813 F.

2d 477
55 USLW 2515

UNITED STATES of America, Appellant,

v.
George H. VEST, Defendant, Appellee.
No. 86-1770.

United States Court of Appeals,

First Circuit.
Argued Jan. 9, 1987.
Decided March 9, 1987.

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.
1

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.
2

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.
6

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 illegallyintercepted 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.
7

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.
8

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).

10

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.
11

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 government relies on the following passage in the
Senate Report accompanying the Omnibus Crime Control and Safe Streets Act
of 1968:

12

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 must, of course, be read in light of section 2518(10)(a) discussed
below, which defines the class entitled to make a motion to suppress. It largely
reflects existing law. It applies to suppress evidence directly (Nardone v.
United States, 302 U.S. 379 [58 S.Ct. 275, 82 L.Ed. 314] (1937)) or indirectly
obtained in violation of the chapter. (Nardone v. United States, 308 U.S. 338
[60 S.Ct. 266, 84 L.Ed. 307] (1939).) There is, however, no intention to change
the attenuation rule. See Nardone v. United States, 127 F.2d 521 (2d), certiorari
denied, 316 U.S. 698 [62 S.Ct. 1296, 86 L.Ed. 1767] (1942); Wong Sun v.
United States, 371 U.S. 471 [83 S.Ct. 407, 9 L.Ed.2d 441] (1963). Nor
generally to press the scope of the suppression role [sic] beyond present search
and seizure law. See Walder v. United States, 347 U.S. 62 [74 S.Ct. 354, 98
L.Ed. 503] (1954).

13

S.Rep. No. 1097 at 96, reprinted in 1968 U.S.Code Cong. & Admin.News at
2184-85.

14

The government argues that the last sentence of the quoted passage, especially
the citation of Walder, manifests a congressional intent to delegate to the courts
the task of developing exceptions to section 2515 paralleling judiciallydeveloped exceptions to the fourth amendment exclusionary rule. Walder
recognized an exception to the fourth amendment exclusionary rule permitting
the use of unlawfully-seized evidence for impeachment purposes. The
government contends that the citation to Walder was merely intended as one
example of how Congress intended section 2515 to be subject to the same
exceptions as the fourth amendment exclusionary rule. Because we and other
courts have recognized an exception to the fourth amendment exclusionary rule
permitting the use of unlawfully-seized evidence in perjury prosecutions, see

United States v. Finucan, 708 F.2d 838, 845 (1st Cir.1983) (collecting cases),
the government argues that the same exception should be incorporated in
section 2515. We disagree, for the following reasons.
15

First, we note that Congress, acting in 1968, specified its intent not to "press the
scope of the suppression rule [sic] beyond present search and seizure law"
(emphasis added). As the district court noted, the government has cited no case
decided before or during 1968 that recognized an exception to the fourth
amendment exclusionary rule for perjury prosecutions; the earliest such case
cited by the government is United States v. Turk, 526 F.2d 654, 667 (5th Cir.),
cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976). We hardly think
the above-quoted sentence from the Senate Report establishes that Congress
anticipated by eight years this particular judicial contraction of the fourth
amendment exclusionary rule and approved a parallel exception to section
2515's exclusionary rule. And we believe that if Congress had intended to
commit to the courts general authority to create exceptions to section 2515 in
the same manner as the courts might develop future exceptions to the fourth
amendment exclusionary rule, Congress could certainly have said so more
clearly. We therefore agree with the district court's conclusion that Congress
did not intend to confer such discretion on the courts.

16

Second, a full reading of the quoted passage in the Senate Report demonstrates
that Congress carefully considered which aspects of the fourth amendment
exclusionary rule would and would not be incorporated into section 2515. For
example, Congress clearly intended that the provisions of section 2518(10)(a),
which defines the class entitled to make a motion to suppress, rather than
judicially-developed notions of "standing," would control the question of who
could bring such a motion. Congress expressly declared in the Senate Report
that judicially-developed concepts of directly-obtained and indirectly-obtained
evidence and of attenuation were applicable to section 2515. S.Rep. No. 1097
at 96; reprinted in 1968 U.S.Code Cong. & Admin.News at 2185. Moreover, in
section 2515 Congress specifically expanded upon fourth amendment
jurisprudence as it existed in 1968 (and as it exists today) by making that
section applicable to all federal and state proceedings, whether characterized as
civil, criminal, administrative, legislative, regulatory or otherwise. Compare 1
W. LaFave, Search and Seizure Sec. 1.5 (1978 & Supp.1986) (indicating that
fourth amendment exclusionary rule does not apply across the board). In view
of Congress' careful consideration of these matters, we are reluctant to conclude
that Congress intended the single sentence here relied upon by the government
as a blank check to the courts to incorporate into section 2515 every change in
the scope of the fourth amendment exclusionary rule.

17

Third, even if Congress did intend to permit the courts to create exceptions to
section 2515 paralleling newly-developed exceptions to the fourth amendment
exclusionary rule, other provisions of Title III would make us reluctant to
develop an exception permitting the use of illegally-intercepted
communications in perjury prosecutions. Specifically, section 2516(1) declares
that a federal judge of competent jurisdiction may authorize or approve the
interception of wire or oral communications when such interception may
provide or has provided evidence of certain designated major offenses. Section
2516(2) gives parallel authority to state court judges. Section 2517(3) permits
the disclosure in court of communications properly intercepted in the course of
investigating these specified crimes.

18

Congress' authorization of the interception and disclosure of communications

for the purpose of investigating or prosecuting these crimes reflects Congress'
judgment that such interceptions should "be limited to certain major types of
offenses and specific categories of crime with assurances that the interception is
justified and that the information obtained thereby will not be misused."
Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, Sec.
801(d), 82 Stat. 197, 211 (1968), reprinted in 1968 U.S.Code Cong. &
Admin.News at 253. The Senate Report explained that "[b]ecause of the
importance of privacy, such interceptions should ... be limited to major
offenses." S.Rep. No. 1097 at 89, reprinted in 1968 U.S.Code Cong. &
Admin.News at 2177. "Each offense has been chosen either because it is
intrinsically serious or because it is characteristic of organized crime." S.Rep.
No. 1097 at 97, reprinted in 1968 U.S.Code Cong. & Admin.News at 2186; see
Dalia v. United States, 441 U.S. 238, 252 & n. 13, 99 S.Ct. 1682, 1690 & n. 13
(1979). Clearly, by enumerating those crimes deemed serious enough to justify
interception and disclosure of private communications, Congress intended to
strike a balance between Title III's twin purposes of protecting privacy and
recognizing the importance and legality of intercepting communications for the
purpose of combatting crime.4

19

Conspicuously absent from the list of enumerated offenses are the federal
crimes of perjury, subornation of perjury, and false declarations before a grand
jury or court, 18 U.S.C. Secs. 1621-23 (1982), and their state-law counterparts.
These omissions are particularly noteworthy because Congress did choose to
include violations of somewhat related provisions such as influencing or
injuring an officer, juror, or witness generally (18 U.S.C. Secs. 1503, 1512,
1513), obstruction of criminal investigations (18 U.S.C. Sec. 1510), and
obstruction of state or local law enforcement (18 U.S.C. Sec. 1511). Surely
perjury is an offense as "intrinsically serious or ... characteristic of organized
crime" as are there, yet Congress did not see fit to include perjury in the list of

offenses justifying the disclosure in court of private communications. We will

not upset the balance struck by Congress.
20

Fourth, again assuming arguendo that Congress intended to delegate to the

courts the task of developing exceptions to section 2515's exclusionary rule
paralleling newly-developed exceptions to the fourth amendment exclusionary
rule, Congress could not have intended the courts to disregard in that process
the different policy considerations underlying the two rules. As we have
previously noted, protection of privacy was the dominant concern of Congress
when it enacted section 2515, see Gelbard, 408 U.S. at 48, 92 S.Ct. at 2361,
whereas the primary purpose of the fourth amendment exclusionary rule is the
deterrence of unreasonable searches and seizures in violation of the fourth
amendment, United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412,
82 L.Ed.2d 677 (1984). As this Court observed in United States v. Finucan, 708
F.2d at 845, when illegally seized evidence is admitted in a perjury prosecution,
"the admission of the evidence will ordinarily have little if any impact on the
deterrent effect of the exclusionary rule." We agreed with the Fifth Circuit that

21
[w]hen
the Government is effectively denied the possibility of direct prosecution on
the basis of illegally seized evidence, no significant additional deterrent effect could
be realized by suppressing the evidence at a trial of the search victim for a crime
committed after the illegal search and with the knowledge that the illegal search
occurred.
22

Id. (quoting United States v. Turk, 526 F.2d at 667). In the section 2515
context, however, disclosure of an illegally-intercepted communication at a
perjury trial will result in a significant additional invasion of privacy beyond
that occasioned by the illegal interception itself, see Gelbard, 408 U.S. at 51-52,
92 S.Ct. at 2362-63; Globe Newspaper, 729 F.2d at 54, thus thwarting an
important goal of section 2515. Although our own view may be that in this
context punishing perjury is a more important policy goal than protecting
privacy, we are not free to disregard the balance struck by Congress.

23

Finally, we are not persuaded that the exception to the section 2515
exclusionary rule allowing illegally-intercepted communications to be used for
impeachment, see United States v. Winter, 663 F.2d 1120, 1154 (1st Cir.1981),
cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983); United
States v. Caron, 474 F.2d 506 (5th Cir.1973), supports an interpretation of that
section as not prohibiting the use of unlawfully-intercepted communications in
perjury prosecutions. Congress' citation to Walder, the case which first
established this limited exception to the fourth amendment exclusionary rule,
furnishes compelling evidence that Congress intended an impeachment

exception to section 2515. The government has been unable to point to anything
in the legislative history to suggest that Congress intended the section 2515
exclusionary rule to be subject to an exception for perjury prosecutions.
24

We therefore decline to read into section 2515 an exception permitting the use
of illegally-intercepted communications in perjury prosecutions.

IV.
25

The order of the district court is affirmed.

Of the District of Maine, sitting by designation

Section 2511(1)(a) provides:

Except as otherwise specifically provided in this chapter any person who ...
willfully intercepts, endeavors to intercept, or procures any other person to
intercept or endeavor to intercept, any wire or oral communication ... shall be
fined not more than $10,000 or imprisoned not more than five years, or both.
18 U.S.C. Sec. 2511(1)(a) (1982).
Section 2511(2)(d) provides:
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.
18 U.S.C. Sec. 2511(2)(d) (1982).

On this appeal the government does not challenge the district court's finding
that Waters made the tape in violation of these two provisions

Section 2511(1)(c) declares:

Except as otherwise specifically provided in this chapter any person who ...
willfully discloses, or endeavors to disclose, to any other person the contents of
any wire or oral communication, knowing or having reason to know that the

information was obtained through the interception of a wire or oral

communication in violation of this subsection ... shall be fined not more than
$10,000 or imprisoned not more than five years, or both.
18 U.S.C. Sec. 2511(1)(c) (1982).
4

We thus reject, as did the district court, the conclusion reached in United States
v. Traficant, 558 F.Supp. 996, 1001-02 (N.D.Ohio 1983), that section 2511(2)
(d) does not operate to ban the disclosure of illegally-intercepted
communications where the communications themselves were for the purpose of
furthering "illegal activities."