United States v. Luong – Case Brief Summary (Federal Court)

In United States v. Luong, 471 F.3d 1107 (9th Cir. 2006), an intercept was authorized by a judge in the Northern District of California for a mobile phone with respect to which the area code for the phone, the billing address of the subscriber, and the billing address of the mobile service provider were all located in the Eastern District of California.

The application for the intercept, however, had recited that "all of the intercepted conversations would 'first be heard in the Northern District of California' and interception 'will automatically take place in San Francisco, California, regardless of where the telephone calls are placed to or from.'" Id. at 1109.

The argument of the defendants there:

"The appellants argue that interception occurs only where the telephone is based or located, and not where the government sets up a listening post where it is first able to hear the intercepted conversation. The issue, therefore, is clearly drawn: What constitutes "interception" within the meaning of section 2518(3)." Id. at 1109.

The Ninth Circuit followed the other Circuits in holding that the listening post qualifies as an interception point and, therefore, confers jurisdiction to authorize the intercept.

A separate statutory section defines "interception" as "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." This definition does not state where an interception occurs or whether more than one interception point may exist for jurisdictional purposes.

The most reasonable interpretation of the statutory definition of interception is that an interception occurs where the tapped phone is located and where law enforcement first overhear the call. We join at least three of our sister circuits in so holding. ...

The district court accordingly had jurisdiction to authorize the wiretap of Luong's mobile telephone despite the phone's Eastern District area code. Agent Lee's affidavit explained that all of the intercepted conversations would "first be heard" at a listening post "in San Francisco, California, regardless of where the telephone calls are placed to or from." The FBI's listening post in San Francisco, California was within the territorial jurisdiction of California's Northern District. The calls were therefore intercepted within the jurisdiction of the judge of the Northern District of California who authorized the wiretap, as required by section 2518(3). (Id. at 1109-10.)