Valli v. United States, 3244.

• Decision Date: 26 January 1938
• Docket Number: No. 3244.,3244.
• Citation: 94 F.2d 687
• Parties: VALLI et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

94 F.2d 687 (1938)

VALLI et al. v. UNITED STATES.^*

No. 3244.

Circuit Court of Appeals, First Circuit.

January 26, 1938.

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Essex S. Abbott, of Boston, Mass. (Joseph V. Carroll, of Boston, Mass., on the brief), for appellants.

Robert W. Meserve, Asst. U. S. Atty., of Boston, Mass. (Francis J. W. Ford, U. S. Atty., of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

This is an appeal by the respondents Valli, Bacchi, and Goldstein from a judgment of the District Court of Massachusetts following a verdict of guilty of a charge of conspiracy to carry on the business of distillers without having given a bond as required by law, and with intent to defraud the United States of the tax on the spirits distilled by the conspirators; to illegally make or ferment mash fit for distillation and for the production of spirits or alcohol; and to remove distilled spirits on which the tax had not been paid to a place other than a distillery warehouse or other bonded warehouse as provided by law, and to conceal the distilled spirits so removed.

Twenty-five alleged conspirators were indicted. On motion of counsel for the government an entry of nol. pros. was made as to seven of the respondents, four were found not guilty by order of the court, one pleaded nolo contendere, and one was not tried because of illness; the remainder, including the appellants, were all found guilty under each of the three counts of the indictment by a verdict of a jury. Valli, Bacchi, and Goldstein alone appealed.

Error was assigned as to the admission of the testimony of two government officials as to conversations between the appellants themselves and between the appellants and certain of the other alleged conspirators heard by means of the tapping of telephone wires.

There was also assigned as error the admission of the testimony of an employee of the New England Telephone & Telegraph Company relating to the records of the Telephone Company, which were produced by him, showing the installation of telephones at certain places of business between which the government agents, by tapping the telephone wires, overheard conversations material to the charges in the indictment against the appellants, which records were made and kept in the usual course of the business of the Telephone Company, and to the admission of the registration cards of certain of the alleged conspirators at the Manger Hotel in Boston, and the records of telephone calls made from the rooms occupied by certain of the conspirators to other numbers shown by the records of the Telephone Company to have been installed and used by one or more of the coconspirators.

Another error assigned related to the admission of the evidence of one Richter, who was a dealer in molasses and yeast, as to the sale of large quantities of molasses and yeast to one of the conspirators or their servants and agents. From the quantity of the molasses and yeast sold and delivered at one time and the frequent sales, it is claimed the jury was warranted in finding that it was used for manufacturing alcohol for distillation in a still later seized by government officials.

No question is raised that the evidence obtained by the tapping of the wires, together with the other evidence in the case, if held to be admissible, was not sufficient to warrant a verdict of guilty as to the appellants, though the nature of the evidence received over the telephone wires is not before us.

The chief contention of the appellants is directed to the admissibility of intercepted conversations by means, of the tapping of the telephone wires. The objection that the parties speaking were not identified at the time is without merit. Fabacher v. United States, 5 Cir., 84 F.2d 602, 604; People v. Dunbar Contracting Co., 215 N.Y. 416, 109 N.E. 554. Counsel for the appellants strenuously contend that both section 605 of the Federal Communication Act, 48 Stat. 1103, 47 U.S.C.A. § 605, and section 99 of chapter 272 of the Massachusetts General Laws (Ter.Ed.), relating to eavesdropping, which provides that "whoever * * * secretly overhears * * * any spoken words * * * by using * * * a dictagraph * * * or by tapping any wire, with intent to procure information concerning any official matter or to injure another, shall be guilty of the crime of eavesdropping," render any evidence so obtained inadmissible.

Since this case was argued before this court, the Supreme Court has decided the case of Nardone et al. v. United States, 58 S.Ct. 275, 82 L.Ed. ___, December 20, 1937, in which it reversed the judgment of the Circuit Court of Appeals for the Second Circuit, U. S. v. Nardone, 90 F.2d 630, and held that section 605 of the Communication Act, 47 U.S.C.A. § 605, applied to federal officers, and any evidence obtained by them by tapping telephone wires in violation of that act was inadmissible in a federal court; but the Communication Act applies only to interstate communications.

Section 1 of the Communication Act, 47 U.S.C.A. § 151, declares it to be the purpose of the act to regulate interstate and foreign commerce in communication by wire or radio.

In section 2(a), 47 U.S.C.A. § 152(a), it is provided that the provisions of the act shall apply to all interstate and foreign communication by wire or radio.

By section 605, 47 U.S.C.A. § 605, "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." (Italics supplied.)

It therefore appears by the very terms of the Communication Act that, with the exception of a call from Boston to Bangor by the appellant Valli to Louis Weinstein, who was indicted as a coconspirator but was found not guilty by direction of the trial judge, it does not apply to the facts in this case, since all the other intercepted telephone messages were intrastate messages and therefore were not subject to the provisions of the Communication Act.

The call by Valli to Weinstein in Bangor does not necessarily appear from the record to have been a part of the conspiracy, especially as Weinstein was found not guilty, but may have been a friendly call by Valli, notifying Weinstein that a truck of his had been seized by federal officials while transporting a large amount of alcohol, and a request by Weinstein for assistance, and an agreement by Valli that he would see what he could do, with a suggestion that Weinstein had better come to Boston himself.

It does not appear that the substantial rights of the complaining parties were prejudiced by the admission of this evidence. Title 28, § 391, U.S.C.A.

The burden of showing that evidence improperly admitted is prejudicial is on the party complaining. Haywood et al. v. United States, 7 Cir., 268 F. 795; Rich v. United States, 8 Cir., 271 F. 566; Hall v. United States, 8 Cir., 277 F. 19; Simpson v. United States, 9 Cir., 289 F. 188, certiorari denied 263 U.S. 707, 44 S.Ct. 35, 68 L.Ed. 517; Armstrong v. United States, 9 Cir., 16 F.2d 62, certiorari denied 273 U.S. 766, 47 S.Ct. 571, 71 L.Ed. 881; Shuman v. United States, 5 Cir., 16 F.2d 457; Nash et al. v. United States, 2 Cir., 54 F.2d 1006. The defendants have failed to sustain this burden, since they have not furnished this court a sufficient record of the entire case from which it can be said that the substantial rights of the defendants were affected by the introduction of this evidence.

The Nardone Case holds that evidence consisting of interstate communications obtained by federal officers by "wire tapping" is inadmissible under the Communication Act. If the same facts which existed in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376, should come before the Supreme Court since the passage of the Communication Act, the evidence obtained in that case by wire tapping would now be held inadmissible, since it consisted of interstate or foreign communication. But the question still remains whether section 99 of chapter 272 of Mass.Gen.Laws (Ter.Ed.), or ethical grounds, render telephone communications intercepted by federal officers inadmissible in a federal court where the communications intercepted are intrastate communications.

In the first place it is questioned whether the evidence in this case, though obtained by federal officers without the written permission of the Attorney General of Massachusetts, or the District Attorney of the district in which it was obtained, was obtained "with the intent to procure information concerning any official matter" — no indictment was pending against these respondents at the time — or with the intent "to injure another" within the meaning of the Massachusetts statute; the evidence being obtained for the purpose of enforcing the law.

In the second place, it appears that evidence obtained in violation of a state statute or a State Constitution does not render such evidence inadmissible in a federal court, unless the rights of a respondent under the Federal Constitution or a federal statute were violated in obtaining it. Wigmore on Evidence, 2d Ed.1923, Vol. IV, §§ 2183, 2184; Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Commonwealth v. Dana, 2 Metc., Mass., 329; People v. DeFore, 242 N.Y. 13, 150 N.E. 585; United States v. Reid et al., 12 How. 361, 363, 365, 13 L.Ed. 1023; Withaup v. United States, 8 Cir., 127 F. 530, 534; Gindrat v. People, 138 Ill. 103, 27 N.E. 1085.

The exclusion of evidence of federal officers obtained under an illegal warrant, or if they participated in an illegal search with state officers in the enforcement of the federal Prohibition Act, 27 U.S.C.A. § 1 et seq. was based on the fact that...