Motion to Unseal Electronic Surveillance Evidence, In re

• Decision Date: 29 May 1992
• Docket Number: No. 91-2385,91-2385
• Citation: 965 F.2d 637
• Parties: , 22 Fed.R.Serv.3d 924, RICO Bus.Disp.Guide 8019 In re MOTION TO UNSEAL ELECTRONIC SURVEILLANCE EVIDENCE. Howard J. SMITH, Appellant, v. Donn H. LIPTON, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 637

965 F.2d 637

60 USLW 2766, 22 Fed.R.Serv.3d 924, RICO

Bus.Disp.Guide 8019

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.

Submitted Sept. 12, 1991.

Decided May 29, 1992.

Heaney, Senior Circuit Judge, dissented and filed opinion.

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.

I. BACKGROUND

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 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.

II. DISCUSSION

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 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 (1968); see also 18 U.S.C. § 2515 (1988); Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) (holding that illegal interception of an oral or wire communication is grounds for exclusion of such evidence from any proceeding). Congress struck a balance by permitting government interception of wire, oral or electronic communications, but only for specifically enumerated serious crimes and with prior court approval. 18 U.S.C. § 2516 (1988) (listing particular offenses for which a wiretap authorization may be sought); id. § 2518(1) (setting forth the requirements for obtaining a wiretap order).

In 1970, Congress focused its attention on organized crime, enacting the Organized Crime Control Act of 1970, Pub.L. 91-452, 84 Stat. 922, reprinted in 1970 U.S.C.C.A.N. 1095. Two of Smith's counts in the lawsuit below are under Title IX of that act, RICO, which provides for both criminal and civil penalties. Prior to the enactment of RICO, section 2517(3) only allowed intercepted communications and derivative evidence to be made public through testimony in criminal proceedings. ³ Within RICO, Congress amended section 2517(3), eliminating the criminal-proceeding restriction and allowing testimony disclosing the contents of an intercepted communication or derivative evidence in "any proceeding." See Organized Crime Control Act of 1970, § 902(b), reprinted in 1970 U.S.C.C.A.N. 1073, 1104. It also amended section 2516(1)(c) to include RICO as one of the enumerated crimes for which wiretapping is authorized. See id. § 902(a). Because RICO contains a civil private attorney general provision, 18 U.S.C. § 1964(c), and Congress placed the amendment to section 2517(3) within this act, some courts have intimated that granting access to private litigants of previously unreleased intercepted communications may be appropriate in private civil actions based on RICO. See, e.g., County of Oakland v. City of Detroit, 610 F.Supp. 364 (E.D.Mich.1984), appeal denied, 762 F.2d 1010 (6th Cir.1985). It is not at all clear, however, that Congress intended this result. Although Congress included the amendment to section 2517(3) within the RICO act, RICO as originally passed and reported by the Senate did not include the private civil remedy section relied on by Smith here. See S.Rep. No. 617, 91st Cong., 1st Sess. 24 (1969). That remedy appeared in the House version of the act and the version eventually adopted by the full Congress. See H.R.Rep. No. 1549, 91st Cong., 2d Sess. 18, reprinted in 1970 U.S.C.C.A.N. 4007, 4034. However, no commentary within the House report on the act speaks to whether the "any proceeding" amendment to section 2517(3) was meant to allow private civil RICO litigants access to intercepted communications not previously made public by the government, and we decline to speculate concerning Congress' intent. The resolution of this issue, therefore, requires that we look elsewhere.

Absent Title III, the protections given communications are governed by the Fourth Amendment: communications receive no greater protection. See Katz, 389 U.S. at 353, 88 S.Ct. at 512 (recording communications constitutes a search and seizure under the Fourth Amendment); see also Berger v. New York, 388 U.S. 41, 51, 87 S.Ct. 1873, 1879-80, 18 L.Ed.2d 1040 (1967). Consequently, unless limited by Title III, lawfully intercepted communications should be treated much the same as any other evidence seized pursuant to the Fourth Amendment, and discovery and admission at trial should be permitted once the proper evidentiary and policy factors are appropriately weighed. In enacting Title III, however, Congress did seek, in some ways, to differentiate communications from other types of evidence. A wiretap order may only be granted for specifically enumerated crimes, 18 U.S.C. § 2516, and only when information more extensive than that required to establish probable cause is furnished to the judge issuing the order, see 18 U.S.C. § 2518. These requirements make manifest Congress' overriding concern for the protection of conversational privacy. Gelbard, 408 U.S. at 48, 92 S.Ct. at 2361; see also S.Rep. No. 1097, 90th Cong., 2d Sess. 66, reprinted in 1968 U.S.C.C.A.N. 2112, 2153. Even where a communication is lawfully intercepted, Congress did not wish to negate an individual's privacy interest in that communication. The mere fact that public officials lawfully intercept communications does not authorize them to indiscriminately disseminate the contents of those communications. Disclosure and use of lawfully intercepted communications are permitted only pursuant to section 2517.

Congress' concern for privacy leads us to agree with the Second Circuit that section 2517 should not be used as a general discovery mechanism. See In re National Broadcasting Co. v. United...