                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 00-2866NI
                                   _____________

United States of America,                *
                                         *
             Appellee,                   * On Appeal from the United
                                         * States District Court
      v.                                 * for the Northern District
                                         * of Iowa.
Agim Baftiri,                            *
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: August 1, 2001
                                Filed: August 30, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and BEAM,
      Circuit Judges.
                         ___________

RICHARD S. ARNOLD, Circuit Judge.

       Agim Baftiri was convicted after a trial by jury of four counts of distributing
controlled substances, in violation of 21 U.S.C. § 841(a)(1). Mr. Baftiri was sentenced
to five years in prison, the mandatory minimum. See 21 U.S.C. § 841(b)(1)(B). The
defendant testified at trial. The question presented is whether the recording of a
telephone conversation obtained by the government in violation of Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2515, could
properly be used to impeach the defendant's testimony. The District Court1 held for the
government on this issue, overruling the defendant's objection. We agree and affirm.

       The statute in question provides simply that evidence of a communication shall
be suppressed, 18 U.S.C. § 2515, if "the communication was unlawfully intercepted."
18 U.S.C. § 2518(10)(a)(i). A literal reading of the statute, without regard to the
Fourth Amendment background (which allows illegally obtained evidence to be used
for impeachment), would support the defendant's position before this Court. The
government concedes that a telephone conversation was unlawfully recorded.
Therefore, the argument runs, a recording of the conversation cannot be used against
the defendant in any way. The statute contains no exception for impeachment.

       There is no case directly in point in this Circuit, but every other court of appeals
that has considered the question has ruled in favor of the government's position. See
Williams v. Poulos, 11 F.3d 271, 287 & n.35 (1st Cir. 1993); United States v.
Echavarria-Olarte, 904 F.2d 1391, 1397 (9th Cir. 1990); Jacks v. Duckworth, 651 F.2d
480, 484 (7th Cir. 1981), cert. denied, 454 U.S. 1147 (1982); United States v. Caron,
474 F.2d 506, 509-10 (5th Cir. 1973). These holdings are in accord with the Supreme
Court's Fourth Amendment jurisprudence, under which evidence obtained by an
unreasonable search and seizure, in violation of that Amendment, can be used to
impeach a defendant who chooses to take the witness stand in his own defense. See,
e.g., United States v. Havens, 446 U.S. 620, 627-28 (1980). Evidence seized in
violation of the Fourth Amendment or the federal wiretapping statute cannot be used
by the government in its case in chief. But, if the defendant chooses to testify, and
swears to a sequence of events inconsistent with his own previously recorded
statements, the Constitution does not require the government to leave the lie (or what
it contends to be a lie) unchallenged. Such a result would allow a defendant to use the


        1
            The Hon. Michael J. Melloy, United States District Judge for the District of
Iowa.
                                             -2-
law as a means of effectuating perjury (assuming, what is of course always a question
for the jury, that the previously recorded conversation, as opposed to the defendant's
in-court testimony, represents the truth of the matter).

        As the First Circuit explained in United States v. Vest, 813 F.2d 477, 481-82 (1st
Cir. 1987), the legislative history of the Omnibus Crime Control and Safe Streets Act
shows that Congress did not intend to "press the scope of the suppression [rule] beyond
. . . search and seizure law. Walder v. United States, 347 U.S. 62 (1954)." 2 See S.
Rep. No. 1097, 90th Cong., 2d Sess. 96, reprinted in 1968 U.S. Code Cong. & Admin.
News at 2184-85. It makes no sense for evidence obtained in violation of a mere
statute to be more severely restricted than evidence obtained in violation of the
Constitution. At the time the statute was enacted, evidence obtained in violation of the
Fourth Amendment could be used for impeachment purposes. It is reasonable to
assume that Congress had this background in mind when the statute was passed, and
that, in the absence of an express statement, it did not intend to draw the line of
exclusion in a different place.

      As the Supreme Court explained in United States v. Havens, 446 U.S. at 627-28,

             [T]he ends of the exclusionary rules [are] thought
             adequately implemented by denying the government the use
             of the challenged evidence to make out its case in chief.
             The incremental furthering of those ends by forbidding
             impeachment of the defendant who testifies was deemed
             insufficient to permit or require that false testimony go
             unchallenged, with the resulting impairment of the integrity
             of the factfinding goals of the criminal trial. We reaffirm
             this assessment of the competing interests, and hold that a

      2
        This same passage from the legislative history was quoted with approval by this
Court, though in a different context, in United States v. Phillips, 540 F.2d 319, 326 (8th
Cir.), cert. denied, 429 U.S. 1000 (1976).
                                           -3-
             defendant's statements . . . are subject to otherwise proper
             impeachment by the government, albeit by evidence that has
             been illegally obtained and that is inadmissible on the
             government's direct case, or otherwise, as substantive
             evidence of guilt.


       In the present case, the evidence in question was received for impeachment
purposes only. The jury was told that it could not be considered as substantive
evidence going to the guilt or innocence of the defendant. It was relevant only to the
jury's decision whether to believe the defendant's testimony.

      Accordingly, the judgment of the District Court is

      Affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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