Petition for a Writ of Certiorari — Stemmer v. New York

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Supreme Court of the United States

Ocroser Term 1948

No. 5 b 7

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Harvey Sremmer,

Petitioner,

—Vv.—

Tue Prorre or THe Srate or New York.

———————————————

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APPLICATION FOR WRIT OF CERTIORARI

| Artuur Garrretp Hays,

| | Osmonp K. Fraewxex and

Smwyvey Srrvszez,

Attorneys for Harvey Stemmer.

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TABLE OF CONTENTS

PAGE

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Statement of Jurisdiction ............ceeeeeeeeeees 3

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Reasons for Granting Writ ...............seeeeee- 4

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DE, SERUGRE See pws OCebed6b04s ovecoetsceneese ll

TaBLe or Cases CITED:

Atchison Railway v. Railroad Commission, 283 U. 8S.

Mt Benbeeedavescsccncéesseesnesverssrceseeacs 7

Chartiers & Sdteete Turnpike Company v. Mc-

, T Bib BOO covscersvsevcoarcsrcsecess 8

Francis v. Southern Pacific Co., 333 U. S. 445 ...... 7

Hitzelberger v. State, 174 Md. 152 ............045. 9

Leon v. State, 180 Md. 279, cert. den. 316 U.S.680... 9

Matter of Harlem Check Cashing Corp. v. Bell,

ME Wh, ED suconecccceesceneveseccccecesscs 6,7

ii

PAGE

People v. Barnhart, 66 Cal. App. (2d) 714 .......... 9

People v. Defore, 242 N. Y. 13 ....... sone edanededas S

People v. Donnenfeld, 198 App. Div. 918, affd. 233

i i dedeecbdeneddendbeeestinadetedevesces 8

People v. Kelley, 22 Calif. (2d) 169 ................ 9

People v. Nitzberg, 289 N. Y. 523 ...... jeouresevees 2

Savage v. Jones, 225 U. S. 501 ..............cceeee 7

Testa v. Katt, 390 U. &. S06 ....... cc ccc ccc cccccee 7

Townsend v. Yeomans, 301 U. S. 441 .............. 7

Weiss v. United States, 308 U. S. 321 .......... 4, 6,7

OTHER AvuTHORITIES CITED:

Bernstein, The Fruit of the Poisonous Tree; Civil

Liberties and Wire Taps, 37 Illinois Law Review,

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Constitution of New York State, Article 1,

TIE Ukabivdnsnesthadehscuscet ies 2, 3, 4, 12

Note: 7 Fordham Law Review 263 ................ 8

New York Criminal Code §399 ................ 2, 4, 13

New York Criminal Code §813(a) .............. 3, 4, 13

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New York Penal Law $580 (6) .................... 1

Revised Judicial Code, Section 1257 ............... 3

Rosenzweig, The Law of Wire Tapping, 32 Cornell

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Section 605 of Federal Communications Act (47

U. S. C. 605

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Supreme Court of the United States

Ocrosper Term 1948

No.

el

Harvey STemMMER,

Petitioner,

—--V.—

Tue Peorie or THE State or New York.

ian ol

APPLICATION FOR WRIT OF CERTIORARI

This is an application for a writ of certiorari to review

the judgment of the Court of Appeals of the State of New

York, which affirmed a judgment of the Appellete Divi-

sion of the Supreme Court of that State, which in turn

affirmed a judgment of the Court of General Sessions of

the County of New York convicting petitioner of con-

spiracy under New York Penal Law §580(6) and of

bribery under New York Penal Law 4382.

The Opinions Below

No opinion was written either in the Appellate Division

(273 App. Div. 854) or in the Court of Appeals (298 N. Y.

728), but the latter Court made the following statement:

“Judgment affirmed. Upon this appeal the follow-

ing question was presented and necessarily passed

upon: The appellants contended that the receipt in

2

evidence of wire tapped telephone calls was illegal

because of sec‘ion 605 of the Federal Communica-

tions Act of 1934 (U. S. Code, tit. 47, §605). This

court held to the contrary. (See Matter of Harlem

Check Cashing Corp. v. Bell, 296 N. Y. 15.) No opin-

ion.”

Summary Statement

Petitioner, with others, was indicted and gonvicted for

offering bribes to two professional football players and

for conspiracy to offer those bribes. The testimony against

petitioner consisted entirely of that of an accomplice,

Paris, together with telephone conversations overheard

as the result of wire tapping.

At the trial the football players (Hapes and Filchock)

to whom bribes had been offered testified, but neither of

them implicated petitioner (191, 295*). The accomplice,

Paris, testified that petitioner had induced him to make

these offers (468, 525, 537, 539, 555). Under the law of

New York a conviction may not rest on the uncorroborated

testimony of an accomplice. (New York Criminal Code

§399; People v. Nitzberg, 289 N. Y. 523.) It was there-

fore incumbent upon the prosecution to produce some

corroborative testimony to connect petitioner with the

crime.

The only evidence purporting to corroborate the ac-

complice was that of a police officer, Joseph L. Jove. He

testified to having obtained orders permitting the tapping

of the telephone wires at Paris’ home (1615, 1616). This

was done pursuant to the provisions of Article 1, Section

—

* The references are to the folios of the record used in the state courts.

12 of the Constitution of the State of New York, and Sec-

tion 813(a) of the New York Criminal Code, enacted in

1938. These permit the tapping of telephone wires upon an

affidavit showing that there is reasonable ground to believe

that evidence of crime may be so obtained.

Jove testified with regard to a number of outgoing

calls from Paris’ apartment. He identified petitioner as

the person speaking in Paris’ apartment in connection

with two of these calls. One, No. 5Q, was an intrastate

call made to a number in the Bronx (1803). The other,

No. 5R, was an interstate call to Elizabeth, New Jersey

(1820). Jove also testified that petitioner was the party

calling in on a number of other calls, the source or origin

of which was not identified (1726-1795). He was permitted

to stafe the substance of the conversations he overheard;

his notes were introduced into evidence. The petitioner’s

attorney objected to the receipt of this evidence on the

ground that section 605 of the Federal Communications

Act forbade its disclosure (1643-45).

There can be no doubt that this testimony determined

the jury’s verdict. Indeed, the trial court charged that

petitioner must be acquitted unless the jury was satisfied

that the voice overheard by the police officer was in fact

petitioner’s voice (2681, 2688, 2705).

Statement on Jurisdiction

The judgment of the Court of Appeals was entered on

November 24, 1948. That judgment was final under the

law of New York. The jurisdiction of this Court is in-

voked under Section 1257 of the Revised Judicial Code.

Statutes Involved

The following statutes are set forth in full in the ap-

pendix to this petition:

Section 605 of the Federal Communications Act

(47 U. S. C. 605);

Constitution of the State of New York, Article

1, Section 12;

New York Criminal Code, Sections 399 and

813(a).

The Question Presented

There is but a single question: Does the prohibition

against disclosure of telephone conversations contained

in the Federal Communications Act, prevent a state crimi-

nal court from listening to a report of such conversation

when overheard as a result of wire tapping not consented

to by a party to the conversation?

Reasons for Granting the Writ

The writ should be granted because the issue is one of

great public importance which has not heretofore been

determined by this Court, and because the decision of the

state court contravenes principles established by this

Court, particularly in Nardone v. United States, 302 U. S.

379, and Weiss v. United States, 308 U. S. 321.

THE ARGUMENT

The language of Section 605 of the Federal Communica-

tions Act is plain. It says:

“No person not being authorized by the sender shall

interrupt any communication and divulge or publish

the existence, contents, substance, purport, effect or

meaning of such interrupted communication to any per-

son ee 6”

There can be no question, of course, in the case at bar,

that the disclosure was not authorized by the sender of

the message, either by petitioner or by the accomplice.

This Court has construed the statute to apply to all

persons, agents of the government as well as private in-

dividuals. That question came up in Nardone v. United

States, 302 U. S. 379. There the government strongly

urged that Congress had not intended to ban the intercep-

tion of telephone messages by law enforcement agents.

This Court held otherwise. Mr. Justice Roberts said:

“We nevertheless face the fact that the plain words

of §605 forbid anyone, unless authorized by the

sender, to intercept a telephone message, and direct

in equally clear language that ‘no person’ shall divulge

or publish the message or its substance to ‘any per-

son.’ To recite the contents of the message in testi-

mony before a court is to divulge the message. The

conclusion that the act forbids such testimony seems

to us unshaken by the government’s arguments” (p.

382).

While that case was originally tried in a federal court

and involved the application of the statute to federal

agents, there is nothing whatever in the reasoning of this

Court which would confine the result to that precise situa-

tion. If, as this Court has held, the word “person” in-

cludes an agent of the United States Government, it must

include an agent of a state or municipality as well. The

decision rested on the breadth of the word used by Con-

gress and the policy of the law, not on the circumstances

that the particular agents in the case were federal ones

or the trial held in a federal court. The rule there laid

down has never been deviated from. Moreover, in the

Weiss case, 308 U. 8. 321, this Court applied the ban to

wholly intrastate conversations. Thus all of the conversa-

tions divulged in the case at bar come within the ban.

Taken together, these two cases make it plain beyond

argument that the federal law validly prohibits the inter-

ception and divulgence of all telephone messages by any-

one.

In the Court of Appeals the memorandum of affirmance

cited an earlier decision of that Court dealing with the

subject (Matter of Harlem Check Cashing Corp. v. Bell,

296 N. Y. 15) in which some attempt was made to reason

out the Court’s refusal to apply the Communications Act.

In that case, it is significant, however, that the Court of

Appeals did not discuss the Nardone case at all and tried

to distinguish the Weiss case on the single ground that there

the messages had been intercepted without resort to the

procedure authorized by the New York Constitution and

Code. Quite erroneously the Weiss decision was charac-

terized as one dealing only with the admissibility of evi-

dence in a Federal Court, whereas in fact the decision con-

cerned itself with the interpretation of a federal statute

in a field in which federal power was validly exercised.

7

It is, we submit, wholly irrelevant that the State of

New York may have set up a procedure for wire tapping

which, under limited conditions, made such wire tapping

legal under the laws of that state. Such procedure car

have no effect on the validity of the acts concerned under

federal law. Since the tapping of any wires violates the

federal law, no permission granted by a New York court

can make legal what federal law has declared illegal. Su-

premacy of the federal law under such circumstances can-

not be disputed. See Testa v. Katt, 330 U. S. 386; Francis

v. Southern Pacific Co., 333 U. S. 445.

In the Harlem Check Cashing Corp. case, supra, the New

York Court of Appeals suggested that the federal statute

must be limited to federal jurisdiction unless there was a

clear indication to the contrary in the statute itself. The

Court there cited three cases in support of that doctrine:

Townsend v. Yeomans, 301 U. 8. 441; Atchison Railway

v. Railroad Commission, 283 U. S. 380; Savage v. Jones,

225 U. S. 501.

These cases have no application whatever to a situation

such as the one now before the Court. They all dealt with

the commerce power. In that field it has long been estab-

lished that a federal regulation will not necessarily bar a

state regulation unless it is clear that Congress intended

to occupy the whole field. However, the Weiss case demon-

strates that Congress did intend to oceupy the whole field

in the Federal Communications Act. It makes little sense

to suppose that Congress intended to occupy the whole

field, dealing both with interstate and intrastate messages,

and intended to prevent all interception, including inter-

ception by federal agents, yet that Congress intended to

permit interception by state agents or disclosure in state

courts. That would be reading something into the law for

which there is no warrant either in its policy or in its

legislative history.

Here we are dealing with a federal prohibition against

action by any person. As was pointed out in the Nardone

ease, Congress enacted this law as an expression of its

general policy disapproving of wire tapping. It might

have made an exception permitting wire tapping in aid

of state law enforcement. It did not. The state courts

cannot carve out an exception in favor of themselves.

It should be noted, indeed, that the Court of Appeals did

not rest its decision on the New York rule that illegally

obtained evidence is admissible (People v. Defore, 242

N. Y. 13). Moreover, there is here no question of illegally

obtained evidence. For the very divulgence of the con-

versations was the commission of a crime in the presence

of the Court (Cf. 302 U. S. at 382). That the Federal

Communications Act prohibits such disclosure even in the

state court has been the uniform view of commentators

(See Bernstein, The Fruit of the Poisonous Tree; Civil

Liberties and Wire Taps, 37 Illinois Law Review, 99, 108;

Rosenzweig, The Law of Wire Tapping, 32 Cornell Law

Quarterly, 514, 546; note: 7 Fordham Law Review, 263).

Finally, in other situations various courts have held

that when a federal statute forbids the use of certain kind

of material it cannot be received by a state court although

the statute made no special reference to such court (See

People v. Donnenfeld, 198 App. Div. 918, affd. 233 N. Y.

526, as to statements made in bankruptcy under 11 USCA

§25; Chartiers & Robinson Turnpike Company v. Me-

Namara, 72 Pa. 278 (unstamped documents under Act of

July 13, 1866, §9).

The problem presented by this case is serious. It is

moreover far-reaching, since other state courts have

reached the same result as did the New York Court (See

Hitzelberger v. State, 174 Md. 152; Leon v. State, 180 Md.

279, cert. den. 316 U. 8. 680; People v. Kelley, 22 Calif.

(2d) 169; People v. Barnhardt, 66 Cal. App. (2d) 714).

This court should, therefore, grant certiorari, so as to

clarify the law and declare a uniform policy which shall

be observed by all the courts in the country.

Dated: January 3ist, 1949.

Respectfully submitted,

Artuur Garrietp Hays,

Osmonp K. Fragen xe and

Stoney Srrvstzez,

Attorneys for Harvey Stemmer.

10

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APPENDIX

Section 605 of the Federal Communications Act

(47 U. S. C. 605)

§605. UnautuHorizep Pusziication orn Use or ComMUNICA-

TIONS

No person receiving or assisting in receiving, or trans-

mitting, or assisting in transmitting, any interstate or

foreign communication by wire or radio shall divulge or

publish the existence, contents, substance, purport, effect,

or meaning thereof, except through authorized channels of

transmission or reception, to any person other than the

addressee, his agent, or attorney, or to a person employed

or authorized to forward such communication to its destina-

tion, or to proper accounting or distributing officers of the

various communicating centers over which the communica-

tion may be passed, or to the master of a ship under whom

he is serving, or in response to a subpoena issued by a court

of competent jurisdiction, or on demand of other lawful

authority; and 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 per-

son; and no person not being entitled thereto shall receive

or assist in receiving any interstate or foreign communi-

eation by wire or radio and use the same or any informa-

tion therein contained for his own benefit or for the benefit

of another not entitled thereto; and no person having

received such intercepted communication or having become

acquainted with the contents, substance, purport, effect, or

12

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 mean-

ing of the 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: Provided, That

this section shall not apply to the receiving, divulging, pub-

lishing, or utilizing the contents of any radio communica-

tion broadcast, or transmitted by amateurs or others for

the use of the general public, or relating to ships in dis-

tress. (June 19, 1934, c. 652, $605, 48 Stat. 1103.)

Constitution of the State of New York, Article 1,

Section 12

§12.. [Securiry Acarnst Unreasonasie Searcues, Sziz-

URES AND INTERCEPTIONS. |

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 af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

The right of the people to be secure against unreason-

able interception of telephone and telegraph communica-

tions shall not be violated, and ex parte orders or warrants

shall issue only upon oath or affirmation that there is rea-

sonable ground to believe that evidence of crime may be

thus obtained, and identifying the particular means of com-

munication, and particularly describing the person or per-

sons whose communications are to be intercepted and the

purpose thereof. New. Adopted by Constitutional Con-

vention of 1938 and approved by vote of the people Novem-

ber 8, 1938.

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13

New York Criminal Code, Sections 399 and 813(a).

§399. Conviction Cannot Bre Hap on Testimony or Ac-

COMPLICE, UNLEss CoRROBORATED

A conviction cannot be had upon the testimony of an

accomplice, unless he be corroborated by such other evi-

dence as tends to connect the defendant with the commis-

sioa of the crime. As amended L. 1882, c. 360, §1. Eff. June

21, 1882.

§813-a. Ex Parte Orper ror INTERCEPTION

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 subdivi-

sion 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 re-

newal is in the public interest. Any such order together

14

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 tele-

graphic 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. Added L. 1942, c. 924,

eff. May 23, 1942.

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