The opinion of the court was delivered by: GRADY
JOHN F. GRADY, CHIEF UNITED STATES DISTRICT JUDGE
This matter is before the court on the motion of the United States for a contempt order against "John Doe Trader Number One" based upon his refusal to produce certain records subpoenaed by the grand jury.
The grand jury is conducting an investigation into possible violations of federal law by persons associated with the Chicago Mercantile Exchange ("Exchange"). Respondent, John Doe Trader Number One ("Doe"), is a trader in the Swiss Franc pit of the Exchange. He was served with a subpoena duces tecum calling for the production of some of his personal trading records, including his trading cards, for the period of time involved in the investigation. Doe moved to quash the subpoena on the ground that the grand jury investigation is based in part upon evidence obtained by means of electronic surveillance conducted in violation of 18 U.S.C. § 2510 et seq. We held that a motion to quash is not the proper way to raise the issue of unlawful electronic surveillance and denied the motion. We then granted the government's motion to immunize Doe against the evidentiary use of his act of producing records
and ordered production. Doe appeared before the grand jury, but declined to produce the records, again basing his refusal on the ground that the information which prompted the subpoena was obtained by unlawful electronic surveillance. We issued a rule to show cause why Doe should not be held in contempt of court, and the matter has now been fully briefed.
The government has filed affidavits of a special agent of the Federal Bureau of Investigation who was in daily contact with an undercover FBI agent posing as a commodities trader in the Swiss Franc pit of the Exchange. According to these affidavits, the undercover agent wore a trading jacket with microphones concealed in the upper torso area about eight inches from his ear. The undercover agent recorded numerous conversations he had with Doe as well as conversations Doe had with third persons when the agent was standing
The affidavits further aver that the microphones were never removed from the agent's trading jacket. The recording equipment utilized by the agent "was incapable of capturing sounds not otherwise audible to the agent. In particular, . . . because the recording equipment was incapable of capturing certain frequencies, at both the high and low ranges of the human hearing spectrum, the equipment was actually less sensitive than the human ear." (Affidavits of May 8 and July 25, 1989).
With some exceptions, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2511, makes it unlawful to "intercept" certain communications, including "oral" communications. Section 2516 provides for court-authorized interceptions upon a showing of probable cause, but no court order was obtained in this case.
THE CONTENTIONS OF THE PARTIES
Doe contends that his utterances recorded by the undercover agent were "oral communications" and that the recording of those utterances by the undercover agent was "interception." Because no court order authorized the interceptions, Doe concludes that they were unlawful.
The government argues that the recorded conversations were not "oral communications" within the meaning of the statute because Doe had no reasonable expectation of privacy with regard to those conversations. The government further argues that the conversations came within the "consent" exception of the statute and, finally, that the things seen and heard by the undercover agent provide an independent basis for the grand jury subpoena quite apart from the fact that some of the conversations were recorded.
We will start with the question of whether there has been an "interception." We will then consider whether Doe's utterances were "oral communications."
Section 2510(4) provides the following definition:
(4) "Intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.
Section 2510(5) defines "electronic, mechanical, or other device" as any device that can be used to "intercept a wire, oral, or electronic communication" (with certain exceptions). There is no dispute that a tape recorder qualifies as an electronic device since it can be used for the purpose of interception. The question presented is whether the recorder was used for that purpose in this case. Specifically, we must determine whether there was "aural . . . acquisition of the contents of any . . . oral communication through the use of [the] electronic . . . device."
The statute does not define "acquisition," but the dictionary defines it as "the act or action of acquiring," and defines "acquire" as "to come into possession, control, or power of disposal of. . . ."
In this case, it seems to us that the undercover agent aurally acquired the utterances of Doe by means of his naked ear. The recording device simply preserved what it was the agent was hearing independently of the device. This was the conclusion reached by the court in United States v. Harpel, 493 F.2d 346 (10th Cir. 1974). In that case, a conversation was overheard by means of an extension telephone and simultaneously recorded by means of a tape recorder. The defendant was convicted of disclosing an unlawfully intercepted wire or oral communication in violation of § 2511(1)(c). One question on appeal was what constituted the interception:
The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. [emphasis added].
We therefore conclude that the tape recorder in question cannot constitute the intercepting mechanism when used, as it is argued here, ...