The opinion of the court was delivered by: BRYAN
The defendant moves to dismiss the indictment, or in the event that such motion is denied, to suppress certain evidence, and for a bill of particulars.
The indictment charges defendant with conspiring to violate and violating Sections 501 and 605 of Title 47 of the United States Code, 47 U.S.C.A. § 501, 605, which prohibit the unauthorized interception and divulgence of telephone communications. These sections make it a crime for any 'person not being authorized by the sender' to 'intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person'.
1. The motion to dismiss the indictment.
Defendant asserts that the indictment is insufficient as a matter of law because it does not contain a specific allegation that the telephone communications which were intercepted were interstate or foreign communications. He argues that there is no violation of Sections 501 and 605 where the intercepted communications are solely intrastate as distinguished from interstate or foreign. He maintains, therefore, that this Court has no jurisdiction without a specific allegation in the indictment that the intercepted communications with which it deals were interstate or foreign.
Both the defendant's premise and the conclusion which he seeks to draw from it are unsound.
Even if it be assumed that no Federal crime is committed under these sections unless interstate or foreign communications are involved, it is not necessary for the indictment to allege specifically that the intercepted communications were interstate or foreign. The recent opinion of the Court of Appeals of this Circuit in United States v. Varlach, 2 Cir., 225 F.2d 665, 669, is controlling on this question. There, defendants were charged with violation of the Hobbs Act, 18 U.S.C. § 1951, which makes it a crime to obstruct interstate commerce by extortion. The indictment in that case alleged only an obstruction of 'commerce' and did not use the words 'interstate' or 'foreign' or any similar words of limitation on the word 'commerce'. The Court of Appeals sustained the indictment holding that such specific allegations were unnecessary and that since the indictment was sufficient to apprise the defendants of the charges they were required to meet, it was valid.
The indictment in the case at bar also sufficiently advises the defendant of the charge against him. It clearly and specifically informs defendant of the offenses charged, the dates and places where the alleged offenses were committed, and the persons with whom the defendant is alleged to have committed them. Like the indictment in the Varlach case, the indictment here is not invalid because it fails specifically to limit the communications alleged to have been intercepted to those in interstate or foreign commerce.
Quite apart from the semantics of the indictment, the premise upon which defendant's argument as to the semantics proceeds is unsound. His contention that no offense has been committed under these sections unless the intercepted communications were in fact interstate or foreign was rejected by the Supreme Court in Weiss v. United States, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298. In construing the clause of Section 605 upon which this indictment is based the Supreme Court said:
'Plainly the interdiction thus pronounced is not limited to interstate and foreign communications. And, as Congress has power, when necessary for the protection of interstate commerce, to regulate intrastate transactions, there is no constitutional requirement that the scope of the statute be limited so as to exclude intrastate communications.' 308 U.S. at page 327, 60 S. Ct. at page 271.
Again, 308 U.S. at page 329, 60 S. Ct. at page 272:
'We hold that the broad and inclusive language of the second clause of the section is not to be limited by construction so as to exclude intrastate communications from the protection against interception and divulgence.'
Defendant maintains that the Weiss case is not applicable to the instant case because the Supreme Court there decided only that Section 605 prohibits the receipt in evidence of intercepted intrastate telephone communications against the sender of such communications who is charged with another substantive crime. The Supreme Court in the Weiss case held that Section 605 applied to intrastate communications. Section 501 makes it a Federal crime to do what is proscribed by Section 605. Since Section 605, which this defendant is charged with violating, covers intrastate as well as interstate communications, as the Supreme Court held in the Weiss case, the indictment charges this defendant with a crime whether the intercepted communications were intrastate or interstate. The same words in Section 605 cannot well be read as applicable to intrastate communications in one setting and not applicable to intrastate communications in another. The Weiss case is conclusive against the defendant's contention that the indictment is insufficient for failure to specify that the communications were interstate.
2. The motion to suppress evidence.
Defendant also moves to suppress all evidence against him which involves any intercepted wire communications and to prohibit the divulgence of the existence, contents, substance, purport, effect and meaning of any such communications. He asks a hearing pursuant to Rule 12(b)(4) of the Rules of ...