Before BIGGS, Chief Judge, and HASTIE and FORMAN, Circuit Judges.
The appellant, Schwartz, was convicted of using the mails to defraud, 18 U.S.C.A. § 1341, solely on the basis of evidence produced by a "mail watch" placed by Hillegas, a postal inspector of the United States Post Office Department, on first class mail addressed to Schwartz. A "mail watch" or "mail cover" consists of the compiling of a record by a letter carrier of information appearing on the face of envelopes of letters addressed to specified persons. In the present case the procedure was successfully used to discover the names of Schwartz's victims which were then furnished to the Department of Justice by postal inspectors for the purpose of instituting criminal proceedings. The sole issue presented for our determination is whether this evidence was properly admissible against the appellant. A motion was made by the appellant to suppress the evidence thus obtained and was denied. D.C., 176 F.Supp. 613. At trial this motion was renewed, was again denied, and the questioned evidence admitted. The appellant was convicted and the appeal at bar followed.
The appellant contends that the information obtained through the "mail watch" was furnished to the Justice Department in contravention of certain Postal Regulations hereinafter set out and discussed, and that evidence so communicated to the Justice Department is inadmissible in a criminal proceeding. The court below concluded that the communication of the information by the postal authorities was in fact prohibited by the Postal Regulations, but concluded that evidence obtained as a result of a violation of such Regulations was admissible in a federal court. We agree that the evidence was admissible, but for the reason that there was no violation of Postal Regulations.
The Postal Regulations in existence prior to those in effect at the critical dates in the case at bar provided:
"Section 41.4 - Giving Information About Mail Matter
"(a) Restriction. Postmasters and others in the postal service shall not give to unauthorized persons information concerning mail matter. They shall furnish such information to post-office inspectors and may furnish it also to the sender, the addressee, or the authorized representative of either, when satisfactory identification has been established and the request is limited to information proper for the applicant to receive. Postmasters may give to officers of the law, upon proper identification, to aid in the apprehension of fugitives from justice, information regarding the addresses, return cards, or postmarks on mail matter, but shall not withhold such mail from the addressees or delay its delivery. If the information so given to such officers relates to a violation of the postal laws, the postmaster shall report his action immediately to the inspector in charge of the division in which his office is licated.
"(b) Exception for Official Request. Upon official request of a representative of another executive department, agency, or independent establishment of the Federal Government and the presentation of proper credentials, postmasters may, when practicable, furnish for official use information regarding the addresses, return cards, or postmarks on mail matter, provided the labor involved in complying with the request does not interfere with postal business, or result in material cost. Such mail shall not be withheld from the addressee nor delayed in delivery. When a postmaster is in doubt as to the advisability of complying with such a request, or material cost is involved, he should write to the First Assistant Postmaster General for instructions, except that in cases involving registered, insured, or collect-on-delivery mail he should submit the question to the Third Assistant Postmaster General, Division of Registered Mail."
In 1954, disclosure was made that the Postal Department had conducted a "mail watch" on the mail of a United States Senator and had turned over information compiled therefrom to the staff of a Senate Committee. A special Senate Subcommittee issued and forwarded to the Attorney General a report strongly disapproving the incident. S.Rep. No. 2510, 83rd Cong., 2d Sess. (1954), reprinted at 101 Cong.Rec. 2564 (1955). The Regulations were then redrafted and are set out in the current Postal Manual, parts 311.6 and 311.7. These parts provide:
"311.6 Mail Matter. Furnish information concerning mail or mailing permits to postal inspectors and to the sender, the addressee, or the authorized representative of either on proper identification. Do not give such information to others. * * *"
"311.7 Concerning Fugitives. Furnish to officers of the law, on proper identification, information regarding the addresses, return cards, or postmarks on mail to aid in the apprehension of fugitives from justice. Report the action immediately to the post office inspector in charge if the information furnished relates to a violation of the postal laws."
As to the procedure employed here the Regulations state:
"831.44 Mail Cover. Requests by postal inspectors in charge and postal inspectors for information regarding the addresses, return cards, or postmarks on mail, must be treated in strict confidence and complied with carefully and accurately. In ...