Third Circuit adopts "listening post" theory for wiretap intercepts under Title III

United States v. Dominique Jackson, Docket No. 14-3712 (3d Cir. Feb. 24, 2017)

Defendant Dominique Jackson was convicted after trial for conspiracy to distribute cocaine. His primary contention on appeal was that the district court erroneously denied his pretrial motions to suppress evidence derived from intercepted cellphone calls. Specifically, he argued that two federal orders authorizing the wiretaps of cellphones under Title III should have been suppressed because the orders were based on illegal state wiretaps. He contended the state wiretaps were illegal because the state court lacked authority to authorize wiretaps over cellphones outside of Pennsylvania.

The Third Circuit joined other courts of appeals in adopting the "listening post" theory that under Title III either the interception of or the communications themselves must have been within the issuing judge's territorial jurisdiction. It found that both Title III and the Pennsylvania wiretap statute, which was modeled after Title III, make clear that for the interception to be lawful only the interception had to have been in Pennsylvania. The phones and calls themselves can be outside the jurisdiction. Because there was no dispute that the interceptions at issue in this case were made at a listening post inside the state of Pennsylvania, the Third Circuit upheld the district court's denial of the defendant's suppression motion.

Jackson also raised three trial, all of which the Third Circuit rejected under a plain error analysis. First, the Court found that the district court did not plainly err in sua sponte precluding the government's case agent from interpreting the meaning of certain intercepted telephone calls under Fed. R. Evid. 701. Rule 701 permits a lay witness to testify as to their opinion so long as the testimony is: (1) rationally based on the witness's perception, (2) helpful to clearly understanding the witness's testimony or determining a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge. Although the Third Circuit found that the district court erred by allowing the case agent to testify about the meaning of clear conversations, provide unhelpful argument in the guise of evidence, and rely on other than direct knowledge of the events, this error did not raise to the level of a plain error because Jackson's co-defendants provided much of the same information.

Jackson also contended that the government wrongfully introduced evidence of two co-conspirators' guilty pleas as substantive evidence of his guilt. The Third Circuit rejected this claim after concluding that the government properly introduced this evidence to establish the witnesses' credibility and firsthand knowledge of the crime and to refute Jackson's selective prosecution claim.

Finally, Jackson argued that the district court plainly erred by permitting the government to mention a witness's invocation of the Fifth Amendment in front of the jury. While the Court agreed that such a mention was inopportune, it occurred in response to the district court's question about the applicable hearsay exception. The Court found error, but deemed it not so serious as to rise to the level of plain error.