Appendix — Randall v. Dellwood Farms, Inc.

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OO 421 SEP 19 2000

No. —— Orriuc OF THE CLERK

IN THE ~

Supreme Court of the Anited States

JAMES R. RANDALL

and

ARCHER-DANIELS-MIDLAND COMPANY,

Petitioners,

Vv.

DELLWOOD FARMS, INC., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

JEFFREY COLE AUBREY M. DANIEL, III

COLE & STAES, LTD. ee ee

321 S. Plymouth Court PAUL MOGIN

Suite 1150 WILLIAMS & CONNOLLY LLP

Chicago, Illinois 60604 725 Twelfth Street, N.W.

(312) 697-0200 Washington, DC 20005

Counsel of Record for (202) 434-5000

James R. Randall Counsel for Archer-Daniels-

Midland Company

* Counsel of Record

a stu eee emeieneemenainnnieatabiaeiael

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

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CONTENTS OF APPENDIX

Opinion of the Court of Appeals (June 19, 2000)....

Order of the District Court Granting in Part and

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APPENDIX A

In the

United States Court of Appeals

for the Seventh Circuit

Nos. 99-2032 et al.

In Re: High Fructose Corn Syrup

Antitrust Litigation

Dellwood Farms, Inc., et al.,

Plaintiffs-Appellants / Cross-Appellees,

v.

_ Archer Daniels Midland Company,

Defendant-Appellee / Cross-Appellant.

James R. Randall,

Intervenor-Appellee / Cross-Appellant.

Appeals from the United States District Court

for the Central District of Ilinois.

Nos. 95 C 1477, 97 C1203-Michael M. Mihm, Judge.

Argued April 14, 2000-Decided June 19, 2000

Before Posner, Chief Judge, and Ripple and Rovner,

Circuit Judges. Posner, Chief Judge. These appeals grow

out of a class action antitrust suit that is pending in a federal

district court in Illinois. The suit is by purchasers from

Archer Daniels Midland and other manufacturers and charges

2a

price fixing. In an earlier criminal investigation of the

alleged price-fixing conspiracy, an investigation that led to

criminal proceedings unnecessary to discuss here, an ADM

vice president named Whitacre made a number of secret

recordings both of face-to-face conversations, and telephone

conversations, with persons who he thought might be (and

most of them were, but not intervenor Randall) involved in

the conspiracy. He did this under unusual circumstances. He

had been defrauding ADM and apparently wanted to deflect

the FBI’s suspicions and so reported his employer’s price

fixing to the FBI and suggested that he tape record

incriminating conversations. The FBI agreed. Some of the

recordings were used in the criminal proceedings but many

were not, and those that were not remain in the files of the

Justice Department. The plaintiffs in the class action have

subpoenaed those recordings. ADM resisted the subpoena,

along with its former employee Randall who though not

implicated in the price fixing fears that some of the

recordings contain embarrassing statements by him on

unrelated matters. The Justice Department has no objection

to releasing the recordings to the plaintiffs. The district judge

ruled that the plaintiffs are entitled to them but, in the case of

the telephone conversations, not until the trial. His ruling is

before us under 28 U.S.C. § 1292(b).

A set of provisions of the federal criminal code commonly

known as “Title III’ regulates electronic surveillance both of

“oral communications” and “wire communications.” 18

U.S.C. §§ 2510 et seq. The latter term is broadly defined to

include communications any part of which goes over a wire;

so cellphone and satellite communications are covered. See

18 U.S.C. § 2510(1); H.R. Rep. No. 647, 99" Cong., 2d Sess.

31 (1986); United States v. Jackson, 207 F.3d 910, 914 (7"

Cir. 2000); United States v. Rivera, 153 F.3d 809, 810-11 (7"

Cir. 1998); United States v. Carrazana, 921 F.2d 1557, 1562

(1 i te. 1991); Shubert v. Metrophone, Inc., 898 F.2d 401

3a

(3d Cir. 1990); 1 James G. Carr, The Law of Electronic

Surveillance § 3.2(a), p. 3-5 (2000). The former term (“oral

communications”) is rather narrowly defined as a

nonelectronic “oral communication uttered by a person

exhibiting an expectation that such communication is not

subject to interception under circumstances justifying such

expectation.” The district judge thought that the face-to-face

conversations that Whitacre surreptitiously recorded were not

oral communications within this definition and so were

outside the protections of the statute. The judge reasoned that

the people whose conversations Whitacre was recording

could have had no basis for supposing their conversations not

subject to being recorded by one or more of the participants,

because the only basis for such an expectation could be the

Fourth Amendment, which has been held inapplicable to the

recording of conversations to which one of the parties_

consents. United States v. Caceres, 440 U.S. 741, 750

(1979); United States v. White, 401 U.S. 745, 751-52 (1971);

Lopez v. United States, 373 U.S. 427, 439 (1963); United

States v. Eschweiler, 745 F.2d 435, 437 oo Cir. 1984).!

The telephone conversations that Whitacre recorded clearly

fell within the statutory definition of wire communications.

But the judge thought a limited disclosure of their contents to

the plaintiffs authorized by section 2517(3), which allows a

person to disclose the contents of lawfully intercepted wire

communications “while giving testimony under oath or

affirmation in any proceeding held under the authority of the

United States or of any State or political subdivision thereof.”

Sl i aaah i

ies

1 In In re John Doe Trader Number One, 894 F.2d 240, 243 (7th Cir.

1990), Eschweiler was erroneously said to have been “reversed,” albeit on

other grounds, by Eschweiler v. United States, 877 F.2d 634 a ch.

; 1989). Although the later case is related to the earlier one, it did not

overrule the earlier one, or, indeed, criticize the earlier decision in any

respect.

4a

The judge rejected the argument that the only proceeding

contemplated by this provision is a government proceeding,

not a private suit such as we have here. But because he

interpreted “while giving testimony” literally, to mean that

the plaintiffs had no authority to obtain the recordings of

Whitacre’s wire communications until the trial, he thought it

premature to decide whether those communications had been

intercepted lawfully, which would mean in conformity with

either section 2511 (2)(c) or section 2511 (2)(d). The first of

these subsections provides that it is not unlawful under Title

Ill for a person acting under color of law to record his own

conversations, and the second that it is not unlawful for a

person not acting under color of law to record his own

conversations provided that he is not doing so for the purpose

of committing a crime or tort.

The district judge was following the law of this circuit in

holding that in defining “oral communications” by reference

to a justifiable expectation that they would not be intercepted,

Congress had limited the protection of the statute to situations

in which the interception would_ violate the Fourth

Amendment if done by the government. /n re John Doe

Trader Number One, 894 F.2d 240 (7" Cir. 1990); see also

Dorris v. Absher, 179 F.3d 420, 424-25 (6" Cir. 1999);

United States v. Longoria, 177 F.3d 1179, 1181-82 (10" Cir.

1999); Siripongs v. Calderon, 35 F.3d 1308, 1320-21 (9"" Cir.

1994). One might wonder why, if the statute tracks the

Fourth Amendment, the statute’s drafters bothered to carve an

express exception for oral communications intercepted by one

of the parties to the communication, given that such

interceptions do not violate the Fourth Amendment. Some

cases in other circuits suggest, in conformity with the

statutory language, that there can be a reasonable expectation

that one’s conversations even if not private will not be

intercepted electronically. See, e.g., Angel v. Williams, 12.

F.3d 786, 790 n. 6 (8" Cir. 1993); Walker v. Darby, 911 F.2d

5a

1573, 1578-79 (11" Cir. 1990); Boddie v. American

Broadcasting Companies, Inc., 731 F.2d 333, 338-39 and n. 5

(6" Cir. 1984). None of the cases, however, involves

recording one’s own conversations, as in this case.

Another issue on which there is no case law in this circuit

is whether the strangely worded section 2517(3) is limited to

legal proceedings brought by the government, as held in /n re

Motion to Unseal Electronic Surveillance Evidence, 990 F.2d

1015, 1018-20 (8 Cir. 1993) (en banc), and National

Broadcasting Co. v. United States Department of Justice, 735

F.2d 51 (2d Cir. 1984), although the wording seems merely a

shorthand for the longer and unambiguous definition in the

complementary section 2515 of proceedings as covering “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.” See also section

2518(10)(a). Another issue on which authority is scanty is

whether section 2517(3) is limited to trials and so excludes

discovery, which would be a particularly strange limitation,

though it was adopted (albeit in the briefest of discussions) in

In re Motion to Unseal Electronic Surveillance Evidence,

supra, 990 F.2d at 1020.

Regardless of how any of these issues is resolved, we think

the plaintiffs are entitled to all the recordings, to use as they

see fit except insofar as the district judge may exercise his

power under the Federal Rules of Civil Procedure to limit, by

protective order or otherwise, such disclosure of the contents

of the recordings as may infringe the privacy of parties to the

recorded conversations beyond what the plaintiffs require to

prosecute their antitrust case effectively. Fed. R. Civ. P.

26(c); Gile v. United Airlines, Inc., 95 F.3d 492, 496 (7 Cir.

1996); Jepson, Inc. v. Makita Electric Works, Ltd., 30 F.3d

854, 858-59 "ea Cir. 1994); 8 Charles Alan Wright, Arthur R.

6a

Miller & Richard L. Marcus. Federal Practice & Prarcedure

§ 2036 (2d ed. 1994),

Some states prohibit a person from recording his telephonic

or other conversations without the other person’s consent, but

Title III does not, unless the person both is not acting under

color of state law and has a criminal or tortious purpose. 18

U.S.C. §§ 2511 (2)(c), (d). “While Title If] . . . regulates

electronic surveillance conducted without the consent of

either party to a conversation, federal statues impose no

restrictions on recording a conversation with the consent of

one of the conversants.” United States v. Caceres, supra, 440

U.S. at 750. (This is a little broad, in ignoring the exception

in section 2511(d) for bad purpose.) If by virtue of sections

2511(2)(c) or (d) an interception is not prohibited by Title III,

there are no Title III restrictions on its use. Section 2517(3)

does not come into play and such questions as whether the

section authorizes disclosure only in government proceedings

and only at trial drop out; the meaning of “oral

communications” also becomes moot.

That interceptions exempted by sections 2511(2)(c) or (d)

are not subject to section 2517(3) is apparent from the

structure of Title III. Section 2511(1) forbids the interception

of covered communications (that is, oral, wire, or electronic)

“except as otherwise specifically provided in [Title III].”

There are two relevant sets of “otherwise specifically

provid[ing]” provisions. One is in subsection 2 of section

2511 and includes, as we have been emphasizing, most

conversations intercepted by (or with the consent of) one of

the parties. The other exceptions in subsection 2 include pen

registers, switchboard operators, marine distress signals, and

foreign intelligence surveillance-a heterogeneous array. In

each instance the excluded practice is described in its own

subsection together with any exceptions to the exception,

such as, in the case of section 2511(2)(d), for recording one’s

conversations for a criminal or tortious purpose. Each of the

Ta

exception. subsections.in section I MD, irroonater ad sth -

contained. But then there is another set of provisions,

sections 2516 to 2519, defining and implementing the key

exception for interceptions pursuant to a warrant. It is in that

cluster of sections that section 2517(3) resides. Its location

indicates that it is limited to cases in which an otherwise

unlawful interception is lawful by virtue of having been made

pursuant to warrant; the surrounding provisions make clear

that the “authorization” to which the subsection refers is

judicial authorization, not exemption. See §§ 2516, 2518(9);

Gelbard v. United States, 408 U.S. 41, 46 (1972); United

States v. Cunningham, 113 F.3d 289, 293 (1" Cir. 1997). To

exempt is not to authorize, though the effect may be the same.

So if, as in the case of most interceptions of communications

by or with the consent of a party, the interception does not

require a warrant to be lawful, Title III does not restrict its

use.

The courts (including our own) have repeatedly held this in

civil suits under Title Ill, Thomas v. Pearl, 998 F.2d 447,

451-53 (7" Cir. 1993); Griggs-Ryan v. Smith, 904 F.2d 112,

119 (1™ Cir. 1990); Smith v. Cincinnati Post & Times-Star,

475 F.2d 740 (6™ Cir. 1973) (per curiam); Meredith v. Gavin,

446 F.2d 794, 799 (8" Cir. 1971)-which the present case is.

Section 2511 exempts the conversations covered by it from

the entirety of Title III. “Since . . . the interception in the case

was not obtained in violation of the Act, its subsequent use

and disclosure was not a violation of the Act.” /d.; see also

Obron Atlantic Corp. v. Barr, 990 F.2d 861, 863-64 (6" Cir.

1993); Leitman v. McAusland, 934 F.2d 46, 50 (4" Cir.

1991); United States v. Shields, 675 F.2d 1152, 1157 n. 2

(11" Cir. 1982); United States v. Howell, 664 F.2d 101, 105

(5"™ Cir. 1981); United States v. Head, 586 F.2d 508, 513 (5"

Cir. 1978). As the case last cited put it, “18 U.S.C.

§ 2511(2)(d) exempts from the operation of the entire

chapter, of which section 2518 is a part, consensual

8a

recordings such as made here.” /d. (emphasis added). It is

true that some cases assume that section 2517(3) applies to

conversations exempted by sections 2511(2)(c) or (d), but

they are cases in which the court found that the requirements

of section 2517(3) had been met, so there was no occasion to

consider whether, had they no been met, it would have made

any difference, since the conversations were exempt. See

United States v. Little, 753 F.2d 1420, 1435 (9" Cir. 1984);

United States v. Haimowitz, 725 F.2d 1561, 1582 (11"™ Cir.

1984); United States v. Armocida, 515 F.2d 49, 52 (3d Cir.

1975); United States v. Bishton, 463 F.2d 887, 892 (D.C. Cir.

1972) (per curiam); see also United States v. Clegg, 509 F.2d

605, 612-13 (5" Cir. 1975).

To subject interceptions made lawful by sections

2511(2)(c) and (d) to section 2517(3) would have absurd

consequences. It would mean that Whitacre had violated the

statute by turning his recordings over to the FBI, since on the

district court’s reading of that section the only permissible

disclosure of the contents of an interception made /awful by

sections 2511(2)(c) or (d) is to play a tape of, or testify to,

those contents in court. Section 2517(3) reflect* a traditional

sensitivity about wiretapping and related methods of

electronically eavesdropping on other people’s conversations.

As is implicit (and sometimes explicit) in the cases that hold

that such eavesdropping violates the Fourth Amendment but

that recording your own conversations does not, there just is

not the same sensitivity about the latter practice. Title II

goes not require a warrant for such recording or regulate its

use in any way. The matter has been left to the states, except

for the flat prohibition of consensual recording for improper

purposes.

So if Whitacre’s recordings were made lawful by either of

these subsections, Title [II does not restrict their use by the

plaintiffs. It is clear that they were. When the FBI agreed to

Whitacre’s suggestion that he make the recordings in order to

9a

gather evidence of price fixing, the FBI made him a

government informant, and in then making the recordings in

that role he was acting under color of law within the meaning

of section 2511(2)(c). Thomas v. Pearl, supra, 998 F.2d at

449-51; Berger v. Hanlon, 129 F.3d 505, 516 (gt Cir. 1997),

rev'd on other grounds, 526 U.S. 808, relevant part of opinion

reaffirmed, 188 F.3d 1155 (9" Cir. 1999); Obron Atlantic

Corp. v. Barr, supra, 990 F.2d at 864-65; United States v.

Haimowitz, supra, 725 F.2d at 1581-82; United States v.

Shields, supra, 675 F.2d at 1156-57. (Obron and Haimowitz

are factually indistinguishable from the present case.)

And if this is wrong, it makes no difference; it just puts

Whitacre under subsection 2511(2)(d). Desnick v. American

Broadcasting Cos., 44 F.3d 1345, 1353 (7" Cir. 1995);

United States v. Zarnes, 33 F.3d 1454, 1469 (7" Cir. 1994);

United States v. Cassiere, 4 F.3d 1006, 1021 (1* Cir. 1993);

United States v. Dale, 991 F.2d 819, 841 (D.C. Cir. 1993).

He would not be within the exception to that subsection for

recording for a criminal or tortious purpose, because a

purpose of gathering evidence of a violation of law is not

criminal or tortious. E.g., United States v. Zarnes, supra, 33

F.3d 1454, 1469 (7 Cir. 1994); By-Prod Corp. v. Armen-

Berry Co., 668 F.2d 956, 959 (7"™ Cir. 1982); United States v.

Dale, supra, 991 F.2d at 841; United States v. Ruppel, 666

F.2d 261, 271 (5™ Cir. 1982); 1 Carr, supra, § 3.5(b), p. 3-

112. It is the opposite. True, his motive in making the

recordings may have been criminal or tortious (or more likely

both)-to elude detection of his fraud against ADM by

becoming a valued FBI informant and good-guy

whistleblower. But when the law speaks of recording

conversations with a criminal or tortious purpose, it has, we

think, regard for the intended use of the recordings. There

was nothing of that here. It was not as if Whitacre were

going to use the recordings to blackmail Randall or extort

money from ADM. He was going to give them to the FBI for

10a

use in evidence, a clearly lawful purpose, as the cases we

have cited make clear. To repeat, so far as what was

recorded was concerned, the intent was to collect evidence of

antitrust violations, not evidence that might be used for an

improper purpose. The recordings were no more unlawful

than an arrest would be by a police officer who wanted to

demonstrate zeal in the performance of his duties in the hope

that it would shield him from prosecution for embezzling

funds of the police department.

The judgment of the district court is modified to eliminate

the restriction that the court placed on the use of the

recordings of the wire communications by the plaintiffs,

though without prejudice to the judge’s considering whether

to impose a protective order under Fed. R. Civ. P. 26(c). As

so modified, the judgment is

Affirmed.

lla

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

MDL NO. 1087 and

Master File No. 95-1477

IN RE: HIGH FRUCTOSE CORNSYRUP

ANTITRUST LITIGATION

THIS DOCUMENT RELATES TO

ALL ACTIONS

ORDER

This matter is before the Court on Defendant Archer

Daniels Midland Company’s (“ADM”) Motion to Quash or,

in the Alternative, to Modify Plaintiffs’ Subpoena and James

R. Randall’s (“Randall’’) Motion to Intervene and to Quash

Class Plaintiffs’ Subpoena Duces Tecum. For the reasons

stated herein, ADM’s Motion to Quash is GRANTED IN

PART and DENIED IN PART, and Randall’s Motion to

Intervene and to Quash is GRANTED IN PART and

DENIED IN PART.

Factual Background

For a period of approximately two and one half years,

Mark Whitacre (“Whitacre’’), former corporate vice president

and president of ADM’s BioProducts division, recorded or

consented to the recording of hundreds of hours of his

conversations with othersADM personnel and third parties.

On October 28, 1996, Plaintiffs served a subpoena duces

12a

tecum on the custodian of records for the United States

Department of Justice (“the DOJ’) seeking production of the

tapes made by or with the consent of Whitacre. After

unsuccessful negotiations with the DOJ, Plaintiffs moved to

compel compliance with the subpoena. On February 26,

1997, this Court held a hearing on the Motion to Compel and

ruled that those tapes pertaining to lysine only and those tapes

which had been disclosed to the law firm of Simpson

Thatcher & Bartlett, counsel to a committee of ADM’s board

should be disclosed to Plaintiffs.

On April 10, 1997, the Court granted the DOJ’s request for

certification of interlocutory appeal under 28 U.S.C.

§ 1292(b). On October 30, 1997, the Seventh Circuit

reversed this Court’s ruling with instructions to quash

Plaintiffs subpoena for invading the law enforcement

investigatory privilege. See Dellwood Farms, Inc. v. Cargill,

Inc., 128 F.3d 1122, 1126, 1128 (7" Cir. 1997).

On November 24, 1998, Plaintiffs served a subpoena duces

tecum on the Department of Justice seeking, inter alia, all

recordings made by or with the consent of Whitacre during

the FBI’s investigation. On January 22, 1999, the DOJ

agreed to produce the approximately 200 tapes that remain

from the DOJ’s criminal antitrust investigation. Those tapes

introduced in the criminal trial of United States v. Andreas,

96 CR 762 (N.D. III), which are not included in the 200

figure, are already part of the public record and have been

delivered to Plaintiffs and Defendants. On February 12,

1999, ADM moved to quash, or in the alternative, to modify

Plaintiffs’ subpoena seeking the disclosure of the remaining

tapes. In its Motion to Quash, ADM argues that the subpoena

must be quashed because Whitacre’s taping violated Title III

of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. § 2510 et seqg., in that the tapes were not made

under color of law pursuant and/or were made with a criminal

or tortious purpose. See 18 U.S.C. §§ 2511(2)(c) and (2)(d).

13a

ADM further argues that even if the tapes were lawfully made

either pursuant to § 2511(2)(c) or (2)(d), Title Il does not

permit the disclosure of the tapes in an action in which the

Government is not a party. See 18 U.S.C. § 2517(3). In the

alternative, ADM argues that if this Court holds that the tapes

may be discovered by Plaintiffs that it appoint a special

master to recommend to the Court which portions, if any, of

the tapes should be redacted due to a lack of relevancy.

On March 2, 1999, Randall, who served as president of

ADM until 1997, moved to intervene and to quash Plaintiffs’

subpoena. In his Motion to Intervene and to Quash and

accompanying Memorandum in Support, Randall asserts that

he is an “aggrieved person” under 18 U.S.C. § 2510(11)

because he believes that approximately 20 of his

conversations were unlawfully intercepted by Whitacre.

Therefore, according to Randall, he should be allowed to

intervene pursuant to 18 U.S.C. § 2518(10)(a). In support of

his Motion to Quash, Randall asserts the same or similar

arguments that are asserted by ADM: the tapes were

unlawfully made and Title III does not authorize disclosure to

private civil litigants in a case in which the Government is not

a party.

_The Court held oral arguments on March 22, 1999. This

Order follows.

Discussion

I. Standing

Section 2518(10) of Title III provides:

Any aggrieved person in any trial, hearing, or

proceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the United

States, a State, or a political subdivision thereof, may

~ move to suppress the contents of any wire or oral

14a

communication intercepted pursuant to this chapter, or

evidence derived therefrom, on the grounds that--

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face;

or

(iii) the interception was not made in conformity

- with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or

proceeding unless there was no opportunity to make

such motion or the person was not aware of the grounds

of the motion. If the motion is granted, the contents of

the intercepted wire or oral communication, or evidence

derived therefrom, shall be treated as having been

obtained in violation of this chapter. The judge, upon

the filing of such motion by the aggrieved person, may

in his discretion make available to the aggrieved person

or his counsel for inspection such portions of the

intercepted communication or evidence derived

therefrom as the judge determines to be in the interest of

justice.

18 U.S.C. § 2518(10)(a). Section 2510(11) of Title If

defines “aggrieved person” as “a person who was party to any

intercepted wire, oral, or electronic communication or a

person against whom the interception was directed.” 18

U.S.C. § 2510(11). This provision has been interpreted as

conferring standing upon those persons who are (1)

“person[s]” under 18 U.S.C. § 2510(6) and (2) either were

parties to the intercepted communication or parties on whose

premises the intercepted communication took place. See

Alderman vy. United States, 394 U.S. 165, 176 & n.9 (1969);

United States v. Civella, 648 F.2d 1167, 1171 & n.11 (8th

Cir.), cert. denied, 454 U.S. 867 (1981). .

15a

Plaintiffs do not argue that ADM does not have standing to

challenge the disclosure of the tapes. They do, however,

argue that Randall does not have standing to intervene. In

support of this argument, Plaintiffs cite the case of United

States v. Dorfman, 690 F.2d 1217 (7th Cir.1982) (“Dorfman I

“). In Dorfman I, five defendants in the underlying criminal

case filed a motion to suppress material obtained by a

court-authorized electronic surveillance. The district court

denied the motion to suppress. In addition to the defendants’

challenge to the wiretap, there were two other related

challenges. The first related challenge was brought by five

persons whose conversations were intercepted but who were

not charged in the indictment. Following the entry of the

order denying the defendants’ motion to suppress, these five

persons filed a motion to suppress the intercepted

conversations in which they participated and to obtain access

to the transcripts of those intercepted conversations. The

district court held that Title II] does not grant a suppression

remedy broader than that provided by the Fourth Amendment

and, therefore, as non-parties, the five people did not have

standing under Title III to challenge the wiretap conversations

in which they unknowingly participated. These five people

appealed the district court’s order. See id. at 1219-21.

The second related challenge was filed by a gentleman by

the name of William Webbe (‘““Webbe”). Webbe was named

in the indictment as an unindicted co-conspirator. Six days

after the district court entered its order denying the

nonparties’ motion to suppress, Webbe filed his own motion

to suppress the conversations in which he was a party. After

allowing Webbe access to the recordings at issue, the district

court denied Webbe’s motion to suppress because: (1)

Webbe was fully aware of the earlier hearings involving the

defendants’ motion to suppress but chose not to participate,

thereby raising a “classic- case for the application of the

16a

common law doctrine of laches”; (2) Webbe had already

challenged the lawfulness. of the surveillance when he was

called to testify before the grand jury; (3) Webbe was not a

named interceptee on the authorization order and, therefore,

lacked standing to challenge the facial validity of the order;

and (4) his motion was denied on the merits for the same

reason that the defendants’ motion was denied on the merits.

Dorfman I, 690 F.2d at 1221. Webbe also appealed the

district court’s ruling.

On appeal, the Seventh Circuit addressed the non-parties’

(the five non-party people and Webbe) arguments together.

The court of appeals noted that the nonparties were all

participants in conversations intercepted under the court

authorization in question. Further, their conversations were

to be used in a “trial ... before ... (a) court ... of the United

States.“ Jd. at 1226 (quoting § 2518(10)(a)). Therefore,

according to the Dorfman I court, “under a literal reading of

the statute they are ‘aggrieved persons’ in a position to move

for suppression pursuant to Section 2518(10)(a).” However,

the court of appeals still held that the nonparties lacked

-standing to challenge the recordings. The court stated that

because the “defendants were able to test the legality of the

interceptions of all the communications that the government

intend[ed] to use at trial,” the involvement of the nonparties

was unnecessary. /d. at 1229. The court of appeals further

Stated:

Denying the nonparties standing in this context did not

deny the court an opportunity to evaluate the legality of

the underlying interceptions. . . . Rather, it simply

foreclosed the nonparties from separately retesting the

legality of the interceptions of their conversations.

Id.

In the course of its opinion, the Dorfman I court

distinguished its. decision from one reached by the Tenth

17a

Circuit in Anthony v. United States, 667 F.2d 870 (10th Cir.

1981), cert. denied, 457 U.S. 1153 (1982), a case relied upon

by Randall in his Memorandum in Support of his Motion to

Intervene and Quash. In Anthony, the defendant was

convicted of unlawful interception of the wire

communications of several individuals, among them, Dr.

Vernon Sisney. After entry of the verdict, the defendant

moved for discovery of the contents of the tapes of

intercepted communications that the defendant had made and

that the government had subsequently seized. In response,

Dr. Sisney moved to intervene for purposes of opposing the

discovery and to suppress the tapes in accordance with 18

U.S.C. § 2515. The district court denied the motion,

reasoning that Dr. Sisney did not have standing to suppress

the information. The Tenth Circuit reversed and held that Dr.

Sisney was, in fact, an “aggrieved person” entitled to invoke

the sanction of suppression set forth in § 2515 of Title Il. /d.

at 878.

Distinguishing its case from the Anthony case, the Dorfman

I court stated:

In Anthony, absent Dr. Sisney’s involvement, there

would have been no one in a position to contest the use

or disclosure of the intercepted communications. The

only other party to the proceeding, the government,

clearly was not an “aggrieved person” as to the

challenged conversations. Thus, had the court denied

Dr. Sisney standing, his privacy interest in nondisclosure

would have been left totally unprotected.

Dorfman I, 690 F.2d at 1229. The Dorfman I court further

pointed out that had the Anthony court denied the nonparty

standing to move for suppression, the court “would have been

placed in the anomalous position of overseeing the disclosure

of admittedly unlawfully intercepted conversations.” I/d. at

1229 n.20.

18a

Randall attempts to distinguish Dorfman I from this case.

He correctly argues that on more than one occasion the court

stated that its decision was based on the facts of the case

before it. According to Randall, the “critical facts” in

Dorfman I were the criminal context of the case and the

belated nature of the nonparties’ motions to suppress.

Randall further asserts that unlike Webbe in Dorfman I, he

“was not indicted in the criminal case, was not a witness at a

grand jury, was not a witness at trial for either side, and had

absolutely no role in the defense or prosecution of the

criminal case.” (Randall Reply at 9).

One interpretation of Dorfman I is that the distinctions

pointed out by Randall are not critical distinctions. Arguably,

the Dorfman I relied only upon the fact that the defendants

were able to test the legality of the interceptions, thereby

foreclosing the need of the nonparties to retest the legality of

the interceptions. See Dorfman I at 1229. A reading of

Randall’s Memorandum in Support of his Motion to

Intervene and to Quash indicates that he is either making or

reformulating the arguments made by ADM in its Motion to

Quash. Therefore, even though the language of § 2518(10)(a)

supports Randall’s right to intervene in this case, one reading

of Dorfman I seems to imply that if a party to the litigation is

testing the legality of alleged unlawful interceptions, there is

no need, and hence no standing, for a nonparty to test the

legality on the same grounds.

However, upon reconsideration of its oral finding made

during the March 22, 1999, oral arguments on this matter

hearing that Randall did not have standing to intervene, the

Court now finds that it cannot overlook the language in

Dorfman I that the district court’s denial of the nonparties

standing “in [that] context” did not deny the district court the

Opportunity to test the legality of the tapes at issue. See id. at

1229. Instead, “it simply foreclosed the nonparties from

separately retesting the legality of the interceptions of their

19a

conversations.” Jd. (emphasis added). While Randall’s

arguments are virtually the same as ADM’s, he is not

“retesting” the legality of the tapes at issue. He appears

before this Court at the same time as ADM to test the legality

of the tapes. Therefore, since the Court is not dealing with a

separate retesting of the legality of the tapes, but instead a

contemporaneous challenge, the Court does not believe that

the Dorfman I court would hold that Randall does not have

standing to intervene. Accordingly, this Court holds that

Randall does have standing to intervene pursuant to

§ 2510(10)(a).

Il. “Oral Communication”

The tapes made by Whitacre include both tape recordings

of telephone conversations and tape _ recordings of

conversations in which Whitacre and the other person or

persons being recorded were physically present in the same

room at the same time (“face to face recordings”). Plaintiffs

initially argue that Title III does not apply to the recordings of

the face to face conversations. For this proposition, Plaintiffs

point to the definition of “oral communications” in 18 U.S.C.

§ 2510(2):

“{Ojral communication” means any oral communication

uttered by a person exhibiting an expectation that such

communication is not subject to interception under

circumstances justifying such expectation. ...

(emphasis added).

In In the Matter of John Doe Trader Number One, 894

F.2d 240, 242 (7th Cir.1990), the Seventh Circuit stated:

According to the legislative history of Title Ill, [the

definition of “oral communication”] was intended to

parallel the “reasonable expectation of privacy” test

20a

created by the Supreme Court in Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See

S.Rep. No. 1097, 90 Cong. 2d Sess., reprinted in 1968

U.S. Code Cong. & Admin.News 2112-2274. See also

United States v. Harrelson, 754 F.2d 1153 (5™ Cir.

1985). Thus, Congress limited its protection of “oral

communications” under Title II] to those statements

made where “first, a person [has] exhibited an actual

(subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize

as ‘reasonable.’

(Alterations in original); see also Angel v. Williams, 12 F.3d

786, 790 (8th Cir.1993) (“We know from the legislative

history of the federal wiretap law that the definition of oral

communication is intended to reflect existing [Fourth

Amendment] law’’). Therefore, in order to determine whether

the face to face recordings were “oral communications” for

purposes of 18 U.S.C. § 2510(2), the Court must ascertain

whether those persons recorded by Whitacre during face to

face recordings had a reasonable expectation of privacy. See

id. at 242-43.

In John Doe Trader, Doe’s conversations were recorded

while the defendant was on the floor of the Chicago

Mercantile Exchange (“CME”). As stated by the court of

appeals:

Doe’s conversations were overheard on the trading floor

of the CME. Appellant himself describes this

environment as “typically noisy and frantic.” The FBI

agent conducting the investigation was clearly present

only a few feet from Doe and he was able to overhear

and record each of Doe’s statements. In fact, the agent

was a participant in many of these conversations. The

tape recorder concealed on the agent was unable to hear

more than the agent himself could. Thus, by exposing

these statements to the public in this manner, Doe cannot

2la

now contend that he _ reasonably believed his

conversations were private and therefore subject to

constitutional protection.

Id. The John Doe Trader court held that Doe did not have an

objectively reasonable expectation of privacy in the recorded

statements and, therefore, the recorded statements were not

“oral communications” under § 2510(2). Id. at 245.

ADM! contends that John Doe Trader is readily

distinguishable from this case, as the recordings in John Doe

Trader were made on the busy and frantic floor of the CME,

whereas the face to face recordings made by or with the

consent of Whitacre were made on ADM’s premises. The

Court agrees that the floor of the CME may be more frantic

than an office or conference room at ADM, and a more public

setting. However, this distinction is not dispositive on the

issue of whether those people who were recorded by

Whitacre during face to face recordings possessed a

reasonable expectation of privacy. In United States v. White,

401 U.S. 745 (1971), the Supreme Court stated:

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17

L.Ed.2d 374 (1966), which was left undisturbed by Kazz,

held that however strongly a defendant may trust an

apparent colleague, his expectations [that a person with

whom he is conversing will then or later reveal the

conveisation to police] are not protected by the Fourth

Amendment when it turns out that the colleague is a

government agent regularly communicating with the

authorities. In these circumstances, “no interest

1 Because Randall’s arguments are the same as ADM’s, the Court’s

reference to ADM in the Discussion portion of the Order refers to both

ADM and Randall with the exception of Part IV of the Discussion portion,

which addresses an argument not made by Randall—whether the Court

should appoint a special master.

22a

legitimately protected by the Fourth Amendment is

involved,” for that amendment affords no protection to

“a wrongdoer’s misplaced belief that a person to whom

he voluntarily confides his wrongdoing will not reveal

it.” Hoffa v. United States, at 302, 87 S.Ct., at 413. No

warrant to “search and seize” is required in such

circumstances, nor is it when the Government sends to

defendant’s home a secret agent who conceals his

identity°and makes a purchase of narcotics from the

accused, . . . , or- when the same agent, unbeknownst to

the defendant, carries electronic equipment to record the

defendant’s words and the evidence so gathered is later

offered in evidence. .. .

White, 401 U.S. at 749.

In Hoffa, Edward Partin (“Partin”), a Teamsters Union

official, made repeated visits to James Hoffa’s (“Hoffa”)

hotel suite during the pendency of the Test Fleet trial in 1962

in Nashville, Tennessee. Unbeknownst to Hoffa, Partin was

acting as a government informant and made various reports to

federal agents concerning conversations held with Hoffa and

his associates, disclosing, among other things, endeavors to

bribe the Test Fleet jury. One of the petitioners argued that

Partin failed to disclose his role as a government informer

and, therefore, this vitiated the consent given to Partin to

enter the hotel suite and listen in on or participate in the

various discussions. The Supreme Court rejected this

argument. Although recognizing that a hotel room “can

clearly be the object of Fourth Amendment protection,” the

Court stated:

In the present case, however, it is evident that no interest

legitimately protected by the Fourth Amendment is involved.

It is obvious that the petitioner was not relying on the security

of his hotel suite when he made the incriminating statements

to Partin or in Partin’s presence. Partin did not enter the suite

by force or by stealth, He was not a surreptitious

Le ee eee eee

23a

eavesdropper. Partin was in the suite by invitation, and every

conversation which he heard was either directed to him or

knowingly carried on in his presence. The petitioner, in a

word, was not relying on the security of his hotel room; he

was relying upon his misplaced confidence that Partin would

not reveal his wrongdoing.

Hoffa, 385 U.S. at 302.

Similarly, those people who were recorded by Whitacre in

his presence were relying on their misplaced confidence that

Whitacre would not reveal the contents of the conversations.

ADM has not argued that Whitacre’s presence during these

conversations was without consent or that he was a

Surreptitious eavesdropper. In short, while those people

recorded by Whitacre on ADM’s premises may have had a

subjective expectation that their conversations would be kept

private (based on location and also the fact that ADM

officials, to include Whitacre, had signed nondisclosure

agreements), it was not a reasonable expectation in light of

Hoffa and White. As succinctly stated by the White Court:

Our problem, in terms of the principle announced in

Katz, is what expectations of privacy are constitutionally

“justifiable”--what expectations the Fourth Amendment

will protect in the absence of a warrant. So far, the law

permits the frustration of actual expectations of privacy

by permitting authorities to use testimony of those

associates who for one reason or another have

determined to turn to the police, as well as by

authorizing the use of informants exemplified by Hoffa

.... If the law gives no protection to the wrongdoer whose

trusted accomplice is or becomes a police agent, neither

should it protect him when that same agent has recorded

or transmitted the conversations which are later offered

in evidence to prove the State’s case.

White, 401 U.S. at 751-52 (citation omitted).

24a

_ADM, however, argues that the Court’s conclusion that

the face to face recordings are not recordings of “oral

communications” under Title [I renders 18 U.S.C.

§§ 2511(2)(c) and (2)(d) meaningless. Section 2511(2)/c)

provides:

It shall not be unlawful under this chapter for a person

acting under color of law to intercept a wire, oral, or

electronic communication, where such person is a party

to the communication or one of the parties to the

communication has given prior consent to such

interception.

Section 2511(2)(d) provides:

It shall not be unlawful under this chapter for a person

not acting under color of law to intercept a wire, oral, or

electronic communication where such person is a party

to the communication or where one of the parties to the

communication has given prior consent to such

interception unless such communication is intercepted

for the purpose of committing any criminal or tortious

act in violation of the Constitution or laws of the United

States or of any State.

ADM argues that if the face to face recordings are not “oral

communications” and, therefore, not subject to the

restrictions of Title III, then why did Congress provide that it

shall not be unlawful to intercept an oral communication

when a person does so acting under color of law or without a

tortious or criminal purpose and is a party to the conversation

or gives prior consent? See-§§ 2511(2)(c) and (2)(d).

The Court is not unsympathetic to ADM’s argument. On

the one hand, the case law in this and other circuits is clear

that the definition of “oral communication” in § 2510(2) is

intended to parallel the reasonable expectation of privacy test

set forth in Katz. See John Doe Trader, 894 F.2d at 242; see

also Angel, 12 F.3d at 790. Precedent also clearly establishes

Se

25a

that an alleged wrongdoer does not have a reasonable

expectation that a trusted accomplice will not disclose the

contents of conversations to the authorities or that the

conversations will not be recorded by the accomplice. See,

e.g., White, 401 U.S. at 751-52. On the other hand, Congress

uses the term “oral communication” in §§ 2511(2)(c) and

(2)(d) in the same breath that it uses “where such person is

party to the communication or one of the parties to the

communication has given prior consent to such interception.”

Therefore, it appears that Congress contemplated that some

face to face, consensual recordings would involve a

reasonable expectation of privacy on the part of the person or

persons who were unaware that they were being recorded.

The Court is well aware of the statutory construction

maxim that a statute should not be construed in such a

manner as to render words or phrases meaningless, redundant,

or superfluous. See Welsh v. Boy Scouts of Am., 993 F.2d

1267, 1272 (7th Cir.) (citation omitted), cert. denied, 510

U.S. 1012 (1993). However, if the Court accepted ADM’s

argument that Whitacre’s consensual, face to face recordings

are “oral communications” under § 2510(2),-then this Court

would have to disregard the precedent that clearly establishes

that the definition of “oral communication” parallels the

Fourth Amendment reasonable expectation of privacy test

established Katz and further disregard the case law precedent

that holds the Fourth Amendment does not give an alleged

wrongdoer protection against a trusted accomplice tape

recording or divulging the contents of conversations. In

addition, §§ 2511(2)(c) and (2)(d) also refer to wire and

electronic types of communication, which, at least in the case

of wire communications, are protected against interception

regardless of the speaker’s reasonable expectation of privacy.

See, e.g., Briggs v. American Air Filter Co., Inc., 630 F.2d

414, 417 n.4 (Sth Cir.1980). While this does not com-

pletely address the apparent conflict between § 2510(2) and

26a

§§ 2511(2)(c) and (2)(d), it is clear that §§ 2511(2)(c) and

(2)(d) are broader in scope, as they pertain to all three types

of communications defined in Title If] and not just oral

communications.

Accordingly, despite the apparent conflict between

§ 2510(2) and §§ 2511(2)(c) and (2)(d), the Court concludes

that those tape recordings made by or with the consent of

Whitacre of conversations at which he and the other person or

persons being recorded were physically present are not

recordings of “oral communications” and shall be turned over

to Plaintiffs and Defendants for purposes of this litigation.

Ill. 18 U.S.C. § 2517(3)

Although the Court has held that the face to face recordings

are not recordings of “oral communications,” the issue

remains whether the interception of telephone calls by

Whitacre may also be disclosed in this litigation. In Briggs,

supra, the Fifth Circuit stated that a telephone conversation is

a “wire communication” as that term is defined in 18 U.S.C.

§ 2510(1). Briggs, 630 F.2d at 417. Such communications

are protected against interception by electronic, mechanical,

or other devices regardless of the speaker’s expectation of

privacy. See id. at 417 n.4; see also United States v. Harpel,

493 F.2d 346, 349 (10th Cir.1974) (recognizing lack of

requirement to prove reasonable expectation of privacy with

regard to intercepted wire communications). Accordingly,

the Court’s preceding expectation of privacy analysis has no

bearing on whether the contents of the interceptions of wire

communications may be disclosed in this case.

ADM argues that the interceptions of telephone calls may

not be disclosed under § 2517, which sets forth under what

circumstances lawful interceptions may be disclosed.

Plaintiffs, on the other hand, argue that consensual recordings

of telephone conversations that are made in accordance with

27a

§ 2511(2)(c) or (2)(d) are exempt from the restrictions of

§ 2517. For purposes of this analysis, the Court assumes that

the wire communications intercepted by Whitacre were

lawful under either § 251 1(2)(c) or (2)(d).

The specific provision at issue is § 2517(3), which

provides:

Any person who has received by any means authorized

by this chapter, any information concerning a wire, oral,

or electronic communication, or evidence derived

therefrom intercepted in accordance with the provisions

of this chapter may disclose the contents of that

communication or such derivative evidence while giving

testimony under oath or affirmation in any proceeding

held under the authority of the United States or of any

State or political subdivision thereof.

According to Plaintiffs, interceptions that are made by

“consent” or “under color of law” are not “by means

authorized by this chapter.” They argue that only 18 U.S.C.

§§ 2516 and 2518 in Title III describe a procedure to obtain

“authorization and approval” by a court for interceptions of

wire or oral communications and by Congress using the term

“authorized” in § 2517(3) it was referring only to

interceptions authorized under §§ 2516 and 2518, not

consensual interceptions.

Section 2516 is entitled “Authorization for interception of

wire, oral, or electfonic communications” and provides, in

pertinent part:

The Attorney General . . . may authorize an application

to a Federal judge of competent jurisdiction for, and

such judge may grant in conformity with section 2518 of

this chapter an order authorizing or approving the

interception of wire or oral communications by the

Federal Bureau of Investigation, or a Federal agency

28a

having responsibility for the investigation of the offense

as to which the application is made... .

18 U.S.C. § 2516(1) (emphasis added). Subsections 2516(2)

and (3) provide the same type of authorization to States’

Attorneys General, States’ Attorneys and United States

Attorneys. Section 2518 then sets forth the procedure for

filing an application with a judge of competent jurisdiction:

Each application for an order authorizing or approving

the interception of a wire, oral, or electronic

communication under this chapter shall be made in

writing upon oath or affirmation to a judge of competent

jurisdiction and shall state the applicant’s authority to

make such application. Each application shall include

[the information listed in subsections (1)(a) through

(1)(6)].

18 U.S.C. § 2518(1) (emphasis added).

Plaintiffs, however, have failed to point out § 2511(1)(e)(i)

uses the term “authorized” in the context of § 2511(2)(c).

Section 2511(1)(e)(i) provides that any person who:

intentionally discloses, or endeavors to disclose, to any

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

communication, intercepted by means authorized by

sections 2511(2)(a)(ii), 2511(2)(b) to (c), 2511(2)e),

2516, and 2518 of this chapter . . . . shall be punished as

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

provided in subsection (5).

(Emphasis added). Therefore, it is clear that use of the term

“authorized” is not limited to §§ 2516 and 2518.

ADM argues that in addition to § 2511(1)(e)(i) using the

term “authorized” in the context of § 2511(2)(c), Plaintiffs

have focused on the wrong phrase in § 2517(3). According to

ADM, the relevant phrase in § 2517(3) is “in accordance with

ee ee

29a

the provisions, of this chapter.” ADM contends that

consensual recordings pursuant to § 251 1(2)(c) or (2)(d) are

interceptions made “in accordance with the provisions of this

chapter” and, therefore, are subject to the restrictions of

§ 2517(3). ADM further cites case authority in support of its

argument that § 2517(3) governs the admissibility of tape

recordings when they are made in accordance with

§ 2511(2)(c). In United States v. Armocida, 515 F.2d 49 (3rd

Cir.), cert. denied, 423 U.S. 858 (1975), the defendant

challenged the admissibility of certain tape recordings. In

upholding the district court’s order allowing the tapes, the

Third Circuit stated:

We agree with the Government that the warrantless

recordings of a telephone conversation with the consent

of only one of the parties is perfectly proper under

federal law and that the transcript of such a conversation

may be admitted into evidence in a federal prosecution.

18 U.S.C. §§ 2511(2)(c) and 2517(3), taken together,

specifically authorize the admission into evidence of

warrantless recordings of this type.

Id. at 52; see also United States vy. Infelice, 506 F.2d 1358,

1365 (7th Cir. 1974) (citing §§ 2511(2)(c) and 2517(3) in

support of a holding that tapes made by a government

informant were admissible), cert. denied, 419 U.S. 1107

(1975); United States v. Upton, 502 F.Supp. 1193, 1199

(D.N.H. 1980) (“Read, as they must be, together, 18 U.S.C.

§ 2511(2)(c) and § 2517(3) specifically authorize the

admission into evidence of recordings of this type.”’).

The Court agrees that the phrase “intercepted in accordance

with the provisions of this chapter” in § 2517(3) clearly

contemplates interceptions of consensual recordings made in

accordance with § 2511(2)(c) or (2)(d). In other words,

consensual recordings that are made under color of law or

without a criminal or tortious purpose are recordings made

“in accordance with” Title III. Accordingly, the Court holds

30a

that § 2517(3) controls the disclosure of the — of

wire Communications made by Whitacre.

Reaching this conclusion, however, provides, at best, only

a small piece of the statutory puzzle. ADM argues that even

assuming the tapes made by Whitacre of phone conversations

were lawfully made pursuant to § 2511(2)(c) or (2)(d),

§ 2517(3) prohibits their disclosure in civil cases in which the

Government is not a party. In Jn re Motion to Unseal

Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir.

1993) (en banc) (7-5 decision), which is the principal case

relied upon by ADM, the Eighth Circuit held that there is no

authority in Title II for pretrial or compelled testimonial

disclosure of sealed electronic surveillance evidence to a

private civil RICO litigant. /d. at 1020. The Electronic

Surveillance majority stated that while the argument for

disclosure to private civil litigants based on the language of

§ 2517(3) has “surface plausibility”, there is no indication in

the legislative history that Congress ever intended to open the

discovery door in Title III to private civil litigants:

As originally enacted, section 2517(3) provided for

courtroom testimonial disclosure only in criminal

proceedings. . . . With the passage of RICO in 1970,

Congress amended the wiretap statute to allow for

testimonial use in civil proceedings as well. Organized

Crime Control Act of 1970, Pub.L. No. 91-542,

§ 902(b), 84 Stat. 922, 947 (1970). In support of his

argument that the statute now authorizes pretrial

discovery, Smith cites cases in which wiretap evidence

has been used by an agency other than that which

initially sought the wiretap. For example, Smith cites to

cases in which the Internal Revenue Service obtained

wiretap evidence from the FBI for use in civil

prosecutions. Such cases provide no authority -for

disclosure, pretrial or otherwise, to a private civil

litigant.

se cai a a ss NU iy a dt Toe ae = oom

3la

The legislative history of the 1970 amendment adds little

support to Smith’s argument. As the district court noted, the

legislative history merely indicates the obvious, that the

change “amends 18 U.S.C. 2517 to permit evidence obtained

through the interception of wire or oral communications

under court order to be employed in civil actions.” The

. language of this brief commentary suggests, however, that

Congress envisioned the gatherer of such evidence, i.e., a law

enforcement or governmental investigative agency, to be the

party making use of the evidence in a civil case. Jf the

change had been intended to open the door to private civil

litigants, further comment would have been warranted.

Id. at 1018-19 (emphasis added).

The Electronic Surveillance court is not alone in its

holding. In National Broadcasting Co. v. United States Dep't

of Justice, 735 F.2d 51 (2nd Cir. 1984), the Second Circuit

held that NBC was not entitled to surveillance tapes made by

the DOJ. NBC’s alleged need for the tapes at issue arose out

of a libel suit brought against NBC by Wayne Newton. Since

the issue of falsity was at the center of the libel action, NBC

sought permission to inspect and copy for use in its defense

various materials surrounding and including interceptions

made by the Government in a related RICO criminal case. In

pursuing this information, NBC relied upon § 2517(3), and

like the party that sought interceptions in Electronic

Surveillance, supra, NBC relied upon the 1970 amendments

to Title II] which expanded § 2517(3) to include civil

proceedings. The Second Circuit rejected this argument,

stating, “[W]e are sure that Congress did not utilize a

provision of the Organized Crime Control Act [of 1970] to

make the fruits of wiretapping broadly available to all civil

litigants who show a need for them.” NBC, 735 F.2d at 54;

see also County of Oakland v. City of Detroit, 610 F.Supp.

364, 370 (E.D. Mich. 1984) (same).

32a

While this Court respects the decisions of the Second and

Eighth Circuits, and gives substantial deference to them, it is

not bound by them. Section 2517(3) unambiguously states

that the contents of lawful interceptions may be disclosed

“while giving testimony under oath or affirmation in any

proceeding held under the authority of the United States or of

any State or political subdivision thereof.” (Emphasis added)

If Congress intended to limit disclosure of contents of

interceptions to cases in which the Government is a party, it

chose the wrong language to do so. The phrase “in any

proceeding held under the authority of the United States” is

not limiting in nature and includes a private, civil antitrust

action brought under the Sherman Act, which is a proceeding

held under the authority of this United States district court.

ADM, however, argues that even if § 2517(3) facially

permits disclosure in civil litigation in which the Government

is not a party, § 2517(3) does explicitly not allow for pre-trial

discovery of the wire interceptions. For this proposition,

ADM cites the cases of County of Oakland, supra, 610

F.Supp. at 370-71, and Dowd v. Calabrese, 101 F.R.D. 427,

435 (D.D.C.1984) (disclosure of interceptions can be made

only during the testimony of a Government agent). In Dowd,

for example, two Assistant U.S. Attorneys brought libel

actions against the Wall Street Journal (“the Journal’’) for a

story that asserted that the attorneys improperly pressured an

individual into testifying at a criminal trial. The Journal filed

motions to compel which sought disclosure of two wiretap

tapes. The Journal claimed that the tapes- would support the

truthfulness of its story. A portion of these tapes were

presented during the criminal trial. The Dowd court ruled

that the Journal was entitled to the portions of the tapes which

were made public. As to the remaining tapes, the court

stated, “There are several problems with this request. In the

first place, section 2517(3) of Title II] . . . explicitly provides

for disclosure only ‘while [the individual is] giving testimony

33a

under oath or affirmation.’ ... That is not what is involved

here.” Jd. at 435. The Dowd court took the position that

disclosure of the wiretap materials not presented in a trial

cannot be required pursuant to pre-trial discovery subpoenas.

Admittedly, § 2517(3) does not explicitly authorize

pre-trial disclosure of the contents of wire interceptions. On

the one hand, pre-trial disclosure seems implicit if such

interceptions can be used “in any proceeding held under that

authority of the United States . .». § 2517(3). On the other

hand, by permitting disclosure of lawfully obtained intercepts

“only under the specific circumstances listed in 18 U.S.C.

§ 2517, Title Ill implies that what is not permitted is

forbidden . . . .” United States v. Dorfman, 690 F.2d 1230,

1232 (7th Cir. 1982) (“Dorfman IT’) (emphasis added). So,

the Court is faced with a statutory quagmire. The broad

language “in any proceeding held under the authority of the

United States” clearly contemplates use of interceptions in

civil litigation even when the Government is not a party. On

the other hand, the phrase preceding this broad language

--“while giving testimony under oath or affirmation”-- does

not contemplate the type of pre-trial discovery sought by

Plaintiffs of the interceptions made by Whitacre of telephone

conversation. Plaintiffs asserted during oral argument that

the initial disclosure of the wire interceptions from the DOJ to

the parties could occur by way of deposition or affidavit,

which would, perhaps, technically meet the “under oath or

affirmation” requirement of § 2517(3). However, testimony

or affidavits are one thing, but turning over the interceptions

of the telephone conversations is something else.

Again, the Court fully recognizes the conflict between its

conclusions with respect to § 2517(3) -- the language

contemplates use at trial but does not address pre-trial

discovery. Whether Congress intended such a result, the

Court can only guess. However, this Court must be guided

by the words used by Congress and the precedent that

2 34a

establishes that what is not permitted under § 2517 is

forbidden.’

As a final comment on this issue, it is the Court’s belief

that Congress needs to clarify the language in § 2517. In fact,

the other statutory issues addressed in this Order point to a

need for Congressional review of this statute. While judges

are correctly admonished to refrain from rewriting legislation,

we ~are sometimes forced to interpret legislation that is

contradictory or ambiguous.

IV. Special Master

ADM argues that it is likely that there are portions of the

face to face recordings which are irrelevant to the issues in

this litigation and, therefore, this Court should appoint a

special master to review the tapes and recommend to the

Court which portions of the tapes, if any, should be redacted

prior to the tapes being provided to Plaintiffs. The Court,

while not unsympathetic to ADM’s arguments denies this

request.

There is already in place in this case the First Addendum to

the Protective Order of May 2, 1996, which restricts the

availability of the tape recordings to specified attorneys for

Plaintiffs and Defendants ADM, Cargill, A-E. Staley

Manufacturer, and American Maize Products Company (now

known as Cerestar USA, Inc.). (See Doc. #279, First

Addendum to the Protective Order of May 2, 1996). After

Defendants have reviewed the tapes ordered to be turned over

and have identified which portions they believe to be

2 Because the Court has held that the contents of the interceptions of

wire communications are not discoverable during pre-trial proceedings,

the parties agree that there is not a need for any further hearing at this time

to determine whether the interceptions were lawfully made pursuant to

§ 2511(2)(c) or (2)(d).

35a

irrelevant to this case and the tag-along case of Gray & Co. v.

ADM, et al., they may seek relief from this Court in the form

of redacting the alleged irrelevant portions of the tapes if they

are unable to reach an agreement with Plaintiffs.

The parties are in a much better position than a special

master would be in of determining what information from the

tapes is relevant to this case. This is true even if the Court

and the parties were to give a special master a crash course on

a case that is nearing the four year mark.

Accordingly, the request for a special master is denied.

Conclusion

For the reasons stated herein, ADM’s Motion to Quash or,

in the Alternative, to Modify Plaintiffs’ Subpoena is

GRANTED IN PART and DENIED IN PART and Randall’s

Motion to Intervene and to Quash Class Plaintiffs Subpoena

Duces Tecum is GRANTED IN PART and DENIED IN

PART.

Those tape recordings made by or with the consent of

Whitacre of conversations at which he and the other person or

persons being recorded were physically present shall be

turned over to Plaintiffs and Defendants. Plaintiffs and

Defendants shall handle the tapes in accordance with the First

Addendum to the Protective Order of May 2, 1996. Randall’s

attorney, Jeffrey Cole, shall also be allowed to review those

portions of the face to face recordings to which Randall was a

party. Prior to reviewing the tapes, however, Mr. Cole shall

read the Protective Order of May 2, 1996 and the First

Addendum to the Protective Order, sign a copy of the

certificate attached as Exhibit B to the First Addendum, and

return the certificate to this Court. The Clerk of the Court

shall send a copy of the Protective Order and First Addendum

(Doc. Nos. 98 and 279) via first class mail to Mr. Cole. He

Shall review the tapes at the law firm of Williams &

36a

Connolly, which is the law firm that, pursuant to paragraph

four of the First Addendum to the Protective Order, is

designated as the custodian of tapes for the single copy

provided to Defendants.

The interceptions of telephone conversations made by or

with the consent of Whitacre are not discoverable.

Lastly, the Court denies ADM’s request to appoint a

special master.

ENTERED this 25" day of March, 1999.

Michael M. Mihm

United States District Judge

37a

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

MDL NO. 1087 and

Master File No. 95-1477

IN RE: HIGH FRUCTOSE CORN

SYRUP ANTITRUST LITIGATION

THIS DOCUMENT RELATES TO

ALL ACTIONS

AMENDED ORDER

This matter is before the Court on Defendant Archer

Daniels Midland Company’s (“ADM”) Motion to Quash or,

in the Alternative, to Modify Plaintiffs’ Subpoena and James

R. Randall’s (“Randall”) Motion to Intervene and to Quash

Class Plaintiffs’ Subpoena Duces Tecum. For the reasons

stated herein, ADM’s Motion to Quash is GRANTED IN

PART and DENIED IN PART, and Randall’s Motion to

Intervene and to Quash is GRANTED IN PART and

DENIED IN PART.

Factual Background

For a period of approximately two and one half years,

Mark Whitacre (“Whitacre”), former corporate vice president

and president of ADM’s BioProducts division, recorded or

consented to the recording of hundreds of hours of his

conversations with other ADM personnel and third parties.

On October 28, 1996, Plaintiffs served a subpoena duces

tecum on the custodian of records for the United States

Department of Justice (“the DOJ”) seeking production of the

38a

tapes made by or with the consent of Whitacre. After

unsuccessful negotiations with the DOJ, Plaintiffs moved to

compel compliance with the subpoena. On February 26,

1997, this Court held a hearing on the Motion to Compel and

ruled that those tapes pertaining to lysine only and those tapes

which had been disclosed to the law firm of Simpson

Thatcher & Bartlett, counsel to a committee of ADM’s board

should be disclosed to Plaintiffs.

On April 10, 1997, the Court granted the DOJ’s request for

certification of interlocutory appeal under 28 U.S.C.

§ 1292(b). On October 30, 1997, the Seventh Circuit re-

versed this Court’s ruling with instructions to quash Plaintiffs

subpoena for invading the law enforcement investigatory

privilege. See Dellwood Farms, Inc. v. Cargill, Inc., 128

F.3d 1122, 1126, 1128 (7" Cir. 1997).

On November 24, 1998, Plaintiffs served a subpoena duces

tecum on the Department of Justice seeking, inter alia, all

recordings made by or with the consent of Whitacre during

the FBI’s investigation. On January 22, 1999, the DOJ

agreed to produce the approximately 200 tapes that remain

from the DOJ’s criminal antitrust investigation. Those tapes

introduced in the criminal trial of United States v. Andreas,

96 CR 762 (N.D. Ii), which are not included in the 200

figure, are already part of the public record and have been

delivered to Plaintiffs and Defendants. On February 12,

1999, ADM moved to quash, or in the alternative, to modify

Plaintiffs’ subpoena seeking the disclosure of the remaining

tapes. In its Motion to Quash, ADM argues that the subpoena

must be quashed because Whitacre’s taping violated Title III

of the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. § 2510 et seg., in that the tapes were not made

under color of law pursuant and/or were made with a criminal

or tortious purpose. See 18 U.S.C. §§ 2511(2)(c) and (2)(d).

ADM further argues that even ifthe tapes were lawfully made

either pursuant to § 2511(2)(c) or (2)(d), Title If] does not

39a

permit the disclosure of the tapes in an action in which the

Government is not a party. See 18 U.S.C. § 2517(3). In the

alternative, ADM argues that if this Court holds that the tapes

may be discovered by Plaintiffs that it appoint a special

master to recommend to the Court which portions, if any, of

the tapes should be redacted due to a lack of relevancy.

On March 2, 1999, Randall, who served as president of

ADM until 1997, moved to intervene and to quash Plaintiffs’

subpoena. In his Motion to Intervene and to Quash and

accompanying Memorandum in Support, Randall asserts that

he is an “aggrieved person” under 18 U.S.C. § 2510(11)

because he believes that approximately 20 of his

conversations were unlawfully intercepted by Whitacre.

Therefore, according to Randall, he should be allowed to

intervene pursuant to 18 U.S.C. § 2518(10)(a). In support of

his Motion to Quash, Randall asserts the same or similar

arguments that are asserted by ADM: the tapes were

unlawfully made and Title II does not authorize disclosure to

private civil litigants in a case in which the Government is not

a party.

The Court held oral arguments on March 22, 1999. This

Order follows.

Discussion

I. Standing

Section 2518(10) of Title Il provides:

Any aggrieved person in any trial, hearing, or

proceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the United

States, a State, or a political subdivision thereof, may

move to suppress the contents of any wire or oral

communication intercepted pursuant to this chapter, or

evidence derived therefrom, on the grounds that--

40a

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face;

or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or

proceeding unless there was no opportunity to make

such motion or the person was not aware of the grounds

of the motion. If the motion is granted, the contents of

the intercepted wire or oral communication, or evidence

derived therefrom, shall be treated as having been

obtained in violation of this chapter. The judge, upon

the filing of such motion by the aggrieved person, may

in his discretion make available to the aggrieved person

or his counsel for inspection such portions of the

intercepted communication or evidence derived

therefrom as the judge determines to be in the interest of

justice.

18 U.S.C. § 2518(10)(a). Section 2510(11) of Title I

defines “aggrieved person” as “a person who was party to any

intercepted wire, oral, or electronic communication or a

person against whom the interception was directed.” 18

U.S.C. § 2510(11). This provision has been interpreted as

conferring standing upon those persons who are (1)

“person[s]” under 18 U.S.C. § 2510(6) and (2) either were

parties to the intercepted communication or parties on whose

premises the intercepted communication took place. See

Alderman v. United States, 394 U.S. 165, 176 & n.9 (1969);

United States v. Civella, 648 F.2d 1167, 1171 & n.11 (8th

Cir.), cert. denied, 454 U.S. 867 (1981).

Plaintiffs do not argue that ADM does not have standing to

challenge the disclosure of the tapes. They do, however,

argue that Randall does not have standing to intervene. In

4la

support of this argument, Plaintiffs cite the case of United

States v. Dorfman, 690 F.2d 1217 (7th Cir.1982) (“Dorf-—

man I”). In Dorfman I, five defendants in the underlying

criminal case filed a motion to suppress material obtained by

a court-authorized electronic surveillance. The district court

denied the motion to suppress. In addition to the defendants’

challenge to the wiretap, there were two other related

challenges. The first related challenge was brought by five

persons whose conversations were intercepted but who were

not charged in the indictment. Following the entry of the

order denying the defendants’ motion to suppress, these five

persons filed ~<a motion to suppress the intercepted

conversations in which they participated and to obtain access

to the transcripts of those intercepted conversations. The

district court held that Title III does not grant a suppression

remedy broader than that provided by the Fourth Amendment

and, therefore, as non-parties, the five people did not have

standing under Title If] to challenge the wiretap conversations

in which they unknowingly participated. These five people

appealed the district court’s order. See id. at 1219-21.

The second related challenge was filed by a gentleman by

the name of William Webbe (“Webbe”). Webbe was named

in the indictment as an unindicted co-conspirator. Six days

after the district court entered its order denying the

nonparties’ motion to suppress, Webbe filed his own motion

to suppress the conversations in which he was a party. After

allowing Webbe access to the recordings at issue, the district

court denied Webbe’s motion to suppress because: (1)

Webbe was fully aware of the earlier hearings involving the

defendants’ motion to suppress but chose not to participate,

thereby raising a “classic case for the application of the

common law doctrine of laches”; (2) Webbe had already

challenged the lawfulness of the surveillance when he was

called to testify before the grand jury; (3) Webbe was not a

named interceptee on the authorization order and, therefore,

42a

lacked standing to challenge the facial validity of the order;

and (4) his motion was denied on the merits for the same

reason that the defendants’ motion was denied on the merits.

Dorfman I, 690 F.2d at 1221. Webbe also appealed the

district court’s ruling.

On appeal, the Seventh Circuit addressed the non-parties’

(the five non-party people and Webbe) arguments together.

The court of appeals noted that the nonparties were all

participants in conversations intercepted under the court

authorization in question. Further, their conversations were

to be used in a “trial ... before ... (a) court ... of the United

States." Jd. at 1226 (quoting § 2518(10)(a)). Therefore,

according to the Dorfman I court, “under a literal reading of

the statute they are ‘aggrieved persons’ in a position to move

for suppression pursuant to Section 2518(10)(a).” However,

the court of appeals still held that the nonparties lacked

standing to challenge the recordings. The court stated that

because the “defendants were able to test the legality of the

interceptions of all the communications that the government

intend[edj to use at trial,” the involvement of the nonparties

was unnecessary. /d. at 1229. The court of appeals further

stated:

Denying the nonparties standing in this context did not

deny the court an opportunity to evaluate the legality of

the underlying interceptions. . . . Rather, it simply

foreclosed the nonparties from separately retesting the

legality of the interceptions of their conversations.

e

In the course of its opinion, the Dorfman I court

distinguished its decision from one reached by the Tenth

Circuit in Anthony v. United States, 667 F.2d 870 (10th Cir.

1981), cert. denied, 457 U.S. 1153 (1982), a case relied upon

by Randall in his Memorandum in Support of his Motion to

Intervene and Quash. In Anthony, the defendant was

43a

convicted of unlawful interception of the wire

communications of several individuals, among them, Dr.

Vernon Sisney. After entry of the verdict, the defendant

moved for discovery of the contents of the tapes of

intercepted communications that the defendant had made and

that the government had subsequently seized. In response,

Dr. Sisney moved to intervene for purposes of opposing the

discovery and to suppress the tapes in accordance with 18

U.S.C. § 2515. The district court denied the motion,

reasoning that Dr. Sisney did not have standing to suppress

the information. The Tenth Circuit reversed and held that Dr.

Sisney was, in fact, an “aggrieved person” entitled to invoke

the sanction of suppression set forth in § 2515 of Title II. /d.

at 878. ft

Distinguishing its case from the Anthony case, the Dorfman

/ court stated:

In Anthony, absent Dr. Sisney’s involvement, there

would have been no one in a position to contest the use

or disclosure of the intercepted communications. The

only other party to the proceeding, the government,

clearly was not an “aggrieved person” as to the

challenged conversations. Thus, had the court denied

Dr. Sisney standing, his privacy interest in nondisclosure

would have been left totally unprotected.

Dorfman I, 690 F.2d at 1229. The Dorfman | court further

pointed out that had the Anthony court denied the nonparty

standing to move for suppression, the court “would have been

placed in the anomalous position of overseeing the disclosure

of admittedly unlawfully intercepted conversations.” Jd. at

1229 n.20.

Randall attempts to distinguish Dorfman I from this case.

He correctly argues that on more than one occasion the court

stated that its decision was based on the facts of the case

before it. According to Randall, the “critical facts” in

44a

Dorfman I were the criminal context of the case and the

belated nature of the nonparties’ motions to suppress.

Randall further asserts that unlike Webbe in Dorfman I, he

“was not indicted in the criminal case, was not a witness at a

grand jury, was not a witness at trial for either side, and had

absolutely no role in the defense or prosecution of the

criminal case.” (Randall Reply at 9).

One interpretation of Dorfman I is that the distinctions

pointed out by Randall are not critical distinctions. Arguably,

the Dorfman I relied only upon the fact that the defendants

were able to test the legality of the interceptions, thereby

foreclosing the need of the nonparties to retest the legality of

the interceptions. See Dorfman I at 1229. A reading of

Randall’s Memorandum in Support of his Motion to

Intervene and to Quash indicates that he is either making or

reformulating the arguments made by ADM in its Motion to

Quash. Therefore, even though the language of § 2518(10)(a)

supports Randall’s right to intervene in this case, one reading

of Dorfman I seems to imply that if a party to the litigation is

testing the legality of alleged unlawful interceptions, there is

no need, and hence no standing, for a nonparty to -test the

legality on the same grounds.

However, upon reconsideration of its oral finding made

during the March 22, 1999, oral arguments on this matter

hearing that Randall did not have standing to intervene, the

Court now finds that it cannot overlook the language in

Dorfman I that the district court’s denial of the nonparties

standing “in [that] context” did not deny the district court the

opportunity to test the legality of the tapes at issue. See id. at

1229. Instead, “it simply foreclosed the nonparties from

separately retesting the legality of the interceptions of their

conversations.” /d. (emphasis added). While Randall’s

arguments are virtually the same as ADM’s, he is not

“retesting” the legality of the tapes at issue. He appears

before this Court at the same time as ADM to test the legality

45a

of the tapes. Therefore, since the Court is not dealing with a

separate retesting of the legality of the tapes, but instead a

contemporaneous challenge, the Court does not believe that

the Dorfman I court would hold that Randall does not

have standing to intervene. Accordingly, this Court holds

that Randall does have standing to intervene pursuant to

§ 2510(10)(a).

II. “Oral Communication”

The tapes made by Whitacre include both tape recordings

of telephone conversations and tape recordings of

conversations in which Whitacre and the other person or

persons being recorded were physically present in the same

room at the same time (“face to face recordings”). Plaintiffs

initially argue that Title III does not apply to the recordings of

the face to face conversations. For this proposition, Plaintiffs

point to the definition of “oral communications” in 18 U.S.C.

§ 2510(2):

“[{Ojral communication” means any oral communication

uttered by a person exhibiting an expectation that such

communication is not subject to ‘interception under

circumstances justifying such expectation. . . .

(emphasis added).

In In the Matter of John Doe Trader Number One, 894

F.2d 240, 242 (7th Cir. 1990), the Seventh Circuit stated:

According to the legislative history of Title III, [the

definition of “oral communication”] was intended to

parallel the “reasonable expectation of privacy” test

created by the Supreme Court in Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See

S.Rep. No. 1097, 90" Cong. 2d Sess., reprinted in 1968

U.S. Code Cong. & Admin.News 2112-2274. See also

United States v. Harrelson, 754 F.2d 1153 (5™ Cir.

1985). Thus, Congress limited its protection of “oral

46a

communications” under Title III] to those statements

made where “first, a person [has] exhibited an actual

(subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize

as ‘reasonable.’ :

(Alterations in original); see also Angel v. Williams, 12 F.3d

786, 790 (8th Cir. 1993) (“We know from the legislative

history of the federal wiretap law that the definition of oral

communication is intended to reflect existing [Fourth

Amendment] law’’). Therefore, in order to determine whether

the face to face recordings were “oral communications” for

purposes of 18 U.S.C. § 2510(2), the Court must ascertain

whether those persons recorded by Whitacre during face to

face recordings had a reasonable expectation of privacy. See

id. at 242-43,

In John Doe Trader, Doe’s conversations were recorded

while the defendant was on the floor of the Chicago

Mercantile Exchange (“CME”). As stated by the court of

appeal;:

Doe’s conversations were overheard on the trading floor

of the CME. Appellant himself describes this

Clivironment as “typically noisy and frantic.” The FBI

agent conducting the investigation was clearly present

Oily a few feet from Doe and he ‘vas able to overhear

aid record each of Doe’s statements. In fact, the agent

Was a participant in many of these conversations. The

tae recorder concealed on the agent was unable to hear

More than the agent himself could. Thus, by exposing

these statements to the public in this manner, Doe canaot

now- contend that he _ reasonably believed his

Cénversations were private and therefore subject to

Cénstitutional protection.

Id. The John Doe Trader court held that Doe did not have an

objectively reasonable expectation of privacy in the recorded

47a

statements and, therefore, the recorded statements were not

“oral communications” under § 2510(2). Jd. at 245.

ADM! contends that John Doe Trader is readily

distinguishable from this case, as the recordings in John Doe

Trader were made on the busy and frantic floor-of the CME,

whereas the face to face recordings made by or with the

consent of Whitacre were made on ADM’s premises. The

Court agrees that the floor of the CME may be more frantic

than an office or conference room at ADM, and a more public

setting. However, this distinction is not dispositive on the

issue of whether tHose people who were recorded by

Whitacre during. face to face recordings possessed a

reasonable expectation of privacy. In United States v. White,

401 U.S. 745 (1971), the Supreme Court stated:

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17

L.Ed.2d 374 (1966), which was left undisturbed by Karz,

held that however strongly a defendant may trust an

apparent colleague, his expectations [that a person with

whom he is conversing will then or later reveal the

conversation to police] are not protected by the Fourth

Amendment when it turns out that the colleague is a

government agent regularly communicating with the

authorities. In these circumstances, “no interest

legitimately protected by the Fourth Amendment is

involved,” for that amendment affords no protection to

“a wrongdoer’s misplaced belief that a person to whom

he voluntarily confides his wrongdoing will not reveal

1 Because Randall’s arguments are the same as ADM’s, the Court’s

reference to ADM in the Discussion portion of the Order refers to both

ADM and Randall with the exception of Part IV of the Discussion portion,

which addresses an argument not made by Randall—whether the Court

should appoint a special master.

48a s

it.” Hoffa v. United States, at 302, 87 S.Ct., at 413. No

warrant to “search and seize” is required in such

circumstances, nor is it when the Government sends to

defendant’s home a secret agent who conceals his

identity and makes a purchase of narcotics from the

accused, ..., Or when the same agent, unbeknownst to

the defendant, carries electronic equipment to record the

defendant’s words an’ the evidence so gathered is later

offered in evidence... .

White, 401 U.S. at 749.

In Hoffa, Edward Partin (“Partin”), a Teamsters Union

official, made repeated visits to James Hoffa’s (“Hoffa”)

hotel suite during the pendency of the Test Fleet trial in 1962

in Nashville, Tennessee. Unbeknownst to Hoffa, Partin was

acting as a government informant and made various reports to

federal agents concerning conversations held with Hoffa and

his associates, disclosing, among other things, endeavors to

bribe the Test Fleet jury. One of the petitioners argued that

Partin failed to disclose his role as a government informer

and, therefore, this vitiated the consent given to Partin to

enter the hotel suite and listen in on or participate in the

various discussions. The Supreme Court rejected this

argument. Although recognizing that a heel room “can

Clearly be the object of Fourth Amendment protection,” the

Court stated: a

In the present case, however, it is evident that no

interest legitimately protected by the Fourth Amendment

is involved. It is obvious that the petitioner was not

relying on the security of his hotel suite when he made

the incriminating statements to Partin or in Partin’s

presence. Partin did not enter the suite by force or by

stealth. He was not a surreptitious eavesdropper. Partin

was in the suite by invitation, and every conversation

which he heard was either directed to him or knowingly

carried on in his presence. The petitioner, in a word,

49a

was not relying on the security of his hotel room; he

was relying upon his misplaced confidence that Partin

would not reveal his wrongdoing.

Hoffa, 385 U.S. at 302.

Similarly, those people who were recorded by Whitacre in

his presence were relying on their misplaced confidence that

Whitacre would not reveal the contents of the conversations.

ADM has not argued that Whitacre’s presence during these

conversations was without consent or that he was a

surreptitious eavesdropper. In short, while those people

recorded by Whitacre on ADM’s premises may have had a

subjective expectation that their conversations would be kept

private (based on location and also the fact that ADM

officials, to include Whitacre, had signed nondisclosure

agreements), it was not a reasonable expectation in light of

Hoffa and White. As succinctly stated by the White Court:

Our problem, in terms of the principle announced in

Katz, is what expectations of privacy are constitutionally

“justifiable”--what expectations the Fourth Amendment

will protect in the absence of a warrant. So far, the law

permits the frustration of actual expectations of privacy

by permitting authoritiés to use testimony of those

associates who for one reason or another have

determined to turn to the police, as well as by

authorizing the use of informants exemplified by Hoffa

.... If the law gives no protection to the wrongdoer

whose trusted accomplice is or becomes a police agent,

neither should it protect him when that same agent has

recorded or transmitted the conversations which are later

offered in evidence to prove the State’s case.

White, 401 U.S. at 751-52 (citation omitted).

ADM, however, argues that the Court’s conclusion that the

face to face recordings are not recordings of “oral

S0a

communications” under Title Ill renders 18 U.S.C.

§§ 2511(2)(c) and (2)(d) meaningless. Section 2511(2)(c)

provides:

It shall not be unlawful under this chapter for a person

acting under color of law to intercept a wire, oral, or

electronic communication, where such person is a party

to the communication or one of the parties to the

communication has given prior consent to such

interception.

Section 251 1(2)(d) provides:

It shall not be unlawful under this chapter for a person

not acting under color of law to intercept a wire, oral, or

electronic communication where such person is a party

to the communication or where one of the parties to the

communication has given prior consent to such

interception unless such communication is intercepted

for the purpose of committing any criminal or tortious

act in violation of the Constitution or laws of the United

States or of any State.

ADM argues that if the face to face recordings are not “oral

communications” and, therefore, not subject to the

restrictions of Title III, then why did Congress provide that it

shall not be unlawful to intercept an oral communication

when a person does so acting under color of law or without a

tortious or criminal purpose and is a party to the conversation

or gives prior consent? See §§ 2511(2)(c) and (2)(d).

The Court is not unsympathetic to ADM’s argument. On

the one hand, the case law in this and other circuits is clear

that the definition of “oral communication” in § 2510(2) is

intended to parallel the reasonable expectation of privacy test

set forth in Katz. See John Doe Trader, 894 F.2d at 242; see

also Angel, 12 F.3d at 790. Precedent also clearly establishes

that an alleged wrongdoer does not have a_ reasonable

Sla

expectation that a trusted accomplice will not disclose the

contents of conversations to the authorities or that the

conversations will not be recorded by the accomplice. See,

e.g., White, 401 U.S. at 751-52. On the other hand, Congress

uses the term “oral communication” in §§ 2511(2)(c) and

(2)(d) in the same breath that it uses “where such person is

party to the communication or one of the parties to the

communication has given prior consent to such interception.”

Therefore, it appears that Congress contemplated that some

face to face, consensual recordings would involve a

reasonable expectation of privacy on the part of the person or

persons who were unaware that they were being recorded.

The Court is well aware of the statutory construction

maxim that a statute should not be construed in such a

manner as to render words or phrases meaningless, redundant,

or superfluous. See Welsh v. Boy Scouts of Am., 993 F.2d

1267, 1272 (7th Cir.) (citation omitted), cert. denied, 510

U.S. 1012 (1993). However, if the Court accepted ADM’s

argument that Whitacre’s consensual, face to face recordings

are “oral communications” under § 2510(2), then this Court

would have to disregard the precedent that clearly establishes

that the definition of “oral communication” parallels the

Fourth Amendment reasonable expectation of privacy test

established Katz and further disregard the case law precedent

that holds the Fourth Amendment does not give an alleged

wrongdoer protection against a trusted accomplice tape

recording or divulging the contents of conversations. In

addition, §§ 2511(2)(c) and (2)(d) also refer to wire and

electronic types of communication, which, at least in the case

of wire communications, are protected against interception

regardless of the speaker's reasonable expectation of privacy.

See, e.g., Briggs v. American Air Filter Co., Inc., 630 F.2d

414, 417 n.4 (Sth Cir. 1980). While this does not completely

address the apparent conflict between § 2510(2) and

§§ 2511(2)(c) and (2)(d), it is clear that §§ 251 1(2)(c) and

§2a

(2)(d) are broader in scope, as they pertain to all three types

of communications defined in Title III and not just oral

communications,

Accordingly, despite the apparent conflict between

§ 2510(2) and §§ 2511(2)(c) and (2)(d), the Court concludes

that those tape recordings made by or with the consent of

Whitacre of conversations at which he and the other person or

persons being recorded were physically present are not

recordings of “oral communications” and shall be turned over

to Plaintiffs and Defendants for purposes of this litigation.

Il. 18 U.S.C. § 2517(3)

Although the Court has held that the face to face recordings

are not recordings of “oral communications,” the issue

remains whether the interception of telephone calls by

Whitacre may also be disclosed in this litigation. In Briggs,

supra, the Fifth Circuit stated that a telephone conversation is

a “wire communication” as that term is defined in 18 U.S.C.

§ 2510(1). Briggs, 630 F.2d at 417. Such communications

are protected against interception by electronic, mechanical,

or other devices regardless of the speaker’s expectation of

privacy. See id. at 417 n.4; see also United States v. Harpel,

493 F.2d 346, 349 (10th Cir. 1974) (recognizing lack of

requirement to prove reasonable expectation of privacy with

regard to intercepted wire communications). Accordingly,

the Court’s preceding expectation of privacy analysis has no

bearing on whether the contents of the interceptions of wire

communications may be disclosed in this case.

ADM argues that the interceptions of telephone calls may

not be disclosed under § 2517, which sets forth under what

circumstances lawful interceptions may be _ disclosed.

Plaintiffs, on the other hand, argue that consensual recordings

of telephone conversations that are made in accordance with

§ 2511(2)(c) or (2)(d) are exempt from the restrictions of

53a

§ 2517. For purposes of this analysis, the Court assumes that

the wire communications intercepted by Whitacre were

lawful under either § 2511(2)(c) or (2)(d).

The specific provision at issue is § 2517(3), which

provides:

Any person who has received by any means authorized

by this chapter, any information concerning a wire, oral,

or electronic communication, or evidence derived

therefrom intercepted in accordance with the provisions

of this chapter may disclose the contents of that

communication or such derivative evidence while giving

testimony under oath or affirmation in any proceeding

held under the authority of the United States or of any

State or political subdivision thereof.

According to Plaintiffs, interceptions that are made by

“consent” or “under color of law” are not “by means

authorized by this chapter.” They argue that only 18 U.S.C.

§§ 2516 and 2518 in Title III describe a procedure to obtain

“authorization and approval” by a court for interceptions of

wire or oral communications and by Congress using the term

“authorized” in § 2517(3) it was referring only to

interceptions authorized under §§ 2516 and 2518, not

consensual interceptions.

Section 2516 is entitled “Authorization for interception of

wire, oral, or electronic communications” and provides, in

pertinent part:

The Attorney General . . . may authorize an application

to a Federal judge of competent jurisdiction for, and

such judge may grant in conformity with section 2518 of

this chapter an order authorizing or approving the

interception of wire or oral communications by the

Federal Bureau of Investigation, or a Federal agency

having responsibility for the investigation of the offense

as to which the application is made ....

S4a

18 U.S.C. § 2516(1) (emphasis added). Subsections 2516(2)

and (3) provide the same type of authorization to States’

Attorneys General, States’ Attorneys and United States

Attorneys. Section 2518 then sets forth the procedure for

filing an application with a judge of competent jurisdiction:

Each application for an order authorizing or approving

the interception of a wire, oral, or electronic

communication under this chapter shall be made in

writing upon oath or affirmation to a judge of competent

jurisdiction and shall state the applicant’s authority to

make such application. Each application shall include

[the information listed in subsections (1)(a) through

(1)(6)].

18 U.S.C. § 2518(1) (emphasis added).

Plaintiffs, however, have failed to point out § 2511(1)(e)(i)

uses the term “authorized” in the context of § 2511(2)(c).

Section 2511(1)(e)(i) provides that any person who:

intentionally discloses, or endeavors to disclose, to any

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

communication, intercepted by means authorized by

sections 2511(2)(a)(ii), 25/1(2)(b) to (c), 2511(2)e),

2516, and 2518 of this chapter . . . . shall be punished as

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

provided in subsection (5).

(Emphasis added). Therefore, it is clear that use of the term

“authorized” is not limited to §§ 2516 and 2518.

ADM argues that in addition to § 2511(1)(e)(i) using the

term “authorized” in the context of § 2511(2)(c), Plaintiffs

have focused on the wrong phrase in § 2517(3). According to

ADM, the relevant phrase in § 2517(3) is “in accordance with

the provisions of this chapter.” ADM contends that

consensual recordings pursuant to § 2511(2)(c) or (2)(d) are

interceptions made “in accordance with the provisions of this

55a

chapter” and, therefore, are subject to the restrictions of

§ 2517(3). ADM further cites case authority in support

of its argument that § 2517(3) governs the admissibility of

tape recordings when they are made in accordance with

§ 2511(2)(c). In United States v. Armocida, 515 F.2d 49 (3rd

Cir.), cert. denied, 423 U.S. 858 (1975), the defendant

challenged the admissibility of certain tape recordings. In

upholding the district court’s order allowing the tapes, the

Third Circuit stated:

We agree with the Government that the warrantless

recordings of a telephone conversation with the consent

of only one of the parties is perfectly proper under

federal law and that the transcript of such a conversation

may be admitted into evidence in a federal prosecution.

18 U.S.C. §§ 2511(2)(c) and 2517(3), taken together,

specifically authorize the admission into evidence of

warrantless recordings of this type.

Id. at 52; see also United States v. Infelice, 506 F.2d 1358,

1365 (7th Cir. 1974) (citing §§ 2511(2)(c) and 2517(3) in

support of a holding that tapes made by a government

informant were admissible), cert. denied, 419 U.S. 1107

(1975); United States v. Upton, 502 F.Supp. 1193, 1199

(D.N.H. 1980) (“Read, as they must be, together, 18 U.S.C.

§ 2511{2)(c) and § 2517(3) specifically authorize the

admission into evidence of recordings of this type.”).

The Court agrees that the phrase “intercepted in accordance

with the provisions of this chapter” in § 2517(3) clearly

contemplates interceptions of consensual recordings made in

accordance with § 2511(2)(c) or (2)(d). In other words,

consensual recordings that are made under color of law or

without a criminal or tortious purpose are recordings made

“in accordance with” Title II. Accordingly, the Court holds

that § 2517(3) controls the disclosure of the recordings of

wire communications made by Whitacre.

S6a

Reaching this conclusion, however, provides, at best, only

a small piece of the statutory puzzle. ADM argues that even

assuming the tapes made by Whitacre of phone conversations

were lawfully made pursuant to § 2511(2)(c) or (2)(d),

§ 2517(3) prohibits their disclosure in civil cases in which the

Government is not a party. In /n re Motion to Unseal

Electronic Surveillance Evidence, 990 F.2d 1015 (8th Cir.

1993) (en banc) (7-5 decision), which is the principal case

relied upon by ADM, the Eighth Circuit held that there is no

authority in Title III for pretrial or compelled testimonial

disclosure of sealed electronic surveillance evidence to a

private civil RICO litigant. /d. at 1020. The Electronic

Surveillance majority stated that while the argument for

disclosure to private civil litigants based on the language of

§ 2517(3) has “surface plausibility”, there is no indication in

the legislative history that Congress ever intended to open the

discovery door in Title III to private civil litigants:

As originally enacted, section 2517(3) provided for

courtroom testimonial disclosure only in criminal

proceedings. . . . With the passage of RICO in 1970,

Congress amended the wiretap statute to allow for

testimonial use in civil proceedings as well. Organized

Crime Control Act of 1970, Pub.L. No. 91-542,

§ 902(b), 84 Stat. 922, 947 (1970). In support of his

argument that the statute now authorizes pretrial

discovery, Smith cites cases in which wiretap evidence

has been used by an agency other than that which

initially sought the wiretap. For example, Smith cites to

cases in which the Internal Revenue Service obtained

wiretap evidence from the FBI for use in civil

prosecutions. Such cases provide no authority for

disclosure, pretrial or otherwise, to a private civil

litigant.

The legislative history of the 1970 amendment adds little

support to Smith’s argument. As the district court noted, the

S7a

legislative history merely indicates the obvious, that the

change “amends 18 U.S.C. 2517 to permit evidence obtained

through the interception of wire or oral communications

under court order to be employed in civil actions.” The

language of this brief commentary suggests, however, that

Congress envisioned the gatherer of such evidence, i.e., a law

enforcement or governmental investigative agency, to be the

party making use of the evidence in a civil case. Jf the

change had been intended to open the door to private civil

litigants, further comment would have been warranted.

Id. at 1018-19 (emphasis added).

The Electronic Surveillance court is not alone in its

holding. In National Broadcasting Co. v. United States Dep't

of Justice, 735 F.2d 51 (2nd Cir. 1984), the Second Circuit

held that NBC was not entitled to surveillance tapes made by

the DOJ. NBC’s alleged need for the tapes at issue arose out

of a libel suit brought against NBC by Wayne Newton. Since

the issue of falsity was at the center of the libel action, NBC

sought permission to inspect and copy for use in its defense

various materials surrounding and including interceptions

made by the Government in a related RICO criminal case. In

pursuing this information, NBC relied upon § 2517(3), and

like the party that sought interceptions in Electronic

Surveillance, supra, NBC relied upon the 1970 amendments

to Title II] which expanded § 2517(3) to include civil

proceedings. The Second Circuit rejected this argument,

stating, “[W]e are sure that Congress did not utilize a

provision of the Organized Crime Control Act [of 1970] to

make the fruits of wiretapping broadly available to all civil

litigants who show a need for them.” NBC, 735 F.2d at 54:

see also County of Oakland v. City of Detroit, 610 F.Supp.

364, 370 (E.D. Mich. 1984) (same).

While this Court respects the decisions of the Second and

Eighth Circuits, and gives substantial deference to them, it is

58a

not bound by them. Section 2517(3) unambiguously states

that the contents of lawful interceptions may be disclosed

“while giving testimony under oath or affirmation in any

proceeding held under the authority of the United States or of

any State or political subdivision thereof.” (Emphasis added)

If Congress intended to limit disclosure of contents of

interceptions to cases in which the Government is a party, it

chose the wrong language to do so. The phrase “in any

proceeding held under the authority of the United States” is

not limiting in nature and includes a private, civil antitrust

action brought under the Sherman Act, which is a proceeding

held under the authority of this United States district court.

ADM, however, argues that even if § 2517(3) facially

permits disclosure in civil litigation in which the Government

is not a party, § 2517(3) does explicitly not allow for pre-trial

discovery of the wire interceptions. For this proposition,

ADM cites the cases of County of Oakland, supra, 610

F.Supp. at 370-71, and Dowd v. Calabrese, 101 F.R.D. 427,

435 (D.D.C. 1984) (disclosure of interceptions can be made

only during the testimony of a Government agent). In Dowd,

for example, two Assistant U.S. Attorneys brought libel

actions against the Wall Street Journal (“the Journal”) for a

story that asserted that the attorneys improperly pressured an

individual into testifying at a criminal trial. The Journal filed

motions to compel which sought disclosure of two wiretap

tapes. The Journal claimed that the tapes would support the

truthfulness of its story. A portion of these tapes were

presented during the criminal trial. The Dowd court ruled

that the Journal was entitled to the portions of the tapes which

were made public. As to the remaining tapes, the court

stated, “There are several problems with this request. In the

first place, section 2517(3) of Title Ill . . . explicitly provides

for disclosure only ‘while [the individual is] giving testimony

under oath or affirmation.’ ... That is not what is involved

here.” Jd. at 435. The Dowd court took the position that

59a

disclosure of the wiretap materials not presented in a trial

cannot be required pursuant to pre-trial discovery subpoenas.

Admittedly, § 2517(3) does not explicitly authorize

pre-trial disclosure of the contents of wire interceptions. On

the one hand, pre-trial disclosure seems implicit if such

interceptions can be used “in any proceeding held under that

authority of the United States ... .” § 2517(3). On the other

hand, by permitting disclosure of lawfully obtained intercepts

“only under the specific circumstances listed in 18 U.S.C.

§ 2517, Title Ill implies that what is not permitted is

forbidden . . ~.” United States v. Dorfman, 690 F.2d 1230,

1232 (7th Cir. 1982) (“Dorfman IT’) (emphasis added). So,

the Court is faced with a statutory quagmire. The broad

language “in any proceeding held under the authority of the

United States” clearly contemplates use of interceptions in

civil litigation even when the Government is not a party. On

the other hand, the phrase preceding this broad language

--“‘while giving testimony under oath or affirmation”-- does

not contemplate the type of pre-trial discovery sought by

Plaintiffs of the interceptions made by Whitacre of telephone -

conversation. Plaintiffs asserted during oral argument that

the initial disclosure of the wire interceptions from the DOJ to

the parties could occur by way of deposition or affidavit,

which would, perhaps, technically meet the “under oath or

affirmation” requirement of § 2517(3). However, testimony

or affidavits are one thing, but turning over the interceptions

of the telephone conversations is something else.

Again, the Court fully recognizes the conflict between its

conclusions with respect to § 2517(3) -- the language

contemplates use at trial but does not address pre-trial

discovery. Whether Congress intended such a result, the

Court can only guess. However, this Court must be guided

by the words used by Congress and the precedent that

60a

establishes that what is not permitted under § 2517 is

forbidden.”

As a final comment on this issue, it is the Court’s belief

that Congress needs to clarify the language in § 2517. In fact,

the other statutory issues addressed in this Order point to a

need for Congressional review of this statute. While judges

are correctly admonished to refrain from rewriting legislation,

we are sometimes forced to interpret legislation that is

contradictory or ambiguous.

IV. Special Master

ADM argues that it is likely that there are portions of the

face to face recordings which are irrelevant to the issues in

this litigation and, therefore, this Court should appoint a

special master to review the tapes and recommend to the

Court which portions of the tapes, if any, should be redacted

prior to the tapes being provided to Plaintiffs. The Court,

while not unsympathetic to ADM’s arguments denies this

request.

There is already in place in this case the First Addendum to

the Protective Order of May 2, 1996, which restricts the

availability of the tape recordings to specified attorneys for

Plaintiffs and Defendants ADM, Cargill, A.E. Staley

Manufacturer, and American Maize Products Company (now

known as Cerestar USA, Inc.). (See Doc. # 279, First

Addendum to the Protective Order of May 2, 1996). After

Defendants have reviewed the tapes ordered to be turned over

and have identified which portions they believe to be

2 Because the Court has held that the contents of the interceptions of

wire communications are not discoverable during pre-trial proceedings,

the parties agree that there is not a need for any further hearing at this time

to determine whether the interceptions were lawfully made pursuant to

§ 2511(2)(c) or (2)(d).

6la

irrelevant to this case and the tag-along case of Gray & Co. v.

ADM, et al., they may seek relief from this Court in the form

of redacting the alleged irrelevant portions of the tapes if they

are unable to reach an agreement with Plaintiffs.

The parties are in a much better position than a special

master would be in of determining what information from the

tapes is relevant to this case. This is true even if the Court

and the parties were to give a special master a crash course on

a case that is nearing the four year mark.

Accordingly, the request for a special master is denied.

Conclusion

For the reasons stated herein, ADM’s Motion to Quash or,

in the Alternative, to Modify Plaintiffs’ Subpoena is

GRANTED IN PART and DENIED IN PART and Randall’s

Motion to Intervene and to Quash Class Plaintiffs Subpoena

Duces Tecum is GRANTED IN PART and DENIED IN

PART.

Those tape recordings made by or with the consent of

Whitacre of conversations at which he and the other person or

persons being recorded were physically present shall be

turned over to Plaintiffs and Defendants. Plaintiffs and

Defendants shall handle the tapes in accordance with the First

Addendum to the Protective Order of May 2, 1996. Randall’s

attorney, Jeffrey Cole, shall also be allowed to review those

portions of the face to face recordings to which Randall was a

party. Prior to reviewing the tapes, however, Mr. Cole shall

read the Protective Order of May 2, 1996 and the First

Addendum to the Protective Order, sign a copy of the

certificate attached as Exhibit B to the First Addendum, and

return the certificate to this Court. The Clerk of the Court

shall send a copy of the Protective Order and First Addendum

(Doc. Nos. 98 and 279) via first class mail to Mr. Cole. He

shall review the tapes at the law firm of Williams &

62a

Connolly, which is the law firm that, pursuant to paragraph

four of the First Addendum to the Protective Order, is

designated as the custodian of tapes for the single copy

provided to Defendants.

The interceptions of telephone conversations made by or

with the consent of Whitacre are not discoverable.

Lastly, the Court denies ADM’s request to appoint a

special master.

Supplement to Order

Upon consideration of Defendant Archer Daniels Midland

Company’s (“ADM”) Application for Certification Pursuant

to 28 U.S.C. § 1292(b) and Class Plaintiffs and Plaintiff Gray

& Company’s respective Cross-Applications for Certification

Pursuant to 28 U.S.C. § 1292(b), and there being good cause

shown to grant the Applications, the Court certifies this Order

under 28 U.S.C. § 1292(b). The Court is of the opinion that

the Order involves the following controlling questions of law

as to which there are substantial grounds for difference of

opinion, and that an immediate appeal from the Order may

materially advance the ultimate termination of this litigation:

1. Does the recording of a face-to-face communication

by, or with the consent of, a party to the communication

take the conversation outside the scope of 18 U.S.C.

§ 2510(2), which defines “oral communication,” so that

the recording is lawful under Title III without regard to:

(a) whether the communication was recorded

by “a person acting under Color of law” (see 18

U.S.C. § 2511(2)(c)); or

(b) whether, if not recorded by a person acting

under color of law, the recording was made “for the

purpose of committing any criminal or tortious act”

(see 18 U.S.C. § 2511(2)(d))?

63a

2. Are consensual recordings made pursuant to 18

U.S.C. § 2511(2)(c) or (2)(d) exempt from the mandates

of 18 U.S.C. § 2517?

3. If consensual recordings made pursuant to 18

U.S.C. § 2511(2)(c) or (2)(d) are not exempt from the

mandates of 18 U.S.C. § 2517, does § 2517(3) authorize

the disclosure and use of such recordings in civil cases to

which the Government is not a party? and

4. If 18 U.S.C. § 2517(3) authorizes the disclosure and

use of tapes of consensual recordings made pursuant to

18 U.S.C. § 2511(2)(c) or (2)(d) in civil cases to which

the Government is not a party, does § 2517(3) permit

disclosure of such tapes during discovery in response to

a subpoena, or does it instead restrict disclosure to

testimony given at trial?

The conflicting and ambiguous statutory provisions

discussed in this Order, as well as the uncertain state of the

case law, create substantial ground for difference of opinion.

See, e.g., ante, at 18 (noting “the apparent conflict between

§ 2510(2) and §§ 2511(2)(c) and (2)(d)”); ante, at 18-20

(noting this Court’s disagreement with the decisions of the

Second and Eighth Circuits). Moreover, the questions are

“controlling” under 28 U.S.C. § 1292(b) because their

resolution “is quite likely to affect the further course of

the litigation.” Sokaogon Gaming Enterprise Corp. v.

Tushie-Montgomery Assoc., Inc., 86 F.3d 656, 659 (7th Cir.

1996).

As previously noted by the Court in the Order, the DOJ,

the recipient of Plaintiffs’ subpoena, has represented that just

under 200 recordings are involved. This is plainly a case in

which “interlocutory reversal may save time for the district

court, and time and expense for the litigants.” Johnson vy.

Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) (citation and

internal quotation marks omitted). For example, if the court

64a

of appeals were to disagree with this Court’s resolution of

both the first and third issues set forth above, it would then be

unnecessary to incur the time and expense of examining a

variety of issues which are otherwise likely to result in this

trial (e.g., redactions, reliability, authenticity).

As a final comment, the Court briefly addresses Plaintiffs’

argument that the first issue set forth above should not be

certified for interlocutory appeal. Plaintiifs argue that this

issue has already been resolved by the Seventh Circuit in

John Doe Trader, supra. Although the Court relied on John

Doe Trader in resolving the first issue, the apparent conflict

between the definition of “oral communication” in § 2510(2)

and the exceptions found in §§ 2511(2)(c) and (2)(d) to Title

III’s prohibition against intercepting oral communications

was not addressed by the John Doe Trader Court.

Accordingly, the Court rejects Plaintiffs argument that the

first issue should not be certified under 28 U.S.C. § 1292(b)

for interlocutory appeal.

ENTERED this 27" day of April, 1999.

Michael M. Mihm

United States District Judge

65a

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

IN RE: HIGH FRUCTOSE CORN MDL NO. 1087 AND

SYRUP ANTITRUST LITIGATION )

This document relates to master file no. 95-1477 all actions

ORDER

Upon consideration of Defendant Archer Daniels Midland

Company’s (“ADM”) Application for Certification Pursuant

to 28 U.S.C. § 1292(b) and Class Plaintiffs and Plaintiff Gray

& Company’s respective Cross-Applications for Certification

Pursuant to 28 U.S.C. § 1292(b), and there being good cause

shown to grant the Applications [#485 and #487 in case no.

95-1477 and #157 in case no. 97-1203], this Court hereby

amends its Order of March 25, 1999 to add the following

wording to page 26 of the Order, and directs the Clerk of the

Court to substitute for the original Order an Amended Order

which contains this additional material:

Certification

The Court certifies this Order under 28 U.S.C. § 1292(b).

The Court is of the opinion that the Order involves the

following controlling questions of law as to which there are

substantial grounds for difference of opinion, and that an

immediate appeal from the Order may materially advance the

ultimate termination of this litigation:

1. Does the recording of a face-to-face communication by,

or with the consent of, a party to the communication take the

conversation outside the scope of 18 U.S.C. § 2510(2), which

66a

defines “oral communication,” so that the recording is lawful

under Title III without regard to:

(a) whether the communication was recorded

by “a person acting under color of law” (see 18

U.S.C. § 2511(2)(c)); or

(b) whether, if not recorded by a person acting

under color of law, the recording was made “for the

purpose of committing any criminal or tortious act”

(see 18 U.S.C. § 2511(2)(d))?

2. Are consensual recordings made pursuant to 18 U.S.C.

§ 2511(2)(c) or (2)(d) exempt from the mandates of 18 U.S.C.

§ 2517?

3. If consensual recordings made pursuant to 18 U.S.C.

§ 2511(2)(c) or (2)(d) are not exempt from the mandates of

18 U.S.C. § 2517, does § 2517(3) authorize the disclosure and

use of such-+ecordings in civil cases to which the Government

is not a party? and

4. If 18 U.S.C. § 2517(3) authorizes the disclosure and

use of tapes of consensual recordings made pursuant to 18

U.S.C. § 2511(2)(c) or (2)(d) in civil cases to which the

Government is not a party, does § 2517(3) permit disclosure

of such tapes during discovery in response to a subpoena, or

does it instead restrict disclosure to testimony given at trial? _

The conflicting and ambiguous statutory provisions

discussed in this Order, as well as the uncertain state of the

case law, create substantial ground for difference of opinion.

See, e.g., ante, at 18 (noting “the apparent conflict between

§ 2510(2) and §§ 2511(2)(c) and (2)(d)”); ante, at 18-20

(noting this Court’s disagreement with the decisions of the

Second and Eighth Circuits). Moreover, the questions are

“controlling” under 28 U.S.C. § 1292(b) because their

resolution “is quite likely to affect the further course of the

litigation.” Sokaogon Gaming Enterprise Corp. v.

67a

Tushie-Montgomery Assoc., Inc., 86 F.3d 656, 659 (7th Cir.

1996). ,

As previously noted by the Court in the Order, the DOJ,

the recipient of Plaintiffs’ subpoena, has represented that just

under 200 recordings are involved. This is plainly a case in

which “interlocutory reversal may save time for the district

court, and time and expense for the litigants.” Johnson v.

Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) (citation and

internal quotation marks omitted). For example, if the court

of appeals were to disagree with this Court’s resolution of

both the first and third issues set forth above, it would then be

unnecessary to incur the time and expense of examining a

variety of issues which are otherwise likely to result in this

trial (e.g., redactions, reliability, authenticity).

As a final comment, the Court briefly addresses Plaintiffs’

argument that the first issue set forth above should not be

certified for interlocutory appeal. Plaintiffs argue that this

issue has already been resolved by the Seventh Circuit in

John Doe Trader, supra. Although the Court relied on John

Doe Trader in resolving the first issue, the apparent conflict

between the definition of “oral communication” in § 2510(2)

and the exceptions found in §§ 2511(2)(c) and (2)(d) to Title

II’s prohibition against intercepting oral communications

was not addressed by the John Doe Trader Court.

Accordingly, the Court rejects Plaintiffs argument that the

first issue should not be certified under 28 U.S.C. § 1292(b)

for interlocutory appeal.

ENTERED this 27" day of April, 1999.

Michael M. Mihm

United States District Judge

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APPENDIX E

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, as amended, provides:

§ 2510. Definitions

As used in this chapter—

(1) “wire communication” means any aural transfer made

in whole or in part through the use of facilities for the

transmission of communications by the aid of wire, cable, or

other like connection between the point of origin and the

point of reception (including the use of such connection in a

switching station) furnished or operated by any person

engaged in providing or operating such facilities for the

transmission of interstate or foreign communications or

communications affecting interstate or foreign commerce and

such term includes any electronic storage of such

communication;

(2) “oral communication” means any oral communication

uttered by a person exhibiting an expectation that such

communication is not subject to interception under

circumstances justifying such expectation, but such term does

not include any electronic communication;

(3) “State” means any State of the United States, the

District of Columbia, the Commonwealth of Puerto Rico, and

any territory or possession of the United States;

(4) “intercept” means the aural or other acquisition of the

contents of any wire, electronic, or oral communication

through the use of any electronic, mechanical, or other

device;

(5) “electronic, mechanical, or other device” means any

device or apparatus which can be used to intercept a wire,

oral, or electronic communication other than—

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(a) any telephone or telegraph instrument, equipment

or facility, or any component thereof, (i) furnished to the

subscriber or user by a provider of wire or electronic

communication service in the ordinary course of its

business and being used by the subscriber or user in the

ordinary course of its business or furnished by such

subscriber or user for connection to the facilities of such

service and used in the ordinary course of its business;

or (ii) being used by a provider of wire or electronic

communication service in the ordinary course of its

business, or by an investigative or law enforcement

officer in the ordinary course of his duties;

(b) a hearing aid or similar device being used to

correct subnormal hearing to not better than normal;

(6) “person” means any employee, or agent of the United

States or any State or political subdivision thereof, and any

individual, partnership, association, joint stock company,

trust, or corporation;

(7) “Investigative or law enforcement officer’ means any

officer of the United States or of a State or political

subdivision thereof, who is empowered by law to conduct

investigations of or to make arrests for offenses enumerated

in this chapter, and any attorney authorized by law to

prosecute or participate in the prosecution of such offenses;

(8) “contents”, when used with respect to any wire, oral, or

electronic communication, includes any information

concerning the substance, purport, or meaning of that

communication;

(9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court or a United

States court of appeals; and

(b) a judge of any court of general criminal jurisdiction

of a State who is authorized by a statute of that State to

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enter orders authorizing interceptions of wire, oral, or

electronic communications;

(10) “communication common carrier” shall have the same

meaning which is given the term “common carrier” by

section 153(h) of title 47 of the United States Code;

(11) “aggrieved person” means a person who was a party to

any intercepted wire, oral, or electronic communication or a

person against whom the interception was directed;

(12) “electronic communication” means any transfer of

Signs, signals, writing, images, sounds, data, or intelligence of

any nature transmitted in whole or in part by a wire, radio,

electromagnetic, photoelectronic or photooptical system that

affects interstate or foreign commerce, but does not include—

(A) any wire or oral communication;

(B) any communication made through a _ tone-only

paging device;

(C) any communication from a tracking device (as

defined in section 3117 of this title); or

(D) electronic funds transfer information stored by a

financial institution in a communications system used

for the electronic storage and transfer of funds;

(13) “user” means any person or entity who—

(A) uses an electronic communication service; and

(B) is duly authorized by the provider of such service to

engage in such use;

(14) “electronic communications system” means any wire,

radio, electromagnetic, photooptical or photoelectronic

facilities for the transmission of electronic communications,

and any computer facilities or related electronic equipment

for the electronic storage of such communications;

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(15) “electronic communication service” means any service

which provides to users thereof the ability to send or receive

wire or electronic communications;

(16) “readily accessible to the general public” means, with

respect to a radio communication, that such communication is

not—

(A) scrambled or encrypted:

(B) transmitted using modulation techniques whose

essential parameters have been withheld from the public

with the intention of preserving the privacy of such

communication;

(C) carried on a subcarrier or other signal subsidiary to a

radio transmission;

(D) transmitted over a communication system provided

by a common carrier, unless the communication is a tone

only paging system communication; or

(E) transmitted on frequencies allocated under part 25,

subpart D, E, or F of part 74, or part 94 of the Rules of

the Federal Communications Commission, unless, in the

case of a communication transmitted on a frequency

allocated under part 74 that is not exclusively allocated

to broadcast auxiliary services, the communication is a

two-way voice communication by radio;

[(F) Repealed. Pub.L. 104-132, Title VII, § 731(2)(C),

Apr. 24, 1996, 110 Stat. 1303]

(17) “electronic storage” means—

(A) any temporary, intermediate storage of a wire or

electronic communication incidental to the electronic

transmission thereof; and

(B) any storage of such communication by an electronic

communication service for purposes of backup

protection of such communication; and

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(18) “aural transfer” means a transfer containing the human

voice at any point between and including the point of origin

and the point of reception.

§ 2511. Interception and disclosure of wire, oral, or

electronic communications prohibited

(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

elect-onic, mechanical, or other device to intercept any

oral communication when—

(i) such device is affixed to, or otherwise

transmits 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

73a, °

operations of which affect interstate or foreign

commerce; or

(v) such person acts in the District of Columbia,

the Commonwealth of Puerto Rico, or any territory

or possession of the United States;

(c) intentionally discloses, or endeavors to disclose, 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

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;

or

(e) (i) intentionally discloses, or endeavors to disclose,

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

electronic communication, intercepted by means

authorized by sections 2511(2)(a)(ii), 2511(2)(b) to (c),

2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing

or having reason to know that 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,

ARNE Fe REN IIIT NTE IAS ey Pint: BARTS ERP NIL NT LIN AM AER AMON RD NAR ER GONE I I NEAR TINA PRAY ETN RSD AL BOERM OMEN AOI NIN IAB L Orig? AIRE IMAM MG AIG Ge PE *

OS OR rt; i o

ADR of

shall be punished as provided in subsection (4) or shall be

subject to suit as provided in subsection (5).

(2)(a)(i) It shall not be unlawful under this chapter for an

operator of a switchboard, or on officer, employee, or agent

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of a provider of wire or electronic communication service,

whose facilities are used in the transmission of a wire or

electronic communication, to intercept, disclose, or use that

communication in the normal course of his employment while

engaged in any activity which is a necessary incident to the

rendition of his service or to the protection of the rights or

property of the provider of that service, except that a provider

of wire communication service to the public shall not utilize

service observing or random monitoring except for

mechanical or service quality control checks.

(ii) Notwithstanding any other law, providers of wire

or electronic communication service, their officers,

employees, and agents, landlords, custodians, or other

persons, are authorized to provide information, facilities,

or technical assistance to persons authorized by law to

intercept wire, oral, or electronic communications or to

conduct electronic surveillance, as defined in section 101

of the Foreign Intelligence Surveillance Act of 1978, if

such provider, its officers, employees, or agents,

landlord, custodian, or other specified person, has been

provided with—

(A) a court order directing such assistance signed by the

authorizing judge, or

(B) a certification in writing by a person specified in

section 2518(7) of this title or the Attorney General of the

United States that no warrant or court order is required by

law, that all statutory requirements have been met, and that

the specified assistance is required,

setting forth the period of time during which the provision of

the information, facilities, or technical assistance is

authorized and specifying the information, facilities, or

technical assistance required. No provider of wire or

electronic communication service, officer, employee, or agent

thereof, or landlord, custodian, or other specified person shall

75a

disclose the existence of any interception or surveillance or

the device used to accomplish the interception or surveillance

with respect to which the person has been furnished a court

order or certification under this chapter, except as may

otherwise be required by legal process and then only after

prior notification to the Attorney General or to the principal

prosecuting attorney of a State or any political subdivision of

a State, as may be appropriate. Any such disclosure, shall

render such person liable for the civil damages provided for

in section 2520. No cause of action shall lie in any court

against any provider of wire or electronic communication

service, its officers, employees, or agents, landlord,

custodian, or other specified person for providing

information, facilities, or assistance in accordance with the

terms of a court order or certification under this chapter.

(b) It shall not be unlawful under this chapter for an officer,

employee, or agent of the Federal Communications

Commission, in the normal course of his employment and in

discharge of the monitoring responsibilities exercised by the

Commission in the enforcement of chapter 5 of title 47 of the

United States Code, to intercept a wire or electronic

communication, or oral communication transmitted by radio,

or to disclose or use the information thereby obtained.

(c) It shall not be unlawful under this chapter for a person

acting under color of law to intercept a wire, oral, or

electronic communication, where such person is a party to the

communication or one of the parties to the communication

has given prior consent to such interception.

(d) It shall not be unlawful under this chapter for a person

not acting under color of law to intercept a wire, oral, or

electronic communication where such person is a party to the

communication or where one of the parties to the

communication has given prior consent to such interception

unless such communication is intercepted for the purpose of

76a

committing any criminal or tortious act in violation of the

Constitution or laws of the United States or of any State.

(e) Notwithstanding any other provision of this title or

section 705 or 706 of the Communications Act of 1934, it

shall not be unlawful for an officer, employee, or agent of the

United States in the normal course of his official duty to

conduct electronic surveillance, as defined in section 101 of

the Foreign Intelligence Surveillance Act of 1978, as

authorized by that Act.

(f) Nothing contained in this chapter or chapter 121, or

section 705 of the Communications Act of 1934, shall be

deemed to affect the acquisition by the United States

Government of foreign intelligence information from

international or foreign communications, or foreign

intelligence activities conducted in accordance with otherwise

applicable Federal law involving a foreign electronic

communications system, utilizing a means other than

electronic surveillance as defined in section 101 of the

Foreign Intelligence Surveillance Act of 1978, and

procedures in this chapter and the Foreign Intelligence

Surveillance Act of 1978 shall be the exclusive means by

which electronic surveillance, as defined in section 101 of

such Act, and the interception of domestic wire and oral

communications may be conducted.

(g) It shall not be unlawful under this chapter or chapter

121 of this title for any person—

(i) to intercept or access an electronic communication

made through an electronic communication system that

is configured so that such electronic communication is

readily accessible to the general public;

(ii) to intercept any radio communication which is

transmitted—

77a

(I) by any station for the use of the gencral

public, or that relates to ships, aircraft, vehicles, or

persons in distress;

(II) by any governmental, law enforcement, civil

defense, private land mobile, or public safety

communications system, including police and fire,

readily accessible to the general public;

(II) by a station operating on an authorized

frequency within the bands allocated to the

amateur, citizens band, or general mobile radio

services; or

(IV) by any marine’ or aeronautical

communications system;

(ili) to engage in any conduct which—

(I) is prohibited by section 633 of the

Communications Act of 1934; or

(II) is excepted from the application of

section 705(a) of the Communications Act of

1934 by section 705(b) of that Act;

(iv) to intercept any wire or electronic

communication the transmission of which is

causing harmful interference to any lawfully

operating station or consumer electronic

equipment, to the extent necessary to identify

the source of such interference; or

(v) for other users of the same frequency to

intercept any radio communication made

through a system that utilizes frequencies

monitored by individuals engaged in the

provision or the use of such system, if such

communication is not scrambled or encrypted.

78a

(h) It shall not be unlawful under this

chapter—

(i) to use a pen register or a trap and trace device

(as those terms are defined for the purposes of

chapter 206 (relating to pen registers and trap and

trace devices) of this title); or

(ii) for a provider of electronic communication

service to record the fact that a wire or electronic

communication was initiated or completed in order

to protect such provider, another provider

furnishing service toward the completion of the

wire or electronic communication, or a user of that

service, from fraudulent, unlawful or abusive use of

such service.

(3)(a) Except as provided in paragraph (b) of this

subsection, a person or entity providing an electronic

communication service to the public shall not intentionally

divulge the contents of any communication (other than one to

such person or entity, or an agent thereof) while in

transmission on that service to any person or entity other than

an addressee or intended recipient of such communication or

an agent of such addressee or intended recipient.

(b) A person or entity providing electronic

communication service to the public may divulge the

contents of any such communication—

(i) as otherwise authorized in section 2511(2)(a)

or 2517 of this title;

(ii) with the lawful consent of the originator or

any addressee or intended recipient of such

communication;

(iii) to a person employed or authorized, or

whose facilities are used, to forward such

communication to its destination; or

79a ‘

(iv) which were inadvertently obtained by the

service provider and which appear to pertain to the

commission of a crime, if such divulgence is made

to a law enforcement agency.

(4)(a) Except as provided in paragraph (b) of this

subsection or in subsection (5), whoever violates subsection

(1) of this section shall be fined under this title or imprisoned

not more than five years, or both.

(b) If the offense is a first offense under paragraph (a) of

this subsection and is not for a tortious or illegal purpose or

for purposes of direct or indirect commercial advantage or

private commercial gain, and the wire or electronic

communication with respect to which the offense under

paragraph (a) is a radio communication that is not scrambled,

encrypted, or transmitted using modulation techniques the

essential parameters of which have been withheld from the

public with the intention of preserving the privacy of such

communication, then—

(i) if the communication is not the radio portion of a

cellular telephone communication, a cordless telephone

communication that is transmitted between the cordless

telephone handset and the base unit, a public land mobile

radio service communication or a paging service

communication, and the conduct is not that described in

subsection (5), the offender shall be fined under this title

or imprisoned not more than one year, or both; and

(ii) if the communication is the radio portion of a cellular

telephone communication, a _ cordless telephone

communication that is transmitted between the cordless

telephone handset and the base unit, a public land mobile

radio service communication or a paging service

communication, the offender shall be fined under this

title.

80a

(c) Conduct otherwise an offense under this subsection that

consists of or relates to the interception of a satellite

transmission that is not encrypted or scrambled and that is

transmitted—

(i) to a _ broadcasting station for purposes of

retransmission to the general public; or

(ii) as an audio subcarrier intended for redistribution to

facilities open to the public, but not including data

transmissions or telephone calls,

is not an offense under this subsection unless the conduct is

for the purposes of direct or indirect commercial advantage or

private financial gain.

(5)(a)(i) If the communication is—

(A) a private satellite video communication that is not

scrambled or encrypted and the conduct in violation of

this chapter is the private viewing of that communication

and is not for a tortious or illegal purpose or for purposes

of direct or indirect commercial advantage or private

commercial gain; or

(B) a radio communication that is transmitted on

frequencies allocated under subpart D_of part 74 of the

rules of the Federal Communications Commission that is

not scrambled or encrypted and the conduct in violation

of this chapter is not for a tortious or illegal purpose or

for purposes of direct or indirect commercial advantage

or private commercial gain,

then the person who engages in such conduct shall be subject

to suit by the Federal Government in a court of competent

jurisdiction.

(ii) In an action under this subsection—

(A) if the violation of this chapter is a first offense for

the person under paragraph (a) of subsection (4) and

8la

such person has not been found liable in a civil action

under section 2520 of this title, the Federal Government

shall be entitled to appropriate injunctive relief; and

(B) if the violation of this chapter is a second or

subsequent offense under paragraph (a) of subsection (4)

or such person has been found liable in any prior civil

action under section 2520, the person shall be subject to

a mandatory $500 civil fine.

(b) The court may use any means within its authority to

enforce an injunction issued under paragraph (ii)(A), and

shall impose a civil fine of not less than $500 for each

violation of such an injunction.

§ 2512. Manufacture, distribution, possession, and

advertising of wire, oral, or electronic communication

intercepting devices prohibited

(1) Except as otherwise specifically provided in this

chapter, any person who intentionally—

(a) sends through the mail, or sends or carries in

interstate or foreign commerce, any electronic,

mechanical, or other device, knowing or having reason

to know that the design of such device renders it

primarily useful for the purpose of the surreptitious

interception of wire, oral, or electronic communications;

(b) manufactures, assembles, possesses, or sells any

electronic, mechanical, or other device, knowing or

having reason to know that the design of such device

“renders it primarily useful for the purpose of the

surreptitious interception of wire, oral, or electronic

communications, and that such device or any component

thereof has been or will be sent through the mail or

transported in interstate or foreign commerce; or

82a

(c) places in any newspaper, magazine, handbill, or other

publication any advertisement of—

(i) any electronic, mechanical, or other device

knowing or having reason to know that the design

of such device renders it primarily useful for the

purpose of the surreptitious interception of wire,

oral, or electronic communications; or

(ii) any other electronic, mechanical, or other

device, where such advertisement promotes the use

of such device for the purpose of the surreptitious

interception of wire, oral, or _ electronic

communications, knowing or having reason to

know that such advertisement will be sent through

the mail or transported in interstate or foreign

commerce, shall be fined under this title or

imprisoned not more than five years, or both.

(2) It shall not be unlawful under this section for—

(a) a provider of wire or electronic communication

service or an officer, agent, or employee of, or a person

under contract with, such a provider, in the normal

course of the business of providing that wire or

electronic communication service, or

(b) an officer, agent, or employee of, or a person under

contract with, the United States, a State, or a political

subdivision thereof, in the normal course of the activities

of the United States, a State, or a political subdivision

thereof,

to send through the mail, send or carry in interstate or foreign

commerce, or manufacture, assemble, possess, or sell any

electronic, mechanical, or other device knowing or having

reason to know that the design of such device renders it

primarily useful for the purpose of the surreptitious

interception of wire, oral, or electronic communications.

83a

(3) It shall not be unlawful under this section to advertise

for sale a device described in subsection (1) of this section if

the advertisement is mailed, sent, or carried in interstate or

foreign commerce solely to a domestic provider of wire or

electronic communication service or to an agency of the

United States, a State, or a political subdivision thereof which

is duly authorized to use such device.

§ 2513. Confiscation of wire, oral, or electronic

communication intercepting devices

Any electronic, mechanical, or other device used, sent,

carried, manufactured, assembled, possessed, sold, or

advertised in violation of section 2511 or section 2512 of this

chapter may be seized and forfeited to the United States. All

provisions of law relating to (1) the seizure, summary and

judicial forfeiture, and condemnation of vessels, vehicles,

merchandise, and baggage for violations of the customs laws

contained in title 19 of the United States Code, (2) the

disposition of such vessels, vehicles, merchandise, and

baggage or the proceeds from the sale thereof, (3) the

remission or mitigation of such forfeiture, (4) the compromise

of claims, and (5) the award of compensation to informers in

respect of such forfeitures, shall apply to seizures and

forfeitures incurred, or alleged to have been incurred, under

the provisions of this section, insofar as applicable and not

inconsistent with the provisions of this section; except that

such duties as are imposed upon the collector of customs or

any other person with respect to the seizure and forfeiture of

vessels, vehicles, merchandise, and baggage under the

provisions of the customs laws contained in title 19 of the

United States Code shall be performed with respect to seizure

and forfeiture of electronic, mechanical, or other intercepting

devices under this section by such officers, agents, or other

persons as may be authorized or designated for that purpose

by the Attorney General.

84a

§ 2514. Repealed. Pub.L. 91-452, Title II, § 227(a), Oct. 15,

1970, 84 Stat. 930]

§ 2515. Prohibition of use as evidence of intercepted wire

or oral communications

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

disclosure of that information would be in violation of this

chapter.

§ 2516. Authorization for interception of wire, oral, or

electronic communications

(1) The Attorney General, Deputy Attorney General,

Associate Attorney General, or any Assistant Attorney

General, any acting Assistant Attorney General, or any

Deputy Assistant Attorney General or acting Deputy

Assistant Attorney General in the Criminal Division specially

designated by the Attorney General, may authorize an

application to a Federal judge of competent jurisdiction for,

and such judge may grant in conformity with section 2518 of

this chapter an order authorizing or approving the interception

of wire or oral communications by the Federal Bureau of

Investigation, or a Federal agency having responsibility for

the investigation of the offense as to which the application is

made, when such interception may provide or has provided

evidence of—

(a) any offense punishable by death or by imprisonment

for more than one year under sections 2274 through

2277 of title 42 of the United States Code (relating to the

enforcement of the Atomic Energy Act of 1954), section

2284 of title 42 of the United States Code (relating to

85a

sabotage of nuclear facilities or fuel), or under the

following chapters of this title: chapter 37 (relating to

espionage), chapter 90 (relating to protection of trade

secrets), chapter 105 (relating to sabotage), chapter 115

(relating to treason), chapter 102 (relating to riots)

chapter 65 (relating to malicious mischief), chapter 111

(relating to destruction of vessels), or chapter 81

(relating to piracy);

(b) a violation of section 186 or section 501(c) of title

29, United States Code (dealing with restrictions on

payments and loans to labor organizations), or any

offense which involves murder, kidnapping, robbery, or

extortion, and which is punishable under this title;

(c) any offense which is punishable under the following

sections of this title: section 201 (bribery of public

officials and witnesses), section 215 (relating to bribery

of bank officials), section 224 (bribery in sporting

contests), subsection (d), (e), (f), (g), (h), or (i) of section

844 (unlawful use of explosives), section 1032 (relating

~ to concealment of assets), section 1084 (transmission of

wagering information), section 751 (relating to escape),

section 1014 (relating to loans and credit applications

generally; renewals and discounts), sections 1503, 1512,

and 1513 (influencing or injuring an officer, juror, or

witness generally), section 1510 (obstruction of criminal

investigations), section 1511 (obstruction of State or

- local law enforcement), section 1751 (Presidential and

Presidential staff assassination, kidnapping, and assault),

section 1951 (interference with commerce by threats or

violence), section 1952 (interstate and foreign travel or

transportation in aid of racketeering enterprises), section

1958 (relating to use of interstate commerce facilities in

the commission of murder for hire), section 1959

(relating to violent crimes in aid of racketeering

activity), section 1954 (offer, acceptance, or solicitation

86a

to influence operations of employee benefit plan),

section 1955 (prohibition of business enterprises of

gambling), section 1956 (laundering of monetary

instruments), section 1957 (relating to engaging in

monetary transactions in property derived from specified

unlawful activity), section 659 (theft from interstate

shipment), section 664 (embezzlement from pension and

welfare funds), section 1343 (fraud by wire, radio, or

television), section 1344 (relating to bank fraud),

sections 2251 and 2252 (sexual exploitation of children),

sections 2312, 2313, 2314, and 2315 (interstate

transportation of stolen property), section 2321 (relating

to trafficking in certain motor vehicles or motor vehicle

parts), section 1203 (relating to hostage taking), section

1029 (relating to fraud and related activity in connection

with access devices), section 3146 (relating to penalty

for failure to appear), section 3521(b)(3) (relating to

witness relocation and assistance), section 32 (relating to

destruction of aircraft or aircraft facilities), section 38

(relating to aircraft parts fraud), section 1963 (violations

with respect to racketeer influenced and corrupt

organizations), section 115 (relating to threatening or

retaliating against a Federal official), and section 1341

(relating to mail fraud), section 351 (violations) with

respect to congressional, Cabinet, or Supreme Court

assassinations, kidnapping, and assault), section 831

(relating to prohibited transactions involving nuclear

materials), section 33 (relating to destruction of motor

vehicles or motor vehicle facilities), section 175 (relating

to biological weapons), section 1992 (relating to wreck-

ing trains), a felony violation of section 1028 (relating to

production of false identification documentation), sec-

tion 1425 (relating to the procurement of citizenship or

nationalization unlawfully), section 1426 (relating to the

reproduction of naturalization or citizenship papers),

section 1427 (relating to the sale of naturalization or

87a

citizenship papers), section 1541 (relating to passport

issuance without authority), section 1542 (relating to

false statements in passport applications), section 1543

(relating to forgery or false use of passports), section

1544 (relating to misuse of passports), or section 1546

(relating to fraud and misuse of visas, permits, and other

documents);

(d) any offense involving counterfeiting punishable

under section 471, 472, or 473 of this title;

(e) any offense involving fraud connected with a case

under title 11 or the manufacture, importation, receiving,

concealment, buying, selling, or otherwise dealing in

narcotic drugs, marihuana, or other dangerous drugs,

punishable under any law of the United States;

(f) any offense including extortionate credit transactions

under sections 892, 893, or 894 of this title;

(g) a violation of section 5322 of title 31, United States

Code (dealing with the reporting of currency

transactions);

(a) any felony violation of sections 2511 and 2512

(relating to interception and disclosure of certain

communications and to ceriain intercepting devices) of

this title;

(i) any felony violation of chapter 71 (relating to

obscenity) of this title;

(j) any violation of section 60123(b) (relating to

destruction of a natural gas pipeline) or section 46502

(relating to aircraft piracy) of title 49;

(k) any criminal violation of section 2778 of title 22

(relating to the Arms Export Control Act);

(1) the location of any fugitive from justice from an

offense described in this section;

88a

(m) a violation of section 274, 277, or 278 of the

Immigration and Nationality Act ( 8 U.S.C. 1324, 1327,

or 1328) (relating to the smuggling of aliens);

(n) any felony violation of sections 922 and 924 of title

18, United States Code (relating to firearms);

(0) any violation of section 5861 of the Internal

Revenue Code of 1986 (relating to firearms);

(p) a felony violation of section 1028 (relating to

production of false identification documents), section

1542 (relating to false statements in~ passport

applications), section 1546 (relating to fraud and misuse

of visas, permits, and other documents) of this title or a

violation of section 274, 277, or 278 of the Immigration

and Nationality Act (relating to the smuggling of aliens);

(p) any conspiracy to commit any offense described in

any subparagraph of this paragraph.

(2) The principal prosecuting attorney of any State, or the

principal prosecuting attorney of any political subdivision

thereof, if such attorney is authorized by a statute of that State

to make application to a State court judge of competent

jurisdiction for an order authorizing or approving the

interception of wire, oral, or electronic communications, may

apply to such judge for, and such judge may grant in

conformity with section 2518 of this chapter and with the

applicable State statute an order authorizing, or approving the

interception of wire, oral, or electronic communications by

investigative or law enforcement officers having

responsibility for the investigation of the offense as to which

the application is made, when such interception may provide

or has provided evidence of the commission of the offense of

murder, kidnapping, gambling, robbery, bribery, extortion, or

dealing in narcotic drugs, marihuana or other dangerous

drugs, or other crime dangerous to life, limb, or property, and

punishable by imprisonment for more than one year,

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designated in any applicable State statute authorizing such

interception, or any conspiracy to commit any of the

foregoing offenses.

(3) Any attorney for the Government (as such term is

defined for the purposes of the Fed

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