for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit United States… v. Donte Hammond

Filed: June 24, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-4484
(CR-01-04-CCB)
United States of America,
Plaintiff - Appellee,
versus
Donte Hammond,
Defendant - Appellant.
O R D E R
The court amends its opinion filed April 12, 2002, and
reported at 286 F.3d 189 as follows:
On page 2, first paragraph of text, line 12 -- the reference
to “18 U.S.C. § 1291" is corrected to read “28 U.S.C. § 1291.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4484
DONTE HAMMOND,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-01-04-CCB)
Argued: January 25, 2002
Decided: April 12, 2002
Before WIDENER and GREGORY, Circuit Judges, and
Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
____________________________________________________________
Affirmed by published opinion. Senior Judge Hall wrote the opinion,
in which Judge Widener and Judge Gregory joined.
____________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Joshua R. Treem, SCHULMAN, TREEM, KAMIN-
KOW, GILDEN & RAVENELL, P.A., Baltimore, Maryland, for
Appellant. Harvey Ellis Eisenberg, Assistant United States Attorney,
Baltimore, Maryland, for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Thomas M.

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DiBiagio, United States Attorney, Jane M. Erisman, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
____________________________________________________________
OPINION OPINION OPINION OPINION
HALL, Senior Circuit Judge:
Defendant/appellant Donte Hammond appeals the district court's
denial of his motion to suppress taped conversations in which Ham-
mond allegedly tampered with a witness by inducing her to testify
favorably on his behalf at an evidentiary hearing. The tapes were
recorded by the Bureau of Prisons ("BOP") as part of its routine pro-
cedures while Hammond was incarcerated. The FBI obtained the
tapes from the BOP by means of a subpoena rather than a Title III
interception order. Hammond argues that these procedures violated
the requirements of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C. § 2510
et seq. ("Title III"), and that the tapes
should accordingly be suppressed. We have jurisdiction pursuant to
28 U.S.C. § 1291, and agree with the district court that a Title III
interception order was not necessary. Therefore, we affirm.
I
Hammond was convicted of possession of a handgun as a con-
victed felon and was incarcerated in Fort Dix, New Jersey. In August
2000, this court vacated Hammond's sentence and remanded the case
for a suppression hearing to determine whether the officers who found
the handgun had first grabbed Hammond and thereby made an unlaw-
ful arrest.
United States v. Hammond, 2000 WL 1139611 (4th Cir.
2000) (Table). In connection with the suppression hearing, a witness
who had not testified earlier in connection with the Hammond case,
Queen Tynes, came forward and offered to corroborate Hammond's
version of events. Given the timing of Tynes' appearance, the govern-
ment became suspicious of Tynes' story and investigated her connec-
tion to Hammond. As part of this investigation, it obtained a subpoena
for recordings of telephone calls made by Hammond during his incar-
ceration.
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The recordings were made as part of routine monitoring undertaken
by the BOP. Pursuant to 28 C.F.R. § 540.102, the BOP monitors all
outgoing inmate phone calls except those that are cleared in advance
and made to counsel. Inmates receive notice of the monitoring by
BOP in several forms. They receive two handbooks that state that all
calls other than those to their attorneys are monitored. They sign a
consent form acknowledging that their calls may be monitored and
recorded and that use of the telephones constitutes consent of moni-
toring. They also receive an orientation lesson plan stating that calls
are monitored and are told that such is the case orally during an orien-
tation lesson. Finally, the BOP reminds the inmates that their calls
may be monitored by placing notices of monitoring on or near the
actual telephones. Calls are recorded at all times, and recordings are
maintained on magnetic tapes connected to a computer that can search
them by special inmate telephone identification numbers or the phone
numbers called. BOP personnel do not actually listen to most tapes
or conversations, and they apparently did not do so here.
After determining that the BOP had records indicating that Ham-
mond had placed several calls to Tynes, the FBI subpoenaed the
records as well as several tapes. The FBI then listened to and tran-
scribed the calls, which it alleges show that Hammond coached Tynes
about how to testify. Hammond was then indicted on 11 counts of
witness tampering and obstruction of justice related to these calls.
Hammond sought suppression of the recorded telephone conversa-
tions, arguing that the recordings should be excluded from evidence
because the government did not comply with the requirements of Title
III. Specifically, Hammond argued that in order to listen to the tapes,
the FBI was required to obtain a judicial interception order pursuant
to 18 U.S.C. §§ 2516 and 2518, which set out procedural require-
ments and safeguards greater than those involved in obtaining a stan-
dard subpoena. The district court denied the motion, finding that the
BOP had lawfully recorded Hammond's wire communications under
the "law enforcement" and "consent" exceptions to Title III's general
injunction against wiretapping. 18 U.S.C §§ 2510(5)(a)(ii),
2511(2)(c). Following the Seventh Circuit's interpretation of Title III
in
In re High Fructose Corn Syrup Litigation, 216 F.3d 621 (7th Cir.
2000), the district court concluded that once a recording is permitted
under either of the above exceptions, it is thereafter exempted from
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any further restrictions under Title III. Thus, the district court rea-
soned, the FBI was free to obtain the tapes from the BOP without any
further judicial intervention.
The district court's order denying Hammond's motion to suppress
issued June 12, 2001. On June 13, 2001, Hammond was re arraigned
and pled guilty to one count of conspiracy to obstruct justice in viola-
tion of 18 U.S.C. § 371. The district court permitted Hammond to
enter a conditional plea to be withdrawn if he prevailed on this
appeal. This timely appeal was filed on June 14, 2001.
II
Interpretations of Title III are questions of law that we review in
connection with a motion to suppress
de novo.
United States v. Allen,
159 F.3d 832, 838 (4th Cir. 1998). We review the district court's find-
ings of fact for clear error.
Id.
Title III generally prohibits the unauthorized interception of "any
wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). It
"protects an individual from all forms of wiretapping except when the
statute specifically provides otherwise."
Abraham v. County of Green-
ville, 237 F.3d 386, 389 (4th Cir. 2001). Although the argument has
been made that Title III was not intended by Congress to apply to
prisons, it is well accepted that its protections do apply to that context.
See,
e.g.,
United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir.
1996);
United States v. Feekes, 879 F.2d 1562, 1565 (7th Cir. 1989);
United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987). Therefore,
the tapes were properly used by the FBI only if (1) the initial intercep-
tion by the BOP was lawful pursuant to an exception to the general
injunction prohibiting use of wiretaps, and (2) the FBI's subsequent
acquisition/use of the tapes was lawful.
As to the initial interception, we conclude that both the "law
enforcement" and "consent" exceptions rendered the BOP's recording
of the tapes permissible. First, the "law enforcement" exception vali-
dated the use of the recordings. This exception excludes from the def-
inition of "interception" recordings made by "any telephone or
telegraph instrument, equipment or facility, or any component thereof
. . . being used by . . . an investigative or law enforcement officer in
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the ordinary course of his duties." 18 U.S.C. § 2510(5)(a)(ii). Because
the BOP was acting pursuant to its well-known policies in the ordi-
nary course of its duties in taping the calls, the law enforcement
exception exempted the actions of the BOP from the prohibitory
injunction of Section 2511.
We also find that Hammond consented to having his conversations
intercepted in accordance with 18 U.S.C. § 2511(2)(c). That section
provides:
It shall not be unlawful under this chapter for a person act-
ing under color of law to intercept a wire, oral, or electronic
communication, where such person is a party to the commu-
nication or one of the parties to the communication has
given prior consent to such interception.
We conclude that the "consent" exception applies to prison
inmates, such as Hammond, required to permit monitoring as a condi-
tion of using prison telephones, joining other circuits which have
found the exception to apply under very similar circumstances.
See
United States v. Footman, 215 F.3d 145, 154-56 (1st Cir. 2000);
Van
Poyck, 77 F.3d at 292;
United States v. Workman, 80 F.3d 688, 693
(2d Cir. 1996);
United States v. Horr, 963 F2d 1124, 1126 (8th Cir.
1992).
Having determined that the BOP's recording of the conversations
was lawful, the only remaining issue is whether the FBI's acquisition
of the BOP's tapes through subpoena itself constituted an independent
"interception" subject to Title III's requirements. The Fourth Circuit
has not addressed whether a subsequent listening to a taped conversa-
tion by an entity other than that which made the original recording
constitutes an "interception." However, we are persuaded by the rea-
soning of the Seventh Circuit in
In re High Fructose Corn Syrup Anti-
trust Litigation, 216 F.3d 621 (7th Cir. 2000). There, the court was
asked to consider whether the limits on the use and disclosure of
intercepted communications imposed by Title III, 18 U.S.C. § 2517,
applied to conversations that had been recorded by one of the partici-
pants. In analyzing this issue, the court read Sections 2516 to 2519
as a self-contained unit within Title III defining and implementing the
regime for interceptions pursuant to a judicial interception order.
See
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id. at 624-25. Under this reading, Section 2517 only limits the uses
of communications permitted by means of such an order.
Id. Since
Title III imposes no other limitations on intercepted communications
outside of the warrant regime, the Seventh Circuit concluded that
"[s]ection 2511 exempts the conversations covered by it from the
entirety of Title III."
Id. at 625 (emphasis in original). Agreeing with
this mode of analysis, we conclude that the FBI was free to use the
intercepted conversations once they were excepted under either
§ 2510(5)(a)(1) or § 2511(2)(c).
We find Hammond's arguments to the contrary unpersuasive.
Hammond first focuses on the language of Section 2510(4), which
defines "intercept" in part as "the aural or other acquisition" of the
contents of any wire communication. Hammond argues the common
sense position that any hearing of the tapes is an "aural acquisition."
However, by highlighting only this selected language, Hammond
ignores that additional language in Title III suggesting that a commu-
nication is only "intercepted" at the time it is initially captured by a
non-party. "Intercept" is defined as an "aural or other acquisition" of
a wire communication "
through the use of any electronic, mechanical
or other device." 18 U.S.C. § 2510(4) (emphasis added). The concept
here is clearly the capture of an audio signal containing linguistic data
and the FBI cannot be said in this case to have "used" a "device" to
"acquire" such a communication. Further, Section 2518, which
describes the procedure for interception pursuant to a judicial order,
also clearly operates in terms of a "capture" concept as it speaks in
terms of measures to make interceptions unobtrusive to telecommuni-
cations systems, limited "periods" of interception, and recording the
"contents" of an interception. 18 U.S.C. § 2518(4), (5), (8)(a). Section
2517 also clearly indicates that an interception is something that is
obtained and held, contemplating the "disclosure" and "use" of "inter-
cepted communications." 18 U.S.C. § 2517. Additionally, the legisla-
tive history of Title III similarly emphasizes the act of information
capture, differentiating "interception" from "divulgence" and making
clear that it is the former standing alone which is unlawful under Sec-
tion 2511. 1968 U.S.C.C.A.N. 2112, 2179.
Second, Hammond argues, albeit largely implicitly, that Congress'
clear purpose in enacting Title III to protect privacy requires a restric-
tive reading that limits the use of information contained in wire con-
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versations according to the precise terms of the applicable exception
or authorization. That is to say, Hammond would essentially have the
court read the exceptions into the definition of "interception" such
that any hearing that is not consented to or in the ordinary course of
the FBI's business would be prohibited. However, the privacy ratio-
nale that Hammond claims supports his reading is not particularly
compelling in this context. Though the statute does reflect congressio-
nal concern for protecting privacy, that concern does not extend to
prison inmates, given their substantially reduced expectation of pri-
vacy.
See,
e.g.,
Van Poyck, 77 F.3d at 290-91.
Hammond also argues that affirmance of the district court will so
vitiate Title III as applied to the prison context as to contradict the
established principle that it applies to begin with. This claim is with-
out merit.
III
For the foregoing reasons, the ruling of the district court is
AFFIRMED.
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