VIII. Defenses
Title III - Wire Tap
Sixth Circuit
• Illegal Wire Tap - 18 U.S.C. § 2510
U.S. v. Moncivais, 02-6457 (3/24/05)
> An informant was talking to his drug dealer on
a recorded phone call, when the drug dealer offered to call and include
his supplier (defendant) in a three-way phone call. Upon calling
defendant, the drug dealer told him, “I have my friend [the
informant] on the line.” Defendant moved to suppress the
subsequent recording of the conversation by the informant because he
was not “one of the parties to the communication” under the
wiretap statute. The district court declined to suppress the recording.
* Holding: The court held that the wiretap statute
had not been violated. Relying on the Supreme Court’s decision in
Rathbun v. U.S., the court held that a party to a phone conversation
knowingly takes a risk that the other party may have an extension
telephone and may allow another to overhear the conversation. In the
present case, because the drug dealer had notified the defendant that
the informant was on the line, there was no violation of the wiretap
statute.
• Title III - Wiretaps/Good Faith
U.S. v. Rice, 06-5245 (3/2/07)
> During a wiretap, the government intercepted a
call between the target of the wiretap and defendant in a discussion
regarding a large amount of cocaine. At the time, the government did
not know much about defendant, and the government subsequently applied
for and obtained a wiretap of defendant’s phone, pursuant to
Title III. Upon defendant’s prosecution for drug conspiracy, he
moved to suppress the evidence obtained as a result of the wiretap. The
district court determined that the government had falsely represented
in the wiretap application that physical surveillance had been
conducted on defendant, and that defendant was known to be armed and
dangerous. In retracting the false information from the application,
the court found that the application was otherwise insufficient to
support the wiretap, and suppressed all evidence seized as a result.
The government appealed.
* Holding: An application for a wiretap under Title
III must meet the “necessity requirement,” which imposes on
the government a duty to show that other investigative procedures have
been tried or would be reasonably likely to fail if tried. The
“necessity requirement” protects against the government
using a wiretap as the initial step in any criminal investigation, but
it does not require the government to exhaust every other conceivable
investigative method prior to using a wiretap. In the case, the court
agreed with the district court that the government had made recklessly
false statements in the application. After redacting the false
statements, the court held that the application was insufficient to
meet the “necessity requirement.” Additionally, the court
held, deciding an open question in the Sixth Circuit, that the good
faith exception is inapplicable to wiretap warrants issued under Title
III. Accordingly, the district court ruling was affirmed.
• Title III - Wire Tap
U.S. v. Gray, 05-4482 (4/2/08)
> Defendants were charged with numerous
violations of RICO, conspiracy, and mail and wire fraud in relation to
their illicit schemes to procure government contracts for corporate
clients. Defendants moved to suppress evidence obtained by the
government pursuant to Title III wire taps upon the grounds that the(1)
the wire taps were not approved by an authorized DOJ official, (2) the
wire tap applications did not state that they were approved by an
authorized DOJ official or provide the official’s name, and (3)
the applications were not signed under oath. Additionally, defendants
requested disclosure of other wire tap evidence that was
self-suppressed and sealed by the government because it was obtained in
violation of Title III. The district court denied the motion, and upon
their conviction, defendants appealed.
* Holding: Regarding the issue of suppression, the
court first found that the wiretaps were approved by Deputy Assistant
Attorney General John Malcolm, an official who was designated by
Attorney General John Ashcroft to approved Title III wire taps. Second,
the court held that although the government technically violated Title
III by failing to indicate in the application that it was approved by
Deputy Malcolm, this violation did not require suppression of the wire
tap evidence. The court noted that the AUSA notified the issuing
district judge that he had approval from DOJ, and actually had the
letter of approval with him at the time the order was issued. Third,
the court held that, although the application itself was not signed by
the district judge as being sworn, the order issuing the wire tap
indicated that it was based on the AUSA’s sworn statement.
Accordingly, the court affirmed the district court’s ruling
denying defendant’s motion to suppress.
Regarding the issue of disclosure of the wire-tap evidence that was
self-suppressed by the government, Title III permits disclosure of
illegally obtained wire tap evidence only in certain limited
circumstances. The court ruled that disclosure of the sealed evidence
was not required by the Jencks Act or Fed. R. Crim. P. 16, and that
“clean-hands” and impeachment exceptions to the disclosure
prohibitions applied only to the government’s use of illegally
obtained wire tap evidence, not the defendant’s use. The court
emphasized that the government had no knowledge of the contents of the
sealed evidence because it had self-suppressed it; thus, no disclosure
was authorized under Title III nor required by any other statute.