The appellant, Judith Coplon, was convicted of an attempt to deliver “defence information” to a confederate, Gubitchev (Count 4) ; and she and he were convicted of conspiring to defraud the United States by making copies of documents relating to the national defence, by transmitting them to Gubitchev, and by removing and concealing them (Count 1). She was acquitted on a count, similar to Count 4, of attempting to transmit the same documents to Gubitchev (Count 2). The principal points raised upon the appeal are three: (1) the competence as evidence of certain documents found upon her person when she was arrested; (2) whether the prosecution proved that “taps” of her wires, conceded to have been made, did not “lead” to any part of the evidence on which she was convicted; (3) whether she was cut short in her effort to prove that telephone talks to which she was a party had been intercepted before the time when the conceded “taps” began to be made. One or two other questions we shall summarily discuss in advance of these; but it will first be necessary to state an outline of the evidence that was before the jury.
Judith Coplon had been employed by the United States Department of Justice in New York from June 15th, 1943, until January 16th, 1945, when she was transferred to Washington to the position of “political analyst” in the “Section” which
Among the documents in the packet was a decoy letter prepared by one, Lamphere, an agent of the Bureau, which professed to give information about the Russian trading corporation, “Amtorg,” and which Foley had given her on March 4th, telling her that it was “hot and interesting.” Besides the decoy, the documents included many “data slips”: i. e. abstracts, made by her upon typewriters in her possession, or to which she had access, of records prepared by agents of the Federal Bureau of Investigation, for the most part those on file in the Internal Security Section. In most cases these related to the activities of persons in the United States, who were, or were suspected to be, acting on behalf of the Soviet Union, or one of its satellites. Finally, there was a statement typed by her saying that she had unsuccessfully tried to see the “top secret” report which, as we have said, Foley had refused to show her. All these documents, taken with the repeated instances in which she had shown an insistent wish to get access to such records, and with, her meetings in New York, made out a case which must háve satisfied any fair minded jury that she was engaged in the conspiracy with which she was charged; and that, when the right moment came, she meant to pass the packet to Gubitchev. Indeed, it, does not appear why she had not already done so before her arrest, as the agents presumably supposed that she had.
Because the arrest in this way interrupted the consummation of the crime..
We find it necessary to discuss only one of the remaining supposed errors, before taking up the arrest and the “wiretapping,” and that is the inconsistency between the acquittal on Count 2 and the conviction on Count
4. The
argument is that, if the acquittal would have been
res judicata,
had the trials been at different times, it was an adjudication when the verdicts were simultaneous. That is an error; when at the same trial a jury renders inconsistent verdicts of acquittal and conviction, the inconsistency is immaterial and the conviction will stand.
4
The Supreme Court in Dunn v. United States, supra,
Thus there remain for consideration only the three main questions which we mentioned at the outset, of which the first is whether the arrest on March 4th was valid. Upon its validity concededly depends the validity of the seizure of the incriminating packet and of its competence as evidence at the trial. In the absence
Since the agents of the Bureau are private persons it would seem under United States v. Di Re, supra,
14
that in 1934 they already had the same powers of arrest as private persons in any state where they acted. It is possible therefore to argue that the Act of 1934 should be read as cumulative:
i. e.
as giving the agents added powers of arrest. However, the history of the Act shows that this cannot have been its purpose, and indeed the Department does not say that it was. When introduced, the House bill extended the powers beyond those possessed by private persons by granting agents the same power that a “peace officer” had at common-law. So far it might have been meant to be only cumulative. At once the Judiciary Committee added the limitation that the person arrested must be likely to escape, which transferred the bill into a grant of powers theretofore unknown to the law: in some respects greater than those of a private person, in some respects less. The Senate then imposed the limitation that a felony must actually have been committed, thus narrowing the grant, because of the “escape” condition, to even
Although the judge found that the agent who made the arrest had reason to believe that Judith Coplon was likely to escape, we can see no basis for the finding. How much the agent knew of what the Bureau itself knew does not appear; but, although we may impute to him all that we now know, we may not impute more, for we are bound by the record. The Bureau knew that she had twice been in contact with a Russian, who it was fair to suppose was an emissary of the Soviet Union of one kind or another. Their meetings had given every appearance of furtiveness and fear of apprehension. She had manifested a persistent interest in secret reports of the Bureau regarding Russia which was somewhat sinister in one of her position. On March 4th she was apparently prolonging her third meeting with Gubitchev quite unnecessarily, unless it were to find a moment for some critical action; and she was acting with redoubled caution and apprehension.
This situation appears to us to have given ample reason to suppose that these meetings were in pursuance of a concerted venture whose object was the delivery of information prejudicial to the national security: in short, that a criminal conspiracy was in progress before the eyes of the agents. On the other hand we can see nothing to justify the assumption that the meanderings of March 4th were to be the last contacts between the two. They had shown at the first two meetings that they feared they were being shadowed; yet that had not been enough to induce either one to abscond. If this third meeting went off as well as the others, and if it resulted — as the agents supposed it would and indeed that it had — in the delivery of useful information, the more reasonable inference was that it would be followed by the delivery of other papers. It was absolutely essential to the continuance of any such commerce that Judith Coplon should keep her position, through which alone she had access to the necessary papers. Escape would have put a final end to the enterprise and would incidentally have been the most serious confession of guilt which she could make. All this seems to us to have pointed almost with certainty to the conclusion that, if they separated on March 4th without interruption, she would go back to Washington and hold her job.
Moreover, there was not the slightest need of arresting her without a warrant, even if there had been danger that she might run away and hide. It is apparent that even in the morning the Bureau had decided to arrest her that day; and there was not the least need of doing so without a warrant. No sudden emergency forced the hand of the agents; they made everything ready except the one condition which would have made the arrest lawful: a warrant. Foley had delivered to her the decoy letter that morning; an assistant to the Attorney General followed her to New York; the number of agents assigned to trail her had risen from seven to twenty-four; a matron had been detailed at the court-house to take charge of her after her arrest. Nor was there danger that she might learn that warrant had been got; it could have been procured
ex parte, The
statute certainly requires a warrant when there is time to obtain one; the dispensation is limited to occasions when it is not safe to wait. The only excuse that is suggested is that Gubitchev might
The next question is of the “taps” taken after January 6th. It is of course well-settled law that “wiretapping” is forbidden by statute ; 15 and that evidence obtained by a federal officer in violation of law may not be used against the victim of the violation. 16 In United States v. Goldstein 17 we declared what, as we understood the law, was the consequence of “wiretapping.” The accused has the burden of proving that the prosecution has in fact “tapped” his wires; .but, if he succeeds in doing so, the burden falls upon the prosecution to prove that the information so gained has not “led,” directly or indirectly, to the discovery of any of the evidence which it introduces. It is true that on appeal 18 although the Supreme Court affirmed our decision, it was careful not to affirm this ruling,' and, as we said in our opinion, it was not an inevitable gloss upon what the court had said in Nardone v. United States. 19 ’ However, we thought then, and we still think, that it best carries out the purpose, of the language used, and we shall adhere to it, until we are told that it is wrong. The question in the case at bar is therefore whether the prosecution succeeded in proving that the “taps” taken between January 6th and March 4th were not necessary to the production of any of the evidence introduced at the trial.
All the “taps” were made at the personal direction of the Attorney General, and they may be divided into three groups: those of Judith Coplon’s home telephone in Washington, which began on January 6th; those of her office telephone in Washington, which began on January 25th; and those of her Brooklyn telephone, which began on February 1st. All of these continued without interruption until March 12, 1949; and some continued later. On February 1st the agents also began to “tap” Gubitchev’s New York telephone; but it does not appear that these “taps” included any talks between him and her; and, if she was not a party,
20
any evidence so obtained was competent against her.
21
The Washington “taps” were recorded by “monitors” in constant attendance, who were provided with automatic recording discs, which they put in operation whenever they thought best, and who also made handwritten notes or “logs.” From these and the discs the “monitors” prepared typed “logs,” all of which were preserved and were produced at the trial. For use at the trial new discs — called “dubs” — were made from the originals, from which those passages were expurgated, which either related to “taps” of other telephones, or whose disclosure the prosecution thought might be dangerous to “national security.” The typed “logs” were “photostated,” and from the copies so made those passages were blotted which were thought possibly inimical to “national safety.” Judith Coplon was allowed to examine all the recordings by disc or “log” of the “taps” taken at her home, and many of those taken at her office; and nothing in any of these could have constituted “leads” to any of the evidence introduced at the trial. The judge examined the original discs and “logs” of those recordings at her office which he refused to let her see, and in his opinion these also could not have been “leads.” He refused to let her see these, because he agreed with the prosecution that their disclosure might
The original records of the New York “taps”: i. e. the discs, the notes or “logs” and the “resumes,” were destroyed. The prosecution excuses this on the ground that it was the practice of the New York office to destroy all original records at the end of thirty to sixty days, unless there was some especial reason for preserving them; and the judge found that such a practice had existed. The undisputed testimony was that there remained on November 10th no original records of “taps” made before July 12th, which was to be expected from the practice. There did remain about ten discs and an undetermined number of original writings, which an agent, Avignone, destroyed at the direction of his superior in Washington, who ordered him to do so “in view of the imminency of her trial”: i. e. Judith Coplon’s. Because of this she asks us, in accord with the canon contra spoliatorem, to infer that the discs and papers so destroyed contained “leads” to some of the evidence introduced. It appears to us that no such inference would be justified. In the first place there is every reason to suppose that the “letters” must have been intended completely to inform the Washington office and that they were therefore adequate summaries of the originals; it would be absurd to think that the New York office meant to conceal any of the facts from the Washington office. Furthermore, none of the records destroyed on November 10th could have been relevant, because they must all have been of “taps” taken after July 12th, and long before that date all the evidence introduced at the trial had been obtained. Again, so far as the destruction was in accord with the usual practice of the office, it could scarcely have been with a sinister purpose, for the “letters” remained, equally available as the originals. Finally, there was an adequate motive for the destruction in the natural desire of every office to rid itself of useless litter the substance of which has been preserved. Thus despite the undoubted blunder of destroying such records post litem motam, we agree with the judge that there was no reason to infer that they would show anything different from the “letters.”
The only relevant inquiry comes down to this: was it an error for the judge not to let the defence see those records which he read
in camera
and on which he in part based his finding that the
“taps” had not “led” to any
evidence introduced at the trial? We cannot see how this action can be sustained; or any escape from the following reasoning. Since the prosecution had the burden of showing that the “taps” did not “lead” to any of the evidence, it could not carry that burden without showing that none of the “taps” did so, and the suppressed documents were concededly records of some of the “taps.” As records they were competent only because they were a substitute for the testimony of the “monitors,” who actually heard the intercepted talk and took it down in one form or another. If the prosecution had not had the records and had been obliged to rely upon the testimony of the “monitors,” it would certainly have been constitutionally necessary under the Sixth Amendment to examine them openly and in court; even their depositions could not have beer.
There certainly is no such excuse. We agree that there may be evidence — “state secrets”' — to divulge which will imperil “national security”; and which the Government cannot, and should not, be required to divulge. 23 Solus rei publicae suprema lex. The immunity from disclosure of the names or statements of informers is an instance of the same doctrine. 24 This privilege will often impose a grievous hardship, for it may deprive parties to civil actions, or even to criminal prosecutions of power to assert their rights or to defend themselves. That is a consequence of any evidentiary privilege. It is, however, one thing to allow the privileged person to suppress the evidence, and, toto coelOj another thing to' allow him to fill a gap in. his own evidence by recourse to what he suppresses. In United States v. Andolschek 25 we held that, when the Government chose to prosecute an individual for crime, it was not free to deny him the right to meet the case made against him by introducing relevant documents, otherwise privileged. We said that the prosecution must decide whether the public prejudice of allowing the crime to go unpunished was greater than the disclosure of such “state secrets” as might be relevant to the defence. To that we adhere. It is true that the situation at bar is not the same, because the privileged documents were in fact introduced in evidence; and, since we have not seen them and do not •mean to look at them, we will assume that they justified the judge’s finding that they did not “lead” to any evidence introduced. However, the refusal to allow the defence to see them was, as we have said, a denial of their constitutional fight, and we can see no significant distinction between introducing evidence against an accused which he is not allowed to see, and denying him the right to put in evidence on his own behalf. In the case at bar it may seem to have been a flimsy grievance to deny to Judith Coplon the opportunity to argue that these records did “lead,” or might have “led,” to her conviction; in truth it is extremely unlikely that she suffered the slightest handicap from the judge’s refusal. But we cannot dispense with constitutional privileges because in a specific instance they may not in fact serve to protect any valid interest of their possessor. Back of this particular privilege 'lies a long chapter in the history of Anglo-American institutions. Few weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens. All governments, democracies as well as autocracies, believe that those they seek to punish are guilty; the impediment of constitutional barriers are galling to all governments when they prevent the consummation of that just purpose. But those barriers were devised and are precious because they prevent that purpose and its pursuit from passing unchallenged by the accused, and unpurged by the alembic of public scrutiny and public criticism. ' A society which has come to wince at such exposure of the methods by which it seeks to impose its will upon its members, has already lost the feel of freedom and is on the path towards absolutism.
Those decisions on which the prosecution and the judge relied do not touch the point at bar. They held that the state
There remains only the question whether the defence was also unduly prevented from learning whether the information which originally “led” to “tapping” Judith Cop-Ion’s telephones, to tracking her movements, and finally to detecting the crime, was itself the result of “wiretapping.” The prosecution conceded that the Bureau had been set upon the trail by what it described as a “confidential informant”; and the testimony showed that that was a frequent euphemism for a “wiretapper,” although the prosecution denied that in this instance that was true. Nevertheless, it was not a foregone conclusion that the “informant” could not have been a “wiretapper,” or that, if he was, he had not intercepted any talks to which Judith Coplon had been a party. Nevertheless the judge refused to allow the defence to press the examination of agents upon the stand as to who the “informant” was, and that too in the face of very equivocal answers even to the questions which were allowed. The point came up most acutely in the examination of Fletcher, the inspector in general charge of the investigation. The defence was trying to learn whether the “informant” was a "wiretapper,” and, although the issue was a good deal clouded by colloquy, it is reasonably clear that the judge meant to rule that he would not allow the inquiry at all. The prosecution had delivered to him a large batch of records, consisting we are told of 5000 pages, which covered all the information in the Bureau’s possession about either of the accused. These papers the judge perused and he gave as his reason for refusing to allow the inquiry to proceed that they showed “that information was obtained by the Federal Bureau of Investigation concerning the defendant Coplon prior to January, 1949, from sources other than “wiretapping.” To this he later added that he would “state for the record that the statement that there was a confidential informant will not enter in any way in determining the issues in this hearing” ; he did not feel that the matter “was relevant to this hearing,” and that it was one “affecting the national security.”
It is always in a judge’s discretion, as indeed it is his duty, to stop an examination when he can see that its further progress will be futile; it is especially important to do so in a long case like this. But up to the time when the judge stopped this examination nothing had appeared to justify doing so; on the contrary the testimony so far elicited suggested- that the “confidential informant,” who had touched off the investigation, might well have been a “wiretapper”; and, if he had been, Judith Coplon was entitled to learn whether she had been a party to any of the intercepted talks. Thus, the judge did not stop the inquiry because he could see from what had already developed that it was bound to be
The doctrine that the prosecution may not introduce against an accused evidence which it has obtained by its own violation of law or that of another official of the same government, was unknown to the common law and is not yet universally accepted outside federal courts. The reason which has brought about its acceptance is that there is no other way by which the accused can secure that protection which the law professes to accord him. By hypothesis the evidence should not be introduced, and would not have been found, if officials had not violated the laws designed to deny them access to it. In cases, such as that at bar, where the head of the same department of a government which has charge of the prosecution has directed the unlawful acquisition, of the information, it is pretty obvious that this is the only tolerable result. True, the doctrine also applies to the acts of any official of the same government; and it follows, as the opponents argue, that the mistake of an underling may result in what is in effect an amnesty. That does presuppose that in the prosecution of crime a government is so far a unit that it will be charged with the conduct of any official or any agent, of the fruits of whose wrong it chooses to avail itself; and perhaps the doctrine should be modified. Perhaps, also, the powers of the Bureau to arrest without warrant should be broadened; and perhaps it would be desirable to set limits —as, for example, in cases of espionage, sabotage, kidnapping, extortion and in general investigations involving national security and defence' — to the immunity from “wiretapping” of those who are shown by independent evidence to be probably engaged in crime. All these are matters with which we have no power to deal, and on which we express no opinion; we take the law as we find it; under it the conviction cannot stand.
Conviction reversed; cause remanded.
Notes
.
. Commonwealth v. Kennedy,
. Wooldridge v. United States, 9 Cir.,
. Dunn v. United States,
. Marsh v. United States, 2 Cir.,
. United States v. Di Re,
. § 165, Vol. 1, Bishop’s New Criminal Procedure.
. § 168, Vol. 1, Bishop’s New Criminal Procedure.
. § 181(2), Vol. 1, Bishop’s New Criminal Procedure.
. §§ 177 and 183, Code of Criminal Procedure.
. 1 St.L., p. 425, 28 U.S.C.A. § 549.
. § 3053, Title 18 U.S.C.A.
. § 3052, Title 18 U.S.C.A.
.
. Nardone v. United States,
. Silverthorne Lumber Co., Inc. v. U. S.,
. 2 Cir.,
. Goldstein v. United States,
.
. United States v. Polakoff, 2 Cir.,
. Goldstein v. United States,
. Fed.Rules Crim.Proc. rule 15, 18 U.S.C.A.
. Boske v. Comingore,
. Vogel v. Gruaz,
. 2 Cir.,
. United States v. Krulewitch, 2 Cir.,
. June v. George C. Petersen Co., 7 Cir.,