decided: February 11, 1960.
UNITED STATES OF AMERICA EX REL. DOMINICK GRAZIANO, PETITIONER-APPELLANT,
DANIEL MCMANN, ACTING WARDEN, CLINTON PRISON, AND THE PEOPLE OF THE STATE OF NEW YORK, APPELLEES.
Before Medina and Waterman, Circuit Judges, and Madden, Judge, United States Court of Claims.*fn*
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.*fn1 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."*fn2
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.
MEDINA, Circuit Judge (concurring).
I concur but with some reluctance. While I agree that there seems to be little likelihood that the rule of Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231, will be changed, at least in the foreseeable future, it may well be that we are here dealing with something more than a state rule of evidence to the effect that evidence illegally obtained is admissible if relevant to the case and otherwise unobjectionable. The very fact that the State of New York not only has formulated through its courts a rule of evidence, but has also established and maintained, in its Constitution and legislation, a system of wiretapping that is persistently and continuously in operation through orders of New York judges authorizing the wiretapping and through New York enforcement officers who do the wiretapping and then divulge the wiretaps in testimony before Grand Juries and petit juries, all despite the ruling of the Supreme Court in Benanti v. United States, 1957, 355 U.S. 96, 78 S. Ct. 155, 2 L. Ed. 2d 126, to the effect that the entire system is illegal and in violation of the federal Communications Act of 1934, 47 U.S.C.A. § 605, and despite the Supremacy Clause, Article VI, Clause 2, U.S. Constitution, may well constitute an invasion of appellant's constitutional right to due process under the Fourteenth Amendment.*fn1 If this be so the Supreme Court may grant certiorari to review the ruling we are now making on the affirmance of the judgment of conviction against Graziano.The point is novel and the solution far from clear.