Grand Jury, In re, s. 97-7016

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation111 F.3d 1066
Docket Number97-7017,Nos. 97-7016,s. 97-7016
PartiesIn re GRAND JURY.
Decision Date25 April 1997

Gregory M. Sleet, United States Attorney, Colm F. Connolly (argued), Assistant U.S. Attorney, Wilmington, DE, for Appellee in Nos. 97-7016 and 97-7017.

Charles M. Oberly, III (argued), Oberly, Jennings & Drexler, Wilmington, DE, for Appellant in No. 97-7016.

Catherine M. Recker (argued), Aeryn S. Fenton, Welsh & Recker, Philadelphia, PA, for Appellant in No. 97-1017.

BEFORE: SLOVITER, Chief Judge, STAPLETON and ALDISERT, Circuit Judges.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

We are here asked to decide whether a victim of a privately executed wiretap 1 can successfully move to quash a subpoena duces tecum directing the perpetrator of the wiretap to convey recordings of unlawfully intercepted communications to a grand jury. The district court denied the motions to quash. Since disclosure of the unlawfully intercepted communications to the grand jury would violate an explicit congressional prohibition, and enforcement of the subpoena would involve the courts in a violation of the victims' statutory privacy rights, we will reverse the district court and remand with orders that the subpoena duces tecum be quashed.

I. Background
A. Factual and Procedural History

Because this case relates to an ongoing grand jury proceeding, we will not refer to the parties by their proper names. We will also limit our recitation of the facts to the minimum necessary to explain and resolve the issues presented. Fortunately, the relevant facts are undisputed.

Appellant-intervenor John Doe 1 is the target of a federal grand jury investigation (hereinafter "Doe 1" or "the target"). Doe 1 lived for some time with his brother, John Doe 2 ("Doe 2" or "the husband"), and his brother's wife, John Doe 3 ("Doe 3" or "the witness"). For reasons that we need not detail, the witness installed devices on her home telephones that intercepted and recorded telephone conversations initiated from and coming into the home. Both the target and the husband were parties to some of these conversations. Neither the target nor the husband knew that their conversations were being intercepted and recorded, so neither therefore consented to the interception and recording.

Several weeks after the last conversation was recorded, appellee, the United States ("the government"), learned through an informant that the witness possessed tapes containing recordings of conversations involving the target and the husband. The grand jury issued two subpoenas directed to the witness: a subpoena ad testificandum, requiring her to appear and answer questions before the grand jury, and a subpoena duces tecum, requiring her to produce the tapes so they may be played for the grand jury. Only the subpoena duces tecum is involved in this appeal. 2

The target and the husband filed motions to intervene and motions to quash the subpoena duces tecum directed to the witness. Their motions contend that the target and husband are "aggrieved persons" within the meaning of § 2510(11) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter "Title III" or "the Act"), 18 U.S.C. §§ 2510-2522, because they were parties to telephone communications unlawfully intercepted without their knowledge or consent. Citing § 2515 of Title III, the target and husband argue that the contents of the tapes cannot be disclosed to the grand jury because such disclosure would be a violation of § 2511(1)(c).

Although the witness appeared before the grand jury and answered some of the government's questions, she refused to produce the tapes. The government therefore moved to compel the witness' full compliance with both subpoenas. The district court granted the government's motion and, after further resistance from the witness, entered an order holding the witness in contempt. The district court also granted the target and husband's motions to intervene but denied their motions to quash. 3 While acknowledging that Doe 3's wiretap violated Title III, the court agreed with the government that the evidentiary prohibition of § 2515 contains a "clean hands" exception permitting the submission of evidence of unlawfully intercepted communications to a grand jury where the violation was committed by a private party acting independent of the government. The target and the husband then filed this appeal. 4

B. Statutory Structure of Title III

"Title III's complex provisions regulate both interception and disclosure of communications in great detail." United States v. Cianfrani, 573 F.2d 835, 855 (3d Cir.1978). Various provisions of the Act are directly relevant to the jurisdictional and merits issues presented in this appeal. Before proceeding to those issues, it will be useful to describe the statutory structure of Title III and to set out the provisions that are most important to this case. 5

Section 2511(1)(a) makes it a crime for any person to intentionally intercept or endeavor to intercept any wire, oral, or electronic communication. 18 U.S.C. § 2511(1)(a); see also id. § 2510 (definitions). Section 2511(1)(c) makes any disclosure of unlawfully intercepted communications a further violation of the statute. It provides for criminal punishment of any person who "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." Id. § 2511(1)(c). In addition to criminal sanctions against those who unlawfully intercept communications, the statute also provides a civil remedy. Under § 2520, "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate." Id. § 2520(a).

As a third remedy for violations of § 2511, "Title III contains a strict exclusionary rule," Cianfrani, 573 F.2d at 855, prohibiting use of intercepted wire or oral communications and the fruits thereof in specified proceedings, including, in particular, grand jury proceedings. Section 2515 provides that:

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.

18 U.S.C. § 2515.

Finally, § 2518(10)(a)(i) authorizes any "aggrieved person"--that is, "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed," id. § 2510(11)--to move to suppress the contents of any unlawfully intercepted communication. It states:

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--

(i) the communication was unlawfully intercepted....

Id. § 2518(10)(a)(i). 6

Here, the target and the husband claim to be aggrieved persons within the meaning of § 2510, and they seek to enforce § 2515's exclusionary rule to prohibit introduction to the grand jury of communications unlawfully intercepted by the witness. In response, the government stresses that § 2518 does not list grand jury proceedings among the proceedings in which an aggrieved person may move to suppress evidence. The government further contends that, even if the target and husband can properly move to enforce § 2515 in the context of a grand jury investigation, § 2515 contains a "clean hands" exception that permits disclosure to a grand jury of communications that were unlawfully intercepted by a private party without government complicity.

II. Standing and Jurisdiction

The government argues that the target and the husband lacked standing to proceed before the district court and now lack standing to proceed before us. The government also claims that we have no jurisdiction because the district court's denial of Doe 1 and Doe 2's motions is not a final order. We are unpersuaded by the government's arguments. We conclude that the target and husband had standing to file their motion in the district court and that they continue to have standing to press this appeal. Moreover, because the subpoena was not directed to them, the husband and target did not have the option of being held in contempt and creating an immediately appealable order. Therefore, the denial of their motions to quash is a final order.

A. Standing

"In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute...." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Here the government argues that neither the district court nor this court could decide the merits of Doe 1 and Doe 2's motions to quash the subpoena.

Both standing to sue and standing to appeal have constitutional as well as prudential elements. See Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 70 n. 3 (3d Cir.1990) (referring to standing to sue); In re Grand Jury Matter (District Council 33), 770 F.2d 36, 39 (3d Cir.1985) (standing to appeal); see also Valley Forge Christian College v. Americans...

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    ...government is free to use illegally intercepted communications as long as it did not participate in their interception); In re Grand Jury, 111 F.3d 1066 (3d Cir.1997) (same); United States v. Vest, 813 F.2d 477 (1st Cir.1987) (same). But see Murdock, 63 F.3d at 1403 (construing section 2515......
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1 books & journal articles
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