# Amicus Curiae Brief — Wuliger v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0929%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1191

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0929%3A3. Public record. Not legal advice.