U.S. v. Underhill, s. 86-5409

Decision Date06 March 1987
Docket Number86-5412,Nos. 86-5409,s. 86-5409
Citation813 F.2d 105
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Howard "Ace" UNDERHILL, Daniel Rokitka, Eddie Osborne, Joe Osborne and Walter Person, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Pat TATA and Tony Rayburn, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

W. Hickman Ewing, Jr. (argued), U.S. Atty., Memphis, Tenn., Frederick H. Godwin, for plaintiff-appellant.

Albert Boyd, Robert M. Friedman, Charles Perry Roney, Butler & Associates, Memphis, Tenn., Robert Stephen Butler, for defendants-appellees in No. 86-5409.

Frank Holloman, James D. Causey (argued), Memphis, Tenn., for defendants-appellees in No. 86-5412.

Before LIVELY, Chief Judge, and KEITH and MERRITT, Circuit Judges.

LIVELY, Chief Judge.

The question for decision is whether the participants in an illegal gambling business, some of whom caused their telephone conversations to be intercepted and recorded, are entitled to have these recordings suppressed during a prosecution for violation of federal anti-gambling statutes. The answer depends on our construction of various provisions of the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2510, et seq. (1982) (Title III or the Act).

The exclusionary provision of Title III is contained in 18 U.S.C. Sec. 2515:

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.

Section 2515 is not self-executing. The Act provides that any "aggrieved person" may move to suppress the contents of an intercepted communication on the ground, inter alia, that "the communication was unlawfuly intercepted...." 18 U.S.C. Sec. 2518(10)(a)(i). An aggrieved person is one "who was a party to any intercepted wire or oral communication or a person against whom the interception was directed." 18 U.S.C. Sec. 2510(11).

The defendants in this criminal prosecution made timely motions to suppress tapes in the possession of the government on the ground that they were recordings of telephone conversations that had been illegally intercepted. Following an evidentiary hearing the district court concluded that Sec. 2515 required suppression and granted the motions. The United States has appealed pursuant to 18 U.S.C. Sec. 3731 and we now reverse.


The appellees, along with others not before this court, were indicted by a federal grand jury in the Western District of Tennessee for conspiracy and various substantive offenses related to the ownership and operation of an illegal gambling business. When federal agents searched an apartment leased by the defendant Daniel Rokitka they found a great deal of gambling paraphernalia. They also observed tape recorders attached to the two telephones in the apartment and seized fifteen audio cassette tapes. FBI agent Richard Gray, who listened to the tapes, testified at the suppression hearing that the recorded conversations involved the exchange of gambling information and the placing of bets on sporting events. Agent Gray also stated that the telephones were manned by defendants Rokitka and Underhill, and the recordings contained conversations with defendants Person, Tata, Rayburn and Eddie and Joe Osborne.

Unless there is a specific section of the statute which excepts a particular interception, all willful interceptions of wire and oral communications are prohibited by the Act. 18 U.S.C. Sec. 2511(1)(a). Willful disclosure of the contents of communications by a person who knows or has reason to know that the information was obtained through an unlawful interception is also forbidden. 18 U.S.C. Sec. 2511(1)(c). The exceptions to the general proscription against interceptions are contained in 18 U.S.C. Sec. 2511(2). The defendants contend that the only exception which could render the tapes legal and therefore admissible does not apply because of the purpose for which the recordings were made. They refer to 18 U.S.C. Sec. 2511(2)(d):

(d) It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.

There was no dispute at the suppression hearing over the purpose of the interceptions. Agent Gray testified that he had interviewed defendant Rokitka in the presence of an attorney, and Rokitka stated that the purpose of the tapes was to record the bets as made, in order to prevent disagreements with bettors over the amount of their wagers. Also, on one of the tapes Underhill told the other party to a telephone conversation that he recorded everything to correct the problem of bettors trying to change the amounts of their bets after losing. One of the statutes under which the defendants were indicted, 18 U.S.C. Sec. 1955, makes it a crime to carry on a gambling business which is a violation of the law of the state in which it is conducted. Tennessee has laws which make gambling illegal, including one against making or possessing gambling records. Tennessee Code Annotated (TCA) Sec. 39-6602(e) (1982). In granting the defendants' motion to suppress the tapes, the district court, referring to the tape on which Underhill discussed the practice of recording, stated in an unpublished order, "This taped conversation clearly establishes that the interception of telephone conversations wherein bets were made was for the purpose of committing a criminal act under multiple criminal laws of the state of Tennessee pertaining to gambling, gambling records, and transmitting gambling information."

During the evidentiary hearing the district judge noted the anomaly created by the defendants' motions:

[T]his is the first time I've ever had defendants ... come in and ... say ... I admit I was being unlawful and, therefore, you can't use the evidence. It's a little bit awkward.

Nevertheless, the court found the language of the statute clear and unambiguous and felt compelled to comply with its command.


Repeating the arguments which prevailed in the district court, the defendants contend that the language of the Act is clear in every respect relevant to this appeal and must be applied as written. As they point out, the Act makes all interceptions of oral and wire communications illegal unless specifically excepted. Turning to 18 U.S.C. Sec. 2511(2)(d), they recognize that interceptions by private persons not acting under color of law are permitted if the interceptor is a party to the communication or one of the parties to the communication has consented to the interception. However, this exception to the general prohibition against interceptions is itself subject to an exception. A private interception that otherwise would be lawful is rendered unlawful if the interception is made for the purpose of committing any criminal act. Since the only evidence produced at the suppression hearing demonstrated that Underhill and Rokitka made the interceptions for the purpose of committing criminal acts, the defendants maintain that the clear language of the Act makes the interceptions unlawful.

The defendants then assert that Sec. 2515 unequivocally prohibits the admission into evidence of the contents of the tapes in their trial because the disclosure of the information on the tapes would violate 18 U.S.C. Secs. 2511(1)(c) and (d). Finally, the defendants invoke Sec. 2515 as "aggrieved persons" within the definition contained in Sec. 2510(11) who have standing to seek suppression pursuant to Sec. 2518(10)(a)(i). In short the defendants argue that they satisfied every requirement of the Act for suppression of the tapes.

Although they contend that the language of the Act is clear and requires no reliance on extrinsic evidence for its meaning, the defendants also argue that the legislative history of the Act supports their construction. To bolster this argument they quote from S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Admin.News 2112, 2184-85:

Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. It provides that intercepted wire or oral communications or evidence derived therefrom may not be received in evidence in any proceeding 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 of a State, where the disclosure of that information would be in violation of this chapter.

* * *

* * *

The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications.

In addition, the defendants point to the findings of Congress in connection with the enactment of Title III:

In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform...

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