200 488 FEDERAL REPORTER, 2d SERIES dures violative of privacy, embodied Section 605 as amended in 1968 likewise provides that "no person" shall divulge any communication covered by the statute to "any person." The statutory language is clear and unambiguous. Nowhere in the statute is the word "person" restricted, limited, or modified. If the words of the statute are interpreted according to their plain meaning, § 605 clearly applies to law enforcement offi cers. The majority fastens on two sentences in the Senate report to the Omnibus Crime Control and Safe Streets Act of 1968 to support its conclusion that § 605 as amended does not apply to law enforcement officials: "'Person' does not include a law enforcement officer acting in the normal course of his duties. But see United States v. Sugden (226 F.2d 281 (9th Cir. 1955), affirmed per curiam, 76 S.Ct. 709, 351 U.S. 916 [100 L.Ed. 1449] (1956))." S.Rep.No.1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2197. The reference to the Sugden case was clearly intended to emphasize the word "normal" in the preceding sentence. In Sugden, short wave radio transmissions on a private farm were monitored by a Federal Communications Commission employee and were then used to prosecute the broadcasters for immigration law violations. This court, by Judge Chambers, noted that the "theory of conduct" of the immigration officers "seems to have been, "The Federal Communications Commission can legally listen. So we shall use their ears for what we, the Immigration Service, cannot do.'" 226 F.2d at 285. The court held that the intercepted conversations were inadmissible as long as the radio station was legally on the air and the operators were legally authorized to operate it. The majority's conclusion in Part I that § 605 does not compel a reversal of the convictions in these cases turns on the statement in the Senate report that "'Person' does not include a law enforcement officer acting in the normal course of his duties." I would hold that where, as here, the statutory language is clear. and unambiguous, and where Congress could easily have incorporated any intended restriction or limitation on the meaning of any word in the statute itself, the words of the statute must be interpreted according to their plain meaning, and the statutory language must control. It is a well-established principle of law that "there is no need to refer to the legislative history where the statutory language is clear." Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944-947, 93 L Ed. 1207 (1949). In Easson v. Commis sioner of Internal Revenue, 294 F.2d 653, 656 (9th Cir. 1961), this court held that "[w]hen a statute is unambiguous, the courts may not look elsewhere for the legislative intent." In United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961), the Supreme Court stated, "Having concluded that the provisions of § 1 [of the statute in question] are clear and unequivocal on their face, we find no need to resort to the legislative history of the Act." (Footnote omitted.) This principle of statutory interpretation has been applied in many cases. See Ex parte Collett, supra, 337 U.S. at 58; 69 S.Ct. 944; Arkansas Valley Industries, Inc. v. Freeman, 415 F.2d 713, 717 (8th Cir. 1969); Sea-Land Service, Inc. v. Federal Maritime Commission, 404 F.2d 824, 828 (D.C. Cir. 1968); Department Employees' Local 1265 v. Brown, 284 F.2d 619, 627 (9th Cir.), cert. denied, 366 U. S. 934, 81 S.Ct. 1659, 6 L.Ed.2d 846 (1961). The principle that clear and unambig. uous statutory language must prevail over a conflicting statement in the legis lative history holds true particularly where, as here, the same language was contained and authoritatively construed munication" in the second and fourth sentences, deleted the phrase "wire or" preceding "radio" in the third sentence, and added the introductory clause "Except as authorized by chapter 119, Title 18," 47 U.S.C. § 605. In these respects, the amended section was a "substitute" for, and not merely a "reenactment of," § 605. in an earlier version of the statute. If inserted the word "radio" before "comCongress had intended to restrict or limit the meaning of the word "person" in the 1968 amendment, it could easily have done so in the statute itself. Indeed, Congress did explicitly distinguish between "person" and "law enforcement officer" in another section of the Omnibus Crime Control and Safe Streets Act. 18 U.S.C. § 2510, enacted (with 47 U.S. C. § 605) in Title III of the Act, contains separate definitions for "person" and for "Investigative and law enforcement officer." These definitions apply to the provisions of chapter 119 of Title 18, 18 U.S.C. §§ 2510-20. If Congress had intended law enforcement officers to be excluded from the word "person" in § 605, it manifestly would have done so through clear statutory language, as it did in 18 U.S.C. § 2510. The new The majority also seeks support for its conclusion in Part I in the statement in the Senate report that the amended section "is not intended merely to be a reenactment of section 605. provision is intended as a substitute." 1968 U.S.Code Cong. & Admin.News, at p. 2196. In my view, this statement was intended to emphasize that the scope of coverage of § 605 was narrowed by the 1968 amendment, and that part of the area formerly regulated by § 605 was now to be regulated by chapter 119 of Title 18, 18 U.S.C. §§ 2510-20. Whereas formerly the provisions of § 605 applied to both wire and radio communications, the amendment restricted the scope of all provisions after the first sentence to radio communications. The amendment 1. While People v. Trief involved interceptions of wire rather than oral communications, its interpretation of 605 to prohibit the divulgence of conversations intercepted by police officers does not depend upon the distinction between oral and wire communications. If 605 applies to law enforcement officials, it covers interceptions of oral as well as wire communications. 488 F.26-1342 One court has held that § 605 as amended renders evidence of telephonic communications intercepted by police officers inadmissible. In People v. Trief, 65 Misc.2d 272, 317 N.Y.S.2d 525 (1970), aff'd mem., 37 A.D.2d 553, 323 N.Y.S.2d 659 (1971), the prosecution sought to introduce evidence obtained from telephone conversations intercepted by police officers. The prosecution conceded that prior to the 1968 amendment, the intercepted conversations would have been inadmissible, but contended that the amendment rendered them admissible. The court squarely rejected this view, holding that under § 605 as amended, the intercepted conversations must be suppressed.1 Cf. Commonwealth v. Coviello, Mass., 291 N.E.2d 416 (1973). The government concedes that the convictions of the defendants were possible only because of the intercepted communications. I would hold that the divulgence of those communications to the officers of the Arizona Department of Public Safety and their divulgence by the officers at trial violated 47 U.S.C. § 605, and I would reverse the convictions.2 2. It is clear that no expectation-of-privacy requirement is contained in 605. United States v. Sugden, supra, 226 F.2d at 284285; United States v. Laughlin, 226 F.Supp. 112 (D.D.C.1964); United States v. Fuller, 202 F.Supp. 356 (N.D.Cal.1962). [2] Here, the state district court held a plenary hearing on this petition and expressly found that employed counsel had failed, not only to prosecute any appeal from petitioner's conviction, but also to advise him that no appeal would be taken on his behalf. In view of Chapman, petitioner's complaint may be meritorious. However, that determination should be left up to the state forum. State courts should be given the first opportunity to pass upon and correct errors of federal law in a state prisoner's conviction. It must not be assumed that state courts will be derelict in their duty to give full effect to federal constitutional rights, when warranted. This tenet complements the doctrine of abstention, whereby full play is allowed the states in the administration of their criminal justice. To allow the state judiciary the initial inquiry is a matter of accommodation between state and federal courts. This concept is grounded primarily upon respect which federal courts should and do have for state judicial processes. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L. Ed.2d 669 (1970). It is not one defining power but one which relates to the appropriate exercise of power. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1967). Every consideration of comity and propriety demands that in cases of this character, recourse should first be had in the state courts. [3] Therefore, the proper action for this Court is to defer any decision at this time until the Court of Criminal Appeals, which is already cognizant of the litigation, has the occasion to review the issue. A practical appraisal of the state interest involved here plainly justi fies the federal court's staying its hand, thereby giving finality to state judicial procedures. Now, therefore, it is ordered, adjudged and decreed that petitioner has thirty (30) days from this date in which to present his petition to the Court of Criminal Appeals of Texas. Should he fail to do so, the petition will be dismissed. KEY NUMBER SYSTEM Rufus Lee SMITH, Plaintiff, V. Howard R. WUNKER, Defendant. United States District Court, Civil action by one party to telephone conversation against other party for alleged wrongful recording and disclosure of conversation without knowledge or consent of the plaintiff. On motion to dismiss, the District Court, Porter, J., held that the recording of private telephone conversation by a party to it and its subsequent disclosure did not vi olate statutes making it unlawful to intercept wire or oral communication. Motion granted and complaint dis missed with prejudice. 1. Statutes 184 In construing statute, court would look to the act itself and legislative purpose behind it. 2. Telecommunications 492 Purpose of act pertaining to wire interception and interception of oral 40 Richard C. Curry, Cincinnati, Ohio, for defendant. OPINION AND ORDER PORTER, District Judge. In this case there is a motion to dismiss submitted for decision. This requires a determination of whether a party to a phone conversation may record it and disclose it without violating 18 U.S. C. § 2510 et seq. (wire interception and interception of oral communications). The defendant's motion to dismiss was filed pursuant to Rule 12(b) F.R.Civ.P. on the grounds that the complaint failed to state a cause of action. The motion is unopposed. Under Local Rule 14, failure to file a memorandum contra may be cause for the Court to grant the motion as filed. Though the failure to file a memo by plaintiff's counsel is inexcusable and reason enough for a censure, the motion is considered on its merits. "For purposes of the motion to dismiss the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a)." Wright & Miller, Federal Practice and Procedure, Vol. 5, p. 594. The pertinent allegations of the complaint are as follows: "Plaintiff states that in July of 1969, defendant recorded and disclosed an alleged telephone conversation between plaintiff and defendant without the knowledge or consent of the plaintiff. "Defendant disclosed said alleged conversation to employees and agents of The Cincinnati Post & Times-Star, said alleged conversation or excerpts therefrom being printed in said publication. "That newspaper reports of said conversation purport to be an attempt by the plaintiff to obtain money from defendant for intervening in and 'fixing' a matter pending in the Common Pleas Court, Hamilton County, Ohio." 46 In other paragraphs of the complaint there are allegations that there was a willful disclosure of the conversation to the general public through a newspaper and the interception, as well as the disclosure, was willful. 356 FEDERAL SUPPLEMENT [1] We have not been cited to any case in point, nor have we found one. We therefore look to the Act itself and the legislative purpose behind it. [2] Such purpose was to prohibit any unauthorized interception of wire or oral communications and the use of the contents thereof in evidence in courts and administrative proceedings. (Pub. L. 90-351 § 801(b), 18 U.S.C. § 2510 nt.) This part of the Act was also concerned with safeguarding the privacy of innocent persons from interception, where none of the parties consented to the interception. (Pub. L. 90-351 § 801 (d), 18 U.S.C. § 2510 nt.) Since the complaint shows that the defendant was not acting under color of law the pertinent section of the Act is 18 U.S.C. § 2511(2)(d). That provides: "It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act." Under this we must determine whether there has been an "interception." That term is defined in the statute as follows: "(4) 'intercept' means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device." 18 U.S.C. § 2510(4). "Electronic, mechanical, or other device" is defined in 18 U.S.C. § 2510(5) and means: [5] This is borne out by the congressional findings stated in § 801 of Public Law 90-351, 18 U.S.C. § 2510 nt. The findings show a concern with devices that "overhear" conversations and not devices that record conversations. The means of "aural acquisition" in this case is the telephone itself, and, of course, that is clearly exempted by 18 U.S.C. § 2510(5) (a). We note that the defendant as a party to the conversation could have repeated it verbatim without the use of a recording device and that would not come within the purview of 18 U.S.C. § 2515. As far as the legislative history is concerned, we find, at page 2154 U.S. Code, Cong. & Admin. News of 1968, the concern of Congress was with the interception of private conversations by an unseen auditor and turning such intercepted conversation against the speaker to the auditor's advantage. It was there indicated, at page 2182, that 18 U.S.C. § 2511(2)(d), which grants an exemption to parties the conversation, largely reflects existing law, citing Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 |