                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-1997

In Re: Grand Jury (Pt. I)
Precedential or Non-Precedential:

Docket 97-7016,97-7017




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


             NOS. 97-7016 and 97-7017


                IN RE:   GRAND JURY


On Appeal From the United States District Court
         For the District of Delaware
  (D.C. Miscellaneous Action No. 96-mc-00093)


              Argued March 26, 1997

BEFORE:    SLOVITER, Chief Judge, STAPLETON and
           ALDISERT, Circuit Judges

          (Opinion Filed April 25, 1997)


                 Gregory M. Sleet
                 United States Attorney
                 Colm F. Connolly (Argued)
                 Assistant U.S. Attorney
                 Office of the U.S. Attorney
                 Chemical Bank Plaza - Suite 1100
                 1201 Market Street
                 P.O. Box 2046
                 Wilmington, DE 19899-2046
                 Attorneys for Appellee in
                 Nos. 97-7016 and 97-7017

                 Charles M. Oberly, III (Argued)
                 Oberly, Jennings & Drexler
                 800 Delaware Avenue
                 P.O. Box 2054
                 Wilmington, DE 19899
                 Attorney for Appellant in
                 No. 97-7016

                 Catherine M. Recker (Argued)
                 Aeryn S. Fenton
                 Welsh & Recker
                 1818 Market Street - Suite 3402
                 Philadelphia, PA 19103
                 Attorneys for Appellant in
                 No. 97-7017




                         1
                       OPINION OF THE COURT




STAPLETON, Circuit Judge:



           We are here asked to decide whether a victim of a

privately executed wiretap1 can successfully move to quash a

subpoena duces tecum directing the perpetrator of the wiretap to

convey recordings of unlawfully intercepted communications to a

grand jury.   The district court denied the motions to quash.

Since disclosure of the unlawfully intercepted communications to

the grand jury would violate an explicit congressional

prohibition, and enforcement of the subpoena would involve the

courts in a violation of the victims’ statutory privacy rights,

we will reverse the district court and remand with orders that

the subpoena duces tecum be quashed.



                            I.   Background

                A.   Factual and Procedural History

           Because this case relates to an ongoing grand jury

proceeding, we will not refer to the parties by their proper

names.   We will also limit our recitation of the facts to the

minimum necessary to explain and resolve the issues presented.

Fortunately, the relevant facts are undisputed.

     1
      "Wiretapping" is a general term used to refer to all types
of illegal interceptions, including surreptitious recording of
telephone conversations.



                                   2
            Appellant-intervenor John Doe 1 is the target of a

federal grand jury investigation (hereinafter "Doe 1" or "the

target").    Doe 1 lived for some time with his brother, John Doe 2

("Doe 2" or "the husband"), and his brother’s wife, John Doe 3

("Doe 3" or "the witness").    For reasons that we need not detail,

the witness installed devices on her home telephones that

intercepted and recorded telephone conversations initiated from

and coming into the home.    Both the target and the husband were

parties to some of these conversations.    Neither the target nor

the husband knew that their conversations were being intercepted

and recorded, so neither therefore consented to the interception

and recording.

            Several weeks after the last conversation was recorded,

appellee, the United States (“the government”), learned through

an informant that the witness possessed tapes containing

recordings of conversations involving the target and the husband.

 The grand jury issued two subpoenas directed to the witness: a

subpoena ad testificandum, requiring her to appear and answer

questions before the grand jury, and a subpoena duces tecum,

requiring her to produce the tapes so they may be played for the

grand jury.    Only the subpoena duces tecum is involved in this
appeal.2




     2
      In a related case, In re Grand Jury, No. 97-7018, this
court denied the witness’ motions to quash both of the subpoenas.
 The witness had moved to quash on the basis of the privilege
against adverse spousal testimony.



                                 3
            The target and the husband filed motions to intervene

and motions to quash the subpoena duces tecum directed to the

witness.    Their motions contend that the target and husband are

“aggrieved persons” within the meaning of § 2510(11) of Title III

of the Omnibus Crime Control and Safe Streets Act of 1968

(hereinafter “Title III” or “the Act”), 18 U.S.C. §§ 2510-2522,

because they were parties to telephone communications unlawfully

intercepted without their knowledge or consent.    Citing § 2515 of

Title III, the target and husband argue that the contents of the

tapes cannot be disclosed to the grand jury because such

disclosure would be a violation of § 2511(1)(c).

            Although the witness appeared before the grand jury and

answered some of the government’s questions, she refused to

produce the tapes.    The government therefore moved to compel the

witness’ full compliance with both subpoenas.    The district court

granted the government’s motion and, after further resistance

from the witness, entered an order holding the witness in

contempt.    The district court also granted the target and

husband’s motions to intervene but denied their motions to

quash.3    While acknowledging that Doe 3's wiretap violated Title

III, the court agreed with the government that the evidentiary

prohibition of § 2515 contains a “clean hands” exception

permitting the submission of evidence of unlawfully intercepted

     3
      The court did grant the motions to quash to the extent the
subpoenas sought materials which would reveal confidential
attorney-client or marital communications. The government did
not oppose granting the motions with regard to these two
privileges and these issues are not before us in this appeal.



                                  4
communications to a grand jury where the violation was committed

by a private party acting independent of the government.   The

target and the husband then filed this appeal.4



              B.   Statutory Structure of Title III

          “Title III’s complex provisions regulate both

interception and disclosure of communications in great detail.”

United States v. Cianfrani, 573 F.2d 835, 855 (3d Cir. 1978).

Various provisions of the Act are directly relevant to the

jurisdictional and merits issues presented in this appeal.

Before proceeding to those issues, it will be useful to describe

the statutory structure of Title III and to set out the

provisions that are most important to this case.5

          Section 2511(1)(a) makes it a crime for any person to

intentionally intercept or endeavor to intercept any wire, oral,

or electronic communication.   18 U.S.C. § 2511(1)(a); see also

id. § 2510 (definitions).   Section 2511(1)(c) makes any

disclosure of unlawfully intercepted communications a further

     4
      This appeal presents solely questions of law, over which we
exercise plenary review. See United States v. Hayden, 64 F.3d
126, 128 (3d Cir. 1995).
     5
      Most of the provisions not discussed in the text relate
either to manufacture and confiscation of communication
intercepting devices, 18 U.S.C. §§ 2512 & 2513, or to the
procedures whereby government investigative and law enforcement
officers can obtain authorization to intercept communications and
disclose and use the contents of them, id. §§ 2516-2519. Other
sections provide for the Attorney General to seek an injunction
against any person engaged in or about to engage in a felony
violation of Title III, id. § 2521, and for a court authorizing
an interception to order a noncomplying telecommunications
carrier to comply with the order, id. § 2522.



                                5
violation of the statute.    It provides for criminal punishment of

any person who “intentionally discloses, or endeavors to

disclose, to any other person the contents of any wire, oral, or

electronic communication, knowing or having reason to know that

the information was obtained through the interception of a wire,

oral, or electronic communication in violation of this

subsection.”    Id. § 2511(1)(c).   In addition to criminal

sanctions against those who unlawfully intercept communications,

the statute also provides a civil remedy.     Under § 2520, “any

person whose wire, oral, or electronic communication is

intercepted, disclosed, or intentionally used in violation of

this chapter may in a civil action recover from the person or

entity which engaged in that violation such relief as may be

appropriate.”   Id. § 2520(a).

          As a third remedy for violations of § 2511, “Title III

contains a strict exclusionary rule,” Cianfrani, 573 F.2d at 855,

prohibiting use of intercepted wire or oral communications and

the fruits thereof in specified proceedings, including, in

particular, grand jury proceedings. Section 2515 provides that:
          Whenever any wire or oral communication has
          been intercepted, no part of the contents of
          such communication and no evidence derived
          therefrom may be received in evidence in any
          trial, hearing, or other proceeding in or
          before any court, grand jury, department,
          officer, agency, regulatory body, legislative
          committee, or other authority of the United
          States, a State, or a political subdivision
          thereof if the disclosure of that information
          would be in violation of this chapter.


18 U.S.C. § 2515.

          Finally, § 2518(10)(a)(i) authorizes any “aggrieved


                                    6
person”--that is, “a person who was a party to any intercepted

wire, oral, or electronic communication or a person against whom

the interception was directed,” id. § 2510(11)--to move to

suppress the contents of any unlawfully intercepted

communication. It states:
          Any aggrieved person in any trial, hearing,
          or proceeding in or before any court,
          department, officer, agency, regulatory body,
          or other authority of the United States, a
          State, or a political subdivision thereof,
          may move to suppress the contents of any wire
          or oral communication intercepted pursuant to
          this chapter, or evidence derived therefrom,
          on the grounds that--
               (i) the communication was unlawfully
          intercepted . . . .


Id. § 2518(10)(a)(i).6

          Here, the target and the husband claim to be aggrieved

persons within the meaning of § 2510, and they seek to enforce

§ 2515's exclusionary rule to prohibit introduction to the grand

jury of communications unlawfully intercepted by the witness.     In

response, the government stresses that § 2518 does not list grand

jury proceedings among the proceedings in which an aggrieved

person may move to suppress evidence.   The government further

contends that, even if the target and husband can properly move

to enforce § 2515 in the context of a grand jury investigation,

§ 2515 contains a “clean hands” exception that permits disclosure

to a grand jury of communications that were unlawfully

     6
      Aggrieved persons may also move to suppress on the grounds
that the communication was intercepted pursuant to a court
authorization that was insufficient on its face or intercepted in
a manner not in conformity with an appropriate authorization.
See 18 U.S.C. § 2518(10)(a)(ii)-(iii).



                               7
intercepted by a private party without government complicity.



                   II.   Standing and Jurisdiction

          The government argues that the target and the husband

lacked standing to proceed before the district court and now lack

standing to proceed before us.     The government also claims that

we have no jurisdiction because the district court’s denial of

Doe 1 and Doe 2’s motions is not a final order.      We are

unpersuaded by the government’s arguments.    We conclude that the

target and husband had standing to file their motion in the

district court and that they continue to have standing to press

this appeal.   Moreover, because the subpoena was not directed to

them, the husband and target did not have the option of being

held in contempt and creating an immediately appealable order.

Therefore, the denial of their motions to quash is a final order.



                             A.   Standing

          “In essence the question of standing is whether the

litigant is entitled to have the court decide the merits of the

dispute . . . .”   Warth v. Seldin, 422 U.S. 490, 498 (1975).

Here the government argues that neither the district court nor

this court could decide the merits of Doe 1 and Doe 2's motions

to quash the subpoena.




                                   8
           Both standing to sue and standing to appeal have

constitutional as well as prudential elements.     See Public

Interest Research Group of New Jersey, Inc. v. Powell Duffryn

Terminals, Inc., 913 F.2d 64, 70 n.3 (3d Cir. 1990) (referring to

standing to sue); In re Grand Jury Matter (District Council 33),

770 F.2d 36, 39 (3d Cir. 1985) (standing to appeal); see also

Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 471-76 (1982)

(discussing constitutional and prudential standing requirements);

Wheeler v. Travelers Ins. Co., 22 F.3d 534, 537-38 (3d Cir. 1994)

(same).   The constitutional requirement of standing ensures that

the “irreducible minimum” for Article III federal court

jurisdiction, that there be “a case or controversy,” is present.

Valley Forge, 454 U.S. at 472.       “Art. III requires the party who

invokes the court’s authority to show that he personally has

suffered some actual or threatened injury as a result of the

putatively illegal conduct of the defendant, and that the injury

fairly can be traced to the challenged action and is likely to be

redressed by a favorable decision . . . .”     Id. at 472 (internal

quotations and citations omitted).     Thus, the three requirements

for constitutional standing are injury in fact, causation, and

redressability.   See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992).

           The same constitutional minima for standing to sue are

also required for standing to appeal.     To ensure that the appeals

court is hearing an actual case or controversy, the appellant

must be aggrieved by the district court order.     See McLaughlin v.


                                 9
Pernsley, 876 F.2d 308, 313 (3d Cir. 1989).

            In the instant case, there can be no doubt that the

target and husband meet the requirements for constitutional

standing.    Doe 1 and Doe 2 have had their telephone

communications unlawfully intercepted and recorded by Doe 3,

making them “aggrieved persons” within the meaning of Title III.

 18 U.S.C. § 2510(11).    The Act makes each disclosure of an

unlawfully intercepted communication a separate violation, see

id. § 2511(1)(c), so Doe 1 and Doe 2 would be injured in fact by

further invasion of their privacy from disclosure of their

communications to the grand jury.7    The causes of this injury are

the subpoena and the government’s motion to compel, and the

injury is redressable by quashing the subpoena.     Since both

intervenors remain aggrieved after the district court’s

disposition, the constitutional requirements for standing to

appeal as well as standing to sue are satisfied.8

            Whether the intervenors also satisfy the prudential
     7
      “Congress may enact statutes creating legal rights, the
invasion of which creates standing, even though no injury would
exist without the statute.” Linda R.S. v. Richard D., 410 U.S.
614, 617 n.3 (1973).
     8
      That Doe 1 and Doe 2 satisfied the requirements for
intervening in the district court does not automatically mean
they also satisfy the constitutional requirements for appellate
standing. See Diamond v. Charles, 476 U.S. 54, 68 (1986). “The
relationship between the interests required for intervention in
the district court and the interests required to confer Article
III standing on appeal has not been clearly delineated.”
McLaughlin, 876 F.2d at 313-14. In the instant case, the
government does not appeal the district court’s ruling for
appellants’ on their motions to intervene. Hence, we are only
reviewing whether Doe 1 and Doe 2 have standing, and this is not
the occasion to attempt to clarify the relationship between the
requirements for intervention and standing to appeal.



                                 10
aspects of the standing requirement presents a more complex

issue.   Cf. Franchise Tax Board of California v. Alcan Aluminum

Ltd., 493 U.S. 331, 336 (1990) (finding that respondents easily

satisfied constitutional requirements for standing, but that more

searching inquiry was necessary to determine if prudential

requirements were also met).   We recently described the concept

of prudential standing in the following manner:
          Prudential considerations further limit a
          plaintiff’s ability to establish that she has
          standing. These considerations require that:
          (1) a litigant "assert his [or her] own legal
          interests rather than those of third
          parties," (2) courts “refrain from
          adjudicating 'abstract questions of wide
          public significance' which amount to
          'generalized grievances,'" and (3) a litigant
          demonstrate that her interests are arguably
          within the "zone of interests" intended to be
          protected by the statute, rule or
          constitutional provision on which the claim
          is based. The federal courts have adopted
          prudential limits on standing in order "to
          avoid deciding questions of broad social
          import where no individual rights would be
          vindicated and to limit access to the federal
          courts to those litigants best suited to
          assert a particular claim."


Wheeler, 22 F.3d at 538 (citations omitted).

          None of the prudential concerns discussed in Wheeler
bars the target and husband from having standing to sue or

standing to appeal in this case.     In both the district court and

here, the intervenors are asserting their own legal interests

under Title III.   Although they seek to quash a subpoena directed

to a third party, and though their success in quashing that

subpoena would have legal consequences for the witness, the

target and husband’s claim is based on protecting their own



                                11
statutory right to privacy by preventing a further disclosure of

their communications.9   Their claim presents neither an abstract

question nor a generalized grievance.    Instead, it presents a

precise question arising from a specific grievance about the use

of grand jury subpoena power to compel production of recordings

made in violation of the law.   The privacy interests the target

and husband assert are certainly within the “zone of interests”

that Title III is intended to protect.    Because it is Doe 1 and

Doe 2 whose privacy has been violated and would again be violated

by compliance with the subpoena, and since Doe 3 is the

perpetrator of the unlawful recordings, it is the intervenors and

not the witness herself who are best suited to assert the Title

III claim.   Recognizing standing in the target and husband in no

way threatens to enmesh the federal courts in an action where no

individual rights could be vindicated.




     9
      Even if Doe 1 and Doe 2 are viewed as asserting the
interests of Doe 3 and not of themselves, this would not
necessarily deprive them of standing. We apply a balancing test
to determine whether a litigant has prudential standing to bring
an action on behalf of a third party. See Wheeler, 22 F.3d at
539 n.11. The factors we consider in applying this test include
potential conflicts of interest between the litigant and the
third party, obstacles to suit by the third party, and the
closeness of the relationship between the litigant and the third
party. See id. Since we conclude that the target and husband
have prudential standing to assert their own interests under
Title III, we need not decide whether they would have standing to
assert the witness’ interests.



                                12
          The three prudential considerations we described in

Wheeler are the three which are referred to most commonly in

discussions of prudential standing.     See, e.g., Stehney v. Perry,

101 F.3d 925, 930-31 (3d Cir. 1996) (applying Wheeler

considerations, finding that litigant satisfied all three, and

concluding that litigant had prudential standing); UPS Worldwide

Forwarding, Inc. v. United States Postal Serv., 66 F.3d 621, 626-

31 (3d Cir. 1995) (same).    However, neither this court nor the

Supreme Court has restricted the scope of prudential analysis to

just these three considerations.      See generally Allen v. Wright,

468 U.S. 737, 751 (1984) (“Standing doctrine embraces several

judicially self-imposed limits on the exercise of federal

jurisdiction, such as [the three considerations listed in

Wheeler].") (emphasis added).   Indeed, the Supreme Court has

insisted that “standing in its outer dimensions is a prudential

concept to be shaped by the decisions of the courts as a matter

of sound judicial policy and subject to the control of Congress."

Asarco Inc. v. Kadish, 490 U.S. 605, 613 (1989); see also

Bennett v. Spear, ___ U.S. ___, 117 S. Ct. 1154, 1161 (1997)

(stating that Congress can modify or abrogate prudential standing

requirements).    This can only mean that lower courts, when

confronted with a question of whether to recognize prudential

standing in a particular litigant, must consider all factors

relevant to making "sound judicial policy."

          It is therefore appropriate to consider an additional

prudential concern in determining whether to recognize standing

in this case.    Specifically, we must consider whether finding


                                 13
standing in Doe 1 and Doe 2 would unduly impede the grand jury

investigatory process and thereby frustrate the public interest

in fair and expeditious administration of the criminal laws.     See

generally United States v. Dionisio, 410 U.S. 1, 17 (1973).      “As

a necessary consequence of its investigatory function, the grand

jury paints with a broad brush.”      United States v. R.

Enterprises, Inc., 498 U.S. 292, 297 (1991).     “Traditionally the

grand jury has been accorded wide latitude to inquire into

violations of criminal law.”    United States v. Calandra, 414 U.S.

338, 343 (1974).   However, it is equally true that “the powers of

the grand jury are not unlimited.”     Branzburg v. Hayes, 408 U.S.

665, 688 (1972); see also R. Enterprises, 498 U.S. at 299;

Dionisio, 410 U.S. at 11.   Just as grand juries must operate

within the confines of the Constitution, see Branzburg, 408 U.S.

at 708, so too must they comply with the limitations imposed on

them by Congress (as long as those limitations are not

unconstitutional).

          We perceive two ways in which a recognition of standing

here might be regarded as having a potential to impede the grand

jury's investigative process.   First, in those instances where a

subpoena is quashed, this would, of course, deprive the grand

jury of information it would otherwise have.      But this kind of

deprivation is properly attributable to Congress and cannot be

cited as a prudential basis for denying standing.     Congress

decided when it adopted § 2515 that the grand jury is not

permitted to receive the type of evidence sought by the subpoena

here.


                                 14
          Second, a recognition of standing in situations such as

this one will undoubtedly result in delays in grand jury

investigations while trial courts are ruling on motions to quash

and appellate courts are reviewing those rulings.   While we

acknowledge the general undesirability of such delays, it is

nevertheless true that motion to quash practice has not

traditionally been regarded as an unreasonable burden on grand

jury proceedings.   This is true whether the motion to quash is

filed by the subject of a subpoena or by a third party with an

important interest at stake.

          The Supreme Court and this court have on several

occasions allowed third parties to move to quash grand jury

subpoenas directed to others.   See generally Stehney, 101 F.3d at

931 (after concluding that constitutional and prudential standing

requirements were satisfied, stating that another reason for

recognizing standing is that courts have done so for similarly-

situated plaintiffs in other cases).   It is well-established that

a litigant may have sufficiently important, legally-cognizable

interests in the materials or testimony sought by a grand jury

subpoena issued to another person to give the litigant standing

to challenge the validity of that subpoena.   See, e.g., Gravel v.
United States, 408 U.S. 606 (1972) (asserting constitutional

privilege, U.S. Senator may move to intervene and quash subpoena

directed at his assistant); In re Grand Jury Matter (JFK

Hospital), 802 F.2d 96, 99 (3d Cir. 1986) (assuming intervenor

has proprietary interest in third party’s subpoenaed records,

intervenor has standing to appeal denial of motion to quash


                                15
subpoena); District Council 33, 770 F.2d at 39 (same); In re

Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 801 (3d Cir.

1979) (allowing nonsubpoenaed client to intervene and appeal

order directed to subpoenaed attorney that affected attorney-

client privilege); In re Grand Jury Investigation (Intervenor A),

587 F.2d 589, 594 (3d Cir. 1978) (asserting invasion of

privilege, Representative has standing to intervene and move to

quash subpoena directed to Clerk of House of Representatives); In

the Matter of Grand Jury Impaneled Jan. 21, 1976 (Freedman), 541

F.2d 373, 377 (3d Cir. 1976) (holding that attorney has standing

to intervene and challenge subpoena directed at prothonotary on

basis of attorney’s claim of privilege).

          In In re Matter of Grand Jury (Schmidt), 619 F.2d 1022,

1026-27 (3d Cir. 1980), we discussed the types of interests that

may be asserted by a party other than the subject of the grand

jury subpoena if that party is to have standing to quash the

subpoena.10   There a federal grand jury had directed subpoenas ad

testificandum to six employees of Schmidt.   Schmidt moved to

intervene and to quash the subpoenas, arguing that the grand jury

was not investigating federal crimes and that the subpoenas were,

therefore, abusive.   Prior to Schmidt, all of our cases
recognizing intervenor standing to quash a subpoena directed at

     10
      Schmidt’s discussion of the intervenor-employer’s standing
to move to quash a subpoena directed at its employees does not
distinguish between standing to sue and standing to appeal. See
619 F.2d at 1026-27. Yet, by deciding that the employer had
standing to move to quash the subpoena, and by reaching the
merits of its claims on appeal, we necessarily found that the
employer had both standing to sue and standing to appeal.



                                 16
another had involved intervenors with a property interest in, or

claim of privilege respecting, the information or materials

sought by the subpoena.   Thus, the government urged us to hold

that standing in this context could only be present in those who

could claim a property interest or privilege that had been (or

would be) invaded by compliance with the subpoena.

          We rejected this limitation as nonviable, explaining

that we could imagine cases where other "valued rights" besides

property or privilege would be affected and the intervenor would

have standing. Id. at 1026. We concluded:
Third party standing to assert claims of grand jury
          abuse cannot be determined by categorizing
          the claimed interest as one of property or
          privilege, but only by examining the nature
          of the abuse, and asking whether, and in what
          manner, it impinges upon the legitimate
          interests of the party allegedly abused.


Id. at 1027; see also United States v. Raineri, 670 F.2d 702, 712

(7th Cir. 1982) (citing Schmidt, explaining that “party has

standing to move to quash a subpoena addressed to another if the

subpoena infringes upon the movant’s legitimate interests,” and

holding that prosecutor had standing to move to quash trial

subpoena based on his interests in having trial proceed

expeditiously and without harassment to witness or undue

prejudice to his case); but see In re Subpoenas to Local 478, 708
F.2d 65, 72-73 (2d Cir. 1983) (criticizing Schmidt and saying

that third party has standing to appeal denial of motion to quash

only where district court’s order affects “fundamental rights

whose legal and practical value will be destroyed if not

vindicated on collateral review”).


                                17
          Here, the interests asserted by the target and the

husband can fairly be said to resemble a privilege.    In light of

Schmidt, however, we need not characterize their interests as

such in order to find standing.    While Schmidt involved a motion

to quash a subpoena ad testificandum on the basis of alleged

grand jury abuse in the form of investigation of non-federal

crimes, Schmidt’s reasoning, and particularly its rejection of

restricting standing solely to property or privilege interests,

applies beyond these narrow factual and legal circumstances.

          Difficult questions may arise as to whether an

intervenor’s interest, if not a property interest or a privilege,

is the kind of interest on which third party standing to quash a

subpoena may be predicated, but we do not believe the instant

case presents a difficult question.    The husband and target have

moved to quash the witness’ subpoena in order to protect privacy

interests created and protected by Title III.    Title III is

intended to give “maximum protection” to these privacy interests,

Cianfrani, 573 F.2d at 857, interests which we have found

“sufficiently weighty” to justify even limitations on the Sixth

Amendment right of public access to court proceedings.    Id. at
856-57 (ordering that pretrial hearings be closed to public to

extent reasonably necessary to protect against disclosure of

unlawfully intercepted communications).    The Act protects the

privacy interests asserted here by making it a crime for

unlawfully intercepted communications to be disclosed to anyone,

including the grand jury, § 2511(1)(c), and by additionally and

explicitly prohibiting presentation of such evidence to a grand


                                  18
jury, § 2515.    For the district court to compel enforcement of

the subpoena would, if Doe 1 and Doe 2 are right on the merits,

be in direct contradiction of these statutory provisions, and

would therefore involve the district court in the commission of a

federal crime.

            We conclude that the privacy interests protected by

Title III, which expressly include the interests in not having

one’s unlawfully intercepted communications disclosed to a grand

jury or otherwise disclosed, are interests on which one may

predicate standing to quash a subpoena, including a subpoena

directed to another person.    Accordingly, we hold that Doe 1 and

Doe 2 satisfy the constitutional and prudential requirements for

both standing to sue and standing to appeal.

            Before turning to the government's attack on our

appellate jurisdiction, we pause to consider another contention

the government advances, erroneously we think, as a standing

argument.    It is that Doe 1 and Doe 2 are entitled to no relief

because § 2518(10)(a)(i) does not authorize a motion to suppress

in a grand jury proceeding.   We believe this is more accurately

characterized as a contention that one in the position of Doe 1

and Doe 2 lacks a cause of action to seek the relief sought

here.11   While we agree that § 2518(10)(a)(i) does not confer
     11
      See generally Davis v. Passman, 442 U.S. 228, 239 n.18
(1979) (“[S]tanding is a question of whether a plaintiff is
sufficiently adversary to a defendant to create an Art. III case
or controversy, or at least to overcome prudential limitations on
federal-court jurisdiction, cause of action is a question of
whether a particular plaintiff is a member of the class of
litigants that may, as a matter of law, appropriately invoke the
power of the court . . . .”) (citations omitted).



                                 19
upon Doe 1 and Doe 2 a right to secure a suppression order in the

present context, we conclude that Federal Rule of Criminal

Procedure 17(c) and the traditional motion to quash practice that

it authorizes do confer upon them a cause of action to move to

quash the subpoena duces tecum.

           Under § 2518(10)(a)(i), an aggrieved person such as the

target and the husband “may move to suppress the contents of any

wire or oral communication intercepted pursuant to this chapter

or evidence derived therefrom, on the grounds that . . . the

communication was unlawfully intercepted.”   Section 2518 lists a

number of proceedings in which an aggrieved person may file such

a motion to suppress, but grand jury proceedings are absent from

this list.   Therefore, as we observed in a prior case,

§ 2518(10)(a) does not authorize a victim of an illegal wiretap

to move to suppress unlawful Title III evidence before the grand

jury.   See In re Grand Jury Proceedings (Egan), 450 F.2d 199, 206

(3d Cir. 1971), aff'd, Gelbard v. United States, 408 U.S. 41

(1972); see also United States v. Woods, 544 F.2d 242, 248 (6th

Cir. 1976) (holding that § 2518(10)(a) does not authorize grand




                                  20
jury target to file pre-indictment motion to suppress); Dudley v.

United States, 427 F.2d 1140, 1141-42 (5th Cir. 1970) (same).

            Here, however, Doe 1 and Doe 2 did not file motions to

suppress.    Instead, they filed motions to quash a subpoena.

Federal Rule of Criminal Procedure 17(c) creates a right in

specified circumstances to secure relief from a court in the form

of an order quashing a grand jury subpoena duces tecum.      Rule

17(c) states: “The court on motion made promptly may quash or

modify the subpoena if compliance would be unreasonable or

oppressive.”   Despite the importance of a generally unfettered

grand jury investigative process, “the grand jury’s subpoena

power is not unlimited,” Calandra, 414 U.S. at 346, and Rule

17(c) motions to quash are indisputably one of the “limit[s]

imposed on a grand jury.”    R. Enterprises, 498 U.S. at 299; see

also Calandra, 414 U.S. at 346 n.4.    “Grand juries are subject to

judicial control and subpoenas to motions to quash.”    Branzburg,

408 U.S. at 708; see also In re Horn, 976 F.2d 1314 (9th Cir.

1992) (granting attorney’s Rule 17(c) motion to quash subpoena

that was overbroad and unreasonable because compliance would

violate attorney-client privilege).

            There is nothing in the language or structure of Rule

17(c) or Title III suggesting that Rule 17(c) cannot be used by a

victim of an unlawful interception to protect his or her privacy

interests under Title III.    We read Congress’s decision not to

authorize a motion to suppress evidence before the grand jury as

nothing more than that.   If Congress had also intended to

prohibit third parties from using traditional motion to quash


                                 21
practice to enforce their rights under Title III, we believe it

would have done so by stating in Title III that § 2518(10)(a)(i)

is the exclusive means of enforcing § 2515 in a grand jury

context.12   We therefore hold that Rule 17(c) provides a cause of

action for an aggrieved person to move to quash a grand jury

     12
      The government relies heavily on the following statement
in the legislative history:

[Section 2518(10)(a)] must be read in connection with
     section[] 2515 . . . which it limits. It provides the
     remedy for the right created by section 2515. Because
     no person is a party as such to a grand jury
     proceeding, the provision does not envision the making
     of a motion to suppress in the context of such a
     proceeding itself. Normally, there is no limitation on
     the character of evidence that may be presented to a
     grand jury, which is enforcible [sic] by an individual.
      There is no intent to change this general rule. It is
     the intent of the provision only that when a motion to
     suppress is granted in another context, its scope may
     include use in a future grand jury proceeding.

S. Rep. No. 90-1097, reprinted in 1968 U.S.C.C.A.N. 2112, 2195.

     The drafter of § 2518(10)(a) clearly regarded a grand jury
proceeding as something distinct from a court proceeding, and
sought not to alter the general rule that motions to suppress
cannot be filed in a pre-indictment setting. The legislative
history, like the Act itself, is silent on motions to quash.
Nothing in the legislative history of § 2518(10)(a) suggests that
Congress made a decision that traditional motion to quash
practice before a court would be unavailable to an aggrieved
party. Nor has the government suggested any reason why Congress,
after specifically prohibiting the use of illegally intercepted
communications by a grand jury, might have wanted that practice
to be unavailable. In this connection, we note that Congress
clearly did not intend that all persons aggrieved by grand jury
conduct in violation of § 2515 have no remedy other than
§ 2518(10)(a). As we have pointed out, § 2520 provides an
aggrieved party with a civil action against a violator to recover
"such relief as may be appropriate." Moreover, as the Supreme
Court held in Gelbard v. United States, 408 U.S. 41 (1972), it is
entirely consistent with the Congressional intent behind Title
III for those aggrieved persons who are the subject of a grand
jury subpoena to simply refuse to comply and use § 2515 as a
shield in the ensuing contempt proceeding.



                                 22
subpoena duces tecum compliance with which would violate §§ 2515

and 2511(1)(c).

          In reaching this conclusion, we reject the notion that

there is something inherently inconsistent about a party having a

right to quash a grand jury subpoena duces tecum when he or she

has no right to move to suppress the evidence that is the subject

of the subpoena.   The relief that may result from the

intervenors’ motion to quash is equivalent to the relief that

would result from a successful motion to suppress only because

the government does not possess the evidence the grand jury has

ordered to be produced.   In the large number of cases where the

government already has the evidence that an aggrieved person

asserts cannot be introduced to the grand jury, a motion to quash

will do the aggrieved person no good, because there will be no

subpoena to be quashed.   Here, however, the grand jury must

employ its subpoena powers and the enforcement authority of the

courts to obtain the evidence it seeks.   We do not believe

Congress intended the grand jury and the courts to use their

respective powers to compel violations of Title III.     When a

subpoena is required to gain access to illegally intercepted

communications, the independent checks on use of the subpoena

power provide a cause of action to enforce the § 2515 evidentiary

prohibition.




                                23
                          B.   Final Order

           In order for us to have appellate jurisdiction, the

target and husband must not only have standing to appeal; the

district court’s order must also be a final order as to them.

See JFK Hospital, 802 F.2d at 99; District Council 33, 770 F.2d

at 38.   Since we find that the denial of their motions to quash

was a final order, we conclude that we have jurisdiction to reach

the merits of this appeal.

           An order denying a motion to quash is generally not a

final order permitting immediate appellate review unless the

movant is held in contempt.    See United States v. Ryan, 402 U.S.

530 (1971); Cobbledick v. United States, 309 U.S. 323 (1940);

Alexander v. United States, 201 U.S. 117 (1906).   “Where,

however, a person lacks the opportunity to contest the subpoena

by disobedience because it is not directed to him or her, an

order denying a motion to quash is final as to that individual.”

District Council 33, 770 F.2d at 38; see also Schmidt, 619 F.2d

at 1024-25.    “The court’s order denying a motion to quash is

effectively a final order to those who have no further steps they

can follow.”   JFK Hospital, 802 F.2d at 98 (finding denial of
motion to quash to be final order with respect to intervenors who

could not proceed to contempt or order subject of subpoena to do

so); see also District Council 33, 770 F.2d at 38 (same).     When

an intervenor does not have the option of contempt, the denial of

an intervenor’s motion to quash must be treated as final to

provide effective appellate review, since the subject of the

subpoena will frequently be unwilling to suffer the penalties of


                                 24
contempt in order to protect the intervenor's interest.   See FMC

Corp., 604 F.2d at 800-01.    Without immediate appeal, there would

be no other proceeding in which the intervenor’s claim could be

asserted.    See Schmidt, 619 F.2d at 1025.

            The district court’s denial of Doe 1 and Doe 2's

motions to quash is a final order as to them.    Since the subpoena

is directed to Doe 3 and not to themselves, the target and

husband do not have the option of creating an appealable order by

standing in contempt.    Although the witness has, thus far, been

willing to be held in contempt, she has done so on her own

behalf, on grounds entirely different from those the intervenors

have asserted.    There is no guarantee she will continue to

accept contempt, and the target and husband’s opportunity for

appellate review should not be dependent on her willingness to do

so.



                             III.   Merits

            We come, finally, to the merits of the intervenors’

motions to quash the grand jury subpoena duces tecum issued to

the witness.    The target and the husband contend that the motion

must be quashed because compliance with it would constitute a

violation of § 2515, prohibiting introduction to a grand jury of

unlawfully intercepted communications, and of § 2511(1)(c),

prohibiting disclosure of unlawfully intercepted communications.

 We agree.

            The government does not contest that compliance with a

subpoena requiring a violation of §§ 2515 and 2511(1)(c) would be


                                    25
"unreasonable" within the meaning of Federal Rule of Criminal

Procedure 17(c).   Nor does it dispute that compliance with the

subpoena duces tecum currently before us would be a violation of

the literal terms of §§ 2515 and 2511(1)(c).    It could not in

good faith contend otherwise.    The language of § 2515 could not

be any clearer: “Whenever any wire or oral communication has been

intercepted, no part of the contents of such communication and no

evidence derived therefrom may be received in evidence in any

. . . proceeding . . . before any . . . grand jury . . . if the

disclosure of that information would be in violation of this

chapter.”   18 U.S.C. § 2515.   Section 2511(1)(c) is also

unambiguous, making it a crime whenever one "intentionally

discloses, or endeavors to disclose, to any person the contents

of any wire, oral, or electronic communication, knowing or having

reason to know that the information was obtained through the

interception of a wire, oral, or electronic communication in

violation of this subsection."   Id. § 2511(1)(c).   Since it is

conceded by all parties that Doe 3's interceptions were made in

violation of § 2511(1)(a), and disclosure of the contents of the

intercepted communications would be a violation of § 2511(1)(c),

the plain language of § 2515 prohibits use of the subpoenaed

materials as grand jury evidence.

            Yet, despite these concessions, the government insists

that the district court properly denied Doe 1 and Doe 2 relief

because there is an unarticulated "clean hands" exception to the

strictures of §§ 2515 and 2511(1)(c).    We are not persuaded.13
     13
      We note that two other federal circuit courts have been



                                 26
           It is true, as the government emphasizes, that “in rare

cases [where] the literal application of a statute will produce a

result demonstrably at odds with the intentions of its drafters,”

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570-71

(1982), we may look to those intentions rather than the literal

terms of the statute.   See also United States v. American

Trucking Ass’ns, Inc., 310 U.S. 534, 542-44 (1940) (“When [a

statute’s plain] meaning has led to absurd or futile results

. . . this Court has looked beyond the words to the purpose of

the act.   Frequently . . . even when the plain meaning did not

produce absurd results but merely an unreasonable one plainly at

variance with the policy of the legislation as a whole this Court

has followed that purpose, rather than the literal words.”)

(internal quotations and footnotes omitted).   This is not such a

“rare case,” however.   Literal application of §§ 2515 and

2511(1)(c) means only that the grand jury cannot hear the

contents of unlawfully intercepted communications.   This protects

the privacy of Doe 1 and Doe 2 from further invasions, consistent

with the intent of Title III.   Thus, application of the plain

language of §§ 2515 and 2511(1)(c) leads to no absurd, futile, or

even unreasonable result in this case.   Cf. United States v.

Underhill, 813 F.2d 105, 111-12 (6th Cir. 1987) (departing from

plain language where it would allow defendant to shield himself

presented with the question of whether to read this same clean
hands exception into § 2515 and have reached conflicting
conclusions. See United States v. Murdock, 63 F.3d 1391 (6th
Cir. 1995) (deciding that § 2515 does contain clean hands
exception); United States v. Vest, 813 F.2d 477 (1st Cir. 1987)
(rejecting clean hands exception).




                                27
from prosecution under anti-gambling statute by suppressing

communications he unlawfully intercepted to further illicit

gambling scheme, clearly an absurd and unintended result of Title

III).

          Even if we were prepared to ignore the literal language

of the statute, however, we find no other indication that

Congress intended the clean hands exception the government would

have us read into §§ 2515 and 2511(1)(c).     The statutory

structure makes it clear that any interceptions of communications

and invasions of individual privacy are prohibited unless

expressly authorized in Title III.     See Gelbard, 408 U.S. at 46;

Cianfrani, 573 F.2d at 855.     The invasion of Doe 1 and Doe 2's

privacy that would result from introduction of Doe 3's recordings

to the grand jury is nowhere expressly authorized under Title

III, clearly suggesting that Congress intended no clean hands

exception.

             The government cites a statement in the legislative

history, to the effect that “[t]he perpetrator must be denied the

fruits of his unlawful actions in civil and criminal

proceedings,” 1968 U.S.C.C.A.N. at 2156, to support its

contention that Congress did not intend to deprive the government

of the use of unlawful evidence when the government is not the

“perpetrator” of the illegal interception.     But this statement

evidences no intent that a non-perpetrator may use the fruits of

another’s unlawful actions.    To the contrary, the statute and its

legislative history provide that anyone who discloses the
contents of a communication knowing it to be the fruit of an



                                  28
illegal invasion of privacy is guilty of a criminal offense, see

18 U.S.C. § 2511(1)(c); 1968 U.S.C.C.A.N. at 2181-82, and

likewise § 2515's evidentiary prohibition must be applied to

perpetrators and non-perpetrators alike.

          Moreover, if we were to concern ourselves with the

cleanliness of hands, there would be no reason to limit our

consideration to the hands of the government alone.    It is the

grand jury that issued the subpoena, and it is the district court

that ordered it to be enforced.    Given the unambiguous language

of § 2515, compliance with the subpoena would be a violation of

an express congressional prohibition.    Were we to allow a

compelled violation of this federal law, the hands of the grand

jury, the district court, and ourselves would all become sullied.

See Egan, 450 F.2d at 209 ("It seems beyond question that a

district court may not compel the violation of an express

congressional prohibition.").     Since § 2515 was enacted, in part,

"to protect the integrity of court . . . proceedings," Gelbard,

408 U.S. at 51 (internal quotations omitted), Congress cannot

have intended that we ignore any taint on grand jury and judicial

hands.   In short, it is incomprehensible that Congress intended

the admissibility of unlawfully intercepted communications to




                                  29
turn solely on whether the government participated in the

interceptions.

          We agree with the intervenors that, when enacting Title

III, Congress performed all of the balancing necessary of the

public interest in law enforcement against the privacy interests

of citizens. As we said in Cianfrani,
          Congress’s overriding interest in protecting
          privacy to the maximum extent possible is
          evident in Title III. The legislative
          history of the statute emphasizes the concern
          of its drafters that the Act preserve as much
          as could be preserved of the privacy of
          communications, consistent with the
          legitimate law enforcement needs that the
          statute also sought to effectuate.
          Similarly, the complex and overlapping
          provisions are strong evidence that Congress
          intended to regulate strictly disclosure of
          intercepted communications, limiting the
          public revelation of even interceptions
          obtained in accordance with the Act to
          certain narrowly defined circumstances.


573 F.2d at 856.   We have no authority to restrike the balance

that Congress has already struck by placing in the statute a

clean hands exception that Congress did not.

          In sum, Title III is designed to protect the privacy of

communications and the integrity of the courts.   Compliance with

the subpoena duces tecum directed to Doe 3 would violate § 2515's

evidentiary prohibition and would work a further invasion of Doe

1 and Doe 2's privacy rights in violation of § 2511(1)(c).

Compliance with the subpoena would, therefore, be unreasonable,

and the subpoena must be quashed.




                                30
                            IV.   Conclusion

           For the foregoing reasons, we will reverse the district

court, and remand with an order to grant the intervenors’ motions

to quash the subpoena duces tecum.

In re Grand Jury, Nos. 97-7016/17



SLOVITER, dissenting.

                  I do not disagree with the proposition that a

person aggrieved under Title III of the Omnibus Crime Control and

Safe Streets Act of 1968, codified as amended at 18 U.S.C. §§

2510-2522 (“Title III”), should have the right to preclude the

use of illegally intercepted communications at a criminal

proceeding, whether or not the government was responsible for the

interception.   Nor do I disagree with the proposition that such a

person should have the right at an appropriate time to quash a

subpoena issued to a third person ordering production of such

communications.    However, I do disagree with the majority’s

holding that a third party, such as a target or subject of a

grand jury investigation, may move to quash the subpoena issued

to a witness during the grand jury investigation.    This holding

runs counter to the well-established precedent disallowing

procedures that would delay and disrupt grand jury proceedings.

While I share the majority’s disapproval of the witness’s actions

in illegally intercepting communications, I believe that the

majority’s interpretation of Title III is contrary to the

statutory framework and the prudential principles underlying the

statute.   Therefore, I respectfully dissent and would affirm the


                                   31
district court’s dismissal of the intervenors’ motions to quash

for lack of standing.




                               32
                                  A.

                 My difference with the majority is narrow insofar

as the scope of the substantive provisions of Title III are

concerned, but fundamental insofar as its enforcement provisions

are concerned.     As the majority points out, § 2515 provides a

categorical exclusionary remedy for violations of Title III,

expressly proscribing the admission of illegally wiretapped

evidence in various specified proceedings, including grand jury

proceedings.   But the exclusionary remedy of § 2515 is not self-

executing.   The legislative history of Title III explains that §

2515 “must, of course, be read in light of § 2518(10)(a) . . . ,

which defines the class entitled to make a motion to suppress.”

S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,

2185 [”Senate Report”].    Significantly, § 2518(10)(a) does not

list a grand jury investigation among the list of specified

proceedings in which suppression motions may be filed.

                 It is this tension between the two sections that

forms the basis of my difference with the majority.    I believe

that we are bound by the statutory language, and that what

appears to be a paradoxical result - one section granting a right

and the other withholding a remedy - is reconcilable by a literal

reading of the statute and the explanation given in the

legislative history.    Congress saw the two provisions as

dependent and reflexive; Congress intended § 2518(10)(a) to

restrict § 2515.    The Senate Report states that § 2518(10)(a)

“must be read in connection with sections 2515 and 2517, . . .

which it limits.    It provides the remedy for the right created by


                                  33
section 2515.”    Id. at 2195.

                  By relying on Rule 17(c) of the Federal Rules of

Criminal Procedure, the majority glides over the fact that §

2518(10)(a), which gives aggrieved persons the right to file

motions to suppress such intercepted communications at various

proceedings, conspicuously omits proceedings before the grand

jury.   Rule 17(c) governs motions to quash subpoenas when

“compliance would be unreasonable or oppressive.”    Fed. R. Crim.

P. 17(c).   But a rule cannot trump a statute, and the majority’s

solution undermines the clearly discernible policy goal of §

2518(10)(a)'s limitation on the filing of motions to suppress,

namely, to prevent interference and delay with grand jury

investigations.    This policy applies with equal force to the

filing of motions to quash.

                  The reason for the omission of grand jury

proceedings from the suppression provision of § 2518(10)(a) is

set forth in the Senate Report, which states:
Because no person is a party as such to a grand
               jury proceeding, the provision does
               not envision the making of a motion
               to suppress in the context of such
               a proceeding itself. Normally
               there is no limitation on the
               character of evidence that may be
               presented to a grand jury, which is
               enforceable by an individual.
               (Blue v. United States, 86 S.Ct.
               1416, 384 U.S. 251 (1965).) There
               is no intent to change this general
               rule.


S. Rep. No. 90-1097, reprinted in 1968 U.S.C.C.A.N. at 2195

(emphasis added).

                  It was this policy and similar explanations in the


                                  34
legislative history commenting on the language of Title III that

led the Supreme Court in Gelbard v. United States, 408 U.S. 41

(1972), a case on which the majority relies, to distinguish

between a grand jury witness who seeks to stand on the illegality

of the interception as a basis for refusal to answer and a non-

witness potential defendant who seeks to intrude into the grand

jury proceedings.   After undertaking a thorough analysis of the

legislative history of Title III, the Court held that a witness

in a grand jury proceeding who was cited for contempt for refusal

to answer questions that were based upon illegally intercepted

communications could use the suppression provision of § 2515 as a

“just cause” defense.      See Gelbard, 408 U.S. at 59.   The Court

concluded that a witness was not foreclosed from using § 2515's

remedy only because that witness was not a target of a grand jury

investigation.   See id.     The Court stated in broad terms equally

applicable here,
The congressional concern with the applicability
               of § 2518(10)(a) in grand jury
               proceedings, so far as it is
               discernible from the Senate report,
               was apparently that defendants and
               potential defendants might be able
               to utilize suppression motions to
               impede the issuance of indictments.
               . . .


Id. at 59-60 (emphasis added).

                 As the court commented in United States v. Woods,

544 F.2d 242, 249 (6th Cir. 1976), cert. denied, 431 U.S. 954

(1977),   Gelbard “drew a careful distinction between a witness

before the grand jury, who it held may refuse to answer questions

based upon illegal interceptions, and a defendant or potential


                                   35
defendant.”

                  The “general rule” referred to in the Senate

Report and incorporated into the statute was described in United

States v. Blue, 384 U.S. 251 (1966), a case in which a defendant

sought pretrial dismissal of his indictment on tax fraud charges

on the ground that it was procured in violation of his Fifth

Amendment right against self-incrimination.     The district court

granted the motion, but the Supreme Court reversed.    It explained

that because criminal defendants have an opportunity to vindicate

their rights at trial, they should not be permitted to interrupt

the normal progress of a grand jury investigation.    Id. at 255

(commenting that because tainted evidence is admissible in grand

jury proceedings a defendant would only be able to suppress such

evidence or “its fruits if they were sought to be used against

him at trial”).

                  The Senate Report accompanying Title III cited to

Blue, a reference that was noted by the Supreme Court in Gelbard,

408 U.S. at 60.    Gelbard affirmed our decision in In re Grand

Jury (Egan), 450 F.2d 199 (3d Cir. 1971), where we stated:
The reference in the legislative history [of Title
               III] to Blue demonstrates at most a
               congressional intent to preclude an
               attack on a grand jury
               investigation by one whose interest
               in such investigation is not as a
               witness, but as a defendant, and
               instead to require such person to
               move for the exclusion of the
               questionable evidence after the
               indictment or at a time designated
               by the rules of criminal procedure.



Egan, 450 F.2d at 205.     We held that Sister Egan, a witness who



                                  36
refused to answer questions in a grand jury proceeding, could

invoke the § 2515 remedy because she was not a prospective

defendant, and thus was “not attempting to block an indictment

that might be returned by the grand jury, but rather is asserting

her right as a citizen to vindicate her privilege.”   Id. at 205-

06.

               The structure of the relevant provisions of Title

III and its legislative history show that Congress intended to

prevent targets and subjects of grand jury investigations, who

would have the opportunity to challenge illegally intercepted

communications at trial, from filing any motions that would

inhibit the functioning of the grand jury.

               It is true, as the majority notes, that motions to

quash are not expressly proscribed by Title III.   However, in

light of Congress’s emphasis on protecting the uninterrupted

functioning of the grand jury, we must interpret Title III in a

way that channels motions to quash a subpoena duces tecum, like

motions to suppress, to trial proceedings, rather than to grand

jury proceedings.   The inclusion of grand jury proceedings in the

exclusionary remedy of § 2515 entitles a grand jury witness, but

not third parties, to rely on that provision.

               The congressional intentions behind Title III flow

from the unique role occupied by the grand jury.   It conducts an

inquisitorial proceeding that seeks to determine if a crime has

been committed or if criminal charges should be brought against

any person, rather than an adversarial proceeding in which guilt

or innocence is determined. See United States v. R. Enterprises,


                                37
Inc., 498 U.S. 292, 297 (1991).

                  Consistent with this function, numerous procedures

are permitted in the grand jury that would not be acceptable in a

criminal trial.    The grand jury “paints with a broad brush,” id.,

and the scope of its investigative power is necessarily very

broad.   See Branzburg v. Hayes, 408 U.S. 665, 701 (1972) (“A

grand jury investigation is not fully carried out until every

available clue has been run down and all witnesses examined in

every proper way to find if a crime has been committed.”

(internal quotations omitted)).    It conducts its investigation in

the absence of a judge, deliberates in secret, and is not

restrained by the technical rules of procedure and evidence that

govern criminal trials.    See United States v. Calandra, 414 U.S.

338, 344 (1974).

               As the Supreme Court said of the grand jury nearly

eighty years ago:
It is a grand inquest, a body with powers of
               investigation and inquisition, the
               scope of whose inquiries is not to
               be limited narrowly by questions of
               propriety or forecasts of the
               probable result of the
               investigation, or by doubts whether
               any particular individual will be
               found properly subject to an
               accusation of crime.


Blair v. United States, 250 U.S. 273, 282 (1919) (witness not
entitled to make objections based on irrelevance or

incompetence); see also Costello v. United States, 350 U.S. 359,

364 (1956) (hearsay rules inapplicable to grand jury proceedings

because strict observance of such rules “would result in



                                  38
interminable delay but add nothing to the assurance of a fair

trial”); Lawn v. United States, 335 U.S. 339-350 (1958)

(indictment not open to challenge on ground that it was procured

in violation of Fifth Amendment).

                 Solicitude for the proper and efficient

functioning of the grand jury has made the Court reluctant to

authorize procedures that would allow “protracted interruption of

grand jury proceedings.”    Gelbard, 408 U.S. at 70 (White, J.,

concurring).   Thus, in Calandra, the Court held that the

exclusionary rule for alleged Fourth Amendment violations would

not be available at the grand jury stage because the hearings

necessitated by such a rule “would halt the orderly progress of

an investigation and might necessitate extended litigation of

issues only tangentially related to the grand jury’s primary

objective.”    414 U.S. at 349.

                 In R. Enterprises, the Court held that the

standards set out in United States v. Nixon, 418 U.S. 683, 699-

700 (1974), for relevancy and admissibility of documents sought

by a subpoena duces tecum in the trial stage were not applicable

at the grand jury stage because such rules would invite

unacceptable “procedural delays and detours.”   R. Enterprises,
498 U.S. at 298.    After noting that “We have expressly stated

that grand jury proceedings should be free of such delays,” the

Court quoted United States v. Dionisio, 410 U.S. 1, 17 (1973),

for the proposition that:    “‘Any holding that would straddle a

grand jury with minitrials and preliminary showings would

assuredly impede its investigation and frustrate the public’s


                                  39
interest in the fair and expeditious administration of the

criminal laws.’” Id. at 298-99 (quoting Dionisio, 410 U.S. at

17).

                If intervenors were permitted to file motions to

quash subpoenas duces tecum, the grand jury would be straddled

with precisely the delay and disruption that Congress sought to

avoid.   There are numerous potential issues for side litigation

in a statute as complex as Title III, such as whether an

intervenor was an “aggrieved person” according to § 2510(11) or

whether there was in fact a statutory violation under § 2511.

The majority’s ruling would require adversarial hearings on

matters peripheral to the grand jury’s investigation and could

effectively transform the grand jury proceeding into a

“preliminary trial[] on the merits” in a way that the Court in

Calandra found unacceptable.   Calandra, 414 U.S. at 350.    The

consequential appeal, as here, if an intervenor has standing will

necessarily produce further unacceptable delays in the grand

jury’s work.

                I am not convinced that the delay and disruption

to the grand jury proceedings that the majority’s holding will

cause are offset by the benefits of the majority’s ruling.

Allowing parties to exclude such evidence at the grand jury stage

will do little to prevent future violations of the statute,

particularly among private citizens.   See Calandra, 414 U.S. at
351 (“[a]ny incremental deterrent effect which might be achieved

by extending the [exclusionary] rule to grand jury proceedings is

uncertain at best”).   And Congress’s effort to protect an


                                40
aggrieved person from the disclosure of illegally intercepted

communications, repeatedly stressed by appellants, must be viewed

in the context of Congress’s evident contemplation that such

communications would indeed be disclosed in grand jury

proceedings by its exclusion from § 2518(10)(a) of motions to

suppress before the grand jury.

               As a result, I believe that under Title III third-

party motions to quash, like motions to suppress, are precluded

at the grand jury stage in the interest of the efficient

administration of the grand jury process.
                                  B.

               As the majority correctly notes, there have been

cases in which third parties have been accorded standing to file

motions to quash grand jury subpoenas where a privilege accorded

by the Constitution, a statute, or common law was at stake.     See,

e.g., Gravel v. United States, 408 U.S. 606 (1972) (speech and

debate clause privilege entitled U.S. Senator to quash subpoena

directed at aide); In re Grand Jury Proceedings (FMC Corp.), 604

F.2d 798, 801 (3d Cir. 1979) (allowing client to intervene to

challenge subpoena issued to attorney); see also In re Grand Jury
Matter (John F. Kennedy Memorial Hospital), 802 F.2d 96, 99(3d

Cir. 1986) (third parties accorded standing where their property

interests were jeopardized).   In those situations, the protection

afforded by the privilege is destroyed as soon as the privileged

material is introduced, whether at the grand jury or at trial.

Communications illegally intercepted are not in the same position

because, as set forth in the prior section, Congress recognized


                                  41
that disclosure of those communications would occur at the grand

jury stage when it limited the suppression remedy by omitting the

grand jury in § 2518(10)(a).

                  The majority relies on dictum from In re Matter of

Grand Jury (C. Schmidt & Sons, Inc.), 619 F.2d 1022, 1026-27 (3d

Cir. 1980), where there was reference in the majority opinion to

“imagined” instances where other “valued rights” at stake would

trigger third party standing to quash subpoenas.     Id. at 1026;

but see In re Subpoena to Local 478, 708 F.2d 65, 73 (2d Cir.

1983) (Schmidt “lacks a limiting principle”).     In Schmidt, where

we granted third-party standing, there were a variety of

interests asserted by the third-party intervenor, including the

contractual property interest in the service of employees who

were subject to a subpoena ad testificandum, a property interest

in the books and records previously subpoenaed, and, most

fundamentally, the right not to be subject to abuse of the grand

jury’s process.     In the latter instance, a third-party motion to

quash is the only mechanism available to challenge the potential

abuse.   None of these considerations is applicable here where

there is no allegation of grand jury abuse.     Therefore, the usual

presumption accorded to the legitimacy of grand jury proceedings

applies.   See R. Enterprises, 498 U.S. at 300.
                  Unlike the third parties hypothesized in Schmidt,

the intervenors here will have an opportunity to challenge the

statutory violation through a motion to quash or to suppress the

resulting evidence at the start of their criminal trial should an

indictment against them emerge from the grand jury.     They also


                                  42
have the right, under the statute, to sue the interceptor of the

illegal wiretap for civil damages whether or not they are

ultimately indicted, see § 2520(a), and can file a complaint

leading to a criminal prosecution of the interceptor,

see 2511(1)(c).
                               C.

               In sum, I conclude that the statutory framework of

Title III as well as congressional intentions regarding the

appropriate mechanisms to redress violations of Title III

foreclose the intervenors from filing motions to quash subpoena

duces tecum issued as part of a grand jury investigation.

Accordingly, I would affirm the district court’s dismissal of the

intervenors’ motions.




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