Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.
Defendants were convicted on an indictment charging them with the possession of a narcotic drug not in, or withdrawn from, an original stamped package, in violation of 26 U.S.C. § 2553(a) and with receiving, concealing and facilitating the transportation and concealment after importation, of the same drug, knowing the same to have been imported in violation of law, in violation of 21 U.S.C.A. § 174.
With the exception of evidence as to the custody, chemical analysis and identification of the narcotic, the government rested its case on the testimony of witnesses Sims and Bryson, officers of the Chicago Police Department. Sims testified that, on March 18, 1953, he and Bryson went to a store in Chicago operated by one Willie Hubbard.While they were there, a telephone call came in for Hubbard. Sims, standing baside Hubbard and placing his ear near the receiver, listened to the ensuing conversation.He did not then recognize the voice of the caller, whom Hubbard greeted as "Fred", but, following his arrest of defendants, he recognized the voice of Petrucci as that of the party who had called Hubbard. His testimony as to the conversation overheard follows: Fred, "How are you fixed for stuff?" Hubbard, "I am out of stuff now." Fred, "Meet me at the same place at the same time and you can pick up some stuff. How much do you want?" Hubbard, "Two ounces." Fred, "Meet me at the same place at the same time."
Sims testified further that about 7 P.M. the same evening, he went with Hubbard in the latter's automobile to the 1700 block on North Clybourn Street, where they parked. Bryson followed in a second car, which he parked shortly behind Hubbard. After a short while, a third automobile containing two men approached and parked about 1 1/2 car lengths in front of Hubbard. Defendant Bookie got out of the last mentioned vehicle and walked back to where Hubbard was parked. Sims, who was at that time crouched behind the back of the front seat in the rear of Hubbard's automobile, overheard Bookie say, as he approached the car, "Hi, Willie, do you have the money?" Hubbard replied, "Yes." Then Bookie said, "Here's your stuff." Whereupon Bookie raised his hand to pass two brown packages to Hubbard. Sims jumped out of the car and ordered Bookie to stop. The latter ran to the front of Hubbard's car, dropped the packages and raised his hands. Sims then ordered him to walk to the automobile in which he had arrived on the scene. Defendant Petrucci, who was seated in the car, was then placed under arrest. A search of the street resulted in finding the two packages which Bookie had dropped, which were admitted in evidence after having been identified as containing heroin hydrochloride.
Bryson's testimony was corroborative of Sims', except that he did not hear any of the relevant conversations to which Sims testified.
Defendants objected to the admission of evidence of the telephone conversation and moved that it be excluded, on the ground that it had been procured by interception of a communication in violation of Section 605 of the Communications Act, 47 U.S.C.A. § 605. The overruling of the motion and objections is relied on as error requiring reversal of the judgment.
We are convinced, however, that no "interception" within the meaning of that term as used in the Act was disclosed. Since the principle was established in Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314, and 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307, and Weiss v. United States, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298, requiring exclusion of evidence obtained as a result of interception of messages in violation of Section 605, the question as to when there has been a violation of the Statute has frequently arisen. While courts have differed as to what constitutes an interception, Compare United States v. Polakoff, 2 Cir., 112 F.2d 888, with United States v. Yee Ping Jong, D.C., 26 F.Supp. 69, the weight of judicial authority impels us to conclude that there is no statutory violation when a message is transcribed or overheard with the receiver's consent at the time it reaches him. In discussing this provision of the statute, the Supreme Court said:
"The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation. * * * What is protected is the message itself throughout the course of its transmission by the instrumentality or agency of transmission. * * * As has rightly been held, this word [intercept] indicates the taking or seizure by the way before arrival at the destined place.It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver." Goldman v. United States, 316 U.S. 129, 133, 134, 62 S. Ct. 993, 995, 86 L. Ed. 1322.
The opinion cited by the Court as having "rightly" construed the Act is United States v. Yee Ping Jong, supra.
The relevant cases have been ably analyzed and discussed in recent opinions of two federal courts. Flanders v. United States, 6 Cir., 222 F.2d 163, 165-167; United States v. Pierce, D.C.N.D. Ohio, 124 F.Supp. 264, 266-270. We agree with the opinions of those courts that the Supreme Court's comments in Goldman as to the connotation of the statutory term "intercept" represent approval of the view expressed in Yee Ping Jong and disapproval of the conflicting view expressed in Polakoff.
The facts before us are clear. Hubbard had been placed under arrest by the police for possession of narcotics. While the officers were in Hubbard's store, a call came in for him.At the officers' direction, he answered, holding the receiver in such a position that officer Sims could also listen to the incoming conversation. The overheard conversation resulted in defendants' apprehension and subsequent conviction. This was not an interception within the purview of the statutory interdiction and defendants' motion to exclude the evidence so obtained was properly overruled.Goldman v. United States, supra; Flanders v. United States, supra; United States v. Pierce, supra.
A second contention is that the court erred in overruling defendants' motions for the production of an arrest report made by Sims and Bryson to their superior. On cross-examination, Sims testified that such a report had been made on the day following defendants' arrest, and that he had used it to refresh his recollection before testifying at the trial. He stated further that he and Bryson had discussed the report, or some of the statements contained therein, while traveling to court to attend the trial. He said, also, that it contained a statement that a telephone call was made and that he had listened to the ensuing conversation. He stated that the latter statement was a general one and did not contain a verbatim recital of the conversation, and that a copy of this document was in his files which were in court. Defendants then asked that the report be produced for their examination. The government's objection to this request was sustained.
After the government rested its case, defendants called Sims as a witness and attempted to question him about the report. The court sustained the government's objections, which asserted immateriality of the evidence. Defendants again asked the court to require the ...