(concurring).
I concur in the result reached in both cases by the majority of the court; but I believe I should separately state certain individual views.
The injunction sought by petitioners in O'Rourke et al. v. Levine must be denied. A jury had been impaneled, trial had already begun, and some testimony had already been adduced, when the district court was importuned to affect future trial developments by an injunction order which, if granted, might limit the People’s further proof. The disruptive complications that ensue when federal judicial power is exercised to interfere with a state court criminal trial after testimony has been received there clearly dictate that we affirm the action below. A proper respect for the relation of the United States to the States and the Courts of the States under these circumstances permits, in my belief, no other result. If at trial it appears that Section 605 of the Federal Communications Act is violated by an unauthorized divulgence by a witness under oath of an intercepted communication the United States can enforce that violation against the witness by prosecuting him under § 501 of that Act. In fact, as I read the opinion of the Chief Justice speaking for a unanimous court in Benanti v. United States, 355 U.S. 96, at pages 103-106, 78 S.Ct. 155, 2 L.Ed.2d 126, even though the interception was authorized by a New York state wiretap order, the divulgence would be such a clear violation of the Federal Communications Act that federal prosecuting officers would be expected to so prosecute.
Though I also concur in the result the majority reaches in Pugach v. Dollinger and Kennedy, the problems presented to us in that situation are much more difficult to resolve. There trial is not under way, and an injunction issued by us in the exercise of our equity powers to preserve compliance with “the Supreme Law of the Land; * * * any Thing in the Constitution or Laws of any State to *745the Contrary notwithstanding,” will not disrupt a trial or create any confusion. Forbidding the introduction of wiretap testimony at a trial not yet begun would only serve to prevent counsel from introducing certain material; it would neither stay the criminal prosecution itself, nor embarrass the progress of a trial, nor require a mid-trial shift of strategy. And though New York, as well as the two other states in our Circuit, does not inquire how offered evidence was obtained, the quashing of wiretap evidence in advance of trial would not appear to be an unwarranted intrusion by us into State affairs inasmuch as the federal government has a very special interest in this field, an interest set forth by Congress in the Federal Communications Act with such thoroughness as to preempt the states from regulation save for certain stated exceptions not here applicable. Benanti v. United States, 1957, 355 U.S. 96, 103-106, 78 S.Ct. 155, 2 L.Ed. 126.
I receive the impression from reading the majority opinion that the majority, although having a deep and abiding respect for the supremacy clause, do not think that a federal court should ever interfere with the prosecution of a state criminal proceeding.
To such doctrine I cannot subscribe.
In order to preserve as best can be the pluralism of our form of government it is true that in the exercise of a proper judicial self-restraint we should ever hesitate to interfere with state criminal proceedings — even as here, where it is claimed that unless we do interfere there will be open and overt violations of an Act of Congress.
But it is also true that though, as a general policy, we should refuse to act, there are “exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent * * *” Chief Justice Stone speaking for the Court in Douglas v. City of Jeannette, 319 U.S. 157, at page 163, 63 S.Ct. 877, at page 881, 87 L.Ed. 1324.
Pugach v. Dollinger is an exceptional case, and it may well be that Judge Clark and Judge Medina are soundest in their approach to the problems it poses. I have hesitated to agree with them only because I have faith that there is no clear irreparable injury to Pugach at this time. I assume, arguendo, that divulgence of information obtained by wiretap at his Bronx County trial will do Pugach irreparable injury; but I am not willing also to assume that a New York state trial judge will permit such evidence to be admitted over the objection of defense counsel. After all, New York state judges, as we, were bound when they took office, to support the Constitution of the United States; and they are fully cognizant of Article VI, Clause 2 thereof:
“2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Schwartz v. State of Texas, 1952, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, and Benanti v. United States, supra, make clear, and all the opinions of the court in the present case recognize, that divulgence of the contents of a wiretap unless the divulgence is authorized by the sender will constitute a violation of Sections 605 and 501. It is therefore presumptuous to assume that any New York State trial judge will acquiesce to the commission of a crime against the United States in his presence in his courtroom by a witness testifying under oath.
Though I hope I have made myself clear that I expect that no evidence of intercepted communications will be admitted at trial and that it is principally because of this belief that I concur in the result reached by the majority, nevertheless if I believed otherwise I might still refuse to issue an injunction under *746the doctrine of Douglas v. City of Jeannette, supra. If the offered evidence is admitted, despite Benanti, supra, and if Pugach is convicted and his conviction is affirmed by the New York Court of Appeals — see People v. Dinan, 1959, 6 N.Y.2d 715, 185 N.Y.S.2d 806, 158 N.E.2d 501, certiorari denied, 361 U.S. 839, 80 S.Ct. 71, 4 L.Ed.2d 78; People v. Variano, 1959, 5 N.Y.2d 391, 185 N.Y.S.2d 1, 157 N.E.2d 857 — even then that conviction is subject to review by the Supreme Court. This possibility of a final federal review of a federal question is perhaps enough so that under Douglas v. City of Jeannette, supra, Pugach may have an adequate remedy at law; and an injunction ought not to issue.
Where a state persistently sanctions violation of federal law, due process considerations may arise, see Judge Medina’s concurring opinion in United States ex rel. Graziano v. McMann, 2 Cir., 1960, 275 F.2d 284. As I indicated in my majority opinion in Graziano, I am unpersuaded for I believe Schwartz v. State of Texas to be controlling. But my opinion in that case is hardly the final one, and since Judge Medina's position is well-reasoned, it affords plaintiff something more than a faint prospect that his expected state conviction will be reviewable by the Supreme Court on certiorari. The precise question has never been decided, and in light of the dicta in Salsburg v. State of Maryland, 1954, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281, and Wolf v. People of State of Colorado, 1948, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, the possibility of direct review is strong enough to justify my concurrence in the result reached by the majority. Nor should we overlook the possibility that the Supreme Court might grant certiorari to reconsider Schwartz v. State of Texas.
Furthermore, I should point out that I not only differ from the majority wherein they apparently suggest that a federal court should never interfere with a state criminal prosecution, but I also differ from them wherein they rely for their result upon the doctrine expressed in Stefanelli v. Minard, 1951, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. Without in the least detracting from the force of that opinion it is my belief that that case and its doctrine are alike inapplicable here. In Stefanelli whatever federal crime was present had been fully committed before the federal court was importuned to interfere with the State court proceedings. Here the threatened commission of federal crime is sought to be prevented by an application for relief to a federal court in advance of the occurrence. In the unlikely event a person were officially advised that his home was to be illegally searched by state officers on a particular date, I would suppose he could readily obtain injunctive relief from a federal court. It would be in this posture of affairs that the two situations would be similar.
One final point needs to be made. Normally it is not the province of a member of the federal judiciary to suggest to a United States District Attorney how he should perform his duties. I point out that in oral argument before this court sitting in banc counsel for the Pugach respondent-appellees did not deny that it was planned to offer wiretap evidence at that trial, and thereby did not deny to five federal judges in open court an intent to commit a federal crime. If such a crime is committed and remains unprosecuted after it has been stated by the U. S. Supreme Court in Schwartz v. State of Texas, supra, 344 U.S. at page 201, 73 S.Ct. at page 234, and by us here that the interests of the United States may be adequately protected through enforcement of the penal provisions of Section 501, there will have been a most extraordinary affront to this court. Accordingly I ask that the United States District Attorney for the Southern District of New York follow the proceedings in People v. Pugach with the closest attention. Similarly, I invite the attention of the United States District Attorney for the Eastern District of New York to the proceedings in People v. O’Rourke, etc.