47 U.S.C.S. § 605, does not extend to intrastate telephone conversations.
Bruno and Iacono were indicted along with 86 others for a conspiracy to import, sell and possess narcotics; some were acquitted; others, besides these two, were convicted. On appeal, they asserted that if the evidence proved anything, it proved a series of separate conspiracies, and not a single one, as alleged in the indictment; that unlawful telephone "taps" were allowed in evidence against them; that the judge refused to charge the jury properly as to the effect of their failure to take the stand; and that there was not enough evidence to support the verdict. The court reversed the conviction of one defendant and affirmed as to the other. The court held, inter alia, that 47 U.S.C.S. § 605 did not extend to intrastate telephone conversations.
Must criminal convictions be reversed on the sole basis that unlawful telephone “taps” were allowed as evidence in court?
In United States v. Weiss, 2 Cir., 103 F.2d 348, we held that the statute, 47 U.S.C.A. § 605, did not extend to intrastate telephone talks, and that alone would be enough here; but against the posibility that the Supreme Court may take another view, we think that, even though the record was incompetent, its admission was not serious enough error to justify reversal. True, it did confirm the agent's testimony that LaRose talked to Bruno, and that in turn corroborated what the agent said LaRose had told him of Bruno's part in the sale. We do not believe, however, that the result would have been different, had the agent's testimony stood alone, for, although the only other testimony incriminating Bruno was of accomplices, there was nothing to shake the agent's testimony, or any reason, except possible excess of zeal, to doubt the truth of what he said. The proof of guilt was too strong to upset the verdict for such an error, if it was an error at all.