U.S. v. Vest, 86-1770

Decision Date09 March 1987
Docket NumberNo. 86-1770,86-1770
Citation813 F.2d 477
PartiesUNITED STATES of America, Appellant, v. George H. VEST, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

John F. DePue, Dept. of Justice, Washington, D.C., with whom Robert S. Mueller, U.S. Atty., Boston, Mass., was on brief, for appellant.

Willie J. Davis, Boston, Mass., for defendant, appellee.

Before BOWNES, Circuit Judge, ALDRICH, Senior Circuit Judge, and GIGNOUX, * Senior District Judge.

GIGNOUX, Senior District Judge.

The United States appeals from an order of the district court granting in part defendant-appellee George H. Vest's motion to suppress a tape recording that the government intended to introduce at Vest's trial on charges of making false declarations before a grand jury, in violation of 18 U.S.C. Sec. 1623 (1982). The district court held that the recording must be excluded from the government's case-in-chief because it was made in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. Secs. 2510-20 (1982). United States v. Vest, 639 F.Supp. 899 (D.Mass.1986) (Keeton, J.). We now affirm.

I.

In May 1983 one Jesse James Waters was arrested and charged with various offenses stemming from the shooting of Detective Francis J. Tarantino of the Boston Police Department. Following Waters' indictment and release on bail, he met with Tarantino and Vest, also a Boston Police detective, and the three reached an agreement whereby Waters would pay a total of $300,000 to Tarantino, using Vest as a conduit for the payments, in exchange for Tarantino's efforts to assure that Waters would not be sentenced to imprisonment if he entered a guilty plea to the charges against him. On June 15, 1984, Vest met Waters at his office and Waters gave Vest $35,000 for Tarantino. Without Vest's knowledge, Waters electronically recorded the transaction and accompanying discussion. According to Waters' testimony at the suppression hearing, his reason for making the recording was to create a "receipt" in the event that Tarantino later claimed Waters had failed to make the payment.

In October 1984 Waters was tried and convicted in the Suffolk County, Massachusetts, Superior Court on the charges related to the shooting of Tarantino. Ultimately Waters was sentenced to an eight to ten-year term of imprisonment, and in December 1984 he turned the tape over to federal law enforcement authorities, who began an investigation of the payoff scheme. In July 1985 Vest, having been granted immunity, testified before a grand jury that he had not participated in Waters' payment of money to Tarantino and that he had never received any money from Waters. At this point the tape recording of his conversation with Waters, which had been played for Vest before he testified, was played again, whereupon Vest denied that his voice appeared on the tape. On the basis of these statements the grand jury indicted Vest on three counts of making false declarations before a grand jury, in violation of 18 U.S.C. Sec. 1623 (1982).

Prior to trial Vest moved to suppress the tape, arguing that Waters had made the tape in violation of 18 U.S.C. Sec. 2511(1)(a) and (2)(d) 1 and that its introduction into evidence would therefore violate 18 U.S.C. Sec. 2515, which directs 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.

The district court found that the tape was made in violation of section 2511(1)(a) and (2)(d). 639 F.Supp. at 901-08. 2 The court held further that the government's disclosure of the tape would violate 18 U.S.C. Sec. 2511(1)(c), 3 and that section 2515 consequently prohibited the use of the tape in the government's case-in-chief. Id. at 908-15. It therefore granted Vest's suppression motion in part, but denied the motion insofar as it sought to preclude the government from using the tape to impeach Vest if he chose to testify at trial. The court then granted the government's motion to sever Count 3 (based on Vest's denial that his voice appeared on the tape) from the remaining counts for purposes of taking the instant appeal. The case proceeded to a jury trial on the two remaining false statement counts. Vest was convicted on both counts and sentenced to three years imprisonment.

On appeal the government raises two arguments. First, the government asserts that the exclusionary rule of section 2515 is inapplicable where the government is merely the innocent recipient, rather than the procurer, of an illegally-intercepted communication. Second, the government asserts that even if section 2515 applies to evidence offered by innocent recipients of illegally-intercepted communications, this Court should read into that section an exception permitting the use of illegally-intercepted communications in perjury prosecutions. We address each of these contentions in turn.

II.

The government acknowledges that, read literally, section 2515 requires the exclusion from evidence of any wire or oral communication if the disclosure of that information would violate Title III. The government contends, however, that such a literal reading is inappropriate because it would produce results "plainly at variance with the policy of the legislation as a whole," quoting United States v. American Trucking Associations, 310 U.S. 534, 544, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345 (1940). A literal reading might, for example, forbid the use in evidence of an illegal recording in a prosecution brought under section 2511(1)(a) against the maker of that illegal recording. Thus, because Congress could not have intended section 2515 to produce a result so clearly contrary to the legislative purpose, an exception to that section's exclusionary rule allows illegally intercepted communications to be introduced as evidence against the interceptor in criminal proceedings for violations of Title III. See S.Rep. No. 1097, 90th Cong., 2d Sess. 99-100 (1968) (stating that disclosure of illegally-intercepted communications "would be necessary in the investigation and prosecution of an illegal wiretapper himself"), reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2188; United States v. Liddy, 354 F.Supp. 217, 221 (D.D.C.1973). It is appropriate, the argument goes, that other exceptions should be read into section 2515 to avoid producing similarly paradoxical results. Specifically, the government argues, the purpose of section 2515 is to deter violations of Title III's other provisions, and it would be pointless to apply section 2515 against the government where, as here, the government is the innocent recipient, rather than the guilty interceptor, of an illegally-intercepted communication.

The district court accepted the government's argument that an inquiry into the purpose of section 2515 is necessary in order properly to interpret that section's exclusionary rule. But the district court concluded, and we agree, that the government's characterization of section 2515 as solely aimed at deterring Title III violations is too narrow. In Gelbard v. United States, 408 U.S. 41, 47-52, 92 S.Ct. 2357, 2360-63, 33 L.Ed.2d 179 (1972), the Supreme Court exhaustively reviewed the legislative history of Title III and concluded that "the protection of privacy was an overriding congressional concern" when it enacted Title III, id. at 48, 92 S.Ct. at 2361, and that section 2515's "importance as a protection for 'the victim of an unlawful invasion of privacy' could not be more clear." Id. at 50, 92 S.Ct. at 2362. As the Court recognized in Gelbard, id. at 51-52, 92 S.Ct. at 2362-63, and as we have previously noted, In re Globe Newspaper Co., 729 F.2d 47, 54 (1st Cir.1984)(citing Providence Journal Co. v. F.B.I., 602 F.2d 1010, 1013 (1st Cir.1979)), an invasion of privacy is not over when an interception occurs, but is compounded by disclosure in court or elsewhere. The impact of this second invasion is not lessened by the circumstance that the disclosing party (here, the government) is merely the innocent recipient of a communication illegally intercepted by the guilty interceptor (here, Waters).

The government argues that we should read into section 2515 the exception to the fourth amendment exclusionary rule for evidence falling into the government's hands after a private search and seizure, see, e.g. United States v. Jacobsen, 466 U.S. 109, 113-18, 104 S.Ct. 1652, 1656-59, 80 L.Ed.2d 85 (1984). But the fourth amendment exclusionary rule is a judicially-fashioned rule serving different purposes than the congressionally-created rule of section 2515--a rule that we are here limited to interpreting rather than modifying. We agree with the district court that to hold that section 2515 allows the government's use of unlawfully intercepted communications where the government was not the procurer "would eviscerate the statutory protection of privacy from intrusion by illegal private interception." 639 F.Supp. at 914-15. The protection of privacy from invasion by illegal private interception as well as unauthorized governmental interception plainly "play[s] a central role in the statutory scheme," see United States v. Giordano, 416 U.S. 505, 528 (1974).

We decline to read into section 2515 an exception permitting the introduction in evidence of an illegally-intercepted communication by an innocent recipient thereof.

III.

The government's fallback position is that this Court should read into section 2515 an exception permitting the use of illegally-intercepted communications in perjury prosecutions. The...

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