990 F.2d 1015 (8th Cir. 1993), 91-2385, In re Motion to Unseal Electronic Surveillance Evidence

Docket Nº:91-2385.
Citation:990 F.2d 1015
Party Name:In re MOTION TO UNSEAL ELECTRONIC SURVEILLANCE EVIDENCE. Howard J. SMITH, Appellant, v. Donn H. LIPTON, Appellee.
Case Date:April 06, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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990 F.2d 1015 (8th Cir. 1993)

In re MOTION TO UNSEAL ELECTRONIC SURVEILLANCE EVIDENCE.

Howard J. SMITH, Appellant,

v.

Donn H. LIPTON, Appellee.

No. 91-2385.

United States Court of Appeals, Eighth Circuit

April 6, 1993

Submitted Sept. 14, 1992.

Robert S. Adler (argued), St. Louis, MO, for appellant.

Gerald P. Greiman, (argued), Clayton, MO (Martin M. Green and Joe D. Jacobson, on brief), for appellee.

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Before RICHARD S. ARNOLD, Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM, LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges, en banc.

HEANEY, Senior Circuit Judge.

Howard J. Smith filed a motion to unseal electronic surveillance evidence for use in a state court action against Donn H. Lipton. Finding no authority for such disclosure in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1988) ("Title III"), the district court denied Smith's motion. We affirm.

I

Smith brought an action against Lipton and others in the Circuit Court of St. Louis City on theories of fraud, breach of fiduciary duty, tortious interference, and violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968 (1988). The action concerns several unsuccessful real estate transactions to which both Smith and Lipton were party.

In preparation for his suit in state court, Smith sought access to electronic surveillance evidence of conversations between Lipton and Sorkis Webbe Sr. and Sorkis Webbe Jr. that he believes will support his allegation of RICO violations by Lipton. He first sought access under the Freedom of Information Act, 5 U.S.C. § 552 (1988), but when that action met no success because the material requested was under seal, Smith filed a motion in federal district court to unseal the electronic surveillance evidence. Smith sought access to the tapes and transcripts of conversations that involved certain pieces of property. Smith v. Lipton, No. 91-643C(1), slip op. at 1 (E.D.Mo. May 7, 1991).

The tapes Smith sought were the product of electronic surveillance of the offices of the Webbes at the Mayfair Hotel in the City of St. Louis conducted by the Federal Bureau of Investigation ("FBI") pursuant to a court order of October 15, 1982, granted under Title III. 1 United States v. Webbe, 652 F.Supp. 20, 22 (E.D.Mo.1985). Lipton concedes that the tapes include conversations he had with the Webbes, but that he does not remember the contents of those conversations. Although portions of these tapes were admitted into the trial of Webbe Jr., United States v. Webbe, 791 F.2d 103, 104 (8th Cir.1986), the conversations sought by Smith were not included in those admitted into evidence and therefore remain under seal.

II

It is agreed that authority for release of the tapes under Title III must be found in section 2517. 2 That section provides for

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disclosure in a number of circumstances, most of which involve uses for law enforcement. Smith relies on subsections (5) and (3), which provide for disclosure through courtroom testimony of wiretap evidence related to offenses other than those for which the wiretap was sought. Smith argues that in its current form section 2517(3) provides for the disclosure he seeks. As the Second Circuit said of a similar argument, this "argument based on the language of § 2517(3) has a surface plausibility, but only if one concentrates on the language alone and ignores the rest of Title III and the legislative struggle leading to its enactment." National Broadcasting Co. v. United States Dep't of Justice, 735 F.2d 51, 53 (2d Cir.1984). 3

A

Title III was enacted in response to the Supreme Court's decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held eavesdropping on private conversations by the state to be a seizure under the Fourth Amendment. See S.Rep. No. 1097, 90th Cong., 2d Sess. 66 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153 ("Senate Report"). In enacting Title III Congress recognized, as had Justice Brandeis, that the interception of wire communications raises unique privacy concerns:

Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and although proper, confidential, and privileged, may be overheard. Moreover, the tapping of one man's telephone line involves the tapping of the telephone of every other person whom he may call, or who may call him.

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Olmstead v. United States, 277 U.S. 438, 475-76, 48 S.Ct. 564, 571, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting). One of the two stated purposes of Title III was to "protect[ ] the privacy of wire and oral communications." Senate Report at 2153. In passing Title III, Congress made a specific finding on the need for such protection:

To safeguard the privacy of innocent persons, the interception of wire or oral communications where none of the parties to the communication has consented to the interception should be allowed only when authorized by a court of competent jurisdiction and should remain under the control and supervision of the authorizing court. Interception of wire and oral communications should further be limited to certain major types of offenses and specific categories of crime with assurances that the interception is justified and that the information obtained thereby will not be misused.

Title III--Wiretapping and Electronic Surveillance: Findings, Pub.L. 90-351, § 801(d), 82 Stat. 211, 211 (1968); see Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972) ("although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern"). 4

Congress provided for very limited disclosure of any wiretap evidence that is obtained. It specifically required that recordings made under Title III be sealed by the authorizing judge, see 18 U.S.C. § 2518(8)(a) (1988), and provided for disclosure and use of the intercepted conversations under very specific circumstances. When addressing disclosure of the contents of a wiretap, the question is whether Title III specifically authorizes such disclosure, not whether Title III specifically prohibits the disclosure, for Title III prohibits all disclosures not authorized therein. See United States v. Underhill, 813 F.2d 105, 110 (6th Cir.), cert. denied, 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987); United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir.1982).

B

Notwithstanding the drafters' concerns about conversational privacy, Smith argues that the statute now provides for use of previously undisclosed wiretap evidence in private civil RICO actions, and that concomitantly, the authorization of testimonial disclosure includes pretrial access to the contents of the wiretap. He bases his argument on a 1970 amendment to Title III. As originally enacted, section 2517(3) provided for courtroom testimonial disclosure only in criminal proceedings. See 18 U.S.C. § 2517(3) (Supp. V 1965-69). 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 disclosure to private civil RICO litigants, 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 RICO litigant.

The legislative history of the 1970 amendment adds little support to Smith's argument. As the district court noted, the legislative history

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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. If the change had been intended to open the door to private civil litigants, further comment would have been warranted.

Smith v. Lipton, No. 91-643C(1), slip op. at 5-6 (E.D.Mo. May 7, 1991) (quoting H.R.Rep. No. 1549, 91st Cong., 2d Sess. 18 (1970), reprinted in 1970 U.S.C.C.A.N. 4007, 4036); see also James G. Carr, The Law of Electronic Surveillance § 7.3(b) at 7-42 (2d ed. 1990).

An examination of the situation that preceded the enactment of Title III supports the district court's view. One of the significant protections Title III gives to private conversations is a sweeping exclusionary rule, which applies in all government proceedings, rather than simply in judicial proceedings. See 18 U.S.C. § 2515 (1988). The existing exclusionary rule crafted by the Supreme Court did not apply to civil proceedings generally, and the drafters believed that they were expanding the rule. Michael Goldsmith, The Supreme Court and Title III: Rewriting the Law of Electronic Surveillance, 74 J.Crim.L. & Criminology 1, 40 n. 232 (1983) (citing Standards Relating to Electronic Surveillance 115 (Approved Draft 1968)). To cut back on the rule of exclusion by allowing the unsealing of wiretap materials for use by private litigants in civil...

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