965 F.2d 637 (8th Cir. 1992), 91-2385, In re Motion to Unseal Electronic Surveillance Evidence

Docket Nº:91-2385.
Citation:965 F.2d 637
Party Name:Bus.Disp.Guide 8019 In re MOTION TO UNSEAL ELECTRONIC SURVEILLANCE EVIDENCE. Howard J. SMITH, Appellant, v. Donn H. LIPTON, Appellee.
Case Date:May 29, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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965 F.2d 637 (8th Cir. 1992)

Bus.Disp.Guide 8019



Howard J. SMITH, Appellant,


Donn H. LIPTON, Appellee.

No. 91-2385.

United States Court of Appeals, Eighth Circuit

May 29, 1992

Submitted Sept. 12, 1991.

Heaney, Senior Circuit Judge, dissented and filed opinion.

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Robert S. Adler, St. Louis, Mo., argued, for appellant.

Joe D. Jacobson, St. Louis, Mo., argued (Martin M. Green, on the brief), for appellee.

Before ARNOLD, [*] Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.

BEAM, Circuit Judge.

Appellant, Howard J. Smith, filed a motion to unseal electronic surveillance evidence. The district court denied Smith's motion. We reverse and remand.


The action that forms the basis of this appeal involves several real estate development deals gone awry. In that action, Howard Smith sued Donn Lipton claiming fraud, tortious interference, and violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). See Smith v. Lipton, Cause No. 892-03316 (E.D.Mo. July 10, 1990).

During the discovery phase of the above action, Smith sought to have the contents of several intercepted conversations concerning real estate development in the downtown St. Louis area between Lipton and former St. Louis Alderman Sorkis Webbe, Jr. made available to him for use in his civil suit. 1 Smith believes the intercepted conversations contain evidence pertinent to his RICO claims. The district court held that its authority to make the intercepted conversations available to Smith must lie in section 2517 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (Title III), and construed that section as denying it such authority in the present case. 2 Although

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we agree that section 2517 governs, we find that under limited circumstances, intercepted communications not previously made public may be made available to private litigants.


We interpret a statute by looking to the words of the statute and giving them their plain meaning. Section 2517 is structured to permit investigative or law enforcement officers to make effective use of intercepted wire, oral or electronic communications. Section 2517(1) permits officers to disclose the communications or derivative evidence to other officers. Section 2517(2) permits officers to use the communications or derivative evidence to the extent appropriate or proper in performing their official duties. Section 2517(3) permits any person to make the contents of an intercepted communication public through testimony under oath in "any proceeding held under the authority of the United States or of any State." The words "any proceeding" are clearly sufficient to include private civil actions such as the one in this case. See, e.g., Dowd v. Calabrese, 101 F.R.D. 427, 435 (D.D.C.1984) (holding that to the extent wiretaps are public, they can be used in a subsequent civil proceeding). Section 2517(3), however, is not without its limitations. Before the contents of an intercepted communication can be introduced in a proceeding, the party seeking introduction must establish that he obtained the information by a means authorized under Title III. See 18 U.S.C. §§ 2515, 2517(3) (1988).

We assume without deciding that no question exists as to the government's authority to intercept the communications at issue here. Consequently, the government may, without question, make public through testimony the contents of any intercepted communication related to the offenses specified in the original wiretap authorization or approval. See id. § 2517(3). Furthermore, under section 2517(5) a judge may permit the government to make public through testimony the contents of intercepted communications related to offenses other than those specified in the wiretap authorization or approval. Implicit in this grant of power to the judge is the judge's authority to grant access to the intercepted communications. The gravamen of this case, then, is whether section 2517(5) permits a judge to grant access to intercepted communications to private litigants for use pursuant to section 2517(3) where the government has not previously made the communications public. Because Title III does not directly address this issue, we first look to the purpose and intent of Congress in enacting Title III for guidance in resolving this case.

Before the enactment of Title III, the use of evidence obtained by wiretap was banned, except if the wiretap was conducted pursuant to the warrant procedure mandated by the Fourth Amendment. See

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Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). Recognizing the importance of wiretap information in criminal prosecutions, Congress responded to Katz by enacting Title III. In Title III, Congress sought to balance the needs of criminal-law enforcement with the privacy interest of individuals engaged in wire, oral, or electronic communications. See Title III--Wiretapping and Electronic Surveillance: Findings, Pub.L. No. 90-351, § 801, 82 Stat. 211, 211...

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