1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"In Re: Grand Jury (Pt. I)" (1997). 1997 Decisions. Paper 90.

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1

 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 
2

 

 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. 
3

 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

 

 

2In 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. 
4

 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 

 

 

3The 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. 
5

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 

 

 

4This 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). 

 

5Most 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. 
6

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 
7

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 

 

 

6Aggrieved 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). 
8

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. 
9

 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. 
10

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). 

 

8That 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. 
11

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 
12

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. 

 

 

9Even 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. 
13

 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 
14

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. 
15

 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 similarlysituated 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 
16

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 attorneyclient 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 

 

 

10Schmidt’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. 
17

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”). 
18

 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 
19

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 

 

 

11See 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). 
20

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 
21

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 
22

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 

 

 

12The 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. 
23

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. 
24

 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 
25

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 
26

"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

 

 

13We note that two other federal circuit courts have been 
27

 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). 
28

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 
29

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 
30

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. 
31

 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 
32

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

for lack of standing. 
33

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 selfexecuting. 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 
34

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 
35

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 nonwitness 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 
36

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 
37

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, 
38

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 
39

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 
40

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 
41

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 thirdparty 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 
42

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 
43

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.