Guest post by Niles Illich, Ph.D., J.D.
In August a three-judge panel followed precedent and held that the “clean-hands exception” to the exclusionary rule in the Federal Wiretap Act (created in the 1995 case United States v. Murdock) remains good law. United States v. Grayson, No. 24-5988, 2025 WL 2366262, at *5 (6th Cir. Aug. 14, 2025). The panel, however, expressed its reservations about Murdock and wrote:
· “…several of our sister circuits,. . . have refused to read a clean hands exception into the statute. See United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009); Chandler v. U.S. Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d 1066, 1079 (3d Cir. 1997); United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987).”
· “We do not discount Grayson’s textual analysis, the touchstone for modern day statutory interpretation. See Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021) (explaining that we interpret statutes by first exhausting “all the textual and structural clues bearing on [its] meaning” (citation modified)). Nor would we likely consider the statute’s legislative history in interpreting that text in the way Murdock chose to do.”
· “Indeed, the use of legislative history was particularly unusual in Murdock, where the panel relied on the fact that, to its mind, ‘nothing in the legislative history’ spoke against the ‘clean hands’ exception.”
· “Right or wrong, in other words, Murdock controls.”
This case arose when Ashley Grayson, a Dallas social media influencer, allegedly asked Olivia Johnson and her husband Brandon Thomas to murder three people who had criticized or threatened her. Johnson illegally recorded a FaceTime call of Grayson detailing the murder-for-hire plan and later turned the footage over to federal authorities. Grayson moved to suppress this evidence under the Federal Wiretap Act but the district court denied relief.
A federal district court in Memphis convicted Grayson of conspiracy to commit murder-for-hire (while acquitting a co-defendant). Grayson appealed, arguing the district court erred in denying the motion to suppress. The Sixth Circuit concluded that while the recording may have technically violated the Wiretap Act, Murdock’s “clean-hands” exception applied. This exception allows illegally obtained recordings to be used so long as the government was not involved in the unlawful interception.
Appellant sought en banc reconsideration, but the Sixth Circuit denied relief. Grayson will seek to resolve the circuit split in the Supreme Court.[1]
Niles Illich is board-certified by the Texas Board of Legal Specialization in Criminal Appellate Law. Niles has practiced in most federal circuits. Niles can be reached through his website www.appealstx.com or niles@appealstx.com.
[1] Nothing in
this blog post is intended as an admission. Rather the facts are provided based
on the procedural posture of the case.
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