Petition for Writ of Certiorari — Murdock v. United States

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In The ee nasa —

Supreme Court of the United States

October Term, 1995

HAROLD D. MURDOCK,

Petitioner,

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Ne H. Fink

Counsel of Record for Petitioner

185 Oakland Avenue, #250

Birmingham, Michigan 48009

(810) 258-3181

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether Title III of the Organized Crime Control Act

of 1968 bars the use by the government in a federal

criminal prosecution of tape recordings of telephone con-

versations made by a private party, in violation of its

provisions, but without the knowledge or participation of

the government.

TABLE OF CONTENTS

Page

Question Presented for Review ................606- i

TORRE OF SS a ics as ceicn soos ue eeetanenanees ii

Table of Authocities Cited ic iss iesscecedvics censors iii

Citations of the Decisions Below................... 1

Basis of Jurisdiction in this Court.................. 1

Stateshan TwOHWOG sy +.i 6k ks kee ee aeeenieeenbaetuaneres 1

Statacnamt of Une CA6e 65 iy ab es bcc adeedeseweveseaes 4

Reasons for Granting the Writ...............00006. 8

CORCIUGION 63k isons chee eee 29

TABLE OF AUTHORITIES CITED

Page

Cases

Ardestani v. I.N.S., 502 U.S. 129 (1991)...........-+-. 16

Elkins v. United States, 364 U.S. 206 (1960)........ 22, 24

Gelbard v. United States, 409 U.S. 41 (1972) ...... passim

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

SUD as kip ancvanebcscastweapesecveszecccccccs 16, 17

Heggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991)....... 21

Mapp v. Ohio, 367 U.S. 643 (1961) .....-------- +--+: 22

North Carolina v. Alford, 400 U.S. 25 (1970) ........--. 6

United States v. American Trucking Associations, 310

BR ID CRED o ccc ccc sencevassccsecerccoseccees 10, 18

United States v. Baranek, 903 F.2d 1068 (6th Cir.

Die dledddsdeadursiveccceetesascucsdeces 18, 19, 20

United States v. Calandra, 414 U.S. 338, 354 (1974) .... 25

United States v. Giordano, 416 U.S. 505 (1974) ..9, 28, 29

United States v. Jacobsen, 466 U.S. 109 (1984)...9, 25, 26

United States v. Jones, 542 F.2d 661 (6th Cir. 1976) .... 21

United States v. Ron Pair Enterprises, Inc., 489 U.S.

cc bbb abeeboeesddeccecovencesnscesecece 16

United States v. Underhill, 813 F.2d 105 (6th Cir.

EG Ler ie saccéersebeocceusacccocsee 15, 16, 18

United States v. Verdugo-Urquidez, 494 U.S. 259

ache Gh bbs seVeCanvadasrbnces vedccceccces 25

United States v. Vest, 813 F.2d 477 (1st Cir. 1987)... .passim

TABLE OF AUTHORITIES CITED - Continued

Page

Walter v. United States, 447 U.S. 649 (1980)........... 9, 26

Weeks v. United States, 232 U.S. 383 (1914)........... 22

CONSTITUTIONAL PROvISIONS, STATUTES

United States Constitution, Am. IV....22, 24, 25, 26, 27

United States Constitution, Am. XIV................ 24

OE a) RR a Pee eT rey ee PPE rer 27

i EIR Fs oh koa xsccas daccibrnrencn 1

Se ad We 66 Fils on bah n.cnendc ce tiarnane 10

BP Rees WF URE ck a ddenndtcesbincccecsspxinmls 7

MS Sees Oe rare. ehccaesscesssrovelarsn teu passim

Be ee ee ke a 6 o.n edie odo enawicnsce nd kavaxeh east 4

gS oe a | rr eereyT errr Tr rr rer 4

BO TBS: & TAD oa « on ke cade «gps cnkck ss) <ceaetensa 1

OTHER AUTHORITIES

James G. Carr, The Law of Electronic Surveillance

7 A ete ee er ey oe yt aoe 21

CITATIONS OF THE DECISIONS BELOW

The decision of the district court is not reported.

The decision of the Sixth Circuit Court of Appeals is

reported at 63 F.3d 1391 (6th Cir. 1995)

BASIS OF JURISDICTION IN THIS COURT

The Sixth Circuit Court of Appeals filed its opinion

affirming petitioner’s conviction on August 23, 1995.

Petitioner’s timely filed Motion for Rehearing and

Suggestion for Rehearing En Banc was denied by the

Sixth Circuit on October 6, 1995.

This Court has jurisdiction to review the decision of

the Sixth Circuit on writ of certiorari pursuant to 28

U.S.C. § 1254(1)

STATUTES INVOLVED

18 U.S.C. § 2511(1) provides:

(1) Except as otherwise specifically provided in this

chapter any person who -

(a) intentionally intercepts, endeavors to intercept,

or procures any other person to intercept or endeavor to

intercept, any wire, oral, or electronic communication;

(b) intentionally uses, endeavors to use, or procures

any other person to use or endeavor to use any electronic,

mechanical, or other device to intercept any oral commu-

nication when -

(i) such device is affixed to, or otherwise trans-

mits a signal through, a wire, cable, or other like

connection used in wire communication; or

(ii) such device transmits communications by

radio, or interferes with the transmission of

such communication; or

(iii) such person knows, or has reason to know,

that such device or any component thereof has

been sent through the mail or transported in

interstate or foreign commerce; or

(iv) such use or endeavor to use (A) takes

place on the premises of any business or other

commercial establishment the operations of

which affect interstate or, foreign commerce; or

(B) obtains or is for the purpose of obtaining

information relating to the operations of any

business or other commercial establishment the

operations of which affect interstate or foreign

commerce; or

(v) such person acts in the District of Colum-

bia, the Commonwealth of Puerto Rico, or any

territory or possession of the United States;

to any other person the contents of any wire, oral, or

electronic communication, knowing or having reason to

know that the information was obtained through the

interception of a wire, oral, or electronic communication

in violation of this subsection;

(d) intentionally uses, or endeavors to use, the con-

tents of any wire, oral, or electronic communication,

knowing or having reason to know that the information

was obtained through the interception of a wire, oral, or

electronic communication in violation of this subsection;

(e)(i) intentionally discloses, or endeavors to dis-

close, to any other person the contents of any wire, oral,

or electronic communication, intercepted by means

authorized by sections 2511(2)(A)(ii), 2511(b)-(c), 2511(e),

2516, and 2518 of this subchapter, (ii) knowing or having

reason to know tha’ the information was obtained

through the interception of such a communication in

connection with a criminal investigation, (iii) having

obtained or received the information in connection with a

criminal investigation, and (iv) with intent to improperly

obstruct, impede, or interfere with a duly authorized

criminal investigation, shall be punished as provided in

subsection (4) or shall be subject to suit as provided in

subsection (5).

18 U.S.C. § 2515 provides:

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communica-

tion 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 the disclosure of that information

would be in violation of this chapter.

STATEMENT OF THE CASE

The instant indictment charged, and Petitioner was

convicted of, income tax evasion, in violation of 26 U.S.C.

§ 7201. This is an “offense[] against the laws of the

United States” within the meaning of 18 U.S.C. § 3231.

Accordingly, the United States District Court for the East-

ern District of Michigan, the court of first instance, had

subject matter jurisdiction over the underlying criminal

case.

Petitioner Harold Murdock was President of the

Detroit School Board. The case at bar involves a prosecu-

tion for his alleged failure to report approximately

$90,000 in alleged bribes.

The Government's case rested on a series of tape

recordings of telephone conversations which were

secretly recorded by Defendant’s then-estranged wife.

The circumstances surrounding these surreptitious

recordings were developed at an evidentiary hearing in

the district court on September 24, 1993.

Georgia Murdock, who is now the petitioner’s ex-

wife, testified that. during 1985, she and the Petitioner

were separated but operated the Murdock Funeral Home

as business partners. Mrs. Murdock lived in a house next

to the funeral home, which was formerly the marital

home. There were four business telephones (under two

business lines) at the funeral home and four telephones

(under the same two numbers) in the private residence.

These telephones were used for both business and per-

sonal calls.

In the spring of 1985, Mrs. Murdock decided that she

would attach a recording device to the business telephone

extensions in her home in an effort to secure evidence of

her husband’s suspected infidelities and business impro-

prieties. She purchased a recorder and an instruction

manual and set up the equipment on two telephones in

her house.

Mrs. Murdock testified that she recorded conversa-

tions with this monitoring equipment for approximately

three months. During the time she was making the

recordings, she did not have any contact with law

enforcement agents.

At some point in 1986, after she had discontinued the

taping, Mrs. Murdock read a story in a Detroit newspaper

regarding a dispute involving the award of a contract to

supply milk to the Detroit Public Schools. She recalled an

intercepted conversation she had overheard between her

husband and an official of the dairy to which the contract

had been awarded, and concluded that what she had on

tape was her husband agreeing to accept a bribe.

She then made a master tape of conversations that

she felt incriminated her husband in a bribery conspiracy,

and mailed it anonymously to the dairy which had lost

the milk contract. The aggrieved dairy turned the tape

over to local authorities and to a newspaper. When the

newspaper published an account of the contents of the

tape, the federal government began an investigation

which resulted in the Petitioner’s Indictment in the

United States District Court for the Eastern District of

Michigan.

Petitioner’s motion to dismiss the indictment or sup-

press the tape-recorded evidence was denied by the dis-

trict court on the basis that because the tapes were made

on extension telephones, and what the trial judge con-

cluded was “in the ordinary course of business,” no

interception within the meaning of Title III of the Orga-

nized Crime Control Act of 1968 took place. Even if the

recordings did constitute “interceptions,” the district

court held, it would not suppress them because the gov-

ernment was not involved in their making, and “no deter-

rent effect is served by punishing the government for the

alleged wrongdoings of Mrs. Murdock.” (App. 51)

Petitioner entered an Alford plea of guilty (North Car-

olina v. Alford, 400 U.S. 25 (1970)), under a plea agreement

in which, pursuant to Rule 11(a)(2), F.R.Cr.P., he reserved

his right to appeal the denial of his motion to dismiss or

suppress. He was sentenced to serve a year and a day in

prison, but remains free on bond pending appeal.

The Sixth Circuit Court of Appeals held that Mrs.

Murdock’s actions did indeed constitute an interception

subject to the constraints of Title III, and the tapes were

accordingly unlawfully made, but declined to apply Title

III’s exclusionary rule.

That rule, set forth in 18 U.S.C. § 2515, is absolute on

its face, as the Sixth Circuit recognized. It provides, in

pertinent part that when “any wire or oral communica-

tion has been intercepted, no part of the contents of such

communication and no evidence derived therefrom” can

be used in any proceeding “if the disclosure of that

information would be in violation of” Title III.

Since the court held that the interception had in fact

been in violation of the statute, disclosure of the contents

of the interception would likewise be a violation, under

the provisions of 18 U.S.C. § 2511(1)(c), which forbids the

intentional disclosure of “the contents of any wire, oral,

or electronic communication, knowing or having reason

to know that the information was obtained through the

interception of a wire, oral, or electronic communication

in violation of” Title II.

Since the preconditions set out by § 2515 were clearly

met in this circumstance — the tapes were made in viola-

tion of Title III, and their disclosure would therefore

likewise be in violation of Title III - the plain language of

the statute would seem to require exclusion. Indeed, that

was precisely the conclusion reached by the First Circuit

Court of Appeals in United States v. Vest, 813 F.2d 477 (1st

Cir. 1987) , but the Sixth Circuit refused to follow Vest.

Instead, the court fashioned what it referred to as a

“clean hands” exception to the statute’s blanket rule of

exclusion: since the government played no part in the

unlawful interception, the exclusion of the evidence that

the language of the statute commands would have no

deterrent effect, and the exclusionary rule of the statute

would not be enforced. The court held:

Under the circumstances of this case, we find

that any privacy interest which the defendant

may have had is protected solely by his right to

bring a civil action against his former wife.

However, he does not enjoy the additional right

to the suppression of the interceptions where, as

here, the government took no part in the inter-

ceptions.

63 F.3d at 1403.

REASONS FOR GRANTING THE WRIT

The issue involved in the case at bar is perhaps not

“important” in the sense of generating a flood of litiga-

tion, but it is certainly “important” in a more basic sense:

because it concerns the interplay of the most important of

public and private rights, obligations, and interests. It

—— -arises at that crucial area where public and private

actions intersect to affect the most basic of individual

liberties: the right of personal privacy.

As noted above, the decision of the Sixth Circuit in

this case specifically rejects, and is directly contrary to,

that of the First Circuit in United States v. Vest, 813 F.2d

477 (1st Cir. 1987). If for no other reason, the grant of

certiorari would be appropriate in this case to resolve this

direct conflict between the circuits concerning this impor-

tant matter of Federal law.

However, this Court should be moved to act in this

case not simply because the issue would be resolved

differently in Boston than it would be in Cincinnati, or

because the First Circuit was right, and the Sixth wrong -

__although that is surely so. Rather, certiorari should be

granted because the decision below is so deeply flawed,

and so badly in conflict with basic principles of law

announced by this Court in a host of bedrock decisions —

and with the clear language of the statute involved.

Under the circumstances, this Court’s voice should be

heard, to vindicate both the integrity of its own pronoun-

cements, and the statute’s clear expression of the will of

Congress.

To summarize, the Sixth Circuit opinion:

The starting point for the Sixth Circuit’s treatment of

the exclusion issue, and an appropriate starting point for

this analysis, was its rejection of the First Circuit's deci-

Disregards the express language of 18 U.S.C.

§ 2515, and, in the worst sort of judicial

legislation, presumes to carve out, without

necessity or justification, a “clean hands”

exception to the statute, in the face of Con-

gress’s explicit and unqualified intention to

exclude unlawfully intercepted from pro-

ceedings before United States District

Courts;

Disregards this Court's studied explanations,

in cases such as Gelbard v. United States, 408

U.S. 41 (1972) and United States v. Giordano,

416 U.S. 505 (1974), of the scope, reach, and

thrust of Title II]; and

Misconstrues, and misapplies, the principles

developed in the area of “private searches”

in such cases as Walter v. United States, 447

U.S. 649 (1980) and United States v. Jacobsen,

466 U.S. 109 (1984), decided under the

Fourth Amendment, a provision aimed

solely at governmental action, to a situation

which is wholly and solely governed by a

statute which, by its very terms, is meant to

limit both governmental and private actions.

sion in United States v. Vest, supra.

In Vest, one Waters had turned over to the govern-

ment a tape recording he had surreptitiously (and in

violation of Title III) made of a conversation with the

defendant. When confronted with the recording in the

course of a grand jury appearance, Vest denied the voice

was his, and he was indicted for perjury. Vest moved to

suppress the tape, the district court agreed, and the gov-

ernment appealed.

The First Circuit recognized that the unequivocal

language of § 2515 might produce anomalous results if

applied in every conceivable situation: “A literal reading

might, for example, forbid the use in evidence of an

illegal recording in a prosecution brought under section

2511(1)(a) against the maker of that illegal recording.” 813

F.2d at 480. In such instances, ordinary rules of statutory

construction, of course, allow for judicially crafted excep-

tions to avoid results which would clearly be at odds

with the congressional purpose. See, e.g., United States v.

American Trucking Associations, 310 U.S. 534, 544 (1940).

This narrow exception to the rule of obedience to the

plain language of a statute does not, however, compel -

or even permit — a “clean hands” exception to § 2515, as

the Vest court explained in a passage that was noted,

though rejected, by the court below:

The district court accepted the govern-

ment’s argument that an inquiry into the pur-

pose of section 2515 is necessary in order

properly to interpret that section’s exclusionary

rule. But the district court concluded, and we

agree, that the government’s characterization of

section 2515 as solely aimed at deterring Title III

violations is too narrow. In Gelbard v. United

States, 408 U.S. 41, 47-52, 92 S.Ct. 2357, 2360-63,

33 L.Ed.2d 179 (1972), the Supreme Court

exhaustively reviewed the legislative history of

Title III and concluded that “the protection of

privacy was an overriding congressional con-

cern” when it enacted Title III, id. at 48, 92 S.Ct.

at 2361, and that section 2515’s “importance as a

protection for ‘the victim of an unlawful inva-

sion of privacy’ could not be more clear.” Id. at

50, 92 S.Ct. at 2362. As the Court recognized in

Gelbard, id. at 51-52, 92 S.Ct. at 2362-63, and as

we have previously noted, In re Globe Newspaper

Co., 729 F.2d 47, 54 (ist Cir.1984) (citing Provi-

dence Journal Co. v. F.B.I., 602 F.2d 1010, 1013 (1st

Cir.1979)), an invasion of privacy is not over

when an interception occurs, but is com-

pounded by disclosure in court or elsewhere.

The impact of this second invasion is not less-

ened by the circumstance that the disclosing

party (here, the government) is merely the inno-

cent recipient of a communication illegally inter-

cepted by the guilty interceptor (here, Waters).

813 F.2d at 480-481.

The Sixth Circuit, however, professed to be unim-

pressed with the evident logic of this passage. Instead,

pronouncing that “[w]Je do not read Gelbard as broadly as

did the Vest court,” 63 F.3d at 1401, the opinion below

sought to confine this Court’s opinion in that case to the

four corners of the procedural context out of which it

arose:

Gelbard involved a witness's challenge to a find-

ing of civil contempt for refusing to testify

before the grand jury, invoking as a defense the

ground that the interrogation was to be based

on information allegedly intercepted by illegal

wiretapping and electronic surveillance con-

ducted by federal agents. . . . The Gelbard

Court’s discussion of the legislative history of

Section 2515, read in context of the facts of the

case, emphasized not that individuals are just

generally entitled to have their privacy pro-

tected, but that they are specifically entitled to

protection from unscrupulous law enforcement

procedures which invade their privacy. The

point of Gelbard was that if the government was

eventually shown to have illegally intercepted

the conversations, then the witness was entitled

under Title III to have that evidence suppressed

and completely excluded from any line of ques-

tioning in any proceeding, including a grand

jury proceeding. To cite Gelbard as standing for

the proposition that the entire purpose of Title

III is to prevent victimization in the form of

invasion of privacy goes too far. As a result, we

think that Vest was wrongly decided and we

decline to follow it.

63 F.3d at 1401.

The Sixth Circuit’s statement of the procedural con-

text of this Court’s decision in Gelbard is accurate enough,

but hardly compelling. In Gelbard, the Court was faced

with the question of the significance of disclosure of

intercepted communications, and whether disclosure

alone of an improperly intercepted communication would

be a sufficient offense against the values which Congress

sought to protect in Title III to justify the extraordinary

step of interrupting the course of proceedings of a sitting

federal grand jury to inquire into the legality of the

acquisition of evidence before that evidence was dis-

closed, even in the secrecy of the grand jury proceedings.

In order to answer this question, of course, the Court

had to examine the underlying congressional purpose in

enacting the exclusionary rule of § 2515, and to determine

whether the mere disclosure of previously (improperly)

intercepted communications was of such significance in

the overall statutory scheme as to justify the application

of that provision to produce such an extraordinary result.

As Gelbard makes clear, however, Congress viewed

disclosure of private conversations as an intrusion equiv-

alent to their interception, and the exclusionary rule of

§ 2515 was crafted not only to serve the indirect purpose

of deterring improper intrusions in the form of intercep-

tions, but also the more direct purpose of preventing

improper intrusions in the form of disclosures. And, as

the Court’s opinion also points out, it was meant to serve

an additional purpose as well, wholly unrelated to deter-

rence — that of safeguarding the integrity of the judicial

process:

Section 2515 is thus central to the legislative

scheme. Its importance as a protection for ‘the

victim of an unlawful invasion of privacy’ could

not be more clear. The purposes of § 2515 and

Title III as a whole would be subverted were the

plain command of § 2515 ignored when the vic-

tim of an illegal interception is called as a wit-

ness before a grand jury and asked questions

based upon that interception. Moreover, § 2515

serves not only to protect the privacy of commu-

nications, but also to ensure that the courts do

not become partners to illegal conduct: the evi-

dentiary prohibition was enacted also ‘to protect

the integrity of court and administrative pro-

ceedings.’ Consequently, to order a grand jury

witness, on pain of imprisonment, to disclose

evidence that § 2515 bars in unequivocal terms

is both to thwart the congressional objective of

protecting individual privacy by excluding such

evidence and to entangle the courts in the illegal

acts of Government agents.

408 U.S. at 50-51 (footnotes omitted).

Of course, allowing the use by the government in a

trial in a United States District Court of communications

which have been illegally intercepted by a private person

has exactly the same effect: it “thwarts the congressional

objective of protecting individual privacy by excluding

such evidence,” and it “entangle[s] the courts in the

illegal acts of” the private person responsible for the

interception. If one does not artificially constrain the

teachings of Gelbard and its underlying inquiry into the

legislative history of Title III to the specific procedural

framework out of which it arose, that decision clearly

commands the result reached in Vest, and rejected by the

Sixth Circuit: that the “unequivocal terms” of § 2515 must

be given effect, by excluding the use of unlawfully inter-

cepted communications under the circumstances pre-

sented by this case.

This would not be so, of course, if Congress had not

viewed the disclosure of improperly intercepted commu- “

nications as an evil unto itself, or had intended the exclu-

sionary rule of § 2515 solely as a deterrent - or if the

focus of Congress’ attention had only been on regulating

improper interceptions, rather than on the broader goal

of protecting personal privacy from the harm done as

much (if not more) by disclosures as by interceptions. If

this were the case, there might be some justification in

excusing the disclosure of improperly intercepted com-

munications in circumstances like the case at bar - in

balancing the greater good of effective law enforcement

against the lesser evil of disclosure, where exclusion

would not deter the greater evil of improper interception.

But as this Court recognized in Gelbard, Congress had

broader purposes in mind in enacting Title III in general,

and § 2515 in particular, and in view of this recognition,

there is simply no logic or justification in striking the

balance as did the Sixth Circuit.

Due perhaps to its myopic view of the issue, this

central teaching of Gelbard was lost on the court below.

For guidance (or perhaps for comfort), the court turned

instead to its own decision in United States v. Underhill,

813 F.2d 105 (6th Cir. 1987), a case which involved the

government’s attempt to introduce tapes made by the

defendants themselves in furtherance of their illegal gam-

bling business (and therefore in violation of Title III) in a

prosecution for the very gambling violations in aid of

which the interceptions were unlawfully made. The

defendants’ objection to the use of the tapes under the

unequivocal prohibition of § 2515 led the Underhill court

to note that their invocation of the statutory exclusionary

rule would “turn the statute on its head:”

We think it is clear that Congress did not intend

for Sec. 2515 to shield the very people who

committed the unlawful interceptions from the

consequences of their wrongdoing. Underhill

and Rokitka waived their right of privacy in

these communications by their deliberate act of

causing them to be recorded. If the language of

Secs. 2511(2)(d) and 2515 were applied literally

to Underhill and Rokitka it would produce an

absurd result that we are confident Congress

did not intend.

813 F.2d at 112.

The court below took Underhill as standing “for the

proposition that the suppression provisions of Section

2515 are not absolute.” 63 F.3d at 1402. Of course, the

Underhill court’s departure from obedience to the plain

language of the statute was motivated solely by an

extraordinary factor not present in the case at bar: that

persons guilty of violating the statute were seeking the

protection of a statutory provision intended to penalize,

not reward, exactly those kinds of violations of the statu-

tory scheme.

The correctness of the Underhill result is of course not

before the Court, but Underhill illustrates a principle of

statutory construction which is instructive in the case at

bar, and went unrecognized and unheeded by the court

below: that “[t]he plain meaning of legislation should be

conclusive, except in the ‘rare cases [in which] the literal

application of a statute will produce a result demonstra-

bly at odds with the intentions of its drafters.’ ” United

States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989)

(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,

571 (1982)).

Underhill arguably represented one such rare

instance, as that opinion makes clear. But such departures

from the rule of deference to the plain language of a

statute are not favored. As this Court wrote in Ardestani v.

I.N.S., 502 U.S..129, 135-136 (1991):

The “strong presumption” that the plain

language of the statute expresses congressional

intent is rebutted only in “rare and exceptional

circumstances,” Rubin v. United States, 449 U.S.

424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633

(1981), when a contrary legislative intent is

clearly expressed. INS v. Cardoza-Fonseca, 480

U.S. 421, 432, n. 12, 107 S.Ct. 1207, 1213, n. 12, 94

L.Ed.2d 434 (1987); Consumer Product Safety

Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108,

100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980).

When enacting § 2515, Congress may not have con-

templated precisely the situation posed by the instant

case. The fact that Congress may not have intended to

dictate a particular result in an unimagined situation

does not, however, leave a court free to ignore the plain

language of the statute that Congress wrote, or to rewrite

it in the way the court would prefer, or may feel that

Congress might have, had it debated the precise issue. It

is enough, and it is conclusive, that the language of the

statute dictates the result, and it is only in those rare

instances where to follow the dictates of the statute as

written would demonstrably violate the purpose of the

legislation that a court may be free to disregard the plain

language of the statute.

As this Court’s review of the history and purpose of

Title II] and § 2515 in Gelbard make clear, the result

reached by the First Circuit in Vest, and contended for by

the Petitioner herein, is certainly not in any way inconsis-

tent with the expressed intentions of Congress, even if

the Court may harbor a suspicion that Congress may not

have specifically intended to dictate it. As this Court

explained in Griffin v. Oceanic Contractors, Inc., supra, 458

U.S. at 575, it would take far more than a merely uninten-

ded result to justify judicial -ewriting of a solemnly

enacted statute:

It is true that interpretations of a statute

which would produce absurd results are to be

avoided if alternative interpretations consistent

with the legislative purpose are available. See

United States v. American Trucking Assns., Inc.,

310 U.S., at 542-543, 60 S.Ct., at 1063; Haggar Co.

v. Helvering, 308 U.S. 389, 394, 60 S.Ct. 337, 339,

84 L.Ed. 340 (1940). In refusing to nullify stat-

utes, however hard or unexpected the particular

effect, this Court has said:

“Laws enacted with good intention, when

put to the test, frequently, and to the sur-

prise of the law maker himself, turn out to

be mischievous, absurd or otherwise objec-

tionable. But in such case the remedy lies

with the law making authority, and not with

the courts.” Crooks v. Harrelson, 282 U.S. 55,

60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930).

The opinion below did admit that the unusual cir-

cumstance which gave rise to Underhill — that the persons

seeking suppression were themselves the unlawful inter-

ceptors — were not present in the case at bar, but it was

not long deterred by this distinction. Nor did the court

even allude to the line of cases referred to above. Rather,

it turned to yet another of its own decisions, United States

v. Baranek, 903 F.2d 1068 (6th Cir. 1990).

In Baranek, the Sixth Circuit held that § 2515 did not

require suppression when a lawfully intercepted tele-

phone was inadvertently left off the hook, allowing inves-

tigators to overhear conversations in the room where the

telephone was located. The defendant argued, and the

district court had held, that the off-hook conversations

were not within the scope of the authorized interception,

but the Court of Appeals held that this nominal noncom-

pliance with the statute would not foreclose the govern-

ment’s reliance on a “plain view” theory. Although the

“plain view” exception to the warrant requirement deter-

mines the legitimacy of a search, rather than the scope of

the exclusionary rule, the Baranek opinion somewhat

muddied the distinction, and rested its decision at least in

part on a perceived lack of necessity to read § 2515 as

broadly as its language might suggest, in a passage upon

which the court below relied:

Where, as here, we have a case with a factual

situation clearly not contemplated by the stat-

ute, we find it helpful on the suppression issue

(as opposed to the question of whether there

was a violation of the authorization order) to

look to fourth amendment law. We note in that

regard that government agents are charged with

no wrongdoing and that to suppress here would

have no impact on the future conduct of law

enforcement officials. In the usual fourth

amendment calculus, these are factors that

counsel against the necessity of suppression.

903 F.2d at 1072.

The opinion of the Sixth Circuit in the case at bar

likened the situation here to that in Baranek, where, as the

court there described it, “the government got a lucky

break of sorts here and stumbled across the evidence.” Of

course, the Baranek court's justification for admission of

the challenged evidence - that “the government agents

are charged with no wrongdoing” — can only mean, since

the interceptions were conducted by those agents, that

those conversations, unlike the ones in the case at bar,

were not “unlawfully intercepted,” so that their further

disclosure would be a separate and independent violation

of Title III. This distinction was, however, lost on the

court below, which focused instead on the fact that the

government was not alleged to have been involved in any

improper interception in the case at bar either, yet stood

to lose the benefit of the “lucky break” it received when

Mrs. Murdock chose to (unlawfully) disclose the fruits of

her own unlawful interceptions.

Ignored as well by the court below was the perceived

“uniqueness” of the situation faced by the Baranek court,

and its perception that it was “clearly not contemplated”

by Congress — unlike the situation in the case at bar,

where the wrong complained of by Petitioner — the dis-

closure in a federal court proceeding of unlawfully inter-

cepted wire communications - was one which was

precisely within the scope of the statute, and clearly

forbidden by § 2515. While that provision does not condi-

tion the exclusion of unlawfully intercepted evidence on

whether the result is likely to have a deterrent effect on

anyone in particular, the court below justified allowing

the government the benefits of its “lucky break” on the

basis that there was no government misconduct to deter.

It quoted with approval the district court’s pronounce-

ment on this subject: “The intent of Congress would

certainly have been followed had section 2515 served to

deter Mrs. Murdock, but no deterrent effect is worked on

the government in this case.” 63 F.3d at 1403 (emphasis

added by Court of Appeals). :

If anything, this statement proves too much; any time

an illegal search has taken place it is evidence that the

perpetrator has not been deterred. Whether or not the

Mrs. Murdocks of the world would be deterred if the

courts denied them an outlet for the fruits of their viola-

tions of Title III, whether directly or through the interven-

ing agency of the government, is not a question which

admits of a ready answer on the record below. It is also a

question which need not even be asked in the context of

the case at bar, because Congress has spoken clearly and

unequivocally in § 2515 to deny the fruits of such unlaw-

ful interceptions a home in the federal court system.

In this connection, however, two additional things

are also clear: that Mrs. Murdock was among the class of

persons, and her activities of a kind, that Congress

intended to reach, and to deter, and that, by turning the

tapes she unlawfully made over to third persons, she got

exactly what she wanted: to see her husband punished

for what the unlawfully recorded conversations revealed.

It is clear that Congress intended, in enacting Title

III, to absolutely prohibit private electronic surveillance,

which was viewed as representing a major threat to per-

sonal privacy. See, ¢.g., Heggy v. Heggy, 944 F.2d 1537,

1540-1541 (10th Cir. 1991); United States v. Jones, 542 F.2d

661 (6th Cir. 1976). A comprehensive scheme of regula-

tion of private activity was intended. As Professor Carr

has noted, the “statute represents an effort to introduce

federal legislative control over private activities not

normally reached by the commerce clause.” James G.

Carr, The Law of Electronic Surveillance § 3.6, pp.

3-110.3-3.110.4 (2d Ed. 1986). That the Mrs. Murdocks of

the world are as clearly within the class of persons whom

Congress intended to deter from unlawful interception as

agents of the government is beyond dispute.

The court below took it upon itself to rewrite the

statute on the basis that to enforce its explicit provisions

would not further its deterrent purposes, since the propo-

nent of the evidence, the government, was not involved

in the wrongful interception. But what of Mrs. Murdock?

Should the fact that the government received the fruits of

her wrongdoing on a proverbial “silver platter” cleanse

them of the taint of that wrongdoing, given the fact that

in enacting Title III Congress clearly intended to forbid

and punish behavior such as hers by people such as she?

In Elkins v. United States, 364 U.S. 206 (1960), this

Court abolished the so-called “silver platter” doctrine,

under which federal courts admitted evidence which had

been seized by state officers by means which would have

violated the Fourth Amendment if undertaken by federal

agents. Those sta‘te-conducted searches violated the Four-

teenth Amendment, but because Mapp v. Ohio, 367 U.S.

643 (1961) had not yet been decided, they were not sub-

ject to the exclusionary rule that applied to searches and

seizures that violated the Fourth Amendment under

Weeks v. United States, 232 U.S. 383 (1914), and previous

decisions of this Court had upheld the admission of such

evidence so long as the federal government played no

part in the unlawful search or seizure itself.

The Elkins Court, however, held the practice intoler-

able for a number of reasons. The Court noted that “[t]he

Constitution is flouted equally” whether a state or federal

officer conducts the wrongful search, that “[t]o the victim

it matters not whether his constitutional right has been

invaded by a federal agent or by a state officer,” and, in

addition, that “there is another consideration - the imper-

ative of judicial integrity;” to allow the admission of

illegally seized evidence makes the federal courts

“accomplices in the willful disobedience of a Constitution

they are sworn to uphold.” 364 U.S. at 215, 223.

As has been noted, Title II] was enacted to prohibit

and deter people exactly like Mrs. Murdock from doing

exactly what she did, to an even greater extent than it

was intended to reach the actions of government agents —

its prohibitions against private action are absolute, while

certain government agents may lawfully conduct inter-

ceptions subject to judicial approval. Thus, “it is flouted

equally” whether Mrs. Murdock or Special Agent Smith

conducts the unlawful interceptions.

Of course, to a person in the position of Petitioner “it

matters not” whether the right of privacy which Title II]

was meant to secure to him is invaded by Mrs. Murdock

or Special Agent Smith. And, most importantly of all, the

“imperative of judicial integrity” which, as this Court

recognized in Gelbard, is expressed in § 2515, is violated

as clearly no matter what the source of the unlawfully

acquired evidence.

If this were a civil action brought by Mrs. Murdock

against her husband, the tapes would surely not be

admissible. And if, through Special Agent Smith, or any-

one else, Mrs. Murdock seeks to get by indirection what

she could not get directly, how can it be said that it would

be inappropriate to enforce the explicit rule of exclusion

found in the statute which was intended to protect and

vindicate the very right of privacy through the violation

of which she would have her revenge?

Title III was intended to secure the very same right of

privacy from intrusion by public agencies and private

individuals, in the same way the Fourth and Fourteenth

Amendments protect identical privacy interests from

intrusion by federal and state officers. The same princi-

ples that dictated the result in Elkins dictate the same

result here: that the privacy interests meant to be secured

by Title III cannot be adequately protected if private

violations can be insulated from scrutiny, much less

rewarded, by the introduction of their fruits into evidence

in federal courts through the medium of the “clean

hands” of federal officials.

The opinion below, however, concluded from an

“independent reading of the legislative history of Title

Ill” that:

while privacy was a major goal of the legisla-

tion, it was privacy in a particular context,

namely, that an individual who is the victim of

an unlawful interception is entitled to protection

in court proceedings from any attempt by the

perpetrator to use the interception against the

victim or in any way to benefit from the infor-

mation which was either contained in, or was

the fruit of, the unlawful interception.

63 F.3d at 1403.

It is not difficult to understand why the court does

not cite chapter and verse to support this “independent

reading” of the legislative history: the limitations sug-

gested on the scope or impact of the statute’s rule of

exclusion are simply nowhere to be found. Nor, of course,

are such limitations found in the product of that legisla-

tive history: the clear, explicit, and unequivocal provi-

sions of § 2515, which is entirely consistent with the

statutory scheme as a whole in treating each and every

disclosure of an unlawfully intercepted communication —

without reference to by whom it is made ~ as a separate

violation.

This is of course not the case where only the pro-

scriptions of the Fourth Amendment are involved. As this

Court noted in United States v. Verdugo-Urquidez, 494 U.S.

259, 264 (1990) the Fourth Amendment “prohibits “unrea-

sonable searches and seizures’ whether or not the evi-

dence is sought to be used in a criminal trial, and a

violation of the Amendment is ‘fully accomplished’ at the

time of an unreasonable governmental intrusion.” (quot-

ing United States v. Calandra, 414 U.S. 338, 354 (1974)).

Nevertheless, on the basis of the general pronounce-

ment that “Fourth Amendment law is also instructive

here,” the Sixth Circuit defended the result in the case at

bar as being consistent with the Fourth Amendment “pri-

vate search” cases:

It is well established that evidence obtained by a

private search is not subject to the Fourth

Amendment exclusionary rule. In United States

v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80

L.Ed.2d 85 (1984), the Supreme Court acknowl-

edged that the Fourth Amendment protection

against unreasonable searches and seizures “is

wholly inapplicable ‘to a search or seizure, even

an unreasonable one, effected by a private indi-

vidual not acting as an agent of the Government

or with the participation or knowledge of any

governmental official.’ ” Id. at 113, 104 S.Ct. at

1656 (quoting Walter v. United States, 447 U.S.

649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410

(1980) (Blackmun, J., dissenting)

63 F.3d at 1403 (footnote omitted).

What the opinion below ignores, of course, is the

reason behind the rule in the “private search” cases: “that

a wrongful search or seizure conducted by a private party

does not violate the Fourth Amendment.” Walter v. United

States, 447 U.S. 649 (1980). An equivalent statement can-

not, of course, be made in the context of the case at bar,

since, as noted at length above, the conduct of the private

individual who acquired the evidence that the govern-

ment now seeks to use did indeed violate Title III, whose

exclusionary rule Petitioner seeks to invoke.

Actually, when properly read, the “private search”

cases, such as Walter v. United States, supra, and United

States v. Jacobsen, 466 U.S. 109 (1984), are consistent with

Petitioner’s position. Typically, those cases involve situa-

tions where a private citizen has performed an initial

search or seizure and turned over the object or informa-

tion he has acquired thereby to the authorities. The cases

hold that “[t]he additional invasions of . . . privacy by the

government agent must be tested by the degree to which

they exceeded the scope of the private search.” Jacobsen,

supra, 466 U.S. at 115. If there is an additional intrusion

by the government, it is subject to the same scrutiny as if

private action had not initiated the chain of events:

“surely the Government may not exceed the scope of the

private search unless it has the right to make an indepen-

dent search.” Walter, supra, 447 at 657.

In the case of a conventional search or seizure, the

Fourth Amendment is violated only by the intrusion rep-

resented by the search or seizure itself, not by the dis-

closure of the fruits of that intrusion - the Fourth

Amendment exclusionary rule is an entirely judge-made

construction. By contrast, in the case at bar, each dis-

closure of the unlawfully intercepted communications -

including their use as evidence by the government —

would surely be an additional intrusion of a kind partic-

ularly identified and protected by Title Ill. An obvious

analogy may be drawn to the sort of “additional inva-

sions . . . of privacy by the government” that are subject

to the Fourth Amendment's exclusionary rule under the

“private search” cases.

The “private search” cases hold that the fact that the

chain of events began with private action does not insu-

late subsequent government conduct from Fourth

Amendment scrutiny. Likewise, the fact that the chain of

events in the instant case began with private action

should not excuse the government's attempt to disclose

the fruits of that private action in a manner that would be

plainly violative of Title III. If an “additional invasion”

violated the Fourth Amendment, it would be subject to

the Fourth Amendment. Similarly, the government action

in the case at bar - the proposed use of the unlawfully

intercepted communications at Petitioner’s trial - would

be in violation of § 2511, which is the appropriate govern-

ing law, and should likewise be held to be subject to

exclusion under the unequivocal provisions of § 2515.

In United States v. Giordano, 416 U.S. 505, 527 (1974),

this Court held that in enacting Title III:

Congress intended to require suppression where

there is failure to satisfy any of those statutory

requirements that directly and substantially

implement the congressional intention to limit

the use of intercept procedures to those situa-

tions clearly calling for the employment of this

extraordinary investigative device.

Specifically, the Giordano opinion concluded that

Congress intended that suppression of evidence was to be

the remedy for violations of those provisions which were

“intended to play a central role in the statutory scheme.”

416 U.S. at 528. In United States v. Vest, supra, 813 F.2d at

481, the First Circuit wrote that suppression was appro-

priate because:

The protection of privacy from invasion by ille-

gal private interception as well as unauthorized

governmental interception plainly “play[s] a

central role in the statutory scheme,” see United

States v. Giordano, 416 U.S. 505, 528 (1974).

In the case at bar, the Sixth Circuit criticized the Vest

court’s reliance on Giordano, supra, on the basis that Gior-

dano “can clearly be distinguished as a case in which the

government itself had failed to comply with the terms of

the statute and thereby wrongfully procured a wiretap

from which evidence sought to be admitted had been

obtained,” and opined that the Giordano court’s pronoun-

cements regarding the statutory scheme are inapposite in

this case, where “the government played no part in the

unlawful interception.” 63 F.3d 1404.

Once again, the court below failed to see the forest

for the trees. This Court’s opinion in Giordano represented

an analysis of the role that the statutory exclusionary rule

played in the overall structure of Title III. It is, as the Vest

court concluded, convincing authority for the proposition

that where, as here, both the interception and disclosure

of Petitioner’s communications would violate the most

basic provisions of Title Ill, resort to the statute’s

unequivocal rule of exclusion is not only appropriate, but

necessary.

CONCLUSION

The decision of the Sixth Circuit in the case at bar is

in fundamental conflict with the decision of the First

Circuit on the same issue, and with a number of decisions

of this Court with respect both the statutory scheme

involved and the role of the judiciary in the interpretation

and application of statutes. It infringes upon basic and

important rights secured to your Petitioner, and it

bespeaks a need for an authoritative pronouncement on

the issue involved from this Court. The Court should

grant the within Petition for Certiorari, and, on plenary

hearing, vacate the decision below.

Respectfully submitted,

New H. Fink

Counsel of Record for Petitioner

185 Oakland Avenue, #250

Birmingham, Michigan 48009

(810) 258-3181

DATED: January 2, 1996

App. 1

No. 94-1984

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Unrrep States OF AMERICA,

Plaintiff-Appellee,

On Appeat from

the United States

District Court for

the Eastern Dis-

trict of Michigan

Haroitp D. Murpock,

Defendant-Appellant.

ee ee ee ee eee ee ee”

Decided and Filed August 23, 1995

Before: JONES and NORRIS, Circuit Judges;

DOWD, District Judge.*

DOWD, District Judge.

I. Introduction

The defendant-appellant prosecutes an appeal from

his conviction on one count of tax evasion in violation of

26 U.S.C. § 7201 based on his failure to report as income

the sum of $90,000.00 he received as a bribe in his capac-

ity as the President of the Board of Education of the

* The Honorable David D. Dowd, Jr., United States District

Judge for the Northern District of Ohio, sitting by designation.

App. 2

Detroit Public Schools. Prior to entering his Alford plea of

guilty, the defendant unsuccessfully challenged the

admissibility of an intercepted telephone conversation

which disclosed the bribe. The appellate issue is whether

the district court erred in overruling Murdock’s motion to

suppress the telephone conversation.

II. Factual and Procedural Background

Harold D. Murdock (hereafter, “Murdock”), while

serving as the President of the Detroit School Board,

became embroiled in a divorce action with his wife (here-

after, “Mrs. Murdock”) with whom he owned and oper-

ated a funeral home. In the Spring of 1985, Mrs. Murdock

became suspicious of Murdock’s conduct, both business

and personal, and decided to record telephone calls of the

funeral home on business extension phones in her home

located next to the funeral home.! She purchased the

recording equipment from Radio Shack, attached it to the

two business extensions in her home, along with on/off

switches which permitted her to control the operation of

the tape recorders, and systemically recorded phone calls

for about three months.? After Mrs. Murdock’s son by an

earlier marriage advised her that the recording was

1 Mrs. Murdock had lived alone in this house since her

separation from Murdock in 1984.

~- 2 Mrs. Murdock did not record all calls. Rather, she gener-

ally recorded incoming and outgoing calls only when she knew

Murdock was at the funeral home and she was not there. In

addition, she did not monitor the calls that were being taped.

Consequently, some of the tapes contained conversations of

employees of the funeral home.

App. 3

unlawful, she stopped the practice. By the time she

stopped, she had accumulated two shoe boxes of taped

conversations that she had logged and described.* Later,

a story in a Detroit newspaper describing the action of

the Detroit School Board with respect to a milk contract

with a local dairy led Mrs. Murdock to believe that her

husband had engaged in the act of bribery. She thought

this because of the content of one of the intercepted and

recorded conversations which she had heard, a conversa-

tion with an official of the dairy. Acting anonymously, she

made an extract of the conversation and mailed it to the

dairy that had lost the milk contract. The recipient turned

it over to the Wayne County Prosecuting Attorney and a

newspaper. The newspaper published an article outlining

the bribery scheme. As a result of the story, federal agents

began a criminal investigation and, eventually, the defen-

dant was indicted for income tax evasion because the

$90,000 bribe was not reported as income.*

Murdock moved to dismiss the indictment or, in the

alternative, to suppress the taped conversation based on

the exclusionary provisions of 18 U.S.C. § 2515.5 The

3 Mrs. Murdock eventually destroyed the tapes and her log

in 1992.

4 Tax evasion is an “offense[ ] against the laws of the

United States” under 18 U.S.C. § 3231.

5 18 U.S.C. § 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 the

App. 4

district court agreed with the government's position that,

by reason of the provisions of Section 2510(5)(a), the

statutory prohibitions involving intercepted conversa-

tions did not apply to an extension line of a business

phone or to a recording made of a captured conversation.

Alternatively, the district court held that the statutory

exclusion provisions of Section 2515 did not apply to the

government where it played no part in the interception of

the conversation. Consequently, the district court denied

Murdock’s motion to exclude the intercepted conversa-

tion.

Murdock entered a conditional plea of guilty under a

plea agreement wherein he reserved his right to appeal.®

The district court sentenced Murdock to one year and one

day in prison and imposed a $5000 fine. Murdock is free

on bond pending this appeal.

III. Discussion

A. Issue on Appeal and Standard of Review

The issue on appeal is whether the district court

erred in overruling Murdock’s motion to suppress the

disclosure of that information would be in violation of this

chapter.”

6 The Rule 11 Plea Agreement stated, in relevant part, that

the “condition will be the defendant’s reserving of a right to

appeal [the] Court’s Memorandum Opinion and Order Denying

Defendant’s Motion for Rehearing dated January 4, 1994, which

denied Defendant’s Motion to Dismiss and/or Suppress Evi-

dence. If defendant prevails on appeal he shall be allowed to

withdraw his plea.” (J.A. at A-164).

App. 5

tape recording. To decide this issue, the court must exam-

ine the statutory framework of Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, codified at 18

U.S.C. §§ 2510-2521. The court reviews the district court's

conclusions of law de novo and its factual findings for

clear error. United States v. Martin, 25 F.3d 293, 296 (6th

Cir. 1994).

B. The Extension Telephone Exemption - 18 U.S.C.

§ 2510(5)(a)

Our analysis begins with the recognition that Section

2511(1)(a) makes it unlawful for “any person” to “inten-

tionally intercept[ ]” any “wire, oral, or electronic com-

munication[.]” Sections 2510(4) and (5), read together,

establish an exemption for certain devices, including

extension telephones. Known as the “telephone extension

exemption” or the “business extension exemption,” it

“places outside the reach of Title [II the monitoring of

communications carried out by certain types of equip-

ment and done in the ordinary course of business.” Wil-

liams v. Poulos, 11 F.3d 271, 279 (1st Cir. 1993).

Section 2510(4) defines an interception as “aural or

other acquisition of the contents of any wire, electronic,

or oral communication through the use of any electronic,

mechanical, or other device[.]”

Section 2510(5) defines an “electronic, mechanical, or

other device” as

any device or apparatus which can be used to

intercept a wire, oral, or other communication

other than - )

App. 6

(a) any telephone or telegraph instrument,

equipment or facility, or any component thereof,

(i) furnished to the subscriber or user by a pro-

vider of wire or electronic communication ser-

vice in the ordinary course of its business and

being used by the subscriber or user in the

ordinary course of its business[.] . . .

Following an extensive evidentiary hearing, the dis-

triet-court concluded that Section 2510(5)(a)(i) was

intended to cover tape recorders attached to extension

phones. Acknowledging that the Sixth Circuit had not yet

ruled on that issue, the district court cited Simpson v.

Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897

(1974); United States v. Harpel, 493 F.2d 346 (10th Cir.

1974); Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.

1977); Epps v. St. Mary's Hosp. of Athens, Inc., 802 F.2d 412

(11th Cir.), reh’g denied, 807 F.2d 999 (1986); and Newcomb

v. Ingle, 944 F.2d 1534 (10th Cir. 1991), cert. denied, 502 U.S.

1044 (1992), in support of his conclusion that the Radio

Shack recording equipment, when combined with the

extension telephone, came within the exemption.

We find better reasoning in three recent decisions:

Deal v. Spears, 980 F.2d 1153 (8th Cir. 1992), Williams v.

Poulos, supra, and Sanders v. Robert Bosch Corp., 38 F.3d 736

(4th Cir. 1994), reh’g and suggestion for reh’g en banc denied

(January 24, 1995) (No. 93-2351, 93-2423). We shall follow

them rather than the decisions of the Second, Fifth, Tenth

and Eleventh Circuits relied upon by the district court.

1. “Interception” - 18 U.S.C. § 2510(4)

In the Eighth Circuit case of Deal v. Spears, supra,

the plaintiff, a former employee of the defendants,

App. 7

prosecuted a civil action seeking compensatory and puni-

tive damages after the plaintiff learned that her

employers, who lived in a mobile home adjoining the

convenience store where she was employed, had inten-

tionally intercepted and disclosed her telephone conver-

sations. The defendants had suspected the plaintiff of

providing inside information which facilitated an earlier

burglary of the store. They installed a recording device on

the extension phone in the mobile home and recorded 22

hours of Deal’s conversations. One of the persons with

whom Deal had extensive conversations was the co-plain-

tiff and the district court noted that much of the conver-

sation was “sexually provocative.” The Deal court

concluded:

Thus there are two essential elements that

must be proved before this [the telephone exten-

sion exemption] becomes a viable defense: the

intercepting equipment must be furnished to the

user by the phone company or connected to the

phone line, and it must be used in the ordinary

course of business. The Spearses argue that the

extension in their residence, to which the

recorder was connected, meets the equipment

requirement, and the listening-in was done in

the ordinary course of business. We disagree.

First, we are not as easily convinced as is at

least one of our sister circuits that an extension

telephone is exempt equipment under section

2510(5)(a)(i) when a recording device is attached

to the extension to record calls for later listen-

ing. See Epps v. Saint Mary’s Hosp. of Athens, Inc.,

802 F.2d 412, 415 (11th Cir. 1986) (holding that

the interception device was not the equipment

used to record the conversation but the dispatch

App. 8

console to which the recorder was attached).

The calls would not have been heard or other-

wise acquired — that is, intercepted - at all but

for the recording device, as the Spearses did not

spend twenty-two hours listening in on the resi-

dential extension. When turned on, the recorder

was activated automatically by the lifting of the

handset of either phone, even though it was

connected only to the extension phone. Further,

Deal ordinarily would know (by the “click” on

the line) when the residential extension was

picked up while she was using the store phone;

thus her calls likely would not have been inter-

cepted if the recorder had not been in place.

It seems far more plausible to us that the

recording device, and not the extension phone,

is the instrument used to intercept the call. We

do not believe the recording device falls within

the statutory exemption. The recorder was pur-

chased by Newell Spears at Radio Shack, not

provided by the telephone company. Further, it

was connected to the extension phone, which

was itself the instrument connected to the phone

line. There was no evidence that the recorder

could have operated independently of the tele-

phone.

We hold that the recording device, and not

the extension phone, intercepted the calls. But

even if the extension phone intercepted the

calls, we do not agree that the interception was

in the ordinary course of business.

Deal v. Spears, 980 F.2d at 1157-58.”

7 The issue of recording as opposed to listening was

alluded to by way of dictum in United States v. Jones, 542 F.2d 661

ati. fila Linco ca ate TS eee ted ie tae ”

)

& 4

«x

App. 9

The First Circuit case of Williams v. Poulos, supra, was

one of several bankruptcy and civil actions which arose

from the demise of Consolidated Auto Recyclers, Inc.

(“CAR”). Without reviewing the entire factual scenario,

suffice to say that CAR principals, trying to get a

$1,000,000 monthly telephone bill under control, decided

to install a telephone surveillance system which would

monitor a single, pre-selected telephone at CAR head-

quarters. Shortly thereafter, control of the financially-

strapped CAR was transferred to Allied Capital Corpora-

tion (“Allied”), a venture capital firm. In a short time, the

relationship between the new CEO, Ralph Dyer, and

CAR’s principals soured. CAR’s principals wanted to

regain control of CAR. They began to target their surveil-

lance equipment on Dyer’s conversations as well as on

conversations between Allied personnel at CAR and

Allied headquarters. Eventually, CAR’s principals,

attempting to gain an advantage in their quest to regain

control, disclosed the fact of their telephone taping and

some of the damaging information the tapes revealed.

Allied filed an action alleging violations of federal and

state wiretapping laws. Dyer intervened. Ultimately,

plaintiff prevailed in the case, following a six-day bench

trial. The district court ruled that the CAR principals

violated the wiretap statutes. Cross-appeals were taken

on various issues. The First Circuit affirmed the district

(6th Cir.1976), when it rejected the principle that there was an

interspousal wiretapping exception under Title III and observed

“that there is a vast difference between overhearing someone on

an extension and installing an electronic listening device to

monitor all incoming and outgoing telephone calls.” Id. at 673 n.

24.

App. 10

court. The Williams court described the monitoring sys-

tem utilized by CAR as “alligator clips attached to a

microphone cable at one end” and an “interface connec-

ting [a] microphone cable to a VCR and a video camera

on the other.” Williams v. Poulos. 11 F.21 at 280 (internal

quotes omitted). The court conclude: that the monitoring

device was not a “telephone or telegraph instrument,

equipment or facility, or a[] component thereof{.]” Id.

(internal quotes and footnote omitted). The court stated

that “it [is] self evident that the CAR system, far from

being the type of exempt equipment contemplated by the

authors of the business extension exception, is precisely

the type of intercepting device Congress intended to reg-

ulate heavily when it enacted Title III.” Id.

The Fourth Circuit case of Sanders v. Robert Bosch

Corp., supra, involved a plaintiff who was a security offi-

cer whose employer, Guardmark, Inc., contracted to pro-

vide security services to Robert Bosch Corp. (“Bosch”).

Sanders was assigned to work at Bosch, where she

answered telephones in the security office. Bosch,

allegedly because it had received bomb threats, installed

a tape recording device known as a “voice logger” to

record all telephone conversations. Sanders filed suit

against Bosch alleging that Bosch had violated her rights

under Title III by recording, without her knowledge, all

of her telephone conversations. The district court held

that Bosch unlawfully intercepted Sanders’ conversations

because Bosch could not enjoy the business extension

exemption. On appeal, the Fourth Circuit stated that

“recording of a telephone conversation alone constitutes

an ‘aural . . . acquisition’ of that conversation.” Sanders v.

Robert Bosch Corp., 38 F.3d at 740 (footnote and citations

App. 11

omitted). Thus, the recording of conversations was an

interception “unless the recordings were not effected

‘through the use of any electronic, mechanical, or other

device.’” Id. Although Bosch’s argument was that its

voice logger was not an “electronic, mechanical, or other

device” because it fell within the business-use exception,

the court of appeals affirmed the district court's holding

to the contrary. Citing both Deal v. Spears and Williams v.

Poulos, the Fourth Circuit concluded that Bosch’s voice

logger did not meet the two prongs of the test for the

exception: “First, the voice logger must constitute a ‘tele-

phone or telegraph instrument, equipment or facility, or

a{ ] component thereof,’ either provided by, and installed

by, BellSouth in the ordinary course of its business or,

equivalently, supplied by Bosch for connection to

BellSouth facilities; second, Bosch’s use of the voice log-

ger must fall within the ordinary course of its business.”

Id.

We are convinced that Deal, Williams, and Sanders are

the best expressions of the law. Therefore, we conclude

that the recording mechanism (a tape recorder connected

to extension phones in Mrs. Murdock’s home) does not

qualify for the telephone extension (or business exten-

sion) exemption.

2. “Ordinary Course of Business” — 18 U.S.C.

§ 2510(5)(a)(i)

We discuss this issue, even though we have con-

cluded as a threshold matter, that the Radio Shack equip-

ment did not meet the Section 2510(5)(a)(i) requirements.

Assuming that the Second, Fifth, Tenth and Eleventh

App. 12

Circuits are correct in their analysis and that we are in

error to follow the First, Fourth and Eighth Circuits on

the threshold issue, the second issue is whether Mrs.

Murdock was intercepting and recording the telephone

calls in the ordinary course of her business as a sub-

scriber or user of the telephone extension.

Mrs. Murdock testified that her purpose was to check

on her husband’s business dealings related to their

mutual funeral business and also to check on his possible

marital infidelities.

A substantial body of law has developed on the

subject of ordinary course of business in the employment

field where employees have sued their employers. See,

e.g., Deal v. Spears, supra; Epps v. St. Mary’s Hosp. of Athens,

Inc., supra; Watkins v. L.M. Berry & Company, 704 F.2d 577

(11th Cir. 1983); Briggs v. American Air Filter Co., Inc., 630

F.2d 414 (5th Cir. 1980). These cases have narrowly con-

strued the phrase “ordinary course of business.” The

Briggs court declined to consider whether a general prac-

tice of random monitoring of employee phone calls could

ever be justified under the provisions of Section

2510(5)(a)(i), but did declare that when an employee’s

supervisor has particular suspicions about confidential

information being disclosed to a business competitor, has

warned the employee not to disclose the information, has

reason to believe that the employee is continuing to dis-

close the information and knows that a particular phone

call is to an agent of the competition, it is within the

ordinary course of business to listen in on an extension

phone for at least as long as the call involves the type of

information the supervisor fears is being disclosed. The

Deal court found that the indiscriminate recording of 22

App. 13

hours of calls and subsequently listening to them was

beyond the “ordinary course of business.” The Watkins

court held that a personal call may not be intercepted in

the ordinary course of business under the exemption in

Section 2510(5)(a)(i), except to the extent necessary to

guard against unauthorized use of the telephone or to

determine whether or not a call is personal. The St.

Mary’s Hospital court followed the reasoning of Watkins

and found that the intercepted call was not personal but

did relate to the business of the employer and was thus

intercepted in the ordinary course of the hospital’s busi-

ness.

We find that the indiscriminate recording of both

incoming and outgoing calls by Mrs. Murdock does not

constitute conduct within the ordinary course of the

funeral home business in which she had an interest as a

part owner.

This case is unique, however, in that Mrs. Murdock

had a dual purpose in recording the phone calls. She was

also concerned about her marriage and the alleged con-

duct of Murdock that threatened the marriage. As previ-

ously noted, the Sixth Circuit does not recognize a

spousal immunity or exception to Title III. United States v.

Jones, supra. The area of domestic disputes, along with the

area of employment litigation, has been a fertile field for

civil actions alleging a violation of Title III.

The issue that emerges is whether the telephone

extension exemption is applicable under any set of cir-

cumstances in this circuit given the decision in Jones that

Title III does apply to interspousal wiretapping within

the marital home. The district court opined that the

App. 14

efforts of Mrs. Murdock in taping her husband’s conver-

sations fell within the ordinary course of business and

cited the Simpson and Anonymous courts as support. The

Simpson court had stated that “it is clear that Congress

did not intend to prohibit a person from intercepting a

family member’s telephone conversations by use of an

extension telephone in the family home,” Simpson v. Simp-

son, 490 F.2d at 809, and the district court appeared to rely

on that citation to find that Mrs. Murdock’s indiscrimi-

nate taping of conversations fell within the “ordinary

course of business.”

Simpson recognized what is generally referred to as

the interspousal exemption with respect to wiretapping

in the marital home. The case involved a civil suit by a

former wife against her former husband who had used a

wiretap and recording device to capture her conversa-

tions with another man that were described as mildly

compromising. The opinion focused on the inadequacy of

the legislative history as to whether interspousal wiretap-

ping was a target of Title III and then pointed to the

telephone extension exception contained in Section

2510(5)(a)(i), along with the presence of criminal penal-

ties for a violation of Title III, to support its conclusion

that there was no federal cause of action for the redress of

the former wife’s grievances against her former husband.

It is noteworthy that Simpson did not make the declara-

tion that the husband’s conduct fell within the Section

2510(5)(a)(i) exception, but rather that the exemption was

indicative of Congress's intention to abjure from deciding

a very intimate question of familial relations: that of the

extent of privacy family members may expect within the

home vis-a-vis each other.

App. 15

Two years later in United States v. Jones, supra, this

circuit rejected Simpson to the extent it could be read as

proclaiming a broadly-based interspousal exemption for

wiretapping. Jones had been indicted for intercepting

telephone conversations with his estranged wife and

using the contents of the intercepted communications in

violation of 18 U.S.C. § 2511(1)(a) and (d). The district

court, in reliance on Simpson, dismissed the indictment.

The government appealed and the dismissal was

reversed. Jones, like the former husband in Simpson, had

placed a bug on the telephone and intercepted his wife's

conversations. The Jones court, like the court in Simpson,

referred to the legislative history and then opined:

The Simpson Court noted that the majority

of the legislative history dealt with electronic

surveillance by law enforcement officials and

found the discussion of private surveillance to

be inconclusive on the desired scope of the Act's

prohibitions. 490 F.2d at 807. However, the legis-

lative history leaves no doubt that the Act was

intended to reach private electronic surveillance

and that Congress was aware that a major area

of use for surveillance techniques was the prep-

aration of domestic relations cases. Professor

Robert Blakey, publicly credited with being the

author of Title III, testified before the Subcom-

mittee on Administrative Practice and Pro-

cedure of the Senate Judiciary Committee that:

[P]rivate bugging in this country can be

divided into two broad categories, commer-

cial espionage and marital litigation.

Congressional awareness that the Act’s prohibi-

tion of private surveillance would be applicable

to domestic relations investigations is refl

App. 16

in the comments of Senator Hruska, one of the

co-sponsors of the bill, which were joined by

Senators Dirksen, Scott and Thurmond:

A broad prohibition is imposed on private

use of electronic surveillance, particularly

in domestic relations and industrial espio-

nage situations.

Our review of the legislative history of this

section, testimony at congressional hearings,

and debates on the floor of Congress, inescapa-

bly lead to the conclusion that 18 U.S.C.

§ 2511(1)(a) establishes a broad prohibition on

all private electronic surveillance and that a

principal area of congressional concern was

electronic surveillance for the purposes of mari-

tal litigation.

The Simpson Court was privy to many of the

same materials which were reviewed by this

Court. See 490 F.2d at 806-809 nn. 8-16. However

in Simpson their importance was discounted

because the Court distinguished between

unaided surveillance by a spouse and surveil-

lance involving a third-party, even if instigated

by the spouse. 490 F.2d at 809. This distinction

has been seized upon in a subsequent case. See

Remington v. Remington, 393 F.Supp. 898, 901

(E.D. Pa. 1975). In our view, it is a classic “dis-

tinction without a difference.” For purposes of

federal wiretap law, it makes no difference

whether a wiretap is placed on a telephone by a

spouse or by a private detective in the spouse's

employ. The end result is the same — the privacy

of the unconsenting parties to the intercepted

conversation has been invaded. It is important

to recognize that it is not just the privacy of the

App. 17

targeted spouse which is being violated, but that

of the other party to the conversation as well.

United States v. Jones, 542 F.2d at 668-670 (footnotes omit-

ted).

Anonymous v. Anonymous, supra, became the third

case to examine whether Title III applied to interspousal

wiretaps used in preparation for divorce litigation. Anon-

ymous, like Simpson, involved a civil suit brought by an

ex-wife who contended that her ex-husband had taped

her telephone conversations with her eight-year-old

daughter while the daughter was in the exclusive custody

of the ex-husband. The district court dismissed the com-

plaint and the decision was affirmed on appeal. The

Anonymous court declared that it would have been lawful

for the father to have listened to mother-daughter phone

calls on a telephone extension because it would have

constituted a use in the ordinary course of business sanc-

tioned by Section 2510(5)(a)(i). The court concluded that

the taping of the phone calls constituted “a distinction

without a difference.” Anonymous v. Anonymous, 558 F.2d

at 679 (citing Simpson, 490 F.2d at 809). The Anonymous

court observed that the extension telephone exemption

was not available in the Jones case and further noted that

the defendant in Jones “invaded the privacy of innumer-

able persons, known and unknown|,]” Id., a fact which, in

the Anonymous court's view, removed that case from the

province of mere domestic conflicts. The court then con-

cluded that the Jones court had correctly held that the

federal wiretap statutes proscribed the defendant's

alleged conduct.

App. 18

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

denied, 503 U.S. 951 (1992), provided the Tenth Circuit

with the opportunity to examine whether Title III civil

actions were subject to an interspousal wiretapping

exemption. The district court rejected the holdings of

Simpson and Anonymous and joined the Fourth, Sixth and

Eighth Circuits in holding that spousal wiretapping is

actionable under Title III. The defendant-appellant hus-

band had installed a recording device on the extension

telephone located in a barn adjacent to the marital home

at a time when he and the plaintiff-appellee wife were

living together and prior to their eventual divorce. The

husband used the wiretap to record his wife’s conversa-

tions for nearly three months and played at least one of

the conversations for his secretary. The husband was the

Director of the Oklahoma Bureau of Narcotics and Dan-

gerous Drugs. He testified at trial that he had been

receiving death threats by telephone and wanted to

record them. The opinion recites that the jury rejected the

husband’s explanation for the taping and awarded sub-

stantial compensatory and punitive damages. The opin-

ion focuses on what is described as the appellant's central

argument, i.e., that the district court erred in ruling that

Title III applies to interspousal wiretapping within the

marital home by failing to follow Simpson. The Heggy

opinion rejected Simpson and opined:

We reject not only the Simpson court's

method of statutory analysis but also its inter-

pretation of the legislative history. Instead, we

agree with the district court that the legislative

history of Title III] evinces a congressional

awareness of the widespread use of electronic

eavesdropping in domestic relations cases and

App. 19

an intent to prohibit such eavesdropping. See

Remarks of Sen. Long, Hearings on Invasions of

Privacy Before the Subcomm. on Admin. Prac-

tice and Procedure of the Sen. Comm. on the

Judiciary, 89th Cong. 1st Sess., part 5 at 2261

(1965-66) (“The three large areas of snooping in

this [non-governmental] field are (1) industrial

(2) divorce cases, and (3) politics. So far, we

have heard no real justification for continuance

of snooping in these areas.”).

Professor Robert Blakey, generally credited

as the architect of Title III, testified that “private

bugging in this country can be divided into two

broad categories, commercial espionage and

marital litigation.” Hearings on the Right to Pri-

vacy Act of 1967 Before the Subcomm. on

Admin. Practice and Procedure of the Sen.

Comm. on the Judiciary, 90th Cong., 1st Sess.,

part 2 at 413 (1967). Senator Hruska, a co-spon-

sor of the bill, commenting on the scope of the

statute, noted that “[a] broad prohibition is

imposed on private use of electronic surveil-

lance, particularly in domestic relations and

industrial espionage situations.” S.Rep. No.

1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.

Code Cong. & Admin. News 2110, 2112, 2274.

Moreover, and in light of the split of judicial

authority, had it been the intent of Congress to

keep interspousal wiretapping beyond the reach

of Title III, Congress could have expressly

excluded such wiretapping when it overhauled

Title III in the Electronic Communications Pri-

vacy Act of 1986, Pub.L. No. 99-508, 100 Stat.

1848. Although the Privacy Act amendments

App. 20

touched nearly every section of Title III, Con-

gress did not codify the judicially created excep-

tion for interspousal wiretapping found in

Simpson.

* * *

. . . It is highly unlikely, as some courts have

suggested, see Lizza v. Lizza, 631 F.Supp. 529, 533

(E.D.N.Y. 1986), that applying Title III to inter-

spousal wiretapping will result in increased fed-

eral regulation of domestic relations. Rather, the

more likely result is a decrease in interspousal

wiretapping. See Wiretapping and Modern Mar-

riage, 91 Dick. L.Rev. at 882-83.

Hegegy v. Heggy, 944 F.2d at 1540-41 (footnotes omitted).®

Since the Anonymous court ruled, a series of decisions

involving Title III and the telephone extension exemption

in a family setting involving children have emerged. In

Newcomb v. Ingle, supra, the act of a custodial parent in

taping a minor child’s conversation within the family

home was determined to be permitted by a broad reading

of Section 2510(5)(a)(i).

Scheib v. Grant, 22 F.3d 149 (7th Cir.), cert. denied, __

U.S. __, 115 S. Ct. 320 (1994), presents a variation of the

8 The Heggy opinion does not reveal to what extent; if any,

the defendant-husband relied on the extension telephone

exemption recognized by Section 2510(5)(a)(i), nor does it dis-

cuss its possible applicability under the facts of that case. How-

ever, in view of the fact that the plaintiff-wife did not consent to

the taping and was not informed of the recording, it seems

apparent that the jury’s rejection of the reason advanced by the

defendant-husband for the taping was reasonable and also

probably explains why the defendant’s main focus was on the

interspousal exemption recognized by Simpson.

App. 21

civil litigation spawned by the provisions of Title III. A

mother, Lynn Scheib, brought an action against the

father’s attorneys and her child’s guardian ad litem seek-

ing damages for violations ‘of both Title III and Illinois

eavesdropping statutes. The parents were involved in a

custody and visitation dispute as the mother, who had

custody, prepared to leave Illinois with the child. Her

husband’s emergency motion for injunctive relief had

prevented the departure of the child. The father had

temporary custody by way of visitation rights and used a

telephone answering machine attached to an extension

phone to record at least two phone conversations

between the mother and child. The father’s attorneys

agreed with the father that the taped conversations

showed that harm was being done to the child and the

tapes were delivered to the guardian ad litem. After the

mother’s lawyers learned of the existence and content of

the tapes, they successfully prevented the use of the tapes

in the state proceedings and the removal of the child was

agreed upon by the parties. Keeping her promise not to

sue the father, the mother instead sued the father’s law-

yers and the guardian ad litem. The district court granted

summary judgment to the defendants after determining

that the phone extension exemption applied to the home

as well as the marketplace. The circuit court affirmed,

holding that the recording of the child’s conversations fell

within the ordinary course of business as it declared:

We cannot attribute to Congress the intent to

subject parents to criminal and civil penalties

for recording their minor child’s phone conver-

sations out of concern for the child’s well being.

App. 22

Scheib v. Grant, 22 F.3d at 154. The plaintiff-mother had

argued that the husband had a dual purpose in the

recording in that he also desired to obtain negative infor-

mation about his ex-wife. The circuit inferentially

acknowledged that proof of such a purpose would be

actionable, but that the plaintiffs had failed to come for-

ward with any proof of such a motive.

This court concludes that the absence of an inter-

spousal exemption from the restrictions of Title III as

recognized by this circuit, together with the general prop-

osition that spying on one’s spouse does not constitute

use of an extension phone in the ordinary course of

business, defeats the government's reliance on the propo-

sition that the telephone extension exemption of Section

2510(5)(a)(i) applies to Mrs. Murdock’s pervasive record-

ing of the intercepted telephone calls involving many

persons other than her husband.

Consequently, we turn to the question of whether the

statutory suppression provisions of Section 2515 apply in

this case.

C. Application of 18 U.S.C. § 2515

_ Section 2515 of Title III provides that when “any wire

or oral communication has been intercepted, no part of

the contents of such communication and no evidence

derived therefrom” can be used in any proceeding “if the

disclosure of that information would be in violation of

[Title III].” Murdock takes the position that, if his ex-

wife’s tape recordings are found to violate Title III, then

Section 2515 requires suppression. He points to the case

of United States v. Vest, 639 F. Supp. 899 (D. Mass. 1986),

App. 23

aff'd, 813 F.2d 477 (1st Cir. 1987), in support of this propo-

sition.

The Vest court concluded. that suppression of an ille-

gally recorded transaction was required in the prosecu-

tion of defendant Vest for perjury. Vest was a Boston

police detective who allegedly conspired with Detective

Francis Tarantino and one Jesse James Waters (who had

shot Tarantino) to use Tarantino’s efforts, in return for

$300,000 from Waters, to assure that Waters would not be

sentenced to prison if he pled guilty to the various

charges against him stemming from the shooting. Vest

was to be the conduit for the payments to Tarantino.

Without Vest’s knowledge, Waters recorded the transac-

tion and accompanying discussion. When Waters was sen-

tenced to prison, he turned over the tape to investigating

authorities. After Vest was granted immunity, he testified

before a grand jury that he had not participated in

Waters’s payment to Tarantino. When confronted with

Waters’s tape, Vest denied that it was his voice. The

grand jury indicted Vest for perjury.

The district and circuit courts found that the inter-

ception was unlawful in that it was made in violation of

Section 2511(1)(a) and (2)(d). In affirming the district

court’s suppression of the unlawfully intercepted evi-

dence, the Court of Appeals stated:

In Gelbard v. United States, 408 U.S. 41, 47-52, 92

S. Ct. 2357, 2360-63, 33 L.Ed.2d 179 (1972), the

Supreme Court exhaustively reviewed the legis-

lative history of Title III and concluded that “the

protection of privacy was an over-riding con-

gressional concern” when it enacted Title III, id.

at 48, 92 S.Ct. at 2361, and that section 2515’s

App. 24

“importance as a protection for ‘the victim of an

unlawful invasion of privacy’ could not be more

clear.” Id. at 50, 92 S.Ct. at 2362. As the Court

recognized in Gelbard, id. at 51-52, 92 S.Ct. at

2362-63, . . . an invasion of privacy is not over

when an interception occurs, but is com-

pounded by disclosure in court or elsewhere.

The impact of this second invasion is not less-

ened by the circumstance that the disclosing

party (here, the government) is merely the inno-

cent recipient of a communication illegally inter-

cepted by the guilty interceptor (here, Waters).

United States v. Vest, 813 F.2d at 481. Thus, the First

Circuit read Gelbard as standing for the proposition that

any and all illegally intercepted evidence must be sup-

pressed in order to protect the victim’s privacy.

We do not read Gelbard as broadly as did the Vest

court. Gelbard involved a witness’s challenge to a finding

of civil contempt for refusing to testify before the grand

jury, invoking as a defense the ground that the interroga-

tion was to be based on information allegedly intercepted

by illegal wiretapping and electronic surveillance con-

ducted by federal agents. The witness wanted an oppor-

_tunity to challenge the legality of the interceptions before

he would be required to testify. Instead he was found in

contempt. The Supreme Court held that, in civil contempt

proceedings, a witness can invoke Section 2515 as a

defense since a finding that the interception was illegal

would constitute the “just cause” that precludes civil

contempt under 28 U.S.C. § 1826(a). In Gelbard, the wit-

ness was asserting that the government itself had

engaged in illegal wiretapping and electronic surveil-

lance. The Gelbard Court’s discussion of the legislative

Pe: OR en TC ee Ee eT wee ee

App. 25

history of Section 2515, read in context of the facts of the

case, emphasized not that individuals are just generally

entitled to have their privacy protected, but that they are

specifically entitled to protection from unscrupulous law

enforcement procedures which invade their privacy. The

point of Gelbard was that if the government was eventu-

ally shown to have illegally intercepted the conversa-

tions, then the witness was entitled under Title III to have

that evidence suppressed and completely excluded from

any line of questioning in any proceeding, including a

grand jury proceeding. To cite Gelbard as standing for the

proposition that the entire purpose of Title Ill is to pre-

vent victimization in the form of invasion of privacy goes

too far. As a result, we think that Vest was wrongly

decided and we decline to follow it.

The district court in the instant case acknowledged

the Vest holding and it, too, expressly declined to follow

it. Instead, the district court relied on United States v.

Underhill, 813 F.2d 105 (6th Cir.), cert. denied, 482 U.S. 906

(1987), to justify a “clean hands” exception to Section

2515.9

In Underhill, this circuit refused to apply Section 2515

to an unlawful interception because the defendants had

been a party to the unlawful interception. Underhill and

others had been engaged in a book-making operation. To

9 The district court did not actually need to reach this issue

since it had already determined, wrongly in our view, that Mrs.

Murdock’s activities did not violate Title III. The court found it

necessary to explain why “[e]ven if the tape recorded conversa-

tions fell under Title III’s definition of an interception, the court

would not suppress the recordings as evidence.” (J.A. at A-67).

App. 26

protect the integrity of the bets received, the bookies had

recorded telephonically-placed bets. A search of the

premises of the bookies had led to the discovery of the

tapes which recorded the bets. As the interception was

made for the purpose of committing a criminal act, it was

deemed unlawfully intercepted. The bookies moved to

suppress the tapes by invoking the provisions of Section

2515. The district court agreed and the government

appealed. Judge Lively, writing for the unanimous panel,

declared:

It seems clear that neither the general pur-

pose of Title III to protect the privacy of parties

who use wire and oral communications nor the

particular purpose of §2511(2)(d) to prevent

misuse of the communications against a party to

such communications would be served by sup-

pressing the tapes in this case. In fact to do so

would turn the statute on its head.

* x *

... Title III provides protection to the victims of

unlawful interceptions, not to the per-

petrators. .. . We think it is clear that Congress

did not intend for § 2515 to shield the very

people who committed the unlawful intercep-

tions from the consequences of their wrong-

doing. . . . If the language of §§ 2511(2)(d) and

2515 were applied literally to Underhill and

Rokitka it would produce an absurd result that

we are confident Congress did not intend.

United States v. Underhill, 813 F.2d at 111-112 (citations

omitted). The district court in the instant case found that

“suppression of the evidence in this case would similarly

place Congress’s intent on its head[.]” (J.A. at A-71).

App. 27

While Underhill stands for the proposition that the

suppression provisions of Section 2515 are not absolute,

the instant case differs in a major respect from Underhill

and most of the other case law which has built up around

Section 2515, namely, in that the defendant was not the

perpetrator but rather the victim of the interception and

recording. The government, nonetheless, contends that

the district court was correct in his recognition of a “clean

hands” exception to Section 2515 since such recognition

would not create the problem of government agents

encouraging violations of Title Il]. We agree with the

district court in his analysis.

The government also relies, correctly in our view, on

the case of United States v. Baranek, 903 F.2d 1068 (6th Cir.

1990). In Baranek, police officers executing an authorized

wiretap of a telephone overheard and recorded an

extended non-telephonic conversation over the tapped

line when the telephone receiver was inadvertently left

off the hook. The court found it unnecessary to suppress

the recorded conversation under Section 2515, explaining

as follows:

There is no doubt the government got a

lucky break of sorts here and stumbled across

the evidence involving [the defendant]. There is

nothing in the fourth amendment or Title II,

however, that demands that law enforcement

and the public should lose the right to use this

evidence. Although we concede that where Title

III provides greater protection than the fourth

amendment a defendant is entitled to the

enhanced protection, we do not accept defen-

dant’s contention that fourth amendment law is

App. 28

not involved in the resolution of Title II] sup-

pression issues. The Supreme Court has indi-

cated to the contrary:

Any lingering doubt is dispelled by the leg-

islative history which, as we have recog-

nized before in another context, declares

that § 2515 was not intended “generally to

press the scope of the suppression role

beyond present search and seizure law.”

S.Rep. No. 1097, 90th Cong., 2d Sess., 96

(1968). See Alderman v. United States, 394

U.S. 165, 175-176 [89 S.Ct. 961, 967-68, 22

L.Ed.2d 176] (1969).

Scott v. United States, 436 U.S. 128, 139, 98 S.Ct.

1717, 1724, 56 L.Ed.2d 168, reh’g denied, 438 U.S.

908, 98 S.Ct. 3127, 57 L.Ed.2d 1150 (1978) (foot-

note omitted). Where, as here, we have a case

with a factual situation clearly not contemplated

by the statute, we find it helpful on the suppres-

sion issue (as opposed to the question of

whether there was a violation of the authoriza-

tion order) to look to fourth amendment law. We

note in that regard that government agents are

charged with no wrongdoing and that to sup-

press here would have no impact on the future

conduct of law enforcement officials. In the

usual fourth amendment calculus, these are fac-

tors that counsel against the necessity of sup-

pression.

United States v. Baranek, 903 F.2d at 1072 (emphasis in

original).

As in Baranek, the government here got “a lucky

break.” It was in no way involved in Mrs. Murdock’s tape

recording activities and the defendant makes no claim

that Mrs. Murdock was an agent of the government.

App. 29

Suppression of the evidence would have no deterrent

effect. As the district court properly noted: “The intent of

Congress would certainly have been followed had section

2515 served to deter Mrs. Murdock, but no deterrent effect

is worked on the government in this case.” (J.A. at 9,

emphasis added).

Our independent reading of the legislative history of

Title III leads us to the conclusion that while privacy was

a major goal of the legislation, it was privacy in a particu-

lar context, namely, that an individual who is the victini of

an unlawful interception is entitled to protection in court

proceedings from any attempt by the perpetrator to use

the interception against the victim or in any way to

benefit from the information which was either contained

in, or was the fruit of, the unlawful interception. The

exception to this is the situation, like Underhill, where the

person himself was the interceptor. There is nothing in

the legislative history which requires that the government

be precluded from using evidence that literally falls into

its hands.

As suggested by Baranek, Fourth Amendment law is

also instructive here. It is well established that evidence

obtained by a private search is not subject to the Fourth

Amendment exclusionary rule. In United States v. Jacobsen,

466 U.S. 109 (1984), the Supreme Court acknowledged

that the Fourth Amendment protection against unreason-

able searches and seizures “is wholly inapplicable ‘to a

search or seizure, even an unreasonable one, effected by a

private individual not acting as an agent of the Govern-

ment or with the participation or knowledge of any gov-

ernmental official.’” Id. at 113 (quoting Walter v. United

App. 30

States, 447 U.S. 649, 662 (1980) (Blackmun, J., dissenting)

(footnote omitted).

10 In Jacobsen, when a private freight carrier damaged a

package with a forklift, employees of the carrier opened the

package to examine its contents, pursuant to a written company

policy relating to insurance claims. They discovered several

sheets of crumpled newspaper covering a tube containing four

zip-lock plastic bags “nested” one inside the other. The inner-

most zip-lock plastic bag held about six and one-half ounces of

white powder. They immediately notified the Drug Enforce-

ment Administration (“DEA”); however, before the DEA agent

arrived, the carrier’s employees replaced the plastic bags in the

tube and returned the tube and the newspapers to the original

container. When the agent arrived, he observed that the box top

was open and that one end of the tube inside the box had been

cut open. He removed the four plastic bags and observed the

white powder. A field test immediately performed identified

the substance as cocaine. On the strength of this information,

the DEA obtained a warrant to search the place to which the

package had been addressed. Arrests were made and, when the

defendants were indicted for possessing an illegal substance

with intent to distribute, they filed a motion to suppress on the

ground that the warrant was the product of an illegal search and

seizure. The mction was denied; defendants were tried, con-

victed and sentenced. They appealed. The Court of Appeals for

the Eighth Circuit reversed, holding that the agents’ field test-

ing of the white powder constituted a significant expansion of

the earlier private search and that a warrant was required prior

to the field tests. The Supreme Court granted certiorari. The

Court noted that “[t]he agent’s viewing of what a private party

had freely made available for his inspection did not violate the

Fourth Amendment.” 466 U.S. at 119-120 (citations omitted).

The Court further noted that “the removal of the plastic bags

from the tube and the agent’s visual inspection of their contents

enabled the agent to learn nothing that had not previously been

App. 31

The Vest court specifically rejected any application of

a “judicially-fashioned” fourth amendment exclusionary

rule to the “congressionally-created rule of Section

2515{.]” United States v. Vest, 813 F.2d at 481. The court

“agree[d] with the district court that to hold that section

2515 allows the government's use of unlawfully inter-

cepted communications where the government was not

the procurer ‘would eviscerate the statutory protection of

privacy from intrusion by illegal private interception.’

639 F. Supp. at 914-15.” The court quoted United States v.

Giordano, 416 U.S. 505, 528 (1974) for the proposition that

this type of protection of privacy “play[s] a central role in

the statutory scheme[.]” This quotation from Giordano is

taken out of context. Giordano can clearly be distin-

guished as a case in which the government itself had

failed to comply with the terms of the statute and thereby

wrongfully procured a wiretap from which evidence

sought to be admitted had been obtained."

learned during the private search.” Id. at 120. The Court thus

concluded that since no legitimate expectation of privacy had

been infringed, no “search” within the meaning of the Fourth

Amendment had occurred. It further concluded that the agents’

“seizure” of the package and its contents was not unreasonable

under the circumstances. The Court also addressed the question

of whether the field test of the powder, which exceeded the

scope of the private search, constituted an unlawful “search” or

“seizure” under the Fourth Amendment and concluded that,

“It]o the extent that a protected possessory interest was

infringed, the infringement was de minimis and constitutionally

reasonable.” Id. at 126.

11 Giordano involved a question of whether the government

had sufficiently complied with the procedural requirements set

forth in Title Ill for applying for a wiretap. The specific issue

related to language in Section 2516(1) “conferring power on the

App. 32

In this case, the government played no part in the

unlawful interception. In fact, a number of years inter-

vened before the defendant’s conduct became manifest.

Under the circumstances of this case, we find that any

privacy interest which the defendant may have had is

protected solely by his right to bring a civil action against

his former wife. However, he does not enjoy the addi-

tional right to the suppression of the interceptions where,

as here, the government took no part in the interceptions.

In our view, it is appropriate under the legislative history

and the case law to apply a “clean hands” exception to

Section 2515.

IV. Conclusion

We REVERSE the district court’s conclusion that the

tape recorded conversations at issue here fall within the

‘Attorney General, or any Assistant Attorney General specially

designated by the Attorney General’ to ‘authorize an applica-

tion to a Federal judge .. . for . . . an order authorizing or

approving the interception of wire or oral communications” by

federal investigative agencies seeking evidence of certain desig-

nated offenses[.]” United States v. Giordano, 416 U.S. at 507-08, 94

S. Ct. at 1823. The Attorney General had delegated his Executive

Assistant, who was not an “Assistant Attorney General,” to

authorize applications when the Attorney General was out of

the office, as he was in the circumstances of the case. It was in

this context that the Giordano Court made the “central role”

statement quoted by the First Circuit. In fact, the actual state-

ment made by the Supreme Court was that it was “confident

that the provision for pre-application approval was intended to

play a central role in the statutory scheme and that suppression

must follow when it is shown that this statutory requirement

has been ignored.” Id. at 528.

App. 33

telephone, or business, extension exemption of 18 U.S.C.

§ 2510(5)(a)(i).

We AFFIRM the district court’s conclusion that the

government is entitled to a “clean hands” exception to 18

U.S.C. § 2515.

Because our holding, although reversing the district

court in part, reaches the same result as the [sic] did the

district court, there is no need to remand. The defen-

dant’s conviction and sentence are AFFIRMED.

App. 34

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, CASE NO. 93-

ae CR-80036-DT

Plaintiff, JUDGE

v. PAUL V. GADOLA

HAROLD MURDOCK,

Defendant.

REPORT AND RECOMMENDATION

I. RECOMMENDATION:

The Court should deny the motion of defendant Mur-

dock to dismiss the indictment and/or to suppress evi-

dence.

II. REPORT:

1. Defendant Harold D. Murdock (“Murdock”) is

charged in a one-count indictment with a violation of 26

U.S.C. § 7201, i.e., willfully attempting to evade and

defeat the payment of income taxes due for the calendar

year 1985.

On March 16, 1993, Murdock filed a motion to dis-

miss the indictment and/or to suppress evidence. He

contends that the case against him “is based in significant

part upon evidence acquired through unlawful electronic

surveillance” and seeks an order suppressing any use by

App. 35

the government of “a certain tape recorded conversation,

and any and all evidence derived from that recording.”

2. The government’s response to the motion was

filed on May 17, 1993. In the memorandum in support of

the response, the government represents the following

factual scenario:

A brief description of the tape, the circum-

stances under which it was made, and the cir- 4

cumstances under which it came into the

possession of the government is helpful. The

tape is not a single conversation, but contains a

series of telephone calls between defendant and

other participants in the bribe activity. At the

time in question, defendant operated a funeral

parlor that was attached to his home, with tele-

phone extensions in both the home and funeral

parlor. The conversations in question were made

with these telephones. The tape was made

through the use of an answering machine that

was attached to one of the telephone extensions,

and the tape was made by a member of defen-

dant’s family, who had proper access to the

subject business, home, telephones, and answer-

ing machine.

The family member recuynized that the

recorded conversations concerned activity that

was illegal and which victimized other bidders

on the food supply contract which was the sub-

ject of the conversations. For this reason, the

family member provided a copy of the conversa-

tions to Mr. McLemore with the accompanying

note entitled ‘Concerned Citizens.’ As stated in

the newspaper article, Mr. McLemore in turn,

provided it to the newspaper. The Internal Reve-

nue Service’s criminal investigation uncovered

App. 36

the identity of the family member who taped the

conversations and obtained the tape for the gov-

ernment’s use in this case.

Defendant’s reply adds the following:

We believe a hearing would produce evidence

that there were extension phones in three sepa-

rate buildings: two in private residences and

one at the Murdock Funeral Home; that the

recordings were indiscriminate as opposed to

those between family members; that Mr. Mur-

dock at the time was estranged from his wife;

and that the recordings may not have been made

by a family member of Mr. Murdock’s but rather

by Mr. Murdock’s estranged wife’s son of

another marriage.

The government has stipulated to the correctness of

defense counsel’s assertion that the conversations

between Murdock and others were recorded by a third

party, a family member, “without the consent of either of

the parties to the conversation.” Defense counsel admits

that the government had no knowledge that the person

intercepting the conversation was going to do so. Defense

counsel asserts that the parties to these conversations

were Steve Asmar, Ferd L. Hall and Murdock.

Murdock’s motion is based upon 18 U.S.C. § 2515,

which provides:

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived there-

from may be received in evidence in any trial,

App. 37

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 polit-

ical subdivision thereof if the disclosure of that

information would be in violation of this chap-

ter.

The government was not a party to the claimed ille-

gality. Murdock’s counsel relies on United States v. Vest,

813 F.2d 477 (1st Cir. 1987), for the proposition that there

is no “silver platter” exception to the exclusionary rule of

evidence written into § 2515 akin to that found in fourth

amendment jurisprudence, e.g., United States v. Jacobson,

466 U.S. 109, 113-18 (1984).

The government argues initially that the recordings

made of Murdock’s conversations were not interceptions

forbidden by § 2515. Interception is defined in part in

§ 2510(4) as the acquisition of the contents of any commu-

nication through the use of any electronic, mechanical or

other device. Section 2510(5) defines the term electronic,

mechanical or other device as any device other than any

telephone instrument furnished to the subscriber or user

by a provider of electronic communications service in the

ordinary course of its business and being used by the

subscriber or user in the ordinary course of its business.

Because the extension telephone from which the record-

ings were made had been furnished to Murdock and his

family for use in their business, argues government coun-

sel, it was not a device within the meaning of § 2510(5).

App. 38

The government relies on several civil cases for this

contention. In Anonymous v. Anonymous, 558 F.2d 677 (2nd

Cir. 1977), the Second Circuit concluded that a father had

not violated § 2515 by taping calls between his daughter

and his ex-wife through the mechanism of an answering

machine. The Court analogized this as an alternative to

listening in (presumably surreptitiously) via an extension

phone. Likewise, in Simpson v. Simpson, 490 F.2d 803 (5th

Cir. 1974), the Fifth Circuit concluded that family mem-

bers did not violate § 2515 by listening in on telephone

conversations involving other family members by picking

up an extension phone. So also, in Newcomb v. Ingle, 944

F.2d 1534 (10th Cir. 1991), the Tenth Circuit held that a

custodial parent had not violated § 2515 by recording

telephone conversations involving her minor child with-

out the child’s knowledge and consent. These recordings

were also made via an extension phone.

The government acknowledges that the Sixth Circuit

has explicitly left open the question as to whether § 2515

reaches a family member’s interception of a telephone

conversation by use of an extension telephone in the

family home. United States v. Jones, 542 F.2d 661 (6th Cir.

1976). The government argues for the dual propositions

“that the use of an authorized extension telephone to

obtain conversations is not an interception within the

meaning of Title III,” and “that the taping of conversa-

tions that were lawfully obtained with an extension tele-

phone is also not a violation of Title III.”

App. 39

Defendant relies principally on United States v. Jones,

supra, 542 F.2d 661 (6th Cir..1976), and United States v.

Wuliger, 981 F.2d 1497 (6th Cir. 1992). The Sixth Circuit in

Jones clearly disagreed with the holding of the Fifth Cir-

cuit in the prior case of Simpson v. Simpson, 490 F.2d 803

(5th Cir. 1974), which had been relied upon by the district

judge who dismissed the wiretapping charge. Jones was

an estranged husband no longer living in the marital

home who had surreptitiously placed a recording device

on his estranged wife’s phone while there to babysit.’ By

contrast, in the case at bar, the family member involved

did not introduce or hook up any of the equipment used

to record the conversations, but only activated equipment

that had either been placed there by Murdock himself or

with his apparent knowledge and consent. Thus, unlike

the defendant in Jones, this family member could not be

successfully prosecuted for a violation of Title III.

The decision in United States v. Wuliger, supra, does

not discuss the crucial issue involved in the case at bar.

Wuliger was a lawyer retained by a husband being sued

for divorce. The husband gave Wuliger recordings of all

telephone calls at their marital home for a one-week

period, saying to Wuliger that he had recorded these

telephone conversations, which included calls between

the wife, her priest, her marriage counselor, her attorney

and many of her friends, “with his wife’s knowledge.”

981 F.2d at 1500. It developed that the husband had in

1 The government contended that Jones had intercepted the

wife’s telephone conversations outside the curtilage of the resi-

dence. 542 F.2d at 663.

App. 40

fact secretly installed a wiretap device without the wife's

prior knowledge or consent. The husband was given

immunity in order to prosecute his lawyer. The Sixth

Circuit reversed the conviction, saying a new trial was

necessary because the jury had not been told it could not

convict Wuliger unless it found that he knew or had

reason to know that the recordings violated Title III. In

Wuliger, as in Jones, the factual scenario thus involves the

actual placement of equipment for the sole purpose of

secretly recording conversations involving other persons,

whereas in the case at bar the only action taken by the

putative violator of Title III was to activate equipment (an

answering machine) that was presumably known by Mur-

dock to be already in place.

I conclude, based on the factual scenario summarized

earlier in this report, that the family member involved in

this case did not violate Title III by activating equipment

already in place that Murdock knew or had reason to

know was there, i.e., extension phones with attached

recording devices for receiving phone messages. On this

basis, the motion lacks merit and should be denied,

unless the Court concludes that the taking of evidence to

establish the facts asserted is warranted before an adjudi-

cation is made.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek

review of this Report and Recommendation, but are

required to act within ten (10) days of service of a copy

hereof as provided for in 28 U.S.C. section 636(b)(1) and

E.D. Mich. LR 72.1(d)(2). Failure to file specific objections

App. 41

constitutes a waiver of any further right of appeal. United

States v. Walters, 638 F.2d 947 (6th Cir. 1981), Thomas v.

Arn, 474 U.S. 140 (1985), Howard v. Secretary of HHS, 932

F.2d 505 (6th Cir. 1991). Filing of objections which raise

some issues but fail to raise others with specificity, will

not preserve all the objections a party might have to this

Report and Recommendation. Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987),

Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991).

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objec-

tions is to be served upon this Magistrate Judge.

Within ten (10) days of service of any objecting

party’s timely filed objections, the opposing party may

file a response. The response shall be not more than five

(5) pages in length unless by motion and order such page

limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue

contained within the objections.

/s/ Paul J. Komives

UNITED STATES

MAGISTRATE JUDGE

Dated June 17, 1993

PURSUANT TO THE ILLEGIBLE

COPIES HAVE BEEN MAILED TO THE FOLLOWING:

/s/ Neil Fink, Esq.

/s/ Gary Felder, A.U.S.A.

ON June 17, 1993

/s/ Megible

DEBUTY COURT CLERK

App. 42

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF

AMERICA, CRIMINAL NO. 93-80036

Plaintiff, HONORABLE PAUL V.

GADOLA

U.S. DISTRICT JUDGE

HAROLD D. MURDOCK,

Defendant.

ORDER ACCEPTING MAGISTRATE JUDGE

KOMIVES’ JUNE 17, 1993

REPORT AND RECOMMENDATION

The court, pursuant to Rule 72(b) of the Federal Rules

of Civil Procedure, 28 U.S.C. § 636(b)(1)(B), LR 72.1(d)(2)

(E.D. Mich. Jan. 1, 1992), has reviewed the magistrate

judge’s June 17, 1993 report and recommendation as well

as defendant's June 24, 1993 objections thereto and the

government’s July 9, 1993 response to those objections.

After conducting a de novo review, the court accepts the

magistrate judge’s report and recommendations as the

court’s findings and conclusions.

NOW, THEREFORE, IT IS HEREBY ORDERED that

the magistrate judge’s June 17, 1993 report and recom-

mendation is ADOPTED.

App. 43

IT IS FURTHER ORDERED that defendant Mur-

dock’s motion to dismiss the indictment and/or to sup-

press evidence is DENIED.

/s/ Paul V. Gadola

PAUL V. GADOLA

UNITED STATES

DISTRICT JUDGE

DATED: 8/3/93

A TRUE COPY

BY /s/ Carolyn D. Orazio

DEPUTY CLERK

—-—- >

App. 44

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

3 SOUTHERN DIVISION

UNITED STATES OF

AMERICA, CRIMINAL NO. 93-80036

Plaintiff, HONORABLE PAUL V.

a GADOLA

U.S. DISTRICT JUDGE

HAROLD MURDOCK,

Defendant.

MEMORANDUM OPINION AND ORDER DENYING

DEFENDANT’S MOTION FOR REHEARING

On August 4, 1993, the court adopted the magistrate

judge’s June 17, 1993 report and recommendation and

denied defendant Harold Murdock’s motion to dismiss

the indictment and/or to suppress evidence. On August

9, 1993, defendant filed a motion for rehearing of the

court’s August 4, 1993 order. Pursuant to the motion for

rehearing, both the government and defendant requested

that an evidentiary hearing be held so that a full and

complete record could be made of the factual circum-

stances surrounding the issues underlying defendant's

original motion. On September 24, 1993, the court con-

ducted an evidentiary hearing and heard argument from

both sides on defendant’s motion for rehearing. Because

of the additional information garnered during the hear-

ing and because of the importance of this motion, the

court will engage in a more extensive analysis of the

issues than would normally be necessary on a motion for

App. 45

rehearing. For the reasons discussed below, the court will

deny defendant’s motion.

I. Facts

Defendant Harold Murdock is charged with tax eva-

sion under 26 U.S.C. § 7201. He stands accused of accept-

ing $90,000 in bribes without reporting the money as

income on his tax return. Defendant allegedly took the

bribes while he served as the President of the Detroit

Board of Education in exchange for assistance on a milk

contract between a private contractor and the Detroit

Public Schools. The government’s case depends, to a

great extent, on a series of taped telephone conversations

in which defendant discusses the bribes with another

school official. Defendant is asking this court to suppress

the tape recorded conversations pursuant to Title III of

the Omnibus Crime Control and Safe Streets Act of 1968

(“Title III”), 18 U.S.C. § 2515.

The tape recordings were made in 1985 by Georgia

Murdock, defendant’s ex-wife. At the time that the con-

versations took place, defendant and his wife operated a

funeral parlor together that was located next door to Mrs.

Murdock’s home. The Murdocks had been separated

since 1984, and Mr. Murdock no longer lived with his

wife.

Mrs. Murdock had filed for divorce and she sus-

pected that her husband was having an affair and that he

was stealing money from their joint funeral parlor busi-

ness. As a result, she decided to tape record her hus-

band’s phone conversations in order to assist her in the

divorce proceedings. Twelve years earlier, Mrs. Murdock

App. 46

had approached a private detective about investigating

her husband’s activities. He had told her that it was

illegal for him to tape record her husband’s telephone

conversations, but that she could do so on her own.

Mrs. Murdock purchased a tape recorder and some

telephone equipment at Radio Shack. The funeral parlor

had two telephone lines. There were also two extensions

for these lines next door in Mrs. Murdock’s house so that

calls to the funeral parlor could be answered at home.

Following instructions set forth in a Radio Shack manual

about phone installation, Mrs. Murdock attached a tape

recorder to each of the two business extensions located in

her home. One extension was located in her own bed-

room, and the other extension was located in a neighbor-

ing bedroom. She also attached an on/off switch so that

she could control when the tape recorders would operate.

Mrs. Murdock taped conversations for approximately

three months in 1985. She recorded conversations that

were conducted over the two business lines when she

was out running errands and when she was-at home.

After approximately three months of taping, she accumu-

lated about two shoe boxes full of tapes. Because Mrs.

Murdock did not always monitor the recorders when she

turned them on, some of the tapes contained conversa-

tions made by other employees of the funeral parlor. Mrs.

Murdock also kept a log of all of the conversations so that

she could keep track of them. She stopped taping when

her son by another marriage told her that the taping was

illegal. In 1992, Mrs. Murdock destroyed the tapes and

the log.

ft Ni, awe 6 et ga ee —

App. 47

In April of 1986, Mrs. Murdock read a newspaper

article about a company that was losing the Detroit

schools milk contract. Based on the conversations that she

had tape recorded, Mrs. Murdock recognized that her

husband was involved in the events described in the

article. As a result, Mrs. Murdock then anonymously sent

a tape to the company that lost out on the contract, Jo-

Dan Limited Company, in order to tell them about her

husband’s activities. Jo-Dan forwarded the tape to local

prosecutors and the Detroit Free Press.

The newspaper published a story about the alleged

bribes based on the tape recordings on May 16, 1986. As a

result of the story, federal agents began an investigation.

Il. Interception Under Title Ill

Defendant seeks to suppress the tape recorded con-

versations and all evidence derived from them pursuant

to 18 U.S.C. § 2515 of Title III. Section 2515 states that

[w]henever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived there-

from may be received in evidence in any tri-

al... if the disclosure of that information would

be in violation of this chapter.

Id.

The government argues that Mrs. Murdock’s tape

recordings are not interceptions as defined by Title III.

Interception is defined as the “acquisition of the contents

of any . . . communication through the use of any elec-

tronic, mechanical or other device.” Id. § 2510(4). Section

App. 48

2510(5) defines the phrase “electronic, mechanical or

other device.” It states that the phrase means any device

other than “any telephone... instrument .. . furnished to

the subscriber or user by a provider of . . . electronic

communications service in the ordinary course of its busi-

ness and being used by the subscriber or user in the

ordinary course of its business.” Id. § 2510(5)(a)(i).

The government claims that the extension telephones

from which Mrs. Murdock recorded the conversations

were not devices used to intercept conversations gov-

erned under the statute. Rather, the government contends

that the taping of conversations over an extension does

not constitute an illegal interception under Title III. In

support of its position, the government relies on several

civil cases that have allowed the taping of conversations

from a telephone extension. Newcomb v. Ingle, 944 F.2d

1534, 1536 (10th Cir. 1991), cert. denied, 112 S. Ct. 903

(1992); Briggs v. American Air Filter Co., Inc., 630 F.2d 414,

417 (5th Cir. 1980); Anonymous v. Anonymous, 558 F.2d 677,

679 (2d Cir. 1977); Simpson v. Simpson, 490 F.2d 803, 809

(Sth Cir.), cert. denied, 419 U.S. 897 (1974). For example, in

Anonymous, the court held that a father had not violated

Title III when he taped calls between his daughter and his

ex-wife using an answering machine. The court said that

listening in on an extension phone would be lawful, and

therefore, any tape recording of those conversations

would also be lawful. Anonymous, 558 F.2d at 679.

Defendant claims that United States v. Jones, 542 F.2d

661 (6th Cir. 1976) is dispositive of the issue. In Jones, the

Sixth Circuit found that there was not a spousal immu-

nity exception to Title II]. The court found that a defen-

dant who had surreptitiously placed a wiretap in his ex-

App. 49

wife’s home was in violation of Title III. As the govern-

ment correctly points out, however, the Sixth Circuit

specifically did not rule on the extension phone doctrine.

The court stated: “We express no opinion on the dictum

in Simpson v. Simpson, 490 F.2d at 809 n.17 that Title II

does not reach a family member’s interception of a tele-

phone in the family home.” Id. at 673 n.24. The court

further noted that “there is a vast difference between

overhearing someone on an extension and installing an

electronic listening device to monitor all incoming and

outgoing telephone calls.” Id. The facts in Jones, however,

are clearly different. In this case, Mrs. Murdock installed

a tape recorder in her own private bedroom to monitor

calls made on two business extensions, not a bug in

someone else’s home. Because the factual scenario pre-

sented in Jones is so different and because the Sixth

Circuit has not yet squarely addressed the issue, the court

is free to decide the issue.

The court finds that an interception covered by Title

III did not take place. The facts of this case present a very

close question, but the court will uphold its previous

decision on this issue. From her own bedroom, Mrs.

Murdock was listening in and tape recording conversa-

tions that were occurring over an extension that had been

installed by the telephone company. This extension is one

of the devices excepted from Title III by section

2510(5)(a)(i). Most courts have found that there is no

difference between listening in on an extension and

recording conversations overheard on the extension for

purposes of section 2510(5)(a)(i). See Epps v. Saint Mary’s

App. 50

Hosp. of Athens, Inc., 802 F.2d 412 (11th Cir. 1986) (inter-

ception device was not equipment used to record; inter-

ception device was extension phone); Newcomb, 944 F.2d

at 1536 (“The difference between listening on the exten-

sion and tapping the line within the home in the context

here is not material.”); Anonymous, 558 F.2d at 679 (no

distinction between listening in and recording over exten-

sion phone); Simpson, 490 F.2d at 803 (same); see also

United States v. Harpel, 493 F.2d 346, 350° (10th Cir. 1974)

(“recording device . . . cannot itself be the acquiring

mechanism”). But see Deal v. Spears, 980 F.2d 1153 (8th Cir.

1992) (tape recorder was the device, not the extension

phone). The court is persuaded that section 2510(5)(a)(i)

was intended to cover tape recordings made over exten-

sion phones. Recording what one can legitimately and

lawfully listen in on does not turn the act into an inter-

ception.

The next issue is whether the extension telephone

lines were used by Mrs. Murdock in the ordinary course

of business as required by section 2510(5)(a). If the exten-

sions were not used in the ordinary course of business,

then the tape recordings of the conversations over those

extensions would constitute illegal interceptions under

Title Il. Mrs. Murdock’s efforts at taping her husband’s

conversations were extensive and continuing. However,

her purpose was to investigate his marital infidelities and

his alleged theft of funds from their joint business. Con-

duct with such a purpose, although it should have been

limited and circumscribed to a much greater extent, falls

within the ordinary course of business. The “ordinary

course of business” language was included in section

2510(5) so as to prevent “policemen and private

App. 51

intruders” from entering homes and listening in on exten-

sion telephones. Anonymous, 558 F.2d at 679 (citing Hear-

ings on the Anti-Crime Program Before Subcomm. No. 5 of the

- House Judiciary Comm., 90th Cong., 1st Sess. 901 (1967)).

But see Harpel, 493 F.2d at 351 (limiting scope of ordinary

course of business). As the Simpson court stated, “it is

clear that Congress did not intend to prohibit a person

from intercepting a family member’s telephone conversa-

tions by use of an extension phone in the family home.”

Simpson, 490 F.2d at 809 n.17. A situation where an

intruder or government agent tapped an extension does

not present itself here. As a result, because the tape

recordings were not made pursuant to an interception as

defined under section 2510(5), they will not be excluded

from evidence under section 2515.

Ill. Exclusion Under Section 2515

Even if the tape recorded conversations fell under

Title III’s definition of an interception, the court would

not suppress the recordings as evidence. The government

was not a party to the tape recordings. It did not encour-

age, nor did it even have any knowledge of the taping.

Government agents learned of the existence of the tapes

by reading a newspaper story. No deterrent effect is

served by punishing the government for the alleged

wrongdoings of Mrs. Murdock. The exclusionary rule

governing evidence obtained improperly under the

Fourth Amendment is said to set the criminal free when

the constable blunders. The court does not believe that

through enactment of section 2515 of Title III, Congress

App. 52

intended to set the criminal free when the ex-wife blun-

ders.

The deterrent nature of section 2515 is supported by

the legislative history. Section 2515 was intended to

“impose[ ] an evidentiary sanction to compel compliance

with the other prohibitions of the chapter.” S. Rep. 1097,

90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. at

2185. The statute was intended to deny the “per-

petrator . . . the fruits of his unlawful actions in civil and

criminal proceedings.” Id. at 2156. The intent of Congress

would certainly have been followed had section 2515

served to deter Mrs. Murdock, but no deterrent effect is

worked on the government in this case.

The courts have already recognized an exception to

section 2515 in cases where the tape recordings are used

for purposes of impeachment. See, e.g., United States v.

Winter, 663 F.2d 1120, 1154 (1st Cir. 1981), cert. denied, 460

U.S. 1011 (1983); United States v. Caron, 474 F.2d 506 (5th

Cir. 1973). This exception was partly based on the legisla-

tive history of section 2515 which states that Congress did

not intend “to press the scope of [the] suppression role

[of section 2515] beyond present search and seizure law.”

S. Rep. No. 1097, supra, at 96, reprinted in 1968

U.S.C.C.A.N. at 2185. The report goes on to cite Walder v.

United States, 347 U.S. 62 (1954) as an example of the

search and seizure jurisprudence that Congress did not

intend to disrupt. Id. In Walder, the Court recognized an

exception to the Fourth Amendment exclusionary rule

when the illegally obtained evidence is used merely for

the purpose of impeachment.

App. 53

Under Fourth Amendment law, a similar exception

has been carved out in cases where government agents

receive evidence obtained by private parties. In United

States v. Jacobsen, 466 U.S. 109, 113-18 (1984), the Supreme

Court held that evidence falling into the government's

hands after a private search and seizure should not be

excluded. A similar exception applies in cases where

evidence is obtained in violation of the Fourth Amend-

ment by foreign government agents. United States v. Peter-

son, 812 F.2d 486, 490 (9th Cir. 1987) (“exclusionary rule

analysis” does not apply to “searches by foreign authori-

ties”); United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.

1978); Birdsell v. United States, 346 F.2d 775, 782 (Sth Cir.),

cert. denied, 382 U.S. 963 (1965).

The Supreme Court has interpreted the Fourth

Amendment to protect the individual’s legitimate expec-

tation of privacy. Similarly, one of the overriding con-

cerns in enacting Title III was the “protection of privacy.”

Gelbard v. United States, 408 U.S. 41, 48 (1972). One of the

ways Congress hoped to protect privacy was through

section 2515. Because evidence obtained in violation of

Title III would be excluded, violators have no incentive to

commit such wrongs. Furthermore, violators face civil or

criminal penalties when they violate Title III. See 18

U.S.C. §§ 2511 & 2520. Thus, by recognizing an exception

to section 2515 where the government is free of any

involvement in the interception and where contravention

of section 2515 is not intended, the mandate of Title III is

still protected. Those in violation of Title Ill, including

possibly Mrs. Murdock, would still face punishment even

if the government were allowed to use the evidence at a

criminal trial.

App. 54

The one court of appeals that has addressed the issue

has concluded that no clean hands exception applies to

section 2515. In United States v. Vest, 813 F.2d 477 (1st Cir.

1987), the court excluded a tape recording made by a

codefendant on a perjury charge. The court held that

even though the government played no role in the taping,

the evidence could not be used in the government’s case

in chief because Congress did not explicitly provide for

such exceptions.!

The Sixth Circuit has also addressed a situation

where the language of Title III was at odds with the intent

of Congress. In United States v. Underhill, 813 F.2d 105 (6th

Cir. 1987), the Sixth Circuit refused to suppress tapes of

gambling transactions made by the bookies themselves in

violation of Title III. In Underhill, even though the tapes

could be excluded under a literal reading of the language

at issue, the court found Congress would not have

intended that criminals who voluntarily recorded their

own wrongdoing should be protected by section 2515.

The court noted that a “result contrary to the literal

meaning of the words is justified when the literal applica-

tion of a statute will produce a result demonstrably at

odds with the intentions of its drafters.” Id. at 111.

Because the court finds that suppression of the evidence

in this case would similarly place Congress’s intent on its

head, the court will not follow the decision of the First

Circuit’s interpretation of section 2515.

1 The court did note, however, that the citation of Walder in

the legislative history did mean that an exception to section

2515 did exist if the evidence was used for purposes of impeach-

ment. Vest, 813 F.2d at 482.

App. 55

A clean hands exception to section 2515 will not

create the problem of government agents encouraging

violations of Title III. In the Fourth Amendment context,

similar possibilities arise. If government agents encour-

age private parties or foreign governments to violate the

Fourth Amendment in order to avoid the exclusionary

rule, then the Fourth Amendment has been violated and

the evidence will be excluded. The courts have carved out

such exceptions to the Fourth Amendment with an

awareness that abuse is possible. With either Title III or

the Fourth Amendment, abuse will always be possible.

The question is whether the fear of possible abuse should

bar evidence or a crime that the government legitimately

acquired. Congress intended that section 2515 should

prevent the perpetrator of an interception from getting

the fruits of his wrongdoing. Suppression of the evidence

in this case would not serve this congressional purpose.

Thus, even if the tape recordings were made pursuant to

an interception as defined by section 2510, the court

would still allow the evidence because the government

had no involvement in the alleged interception.

ORDER

Therefore, it is hereby ORDERED that defendant's

motion for rehearing is DENIED.

SO ORDERED.

Dated: 1/4/94 /s/ Paul V. Gadola

PAUL V. GADO

A LA

UNITED STATES

DISTRICT JUDGE

App. 56

NO. 94-1984

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, ORDER

(Filed

HAROLD D. MURDOCK, Oct. 6, 1995)

)

Vv. )

)

Defendant-Appellant. )

BEFORE: JONES and NORRIS, Circuit Judges; and

DOWD,’ District Judge.

The court received a petition for rehearing en banc,

and the petition having been circulated not only to the

original panel members but also to all other active judges

of this court, and no judge of this court having requested

a vote on the suggestion for rehearing en banc, the peti-

tion for rehearing has been referred to the original hear-

ing panel.

The panel has further reviewed the petition for rehear-

ing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER

OF THE COURT

/s/ Leonard Green

Leonard Green, Clerk

* Hon. David D. Dowd, Jr., United States District Judge for

the Northern District of Ohio, sitting by designation

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