United States v. Polakoff , 112 F.2d 888 ( 1940 )

L. HAND, Circuit Judge.

The chief question on this appeal is the-competency of the accused’s declarations, made by telephone to the prosecution’s chief witness, Kafton. The indictment was for conspiring to obstruct justice (§ 241, Title 18 U.S.Code, 18 U.S.C.A. § 241) by influencing an assistant district attorney in his recommendation, of sentence to-the district judge. The case for the prosecution was in substance - as follows., Kafton had himself been indicted for deal--ing in narcotics, and the accused, Polakoff and Albert, agreed that if he would plead guilty and would pay them a sum of money, they would intervene with the assistant in charge of his case, whom Pola-koff knew, and seek to get him to recommend to the judge a light sentence. Kaf-ton became suspicious of this, and went to the district attorney, who sent him to agents of the Federal Bureau of Investigation. Through a telephone in the offices of the Bureau Kafton had a talk with each of the accused, which the agents recorded upon a machine annexed to an “extension” in the same circuit as the telephone that Kafton was using. The declarations of each of the accused, implying as they did an existing agreement by which Kafton was to pay them money, were so damaging that, if they were not competent, the conviction cannot stand. The prosecution seeks to support the evidence on the ground that Kafton was “the sender” of the message within § 605, Title 47 U.S.Code, 47 U.S.C.A. § 605; and that in any event the message was not “intercepted”.

The word, “sender”, in § 605 is less apt for a telephone talk than for a telegram, as applied to which there can be no doubt of its meaning. If a man sends a telegram, he may consent to its interception even ¡.hough that prejudice the addressee, as conceivably it might; but if the addressee answers by telegram, he alone can give a valid consent to the interception of the answer. He has a privilege like the sender, which is as immune from surrender by the sender’s consent, as the sender’s privilege as to the first message was from surrender by his consent. So far there can be no reasonable dispute. Every telephone talk, like any other talk, is antiphonal; each party is alternately sender and receiver and it would deny all significance to the privilege created by § 605 to hold that because one party originated the call he had power to surrender the other’s privilege. There cannot be the least doubt of this as to the answers of the party called up; and while it might indeed be pedantically argued that each party had the power to consent to the interception of at least so much as he said, that would he extremely unreal, for in the interchange each answer may, and often does, imply by reference some part of that to which it responds. It is impossible satisfac.torilv so to dissect a conversation, and the privilege is mutual; both must consent to the interception of any part of the talk. In the case at bar Kafton’s consent was therefore not enough.

Moreover, the recording was an “interception”. It is true that in the three decisions in which the Supreme Court has interpreted § 605, Title 47 U.S.Code, 47 U.S.C.A. § 605, the prosecuting agents had physically interposed some mechanism in the circuit as it had been constructed for normal use; at least this is what we understand by a “tap”. That was not the case here; the recording machine was merely fixed to an existing “extension” of the familiar kind in an adjoining room. Wc assume that the situation would have been no different, had the agent merely listened at the extension, and taken down what he heard by shorthand. The statute does not speak of physical interruptions of the circuit, or of “taps”; it speaks of “interceptions” and anyone intercepts a message to whose intervention as a listener the communicants do not consent; the means he employs can have no importance; it is the breach of privacy that counts. Wc need not say that a man may never make a record of what he hears on the telephone by having someone else listen at an extension, or, as in the case at bar, even by allowing him to interpose a recording machine. The receiver may certainly himself broadcast the message as he pleases, and the sender will often give consent, express or implied, to the interposition of a listener. Party lines are a good illustration; and it would be unwise to try in advance to mark the borders of such implications. Here, however, we need not be troubled by niceties, because, no matter what the scope of any such implied consent, it cannot extend to the intervention of prosecuting agents bent upon trapping the “sender” criminally. Violation of the privilege, we are admonished, is so grave a dereliction as to be “destructive of personal liberty” (Nardone v. United States, 302 U.S. 379, 383, 58 S.Ct. 275, 277, 82 L.Ed. 314) and if it is not to be sham and illusion, it must protect its possessor at least against such intrusions. “A decent respect for the policy of, Congress must save us from imputing to it a self-defeating, if not disingenuous purpose”. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. United States v. Yee Ping Jong, D.C., 26 F. Supp. 69, is to the contrary, but does not persuade us.

Since the case must be remanded we will pass upon the sufficiency of. the indictment, and of the evidence to prove the charge. The indictment merely alleged that the accused conspired “to influence and impede the official actions of officers in and of the United States District Court * * * in order that said Sidney Kafton would receive a sentence of not more than one year and one day”. The challenge is that it should have specified who were the “officers” that were to be so “impeded”. We do not see why, if the accused were really in ignorance of this detail, they could not have been fully protected by a bill of particulars. Decisions such as Heaton v. United States, 2 Cir., 280 F. 697, and Kellerman v. United States, 3 Cir., 295 F. 796, are of doubtful service today, when objections which do not go to the substance of a fair trial no longer get much countenance. Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861; Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629, 79 L.Ed. 1314; Crapo v. United States, 10 Cir., 100 F.2d 996, 1000. Besides, the indictments in each of the decisions relied upon failed to state all the facts of which the crime was constituted.

The objection to the sufficiency of the evidence depends upon whether it is a part of the official duty of a prosecuting attorney to make a recommendation to the judge regarding the sentence. It is true that the statute says nothing about this, but the custom has been uniform for over thirty ' years to my own personal knowledge; and in fact goes far back of that. Sometimes the judge asks for suggestions; sometimes they are volunteered; in either case they are of the greatest service in fixing the sentence, and no prudent judge likes to forgo their benefit. Improperly to influence this function of the prosecuting attorney would be a very successful way of impeding and obstructing the judge himself. We cannot see that Rosner v. United States, 2 Cir., 10 F.2d 675, is in point; the accused was there charged with violation of § 241, Title 18 U.S.Code, 18 U.S.C.A. § 241, because he told one, Miller, against whom an information had been filed, that he would “fix it up” with the district attorney, if Miller gave him $150; and that Miller should not comply with the district attorney’s request to appear and plead to the information. All the decision stands for is that a refusal of the request to appear and plead was not an obstruction of justice; probably that is correct, since the request was not process, but it has nothing to do with the situation at bar.

The indictment at bar was good, and the verdict was justified; but the judgment must be reversed because of the admission of the telephone records.

Judgment reversed; new trial ordered.