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DIAMOND v. UNITED STATES
Summary of Opinion — Diamond v. United States et al., Nos. 7746–7755 (6th Cir. Apr. 11, 1938)
Factual and Procedural Background
Ten defendants — Max Diamond, Louis Rothkopf, Albert Phillips, Morris Phillips, Morris Klein, Joe Kater, Abraham Balaban, Philip Goldberg, Harry Orloff, and Sam Gildar — were convicted of an offense in the District Court for the Northern District of Ohio, Eastern Division (Judge Samuel H. West). The appeals are before the Circuit Court of Appeals on petitions for rehearing. The petition for rehearing asserted that of approximately 150 telephone conversations introduced in evidence, only four or five were interstate calls and the remainder were intrastate, and that the court's earlier order reversing the convictions was silent about the effect of the Communications Act of 1934 on intrastate calls. The present opinion addresses those petitions for rehearing and denies them. For the prior opinion, see 94 F.2d 1012.
Legal Issues Presented
- Whether 47 U.S.C.A. § 605 (Communications Act of 1934) bars testimony or other disclosure of the contents of intercepted telephone communications, including where the interception was made by federal agents.
- Whether the prohibition in 47 U.S.C.A. § 605 applies to intrastate telephone communications when the same instrumentalities (wires, equipment) are used for interstate communications.
Arguments of the Parties
Petitioners' Argument
- The petition for rehearing contended that roughly 150 telephone conversations were admitted in evidence but only four or five were interstate calls; the rest were intrastate. Petitioners argued that the court's prior order reversing the cases did not explain how the Communications Act of 1934 (47 U.S.C.A. § 605) should be applied to intrastate calls, suggesting that intrastate communications might not be covered.
The opinion does not contain a detailed account of other parties' legal arguments in this rehearing petition.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nardone v. United States, 302 U.S. 379 (1937) | Interpreting 47 U.S.C.A. § 605 to mean that the phrase "no person" includes federal agents and that the statute bars testimony to the content of intercepted messages. | The court relied on Nardone's interpretation that the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept and to divulge the contents of telephone messages; reciting message contents in court testimony is a prohibited divulgence. |
| Southern Ry. Co. v. United States, 222 U.S. 20 | Illustration that federal statutes enacted under the Commerce Clause may apply broadly to instrumentalities that serve interstate commerce, even when applied to specific instances that are not themselves interstate commerce. | Used as an example supporting the proposition that a federal statute regulating instrumentalities of interstate commerce may validly apply to situations in which the particular transaction is intrastate, because the instrumentality serves interstate commerce. |
| Texas Pacific Ry. Co. v. Rigsby, 241 U.S. 33 | Same general principle: federal regulatory power over instrumentalities serving interstate commerce can extend to vehicles or equipment used on highways of interstate commerce regardless of the specific local engagement. | Reinforced the court's analogy that § 605 may reach intrastate communications when the same physical equipment is used for interstate communications, by analogy to application of federal safety statutes to instrumentalities. |
Court's Reasoning and Analysis
The court began by identifying the petitioners' contention that most of the recorded conversations were intrastate and noting the asserted silence of the earlier order on the Communications Act's effect on intrastate calls. The court then explained the declared purpose of the Communications Act of 1934: to regulate interstate and foreign commerce in communications by wire or radio, and cited § 605 (47 U.S.C.A. § 605), which provides that "no person not being authorized by the sender shall intercept any communication and divulge or publish" its contents.
The opinion relied on the Supreme Court's recent decision in Nardone v. United States, which interpreted § 605 to encompass federal agents within "no person" and to bar testimony concerning the contents of intercepted messages. The court quoted Nardone's conclusion that reciting the contents of intercepted messages in court is itself a forbidden divulgence under § 605.
Addressing the petitioners' intrastate/interstate concern, the court reasoned that the privacy protected by § 605 is the privacy of the conduit or instrumentality of interstate communication. The court observed that the same physical equipment may be used for both interstate and intrastate communications, and that federal statutes with broad scope have been sustained when applied to instrumentalities serving interstate commerce even when applied to non‑interstate transactions. To illustrate that principle, the court invoked the Federal Safety Appliance Act and cited Southern Ry. Co. v. United States and Texas Pacific Ry. Co. v. Rigsby.
On that basis the court concluded that § 605 prohibits the interception by "wire tapping" of telephone communications and the subsequent disclosure thereof by all persons except those authorized by the sender. The court expressly stated that neither federal agents nor intrastate communications are excluded from the statute's prohibition. The court observed that permitting a federal agent to listen in would permit hearing and disclosure of communications the statute forbids, thus undermining the privacy that § 605 was intended to secure.
Holding and Implications
Holding: The petitions for rehearing were DENIED.
Implications as stated by the court in this opinion:
- The court interpreted 47 U.S.C.A. § 605 to bar interception and disclosure (including testimony of contents) of telephone communications by any person not authorized by the sender. This interpretation includes federal agents within the statutory prohibition.
- The court held that the statutory protection extends to communications made by instrumentalities that serve interstate commerce even when the particular communications are intrastate; thus intrastate telephone calls made over equipment that also serves interstate communications are not excluded from § 605's protection.
- Direct procedural effect: the petition for rehearing in these consolidated appeals was denied. The opinion does not state that it is announcing a new, broader precedent beyond its interpretation here, but it does articulate how § 605 is to be applied to the facts and claims presented in these petitions.
Note: This summary is drawn exclusively from the provided opinion text and does not add factual or legal matter beyond what that opinion contains.
PER CURIAM.
These cases are before us upon petition to rehear. The petition states "of approximately 150 telephone conversations introduced in evidence, only four or five were interstate calls, the rest all being intrastate calls," and that the order made by which the cases were reversed is silent as to the effect of the Communications Act of 1934 upon intrastate calls. The declared purpose of the Communications Act was to regulate interstate and foreign commerce in communications by wire or radio. Section 605 thereof, 47 U.S.C.A. § 605, contains the provision, "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 person."
With reference to this provision the Supreme Court in Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 276, 82 L.Ed. 314, December 20, 1937, said: "Taken at its face value the phrase `no person' comprehends federal agents, and the ban on communication to `any person' bars testimony to the content of an intercepted message."
It further said: "We nevertheless face the fact that the plain words of section 605 [ 47 U.S.C.A. § 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 person.' To recite the contents of the message in testimony 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."
It seems to us that the privacy to be achieved by the mandate of the statute is the privacy of a conduit or instrumentality of interstate communication, though the same physical equipment may likewise be the means by which intrastate communications are made. The broad scope and constitutional validity of statutes have been sustained where instrumentalities serve both interstate and foreign commerce, even when applied in specific instances to transactions which are not interstate commerce. So the Federal Safety Appliance Act, 45 U.S.C.A. § 1 et seq., as an exercise of Federal power under the commerce clause has been held to extend to all vehicles used upon a highway of interstate commerce whether the vehicles themselves are so engaged or not, for the safety to be secured by the Act is the safety of the persons transported in interstate commerce, no matter what may be the source of the dangers which threaten it. Southern Ry. Co. v. United States, 222 U.S. 20, 25, 26, 32 S.Ct. 2, 56 L.Ed. 72; Texas Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 41, 36 S.Ct. 482, 60 L.Ed. 874.
It seems clear enough that the statute prohibits the interception by "wire tapping" of all telephone communications and the subsequent disclosure thereof by all persons except those authorized by the sender. Neither federal agents nor intrastate communications are excluded. If a federal agent is permitted to listen in on a telephone conversation, he of course hears all that is said regardless of whether the communication is interstate or intrastate in its nature. He is given an opportunity to hear and disclose that which he is forbidden to hear and disclose and to that extent the privacy which the Communications Act manifestly intends to secure for both interstate and foreign communications by telephone is destroyed.
The petition to rehear is denied.
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