United States v. Gopaulsingh

Opinion of the Court ROBERT E. Quinn, Chief Judge: The accused was tried and convicted by general court-martial in Korea of five specifications of communicating obscene language by telephone to female employees of the Air Force on duty in that area. His sentence includes a bad-conduct discharge. We granted review to consider the applicability of the Federal Communications Act, 47 USC § 605. Here, as in United States v. Noce, 5 USCMA 715, 19 CMR 11, the accused contests the admissibility of certain evidence and of a pretrial statement. Both of these, he maintains, were obtained as a result of the interception of a telephone call made by him. After several complaints regarding objectionable telephone calls to females were received, a system of telephone monitoring was instituted. Eventually a monitoring operator, stationed at the Air Force switchboard at the K-2 Air Base in Korea, intercepted a call originating from the public telephone booth in the passenger terminal of the base. The receiving telephone was located in a service club on the base. As a result of the monitored call, the accused was apprehended. He was taken to the Air Police office, advised of his rights under Article 31, Uniform Code of Military Justice, 50 USC § 602, and interrogated. In the course of the interrogation, the accused executed a signed statement containing incriminating admissions. This statement was admitted in evidence at the trial. In United States v. Noce, supra, we concluded that Congress intended not to include within the pro- hibition of the wire tap provisions of Section 605 of the Communications Act, a self-contained, exclusively operated, maintained, and controlled military communication system. In this case there is sufficient evidence to support the conclusion that the telephone system used by the accused was exclusively military. Hence, the case is clearly within our decision in the Noce case. More than that, however, it seems to us that Section 605 has no application whatever to a telephone communication made and completed within the boundaries of a foreign country. Section 152 of the Communications Act expressly limits applicability of the entire chapter, which includes the wire tap section, to communications which originate or are received within designated geographic areás. In pertinent part, the section read as follows: “The provisions of this chapter shall apply to all interstate and foreign communication by wire or radio . . . which originates and/or is received within the United States. For the purposes of the Communications Act, the “United States” means 'the continental area and United States territories and possessions, except the Canal Zone. Section 153(g). The telephone communication here was neither originated nor received within the area described by the Communications Act. Consequently, there is no statutory restraint on interception. In reaching this conclusion we have not overlooked the distinction between the regulatory- powers of the Federal Communications Commission set out in the first part of the Act and the prohibitions of Section 605. In commenting on the distinction in Weiss v. United States, 308 US 321, 84 L ed 298, 60 S Ct 269, the Supreme Court [774] did not exclude reference to the first part of the Act for the purpose of determining the applicability of Section 605 to specific systems of communication. Certainly its decision in On Lee v. United States, 343 US 747, 96 L ed 1270, 72 S Ct 967, rejects any such restriction in the ascertainment of the Congressional intent in regard to the Act. See also: Casey v. United States, 191 F2d 1 (CA9th Cir 1951), reversed on other grounds 343 US 808, 96 L ed 1317, 72 S Ct 999. As we pointed out in the Noce case, there is no constitutional prohibition against the use of wire tap evidence in a Federal criminal proceedings. Olmsstead v. United States, 277 US 438, 72 L ed 944, 48 S Ct 564. Thus, it was not error to admit evidence of the monitored telephone call. And since it was not a result of illegally obtained evidence, the accused’s pretrial statement was also properly admitted. The decision of the board of review is affirmed.