United States of America Ex Rel. Dominick Graziano v. Daniel McMann Acting Warden, Clinton Prison, and the People of the State of New York , 275 F.2d 284 ( 1960 )

WATERMAN, Circuit Judge.

Appellant was convicted of the crime of robbery in the first degree after trial by jury in 1956 in a New York State Court. During trial evidence was introduced against appellant that had been obtained by the State-authorized use of' wiretaps.¹ Appellant’s conviction was affirmed by the Appellate Division, First Department, People v. Graziano, 3 A.D. 2d 1010, 165 N.Y.S.2d 445, and by the Court of Appeals, 4 N.Y.2d 881, 174 N.Y.S.2d 465, 150 N.E.2d 768. Following the affirmance by the Court of Appeals and preparatory to applying for a writ of certiorari to the United States Supreme Court, Graziano moved that the remittitur in his case be amended so as to show that the Court of Appeals had passed upon the issue of the legality of the introduction of wiretap evidence. The Court denied the motion, and appellant’s petition for review by the United States Supreme Court was denied, 358 U.S. 851, 79 S.Ct. 79, 3 L.Ed.2d 85.

Appellant then preferred to the United States District Court for the Northern District of New York his application for the issuance of a writ of habeas corpus in order to test there whether the evidence obtained as a result of this wiretapping was improperly admitted against him at his state court trial in the New York State Courts. The application was denied and, a certificate of probable cause and leave to appeal in forma pauperis having been granted, the case is before us on appeal from this denial. The same question is presented to us.

We have no difficulty in unanimously affirming the District Court, despite the fact that evidence presented against appellant was obtained and divulged in violation of 47 U.S.C.A. § 605. We believe that Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, is complete authority for the result we reach. Provided it has logical reference to the proof required to establish guilt, wiretap evidence obtained by New York State officers who have been affirmatively authorized to tap pursuant to Section 813-a of the State Code of Criminal Procedure is held by the New York Court of Appeals to be admissible in criminal cases in the New York Courts. People v. Variano, 1959, 5 N.Y.2d 391, 185 N.Y.S. 2d 1, 157 N.E.2d 857; People v. Saperstein, 1957, 2 N.Y.2d 210, 159 N.Y.S.2d 160, 140 N.E.2d 252. Cf. People v. Dinan, 2nd Dept., 1958, 7 A.D.2d 119, 181 N.Y.S.2d 122, affirmed 1959, 6 N.Y. 2d 715, 185 N.Y.S.2d 806, 158 N.E.2d 501, certiorari denied 1959, 361 U.S. 839, 80 S.Ct. 71, 4 L.Ed.2d 78. Even though, unless authorized by the sender, evidence obtained by intercepted wiretap would be clearly inadmissible in a federal court, Nardone v. United States, 1937, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314; Weiss v. United States, 1939, 308 U.S. 321, 329, 60 S.Ct. 269, 84 L.Ed. 298, introduction of the identical wiretap evidence in New York State Courts, although clearly violative of the federal prohibitory statute, is not thereby prevented. Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L. Ed. 652. Cf. Benanti v. United States, 1957, 355 U.S. 96 at page 101, 78 S.Ct. 155, 2 L.Ed.2d 126.

As was stated in Schwartz v. State of Texas, supra, 344 U.S. at page 201, 73 S.Ct. at page 234, “[enforcement of the statutory prohibition in § 605 can be achieved under the penal provisions of § 501.”²

There was no denial of any constitutional right. Schwartz v. State of Texas, supra. Appellant cannot be heard to complain because the wiretap communications were divulged and were of assistance in convicting him.

Affirmed.

1 . Article 1, § 12 of tlio New York State Constitution reads as follows:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to bo searched, and the persons or things to be seized.

“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. Adopted by Constitutional Convention of 1938; approved by the people Nov. 8, 1938.”

In 1956 § 813-a, New York Code of Civil Procedure, read as follows:

“An ex parte order for the interception 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 line or means of communication and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. In connection with the issuance of such an order the justice or judge may examine on oath the applicant and any other witness he may produce for the purpose of satisfying himself of the existence of reasonable grounds for the granting of such application. Any such order shall be effective for the time specified therein but not for a period of more than six 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. Any such order together with the papers upon which the application was based shall be delivered to and retained by the applicant as authority for intercepting or directing the interception of the telegraphic or telephonic communications transmitted over the instrument or instruments described. A true copy of such order shall at all times be retained in his possession by the judge or justice issuing the same.”

2 . The pertinent part of 47 U.S.C.A. § 605 reads as follows:

“ * * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; » * * and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of tbe same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto.”

47 U.S.C.A. § 501 provides:

“Any person who willfully and knowingly does or causes or suffers to be done any act, matter, or thing, in this chapter prohibited or declared to be unlawful, * * * shall, upon conviction thereof, be punished * * * by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both * * *»