Evening star., 1938-02-12
APPEAL MAY FOIL
D|ETzS VICTORY
Ban Of Tapped Evidence
Likely to End Gaming
Case, However.

Prosecuting officials discussed today
the effect of ruling late yesterday
By Justice Joseph w. Cox outlawing
all wiretapping evidence in the Dis
trict regardless of whether the inter-
cepted calls cross a State line.
. It was admitted freely that the deci-
sion, unless reversed, will mean the
end of the William (Jewboy) Dietz
conspiracy case, which represents the
second major effort in a decade to
smash the loyal gambling racket. and
will take from police and Federal Off
GERS perhaps their most effective
weapon against local hwbreakers.
The possibility of appealing from
the ruling of the District Court justice
was the focal point Of the discussion.
Unless some means can be found to in
woke the jurisdiction OF the United
States Court of Appeals, which seemed
doubtful, Justice Cox's ruling will be
ANAL.
Nol-prossing Probable.
In that case. said Acting United
States Attorney David A. Pine. the in
dictment against Dietz and his 81 al
legged fellow conspirators will be mol
pressed. since the Governments case
Is based substantially on evidence OBJ
tanned over tapped telephone wires.
DietZ and his co-defendantS, who in
clude five policemen. were indicted
July 2 last, following sensational
1F ~,
of by foray against Dietz's Albee
Building headquarters, from which
horse race information allegedly was
broa dcast to scores of bookmakers The
raids followed months of patient listen
ing over tapped wires by police and
Federal operatives. who obtained evi-
dence deemed absolutely necessary for
trial OF the case.
Justice Cox's opinion concerned mo-
tions to quash the Dietz search war
rants and to suppress the evidence
found by the raiders.
The question of wiretapping was in
volved because the warrants were
based on aff1davits containing in
formation obtained over tapped wires.
A. Gallagher and William B. O'Con-
nell, who represented Dietz, contended
the recent Supreme Court decision in
the so-called Nardone case barred the
use Of such evidence in Federal courts.
The Government retorted that the de-
cision, which interpreted the Federal
communications Act, concerned only
interstate calls.
Since the decision by Justice Cox
to grant the defense motions is not a
f1nal judgment, no appeal can be
taken, Mr.. Pine explained.
Appeal May Be Opened.
There still remains before the court,
however, a motion by one of the al
legged conspirators. Harry Young, to
uuash the conspiracy indictment.
This motion likewise is predicated on
the illegality of wiretapping, and
should Justice Cox decide it similarly
on that ground. his decision would
constitute final Judgment, and the
Government could appeal. Other ques-
tions, however, are involved in the mo-
tion. and might readily provide basis
for ruling. Should the court act on
the motion on other grounds than
wiretapping. an appeal would be fruit
less so far is a determination of that
important question is concerned.
Young is represented by Attorney Irwin
Goldstein.
In case an avenue of appeal opens,
the district attorney is expected to act
Immediately. provided necessary au-
thorization from the Solicitor General
u obtained.
Should Justice Cox's ruling stand IS
law a retrial Of the liquor conspiracy
case, which ended in the conviction
two years ago of is persons, will be i'm
possible. All but five of those found
guilty have served their sentences, but
the five appealed and obtained re-
versal. The list Of those awaiting re-
trial is headed by Arthur Bartolozzi of
Trenton, N. j., who allegedly furnished
Washington with about 5000 gallons
Of alcohol a week
Decision Based on Intention.
Justice Cox's decision was based on
Q belief that Congress intended in the
Federal Communications Act to pro-
hibit wiretapping as matter Of policy.
and that there was no indication in
the law that the policy should not ap-
ply to the District, where Congress has
plenary power.
Referring to the case of Nardone VS..
United States. in which the Supreme
Court decided December 20 that evil
dence obtained by Federal officers by
tapping interstate wires was inadmis-
sible in a Federal court, Justice Cox
said the Supreme Court actually con-
sidered the broad question of wiretap-
ping without regard to whether inter-
state or intrastate calls were involved.
The question for decision, the i'm
portance of which is expressly recog-
nfsed," said Justice Cox, referring to
the Nardone case, lis not confined to
intercepted interstate messages, but
applies to intercepted messages gen.
orally.
The ethical considerations that
support the policy of excluding in
tercepted interstate messages in the
District Of Columbia would seem to ap-
ply with equal force to intercepted
local messages.
Secs Consistency as Aim,
1T is not to be assumed that Con-
kress intended diverse and hostile rules
for like situations. National, consist
ent procedure is vital to the admins
tration of the law. And a legislative
regulation of procedure under certain
conditions or as to part of a class
should be accepted by the courts. in
the absence Of clear contrary inten-
ton. as establishing the policy to be
applied under like conditions or to all
Of the class"
Justice Cox attempted to reconcile
the Nardone case with the Supreme
Courts decision several years ago in
the Olmstead case. which held that
wiretapping evidence, even though
illegally obtained. might be used in
FedarN1 trials netueen the dafAs ~