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1059. Use of the Contents of Illegally Intercepted Communications Against the Interceptor

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]

Updated June 10, 2015