1059
Use of the Contents of Illegally Intercepted
Communications Against the Interceptor
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Section 2515 of Title 18 prohibits use of the contents of illegally
intercepted communications as evidence in judicial proceedings. No
exception is
contained on the face of the statute for the use of the contents, when
necessary,
as evidence in a prosecution against the interceptor. Nevertheless, the
legislative history of Title III indicates that "in certain limited
situations
disclosure and use of illegally intercepted communications would be
appropriate
to the proper performance of the officers' duties." See S.Rep. No.
1097,
90th Cong., 2d Sess. 99 (1968). The example given is the use and disclosure
of
illegally intercepted communications "in the investigation and prosecution
of an
illegal wiretapper himself." Id. at 99-100.
In United States v. Underhill, 813 F.2d 105 (6th Cir.),
cert.
denied, 482 U.S. 906 (1987), the court held that tape recordings of
conversations consensually made by operators of an illegal gambling
enterprise
for the purpose of facilitating their gambling operation would not be
suppressed
when used against the operators themselves, even though the recordings were
illegal because they were made for a criminal purpose. The court reasoned
that
Congress could not have intended to deprive prosecutors of the clearest
evidence
of wrongdoing available simply because the defendants committed a crime in
creating that evidence. But cf. United States v. Vest, 813
F.2d
477 (1st Cir. 1987) (Section 2515 requires suppression of a tape recording
of a
bribe transaction involving a corrupt policeman made privately by the briber
without governmental participation).
In addition, it has been held that when the victims of the
interceptions consent, the contents of the communication may be used against
the
interceptors. See United States v. Bragan, 499 F.2d 1376 (4th
Cir.
1976). However, when the victims object, at least when the contents of the
illegally intercepted communications are not necessary to prove the charges,
one
court has held that such contents may not be introduced at trial.
See
United States v. Liddy, 12 Cr.L.Rep. 2343 (D.C. Cir., Jan. 19, 1973)
(otherwise unreported), rev'g United States v. Liddy, 354 F.
Supp.
217 (D.D.C. 1973).
[cited in USAM 9-60.200] | |