Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE and FRIENDLY, Circuit Judges.
The question for decision is whether a federal court should enjoin state officers from divulging wiretap evidence in a state criminal trial, when introduction of this evidence will constitute the violation of a federal criminal statute. In the two cases before us Judges Bryan and Rayfiel both refused to grant injunctive relief, and we affirm their judgments.
In No. 306, Pugach v. Dollinger, appellant and several others were indicted in November 1959 by the State of New York for burglary in the second degree, maiming, assault in the second degree and conspiracy. Their case was set for trial on January 7, 1960. About two weeks before the trial was to begin appellant brought this suit in the Southern District of New York to enjoin the Bronx County District Attorney, the New York City Police Commissioner and their agents from making use at the state trial of evidence obtained by tapping appellant's telephone wires in June 1959 and of evidence obtained by the use of information overheard in the course of the tapping. The complaint alleged that, although the wiretap was obtained pursuant to state court authorization and in accordance with a state statute, its divulgence would constitute a violation of § 605 of the Communications Act of 1934, 47 U.S.C.A. § 605. It further stated that wiretap evidence had been introduced before the grand jury in obtaining appellant's indictment and that the district attorney intended to make use of such evidence at trial. The district attorney has not denied that he expects to use wiretap evidence, nor does he contest appellant's allegations that appellant will be subject to irreparable injury if convicted by means of such evidence. Judge Bryan, relying primarily upon Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S. Ct. 118, 96 L. Ed. 138, declined to grant a preliminary injunction and dismissed the complaint. Pugach v. Sullivan, D.C.S.D.N.Y.1960, 180 F.Supp. 66. Upon motion by appellant, this court stayed introduction of the wiretap evidence, pending determination of the appeal.*fn1
In No. 307, O'Rourke v. Levine, appellants are presently on trial in the Nassau County Court on an indictment charging them with conspiracy, extortion, attempted extortion and coercion. The selection of jurors began on February 1, 1960 and the taking of testimony started a week later. Suit in the Eastern District of New York to enjoin the introduction of wiretap evidence was commenced on February 16, 1960. The allegations of the appellants' bill are substantially the same as those in the Pugach case, though in O'Rourke the district attorney has stated on the record in the state court trial his intention to make use of wiretap evidence. Judge Rayfiel denied a preliminary injunction, distinguishing the grant of the stay pending appeal in Pugach on the ground that much greater disruption of the state court proceeding would result were the introduction of evidence in a trial already in progress enjoined. Both this court and subsequently Mr. Justice Harlan of the Supreme Court, 80 S. Ct. 623, declined to stay the introduction of the wiretap evidence pending appeal.
We convened an en banc session of the court to hear these appeals.
The jurisdiction of the district courts was properly founded upon § 1337 of the Judicial Code, 28 U.S.C., which states that "the district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce * * *" The Communications Act of 1934 is an Act of Congress regulating commerce." See Benanti v. United States, 1957, 355 U.S. 96, 104-105, 78 S. Ct. 155, 2 L. Ed. 2d 126; cf. Mulford v. Smith, 1939, 307 U.S. 38, 46, 59 S. Ct. 648, 83 L. Ed. 1092. Since the asserted right to relief is based upon § 605 of the Communications Act, a suit to protect the federal right against impairment by state officers is a suit "arising under" the federal statute. American Federation of Labor v. Watson, 1946, 327 U.S. 582, 590-591, 66 S. Ct. 761, 90 L. Ed. 873.*fn2
Section 605 of the Communications Act states in pertinent part: "* * * no person not being authorized by the sender shall intercept any communication and divulge the existence, contents, substance, purport, effect or meaning of such intercepted communication to any person * * *" In Nardone v. United States, 1937, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314 and 1939, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307, the Supreme Court held that under § 605 evidence obtained from wiretapping by federal officers was inadmissible in a federal court. In Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231, upon direct review of a state criminal conviction it was held that the use of the same kind of evidence obtained by state officers was not prohibited by § 605. The Court stated that it would not presume, in the absence of any clear manifestation of intent, that Congress intended to supersede a state rule of evidence permitting the introduction of evidence obtained by state officers and divulged in violation of a federal statute. Two years ago, in Benanti v. United States, supra, the Court held that wiretap evidence obtained by state officers was not admissible in a federal court, although the evidence was procured in accordance with a New York state statute authorizing wiretapping pursuant to court order.*fn3 The Court reasoned that under § 605 Congress intended to exclude from use in the federal courts evidence the divulgence of which would be unlawful, regardless of its source. Though the Court made clear that tapping coupled with divulgence was a violation of § 605, even when done pursuant to state law, it carefully distinguished the decision in Schwartz v. State of Texas, supra.*fn4
Appellants contend that we should enjoin the defendants from introducing wiretap evidence in the state court trials, since the divulgence of this evidence will violate § 605. They contend that if we do not intervene, they will be subject to irreparable injury, because, if the evidence is introduced and they are found guilty their convictions will not be subject to reversal on appeal either under New York law, see People v. Variano, 1959, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E.2d 857, or federal law, Schwartz v. State of Texas, supra.
The exercise of the power of a federal court to grant equitable relief is a matter of discretion. In each case the court must balance the factors for and against the use of its power. See Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324. Here we think that the district courts properly concluded that the balance weighs against the exercise of the power to grant injunctive relief. We agree that in the circumstances of these two cases a federal court should not intervene in criminal prosecution by a state for violation of its criminal laws. See Voci v. Storb, 3 Cir., 1956, 235 F.2d 48.
Both Congress and the Supreme Court have often indicated their concern for the preservation of the balance between the states' administration of their laws and the use of federal equity power by restriction or withholding of the power of the federal courts. See, e. g., 28 U.S.C. §§ 1342, 2283; Stefanelli v. Minard, supra; Watson v. Buck, 1941, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed. 1416; State of Maryland v. Soper, 270 U.S. 9, 46 S. Ct. 185, 70 L. Ed. 449; Id., 270 U.S. 36, 46 S. Ct. 192, 70 L. Ed. 459, and 1926, 270 U.S. 44, 46 S. Ct. 194, 70 L. Ed. 462. Moreover, Congress, in § 501 of the Communications Act, 47 U.S.C.A. § 501, has provided that violation of § 605 shall be a misdemeanor,*fn5 and we have held that § 605 creates a civil action for damages in favor of one whose line is tapped. Reitmeister v. Reitmeister, 2 Cir., 1947, 162 F.2d 691. Finally, we cannot overlook the long recognized principle of equity, based upon the policy of preserving the right to jury trial, that a court should not enjoin the commission of a crime. With these factors in mind, we do not think that a federal court should interfere with the prosecution of a state criminal proceeding in order to provide an additional means of vindicating any private rights created by § 605.
We are guided in our determination by the decision of the Supreme Court in Stefanelli v. Minard, supra. There the Court held that a federal court should refuse to intervene in a state criminal proceeding to enjoin the use of evidence claimed to have been secured by an unlawful search and seizure contrary to the Fourth Amendment. The plaintiff's claim in Stefanelli was closely analogous to that made here - that since under Wolf v. People of State of Colorado, 1949, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782, admission in a state court of evidence obtained by an unlawful search and seizure would not be ground for reversal of the conviction, a federal court should enjoin the introduction of such evidence. Mr. Justice Frankfurter's statement of the reasons for refusing injunctive relief in Stefanelli are equally applicable here:
"The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law - with its far-flung and undefined range - would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand and petit juries, in the failure to appoint counsel, in the admission of a confession, in the creation of an unfair trial atmosphere, in the misconduct of the trial court - all would provide ready opportunities, which conscientious counsel might be found to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution." (Footnotes omitted) 342 U.S. at pages 123-124, 72 S. Ct. at page 121.
It is urged that Stefanelli differs from the cases before us in that there the violation of federal law was the unlawful search itself, which had already taken place at the time of the suit for injunctive relief and which the federal court could therefore not prevent, while here the very act of divulging the evidence will constitute the commission of a federal crime. The distinction is not persuasive. The decision in Stefanelli was placed on no such narrow ground, but was the expression of a general policy against "piecemeal" intervention by the federal courts in state proceedings for the purpose of litigating collateral issues. Moreover, the fact that the divulgence of the evidence sought to be enjoined will constitute the commission of a crime is not significant, since the plaintiffs must prevail, if at all, by vindication of their own rights under § 605, not by collateral enforcement of the rights of the United States to prosecute under § 501. As the Supreme Court said in Schwartz v. State of Texas, supra, 344 U.S. at page 201, 73 S. Ct. at page 234, "the introduction of the intercepted ...