United States v. Vest

• Decision Date: 02 July 1986
• Docket Number: Crim. No. 85-475-K.
• Citation: 639 F. Supp. 899
• Parties: UNITED STATES of America, v. George H. VEST, Defendant.
• Court: U.S. District Court — District of Massachusetts

639 F. Supp. 899

UNITED STATES of America, v. George H. VEST, Defendant.

Crim. No. 85-475-K.

United States District Court, D. Massachusetts.

May 12, 1986.

On Motion for Reconsideration July 2, 1986.

Mark Robinson, Asst. U.S. Atty., Boston, Mass., for U.S.

Willie Davis, Boston, Mass., for defendant.

MEMORANDUM

KEETON, District Judge.

The defendant police officer George H. Vest has moved to suppress a tape recording made by co-defendant Jesse James Waters.

I.

The tape recording at issue allegedly documents a meeting between Vest and Waters at which Waters delivered to Vest $35,000 to be paid to another police officer, Frank Tarantino. The tape recording was played for Vest in advance of his appearance before the grand jury. After the first playing of the tape, Vest denied that his voice was on the recording. Later, when questioned before the grand jury about alleged payoffs and about the alleged conversation with Waters, Vest again denied that he had acted as a middleman or in any way participated in the alleged payments by Waters to Tarantino. The tape was then played for the grand jury. After this second playing of the tape, Vest was again questioned about his knowledge of or participation in any conversation or activity related to the alleged payments. Again Vest denied that his voice was on the tape, and denied any involvement in a payoff scheme. The grand jury subsequently indicted Vest for perjury based on his responses to those questions.

Defendant Vest has moved to suppress the tape recording of this conversation allegedly between Vest and Waters on the ground that its use in any way by the government in this trial would be in violation of 18 U.S.C. § 2515.

II.

The government contends, first, that defendant's motion must be denied because defendant, by appearing before the grand jury rather than refusing to do so and raising illegality of the recording as a defense to contempt charges, "waived" his right to litigate the legality of Waters' making the tape recording. This contention must be rejected. Waiver in the strict sense of voluntary relinquishment of known right is plainly inapplicable here. Moreover, even if "waiver" is used in an attenuated sense that is more aptly described as "election," see Taylor v. Marsh, 624 F.Supp. 1042, 1044 (D.Mass.1985), the government has been unable to cite any precedent that would support a holding that defendant must elect either to refuse to testify before a grand jury and risk contempt or forfeit his right to litigate his claim of illegality of the recording. The cases on which the government relies are Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), and In re Lochiatto, 497 F.2d 803 (1st Cir.1974), which the government reads as holding that a contempt hearing is the only proper forum in which defendant may litigate the suppression of illegally obtained evidence that the government attempts to introduce in grand jury proceedings. But Gelbard dealt with a contention that § 2515 was a defense to civil contempt for refusal to answer questions before the grand jury. And In re Lochiatto concerned the contention of defendants, who asserted § 2515 as a defense to contempt for failure to answer grand jury questions, that they were entitled to disclosure of court-ordered interceptions. Thus, both these cases dealt with the use of § 2515 as a defense to civil contempt. They do not support the government's assertion that the defendant forfeits his right to question the legality of an interception if he does not raise the matter by refusing to testify before the grand jury. I conclude that defendant did not, by appearing before the grand jury, forfeit his right to litigate the legality of the tape recording in this criminal action.

III.

Defendant Vest's motion to suppress is grounded on the contention that Waters made the tape recording in violation of 18 U.S.C. § 2511(2)(d), which is a part of chapter 119 of Title 18, U.S. Code. In considering this contention, I turn first to relevant parts of the text of that chapter.

Section 2511(1)(a) makes it an offense against federal law to make a tape recording except as allowed by other provisions of that chapter.

Section 2511(2)(d) provides that

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.

The government and defendant agree that Waters was not acting under color of law and that he was a party to the communication and had, by his act of taping the conversation, given his consent to the recording.

In these circumstances I conclude, reading §§ 2511(1)(a) and 2511(2)(d) together, that it was unlawful under federal law for Waters to make the tape recording if he did so

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 if he did so for the purpose of committing any other injurious act.

On the other hand, the exception of § 2511(2)(d) would permit such a recording unless Waters did in fact make the recording "for the purpose of committing" such a "criminal," "tortious," or "other injurious" act.

IV.

The language of the statute speaks of "the purpose" in the singular. This language would present no problem of ambiguity if in fact a person acted with a single purpose. I conclude, however, that it is ambiguous as applied to rather common circumstances in which the evidence would support a finding that the person making the recording did so with multiple purposes, one or more of which were illegal and one or more of which were permissible. Other courts considering this language have not explicitly addressed this ambiguity. I conclude that the evidence before me in this case requires that I do so.

This problem of how the law deals with acts committed for multiple purposes, or "mixed motives," is not distinctive to the present context. It arises in numerous contexts, civil and criminal, and not only in relation to statutory construction but as well in many circumstances of purely decisional law.

In general, the possible rules for determining the legal consequences of acting with multiple purposes range along a spectrum. At or near one end of the spectrum are legal rules making outcomes depend on whether a legally relevant purpose was the actor's "sole purpose" (or, at least, the sole purpose having any significant influence on the actor). At or near the other extreme are rules making outcomes depend on whether a legally relevant purpose was to any extent, even the slightest, one of the actor's purposes.

Near the middle of the spectrum are rules of two distinct types: first, those making outcomes depend on whether a legally relevant purpose was the actor's "primary" or "dominant" purpose, and second, those making outcomes depend on whether a legally relevant purpose was a "determinative factor" in the actor's conduct.

In the present context, as noted above, a legally relevant purpose is the purpose of committing any "criminal," "tortious," or "other injurious" act.

Bringing these ideas together, and incorporating as well an issue of burden of proof, one may frame some key issues to be decided here in the following ways:

To avoid suppression of the tape, must the government prove that Waters acted solely for a legitimate purpose, and not to any extent for the purpose of committing a criminal, tortious, or other injurious act? Or is it enough to defeat the defense motion to suppress if the government proves that Waters acted primarily for a legitimate purpose? Or even to any significant extent for a legitimate purpose? Or — to move from a state-of-mind standard of "purpose" to a standard of an "objectively reasonable basis" for acting with a legitimate purpose — is it enough to defeat the defense motion that the evidence shows that Waters, being in the position he occupied at the time he made the tape recording, had an objectively reasonable basis for making the tape for a legitimate purpose?

Or, if the burden is on the defendant, must the defendant, in order to show entitlement to suppression, prove that Waters acted solely for the purpose of committing a criminal, tortious, or other injurious act? Or is it enough if defendant proves that Waters acted primarily for the purpose of committing a criminal, tortious, or other injurious act? Or is it enough to prove that a purpose of committing a criminal, tortious, or other injurious act was a determinative factor, absent which Waters would not have made the tape? Or is it enough just to prove that, in making the tape, Waters was to any extent, even the slightest, influenced by a purpose of committing a criminal, tortious, or other injurious act?

No clear guidance emerges either from the decisions interpreting the statute now at issue or from the pattern of precedents in other contexts of legal rules regarding an actor's multiple purposes. Indeed, some support can be found for rules located at each of the three principal points on the spectrum of state-of-mind rules, as well as rules depending on an objectively reasonable basis for a legitimate purpose. E.g., Second Restatement of Torts § 603 comment a (1977) (one who has a conditional privilege in defamation abuses the privilege by publishing defamatory matter "solely from spite or ill will" and "not in any part" to protect the interest because of which the conditional privilege is recognized); id. (but if the publication is made "for the purpose of protecting the interest in question, the fact that the publication is inspired in part by...