section shall not apply to the receiving, divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress."

The government must concede that if the facts were the same save that Stratton had tapped the Sugdens' telephone line and obtained the same information without the Sugdens' consent as he did by monitoring the air waves, then the trial court's rulings were correct. Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298. But the government says listening on the air and wire tapping are different. Therefore, it appeals to this court. It thinks the fact that Stratton had a legal duty to listen in order to find illegal operations under the Federal Communications Act entitled him to turn the information over to other agencies of the government. Also, it is argued in the government's unusually excellant brief that picking up an air wave message and disseminating it as Stratton did is not an interception, is legal and something that Stratton surely and maybe any citizen could do anyway.

Perhaps a few background...