Lumbard, Chief Judge, and Waterman and Feinberg, Circuit Judges. Feinberg, Circuit Judge (concurring). Waterman, Circuit Judge (dissenting).
In July, 1958 Frank Guido was convicted in Schenectady Police Court of being a common gambler. The conviction was based on wiretap evidence of telephone conversations to which he was a party. In 1960 he brought suit in the Northern District to recover over $10,000 in damages allegedly resulting from the introduction of the wiretap evidence in the State trial, in violation of Section 605 of the Federal Communications Act of 1934, 47 U.S.C. § 605. Chief Judge Foley dismissed the complaint and entered judgment for defendants. We affirm.
During an investigation of gambling within the City of Schenectady, the Schenectady police department, pursuant to New York Code of Criminal Procedure § 813-a, applied for an order to tap a telephone which it had reason to believe was being used for bookmaking activity. An ex parte order was granted by a New York Supreme Court Justice on March 26, 1958. Thereafter, telephone conversations of plaintiff-appellant Guido were recorded by defendant-appellee Raymond Wemple, a Schenectady police officer, with the technical assistance of defendant-appellee George B. Reynolds, a New York State Trooper assigned to make the tap by the Chief Inspector of the State Bureau of Criminal Investigation.
Recordings of the conversations in which Guido was involved were introduced in evidence at his trial in Schenectady Police Court, over the objection of his attorney. On July 24, 1958, Guido was convicted of being a common gambler in violation of New York Penal Law, McKinney's Consol.Laws, c. 40, § 970. He was sentenced to a term of 6 months in Schenectady County Jail and fined $500. An appeal from the conviction was dismissed on motion for failure to perfect. Plaintiff then applied for a state writ of habeas corpus. Ultimately the Court of Appeals denied the writ. People ex rel. Guido v. Calkins, 9 N.Y.2d 77, 211 N.Y.S.2d 166, 172 N.E.2d 549 (1961), reversing 10 A.D.2d 510, 200 N.Y.S.2d 907 (3rd Dept. 1960), reversing 13 Misc.2d 791, 178 N.Y.S.2d 385 (1958).
In the present civil action for damages, Guido contends that defendants violated § 605 by intercepting and disclosing at the state trial, without permission, the contents of telephone conversations to which he was a party. He seeks to recover damages for the 153 days he spent in jail and the $500 fine he paid. He also seeks to recover $10,000 in counsel fees that he allegedly orally agreed to pay to the attorney who represents him in this action for representing him in all of the state court proceedings. Finally Guido seeks to recover for damage to his reputation resulting from the disclosure.
Judge Foley found that the greatest emphasis in the suit was placed upon recovery of the $10,000 in counsel fees, only $800 having been paid and the rest alleged to be due and owing. He held that since defendant State Trooper Reynolds did not divulge or publish he did not violate § 605 and was not liable. He extended immunity from civil damages to defendant Officer Wemple whom he found to be acting within the scope of, and pursuant to, governmental authority, without malice. He found no proof in the record that would provide a rational basis for the ascertainment of damages, and held that counsel fees could not be awarded in the absence of an express provision in § 605 providing for awarding counsel fees. For these reasons he dismissed the complaint.
Since this action is an implied private right of action arising out of a violation of a criminal statute, the same doctrines of law must be applied in deciding this appeal that would be applied if it were a criminal case arising from a violation of the statute in 1958. In Schwartz v. Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231 (1952) the Supreme Court considered the question whether, despite § 605, telephone communications intercepted by state officers could lawfully be received in evidence in state criminal trials and concluded that state trial courts were not required to reject such evidence. While Guido's appeal was under consideration by this court, the Supreme Court overruled Schwartz and held that evidence obtained in violation of § 605 is inadmissible in state criminal trials. Lee v. Florida, 392 U.S. 378, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (1968). However, the court has recently held in Fuller v. Alaska, 393 U.S. 80, 89 S. Ct. 61, 21 L. Ed. 2d 212 (October 28, 1968), that Lee was to apply prospectively only. This result, the Court stated, was required in light of the states' good faith reliance on Schwartz and because the principal upon which Lee was decided did not require retroactive application.*fn1 In light of this decision, I feel that the doctrine of Schwartz should be applied to the case before us, since it was the controlling Supreme Court precedent at the time that Guido was convicted through the use of wiretap evidence.
While this court has held that there is an implied private right of action for damages arising out of violation of § 605, Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir. 1947), the scope of the civil liability created by the statute has never been defined. See Lee v. Florida, 392 U.S. 378 at 387, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (Mr. Justice Black, dissenting). It would be a significant expansion of the scope of § 605 under the doctrine of Schwartz v. Texas, supra, to permit a defendant who was convicted in a state criminal proceeding on the basis of wiretap evidence to recover as damages under § 605 his counsel fees, fines levied against him and damages resulting from incarceration. I believe that the principles of statutory construction which must be applied in defining the scope of civil liability created under the Schwartz v. Texas interpretation of § 605 do not permit recovery of these elements of damages by defendants in cases tried prior to the decision of Lee v. Florida.
In Schwartz, the Court held that even if the disclosure of the evidence violated § 605, that section did not render the evidence inadmissible in state courts where state law permitted the use of such evidence. The Court said:
"Where a state has carefully legislated so as not to render inadmissible evidence obtained and sought to be divulged in violation of the laws of the United States, this Court will not extend by implication the statute of the United States so as to invalidate the specific language of the state statute. If Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed." 344 U.S. at 202-203, 73 S. Ct. 232, 97 L. Ed. 231.
The wiretap in this case was carried out pursuant to a state court order authorized under § 813-a of the New York Code of Criminal Procedure, which was clearly valid state law at the time of Guido's conviction.*fn2 In Pugach v. Dollinger, 365 U.S. 458, 81 S. Ct. 650, 5 L. Ed. 2d 678 (1961), affirming 277 F.2d 739 (2d Cir. 1960), the Court held, on the basis of Schwartz, that a federal court would not enjoin the use in state criminal proceedings of wiretap evidence obtained under a similar court order.
To construe a statute which is entirely silent upon the question of civil damages against state officials for wiretapping pursuant to a court order authorized under state law as providing an action against state officials for damages flowing from plaintiff's trial and conviction at a time when the Supreme Court had refused to construe the statute as prohibiting introduction of the wiretap evidence at the trial, would accomplish indirectly the result which the Supreme Court had refused to reach directly in Schwartz and Pugach. In those cases the Court determined that Congress did not intend § 605 to preclude the use of wiretap evidence in state courts. See Lee v. Florida, 392 U.S. at 387-388, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (Mr. Justice Black, dissenting); id. at 388-389, 88 S. Ct. 2096 (Mr. Justice Harlan, dissenting). Permitting recovery of these elements of damages would have been a serious deterrent to the use of the wiretap evidence and, as a practical matter, would have prevented the states from introducing such evidence at trial. I believe this would have been an unwarranted extension of the statute in the light of the Schwartz and Pugach decisions.
The only damage which Guido claims other than legal fees, fines and losses due to incarceration, is damage to his reputation resulting from the disclosure itself. On the record before us I cannot say that Judge Foley's finding that there was no credible evidence to support this claim is clearly erroneous. As the trial judge noted, Guido had been a law violator since 1933 and has been imprisoned a number of times, including a six month sentence in 1950 for unlawful purchase of heroin and a four year sentence after being convicted by a jury of unlawful sale of heroin in 1951. I agree with the trial judge that "with a background such as this, claim for damages for injury to reputation or mental upset taxes credulity somewhat."
The judgment is affirmed.
FEINBERG, Circuit Judge (concurring):
In 1958, when the wiretap in this case occurred and the information thereby obtained was disclosed, the controlling decision was Schwartz v. Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231 (1952). Under that case, wiretap evidence obtained by local police officials in violation of 47 U.S.C. § 605 could be introduced against a defendant in a state criminal trial and this court could not interfere. See Pugach v. Dollinger, 365 U.S. 458, 81 S. Ct. 650, 5 L. Ed. 2d 678 (1961), aff'g 277 F.2d 739 (2d Cir. 1960). According to the Supreme Court in Benanti v. United States, 355 U.S. 96, 101, 78 S. Ct. 155, 2 L. Ed. 2d 126 (1957), the rationale of Schwartz v. Texas was
that despite the plain prohibition of Section 605, due regard to federal-state relations precluded the conclusion that Congress intended to thwart a state rule of evidence in the ...