Askin, In re, 94-5428

• Decision Date: 02 February 1995
• Docket Number: No. 94-5428,94-5428
• Citation: 47 F.3d 100
• Parties: In re: Steven M. ASKIN, Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Mark T. McNULTY, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 100

47 F.3d 100

In re: Steven M. ASKIN, Appellant UNITED STATES of America, Plaintiff-Appellee, v. Mark T. McNULTY, Defendant.

No. 94-5428.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1994.

Decided Feb. 2, 1995.

ARGUED: William Benjamin Moffitt, Moffitt, Zwerling & Kemler, Alexandria, VA; Kevin David Mills, Burke Street Law Center, Martinsburg, WV, for appellant. Thomas Oliver Mucklow, Asst. U.S. Atty., Wheeling, WV, for appellee. ON BRIEF: William D. Wilmoth, U.S. Atty., Wheeling, WV, for appellee.

Before WILKINSON, Circuit Judge, PHILLIPS, Senior Circuit Judge, and LAY, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Senior Judge PHILLIPS and Senior Judge LAY joined.

OPINION

WILKINSON, Circuit Judge:

This case raises questions about the respective roles of Congress and the courts in judging the propriety of surveillance activity involving advancing technologies. Appellant Steven M. Askin, a non-party witness in a drug conspiracy trial, refused to answer certain questions posed to him by the government on the ground that the questions were based on information obtained by electronic surveillance in violation of the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986 ("ECPA"), 18 U.S.C. Sec. 2510-2521 (1988). The district court cited Askin for civil contempt, from which he now appeals. Mindful of the fact that Title III represents a comprehensive effort by Congress to strike a careful balance between rights of personal privacy and the needs of law enforcement, and reluctant to employ constitutional concepts to overturn that balance, we hold that the surveillance in this case was lawful. Askin therefore lacked just cause to refuse to testify, and we affirm the judgment of the district court holding him in contempt.

I.

In early January of 1994, a West Virginia grand jury indicted several individuals on multiple drug-related offenses, including conspiracy to distribute cocaine. As part of its pre-indictment investigation, the government monitored telephone conversations between appellant Askin and Robin L. Brumbaugh, who was among those named in the indictment as a co-conspirator.

The calls were conducted by Askin on either a traditional land-based telephone or a cellular car phone, while Brumbaugh spoke on a cordless phone. Cordless telephone communications are transmitted between the cordless phone handset and its base unit by AM or FM radio signals. These signals can be intercepted with relative ease by standard AM radios. Government agents, without prior judicial authorization, used a radio scanner to intercept and record the radio waves emitted from Brumbaugh's cordless phone.

Askin, who is an attorney, was originally involved in this case as defense counsel to Brumbaugh and another defendant, Paul E. Frazier. When it became clear that the government intended to call Askin as a trial witness on its behalf, the magistrate judge granted the government's motion to disqualify him as defense counsel in the case. The government then issued a subpoena to Askin on April 6, 1994.

Following issuance of the subpoena, Askin filed two pre-trial motions: a motion to suppress the intercepted material and a motion to quash the subpoena. The suppression motion argued, inter alia, that use of the intercepted material would violate Askin's rights under Title III and the Fourth Amendment. Askin's motion to quash argued that the subpoena violated the attorney-client privilege and the Sixth Amendment. The district court denied both motions.

The case then proceeded to trial. The government called Askin, who had been granted use immunity for his testimony, as a witness in its case-in-chief. In an in camera hearing, the prosecutor asked Askin several introductory questions regarding his name and employment, which Askin answered. Askin refused, however, to answer the prosecutor's next question referring to one of the defendants: "Do you know a Mark McNulty?" Askin maintained that the question was based on conversations between him and Brumbaugh that the government had intercepted in violation of the Fourth Amendment.

The district judge reminded Askin that he was testifying under a grant of immunity, informed him that she had previously rejected his Fourth Amendment argument, and ordered him to respond. Askin again resisted the first question. He then refused to answer the following questions, which he also believed were derived from the intercepted conversations: "Do you know Robin L. Brumbaugh?," "Do you know Mark Dabbs?" (another defendant), "Have you used cocaine?," "Have you ever received cocaine, either by purchase or gift or in any other way, cocaine from Mark McNulty?" The court subsequently held Askin in civil contempt pursuant to 28 U.S.C. Sec. 1826(a) (1988). Askin now appeals. ¹

II.

Title 28 of the United States Code grants district courts the power to order the confinement of witnesses who refuse to comply with court orders to testify. It provides that:

Whenever a witness in any proceeding before ... any court ... of the United States refuses without just cause shown to comply with an order of the court to testify ... the court, upon such refusal ... may summarily order his confinement at a suitable place until such time as the witness is willing to give such testimony....

28 U.S.C. Sec. 1826(a). The statute plainly affords recalcitrant witnesses a "just cause" defense to civil contempt charges. In Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), the Supreme Court held that a showing by a witness that his interrogation was based on illegal government surveillance is sufficient to constitute just cause for refusing to testify. Id. at 46-52, 92 S.Ct. at 2360-63. Thus, where a witness demonstrates that questions derive from unlawfully intercepted communications to which he was a party, such demonstration precludes an adjudication of contempt under Sec. 1826(a). Id.

In challenging the validity of his contempt citation, Askin contends that he had just cause to refuse to testify because the questions propounded to him were the fruit of telephone conversations monitored in violation of both Title III and the Fourth Amendment. We shall address the statutory and constitutional claims in turn.

A.

Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communications Privacy Act of 1986, forbids the warrantless interception of wire, oral, and electronic communications. 18 U.S.C. Sec. 2511. If a particular conversation does not qualify as either a wire, oral, or electronic communication, it is not protected from interception by Title III. United States v. Smith, 978 F.2d 171, 175 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993). We must first ask whether the Askin-Brumbaugh telephone conversations--transmitted and intercepted via radio wave from Brumbaugh's cordless telephone--fell within any of the statutory categories of protected communication at the time those conversations took place.

At the time of the conversations in question, the statute made plain that the radio component of cordless phone conversations was, by definition, neither a wire nor electronic communication. It defined wire communication as "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 ... but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit." 18 U.S.C. Sec. 2510(1) (emphasis added). The statute similarly provided that 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 ... but does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit." 18 U.S.C. Sec. 2510(12)(A) (emphasis added). Congress has since extended Title III's coverage to include the radio portion of cordless communications by simply striking the above exceptions from Secs. 2510(1) and 2510(12)(A). See Communications Assistance for Law Enforcement Act, Pub.L. No. 103-414, Sec. 202(a), 108 Stat. 4279 (1994). At the time this case arose, however, Secs. 2510(1) and 2510(12)(A) expressly excluded the radio portion of cordless communications from the definition of wire and electronic communication, and thus from the statutory ban on the warrantless interception thereof.

Nor did the cordless conversations fall within the meaning of "oral communication." That term includes "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 U.S.C. Sec. 2510(2). Virtually every court to have faced the question of whether cordless phone conversations were oral communications under Sec. 2510(2) answered in the negative. See Smith, 978 F.2d at 175-76; Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990); United States v. Carr, 805 F.Supp. 1266, 1271-72 (E.D.N.C.1992); Edwards v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986). Moreover, Congress has always addressed the question of cordless telephone conversations as wire or electronic, not oral, communications. See e.g., 18 U.S.C. Secs. 2510(1), 2510(12)(A); Pub.L. No. 103-414, Sec. 202(b), 108 Stat. 4279 (1994) (amending Sec. 2511(4)(b) of Title III, which...