Rathbun v. United States

PETITIONER:Rathbun
RESPONDENT:United States
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 30
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 355 US 107 (1957)
ARGUED: Oct 29, 1957
DECIDED: Dec 09, 1957

Facts of the case

Question

  • Oral Argument – October 29, 1957 (Part 2)
  • Audio Transcription for Oral Argument – October 29, 1957 (Part 2) in Rathbun v. United States

    Audio Transcription for Oral Argument – October 29, 1957 (Part 1) in Rathbun v. United States

    Earl Warren:

    Number 30, Floyd Linn Rathbun, Petitioner versus United States of America.

    Mr. Hudson.

    Thomas K. Hudson:

    Mr. Chief Justice, the Court please.

    This matter comes before this Court by certiorari from the Tenth Circuit.

    A short history of the situation is, that in April of 1955, Rathbun was indicted on two counts charging that he knowingly transmitted an interstate commerce communication containing a threat to injure which is a violation of Section 18 United States Code, paragraph 875 (b) and (c), (b) is the threat to injure or kill for the purpose of extortion and (c) is the threat to injury or kill.

    I went to trial in Denver and Rathbun was convicted by this jury.

    And the Court, in sentencing him, gave him one year and a day on each count to be served concurrently and a fine of $1000 on one fine.

    That matter was appealed to our Circuit Court, in Denver, which is our Tenth Circuit, and the conviction was sustained.

    This Court has granted certiorari on a limited situation.

    The certiorari which is here and which is confined to a telephone extension, and if the Court will pardon me, I’d like to read what my problem is, is the listening in by a third person on an extension telephone without consent of the sender and interception within the meaning of Section 605, Title 47, U.S.C.A, and the admission in the evidence of testimony of said third person relating to the contents of the conversion i.e.divulgence of such intercepted communication and thus prohibited by the aforesaid statute.

    Now, the facts of this case are, shortly, that Mr. Rathbun was in New York City and he had had a great deal of business dealings with Sparks, the complaining witness.

    And Rathbun called Sparks from New York City to Pueblo, Colorado by long distance telephone about 1 o’clock in the morning.

    Sparks held some securities which belonged to Rathbun and Rathbun desired to have those released.

    There had been three conversations previously and Rathbun had an appointment call with Sparks from 1 o’clock in the morning.

    Sparks called two police officers of the Pueblo Police Force and asked them to be present at his home.

    And they were present there, and at the time the call came in, Mr. Sparks answered the call on the main line and the two officers, that was in the Sparks’ living room, the two officers were in the dining room on an extension phone with the phone between their heads listening to the conversation.

    Was it a regular extension?

    Thomas K. Hudson:

    Yes, sir.

    Yes.

    Not put in for that purpose?

    Thomas K. Hudson:

    No, sir.

    No, it was regularly installed in the home there and it was not especially for that purpose at all.

    It is that testimony to which I’ve objected at the time of trial and Judge now so ruled the objection and the testimony was permitted.

    And that is the error and one of the errors which we cite in our petition of certiorari and that is a situation which brings this matter before this Court and limits it to an extension phone.

    And there’s — I believe, there’s nothing else that I am permitted to go into in connection with this matter except that one specific question.

    Now, there are a lot of things to take into consideration in the construction of a federal statute.

    There are only a few words in this particular statute that are of any particular importance that is, they’re all important but I have — I mean, it need determination.

    I believe we have to have an authorization here before anyone can listen in on a phone and divulge its content.

    There was no authorization by Rathbun to Sparks, however, Rathbun did remark to Sparks over the phone as the record will show, I don’t care if you are making a recording of this.

    That is —

    Earl Warren:

    What was that, I didn’t get that —

    Thomas K. Hudson:

    He made the remark, “I don’t care if you are making a recording of this conversation.”

    Earl Warren:

    Oh, who said that?

    Thomas K. Hudson:

    Rathbun —

    Earl Warren:

    Oh.

    Thomas K. Hudson:

    — said that to Sparks.

    (Inaudible) kill you and I don’t care if you wanted to record this.

    Thomas K. Hudson:

    You are correct, yes sir.

    Now, the statement was made from Rathbun to Sparks, not to Rathbun to Sparks saying, “I don’t care if you’ve got people listening in on this phone.”

    He said, “I don’t care if you make or if you’re making a recording.”

    Earl Warren:

    What’s the difference?

    Thomas K. Hudson:

    Well, quite a bit.

    You might make a recording from the purpose of memory.

    But for people to listen in upon your phone, that is forbidden by the statute and we have a statute that we’re referring to here.

    Now, the statute does not say anything about not making a recording, Your Honor.

    The statute says that no one unauthorized shall intercept a telephone message and divulge it.

    The — there is nothing, as far as I know, that’s illegal about someone making a recording of the conversation.

    There is something illegal so far as this particular statute is concerned there.

    There is something illegal if I think that I am talking with John Doe only and other people are listening in or intercepting this message.

    Section 605 make that illegal if they attempt to divulge it.

    William J. Brennan, Jr.:

    Well, doesn’t that depend on what — how you construe intercept?

    Thomas K. Hudson:

    Sir?

    William J. Brennan, Jr.:

    Doesn’t that depend upon how you construe intercept?

    Thomas K. Hudson:

    Well, I’ve —

    William J. Brennan, Jr.:

    You said that the chap listening in on the extension was intercepting the message, that’s the very question we have to decide, is it not?

    Thomas K. Hudson:

    I believe that is correct, sir.

    That’s a question of interception.

    Earl Warren:

    Do you think it would be all right for him to make a recording under this statute?

    Thomas K. Hudson:

    So far —

    Earl Warren:

    Anybody who has called up can make a recording of the conversation.

    Thomas K. Hudson:

    So far as the statute is concerned —

    Earl Warren:

    Yes.

    Thomas K. Hudson:

    — yes, sir, limiting it to 605.

    Earl Warren:

    Yes.

    Thomas K. Hudson:

    I —

    Earl Warren:

    Now, suppose this man — suppose the — the question that come up in Court, Rathbun had testified to what happened — what occurred to this conversation over the phone, and Sparks had testified to the opposite.

    And Sparks had brought a recording in to corroborate him.

    Would you think that would be a violation of the statute?

    Thomas K. Hudson:

    Section 605?

    Earl Warren:

    Yes.

    Thomas K. Hudson:

    No, sir not of 605.

    I don’t believe it would be.

    Earl Warren:

    Then isn’t that all that is being done here, the policemen are corroborating —

    Thomas K. Hudson:

    No, sir.

    Earl Warren:

    — Mr. Sparks?

    Thomas K. Hudson:

    I — I think that under many circumstances, I could think up a lot of objections to the introduction of the recorded instrument.

    But 605 —

    Harold Burton:

    But when that recording is read in Court, is that divulging?

    Thomas K. Hudson:

    I don’t believe so, not if — not if I was the only one listening to the conversation and I came over the phone, I believe that that would not be, at least, I don’t think it be a — a violation of Section 605.

    Harold Burton:

    Does not make it — it’s not going to be divulging when it was recorded.

    But when it’s read in the courtroom what — how — what else can it be except divulging it in the courtroom.

    Thomas K. Hudson:

    Well, I — I think that if it is — let us assume for the moment that it is not objectionable.

    If it were not objectionable, it’s — it’s merely a case of refreshment of memory.

    In other words, I might sit there and make notes of the conversation.

    I might record it.

    Now, whether or not that record could be introduced in evidence, I — I’m not going to in to that.

    I don’t believe it would be a divulgence, no, sir.

    I think it be a matter of a recorded conversation if it could come in.

    It might be a divulgence but not a divulgence of an intercept in the Court, (Inaudible) —

    Thomas K. Hudson:

    That is correct, sir.

    — interception.

    Thomas K. Hudson:

    The — the word intercept as used in this particular statute is probably unfortunate and there has never been a case decided that I know of where the accepted dictionary definition of intercept has been followed.

    Intercept pursuant to the late dictionaries and the old one as far as that goes means a stoppage, like you intercept a forward pass, you stop it.

    It does not mean that you listen in.

    The — it’s — it’s a stoppage either in a communication.

    It’s a stoppage in the connection.

    It’s a stoppage of something but it does not go past the interception, anymore than football does.

    That isn’t what was intended here.

    I think that what was intended here by the Congress and what the cases are, if touching, is that you shall not listen in, you shall not eavesdrop more than the word intercept.

    I’m — I’m not impressed with the — with the word intercept be, what the Congress intended to use.

    Harold Burton:

    Does it mean you can’t listen in on receiving end but what do you do about the listening on the past (Inaudible), is that all right?

    Thomas K. Hudson:

    No, sir.

    They’re all, I believe, receivers and senders.

    However, in this particular case, our Circuit Court found that Rathbun instigated the call and he was the sender and — but either way, it would be the same because I believe the case has hold that they are by phone, one is a sender and then a receiver.

    Harold Burton:

    In – and there are a case where they listened in was to protect the phone on — on the sending end and telling that was all right?

    Thomas K. Hudson:

    No — yes.

    That is correct and that was on the extension phone as far as that goes.

    And that was an interception, Judge.

    It was not — it was not that it was all right as I recall.

    You see, I don’t believe that pursuant to this Section, you can listen in whether it’s on the extension phone or otherwise, without the consent of both parties.

    I believe that the privacy of the communication must be maintained.

    Well, the one problem is, what can senders require then, and there’s another problem of what is interception at all.

    Thomas K. Hudson:

    I think that’s correct.

    Now, I don’t think that the consent that I spoke to which the Government will bring up, constitutes the consent to say I don’t care if you’ve got four people listening.

    I think that’s entirely different.

    The matter of interception is a rather impossible word and —

    Hugo L. Black:

    The word used – it is —

    Thomas K. Hudson:

    Sir?

    Hugo L. Black:

    — the word, isn’t it?

    Thomas K. Hudson:

    It is the word used but I mean it’s rather impossible of interpretation in connection with this statute, Judge.

    William J. Brennan, Jr.:

    Well, let’s see.

    Do you mean by that that given its dictionary definition —

    Thomas K. Hudson:

    It won’t work.

    William J. Brennan, Jr.:

    — It would mean a message which never got to the receiver at all.

    Thomas K. Hudson:

    That is correct.

    William J. Brennan, Jr.:

    But somehow was arrested in passage before it was — reached the receiver.

    Thomas K. Hudson:

    That is correct.

    William J. Brennan, Jr.:

    And that that could not possibly have been the sense in which the Congress used the word?

    Thomas K. Hudson:

    I feel sure of that.

    William O. Douglas:

    Does the Government admit that it would be intercepted in the meaning of the statute if it — if there was a tap put on?

    Thomas K. Hudson:

    I believe that they do.

    Now, there’s another thing —

    William O. Douglas:

    Even though the tap would interfere with the receiving of that —

    Thomas K. Hudson:

    I think that’s correct.

    William O. Douglas:

    — part.

    Thomas K. Hudson:

    And there was — no one knew the tap was on or at least one person didn’t know.

    Now, the only difference between a telephone tap and a conventional phone or rather a conventional extension is that your tap has headsets and not a mouthpiece otherwise they’re the same identical thing.

    And the unfortunate part of it —

    William J. Brennan, Jr.:

    Oh, is it really?

    Thomas K. Hudson:

    Oh, sure.

    William J. Brennan, Jr.:

    I know but you’re speaking now electronically that —

    Thomas K. Hudson:

    Yes, of a tap.

    William J. Brennan, Jr.:

    I know but doesn’t a tap have to be added?

    It’s not part of the set as installed, is it?

    Thomas K. Hudson:

    Oh, of course, not.

    But I mean a wiretap phone is the same as an extension phone except it doesn’t have a mouthpiece.

    William J. Brennan, Jr.:

    Well, but that’s a very —

    Thomas K. Hudson:

    Sir?

    William J. Brennan, Jr.:

    There’s a great difference in the fact that the extension is part of the installation as you get it, isn’t it?

    They’re not so —

    Thomas K. Hudson:

    Oh, yes, that is correct.

    However, an extension — all of these phones are the same.

    They come in to a connection box and they’re all hooked on to the same screws and they are heard frankly simultaneously.

    Now, the reason that —

    Well, supposing you’re in your office, you’re called by a business acquaintance and you tell your secretary without saying anything to the sender of the message, I’d like to have you pick up your extension take down our conversation, is she committing a crime?

    Thomas K. Hudson:

    Not unless she divulges it.

    Felix Frankfurter:

    Not — not unless what?

    Thomas K. Hudson:

    She divulges —

    Felix Frankfurter:

    Divulges, yes, divulge it.

    Thomas K. Hudson:

    — the information.

    Sir?

    Is she committing a crime —

    Thomas K. Hudson:

    Oh, I think so.

    — if she divulges it?

    Thomas K. Hudson:

    Oh, yes.

    That is under the circumstance I think if she can tell me about it because I asked her to make a record of it.

    But if she goes into a courtroom or something like that, I don’t believe that she can divulge that to anyone else without the consent of the sender.

    Now, there is one circumstance that —

    Earl Warren:

    If you’re working for a company could — if she was working for a company could she give it to her employers without violating the law or —

    Thomas K. Hudson:

    No, I think very definitely because that’s one of her duties.

    In other words, she’s employed.

    She may testify if she was subpoenaed, too.

    Thomas K. Hudson:

    Sir?

    It’s her duty to testify if she’s subpoenaed.

    Thomas K. Hudson:

    Not under 605.

    It then becomes objectionable unless I was advised that this was being recorded by a stenographer.

    Would the same thing be true if (Inaudible)

    Thomas K. Hudson:

    I don’t understand, Your Honor.

    (Inaudible)

    Thomas K. Hudson:

    Oh no, not at all.

    Thomas K. Hudson:

    Not if the corporate employer asked her to make a record of the telephone conversation.

    Felix Frankfurter:

    Does the secretary case come in this case?

    Thomas K. Hudson:

    No, sir.

    Now —

    Earl Warren:

    Where is it different?

    Thomas K. Hudson:

    Sir?

    Earl Warren:

    Where in this are they different?

    Thomas K. Hudson:

    Well, the — in this case, the two officers listening were allowed to testify.

    In the secretary case, she tells me or she makes a — a transcript to what she took down.

    In other words, there is no divulgence.

    Felix Frankfurter:

    Is that the only difference?

    Thomas K. Hudson:

    I think that’s right.

    Felix Frankfurter:

    Couldn’t she testify?

    Thomas K. Hudson:

    No, sir.

    Not under 605.

    William J. Brennan, Jr.:

    Well, in (Inaudible) wasn’t that held actually that this is no different than the secretary thing and not a square holding?

    Thomas K. Hudson:

    I think that’s correct that the — that there’s nothing wrong with a secretary taking it down.

    William J. Brennan, Jr.:

    Well, but the situation is much like this, wasn’t it?

    Thomas K. Hudson:

    I think that’s correct, sir.

    William J. Brennan, Jr.:

    And it was held that there was no — there was no interception listening on the extension —

    Thomas K. Hudson:

    That’s because of —

    William J. Brennan, Jr.:

    — any more than it would have been in the secretary case.

    Thomas K. Hudson:

    That’s because on the extension.

    Now, the — the courts have been hitting around what is an interception and what do you have to do to make an interception.

    I’d like to bring out the time element in the electronics of this and I believe that we can understand why you can’t have an interception.

    Because they’ve gone on — that some of the courts have gone on the theory that the wiretap hears it first, whereas, the extension doesn’t.

    Now, factually, electricity on a microwave which it would be going from New York to Denver, Colorado, travels with a speed of light, that’s 186,000 feet a second.

    It goes from Denver to Pueblo over a cable.

    That travels then from 50,000 to 100,000 miles a second.

    The transmission time of a message from Denver to Pueblo using the microwave is about 1375th of a second.

    Thomas K. Hudson:

    Possible a measurement but we wouldn’t recognize in the human ear certainly.

    Now, we get it down to this home in Pueblo where the main line is in the living room, the extension is in the dining room.

    Now, if they were a hundred feet apart, the time element would be three-billionths of a second different.

    Now, in the average home they aren’t going to be that far apart.

    They’d be 20 feet apart.

    It gets to be one-billionth of a second.

    It is not possible a measurement.

    It doesn’t make any difference whether it’s an extension that someone is listening to who is not authorized or there’s a tap been on the wire.

    Everybody hears at the same time.

    I don’t hear it before John Doe hears it.

    We all hear it at the same identical time because you can’t figure billionths of a second.

    That is, a human ear cannot figure it.

    The — now, there’s another misfortune about the wiretap and it refers to it in one of the hearings that were held in the legislative hearing.

    They now have a device that you can set alongside of a telephone wire with no attachment that is so sensitive that it picks up the sound.

    In that case, you have no wiretap at all.

    Now, I believe that what the Congress meant and I believe that it needs the onstruction that it doesn’t mean interception that means that you shan’t listen in, you shall not eavesdrop unless everyone is advised of, in the event you’re not advised of it, you cannot testify relative to that because a violation of 605.

    William J. Brennan, Jr.:

    What will we have to do with Goldman to accept your suggestion?

    Thomas K. Hudson:

    Well, the Goldman case — I’m up against this, Your Honor.

    These cases are all mixed up.

    There — there is no controlling law and I — I believe that this Court in deciding this particular case, I think that it’s going to make some new law.

    I believe that it’s going to take a different concept of it.

    I believe it’s something that needs clarification and this clarification is invariably for this reason that in deciding a case such as this, it might be that the — the Court would give a blueprint to a violator.

    In other words, if I can get in and listen on an extension, I have committed no crime.

    But if I put a wiretap in somewhere, I have committed a crime.

    Consequently, if I want to listen in on these conversations, if I won’t — somebody wants me to listen in on the conversation, all they’ve got to do is to put me on the extension phone.

    I can go in and testify at any time.

    Suppose this —

    Thomas K. Hudson:

    (Voice Overlap)

    Supposing you don’t do anything by way of a device, you just go and hide under the couch and the recipient of the conversation is talking in response to the conversation and he holds the receiver a little away from the ear so you can hear what’s coming through, is that an interception?

    Under your definition of listening in, I suppose it would be.

    Thomas K. Hudson:

    I don’t think there’s any doubt about it, in other words, if they devised a way for me to listen.

    Well, just devise it by getting under a couch and listen with your ears.

    Thomas K. Hudson:

    Well, but in that case, there’s — in this case, there’s nothing surreptitious about it Judge I think this.

    William O. Douglas:

    It’s pretty hard to call that an interception (Inaudible).

    Thomas K. Hudson:

    No.

    I don’t think so.

    I think that if —

    I thought you said eavesdropping was the essence of this statute.

    Thomas K. Hudson:

    No, no, no.

    If I gave that impression —

    well, I’ve given an erroneous impression.

    I — it’s called a wiretapping but the listening in or an unfortunate word on my part, eavesdropping in possibly would be wrong.

    I — I think that it is the actual listening to a conversation without authorization, then wanted to testify to, it is what the Congress was trying to accomplish.

    William J. Brennan, Jr.:

    Is there anything in the congressional history which supports the notion an interceptor was used in the — some connotation of eavesdropping?

    Thomas K. Hudson:

    The — yes.

    And I — I made some notes on that to be —

    William J. Brennan, Jr.:

    (Voice Overlap)

    Thomas K. Hudson:

    — to be brutally frank Judge, this particular section in the Communications Act had beentreated kind of like a stepchild.

    They’ve been interested more in other things.

    But in a hearing before the Committee on Expenditures and the executive departments of the House of Representatives —

    William J. Brennan, Jr.:

    Is this covered in the brief by chance?

    Thomas K. Hudson:

    No, sir.

    I looked this up after I came to Washington.

    We don’t have the congressional —

    William J. Brennan, Jr.:

    Not (Voice Overlap) —

    Thomas K. Hudson:

    — records out in Denver.

    It is under the heading of wiretapping and law enforcement.

    It’s the 71st Congress, the Third Session and it was held on February 19th, 1931 that was subsequent prior to the fashioning of this Act.

    This is William D. Mitchell, the Attorney General that is talking this time.

    And on page 24 of that particular work, it says if I may read to Your Honor.

    Thomas K. Hudson:

    “Of course, the question of wiretapping is a broad one.

    It involves a general question of what you might call eavesdropping.”

    And at page — on the same page, the Attorney General says, “They tell me there’s a device now in coarse development by which you do not have to tap the wire at all, which you can set up the apparatus in the vicinity of the telephone wire and catch the message in that way without any physical contact at all.”

    Mr. (Inaudible), if that is the way the name was pronounced was a member of that committee and he asked the question, “that would be a tapping just the same.

    Mr. Mitchell: – “Yes, but it has no physical connection.”

    Mr. (Inaudible): “It would be done without any physical connection but it would be the interception of the message just the same.”

    Now, there —

    Earl Warren:

    We’ll recess now, Mr.–

    Thomas K. Hudson:

    Thank you, Your Honor.