Assumed Wiretap Act Error Does Not Require Retrial When Independent Evidence Makes It Harmless

1. Introduction

This case concerns whether a criminal conviction must be reversed because the prosecution introduced a secretly recorded conversation that may have been inadmissible under the Federal Wiretap Act. Ashley Grayson challenged her conviction for conspiring to use interstate commerce facilities in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958. After the Sixth Circuit initially affirmed, the Supreme Court vacated that judgment and remanded for reconsideration in light of the Solicitor General’s position that the recording could not be admitted under a “clean hands” exception.

On remand, the Sixth Circuit avoided deciding the underlying statutory dispute. Assuming that admitting the recording was erroneous, it held that the error was harmless because testimony, contemporaneous communications, payment evidence, and Grayson’s own statements independently established her participation in the scheme.

The decision’s central significance is therefore remedial rather than interpretive: even an assumed violation of the Wiretap Act’s exclusionary rule does not necessarily require a new trial.

2. Background and Procedural History

The alleged murder-for-hire arrangement

Grayson, a Dallas-based social media influencer, invited Memphis influencer Olivia Johnson and Johnson’s husband, Brandon Thomas, to Texas and paid their travel expenses. During that visit, Grayson asked them to kill three people: her former boyfriend and two women who had criticized her online. She offered $80,000 for the three killings.

Johnson and Thomas outwardly agreed but, according to the opinion, never intended to carry out the murders. Instead, they gathered evidence to provide to law enforcement.

The disputed FaceTime recording

After returning to Memphis, Johnson asked Grayson by text about a deposit. Grayson resisted discussing their “business plan” in writing, and the conversation moved to FaceTime. Johnson secretly recorded that call using Thomas’s phone.

During the call, Johnson claimed that she and Thomas had visited an intended victim’s home and could easily attack her. Grayson expressed urgency and offered an additional $5,000 if the killing occurred within approximately a week and a half.

Later that evening, Johnson and Thomas called Grayson from an unrelated crime scene and falsely suggested that they had shot at the intended victim’s home. Grayson agreed to pay them $10,000. Surveillance footage subsequently captured a meeting in Dallas at which, according to Johnson and Thomas, Grayson’s husband handed Thomas the money.

Grayson’s report to the FBI

After Johnson sent Grayson a clip of the FaceTime recording, Grayson accused Johnson of extortion and contacted the FBI. During a recorded call lasting roughly 23 minutes, Grayson described her discussions with Johnson. She acknowledged saying that her online antagonists “deserved to die” and that she would pay to have something happen to them.

Johnson separately provided federal agents with the FaceTime recording and text messages after consulting counsel.

Trial, appeal, and Supreme Court remand

Before trial, Grayson argued that the FaceTime recording violated the Wiretap Act because Johnson had made it for the criminal purpose of extortion. The district court admitted it under the Sixth Circuit’s “clean hands” doctrine, which permitted governmental use of certain unlawfully intercepted communications when the government had not participated in obtaining them.

The jury convicted Grayson but acquitted her husband. The district court denied Grayson’s motion for a new trial, and the Sixth Circuit initially affirmed.

At the certiorari stage, the Solicitor General agreed that the “clean hands” exception was mistaken but maintained that any admission error was harmless. The Supreme Court granted review, vacated the appellate judgment, and remanded. The Sixth Circuit then received supplemental briefing and reconsidered the recording issue.

3. Summary of the Opinion

The Sixth Circuit again affirmed Grayson’s conviction. Its decision rested on four principal conclusions:

1. Inadmissibility could be assumed without being decided. The court assumed that the Wiretap Act did not contain a “clean hands” exception permitting admission of the recording.
2. The assumed evidentiary error was harmless. The remaining evidence gave the court fair assurance that the recording had not substantially swayed the jury.
3. The recording’s prominence did not require reversal. Although prosecutors repeatedly used it and described it as “the whole crime,” the recording reinforced an independently supported account rather than creating that account.
4. The remand did not reopen unrelated issues. The court reinstated the portions of its earlier opinion rejecting Grayson’s other challenges, including her jury-instruction arguments.

Importantly, the court did not determine that Johnson committed extortion, definitively hold that her recording was unlawful, or expressly overrule the earlier “clean hands” precedent.

4. Precedents Cited and Their Influence

United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995)

United States v. Murdock supplied the “clean hands” exception on which both the district court and the original appellate decision relied. As described in the opinion, that exception allowed the government to introduce an unlawfully intercepted communication if it had played no part in the interception.

Its initial influence was decisive: the Sixth Circuit considered itself bound to apply it, stating that “[r]ight or wrong . . . Murdock controls.” The original panel nevertheless expressed disagreement with the decision’s reliance on legislative history to interpret the statute.

On remand, the court took a different route. Rather than deciding whether United States v. Murdock remained controlling after the Supreme Court’s order and the government’s concession, it assumed the exception was unavailable and affirmed on harmless-error grounds. The remand opinion therefore should not be characterized as a definitive repudiation of that precedent.

United States v. Grayson, No. 24-5988, 2025 WL 2366262 (6th Cir. Aug. 14, 2025)

United States v. Grayson was the court’s earlier decision in this same prosecution. The remand opinion incorporated its factual account and described its original reliance on the “clean hands” exception.

Although the Supreme Court had vacated the earlier judgment, the panel expressly reinstated the portions of that opinion rejecting challenges unrelated to the recording. This distinction matters: the court reconsidered the evidentiary issue while preserving its earlier resolution of the remaining appellate arguments.

Grayson v. United States, 146 S. Ct. 1872 (2026) (mem.)

Grayson v. United States provided the procedural basis for reconsideration. The Supreme Court directed further consideration “in light of the position asserted by the Solicitor General.” That order did not itself establish that the recording was unlawful or that a new trial was required.

The Sixth Circuit also cited Justice Alito’s dissenting observation that sufficient evidence remained even without the FaceTime recording. That observation supported the panel’s assessment but was not a holding of the Supreme Court.

United States v. Grogan, 133 F.4th 553, 563 (6th Cir. 2025)

United States v. Grogan supplied the governing evidentiary harmless-error formulation: an error is harmless unless “it is more probable than not that the error materially affected the verdict.” This standard directed the court to assess the recording’s effect on the outcome rather than treat its assumed inadmissibility as automatically requiring reversal.

United States v. English, 785 F.3d 1052, 1057 (6th Cir. 2015)

United States v. English explained the inquiry in terms of “fair assurance” that challenged evidence did not “substantially sway” the jury. The panel also relied on its “tipped the scales” formulation.

This precedent is important because harmlessness requires more than identifying some admissible evidence of guilt. The reviewing court must evaluate whether the error materially influenced the actual verdict. The panel concluded that the independent evidence supplied the necessary assurance here.

Bachynski v. Stewart, 813 F.3d 241, 250 (6th Cir. 2015)

Bachynski v. Stewart supported the distinction between evidence that influences a trial and evidence that substantially affects its outcome. The panel invoked it for the proposition that even evidence capable of having a “profound and dramatic effect” may not have a “substantial and injurious effect or influence” on a particular verdict.

The court used that distinction to answer Grayson’s strongest practical argument: that a vivid recording repeatedly played for jurors necessarily dominated their evaluation of the case. The citation supported a contextual assessment, not a categorical rule that recordings are harmless.

United States v. DeAngelo, 13 F.3d 1228, 1232–33 (8th Cir. 1994)

United States v. DeAngelo furnished a persuasive analogy involving an erroneously admitted recording. The Sixth Circuit cited it for the conclusion that a recording can influence jurors without substantially swaying their verdict.

As an Eighth Circuit decision, it was persuasive rather than binding authority. Its value lay in illustrating the same distinction the panel drew in Grayson’s case: reinforcement of independently established guilt is not necessarily outcome-determinative prejudice.

5. Analysis of the Court’s Legal Reasoning

A. The Wiretap Act contains distinct questions of interception and admissibility

The opinion described the Wiretap Act’s prohibition on intentional interception, its exclusionary provision, and its one-party-consent exception. Under 18 U.S.C. § 2511(2)(d), a participant’s interception ordinarily falls within the consent exception. Secret recording alone therefore does not establish unlawfulness.

That exception, however, does not apply when a communication is intercepted for the purpose of committing a criminal or tortious act. Grayson argued that Johnson recorded the call to facilitate extortion, bringing the interception within this limitation.

The district court’s “clean hands” rationale bypassed that dispute by focusing on the government’s nonparticipation. The remand opinion bypassed it differently: even assuming the recording should have been excluded, reversal was unnecessary.

B. The independent evidence formed a corroborated account

The court identified several mutually reinforcing categories of evidence:

• Johnson’s firsthand testimony: She described Grayson’s initial request for three murders, proposed payment, available deposit, and information about the intended victims.
• Thomas’s corroboration: His testimony supported significant portions of Johnson’s account, including discussions of the contemplated killings.
• Contemporaneous text messages: Grayson’s reluctance to put the “business plan” in writing corroborated the witnesses’ description of a concealed arrangement.
• The $10,000 payment: Testimony and surveillance evidence connected a payment to the supposed attack on an intended victim’s home.
• Grayson’s FBI statements: Her own account acknowledged discussing the deaths of her antagonists and agreeing to pay for something to happen to them.

These sources mattered collectively. The case did not rest solely on accepting Johnson’s credibility after viewing the disputed recording. Other testimony, communications, conduct, and Grayson’s admissions supported the prosecution’s account.

C. Prosecutorial emphasis was relevant but not dispositive

Grayson stressed that prosecutors called the recording “the whole crime,” played it repeatedly during Johnson’s testimony, and relied on it during closing argument. She argued that it became the interpretive “filter” through which jurors understood every other item of evidence.

The court acknowledged that the recording probably influenced the jury to some degree. It nevertheless distinguished influence from material influence. Johnson described a solicitation predating the recording; the messages and payment corroborated that account; and Grayson’s FBI statements supplied admissions in her own words. In the court’s formulation, the recording reinforced the prosecution’s account but did not create it.

This is the opinion’s principal analytical move. The presence of persuasive remaining evidence was significant not simply because it could support a conviction, but because its independent and corroborative character reduced the likelihood that the recording tipped the verdict.

D. The husband’s acquittal was not a meaningful control comparison

Grayson argued that her husband’s acquittal highlighted the recording’s decisive role because he had not participated in it. The court rejected that inference because the evidentiary records against the two defendants differed in several other ways.

Her husband was also absent from the relevant text exchanges, the initial conversation soliciting the killings, and Grayson’s FBI call. His acquittal therefore did not isolate the recording as the difference responsible for her conviction.

E. The court kept the remand narrow

The panel treated the Supreme Court’s order as requiring reconsideration of the recording issue, not a wholesale reopening of the appeal. It reinstated its earlier rejection of the remaining arguments. This preserved the distinction between the issue prompting remand and challenges unaffected by the Solicitor General’s changed statutory position.

6. Potential Impact and Limits

Practical significance for evidentiary appeals

The decision illustrates why establishing an evidentiary violation and obtaining reversal are separate tasks. A defendant may identify a serious admissibility problem yet remain unable to secure a new trial if the full record demonstrates that the error did not materially affect the verdict.

For prosecutors, the case underscores the importance of independent corroboration. Multiple evidentiary sources can preserve a conviction even when a prominent recording becomes legally vulnerable. It does not, however, authorize the knowing introduction of inadmissible evidence.

Guidance for future harmless-error arguments

Future litigants may draw on the opinion’s distinction between evidence that merely strengthens an existing account and evidence that supplies the essential basis for interpreting otherwise ambiguous proof. The recording’s repetition and dramatic force remain relevant, but neither feature is automatically dispositive.

Conversely, the reasoning leaves room for a different outcome where the remaining evidence depends heavily on the recording for credibility or meaning, or where independent admissions and corroborating conduct are absent.

Unresolved statutory questions

The opinion does not conclusively settle the “clean hands” exception, determine Johnson’s purpose in recording the call, or resolve every possible question concerning evidence connected to an unlawful interception. Its holding is narrower: on this record, the assumed admission error was harmless.

Because the opinion was not recommended for publication and primarily applies existing standards, it is best understood as a fact-specific appellate application rather than the announcement of a broad new binding rule.

7. Complex Concepts Simplified

One-party consent

A participant’s consent can ordinarily make interception lawful under the federal provision discussed here. The other participant’s knowledge is not always required.

Criminal-or-tortious-purpose limitation

The consent exception does not protect an interception undertaken to commit a crime or civil wrong. Grayson alleged such a purpose; the court did not decide whether she proved it.

“Clean hands” exception

The disputed doctrine allowed governmental use of an unlawfully obtained recording when the government did not participate in obtaining it. The panel assumed it was unavailable without definitively invalidating it.

Harmless error

A legal mistake that does not sufficiently affect the verdict to justify reversal. It is not a finding that no mistake occurred.

Sufficiency versus harmlessness

Sufficiency asks whether the evidence can support guilt. Harmlessness asks whether a particular mistake materially affected the verdict. Identifying sufficient remaining evidence does not, by itself, answer the second question.

Grant, vacate, and remand

The Supreme Court accepts the case, sets aside the lower court’s judgment, and returns it for reconsideration. That procedure does not necessarily decide who should ultimately win.

8. Conclusion

The Sixth Circuit affirmed Grayson’s conviction because independent testimony, communications, payment evidence, and her own admissions gave it fair assurance that the disputed FaceTime recording had not substantially swayed the jury.

The opinion’s central lesson is that an assumed Wiretap Act exclusion violation does not automatically require retrial. Its limits are equally important: the court did not definitively resolve the “clean hands” exception or find that Johnson’s recording was unlawful. The result rests on a fact-specific application of harmless-error review.