Pugach v. Dollinger , 277 F.2d 739 ( 1960 )

LUMBARD, Chief Judge.

The question for decision is whether a federal court should enjoin state officers from divulging wiretap evidence in a state criminal trial, when introduction of this evidence will constitute the violation of a federal criminal statute. In the two cases before us Judges Bryan and Rayfiel both refused to grant injunctive relief, and we affirm their judgments.

In No. 306, Pugach v. Dollinger, appellant and several others were indicted in November 1959 by the State of New York for burglary in the second degree, maiming, assault in the second degree and conspiracy. Their case was set for trial on January 7, 1960. About two weeks before the trial was to begin appellant brought this suit in the Southern District of New York to enjoin the Bronx County District Attorney, the New York City Police Commissioner and their agents from making use at the state trial of evidence obtained by tapping appellant’s telephone wires in June 1959 and of evidence obtained by the use of information overheard in the course of the tapping. The complaint alleged that, although the wiretap was obtained pursuant to state court authorization and in accordance with a state statute, its divulgence would constitute a violation of § 605 of the Communications Act of 1934, 47 U.S.C.A. § 605. It further stated that wiretap evidence had been introduced before the grand jury in obtaining appellant’s indictment and that the district attorney intended to make use of such evidence at trial. The district attorney has not denied that he expects to use wiretap evidence, nor does he contest appellant’s allegations that appellant will be subject to irreparable injury if convicted by means of such evidence. Judge Bryan, relying primarily upon Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, declined to grant a preliminary injunction and dismissed the complaint. Pugach v. Sullivan, D.C.S.D.N.Y.1960, 180 F.Supp. 66. Upon motion by appellant, this court stayed introduction of the wiretap evidence, pending determination of the appeal.¹

In No. 307, O’Rourke v. Levine, appellants are presently on trial in the Nassau County Court on an indictment charging them with conspiracy, extortion, attempted extortion and coercion. The selection of jurors began on February 1, 1960 and the taking of testimony started a week later. Suit in the Eastern District of New York to enjoin the introduction of wiretap evidence was commenced on February 16, 1960. The allegations of the appellants’ bill are substantially the same as those in the Pugach case, though in O’Rourke the district attorney has stated on the record in the state court trial his intention to make use of wiretap evidence. Judge Rayfiel denied a preliminary injunction, distinguishing the grant of the stay pending appeal in Pugach on the ground that much greater disruption of the state court proceeding would result were the introduction of evidence in a trial already in progress enjoined. Both this court and subsequently Mr. Justice Harlan of the Supreme Court, 80 S.Ct. 623, declined to stay the introduction of the wiretap evidence pending appeal.

We convened an en banc session of the court to hear these appeals.

The jurisdiction of the district courts was properly founded upon § 1337 of the Judicial Code, 28 U.S.C., which states that “the district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce * * * ” The Communications Act of 1934 is an “Act of Congress regulating commerce.” See Benanti v. United States, 1957, 355 U.S. 96, 104-105, 78 S.Ct. 155, 2 L.Ed.2d 126; cf. Mulford v. Smith, 1939, 307 U.S. 38, 46, 59 S.Ct. 648, 83 L.Ed. 1092. Since the asserted right to relief is based upon § 605 of the Communications Act, a suit to protect the federal right against impairment by state officers is a suit “arising under” the federal statute. American Federation of Labor v. Watson, 1946, 327 U.S. 582, 590-591, 66 S.Ct. 761, 90 L.Ed. 873.²

Section 605 of the Communications Act states in pertinent part: “ * * * no person not being authorized by the sender shall intercept any communication and divulge the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person * * * ” In Nardone v. United States, 1937, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 and 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307, the Supreme Court held that under § 605 evidence obtained from wiretapping by federal officers was inadmissible in a federal court. In Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, upon direct review of a state criminal conviction it was held that the use of the same kind of evidence obtained by state officers was not prohibited by § 605. The Court stated that it would not presume, in the absence of any clear manifestation of intent, that Congress intended to supersede a state rule of evidence permitting the introduction of evidence obtained by state officers and divulged in violation of a federal statute. Two years ago, in Benanti v. United States, supra, the Court held that wiretap evidence obtained by state officers was not admissible in a federal court, although the evidence was procured in accordance with a New York state statute authorizing wiretapping pursuant to court order.³ The Court reasoned that under § 605 Congress intended to exclude from use in the federal courts evidence the divulgence of which would be unlawful, regardless of its source. Though the Court made clear that tapping coupled with divulgence was a violation of § 605, even when done pursuant to state law, it carefully distinguished the decision in Schwartz v. State of Texas, supra.⁴

Appellants contend that we should enjoin the defendants from introducing wiretap evidence in the state court trials, since the divulgence of this evidence will violate § 605. They contend that if we do not intervene, they will be subject to irreparable injury, because, if the evidence is introduced and they are found guilty their convictions will not be subject to reversal on appeal either under New York law, see People v. Variano, 1959, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E.2d 857, or federal law, Schwartz v. State of Texas, supra.

The exercise of the power of a federal court to grant equitable relief is a matter of discretion. In each case the court must balance the factors for and against the use of its power. See Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324. Here we think that the district courts properly concluded that the balance weighs against the exercise of the power to grant injunctive relief. We agree that in the circumstances of these two cases a federal court should not intervene in criminal prosecution by a state for violation of its criminal laws. See Voci v. Storb, 3 Cir., 1956, 235 F.2d 48.

Both Congress and the Supreme Court have often indicated their concern for the preservation of the balance between the states’ administration of their laws and the use of federal equity power by restriction or withholding of the power of the federal courts. See, e. g., 28 U.S.C. §§ 1342, 2283; Stefanelli v. Minard, supra; Watson v. Buck, 1941, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; State of Maryland v. Soper, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; Id., 270 U.S. 36, 46 S.Ct. 192, 70 L.Ed. 459, and 1926, 270 U.S. 44, 46 S. Ct. 194, 70 L.Ed. 462. Moreover, Congress, in § 501 of the Communications Act, 47 U.S.C.A. § 501, has provided that violation of § 605 shall be a misdemean- or,⁵ and we have held that § 605 creates a civil action for damages in favor of one whose line is tapped. Reitmeister v. Reitmeister, 2 Cir., 1947, 162 F.2d 691. Finally, we cannot overlook the long recognized principle of equity, based upon the policy of preserving the right to jury trial, that a court should not enjoin the commission of a crime. With these factors in mind, we do not think that a federal court should interfere with the prosecution of a state criminal proceeding in order to provide an additional means of vindicating any private rights created by § 605.

We are guided in our determination by the decision of the Supreme Court in Stefanelli v. Minard, supra. There the Court held that a federal court should refuse to intervene in a state criminal proceeding to enjoin the use of evidence claimed to have been secured by an unlawful search and seizure contrary to the Fourth Amendment. The plaintiff’s claim in Stefanelli was closely analogous to that made here — that since under Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, admission in a state court of evidence obtained by an unlawful search and seizure would not be ground for reversal of the conviction, a federal court should enjoin the introduction of such evidence. Mr. Justice Frankfurter’s statement of the reasons for refusing injunctive relief in Stefanelli are equally applicable here:

“The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law — with its far-flung and undefined range— would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court — all would provide ready opportunities, which conscientious counsel might be found to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.” (Footnotes omitted) 342 U.S. at pages 123-124, 72 S.Ct. at page 121.

It is urged that Stefanelli differs from the cases before us in that there the violation of federal law was the unlawful search itself, which had already taken place at the time of the suit for injunctive relief and which the federal court could therefore not prevent, while here the very act of divulging the evidence will constitute the commission of a federal crime. The distinction is not persuasive. The decision in Stefanelli was placed on no such narrow ground, but was the expression of a general policy against “piecemeal” intervention by the federal courts in state proceedings for the purpose of litigating collateral issues. Moreover, the fact that the divulgence of the evidence sought to be enjoined will constitute the commission of a crime is not significant, since the plaintiffs must prevail, if at all, by vindication of their own rights under § 605, not by collateral enforcement of the rights of the United States to prosecute under § 501. As the Supreme Court said in Schwartz v. State of Texas, supra, 344 U.S. at page 201, 73 S.Ct. at page 234, “the introduction of the intercepted communications would itself be a violation of the statute” is “simply an additional factor for a state to consider in formulating a rule of evidence for use in its own courts. Enforcement of the statutory prohibition in § 605 can be achieved under the penal provision of § 501.”

Neither do we find it a persuasive ground of distinction that Stefanelli was an isolated case of federal law violation in New Jersey rather than what is called a consistent pattern in New York. Indeed, it could be argued that the constant conflicts that would be engendered between federal and state courts in an effort to deal with such a pattern would make this an a fortiori case for refusal to interfere. We have no reason to think that issuance of injunctions in these two cases would lead New York prosecutors to desist from this time forward from offering wiretap evidence in New York courts as permitted by the law of that state. On the contrary, the district courts would be flooded with suits for injunctions against the use of wiretap evidence and its alleged fruits in the state courts, with the consequent necessity of determining just what evidence was proposed to be introduced and whether the trial had reached such a stage that vindication of the federal right should be subordinated to practical considerations of state law enforcement; and all these determinations would be subject to appeal, with the prosecution obstructed in the meanwhile. Our respect for the supremacy clause is deep and abiding. But, as recognized in Stefanelli v. Minard, direct interference by federal courts in state criminal trials is quite a different matter from the analogies suggested by our brother Clark.

The stay granted by this court in Pugach v. Dollinger is vacated. The judgments are affirmed.

1 . 2 Cir., 1960, 275 F.2d 503. There were three opinions. Judge Medina voted to grant the stay on grounds that would lead equally to the grant of an injunction. Judge Waterman concurred in the grant solely to preserve the status quo lest the case become moot before the appeal could be decided. Judge Madden of the Court of Claims, sitting with the Court by designation, dissented.

2 . Whether jurisdiction may also lie under 28 U.S.C. § 1343(3) we do not decide.

Section 1343 provides in part:

“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

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“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States

In McGuire v. Amrein, D.C.D.Md.1951, 101 F.Supp. 414, the court held that it did not have jurisdiction of a suit identical in nature to that here under § 1343 (3), since § 605 is not an “Act of Congress providing for equal rights of citizens” as that phrase is used in § 1343 (3). In Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138, the Supreme Court reserved the question whether jurisdiction lay under § 1343(3) in a suit to enjoin the introduction of evidence in a state trial on the ground that the evidence was obtained by means of an unlawful search and seizure.

3 . Section 813-a of the New York Code of Criminal Procedure, under which the wiretap orders were issued in Benanti and in the cases before us states in part:

“An ex parte order for the interception, overhearing or recording of telegraphic or telephonic communications may be issued by any justice of the supreme court or judge of a county court or of the court of general sessions of the county of New York upon oath or affirmation of a district attorney, or of the attorney-general or of an officer above the rank of sergeant of any police department of the state or of any political subdivision thereof, that there is reasonable ground to believe that evidence of crime may be thus obtained and identifying the particular telephone number or telegraph line, and particularly describing the person or persons whose communications are to be intercepted, overheard or recorded and the purpose thereof. * * * Any such order shall be effective for the time specified therein but not for a period of more than two months unless extended or renewed by the justice or judge who signed and issued the original order upon satisfying himself that such extension or renewal is in the public interest. * * * ” Section 813-a was originally enacted in 1942 pursuant to Art. 1, § 12, para. 2 of the New York Constitution, adopted in 1938, which states:

“The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.”

4 . Whether both a tapping and a divulgence are necessary for a violation of § 605 was specifically reserved by the Supreme Court in Benanti. See 355 U.S. at page 100 note 5, 78 S.Ct. at page 157. Since both elements are involved here, we need not consider whether tapping alone is lawful.

5 . Convictions have been upheld under § 501 for violation of § 605. E. g., United States v. Gris, 2 Cir., 1957, 247 F.2d 860.