In Re: Steven M. Askin, United States of America v. Mark T. McNulty

Citations: 47 F.3d 100; 1995 U.S. App. LEXIS 2009; 1995 WL 49391Docket: 94-5428

Court: Court of Appeals for the Fourth Circuit; February 1, 1995; Federal Appellate Court

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Steven M. Askin, a non-party witness in a drug conspiracy trial, appealed a civil contempt ruling after he refused to answer questions posed by the government, claiming the inquiries were based on information obtained through unlawful electronic surveillance. The surveillance involved intercepting phone calls between Askin and Robin L. Brumbaugh, a co-conspirator, using a radio scanner on a cordless phone without judicial authorization. The district court held that the surveillance was lawful under Title III of the Omnibus Crime Control and Safe Streets Act and the Fourth Amendment, asserting that Congress aimed to balance personal privacy with law enforcement needs. Askin, who had been disqualified as defense counsel for Brumbaugh, filed motions to suppress the intercepted material and to quash the subpoena, arguing violations of his rights under Title III and the Sixth Amendment. Both motions were denied by the district court. The Court of Appeals affirmed the contempt ruling, concluding that Askin lacked just cause to refuse testimony.

The trial involved witness Askin, who had been granted use immunity but refused to answer questions posed by the government regarding defendants, citing violations of his Fourth Amendment rights due to intercepted conversations. The district judge reminded Askin of his immunity and previously rejected his Fourth Amendment argument, ordering him to respond; however, Askin continued to resist. The court subsequently held him in civil contempt under 28 U.S.C. § 1826(a), which allows for the confinement of witnesses who refuse to testify without just cause. Askin appealed this contempt ruling, arguing that his refusal was justified because the questions were derived from illegally intercepted communications, invoking both statutory and constitutional protections. The legal precedent established in Gelbard v. United States supports that a witness may have just cause to refuse testimony if it is based on unlawfully obtained evidence. The excerpt also references Title III of the Omnibus Crime Control and Safe Streets Act, which prohibits warrantless interception of communications, raising the question of whether Askin's intercepted conversations fit the definition of protected communications at the time they occurred.

At the time of the relevant conversations, the statute explicitly excluded the radio component of cordless phone communications from the definitions of wire and electronic communication as outlined in 18 U.S.C. Sec. 2510(1) and Sec. 2510(12)(A). Consequently, these cordless communications were not subject to the statutory ban on warrantless interception. Furthermore, cordless conversations did not qualify as "oral communication" under 18 U.S.C. Sec. 2510(2), as courts consistently ruled that they fell outside this definition. Congress had focused on classifying cordless telephone conversations as wire or electronic communications, not oral communications, which is evidenced by amendments to Title III that later included cordless communications. Therefore, the cordless conversations between Askin and Brumbaugh lacked protection under Title III at the time of surveillance. Askin contends that a bifurcated analysis should be applied, arguing that he used a wire-based or cellular telephone, which are protected under Title III, thereby claiming that the statute's prohibition against warrantless interception should apply.

Title III establishes a comprehensive framework for regulating wiretapping and electronic surveillance, explicitly prohibiting the interception of wire, oral, and electronic communications without prior judicial approval. However, the statute allows for the interception of cordless radio waves, which was applicable in this case involving the radio component of cordless telephone transmissions. The conversations between Brumbaugh and Askin utilized a cordless phone, and the interception of their communications fell within the statutory exceptions for the radio portion transmitted between the handset and base. 

The court emphasized that the clear language of the statute excludes the radio portion of cordless transmissions from protected categories, and Askin's argument would undermine the statute's clarity by imposing a requirement for privacy protections that are not part of the current legal framework. Any amendment to extend such protections would need to come from Congress, which has recently amended Title III to protect all cordless communication transmissions but did not retroactively apply this change. 

Additionally, Askin's claim of refusing to testify based on alleged Fourth Amendment violations was rejected. The court found that viewing the communications in isolated segments was inappropriate and concluded that the surveillance did not violate Askin's Fourth Amendment rights. A unitary perspective on the intercepted communication was deemed more appropriate.

Askin's bifurcated perspective on communication is criticized for misunderstanding the nature of communication, which is inherently a two-way process. Communication involves exchanging information through shared symbols, making it conceptually flawed to view conversations as isolated segments rather than a unified whole. This perspective complicates the admissibility of intercepted communications under the Fourth Amendment, as one cannot easily separate parts of a conversation during a trial.

The Supreme Court's ruling in United States v. White supports a holistic view of conversations, emphasizing that the context of a conversation, including the presence of another party, is crucial for legal considerations. The Court highlighted that individuals engaging in conversations assume risks regarding their Fourth Amendment rights, particularly when discussing illegal activities with potentially unreliable companions. If individuals do not exercise caution regarding their associates, they bear the risk of their information being reported to the police.

While there are distinctions between an informant and a user of a cordless phone, both are deemed unreliable recipients of information. The overarching concern is the risk of unreliability, as indicated by the precedents set in White and Hoffa, rather than the specific identity of the listener.

The Fourth Amendment does not guarantee individuals using protected cordless phones the right to be free from warrantless interception of their transmissions, as such a ruling would invalidate the statutory exceptions outlined in Title III. Upholding Askin's Fourth Amendment argument would challenge the constitutionality of these exceptions, which are afforded a strong presumption of constitutionality. The increasing complexity of technology necessitates careful balance between privacy rights and law enforcement needs, a balance that Congress has attempted to achieve through Title III. Courts lack the expertise to evaluate the evolving impacts of new technologies on privacy rights, thus legislative bodies should be responsible for updating laws in this area. Consequently, the court finds that the surveillance in question did not violate Title III or the Fourth Amendment, affirming the judgment against Askin, who is also facing additional contempt charges that may affect his legal standing.

Askin has the standing to challenge the legality of government surveillance in relation to his contempt citation, as established by Gelbard v. United States. However, the assertion that the government engaged in unlawful surveillance lacks merit, which undermines Askin's motion to suppress intercepted conversations and his claim of just cause for refusing to testify. Consequently, there's no necessity to assess the validity of Askin's standing for the suppression motion, as it would be deemed meritless. Furthermore, the district court adhered to 18 U.S.C. § 3504(a)(1) by requiring the government to affirm or deny the alleged unlawful act. The government confirmed its monitoring of the Askin-Brumbaugh calls, asserting the legality of its actions throughout the litigation.