PUGACH v. DOLLINGER

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Argument of George J. Todaro

Chief Justice Earl Warren: Number 111, Burton N. Pugach, Petitioner, versus Hon.

Isidore Dollinger, District Attorney of Bronx County, et al.

Mr. Todaro, you may --

Mr. George J. Todaro: Your Honor.

Chief Justice Earl Warren: -- proceed with your argument.

Mr. George J. Todaro: Mr. Chief Justice, members of this Court.

In this case, an indictment was returned against the petitioner Burton N. Pugach in the State of New York, Bronx County, charging him with a crime of maiming, assault, burglary and conspiracy.

Another indictment was returned against him charging him with possession of a firearm.

Pugach was an attorney and a member of the New York Bar.

His office telephone had been tapped by the police of the State of New York, pursuant to an order obtained from the Supreme Court of the State of New York for a period of approximately four and a half months in the course of which, this Court must realize that any number of confidential communication were intercepted by the police and made use for whatever purpose they saw fit for a sedition where he had other associates in his office whose wires were also tapped.

So that this is the type of the case that reminds us that the right of privacy slowly or surely being eroded insofar as the protection of 605 is concerned.

Justice John M. Harlan: Pugach is a lawyer, is he?

Mr. George J. Todaro: I beg your pardon.

Justice John M. Harlan: Pugach is a lawyer?

Mr. George J. Todaro: Yes, Your Honor I might off the record -- say he's a little -- not sound mentally but that is no -- nothing to with the issue in this case.

Now, he brought an Action in the United States District Court for the Southern District of New York wherein he sought and injunction to restraint the District Attorney of Bronx County and the police commissioner of the State of New York from using and divulging wire-tapped evidence at his trial in the county court on both indictments.

The District Attorney moved to dismiss this complaint for failure to state a cause of action and that motion was granted by the District Court.

An appeal was taken and a motion was made in the Court of Appeals for a preliminary -- for an injunction pendente lite to keep the status quo until the full bench had an opportunity to pass on it.

The Circuit Court of Appeals granted a temporary state and if I maybe permitted, to quote from Judge Medina who over Judge Waterman grant at this stay stated as follows.

Pugach's argument is that Section 605 of the Federal Communications Act makes it a federal crime to tap a telephone and divulge or publish the existence, contents, substance, purport, effect of such intercepted communication that the defendants or their agents are about to commit this federal crime by further divulging and offering the wiretap in evidence at the trial.

The Supreme Court has in effect held the United States versus Benanti, 1957 that the constitutional and legislative authorization of wiretap on the State of New York is illegal and void, that if the evidence as we see at the trial and Pugach is convicted, he will be wholly without remedy, since under the Schwartz versus Texas, 1952, 344 U.S. 199, which is still in effect, the evidence will be admissible under the New York rules of evidence, even though illegally obtained and his conviction will not be revised.

He also claimed that the result to such violation of federal law would deprive him of his legal license and his license to practice law.

Pugach argued that unless we grant the injunctive relief, he prays that defendant on arrangement will go ahead and violate the federal statute with impunity, shielding themselves beyond the -- behind the constitutional legislative scheme of the State of New York that has been held by the Supreme Court to be invalid.

This is a probable argument.

Now, we have been unable to find the satisfactory answer and I like to quote from Judge Waterman who also joined in -- in granting this temporary stay, who stated, “Although it is (Inaudible) that the federal court should so presume to interfere with the only progress of the administration of justice in the state courts by issuing state order, the present situation is improbable, too."

It goes against the grain (Inaudible) and await the violation of a federal statute one knows is to be violated, while also known that the only if reversed the United States may have after the violation, is to proceed on 501 against the conscientious police office, was only obeying orders.

Justice John M. Harlan: Did -- did he modify his views on -- Judge Waterman, I mean on --

Mr. George J. Todaro: A modified up for a --

Justice John M. Harlan: -- en banc here?

Mr. George J. Todaro: Yes, Your Honor.

He modified it for a different reason.

He modified it because as he said that, he could not concede that his brethren in the State Bar would condone and permit the commission of a crime in the very parts of law where crimes have been trapped and for -- that was one of his basic reasons for agreeing to concur with the rest of the bench.

Justice Charles E. Whittaker: In other words, that there is an adequate remedy of law.

Mr. George J. Todaro: No, Your Honor.

Oh, no.

No, he concurred in that opinion if Your Honor please because he felt that the -- that the judges of the State of New York would not tolerate the violation of Section 605 in the Court where the crime was being charged, but in this, I'm sorry to say, he has been disappointed because I'd be out of this, still signing orders in New York as though tapping wires in New York.

It's a daily affair you read it in the newspaper.

Everybody reads it in the newspaper that they caught this prostitute by a means of telephone tap or this party by means of telephone tap -- the State of New York feels that it is not bound by the laws of United States.

Justice John M. Harlan: Did they state their trial in the (Inaudible) of whichever it was --

Mr. George J. Todaro: Yes, yes, Your Honor.

Justice John M. Harlan: -- when you replied to me?

Mr. George J. Todaro: Yes that is the judge in Nassau County refused to permit the wiretap evidence.

He is about -- that is about the only one that the --

Justice John M. Harlan: The cases are going to trial, are they?

Mr. George J. Todaro: I beg your point.

Justice John M. Harlan: The case has gone to trial?

Mr. George J. Todaro: Yes Your Honor and Judge Welinz, I think it was, refused to permit wiretap evidence in that case.

He felt that he is a judge what is bound to obey the Constitution of the United States and the laws of the United States, and he would not permit it, but that isn't the situation here because Bronx County is still claims that they have no right to do so and they are still doing it.

They are still tapping wire everyday and many judges are still signing wiretap warrants.

Of course, it might be of interest to note that recently even after the Veriano case by our Court of Appeals and the Brody case by a Court of Appeals, one of the judges, Judge Davidson into the court at general session, refused to sign the wiretap order.

And I think, I -- if Your Honor would bear with me, I'd be quoted, Judge Davidson in refusing to sign the wiretap order that was requested of him by the District Attorney Hogan of New York County stated, “Lawlessness by the police and the District Attorney who has sworn to uphold and enforce the law will not aid in the enforcement of the criminal law, nor will it heighten the respect of our citizen for our law.”

He and another judge Huster, have taken similar position, but they are in the very, very small minority because wiretap orders have been signed almost daily and District Attorney feels that it's a necessary adjunct for law enforcement.

Well, I say Your Honors that if it is a necessary adjunct to law enforcement, they should proceed to go to Congress of the Unites States to seek the relief that they want.

Now Congress of the United States represents all of the people and when 605 states no person shall intercept the communication, it means exactly that and then there's no exception to the State of New York or to a police officer of the State of New York or to a judge at the State of New York.

It applies to all of the people of the United States and no one is exempt or excluded.

Well now, may I go into this most amenable question and the question before this Court whether this Court will indicate the supremacy of an Act that Congress which is declared to be the supreme or paramount law of the land.

It revolved as so shall 605 be (Inaudible) entered because it's being violated everyday, there's only been one prosecution throughout the existence of 605 and that was in the Greece case.

Although it's common knowledge that it is being violated everyday, it's the question whether 605 shall be decently entered for all time to beat or it shall be given new vitality, new vigor and be resuscitated as a plot -- as it properly should as a law of the United State that should be respected and obeyed until the Congress of the United States modifies or changes that law.

And in connection with this in the first Nardone case and this question came up before this Court, this Court held 302 U.S. at page 382, "We nevertheless -- nevertheless face the fact that the plain weight of Section 605 forbids anyone unless authorized by the sender to intercept the telephone message and directs in equally clear language that not person shall divulge the message to any person to recite the contents of the message and testimony before the Court is to divulge the message.

The Act forbids such testimony."

Now, I recall in the Benanti case, I was the attorney who had the Benanti case and I had to prove (Inaudible) the Benanti before this Court.

This Court even went so far to say that a divulsion to a judge is a violation of the law or divulgence to anyone is a violation of the law.

Of course, I might say that in Benanti I am digressing a bit, this Court did not answer the question of whether the tapping was a violation of law or tapping and divulging because in the Benanti case, both were present.

Now, it seems to me, Your Honor that to give real vitality and meaning to 605, what Congress of the United States intended was that no person shall intercept the communication and as soon as some strong language is used, we will have obedience to 605 until modified by the Congress of the United States, thus so fits, it so feels fit.

Now, here the situation is that we are trying prevent the further violation of 605 by divulgence in court.

Although there was a tap in this case for four and a half months, although some of that testimony was adduced before the grand juries, I -- we understand to the present part, I say that what Congress really intended was that the tap to be stopped because a tap that doesn't sit by either by presumed amusement, hours after hours, listening to conversation, he doesn't do it for his personal amusement, he does it for a definite purpose either to divulge to a superior, either to make use of that -- of -- of the overheard conversation for his own personal reason and the statute says that the person shall not make use of the information gathered and that's what prompted the second Nardone case where the Court abused the time to fruit of the poison street.

Justice John M. Harlan: Court bearing, do you think the Schwartz case has (Voice Overlap).

Mr. George J. Todaro: And I want coming to the -- I expect that Your Honor -- that's the impediment, that's the fly in eye, I will be very candid.

Now, I'll try to use (Inaudible)

Justice John M. Harlan: Well, you do it in your time, I just --

Mr. George J. Todaro: In the first place, I humbly suggest to this Court that it should reexamine the Schwartz case.

Justice Charles E. Whittaker: It doesn't stand alone, does it, clearly?

It's been solitary finding.

Mr. George J. Todaro: It has been followed.

I have an urging that this Court now reappraise it.

However, in the Schwartz case --

Unknown Speaker: (Inaudible)

Mr. George J. Todaro: Well, reappraising, I'm choosing the way that it can overrule is that this -- I'm on this side of the fence, if I had my way at overrule and I'll be very frank.

[Laughter]

Justice John M. Harlan: Well you have to get rid of it, in some way.

Mr. George J. Todaro: I think it would be a (Inaudible) figure if that was modified and changed, because Schwartz has given encouragement, has given some sort of legal background for these continuous violation of 605, because under the blessing of Schwartz and with the rules under the guise of a rule of evidence under the pretext that under the rule evidence, anything goes as statute that has been absolutely nullified for all intents and purpose --

Justice Charles E. Whittaker: Apart from --

Mr. George J. Todaro: -- because of repeated violations.

Justice Charles E. Whittaker: Part form its general effect it has a roadblock effect on your position in this case.

Mr. George J. Todaro: It for sure does.

I'm well aware of that, Your Honor.

Justice Felix Frankfurter: But you're assuming aren't you?

You're assuming that Congress has said that a federal statute on a matter of evidence, should apply in the state court that's what you're assuming.

Mr. George J. Todaro: Oh, no -- no, Your Honor.

Justice Felix Frankfurter: Well, if that isn't so then you are now here.

Mr. George J. Todaro: No, let me proceed this way.

In the first place, the Schwartz case was an accomplished violation.

It was an isolated case in Texas where a telephone was tapped and that evidence used before the court in the State of Texas.

That was already done and accomplished when the case came before this Court and this Court held at that Congress may not have intended the write a rule of evidence.

I'm not saying that Congress intended to write -- write a rule of evidence, if Your Honor please.

In this case the -- that the divulgence has not taken place so that injunction is the proper proceeding to stop.

Justice Felix Frankfurter: But if -- if a state has power and has not been interfered with by Congress by preempting a statute to consider what are its notions of the law of evidence, then whether injunction or post (Inaudible) invalidation of an -- of a conviction is the same thing.

Mr. George J. Todaro: Your Honor, may I say --

Justice Felix Frankfurter: It's called the -- federal court doesn't fit to just exercise its own notions of propriety --

Mr. George J. Todaro: I agree.

Justice Felix Frankfurter: -- and the state court.

Mr. George J. Todaro: I agree with Your Honor.

But would the -- would it be more --would -- I know Your Honor's mind is that we don't -- the federal courts don't want to interfere with the proceeding of the state court and that's a proper attitude.

Justice Felix Frankfurter: That isn't my mind doesn't altogether, it disappeared if it has power, but I had first have to determine whether there's power (Voice Overlap) --

Mr. George J. Todaro: Would it be --

Justice Felix Frankfurter: -- as to evidence, as to what is admissible in a state court, assuming the admissibility doesn't involve some infringement of the Constitution, but merely a statutory pronouncement by Congress, you have first to decide whether Congress passed this statute that govern the standard, the admissibly of evidence in the state court.

And if the answer is no, then it doesn't matter for me at least, or for anybody with injunction or subsequent validation or invalidation of a conviction.

Mr. George J. Todaro: Your Honor, may I -- continue my argument I think I will approach it on different way.

And in reference to the Nardone case, the Court also stated at page 383, "The answer to the question is one of policy.

Congress may have thought it less important that some offenders should go in with the justice, than that the officer shall resort to admit inconsistent with the ethical standards and destruction of personal liberty.

Now, it seems to me of a statute that is of such importance to all of people of the United States should be protected in some manner or other.

Whether we would be -- necessary to reevaluate Schwartz or whether by through injunctive proceeding, otherwise, an Act of Congress of New York can destroy, an Act the Congress, under the pretext of a rule of evidence then the State of Idaho, South Carolina, originally the state in the union can do like it.

Justice Charles E. Whittaker: Would federal prosecution of the state officers who violate the Act accomplish the purpose?

Mr. George J. Todaro: Your Honor, it would be highly incredible or practically it's possible to -- to try to get an honest public official who's following orders from the head of his department, whether it be a policeman or an assistant District Attorney.

I would hate to see some of my colleagues in New York, District Attorney, they're all friends of them and I would hate to see them prosecuted.

I'd probably would never return an indictment, if I were sitting in the grand jury, but under the guise of the rule of evidence, we have this -- we have destroyed the statute and something should be done and I say that injunction is the proper remedy.

When everything fails, we always return into the old equitable powers of injunction and that would solve the problem therein mentioned.

They say this Your Honor, and if once, that this Court speaks, frank and determined and ranks the -- and reverses the Circuit Court of Appeals and grants our position, there will never be anymore violation as far as the State of New York, because most public officials, most judges are respectful of the law and would abide by the law.

And most District Attorneys and I'm sure that Mr. Dollinger (Inaudible), these gentlemen will be happy with a disposition that we have a clearcut rule, either 605 will -- is entirely buried and forgotten or 605 is the law of the United States to be respected, if this Court makes their ruling a proper ruling on either way, there'll be no violation by anyone in the State of New York, whether police officer, District Attorneys or judges.

Justice Felix Frankfurter: How many is that -- in New York, must every District Attorney give advance notice that he has tapped wires?

Mr. George J. Todaro: No, Your Honor.

Justice Felix Frankfurter: -- then his counsel.

Mr. George J. Todaro: No, sir.

Justice Felix Frankfurter: So the defendant (Voice Overlap)

Mr. George J. Todaro: Nobody knows.

Justice Felix Frankfurter: Do they have to know it before the case comes to trial?

Mr. George J. Todaro: We never know, sometimes we hear about it.

Justice Felix Frankfurter: Well, this -- this time we -- we could just (Inaudible) our federal court and just get a blanket injuction (Voice Overlap)

Mr. George J. Todaro: Oh, no -- no.

Justice Felix Frankfurter: That any case, the district (Inaudible) should -- should offer in evidence, is that what your position requires that the Court go that far?

Mr. George J. Todaro: My position --

Justice Felix Frankfurter: How did you know of this case that whether you (Inaudible)

Mr. George J. Todaro: Well, I'll be very frank with Your Honor.

How are we doing this --

Justice Felix Frankfurter: But don't be frank if isn't -- if it isn't --

Mr. George J. Todaro: No --

Justice Felix Frankfurter: -- relevant to the case or in this record.

Mr. George J. Todaro: No, if it is.

Justice Felix Frankfurter: I'm not putting here a basic part of your record --

Mr. George J. Todaro: It's part of the record that it was divulged from a newspaper and that caught two guys because of these telephone taps which divulged in the newspaper.

That was -- it came to the knowledge of defense counsel.

I wasn't the attorney for Pugach or (Inaudible)

Justice Felix Frankfurter: This is -- unusual situation that you had knowledge, the defense had knowledge?

Mr. George J. Todaro: Generally, you might have a inkling, but you really its not usual that you get that now.

Justice Felix Frankfurter: So that in most cases, equitable relief wouldn't be available --

Mr. George J. Todaro: Unless, unless --

Justice Felix Frankfurter: -- someone is caught as in this case, is that right?

Mr. George J. Todaro: Well, unless we had some knowledge that there was a tap, we would -- they could make use of it.

They would be violating the law by making use of it, but if unless they're caught, they'd still be on (Inaudible) a thief is only a thief after he's caught more or less.

If a district – if police officer makes -- makes the tap and gets some information that makes you say that he is violating the law.

He may get away with it, but if he's caught and he is brought to justice, then he becomes a convicted violator of 605.

Another thing I'd like to pint out is that under the Benanti case and I would like to get that cleared up, we -- we the -- the Circuit Court of Appeals affirmed the conviction of Benanti even though we developed the wiretap during the trap.

And Judge Medina who wrote that opinion affirming the lower court, stated as follows, "Despite the warrant issues by the New York State Court, pursuant to the New York law, we have no alternative other than to hold that by tapping the wires, intercept of the communication made by the appellant and divulging at the trial what they have -- had overheard, the New York police officer violated the federal statute and cites Nardone and so on.

Section 605 of 47 U.S.C.A. is too explicit to warrant any other evidence and Weiss -- and the Weiss case made its term applicable to interesting communication.

The section provides no person not being authorized by the said assembly shall intercept any communication that divulged or published the existent content substantive (Inaudible) the meaning of such intercepted communication to any person.

This ruling or this ruling of the Circuit Court was not disturbed by the Supreme Court -- by this Court when Benanti came up on appeal.

And I would like to briefly read portion of that Benanti appeal that came before this Court.

And I might say that the Solicitor General of the United States, when we argued that case, devoted most of this time in attempting to sustain the right of the State of New York to legislate permitting wiretaps, because under the law as to the State of New York, wiretapping is permitted, pursuant to a constitutional provision of the sate and pursue -- pursuant to the code of criminal procedure.

Now that issue came before this Court.

Justice John M. Harlan: Only for -- only for authorized police officers.

Mr. George J. Todaro: Yes, yes, Your Honor and this is what this Court said, "Respondent does not urge that constitutionally speaking Congress is without power to forbid such wiretapping even on the face of a conflicting state law Weiss versus US where the argument that Congress has not exercised this power and that Section 605, being general in its term, should not be deemed to operate to prevent the State from authorizing wiretapping in the exercise of its legitimate police function.

However, we read the Federal Communications Act and Section 605 in particular to the contrary, both for the state.

The Federal Communication Act is the comprehensive scheme for the regulation of interstate communication.

In order to safeguard those interest protected under Section 605, that portion of the statute pertinent to this case, applies both to intrastate than interstate communication," Weiss versus United States, supra.

The natural result of respondent's argument is that both interstate and intrastate communication would be removed from the statute for protection because as this Court noted in Weiss, the interceptor cannot be same between the two and will listen to both.

Congress did not intend to place the protection so plainly guaranteed in Section 605 in such a vulnerable position.

Respondent points to a portion of the Act which places some limited authority.

Chief Justice Earl Warren: We'll -- we'll recess now.

Mr. Todaro.

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Argument of Mr. Chief Justice Warren

Mr. Chief Justice Warren: You may continue.

Argument of George J. Todaro

Mr. George J. Todaro: May it please the Court.

Just before luncheon recess I was reading this Court's opinion in Benanti versus U.S. and I got to approximately disposition in that case.

Moreover, we're referring to Section 605 here, the very existence of these grants of authority to the State, underscores the conclusion that had Congress intended to allow the State to make exception to Section 605, it would have said so.

In the light of the above consideration and keeping in mind this comprehensive scheme of intra -- interstate regulation and the public policy underlying Section 605 as part of that scheme, we find that Congress setting out a prohibition in plain terms, did not mean to allow a State legislation which would contradict that Section and that policy and it cited Pennsylvania versus Nelson and Hill versus Florida and Hines versus Davidowitz.

The authorities cited are impressive.

It is therefore clear that in Benanti, this Court has held this constitutional legislate -- legislative provisions by the state of New York to be an invasion of a field preempted by Congress.

And I might at this juncture quote from Judge McDonalds in his -- in his opinion in granting the temporary stay, when he referring to the Benanti case he said, "Moreover, the fact the wiretapping is authorized pursuant to the constitutional legislation of the State of New York, pursuant to which New York judges continue to order wiretapping and police officers do the wiretapping and that was the condense of wiretaps in their testimony, even after the Supreme Court has held these constitutional legislative provisions to be an invasion of a field preempted by the Congress, makes the position of the defendant even more on tenant."

If that be so and if the statute permitting wiretapping by State police, pursuant to a court order is -- has been nullified by Benanti, if they cannot orbit in the same field, then by what authority has the State of New York presumed to invade the right of privacy of the individuals in there -- residing in their state.

By what authority can -- they haven't even got the summary of their own local laws or state, because this Court had ruled that they cannot legislate in the field that Congress has already enacted, the best (Inaudible) 605 particularly.

And of course, if I may say that the Hill versus Florida was along Labor Relation Act and in that case, this Court stated, our holding is that the National Labor Relation Act in Section 4 and 6 to affirm the Act as here applied, cannot move freely within the orbits of their respective purposes without -- without impinging upon one another.

This is one of the authorities cited by this Court in Benanti, then also Nelson versus -- Hill versus Florida, no, Pennsylvania versus Nelson that was a sedition statute based upon Pennsylvania's legislature, which was stricken down by this Court.

So, it is apparent that this Court has ruled that Congress has preempted the field and the State of New York has no power to legislate in a field that has already been preempted by Congress.

So that they are acting without even the semblance of legality and then proceed.

Justice Hugo L. Black: Well if that's so why would you need an injunction?

If -- if you argument there is correct, why would you need an injunction?

Mr. George J. Todaro: Because they will do it, what are the recourses of that?

Justice Hugo L. Black: Is that if the -- if there's a conviction brought about by evidence which violates the in federal law or the Constitution, then the conviction is subject to attack.

Mr. George J. Todaro: Your right, Your Honor except this that because of Schwartz versus Texas and because they say that even thought they are violating the federal law --

Justice Hugo L. Black: But that -- is that right (Inaudible)

Mr. George J. Todaro: Yes, even though they are violating the federal law.

Justice Hugo L. Black: Did -- did Schwartz versus Texas say, it was illegal for a state to use evidence at the time --

Mr. George J. Todaro: Yes --

Justice Hugo L. Black: -- violated the federal law --

Mr. George J. Todaro: For violating Section 605.

Justice Hugo L. Black: For a state to use evidence (Voice Overlap)

Mr. George J. Todaro: And the State of Texas.

Justice Hugo L. Black: I'm not talking about to do the wiretapping but for a state to use evidence that it had been tapped, did Schwartz versus Texas hold that, I just read it and I didn't think it did.

Mr. George J. Todaro: What did Schwartz versus Texas held that --

Justice Hugo L. Black: Maybe its wrong but I would suggest maybe you'd you well, I'm -- I'm not sure but if you would argue on this basis –-

Mr. George J. Todaro: Well –-

Justice Hugo L. Black: -- if its illegal it didn't have to be in enjoined because if its illegal and valid federal law it could be raised in the trial.

If it's not illegal for this prosecuting attorney's office, can he be enjoined?

Mr. George J. Todaro: I say that he -- first, in the first place Your Honor, the State takes the position on this -- under the state law as even though the evidence is illegally obtained and this admissible enough.

Now, this -- this matter has come up to this Court in prior occasion through the ordinary channels, the Graziano case was one of them and some others, where certiorari was denied.

Now, the fact the certiorari is denied, there's no indication that the Court approves or disapproves of the proposition raised.

This simply means that the Court is not interested in listening to it.

Now, here, we realize that we cannot get redressed by the ordinary procedure, the ordinary channel of it, one up to our Court of Appeals.

Justice Hugo L. Black: And before I'm -- I'm suggesting to you that your argument can get to Schwartz at this time.

Schwartz held that is not illegal for the State use to it, that it did not violate the federal statute of the Constitution.

There were two dissents, one on constitutional -- of one dissent on the constitutional ground, but the opinion of the Court held that is was not illegal for Texas to use that, it didn't violate a federal law or the Constitution.

Mr. George J. Todaro: I must beg to differ with Your Honor.

I think the Schwartz held that it -- that when the officer testified, he was violating the federal law.

But that --

Justice Hugo L. Black: Well that -- that's quite of different thing from saying that the statute bars the prosecuting attorney from offering evidence, offered from using evidence, if the Court did not hold that it violated the federal statute to use that evidence --

Mr. George J. Todaro: Well.

Justice Hugo L. Black: -- as evidence.

Mr. George J. Todaro: Yes.

In -- in that case, the -- the Court held that they did not believe that Congress intended to write a rule of evidence for the State of Texas.

And they permitted that evidence to stand although they ruled that in doing so, the officer was violating the federal law of Section 605.

So, we are confronted with Schwartz versus Texas which pins us down as the only --

Justice Hugo L. Black: You're confronted -- you're confronted with the statute which Congress passed which did not say that this shall not be used in evidence as in state court.

Mr. George J. Todaro: That's right.

Justice Hugo L. Black: It didn't say that in federal courts, but the Court held under its supervisory power that it couldn't be used in federal courts.

Mr. George J. Todaro: But taking -- taking that in different context that the Act does not say that the -- that the statute can be violated and then a state court --

Justice Hugo L. Black: It does not.

Mr. George J. Todaro: It's says, no person shall intercept --

Justice Hugo L. Black: It -- it, in that case didn't hold that the man could be prosecuted for violating that statute.

Mr. George J. Todaro: Oh, he could be prosecuted, yes.

There's no question, but as I pointed out Your Honor and since of the existence of 605 which was enacted in 1934, there's been one prosecution, one prosecution --

Justice Hugo L. Black: When was Schwartz versus Texas?

Mr. George J. Todaro: I think it's about 1952 of --

Justice Hugo L. Black: Had there been any of efforts in Congress to amend the Act?

Mr. George J. Todaro: Oh, yes there's been numerous efforts and Benanti so cites it.

Benanti cites that very situation where numerous efforts have been made to have Congress change the law for espionage or for narcotics, various other positions, Congress has refused budge.

Justice Felix Frankfurter: To change the laws so as to legalize wiretapping in state which make a deal of by their laws?

Mr. George J. Todaro: Your Honor is correct.

I would -- but there's been repeated efforts made to have Congress modify 605 in some manner or other.

Justice Hugo L. Black: Has there been any --

Mr. George J. Todaro: (Inaudible)

Justice Hugo L. Black: -- has there been any efforts made to provide that one who violates the evidence to secure that way, shall be barred from use in the state court.

Mr. George J. Todaro: No, Your Honor.

No, this is by a process of judicial decision as I would say, but it would seem clear to me, sir that if 605 or an Act of Congress was to have any vitality, any meaning that perhaps the only way we can that meaning is to follow what was said in the Elkins case only recently, where I think it is Judge Podastote who wrote that opinion where, the court stated in Elkins versus U.S., "The rule is calculated to prevent not to repair.

Its purpose is to deter, to compel respect to the constitutional guarantee in the only effective available way by removing the incentive to disregard it."

Of course that involved an illegal search and seizure made by state police turning over to the Federal Government for the prosecution and this Court overturned this silver -- platter back that had been an existence for about forty some odd years.

So that, it would seem that the only way that 605 can be resuscitated because the old purposes it has been dead statute as far as the State of New York was concerned, it only way can be done is by the process of exclusion.

Justice Hugo L. Black: (Inaudible) isn't it?

Mr. George J. Todaro: The only other way is injunction, Your Honor.

Justice Hugo L. Black: What about Congress?

Mr. George J. Todaro: Well, the law in vague, Your Honor.

Now, shall this -- this Court vindicate the supremacy of the federal law that is the question?

If it decides not to vindicate the federal law, then 605 will be decently entered and we'll forget about it.

Justice Hugo L. Black: What I'm trying to point out to you is maybe it's wrong that your attack is on Court's interpretation of the Act (1) and Schwartz case number (2) on the ground that the Court didn't the dissenting opinion, because the Act does not say on the face that evidence shall not be introduced in a state court and the courts held that they actually mean that.

Are you're attacking the Schwartz case?

Mr. George J. Todaro: I am asking this Court to reappraise it.

Justice Hugo L. Black: Well, there's nothing wrong with attacking a bad opinion.

Justice Felix Frankfurter: Have you had -- in your long career, have you had great success in getting (Inaudible) courts not to overrule, what to reappraise?

[Laughter]

Mr. George J. Todaro: Very slim -- Your Honor very slim, very slim success.

Your Honor I would like at this juncture to read a portion of the opinion of Judge Clark of the Circuit Court below, who was -- who dissented from the -- the opinion of the majority in the Circuit Court.

I think it sums up my case beautifully and I would rest my entire case on his dissenting opinion.

He does a masterful job by the way and he states, referring to the Benanti case, goes into the fact of -- on the Benanti -- that Congress setting out a prohibition plain times did not mean to allow a state legislation which would contradict of that section that and that policy.

And it points out the failure of Congress to grant exception, though strongly importuned to do so and this is cited in Benanti in the various attempts made by the Attorney General of the United States and various other officials that have Congress change the law and their failure in doing so.

Then he goes on, notwithstanding his decisive character there is nothing surprising in the court statement, indeed it would have been surprising that the court said less, for the absolute character of the prohibition has been steadily emphasized over the years and the attempt to make the statute to say less than it does, as been conspicuously unsuccessful.

So, we must accept the interpretation, the wiretap whether by state or by anyone else, is simply and shortly forbidden by the federal law subject to the severe penalty of fine and imprisonment.

Attack must therefore be limited to the meaning on law -- of new legislation because of its hampering effects on law enforcement and prosecuting officials cannot have the benefit to at least control wiretap.

Involve the surely way, you're arguing with public policy, which a legislative body should weigh, but these arguments have not yet prevail with the only governmental agency having authoritative act to modify the existing law and I do not see how they can affect the responsibility of the United State judges to enforce that law.

Hence, for us I see no escape, but to start with the premise that we are faced with repeated open and acknowledged violation of federal law, which we are assured would be continued until and unless the fellow authorities intervene.

Thus we have an absolute impasse going to so far as to be almost ludicrous if the issues were not so fundamentally serious and it further states, in sum it is beyond dispute that the there is a general indeed universal custom of federal law violation.

Now this is distress in situation, may not less so that in the eyes the many were they seated, it this required by the assertive existence of successful law administration.

But it is not an unusual situation for -- actually it is a clash between federal and state governmental policy, as such its recurring struggling our history and quite possibly a necessary one to a federal form of government.

In the past, we always found ways and the meaning in solving the problem, of course there are several forms of remedy, but the one to which seems to which there seems continued return when other remedy fails is the resort to the equity powers of the federal court to enjoin repeated violation of criminal law.

This and all the well-established run of equity jurisdiction naturally to be resorted to only reluctant as against state official, but nevertheless thoroughly recognized and then because it cites a number of cases and then prefers to the – draws analogy between the segregation cases.

Now a further statement, all these question of jurisdiction the majority he would concede including the -- irreparable injury sustained, I thorough -- I agree thoroughly with the principle he has stated, but that only leaves -- that leaves only Stefanelli versus Minard 342 U.S. 117.

And the question of the nicety of the exercise of federal equity jurisdiction and left -- left to have give us pause, but Stefanelli recognizes the jurisdiction of equity and emphasizes only the restraint which a federal court show against interfere with the state criminal process.

I agree whole heartedly but answer as was asked with respect to Little Rock School, martial-law and then Texas Oil Fields, another historical federal-state clashes when does enough of federal law violation become too much?

The fact rehires above demonstrates in my opinion that the only -- that only by the course of federal injunction will the present and past be resolved.

Schwartz versus Texas shows that the way is not by appeal from a conviction already had.

Indeed it confirms the view that this is the only -- that this is the one healthy and direct and complete solution.

A clean excision is better than a continuous manner.

Involving Stefanelli was an isolated case of federal law violation, not a consistent pattern as here.

Also, to be noticed the less directed direct compulsion of federal law the essence the Fourth Amendment does not touch the problem of communication and evidence -- as evidence is direct.

No federal claim there was involved and that damage had already been done.

Carefully consider, our regards to Stefanelli is authority shown than need and the utility of the action I urge rather that the controversy.

And then it goes on consequently I'm persuaded by would follow the good opinion Judge Medina upon the grant of stay in this case.

I also note that two state justices have reached like conclusion the -- and declined proceeds further in wiretapping and then refers to the Hubsteder and Judge Davis.

This case not only illustrates the uncertain and anomalous position that which state judges now trust, but also a good example to United State judges.

In the first case cited here Mr. Justice Hubsteder makes a very pointed illusion to the mandate of the United States Constitution and the laws made pursuant to it, are the supreme law of the land binding upon us all, anything in the constitutional laws of any state of the contrary.

For my -- and it further states -- for my part -- no and it further state this reminder from a distinguished state board of the necessity for obedience of the supreme law or to go far to a later fear expressed that state official will defy this law.

Even after there's been (Inaudible) defying in the cause of this litigation and that the fellow cause would be flooded with action that curve this defiance.

On my part, I entertain no such fear of violent defiance or the flood of cases and then as I full comment, I forgo comment on the implication of mere number of application may bar the right of equity relief.

On the contrary, I venture to believe that our state brothers and colleagues in law enforcement, more than a bench in the prosecuting office will work definitive resolution of the present hopeless stalemate and will haste come to comply with the requirements of law as soon as they are made clear.

Your Honor, I want to reserve a few minutes time for rebuttal, so I'm going to stop at this point.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: You may.

Mr. Dillon.

Argument of Walter E. Dillon

Mr. Walter E. Dillon: Mr. Chief Justice and may it please the Court.

I propose to give you the facts and to argue point one.

Our other contentions set forth in the brief, will be argued by my associate, Mr. Anolik.

On June 15th, 1959, Linda Riss, an unmarried female, opened the door of her apartment in response to the bell.

As she held the door ajar, two men forced their way in across the threshold, one of them had a can of liquid lye.

Justice Hugo L. Black: What?

Mr. Walter E. Dillon: Which he threw at --

Justice Hugo L. Black: What?

Mr. Walter E. Dillon: A can of liquid lye which he threw into the face of Ms. Riss as a result of which, she was blinded in one eye, the sight of the other was impaired and her face and head were otherwise disfigured.

Now when Ms. Riss was able to be interviewed, she told the police that she had been courted for several months by the petitioner, Burton Pugach.

That when she discovered that Pugach was a married man with a child, she made it known to him that she was no longer interested in his -- in her -- in his affections.

Pugach told her that she would receive the same treatment as was given to Victor Riesel, the innuendo, especially in the light of subsequent developments, was clear.

Victor Riesel was a newspaperman in New York, who had written a series of articles on gangster control of certain labor unions.

By way of reappraisal, those gangsters threw acid into Riesel's eyes and he was blinded.

From the very inception of this case, Pugach was the prime -- suspect and he knew it if from no other source the widespread newspaper accounts of this heinous crime.

About four months later, after the police had completed their investigation, they placed under arrest on the same day at the same time, but at different places, the petitioner, the two men who had thrown the acid and one of them who had aided and abetted in the commission of this crime.

At the time that Pugach was apprehended, he had concealed upon his person a loaded firearm for which he had no license.

The grand jury of Bronx County indicted Pugach and his three confederates for the crime of maim -- maiming.

Under another indictment against Pugach individually, they charged him with a violation of 1897 of the Penal Law, carrying a concealed weapon, which is a felony in New York.

The indictment for the maiming was first moved for trial and it was set down to proceed on January 7th, 1960.

About a week before it was to start, the present action was brought by petitioner in the United States District Court for the Southern District.

Together with his complainant, petitioner served papers on a motion for an injunction pendente lite.

The respondents cross-moved to dismiss the complaint on the ground that the action was not maintainable.

Judge Bryant who had the motion, denied the temporary injunction and he granted the cross-motion and judgment was rendered accordingly and appeal was taken and both that order and judgment were affirmed at the Circuit Court or by the Circuit Court.

Now petitioner in his brief tells this Court that the respondents do not deny that they intercepted telephone conversations on -- on his office telephone, that they do not deny that they introduced that evidence before the grand jury of Bronx County as a result of which two -- the two indictments were lodged against him.

The petitioner further tells this Court that the District Attorney does not deny that he intends to use this wiretap evidence at the trial of the two indictments.

Petitioner does not claim to a single fact in the record, which in any way supports those claims.

He merely says that in the opinions of Judges Medina and Chief Judge Lumbard that is the way they stated the facts, that the District Attorney did not make the -- a denial of the petitioner's claims.

Now respondents respectfully maintain that to save that the District Attorney did not deny the petitioner's claims, as though we were admitting them, is grossly unfair.

This petitioner knows that at the outset of the action, our cross-motion to dismiss the complaint was granted.

As a consequence, there was no need to take issue with any of the claims asserted by petitioner in his complaint.

No answer is good enough for a complaint that is legally insufficient.

I think it is a well-established principle that in order to secure an injunction, you must show that you have a clear legal right.

Now that could be demonstrated either by the allegations of a complaint or by extrinsic evidence contained in affidavits.

We say that there is no attempt at compliance with these prerequisites in the papers before this Court.

There are only two allegations that are worthy of consideration.

One, petitioner alleges that the District Attorney into those wiretap evidence before the grand jury, as result of which the two indictments were lodged against him.

The other allegation is upon information and belief that the District Attorney intends to introduce wiretap evidence, not contends with to, but intends to use wiretap evidence at the trial of those two indictments.

We say that the claim that the District Attorney introduced wiretap evidence before the grand jury is obviously based upon conjecture.

Grand jury testimony is secret and can only be divulged by an order of the court.

This petitioner does not claim that he ever inspected the grand jury minutes, as a consequence when he tells you that such evidence was presented before the grand jury, he's merely guessing.

He hasn't the slightest idea.

So far as the other allegation that I mentioned that petitioner believes that the District Attorney intends to introduce, intends to use wiretap evidence, we say that that is not entitled to any consideration.

How could the respondents deny what the petitioner believes unless he sets forth the facts upon which that belief is based?

What did the District Attorney ever say?

What did the District Attorney ever do to justify that claim?

And to justify it, the temporary injunctions which have been granted by the federal court, I meant the Circuit Court and which are still in existence.

Those injunctions restrained the District Attorney or respondents whereof introducing any wiretap evidence at the trial of either of those two indictments and while the first conjunction was in effect, the District Attorney proceeded with the trial of the indictment charging the defendant with carrying a loaded firearm in violation of the penal law.

The jury found the defendant guilty.

On page 15 of my brief, I have set forth a resume of the undisputed, the unchallenged evidence at that trial as to the manner in which the police secured their information leading to at least upon which that indictment was based.

I think that when you read those facts, you will see that the defendant was not very candid with the federal court.

I believe too that you will be convinced that the claim of wiretapping in relation to that particular indictment is not just devoid of merit, but it is simply ludicrous.

Justice Hugo L. Black: Simply what?

Mr. Walter E. Dillon: Ludicrous, amusingly absurd.

Under point (1) of our brief, we urged that the federal courts should not intervene at state criminal proceedings to suppress evidence.

Now that was the basis of the holding of the Circuit Court and that was on the authority of Stefanelli against Minard.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Dillon, before we get into that statement, may I ask what the status of that other indictment is?

You told us that they --

Rebuttal of Walter E. Dillon

Mr. Walter E. Dillon: Yes.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: -- continue to trial on this.

Now what -- what is the status of the other one?

Rebuttal of Walter E. Dillon

Mr. Walter E. Dillon: The status of the other indictment is that -- that is presently awaiting trial and that it has been delayed on account of the injunctions that were granted.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: And -- and who issued those injunctions, the state court?

Rebuttal of Walter E. Dillon

Mr. Walter E. Dillon: No, no, the Circuit Court, not the Sixth Court of Appeals, Second Circuit, from the appeals taken.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Oh -- Oh, yes.

Justice Tom C. Clark: There is usual injunction on the issue of state.

Rebuttal of Walter E. Dillon

Mr. Walter E. Dillon: Well --

Justice Felix Frankfurter: (Inaudible)

Mr. Walter E. Dillon: Strictly speaking -- strictly speaking, there was nothing to state and for all intents and purposes, they are temporary injunction.

There's nothing to state.

Well, it's called a stay.

We -- I -- I might say that we have never divulged any of our evidence in relation to the maiming indictment which is not -- which has not been disposed of.

However, we have made persistent efforts to proceed with the trial of that action and we've been bought effectively.

Now -- where -- I don't like to complain about what the petitioner has done, well, he has the job to do and we can well understand that.

Justice John M. Harlan: Or technically, the Court of Appeals' injunction or stay did not enjoin the trial as he --

Mr. Walter E. Dillon: Oh no, oh no.

Justice John M. Harlan: -- enjoined the use of the evidence.

Mr. Walter E. Dillon: That's I --I made that --

Justice John M. Harlan: And you are entirely free if you wish to proceed in the trial?

Mr. Walter E. Dillon: That's right.

At least, we felt that way.

And --

Justice Charles E. Whittaker: And you did on one thing.

Mr. Walter E. Dillon: That's right.

In fact, we made known -- we made that fact known to the court, United States Court of Appeals.

There was an application that was made following Judge Medina's temporary injunction, you might say, the one on which he will depend.

There was another proceeding, I would say about a week after that and we've made known the fact that we were about to proceed with that trial.

Now, incidentally in the brief of the -- reply brief of the petitioner, he tells you that we didn't even give him a chance to prepare for the trial of that indictment on the weapon charge.

Well, the truth of the matter is, he had four months to prepare.

He had two weeks notice that the trial was going to start.

He was represented by two able counsel one, a former jurist.

He, himself is in an attorney and you have the simple issue as to whether he had a loaded firearm concealed on his person at 10:30 in the morning, on October 30th, 1959, I don't think we were unreasonable.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Is it a part of the record that Mr. Todaro said that -- that the press stated that there had been a tap on his wire for four months and related what happened there?

Rebuttal of Walter E. Dillon

Mr. Walter E. Dillon: He says -- he said in his complaint and in his supporting affidavit that this was divulged to the press, press.

How can we -- how could we possibly refute that?

What does he mean by the press?

It doesn't -- that doesn't tell us anything.

He might just well have said – it was revealed to the world.

Now petitioner contends that it's definitely in my argument as I think circumscribed on the Stefanelli case, because that's our point one, he says that Stefanelli is distinguishable in two respects.

One of them is in a rather vague fashion, that he suggests that under a new concept of ordered liberty which has its core in the Fourth Amendment in Foston against the States under the Fourteenth Amendment, he had a basic right of privacy in a -- telephonic communication.

That's his theory and he then proceeds in his argument to tie that fundamental right in with Section 605.

Well, if he has a fundamental right of privacy in a telephone conversation, which we certainly concede, he didn't get that right from Congress under Section 605.

That was that the visions of 605 would not be applicable to a fundamental right.

Moreover, if he had a fundamental right, since he concedes that the so-called intrusion by the police was by order of the state court, then it would not have been an illegal search.

It would be exactly -- it would be a lawful search and he'd have no claim, but even if it were an illegal search, the situation would be identical to that which you had in the Stefanelli case.

His other claim is that this differs from Stefanelli because the state affirmatively sanctioned the wrongful intrusion by the police.

Now for that argument, he relies upon the statements and the opinion of Judge Medina that is on the -- granting the temporary injunction and upon -- and upon the dissenting opinion of Judge Clark.

Now the gist of their thoughts, that is the thoughts expressed by those judges, is that the -- the visions of New York's Constitution and the statutes dealing with wiretaps, no, wiretapping, the granting of orders under a constitutional provision and legislation and the introduction of wiretap evidence at a trial with as they say, the full knowledge on the part of prosecutor that that is -- that a -- is a direct violation of Section 605 and a criminal act.

They seem to think that that is a part and parcel of an overall scheme on the part of New York to defy the supreme law of the land.

Now, I think that the indictment against the public officials of New York in that respect is not warranted.

Before this case came along, it had always been my view that it was not unlawful to introduce wiretap evidence at a trial of an indictment in the state court.

I -- I didn't pick that idea out of the thin air.

I think it was the general view in New York.

In fact, in People against Variano, which was the last pronouncement by our highest court on the subject which was decided in April 1959, the Court of Appeals had this to say hence rather short, "A state policy of admitting evidence, having prohibitive force even though obtained illegally, does not contravene federal law, Schwartz against Texas, 344 U.S.

The opinion of the Supreme Court by Chief Justice Warren in the Benanti case, supra, page 101, says concerning the Schwartz case, the rationale of that case is that despite the plain prohibition of Section 605 do regard for a -- for federal state relations, precluded the conclusion that Congress intended to thwart a state rule of evidence in the absence of a clear indication to that effect.

In other words, we are told that the prohibition of Section 605 was not intended by Congress to prevent the introduction of wiretap evidence at a state trial.

That can hardly be said in the light of that language that New York's practice was in defiance or hostile to federal law.

Justice Felix Frankfurter: What is that -- what is this, the latest case that you referred?

Mr. Walter E. Dillon: People against Variano, V.A.R.I.A.N.O, that's 5 N.Y. 2d, decided in April 1959.

Justice John M. Harlan: I suppose the District Attorney could be indicted under the Benanti decision that may violate the statute even though the evidence was admissible.

Mr. Walter E. Dillon: You mean in that, he participates in the divulging?

Justice John M. Harlan: Assuming that the statute covers both divulging and tapping by being in the conjunctive?

Mr. Walter E. Dillon: Of course that's not the file --

Justice John M. Harlan: The question that --

Mr. Walter E. Dillon: -- that is (Inaudible).

I don't want to -- I don't wish to overlap on this (Inaudible).

As I told you a moment ago, I'm -- I'm arguing point one.

I don't -- I don't exactly subscribe to what you say Judge Harlan.

Justice John M. Harlan: Well I wasn't suggesting any answer, I was asking a question.

Justice Felix Frankfurter: Any how, you couldn't do it because it's a federal offense and not a state offense.

Mr. Walter E. Dillon: You mean that we couldn't prosecute?

Justice Felix Frankfurter: Yes, it would -- the existence of violation of New York's State law.

Mr. Walter E. Dillon: That's right.

In other words --

Justice Felix Frankfurter: Enforceable in the New York State court.

Mr. Walter E. Dillon: That's what -- that's what --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Walter E. Dillon: That's right.

Justice Felix Frankfurter: It is maybe or maybe a violation of federal law, prosecutable in the federal court.

Mr. Walter E. Dillon: That's correct.

Justice Charles E. Whittaker: We had something to say in your last term however, in the Texas case if I correctly recall about convicting a federal officer for something -- or state officer for something done in obedience to federal law.

Mr. Walter E. Dillon: I don't know -- I don't know just which case it is?

Justice Charles E. Whittaker: Well, this was a case -- a mail fraud case that arose in -- in Texas last time.

Justice Felix Frankfurter: Parr.

Mr. Walter E. Dillon: Carr -- Parr -- that's it Parr.

Mr. Anolik, says, he's committed with that, I'm not.

Justice Felix Frankfurter: At all events, you couldn't prosecute.

Mr. Walter E. Dillon: No, definitely, we couldn't prosecute.

Moreover, this suggestion that New York law and that is our constitutional provision is hostile at -- to 605 is something that's hard -- that it is hard to accept.

I would say that Section -- at least our constitutional provision and our legislation is in aid of Section 605 and there is certainly nothing -- nothing in our legislation which would suggest that there was any intent on the part of the State of New York to 15 million people.

Incidentally, It was -- it was voted, but are voted on by the people in the 1938 and if there was any conspiracy at that time to enact this or at least to pass this constitutional provision and the laws that were passed in the next -- session of the legislature and that was the part of the plan to defeat the 605, I'm certain that I would have recalled that but I never made anything like that until this case came along.

In any event, in -- in the Stefanelli case, you spoke about the consequences which would flow if the federal courts intervened in state criminal proceedings to suppress the use of evidence when claimed to have been secured by unlawful search and seizure.

Of course, I'm not going to go into that, I -- I am sure that you can recall what Justice Frankfurter wrote for this Court in that case.

Chief Judge Lumbard of the -- of the Circuit Court, also commented -- commented upon the difficulties which would -- which would be encountered by allowing actions like petitioners to -- to be maintained.

He said, the District Courts would be flooded with suits for injunctions against the use of wiretap evidence and its alleged fruits in the state courts with the consequence necessity of determining just what evidence was proposed to be introduced and whether the trial had reached such a stage that vindication of the federal right should be subordinated to practical considerations of state law enforcement and all these determinations would be subject to appeal.

Now, I don't think that Chief Judge Lumbard was exaggerating when he said that the federal courts would be flooded with litigation if these suits were permitted to be maintained.

In the City of New York, I would say that there are at least -- at least 75 judges who exercise criminal jurisdiction exclusively.

There are other judges such as Supreme Court Justices, who have a general jurisdiction, but the criminal branch on the Supreme Court is really activated.

You have also judges of the -- of the domestic relations court that have limited criminal jurisdiction, but you at least have the -- at least 75 judges in the city courts.

Now, I think that the most damaging blow which would result, by allowing the accused in a state action -- in a state action to examine the place of prosecutors and witnesses to determine what evidence was proposed to be introduced and how the evidence was procured, would be a fatal blow.

Now, how -- how aware the police secured their information is highly confidential, if we were required to disclose that source of information to an accused at a state trial in the federal court.

The source of information would completely dry up immediately and few crimes would be solved.

Now, I understand my time is up and I'll stop right here, unless Your Honors have some questions.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Anolik.

Argument of Irving Anolik

Mr. Irving Anolik: Mr. Chief Justice, may it please the Court.

This Court and the federal courts generally, have had occasion to interpret Section 605 on several occasions.

I cannot find a single case where any federal court or this Court, predicated an interpretation of Section 605 upon constitutional grounds.

It is therefore patent that we're dealing here with the federal statute.

We are not dealing with any constitutional prohibition.

The position of the respondents in this case is that the New York statute and Constitution does not contravene Section 605.

The issue in this case however, transcends the question of wiretap in itself.

It goes somewhat further.

The issue is further raised as to whether or not the federal courts shall enjoin the State of New York as to the introduction of -- of evidence in the state court.

In other words, shall a federal judge sit side by side in the state courts now and rule upon evidence and should this precedent be established when Stefanelli v. Minard clearly indicate it should not be, then why limit it to Section 605 situations?

It could certainly be invoked in any situation.

The improper empanelling of a jury, the systematic exclusion of a particular race in a jury, the trial atmosphere, coerced confessions, the Justices of this Court of course, are familiar with it -- with the opinion, it's definitely against Minard and I just raised that.

Justice Felix Frankfurter: But now, all those instance, all is a -- all the instances that you've given are instances in which if the case goes to trial in the state court and one of those questionable contested (Inaudible) of evidence is admitted and as -- and that conviction results, the conviction can then be assailed in this Court with petition for certiorari is granted, on the ground that it has a vice in defiance in denial of a federal right, is that right?

Mr. Irving Anolik: Correct.

And I recognize as I stated at the very commencement of my argument that Section 605 does not carry the same prohibition and is not a violation of the Federal Constitution.

Justice Felix Frankfurter: Well, but -- that isn't -- that isn't all.

A state prosecution must respect not only the Federal Constitution, but also governing federal law.

Mr. Irving Anolik: That is correct.

Now --

Justice Felix Frankfurter: And therefore, the question is agreeing with you that this Court has not rest at 605 on the Fourth Amendment, that merely it is Act of Congress dealing with evidence or admissibility of evidence in defining criminal conduct enforced in the federal court, prosecuted in the federal court or could make -- utilize the state court that having done so, you have to go further and say that that statute constitutionally might have led Congress to say we are now promulgating a rule of evidence of a conduct that prosecution in federal courts and in state courts.

And if there is such a constitutionally permissible federal enactment regarding evidence applicable also to the state prosecution, if there's a defiance of that federal rule and a conviction results that's a denial of a federal right (Inaudible) then it's not?

Mr. Irving Anolik: What do you mean on the basis of supreme -- supremacy?

Justice Felix Frankfurter: Yes.

Mr. Irving Anolik: Well, I think in Abbate or Abbate against United --

Justice Felix Frankfurter: Pardon me.

Mr. Irving Anolik: -- A.B.B.A.T.E., Abbate --

Justice Felix Frankfurter: Abbate and we're (Inaudible)

Mr. Irving Anolik: -- against United States in 359 U.S., this Court indicated that where a state law compliments a federal statute --

Justice Felix Frankfurter: Well, that is the question -- you don't deny on saying – in admitting to that, you don't deny what my question -- you don't answer my question.

You merely say that the statute may not be applicable in the federal court, but on the assumption that it is and constitutionally may govern a trial in the state court, a disregard of a federal statute relating to evidence applicable in state courts, would be a denial of a federal right that could be drawn here, could it not?

Mr. Irving Anolik: Well, it certainly would not be brought by means of an injunction though, Justice Frankfurter.

Justice Felix Frankfurter: What I like discussing on (Voice Overlap)

Mr. Irving Anolik: Presumably yes, presumably it could.

Justice Felix Frankfurter: Either a conviction, you could attack the validity of the conviction on the ground that it has an illegal ingredient.

Mr. Irving Anolik: Presumably, it could be brought to this Court that is correct.

Now, the position that the respondents take however, is that this Court has previously considered Section 605 with respect to whether or not, the admission or the introduction of such evidence is illegal and for that matter, whether or not, 605 contravenes or nullifies the statute -- the statutory and constitutional plan of the State of New York in People against Stemmer, affirmed in this Court, Stemmer against New York.

Justice Felix Frankfurter: Now why do you have to go to New York -- deal with the problem in that indirect way?

Isn't that what Schwartz said?

Mr. Irving Anolik: Yes, (Inaudible) is going to get to Schwartz.

Justice Felix Frankfurter: Alright, why do bother about a state court in which there was certiorari denied and therefore --

Mr. Irving Anolik: It was granted, Your Honor.

Justice Felix Frankfurter: -- and therefore, well --

Mr. Irving Anolik: In Stemmer, certiorari was granted.

Justice Felix Frankfurter: And no opinion was written.

Mr. Irving Anolik: No opinion was written, but it was affirmed.

Justice John M. Harlan: (Inaudible) four.

Mr. Irving Anolik: Divided -- that's correct.

Justice John M. Harlan: That isn't granted, it's your point, yes.

[Laughter]

Mr. Irving Anolik: I -- I just --

Justice Felix Frankfurter: Any how that didn't -- that just let the law of court stand, but Schwartz is precisely the case you and I have been talking about.

Mr. Irving Anolik: That is correct, Justice Frankfurter.

Justice Felix Frankfurter: Namely, a claim of a federal right disregarding a state prosecution resulting in the conviction, challenged here as an illegal conviction and the Court said, no.

Mr. Irving Anolik: Right and this Court would necessarily have to overrule Schwartz against Texas in order for the petitioner here to prevail.

The respondents respectfully submit that Schwartz against Texas has been reaffirmed by the federal courts on several occasions that there is no warrant in overturning that.

That it would be an invasion of the police power of the State of New York, if you will, to have the federal court determine what statutes or what constitutional scheme a particular state might have to enforce its own police power.

Now, we must distinguish between the irresponsible and reckless invasion of privacy by private wiretapping.

The District Attorney and the police commissioner certainly do not condone or -- or feel that private wiretapping in any way should be permitted.

As a matter of fact, the New York state law is far more stringent than the federal act.

The federal act makes it a misdemeanor to tap wires.

The New York statutory scheme is far broader.

It prohibits not only the tapped conversation on the telephone, but prohibits eavesdropping generally and makes it a felony to violate that.

It is -- the requirements of the State of New York, are that a Supreme Court Justice after a hearing, issue a warrant before any wiretap order can be granted and that is the position in which we would have this Court view the statutory scheme in New York.

We are not talking about an illegal wiretap in the sense of some irresponsible individual just riding roughshod over the rights of an individual as the petitioner led this Court to believe.

This was as he acknowledges, a -- a legal wiretap under the laws of the State of New York.

Appended to with the brief of the amicus curiae, the District Attorneys Association, there are a number of remarks by District Attorney Silver and other people, clearly indicating that the New York statutory scheme has not resulted in flagrant abuses or -- or numerous wiretap orders that there has been great restraint.

And that as a matter of fact, it would be impossible or at least very difficult to prosecute certain types of crime, without this benefit for law enforcement.

We recognize that there is a concomitant detriment to the individual.

That is true undoubtedly, in -- in search and seizure, lawful search and seizures.

No doubt that a criminal would much prefer that search and seizure not be permitted, but by court warrant, it is permitted by a -- a lawful warrant.

Similarly in the wiretap situation, the New York statutory scheme permits a wiretap under strict safeguards and makes it a felony for any individual without a lawful warrant, to tap wires.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Is there any indication how often it is used, Mr. Anolik.

Rebuttal of Irving Anolik

Mr. Irving Anolik: There again, I would refer you to the very elaborate appendix where Dash in his recent book entitled the Eavesdroppers, indicates that there's promiscuous use of wiretapping.

Now, statistics --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: I'm just thinking about New York.

Rebuttal of Irving Anolik

Mr. Irving Anolik: In New York.

Yes, I am talking about New York, now.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Oh, yes.

Rebuttal of Irving Anolik

Mr. Irving Anolik: Statistics compiled and set forth in the amicus appendix and in -- in the respondents' brief as well, indicates that for example, in 1952, I believe that's the year it was alleged that there were 58,000 wiretap orders in New York City alone.

A survey conducted, indicated that the police commissioner and all five county District Attorneys had only secured 480 wiretap orders.

Now, there is certainly a discrepancy there.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Will have -- does that include those given to the police?

Rebuttal of Irving Anolik

Mr. Irving Anolik: That includes those given to the police.

Now, it does not include illegal wiretaps.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Oh no, no, no.

Rebuttal of Irving Anolik

Mr. Irving Anolik: And --

Unknown Speaker: (Inaudible)

Mr. Irving Anolik: That's correct.

Now, frankly, let me say this.

The District Attorney of any county in New York, including myself and respondent here, do not wish to place themselves in a position of violating federal law.

We certainly don't want to do that.

We, however, are now in a quandary.

We actually do not know whether or not, we can legally wiretap.

There was an opinion certainly in terrorem in its nature, written by Justice -- Judge Waterman in the court below, a concurring opinion in which prosecution was urged and threatened for the lawful obedience to the statute and the Constitution of the State of New York.

In other words, we have put in the quandary now of not knowing whether or not, we have this -- what we consider important instrument to fight certain type of crime.

Let me pose one hypothetical --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Is it limited -- is it limited to any particular kinds of crime?

Rebuttal of Irving Anolik

Mr. Irving Anolik: No, Chief Justice Warren, it is not limited.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: I just -- I'm just interested in that answer to that because what Mr. Todaro said, he said that -- that instances where they would issue a warrant of that kind to -- to detect a prostitute.

Rebuttal of Irving Anolik

Mr. Irving Anolik: I had no doubt for that -- has not done in cases.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: That you would think they've said at New York that if they were using it purpose, there'd be more than 400 in -- of all kinds used in a year.

Rebuttal of Irving Anolik

Mr. Irving Anolik: Well, Chief Justice Warren, I will say that I believe the statistics compiled and the appended in the amicus brief are accurate.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Yes.

Rebuttal of Irving Anolik

Mr. Irving Anolik: And --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Well I -- I don't doubt to that.

I'm -- I'm just asking --

Rebuttal of Irving Anolik

Mr. Irving Anolik: I would think that they certainly are not interested in wiretap orders generally unless there are some organized rings of prostitution.

I've been trying to think that would be an isolated instance where they would go to the trouble, but getting a wiretapped order which has to be manned by eight detectives or police officers, each wiretap has to be manned by that many people or a simple prostitute, unless there was some organized ring, I wouldn't think that that would come to the picture at all.

Now let me pose --

Justice Felix Frankfurter: But before you --

Mr. Irving Anolik: Yes.

Justice Felix Frankfurter: -- before you proceed Mr. Anolik you lead me in a state of confusion, maybe at my own --

Mr. Irving Anolik: Oh, I'm sorry.

Yes, I hope to --

Justice Felix Frankfurter: If I -- see, if I follow your argument.

You say that the New York scheme, New York legislation that the detailed of your statute, circumscribing the power of District Attorneys to get these orders on the basis on which alone they can get them and with the authority of a Supreme Court Justice that that statute is not in contradiction to 605, but in -- is complemented thereto and therefore not outlawed by it.

Is that your argument?

Mr. Irving Anolik: That is a position, we -- we are urging.

Justice Felix Frankfurter: Well, you -- you went beyond that.

You said you prosecuting officials are in a state of uncertainty as to what your duties and your rights are, is that right?

Mr. Irving Anolik: I said since the opinion of -- of Judge Waterman in the court below.

Justice Felix Frankfurter: But -- but I followed you.

I don't understand what the quandary is ever since Benanti because that came up from evidence secured through wiretapping in a perfectly New York statute, legal way.

Is that right?

Mr. Irving Anolik: That is correct.

Justice Felix Frankfurter: And therefore, you had in that case, the very situation you've been talking about and if you're right, then that evidence was not illegally offered and introduced in Benanti.

Mr. Irving Anolik: That is correct.

Justice Felix Frankfurter: Because if the New York statute is merely complementary to 605, it also legalize -- it legalizes the evidence and it legalizes from your point of view as well in the federal courts and in the state courts.

Mr. Irving Anolik: That is correct.

Justice Felix Frankfurter: But Benanti said the opposite.

Mr. Irving Anolik: I -- I recognize that Benanti indicated that was a violation of (Voice Overlap)

Justice Felix Frankfurter: And then why are you then in a doubtful state of mind as to what your -- the limits of your power are?

Mr. Irving Anolik: The position that we are taking with respect to Benanti, Justice Frankfurter, is that it was while there's no doubt that what the opinion said it did not rest upon an interpretation of Section 605 which would warrant that statement.

Justice Felix Frankfurter: Well, I understand that the amicus brief, which asked us to reconsider at the more familiar term to be than reappraise to reconsider and overrule Benanti.

I understand that but I do not understand you that you're in a state of uncertainty as to what the state of the law is.

Mr. Irving Anolik: Let me -- we are uncertain to this extent.

Our Court of Appeals as to Benanti, has a (Voice Overlap)

Justice Felix Frankfurter: Yes, but the New York Court of Appeals is dealing with a different question.

Mr. Irving Anolik: I understand that.

Justice Felix Frankfurter: It is dealing with the Schwartz problem, which is a very different problem.

Mr. Irving Anolik: That we recognize, but by the same token, there had -- seems to have been a -- a rather consistent policy -- if I may coin the phrase "of salutary neglect" on the part of the Federal Government in enforcing Section 605.

Justice Felix Frankfurter: Well, I understand that too, but that doesn't change the decision of Benanti.

Mr. Irving Anolik: That's correct, but it was not until Judge Waterman wrote his concurring opinion, where he more or less, directed the U.S. Attorney to --

Justice Felix Frankfurter: You mean up to that time, they couldn't read what Benanti said.

Mr. Irving Anolik: Frankly, I say that they certainly could've read, but we have every reason to believe that the policy of -- of letting it lie would continue.

Justice Felix Frankfurter: Well that's -- that's not a matter for this Court whether the prosecuting authority and the Federal Government prosecute, that's a different question.

Mr. Irving Anolik: That is correct.

Justice Felix Frankfurter: That's not our job.

Mr. Irving Anolik: Well, what we are trying to --

Justice Felix Frankfurter: Well, I'm just trying to find out what -- what basis there is for the claim that conscientious New York prosecutors didn't know what the governing federal law was insofar as the -- the collision, the practical collision between 605 and the New York legislation pertains to prosecution in the federal court.

I'm trying to restrict the assumption that I'm making.

Mr. Irving Anolik: I understand that.

I understand --

Justice Felix Frankfurter: There are two questions; one, does 605 make this a federal offense applicable to -- to and make -- doesn't make any exception as the state officials operating on an otherwise valid state law and the answer is, no, that's Benanti.

Schwartz is a different question, for me a totally different question.

Has Congress said, that the consequence of admissibility in a state trial of such violation of 605, bars that evidence from being used and that's totally different question.

Mr. Irving Anolik: Justice Frankfurter, perhaps by posing a hypothetical, I can make my position more -- more clear.

Let us assume that a -- that a very important public official is assassinated in the State of New York by means of a high-powered rifle, no witnesses, the only possible way they find out who committed that crime is through a wiretap.

Now, the District Attorney has an obligation to prevent a killer from walking the streets.

By the same token he knows that if he uses that wiretap, he maybe indicted and prosecuted for a misdemeanor.

He is now put in this quandary.

Is it his duty to permit a murderer to walk the streets or is it his duty to take the risk of being prosecuted for misdemeanor and redress that grievous and heinous crime?

Justice Felix Frankfurter: I fully understand the question.

I fully understand the problem that confronts you, but it's not the problem before this Court, namely what is -- what are the conscientious prosecutors do either in not prosecuting or prosecuting or not respecting what you find on the books as the law of the land.

Mr. Irving Anolik: Well, let me then --

Justice Felix Frankfurter: That is not -- that is not the question in this case.

Mr. Irving Anolik: I recognize that.

Let me then rephrase my statement, Justice Frankfurter.

Justice John M. Harlan: Your -- your point is that as a practical Assistant District Attorney, when you're told by United States Supreme Court that you are violating the federal law that you among other danger bound to (Inaudible) by getting that Supreme Court order permitting you to tap, you have some hesitation as to whether you as an honorable man ought to do that even though the Supreme Court also tells you that if you do do it and you're successful in your prosecution, your conviction is alright, that's your problem?

Mr. Irving Anolik: That is correct.

Justice Felix Frankfurter: That's not a problem for adjudication by this Court.

Justice John M. Harlan: Not a problem for adjudication that your problem, that's what you're trying to tell us?

Mr. Irving Anolik: That is correct, but let me then say this, Justice Frankfurter that we certainly do urge this Court to reconsider its position in that.

Justice Felix Frankfurter: Very well.

I understand.

I understand that point.

Mr. Irving Anolik: Now, with respect to the injunction which is being sought here, I think that at the very commencement of my argument, I -- and Justice Frankfurt would seem to have supported that position if I interpret him correctly, that the injunction here in effect, would mean that on the premise that the people of the State of New York might use wiretapped evidence, the petitioner here would say that the federal court should enjoin this possibility upon application.

Now, the petitioner here does not know, but that the District Attorney has the consent of one of the parties to that conversation.

I don't say that we did, but assuming that we did, it would certainly be perfectly permissible even under the federal law to introduce that, the Rafton case and other cases, yet on the assumption that wiretap evidence might be used, he goes into a federal court and the federal court says that you are enjoined from using it.

And then by some Pickwickian reasoning, they say, but you can go right ahead with your trial.

Now, the people of the State of New York feel that they must reserve the right to use whatever evidence the courts of the State of New York will deem legally admissible and how can we prognosticate for the future?

What the exigencies of a particular trial will demand?

What evidence might become available perhaps for the purposes of impeachment of a particular witness?

And yet by enjoining it in blank, we could not even use wiretap legally obtained with the consent of the sender perhaps.

And that is another dilemma that is faced here by the injunction question and the -- the respondents most respectfully are this Court that since that is the specific issue before this Court, the injunction issue because after all that is the particular matter that was before the District Court that certainly it should not go as far as the petitioner says.

And the respondents would urge this Court to reconsider Benanti in the light of the legislative history of Section 605, which when it was passed, not a word was said about what was intended to be.

And the appendix of the amicus indicates that Senator McLaughlin and Congressman Cellar, before this Court announced its decision in Benanti, both were under the firm conviction that the federal law did not prevent the use of wiretapping in the State of New York.

Justice John M. Harlan: Well, you -- you could win this lawsuit, this present case and still as an Assistant District Attorney be under the cloud that's worrying and what you're saying is an effect to remove you from that cloud, we ought to do something about Benanti rather than you're trying to handle it through the Congress.

Mr. Irving Anolik: Well, let me say this that this Court apparently felt that Benanti should be -- should be decided notwithstanding the fact that Congress had not acted and perhaps this Court's --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: We held that Congress did act.

Rebuttal of Irving Anolik

Mr. Irving Anolik: Well, that -- that is also a -- an interpretation.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: We understand it when Congress said, no one shall do it, Congress meant, no one should do it.

Rebuttal of Irving Anolik

Mr. Irving Anolik: I recognize that Chief Justice Warren.

Our position --

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: But you say, we didn't consider it, we did.

Rebuttal of Irving Anolik

Mr. Irving Anolik: Well -- I'm just saying that you were there interpreting what the Congress intended.

We, -- the respondents here maintained that an equally valid interpretation might be and I'm -- I'm not trying to be disrespectful to this Court believe me, but I say that an equally valid interpretation might very well be that Congress never intended it, that Congress did not want to thwart the police power of a state.

Justice Felix Frankfurter: And it wouldn't be the first time, I was party to that opinion.

Mr. Irving Anolik: I know, they're just --.

Justice Felix Frankfurter: I'm not suggesting any doubt about it, but it wouldn't be the first time that this Court after years reinterprets its interpretation of what Congress impliedly did.

Mr. Irving Anolik: That is correct, Justice Frankfurter and that's the position to respondents are urging --

Justice Felix Frankfurter: Not that all you're saying is, you wanted to reconsider whether that in the construction --

Mr. Irving Anolik: Right.

Justice Felix Frankfurter: -- to be placed upon.

Mr. Irving Anolik: Quite correct.

Justice Felix Frankfurter: But this -- this is not a -- the quandary you're under is not a very particular crime, a particular quandary about a more general situation that confronts District Attorneys when there is a conflict in public opinion between the law and the feeling of the community.

Mr. Irving Anolik: That is correct.

Justice Felix Frankfurter: If I will live through it, particularly New York, well knows what that quandary meant to very conscientious District Attorneys, but that isn't the problem here at all and that's your problem is this case.

Mr. Irving Anolik: Well, we --

Justice Felix Frankfurter: If -- if Schwartz still stands, then you've got a very narrowly confined problem in this case.

Mr. Irving Anolik: There is no question about that, but I am mindful of the argument that has been promulgated by my colleague here.

That he seems to rely upon Benanti very strongly, although the issue here as you well know, is not Benanti.

Justice Felix Frankfurter: The moral issues, you would rely on the Benanti for what is relied -- to be relied upon.

Mr. Irving Anolik: Well, I'm relying on Benanti to no extent.

I am hoping --

Justice Felix Frankfurter: Yes, but you were in his shoes, you'd start with Benanti.

Mr. Irving Anolik: Oh, I have no doubt of that particularly since the argument I have --

Justice John M. Harlan: You'd like the other part, you would like us to overrule Schwartz and you don't want us to do that so that wouldn't the case but you'd like to win the case by having us -- by having to overrule Benanti.

Mr. Irving Anolik: Well let me say this, first of all, we'd want to win the case if possible, by this Court holding that it will not agree that an injunction is warranted, that's the specific issue --

Justice John M. Harlan: That's this case?

Mr. Irving Anolik: Right.

Secondly, if this Court is going to consider my colleague's position at all, with respect to Benanti, then it should reconsider the entire case and we are hopeful that in reconsideration, perhaps, it might come to a different conclusion.

Justice Felix Frankfurter: In a matter of fact, while my friend, the District Attorney from Brooklyn, (Inaudible) the whole brief based on his request that we overrule Benanti, that isn't your claim, is it?

Mr. Irving Anolik: Well, my claim is a rather narrow claim.

Justice Felix Frankfurter: Yes, well, why don't you stick with that -- [Laughter]

Mr. Irving Anolik: Well, I am sticking to it, but since it was raised first by my colleague, Mr. Todaro here, I feel and -- and this Court apparently showed some degree of interest said from its questions.

I feel that I -- it is not a miss for me to stray off the --

Justice Felix Frankfurter: Do you think the principle of advocacy to answer your opponent?

Mr. Irving Anolik: No, I wouldn't say that.

I -- I certainly don't claim to be an excellent advocate by any means.

I'm just trying to do a job the best way I know Justice Frankfurter and as I say, if this Court feels I'm presumptuous in doing this, I certainly am --

Justice Felix Frankfurter: No one had suggested that.

I think the Chief Justice will bear me out, no one has suggested that.

Mr. Irving Anolik: But -- but certainly our position is the narrow issue that the injunction should not be granted and if the Court however, decides to -- to review or to reconsider Benanti at all, we respectfully submit that they should reconsider it and perhaps come to a different --

Justice Felix Frankfurter: You have the precedent of some of the ablest lawyers I've ever listened to.

You want to win on the broadest possible ground.

Mr. Irving Anolik: Thank you very much.

Justice John M. Harlan: Do you think there's a practical matter, this is quite far a field but you're so, in respect to Benanti is quite far as far as this case is concerned?

It's a practical matter or it can't be this, turn the case, where they got a case, where they think they ought to use wiretaps, are they refraining from getting wiretaps (Inaudible) Benanti?

Mr. Irving Anolik: Let me say this, that the policy I know of my office and I believe I interpret the sentiments of Mr. Silver, is that we will not try another wiretap case until this issue is resolved.

And that --

Justice John M. Harlan: (Inaudible)

Mr. Irving Anolik: -- that we feel frustrated in even obtaining a wiretap order now, in view of -- of Benanti and --

Justice John M. Harlan: That isn't quite the question I asked you might not want to try the case until the issue, which you (Inaudible) in this case is resolved but are District Attorneys, County District Attorneys were refraining from tapping wires under proper court orders.

Mr. Irving Anolik: To my knowledge, wiretapping is continuing, to my knowledge.

Justice John M. Harlan: (Inaudible)

Mr. Irving Anolik: -- is (Inaudible) wire tapping is continuing, however, divulgences are not --

Justice Hugo L. Black: Yes.

Justice Charles E. Whittaker: By the rule --

Mr. Irving Anolik: Any means, thank you very much.

Rebuttal of Mr. Chief Justice Warren

Mr. Chief Justice Warren: Mr. Todaro.

Rebuttal of George J. Todaro

Mr. George J. Todaro: I just would like to make a few remarks in regard to Mr. Dillon's argument, the factual argument is to the so-called (Inaudible) I submit that that is all (Inaudible) the record, because there's nothing on the record in this case and if -- if I went to argue the position of that case, I would have to take the case in its entirety and bring the -- the record up here for this Court to pursue to see what actually transpired in that case.

Not only was there a violation of 605, but a definite violation under Footnote 6 of Benanti.

I'm relying a great deal on Benanti I suppose I --

Justice Charles E. Whittaker: Well you won that -- you won that case.

Mr. George J. Todaro: Yes, Your Honor.

Now I'm going [Laughter] therefore, I like it, so to speak.

I concurred with the rest of the Court in that case.[Laughter]

And now --

Justice Felix Frankfurter: They consummate.

Mr. George J. Todaro: [Laughs] If I may bother this Court with one more quotation in Benanti and then I will leave.

A great deal has been said about the Stefanelli versus Minard and I agree with this Stefanelli case that it would leave the State open of flanking attacks of various type on the constitutional issues that are vague and uncertain and so on.

I agree completely with that, but that far the trouble with most of the District Attorneys and that includes the brief filed by the Attorney General of New York, that they like in this case to illegal search and seizure.

They think, they're treated alike as if there was a constitutional issue under the Fourth Amendment that's involved.

But here, it isn't a -- a vague constitutional amendment that's involved, but a specific Act that's clear, concise, and crystal clear.

And Benanti said this, with reference to that.

Furthermore, confront as we are with this clear statute and resting our decision on its provision, it is not unnecessary nor appropriate to discuss by analogy the distinction suggested to be applicable to the Fourth Amendment.

Section 6 so confide, contains an express absolute prohibition against the divulgence of the wiretap and with that I will close my argument.

Thank you very much.