Excluding taped conversations

United States v. Crabtree, No. 08-4411, 2009 U.S. App. LEXIS 10720(4th Cir. May 19, 2009).

In a published opinion the Fourth Circuit sides with the majority of federal circuit courts of appeal that there is no government “clean hands” exception to the receipt into evidence of unlawfully taped telephone calls.

Daniel Crabtree was sentenced to twenty-four months imprisonment for violating the terms of his supervised release. The government established some of the violations by introducing into evidence certain audio tapes that were made by Crabtree’s girlfriend in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. §§ 2510 – 2522 (West 2000 & Supp. 2008). We agree with Crabtree that although the government was not involved in the interception of Crabtree’s conversations, Title III nonetheless prohibited the government from introducing evidence of the intercepted conversations. We therefore vacate the district court’s judgment and remand for further proceedings.

Title III prohibits, among other things, the interception of a telephone conversation by someone not a party to the conversation, see 18 U.S.C.A. § 2511(1)(a); id. § 2511(2)(d), and the intentional use or disclosure of the contents of a conversation intercepted in violation of the act, see id. §§ 2511(1)(c) & (d). Starnes was not a party to the recorded conversations and Crabtree did not consent to the recording. Thus, there is no dispute that Starnes violated Title III by recording Crabtree’s telephone conversations or that disclosure of the contents of Crabtree’s conversations is prohibited by Title III.

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