jurisdiction. This Court lacks the benefit of guidance from any binding authority.
Research has disclosed only two decisions on this precise point in the Federal Courts, one in the Third Circuit and one in the Second Circuit. In the Third Circuit there is a decision by a district judge in the United States District Court for the Western District of Pennsylvania, in United States v. Yee Ping Jong, 26 F.supp. 69, 70. The decision was rendered by Judge Gibson, a judge of many years of practical experience. Judge Gibson held that the recording of a telephone conversation in the manner I have just described is not a violation of the statute. His reasoning appears exceedingly persuasive, and for this reason I shall quote a portion of his opinion. He said:
'The manner in which the conversation in question was recorded does not seem to present such an interception as is contemplated by the quoted statute. Webster's New International Dictionary defines the verb 'intercepted' in part as follows: 'To take or seize by the way, or before arrival at the destined place; * * * '
'The call to the defendant was made by Agent White, and the conversation between his interpreter and the defendant was not obtained by a 'tapping of the wire' between the locality of call and the locality of answer by an unauthorized person, but was, in effect, a mere recording of the conversation at one end of the line by one of the participants. It differed only in the method of recording from a transcription of a telephone conversation made by a participant.'
In my opinion the statute is violated if a third person, unbeknownst to either party to the conversation, listens to what passes over the line and then divulges what he has heard, or, if the third person causes the conversation to be recorded by a mechanical or electrical device, without the knowledge of either party to the conversation, and then discloses what has been recorded. I hold that it is not a violation of the statute if the conversation is recorded, manually, mechanically, or electrically, at the instance of or with the consent or knowing acquiescence of one of the parties to it.
I am not unmindful of the fact that the United States Court of Appeals for the Second Circuit, by a divided vote, reached a result opposite to that reached by Judge Gibson and which is now being reached by me, in United States v. Polakoff, 112 F.2d 888, 891. The opinion in that case was written by a truly great judge, Judge Learned Hand, to whose views great deference should be shown. Judge Augustus Hand concurred in a separate opinion, quite obviously with some regret, reluctance and hesitation. A strong dissenting opinion was written by Judge Charles E. Clark, who refers to Judge Gibson's views and expresses agreement with them. He also makes the following very cogent observations:
'There can be no real distinction- there is none suggested in the statute or by common sense- between these recordings and a transcription made by a private secretary over the telephone in an outer office, or by a servant on an upstairs extension in a house, or even by a person listening at the telephone receiver held by the party to the conversation. Nor can it be of importance whether the transcriber or the party first makes the suggestion for the recording; in either event it is the party who has the power to direct or prohibit its transcription. Neither is it important whether evidence of the conversation comes from the mechanical device of a record or from testimony of those directed to listen in, except that the mechanical device gives the more trustworthy evidence.'
I agree with Judge Gibson and with Judge Clark.
Further, I find as a fact that it has not been established that any of the three conversations in question contained any information that led to obtaining any evidence by the Government in this case.
There is still another aspect of this matter to be passed upon at this stage. The defendants have offered evidence at this hearing that certain premises were raided by deputy United States marshals; that after the raid the deputies remained in the premises and answered a number of incoming telephone calls; that in the course of these conversations certain telephone numbers were mentioned by persons at the other end of the line, and that by tracing these numbers the Government was able to ascertain the names of the subscribers, and to call them as witnesses.
The defendants contend that the action of the deputy marshals in picking up the telephone and answering when the bell rang, and in listening to what the party calling said, and participating in the conversation, was a violation of the Act. This contention is also overruled on the basis of Judge Gibson's decision in the case cited, supra. It will be recalled that Judge Gibson held that the word 'intercept' as used in the statute is limited to taking or seizing by the way or before arrival at the destined place. Clearly on that basis the action of the deputy marshals did not constitute an interception within the meaning of the statute. To substitute oneself for the receiver of the telephone call is not an interception.
It is further urged, however, that there is another clause of Section 605 of the Federal Communications Act that is applicable to this aspect of the matter. This clause reads as follows: '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.'
It seems to the Court that obviously the deputy marshal did not use the conversation for his own benefit. The phrase 'for the benefit of another' naturally means for another person. I do not think that this includes the Government, and for that reason I do not believe that this clause is applicable. While it is not controlling, it is nevertheless persuasive that the Supreme Court of California, in People v. Kelley, 22 Cal.2d 169, 137 P.2d 1, held that evidence obtained in this manner was not secured in violation of the General Communications Act and was, therefore, admissible.
There is another point to be considered in this connection. The defendants Acalotti and Billeci deny that the telephone wire over which the deputy marshals listened was their telephone line or that they had any control or interest in that line. The Court holds that in view of this fact no right of the defendants Acalotti or Billeci was violated and that they have no legal standing to complain of this action of the deputy marshals. This position is sustained by the ruling of the Supreme Court in Goldstein v. United States, 316 U.S. 114, 120, 62 S. Ct. 1000, 86 L. Ed. 1312.
The motions of the defendants to exclude evidence on the ground that it has been procured in violation of the Federal Communications Act is denied.
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