Amicus Curiae Brief — Wuliger v. United States

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NO. 93-946

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Supreme Gout, tS.

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i FEB 38 1994 |

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OrrtG HE CLERK

[ GFEICE OF Wie CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

WILLIAM T. WULIGER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF OF AMICUS CURIAE, OHIO

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, IN SUPPORT OF POSITION OF

PETITIONER WILLIAM T. WULIGER

JOHN S. PYLE, ESQ.

526 Superior Avenue, N.E.

Cleveland, Ohio 44114

(216) 696-6122

Attorney for Amicus Curiae

Ohio Association of Criminal

Defense Lawyers

i

TABLE OF CONTENTS

Page

BARRE Gr Pe a i ve ho es RR aR iii

er ee a ee ee 1

Statement of the Case and the Facts........... 4

Reasons For Granting Petitioner’s Writ ........ 4

I. CERTIORARI SHOULD BE GRANTED SO THAT

THIS COURT MAY CONSIDER WHETHER THE

PRESENTATION BY AN ATTORNEY OF

EVIDENCE DEFINED BY THE WIRETAP ACT AS

ADMISSIBLE CAN CONSTITUTE CRIMINAL

IT. THE SIXTH CIRCUIT’S OPINION, HOLDING

THAT_AN_ ATTORNEY MAY BE SUBJECT TO

CRIMINAL SANCTIONS FOR PRESENTING

AD BLE EVIDEN' R EVEN ARGUABLY

AD IBLE _ EVIDEN INTRA VENES

FUNDAMENTAL CONSTITUTIONAL

PROVISIONS RELATING TO THE ATTORNEY'S

PR ANDI THE S

RIGHT TO DUE PROCESS OF LAW AND THE

COURT SYSTEM’S AUTHORITY TO REGULATE

SE Sek 4 kW ow ek bce babes 6h eek 6 11

III. THE SIXTH CIRCUIT’S DECISION FURTHER

DIVID THE E ICIA

THE MEANING AND SCOPE OF THE WIRETAP

ACT _AND_ RETROACTIVELY ESTABLISHES

ARBITR TION

CLASSES OF PEOPLE WHO MAY OR MAY NOT

BE PROSECUTED FOR VIOLATIONS OF 18

U, BEER Sec eate be Vuusesersocses 23

CONGIUEEOEL 0 oa kis be 31

iii

TABLE OF AUTHORITIES

Cases

Page

Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E.

2d 910 (C.P. Stark County, 1974) ...... 13, 14

Cooper v. Cooper, unreported, C.A. Cuyahoga County,

Case Nos. 49605 & 50022 (1/23/86) ...... 14

unreported, C.A. Summit County,

Case No. C.A. 8951 (11/29/78) .......... 14

Fultz v. Gil 942 F.2d 396 (6th Cir., 1991) .... 13

Gelbrand v. United States, 408 U.S. 41 (1972) ..... 6

Heggy v. Heggy, 944 F.2d 1537 (10th Cir., 1991),

cert denied 112 S. Ct. 1514 (1992) ........ 23

In re Grand Jury Proceedings, 613 F.2d 1171

ES 6

In re Harkins, 624 F.2d 1160 (3rd Cir., 1980) ...... 6

Jacks v. Duckworth, 484 F. Supp. 1366

(D. Ind., 1980), aff'd 651 F.2d 480

en 24

Lam Lek ng v. U.S. Drug Enfor t in.

929 F.2d 729 (D.C. Cir., 1991) ............ 5

M | Mechanical &

Sentai anne eee Supp. 1183

SI na Sc ecb whcececceccecnes -

iv

Page

Newcomb v. Ingle. 944 F.2d 1534 (10th Cir., 1991),

cert. denied 112 S. Ct. 903 (1992) ......... 23

Phillips v. Warden, State Prison, 220 Conn. 112,

oe ek ee are 18

Rice v. Rice, 951 F.2d 942 (8th Cir., 1991) ....... 20

Simpson vy. Simpson, 490 F.2d 803 (Sth Cir., 1974) . 13

United States v. Bragan, 499 F.2d 1376

ea Se ns wa 5, 12

United States v. Caron, 474 F.2d 506

EE i eas og al a ks he wa AS 12, 24

United States v. Clemente, 482 F. 482 F. Supp. 102

(D.N.Y., 1979), aff'd 663 F.2d 207 ......... 5

United States v. DeFalco, 644 F.2d 132

RS ela a ed a ae alg oa Gs 18

United States v. Eschavaria - Olarte, 904 F.2d 1391

I a ee 12, 24

United States v. Johnson, 539 F.2d 181

(D.C. Cir., 1976), cert. denied

ee ee a ee bare -e cs 10, 24

United States v. Jones, 542 F.2d 661

re 13

United States v. Liddy, 354, F.Supp. 217

Gg MOE wo eis bcc eeeeereedenstnnss 8

Page

United States v. McLain, 823 F.2d 1457

gS RR Ror aon aes 18

United States v. Scavo, 593 F.2d 837

a ook oo % he ok he 10, 12, 24

United States v. Sisca, 503 F.2d 1337

(2nd Cir., 1974), cert. denied

ee We OE os hc vk eka eo eee kccs 10, 24

United States v. Vest, 813 F.2d 477

CE a ok ade oa whe wen awace 24

Walder v. United States, 347 U.S. 62 (1954) ...... 29

Statutes

Re Bae OEE 6 vic kd cde eee eee ee 7,274,231

5G Gh ee 0 8 oS ra kee 8, 29

OD SFA: eee Cee 6s keke s ole 6, 29

Se Us Oe oo ek ccc ea eee Se ea 7

Cone me. Ge Fs aes soo oh eee ee 30

eo ae Pe a 30

Miscellaneous

Code of Professional Responsibility ............ 11

1

Introduction

Title III of the Omnibus Crime Control And Safe

Streets Act of 1968 (hereinafter referred to as "the Act")

has been the basis for prosecutions against persons who

have unlawfully intercepted, used or disclosed the wire

communications of others. The majority of these cases

have been prosecutions against an individual solely

because he or she allegedly engaged in an unlawful

interception. A few cases have been prosecutions

against a defendant for both wiretapping and using or

disclosing the contents of the intercepted wire

communication. Until the prosecution of William T.

Wuliger in the case sub judice, no attorney had ever

been prosecuted solely for using information from a

wire interception as evidence on the record during the

course of formal judicial proceedings.

Upon review of this case, the United States Court

of Appeals for the Sixth Circuit has acknowledged that

it was confronted with a number of novel and

2

significant issues. However, its decision created more

problems than it resolved, and fostered implications so

vast as to threaten the very foundations of the adversary

system. For instance, the Sixth Circuit has construed

this Act to mean that it is criminal to use the contents of

a wire interception even if the victim of the interception

expressly consents to that use.

Similarly, the Sixth Circuit has indicated that,

even in the face of a waiver which would render

admissible the evidence from an interception, any

subsequent use by an attorney in an attempt to present

such evidence is criminal.

Furthermore, the Sixth Circuit has held that, with

the possible exception of prosecuting attorneys, it

constitutes criminal misconduct for a lawyer to use the

contents of the a wire interception solely for the purpose

of impeaching the subject of a wire interception during

judicial proceedings.

Finally, and, in certain respects, most

3

significantly, the Sixth Circuit has construed the good

faith provisions of the Act in such a way as to force

attorneys to ignore both legal precedent and their ethical

duty to zealously represent their clients, for fear of

criminal prosecution.

In so doing, the Sixth Circuit has construed the

Act in such a manner as to create absurd and

devastating results. It has invaded the province of the

state courts, impaired the independence of the judiciary

and wreaked havoc upon the adversary system. It has

also arbitrarily created one set of rules for federal

prosecutors and a different, far more intrusive and

stringent set of rules, destructive of the independence of

the remainder of the bar.

For the reasons that follow, the Ohio Association

of Criminal Defense Lawyers (hereinafter “Amicus"),

respectfully submits that the instant case presents issues

of such magnitude as to warrant this Court's attention.

4

Statement of the Case and the Facts

Amicus hereby incorporates by reference the

Statement of the Case And the Facts Set Forth in

petitioner William T. Wuliger’s Petition For A Writ of

Certiorari, the same as if fully rewritten herein.

R For Granting Petitioner's Writ

I. RARI SH BE THAT

THIS COURT MAY CONSIDER WHETHER THE

PRESENTATION BY _AN_ ATTORNEY __ OF

BY THE WIR ACT AS

IN IMINAL

CONDUCT.

The Sixth Circuit's decision in the case at bar

holds that an attorney, or at least those attorneys who

are not federal prosecutors, may be prosecuted and

convicted solely for using the contents of an unlawful

wire interception as evidence during formal legal

proceedings: (1) Even though the subject of the wire

interception has expressly consented to such use; (2)

Even though such evidence would correctly be deemed

admissible under the provisions of the Act; and (3) Even

eat ia

5

though the attorney's use of such evidence was in

conformity with legal precedent of the court system in

which such use of evidence occurred.

If the "use" provisions of the Act were designed

to protect an individual’s interest in maintaining the

privacy of his wire communications, as has been widely

recognized,’ then the further prosecution of petitioner

Wuliger can serve no statutory purpose, since Polly

Ricupero agreed, by and through her attorney, that

Wuliger would be permitted to use her intercepted

communications for purposes of his cross-examination

of her. At least one court has held that, upon the

consent of the subject of an unlawful wiretap, the

contents of his intercepted communications become

admissible evidence. United States v. Bragan, 499 F.2d

1376 (4th Cir., 1974). It would be absurd and contrary

See, e.g., Lam Lek Chong v. U.S. Drug Enforcement

Admin., 929 F.2d 729 (D.C. Cir., 1991); United States v.

Clemente, 482 F. 482 F. Supp. 102 (D.N.Y., 1979), aff'd

663 F.2d 207.

6

to the purposes of the Act to conclude that evidence

may be admissible while, at the same time, to conclude

that the attorney who presents the admissible evidence

is thereby committing a crime.”

For the same reasons, the portion of the Sixth

Circuit's opinion dealing with petitioner's waiver

argument cannot withstand close scrutiny. Essentially,

petitioner has argued that the tape recordings of Polly

Ricupero’s wire communications were admissible,

pursuant to 18 U.S.C. § 2518 (10)(a), because Mrs.

Ricupero’s failure to file a motion to suppress or for a

protective order constituted a waiver regarding

admissibility. The Sixth Circuit acknowledged that

Polly Ricupero may have waived that issue, but held,

*One of the primary purposes of the suppression

provisions of the Act is to ensure that courts do not

become partners to illegal conduct. E.g. Gelbrand _v.

United States, 408 U.S. 41 (1972); In re Harkins, 624 F.2d

1160 (3rd Cir., 1980); In re Grand Jury Proceedings, 613

F.2d 1171 (D.C. Cir., 1979). Thus, such evidence cannot

be admissible unless it is lawful for an attorney to

proffer such evidence.

eT

nevertheless, that the admissibility or inadmissibility of

the tapes was irrelevant to the question of Wuliger’s

criminal liability.

In other words, an attorney who relies on |

established law as to waiver and "consent to use” - and,

thereby, fulfills his ethical obligation to present

admissible evidence favorable to his client — risks

criminal sanctions!

The Sixth Circuit was willing to overlook this

absurdity on the apparent basis that 18 U.S.C. § 2511

contains no express exception excluding such

evidentiary uses from the scope of proscribed conduct.

What the Sixth Circuit failed to realize, however, was

that there are a variety of implied exceptions to the use

provisions of the Act which courts have recognized in

order to effectuate the purposes of the Act and to avoid

absurd consequences.’

*For instance, it is beyond dispute that it is lawful

for a civil defendant in a § 2520 suit to use the contents

8

The implications of the Sixth Circuit's opinion are

that there exists one body of law which governs the

admissibility of evidence derived from wire

interceptions and a different and independent body of

law applicable to the question of whether an attorney

who uses such admissible evidence thereby commits a

*

crime. However, the language of the Act itself militates

against such a dichotomy. Section 2515 provides:

Whenever any wire or oral communication

has been intercepted, no part of the

contents of such communication and no

evidence derived therefrom may be

received in evidence in any trial, hearing,

or other proceeding in or before any court,

grand jury, department, officer, agency,

regulatory body, legislative committee, or

other authority of the United States, a

State, or a political subdivision thereof if

of a even an unlawful wire interception for purpose of

presenting his defense. (McQuade v. Michael Gassner

M ical ical Contra Inc., 587 F. Supp.

1183 (D. Conn., 1984)), just as it is lawful for a

prosecutor to use such information when presenting his

case in chief in a § 2511 prosecution (United States v.

Liddy, 354, F.Supp. 217 (D.C., 1973)). Thus, the lack of

an express exception to § 2511 liability is hardly

dispositive of this issue.

9

the disclosure of that information would

be in violation of this chapter. (Emphasis

added).

Thus, pursuant to the plain meaning of this

statutory provision, the act of presenting admissible

evidence cannot constitute criminal conduct. In short,

because there cannot be two difference standards for

judging admissibility and criminality, if an attorney

presents admissible evidence, he commits no crime.

It may still be argued that the language of the

Act does not contain any provision which indicates that

an impeachment use or a party’s consent to use renders

such evidence admissible. For the reasons set forth

above, amicus submits that such an argument is

unpersuasive. However, even assuming that such an

argument has validity, it is, nevertheless, beyond

legitimate dispute that evidence derived from even an

unlawful wiretap is admissible following a waiver by

the subject of the interception. 18 U.S.C. § 2518(10)(a)

provides a mechanism for the suppression of such

10

evidence by an aggrieved party and further provides

that such "...motion shall be made before the trial,

hearing, or proceeding unless there was no opportunity

to make such motion or the person was not aware of

the grounds of the motion." (Emphasis added). If such

a motion is not timely asserted, the issue is deemed

waived and the tainted evidence is deemed properly

admissible. E.g., United States v. Scavo, 593 F.2d 837

(8th Cir., 1979); United States v. Johnson, 539 F.2d 181

(D.C. Cir., 1976), cert. denied 429 U.S. 1061); United

States v. Sisca, 503 F.2d 1337 (2nd Cir., 1974), cert.

denied 420 U.S. 1005. However, as expressly noted in

§ 2515, such evidence can be deemed admissible only if

its disclosure does not violate the Act.

In the case sub judice, petitioner Wuliger

presented the alleged tainted evidence following a

waiver by the subject of the interception. Accordingly,

the evidence was admissible and his use thereof lawful.

: a?

11

Il. THE SIXTH CIRCUIT’S OPINION, HOLDING

THAT _AN_ ATTORNEY MAY BE SUBJECT TO

CR A ANCTIONS _FOR

ADMISSIBLE EVIDENCE OR E ARGUABLY

AD IBL EVIDEN'

FUNDAMENTAL CONSTITUTIONAL

PROVISIONS RELATING TO THE ATTORNEY'S

PRIVILEGES AND IMMUNITIES, THE CLIENT’S

RIGHT TO DUE PROCESS OF LAW AND THE

COURT SYSTEM’S AUTHORITY TO REGULATE

ITS AFFAIRS.

This Court has, on occasion, taken note of the

importance of zealous advocacy in our judicial system.

In both Maness v. Meyers, 419 U.S. 449 (1975) and In re

Watts, 190 U.S. 1 (1903), this Court has taken the

position that the role of an attorney is so important to

the administration of justice and to a client’s right to

due process of law that he should not be subject to

punishment for the good faith performance of his

duties.

As discussed more fully in petitioner Wuliger’s

petition, the Code of Professional Responsibility sets

forth a variety of professional duties which a litigator

must strive to fulfill. Pursuant to those duties, it is

12

incumbent upon a trial attorney to explore, use and

present evidence which may be favorable to his client,

provided that there exists at least a good faith argument

in support of the admissibility thereof.

Let us assume for the sake of argument that

Wuliger knew that Polly Ricupero’s’ wire

communications were intercepted without her

knowledge or consent. It is, nevertheless, the position

of amicus that Wuliger’s professional obligations would

have required him to present such evidence because

there existed a body of law holding that even

unlawfully acquired information may be used for

impeachment purposes‘ or following the consent’ or

waiver’ of the intercepted party. Moreover, there also

*E.g., United States v. Eschavaria - Olarte, 904 F.2d

1391 (9th Cir., 1990); United States v. Caron, 474 F.2d

506 (5th Cir., 1973).

*E.g., United States v. Bragan, supra

‘E.g., United States v. Scavo, supra.

13

existed substantial precedent for the proposition that,

with or without consent to a wiretap, a person may

lawfully intercept the wire communications of his or her

spouse within the marital residence while the parties are

still residing as husband and wife.’ Moreover, it must

be noted that, at the time that Wuliger used these tapes,

the Sixth Circuit had not yet ruled on any of those

issues. Domestic relations courts within Wuliger’s

.Z. n, 490 F.2d 803 (5th Cir.,

1974); Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E. 2d

910 (C.P. Stark County, 1974).

"In United States v. Jones, 542 F.2d 661 (6th Cir,,

1976), the Sixth Circuit had refused to recognize a

spousal exception, but the facts of Jones did not involve

spouses still living together within the marital residence.

Although the Jones court strongly indicated that it

would not deem that additional fact to be dispositive,

such a suggestion, however strongly made, remains

dicta. Thus, it was still arguable even in the Sixth

Circuit in 1989 that interspousal taps are not criminal if

made in the marital home during cohabitation, as had

been recognized in Simpson _v. Simpson, supra, and

other cases. It should also be noted that the Sixth

Circuit’s opinion in Fultz v. Gilliam, 942 F.2d 396 (6th

Cir., 1991) -- upon which the Sixth Circuit relied in the

case at bar - was not decided until two years after the

alleged conduct referenced in the indictment herein.

14

state, on the other hand, had ruled such evidence

admissible on a variety of grounds and had, in fact,

specifically recognized the impeachment and spousal

exceptions to the Act.’

Whether or not those various grounds for

admissibility are ultimately recognized by the Sixth

Circuit or by this Court is irrelevant to the issue of

Wuliger’s guilt or innocence. Amicus is not contending

here that "mistake of law" necessarily and under all

circumstances absolves a defendant of culpability for his

criminal misconduct. Rather, it is the contention of

amicus that, whether an attorney is correct or incorrect

in his assessment of how a given court will view his

position as to the bases for the admissibility of wiretap-

related evidence, it is essential to the adversary system

%E.g., Beaber v. Beaber, supra; see also, Cooper v.

Cooper, unreported, C.A. Cuyahoga County, Case Nos.

49605 & 50022 (1/23/86); Fluharty v. Fluharty,

unreported, C.A. Summit County, Case No. C.A. 8951

(11/29/78).

15

that he be granted sufficient latitude to represent his

client based on any position which is reasonably

arguable in good faith. Amicus respectfully submits

that, without such latitude, it is impossible for a litigator

to function in a meaningfully adversarial role within the

judicial system.

The inevitable result of the Sixth Circuit’s

decision in this case, if permitted to stand, will be a

chilling effect on the bar in general and an

institutionalized conflict of interest between attorneys

and the clients they represent. In sum, the client’s right

to the effective and zealous assistance of counsel will be

undermined.

It is hardly unlikely that two classes of private-

sector attorneys would develop as a result of the

approach developed by the Sixth Circuit: (1) Those who

simply will not risk the potential consequences of ever

using even clearly lawfully taped evidence, regardless

of the strength of the legal position favoring such use;

16

and (2) Those who will utilize such evidence in a covert

manner so that the existence of any such recordings

cannot be discovered. In the former case, the client’s

right to zealous legal representation will be

emasculated; in the latter instance, the trial court —

which should be the ultimate arbiter of admissibility

questions — will never be presented with the

opportunity to distinguish between lawfully and

unlawfully acquired tapes or between admissible or

inadmissible evidence. Nor will the trial court be in a

position to determine whether counsel is using

derivative evidence, which would be excludable as “fruit

of the poisonous tree”.

In the case sub judice, petitioner Wuliger was

openly attempting to explore and present evidence on

the record for an ultimate ruling by the trial court as to

its admissibility. In so doing, he was relying on the

representations of his client, precedent existing within

Ohio’s judicial system and case law from various federal

17

jurisdictions, as a dedicated trial attorney is ethically

required to do.

Amicus respectfully submits that any construction

of the Act which nullifies a lawyer's ethical duties and

results in such a chilling effect on the fulfillment of his

professional role would violate not only the client’s

rights to due process of law and adequate iegal

representation, but also the attorney’s right to free

speech and the liberty interests, privileges and

immunities relating to the practice of his profession.

Beyond the damage to these individual rights,

however, is the systemic harm which will inevitably

result from such a construction of the Act. In every

case involving the tape recorded conversations of third

parties, the lawyer will be confronted with an

unavoidable conflict of interest, if the Sixth Circuit’s

decision is permitted to stand. Due to the ever-present

risk that he will be subject to criminal prosecution for

an evidentiary use of taped materials, a lawyer's

ee 7

18

independent judgment and undivided loyalty to his

client will, of necessity, be subject to improper influence.

It has consistently been held that a client is denied the

effective assistance of counsel when such a conflict

affects the zealousness of his attorney’s representation

of him. E.g., United States v. McLain, 823 F.2d 1457

(11th Cir., 1987); United States v. DeFalco, 644 F.2d 132

(3rd Cir., 1979); Phillips v. Warden, State Prison, 220

Conn. 112, 595 A.2d 1356 (1991). Pursuant to the Sixth

Circuit’s opinion, an attorney has a Hobson’s choice of

three alternatives when a client presents him with tape

recordings of a third party’s conversations: (1) To refuse

or withdraw from representation; (2) To continue

representing the client, but refuse to use the recordings,

even if they are arguably lawfully obtained and/or

admissible; or (3) To use the tape recordings despite the

risk of his own loss of liberty attendant to a § 2511

prosecution.

If an attorney is to function as a zealous legal

19

representative within the adversary system, he must be

free of such inherent conflicts of interest. He must be

free to present his client’s case in any manner which

serve the client’s interests, so long as his position is

based upon existing precedent or upon reasonable

arguments which can, in good faith, be advanced for the

modification, extension or reversal of existing law.

Without that freedom, he cannot practice his profession

within the framework of the adversary system as it has

existed since the inception of this country. The Sixth

Circuit’s opinion renders that zone of freedom illusory.

In addition to the devastating effect which the

Sixth Circuit’s opinion has upon a lawyer's role within

the adversary system, it also insidiously invades the

province of the state judiciary. According to the Sixth

Circuit, an attorney may not rely on legal precedent

issued by courts within his state as to the admissibility

of tape recorded evidence. Indeed, petitioner Wuliger

relied on Beaber v. Beaber, supra, which held that

20

evidence from a non-consensual wire interception was

admissible for impeachment purposes and pursuant to

what the court deemed to be the spousal exception to

the Wiretap Act. The Sixth Circuit held that,

notwithstanding such reliance, Wuliger will be subject

to a second trial on those charges. Amicus respectfully

submits that, if an attorney’s reliance on state court

precedent as to admissibility does not shield him from

prosecution for his use of taped evidence, then that

precedent is, as a practical matter, meaningless.” As a

practical matter, admissibility of intercepted evidence

will be determined not by the trial courts, but largely by

the Department of Justice, which will selectively

prosecute individuals such as Wuliger based on its view

of whether the corresponding federal courts seem

“Although the Sixth Circuit ruled that Wuliger

would be subject to a second trial notwithstanding his

reliance on precedent, at least one other federal circuit

court has taken a contrary view, holding that such

reliance obviates culpability. Rice v. Rice, 951 F.2d 942

(8th Cir., 1991).

21

receptive to such prosecutions. Quite simply, the state

courts will be taken "out of the loop", if attorneys who

practice in those courts may not rely on their precedent.

The Sixth Circuit’s decision also has the practical

effect of interfering with or supplanting the state court

system’s traditional disciplinary power, placing it

instead in the hands of the Justice Department. In the

normal course of a state court proceeding involving the

use or attempted use of recordings derived from a wire

intercept, the trial court would consider the

circumstances and make rulings as to the legality and

admissibility of such evidence. In such cases, an

attorney who made an adversarial use of such materials

in good faith reliance on precedent of the state’s court

system would be unlikely to incur any disciplinary

sanction, and certainly should not be subject to

prosecution. However, pursuant to the implications of

the Sixth Circuit’s opinion, that same attorney would

face federal prosecution. Thus, the state’s mechanism

22

for dealing internally with the alleged misconduct of

members of its bar - which has always functioned

admirably in policing unethical conduct -- would be

rendered superfluous. The ultimate power to target

attorneys for punitive acden would reside with the

Justice Department, whose standard would not be based

on whether the attorney was acting ethically and in

good faith, but solely upon whether he presented

allegedly tainted evidence.

Amicus respectfully submits that the Sixth

Circuit's opinion has created an interpretation of the Act

which is so intrusive upon, and inimical to, the

adversary system, the independence of the judiciary and

the traditional powers of the several states that it should

not be permitted to remain standing. Accordingly,

amicus submits that Wuliger’s petition for a writ of

certiorari warrants this Court's attention.

23

Ill. THE SIXTH CIR S DECISION FURTHER

DIVIDES THE FEDERAL JUDICIARY AS TO

THE AND PE OF THE WIRETAP

ACT _AND_ RETROACTIVELY ESTABLISHES

ARBITRARY DISTINCTIONS BETWEEN

CLASSES OF PEOPLE WHO MAY OR MAY NOT

BE PROSECUTED FOR VIOLATIONS OF 18

U.S.C. § 2511.

For a number of years, and even before the Sixth

Circuit issued its decision herein, the various federal

circuit courts of appeals have been in conflict as to the

meaning and scope of the Act, at least as it relates to the

legality of interfamilial wiretaps.’ The decision of the

Sixth Circuit in the case at bar serves only to create

further division of opinion. For instance, the Sixth

“As noted in Wuliger’s petition, at pages 44-5, the

Second and Fifth Circuits recognized an interspousal

exception in 1989, whereas the Fourth and Eighth

Circuits did not. Since that time, federal courts have

continued to struggle with the question of the legality

of interceptions within a family unit, as reflected in the

10th Circuit’s conclusion that an interspousal wiretap is

unlawful, whereas the interception one’s child

communication is lawful. See Newcomb v. Ingle, 944

F.2d 1534 (10th Cir., 1991), cert. denied 112 S. Ct. 903

(1992), and Heggy v. Heggy, 944 F.2d 1537 (10th Cir.,

1991), cert denied 112 S. Ct. 1514 (1992).

AWB TUM Sethe Swat oalebad” > Gel

24

Circuit's rejection of petitioner Wuliger’s "consent-to-

use" defense is in direct conflict with the law of the

Fourth Circuit as set forth in United States v. Bragan,

supra. Similarly, the Sixth Circuit’s rejection of

Wuliger’s waiver argument is in conflict with the

opinion of the Second, Eighth and District of Columbia

Circuits, as expressed in United States v. Sisca, supra;

United States _v. Scavo, supra; and United States _v.

Johnson, supra. In addition, the Sixth Circuit's rejection

of Wuliger’s argument that the contents of a wire

interception may be used for impeachment purposes

creates a conflict with the First, Fifth, Seventh and Ninth

Circuits, as set forth in United States v. Vest, 813 F.2d

477 (1st Cir., 1987); United States v. Caron, supra; Jacks

v. Duckworth, 484 F. Supp. 1366 (D. Ind., 1980), aff'd

651 F.2d 480 (7th Cir., 1981); and United States _v.

Eschavaria - Olarte, supra.

Thus, following the Sixth Circuit’s decision

herein, the various circuits are more "Balkanized" than

25

they have ever been with respect to the meaning and

scope of the Act. The resulting and continuing

uncertainty as to nature and scope of proscribed

conduct under the Act is of deep concern to the private

bar.

This is particularly so where lawyers such as

Wuliger can be prosecuted according to the

geographical location where his conduct occurs. As

noted in Wuliger’s petition, based upon precedent in

various federal jurisdictions, Wuliger could not have

been prosecuted in the First, Second, Fourth, Fifth,

Seventh, Eighth, Ninth, Eleventh or District of Columbia

Circuits -- an area comprising 36 states, one

unincorporated territory, one trust territory and the

District of Columbia! Amicus submits that the

determinative test or criminal culpability under the

Wiretap Act should not be the geographical location of

the defendant.

It is also troubling to the bar that, in addition to

26

discounting petitioner Wuliger’s reliance on existing

State and federal precedent, the Sixth Circuit's opinion

provides that Wuliger will be subject to a second trial

based on Sixth Circuit rulings which were not rendered

until well after the conduct alleged by the government

in its indictment against Wuliger.

For instance, as noted above, the Sixth Circuit did

not hold, until 1991, that all non-consensual interspousal

interceptions are unlawful, regardless of whether the

Spouses were residing together as husband and wife at

the time of the interception. The Sixth Circuit's rulings

in this case as to the issues of impeachment use, waiver

and consent-to-use created new law, never before

reached or even foreshadowed by the court and

contrary to that of other jurisdictions. The retroactive

application of those novel Propositions to petitioner

Wuliger is deeply disturbing to members of the bar,

who are properly accustomed to practicing their

profession and making evidence-related decisions based

27

on existing precedent, rather than upon the fear of what

new approach another court may take at some later

date.

What is most disturbing to this amicus and its

membership, however, is that the Sixth Circuit creates

two classes of attorneys based satity upon whether their

client happens to be a private individual or the

government. According to the implications of the Sixth

Circuit's opinion, a prosecutor who uses unlawful

recordings following a criminal defendant’s waiver or

for purposes of impeaching a criminal defendant might

not be subject to prosecution for violation of § 2511,

whereas a private attorney who engages in precisely the

same conduct must stand trial.

Thus, for example, in a criminal proceeding, a

prosecutor may use an unlawfully acquired recording to

impeach the criminal defendant, but the defense

attorney may not use an unlawfully acquired recording

to impeach a key government witness.

¥

ee ee et ans

28

Similarly, pursuant to the Sixth Circuit's

reasoning, a prosecutor may use such tainted evidence

for impeachment purposes, but a civil attorney in a

domestic relations case may not use such evidence to

impeach the opposing party. The Sixth Circuit's

attempted justification of this artificial classification of

attorneys was that: (1) The truth finding function of the

courts is more important in criminal cases than in civil

cases; and (2) Criminal proceedings are always

conducted before a judge or magistrate, thus providing

immediate judicial intervention when necessary,

whereas civil discovery proceedings are not similarly

safeguarded.

Amicus submits that the Sixth Circuit is incorrect

on both counts. As to the truth-finding function of the

courts, amicus disputes that the discovery of the truth

in a criminal case is, per se, more important than it is in,

for instance, a domestic relations case where the custody

and welfare of minor children may be decided.

29

Moreover, as noted in Wuliger’s petition, the

impeachment exception to the Fourth Amendment

exclusionary rule was not designed to aid in the

determination of absolute truth, but to prevent a party

from perpetrating a fraud upon the court via false or

misleading testimony. Walder v. United States, 347 U.S.

62 (1954). Amicus submits that the integrity of the

courts is equally important in every case, regardless of

whether it is civil or criminal in nature.

As to the presence of judicial oversight of the use

of intercepted information, the Sixth Circuit ignores the

fact that both the Act and state law provide substantial

safeguards relative to any improper use of evidence

during pre-trial discovery. Sections 2515 and 2518

(10)(a) provide for the exclusion or suppression of any

such evidence. Moreover, under Ohio law, a party who

suspects that unlawful evidence will be utilized during

a deposition, or who witnesses the use of such evidence

during a deposition, may refuse to appear at deposition,

30

or adjourn the deposition if it has already commenced,

and immediately seek judicial intervention via a motion

for a protective order pursuant to Ohio R. Civ. P. 26(C)

and 30(D). Thus, there exist adequate safeguards in

civil actions to negate the Sixth Circuit’s concerns of

abuse due to a purported lack of judicial oversight. It

is quite simply not necessary to adopt the Sixth Circuit’s

flawed holding in order to police improper conduct. A

system already exists to provide for immediate judicial

oversight and not even the government has contended

that this system is not functioning well in that regard.

Finally, it appears that the distinction drawn by

the Sixth Circuit between prosecutors and private

attorneys is part of an unfortunate trend in which the

Justice Department is seeking to remove its attorneys

from the disciplinary supervision of the state courts. If

the Sixth Circuit’s opinion is permitted to stand, federal

Prosecutors will also apparently be free from the

supervision of the Sixth Circuit as well, at least as it

31

relates to the enforcement of §§ 2511, et seq. At the

same time, the Justice Department’s control over the

private bar will be vastly increased, thereby further

eroding the authority of the judiciary to control its own

evidentiary and disciplinary affairs.

Accordingly, amicus respectfully submits that this

case warrants this Court’s attention.

Conclusion

The decision of the Sixth Circuit, the review of

which is sought herein, presents unfortunate and

frightening implications of vast and pervasive

dimension. It portends a judicial system in which

attorneys can no longer rely upon existing precedent or

good faith arguments in deciding what evidence to

present in proceedings to which their clients are parties.

It portends a system in which the mere existence

of tape recorded evidence of any sort — lawful or

unlawful, admissible or inadmissible -- will necessarily

create such a conflict between the interests of the

32

attorney and those of his client that an attorney’s only

recourse will be to withdraw as counsel from the

particular case.

It further portends that the government will have

free reign to target attorneys for prosecution, not based

upon the nature of the attorney’s conduct, but upon the

geographical location of his practice.

Finally, it portends a future in which federal

prosecutors are insulated from criminal accountability

under the Wiretap Act even when they engage in

precisely the same conduct which would lead to the

prosecution of a non-governmental attorney.

Amicus respectfully submits that the Sixth

Circuit’s opinion carries implications so detrimental to

and destructive of the adversary system, the

independence of the judiciary and the sovereign power

of the states that certiorari should be granted herein so

that this Court may delineate the scope of the Act and

the standards to be applied in future prosecutions under

18 U.S.C. § 2511.

33

Respectfully submitted,

JOHN S. PYLE, ESQ.

1500 Leader Building

526 Superior Avenue, N.E.

Cleveland, Ohio 44114

(216) 696-6122

Attorney for Amicus Curiae

Ohio Association of

Criminal Defense Lawyers

WANE eB