The opinion of the court was delivered by: REEVES
On April 17, 1950, the defendant through her counsel filed a motion for a new trial upon the ground above indicated. The motion was succinctly drawn and merely moved the court 'for an order granting a new trial based on the ground of newly discovered evidence.' Particulars were not set out. The motion was supplemented by affidavits wherein the claimed newly discovered evidence was suggested and outlined. Previously a like motion had been filed in the Court of Appeals, to which court the case had been appealed after sentence imposed on or about the first of July, 1949.
After consideration of said motion and its contents so far as pertinent here, the Court of Appeals, on March 29, 1950, ordered that ' * * * the motions be, and they are hereby denied, without prejudice to a renewal thereof after the District Court has been given an opportunity to entertain such a motion for new trial on the ground of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.' (Emphasis mine.)
The case was extensively argued both on behalf of the defendant and the government. Both in the arguments and the briefs of the parties it was and is inferred that the principal and only complaint is that the evidence upon which the defendant was convicted was the product of or traceable to wiretapping in violation of the provisions of Section 605, Title 47 U.S.C.A., relating to unauthorized publication or use of communications.
As a premise for the proper consideration of the motion it should be kept in mind that if the conviction of the defendant was effected by the use of evidence poisoned and tainted with wiretapping, then it is obvious under the authorities of Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314; Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307; Weiss et al. v. United States, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298, that a new trial should be granted. However, the defendant, through her counsel, does not specifically impugn or challenge any particular testimony adduced against her at the trial.
Adverting to the points enumerated by counsel:
First. It is broadly asserted that the defendant was not apprised until December 10, 1949, that her 'wires were constantly tapped and her mail intercepted by agents of the Federal Bureau of Investigation during the months of January, February and March 1949, to wit, during the period covered by the allegations in both counts of the indictment.'
It may be conceded that the agents of the Government had indulged in wiretapping as asserted by the defendant, through her counsel, and that the first knowledge of such conduct was acquired by her in December, 1949. These averments, however, would be inadequate to show that any testimony offered at her trial was tainted by or traceable to, or the product of wiretapping. It is the rule announced by the cases above cited that 'tangible, physical actions separate and apart from what may have been said about them over the telephone,' is admissible. While counsel do not point out any particular evidence that was the product of wiretapping yet it appears to be conceded that information had been obtained by agents of the government regarding the time when the defendant was leaving Washington for New York by intercepting telephone conversations. The testimony in the trial, however, showed that conversations and inquiries had with and made to other employees or officials of the Government by defendant had aroused their suspicion and caused them to take note of the times the defendant had arranged to visit New York City. In fact, she had made these announcements to a supervising officer or superior whose permission was essential, in each instance, and this was done at a considerable interval before she actually made her trips to New York City. Such was the evidence in the trial of the case, and such evidence was not supplemented by any information by wiretapping. Because of conditions relating to loyalty then prevailing, the conduct and attitude of the defendant was deemed sufficient to put the agents of the Government upon their inquiry and to cause them to make observations upon her conduct. Such led, according to the evidence, to the surveillances in the City of New York. The very fact that the Government (if it be a fact and apparently it is) obtained the identical information wrongfully, would not destroy or taint evidence otherwise lawfully and properly acquired as the record disclosed in this case.
Second. It is again contended and earnest arguments by defendant's counsel were made concerning alleged 'wiretapping and mail interception * * * continued after the indictment in the instant proceedings * * * during the trial, and even after conviction.'
Third. The same thing may be said regarding the third point, to the effect that 'agents of the FBI also intercepted telephone conversations between' defendant and her lawyer.
Again, while this may have been a serious breach of ethics, such conduct cannot be punished by granting a new trial unless such conduct was the means of procuring evidence to convict the defendant. Quite perfectly the old adage, 'Damnum absque injuria' (Wrong without injury) would apply in this case.
Fourth. The fourth point urged by counsel for the defendant is not helpful on the question involved, namely, 'That wiretapping is prohibited by Section 605 of the Federal Communications Act and is a crime against the United States pursuant to Section 501 of the same Act.'
This must be conceded and persons who have violated the provisions of the Act may be subject to prosecution, conviction and punishment. The court here is not concerned with the misconduct of others save only in so far as it may have affected the evidence in the case tried, that is to say, poisoned or tainted the evidence as having been obtained as the result of wiretapping, a violation of the law. In this connection is was argued by counsel, both at the bar and in lucid briefs, that the data slips or notes offered in evidence as having been taken from the defendant when she was arrested contained information obtained by wiretapping. Such information referred to third parties. The defendant was not concerned with that information and the Communications Act is designed to protect an individual or individuals who have participated in the intercepted communications. Moreover, the Communications Act does not punish the interception of messages but the punishment is inflicted in case of disclosure, and the disclosure made in court was curiously participated in by the defendant. The Government undertook to withhold a large ...