United States v. Grayson – Sixth Circuit Re-Affirms the “Clean-Hands” Exception and Sets a Modern Standard for Authenticating Fragmented Digital Recordings

United States v. Grayson – Sixth Circuit Re-Affirms the “Clean-Hands” Exception and Sets a Modern Standard for Authenticating Fragmented Digital Recordings

Introduction

In United States v. Ashley Grayson, No. 24-5988 (6th Cir. Aug. 14, 2025), the Court of Appeals for the Sixth Circuit confronted an increasingly common twenty-first-century evidentiary problem: whether a privately recorded FaceTime video—split into two incongruent clips with 26 seconds missing—may be used against a criminal defendant when government agents had no role in its creation. The defendant, a social-media influencer charged with conspiracy to commit murder-for-hire under 18 U.S.C. § 1958, argued that the recording violated the Federal Wiretap Act, the best-evidence rule, and Rule 901’s authentication requirement.

Judge Readler, joined by Judges Thapar and Nalbandian, rejected those challenges, reaffirming the Sixth Circuit’s “clean-hands” exception (first articulated in United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995)) and clarifying how Rules 901, 1003, and 1004 apply to digital, fragmented exhibits. The ruling also addresses Wharton’s Rule and the propriety of preliminary jury instructions, ultimately affirming Grayson’s conviction.

Summary of the Judgment

  • Evidentiary Rulings: The FaceTime recording was properly authenticated under Rule 901(b)(1); admissible as a “duplicate” under Rule 1003 (and under Rule 1004 because the original was destroyed without government fault); and not barred by the Federal Wiretap Act thanks to the “clean-hands” doctrine.
  • Jury Instructions: The district court’s preliminary comment about proving intent was cured by an immediate instruction, causing no reversible prejudice. The court correctly refused to give a Wharton’s Rule instruction because § 1958 can be violated by a sole perpetrator.
  • Outcome: Conviction affirmed on all grounds.

Detailed Analysis

Precedents Cited and Their Influence

  • United States v. Murdock, 63 F.3d 1391 (6th Cir. 1995) – Created the “clean-hands” exception allowing use of illegally intercepted communications when the government is a passive recipient.
    Grayson extends Murdock to real-time mobile-app recordings (FaceTime), signalling the exception’s vitality in the smartphone era.
  • United States v. Farrad, 895 F.3d 859 (6th Cir. 2018) – Reaffirmed the low threshold for authentication. The panel invoked Farrad to characterize Rule 901 as a “relatively low hurdle.”
  • United States v. Ehmer, 87 F.4th 1073 (9th Cir. 2023) – Persuasive authority for admitting altered duplicates when originals are destroyed without bad faith. Cited to bolster Rule 1004 reasoning.
  • Iannelli v. United States, 420 U.S. 770 (1975) & United States v. Ransbottom, 914 F.2d 743 (6th Cir. 1990) – Addressed Wharton’s Rule; relied upon to show § 1958 is not a two-person-only crime.
  • United States v. Frederick, 406 F.3d 754 (6th Cir. 2005) – Guided the court’s analysis of allegedly prejudicial preliminary instructions.
  • Out-of-Circuit Split on § 2515: Cases from the 1st, 3d, 4th, and 9th Circuits (Vest, In re Grand Jury, Crabtree, Chandler) reject a clean-hands exception. The panel acknowledged the split but remained bound by Murdock.

Legal Reasoning

  1. Rule 901 Authentication
    • Testimony of Olivia Johnson—the person who placed and recorded the call—satisfied Rule 901(b)(1).
    • The missing 26-second gap went to weight, not admissibility; objections on completeness are better framed under Rule 403.
  2. Best-Evidence & Duplicates (Rules 1003 & 1004)
    • The FaceTime clips were “duplicates” admissible unless authenticity was genuinely disputed or unfairness shown.
    • Because Johnson deleted the original without government involvement, Rule 1004(a) allowed secondary evidence.
  3. Federal Wiretap Act, 18 U.S.C. §§ 2510–2522
    • Even assuming Johnson’s recording violated § 2511(1)(a) & (2)(d), § 2515’s exclusionary rule did not apply where the government had “clean hands.”
    • Panel adhered to Murdock, declining Grayson’s invitation to overrule it; only en banc court or Supreme Court can revisit.
  4. Preliminary Jury Comment
    • District court’s hypothetical example (“a recording that says, ‘I’m going to kill somebody’”) merely illustrated proof of intent; curative instruction cured any potential prejudice.
  5. Wharton’s Rule
    • Because § 1958 can be violated by a single actor (e.g., solicitation using interstate facilities), the merger doctrine does not apply; no instruction required.

Impact of the Decision

  • Digital Evidence: Establishes that fragmented smartphone recordings—even with minor data loss—are admissible if accompanied by credible witness authentication. Prosecutors can rely on lay-recorded FaceTime, Zoom, or similar calls without exhaustive technical evidence.
  • Wiretap Litigation: Keeps alive the Sixth Circuit’s minority “clean-hands” rule, intensifying the circuit split and inviting Supreme Court review, particularly as consumer devices make surreptitious recording ubiquitous.
  • Best-Evidence Doctrine Modernized: Clarifies interplay between Rule 1003 duplicates and Rule 1004 destroyed originals in the context of cloud transfers that auto-segment files.
  • Conspiracy Law: Reinforces that § 1958 conspiracies are distinct from the underlying substantive murder-for-hire offense; Wharton’s Rule remains narrow.

Complex Concepts Simplified

  • Authentication (Rule 901) – Think of it as showing identification at airport security. A witness who created or recognizes the item merely confirms, “Yes, this is what we say it is.” It is a threshold inquiry, not a deep dive into reliability.
  • Duplicate vs. Original (Rules 1002–1004) – An “original” is the first generation; a “duplicate” is a faithful copy. Courts allow duplicates unless the original’s authenticity is genuinely in doubt or admitting the copy would be unfair.
  • “Clean-Hands” Exception – Evidence obtained by private misconduct is admissible so long as the government did not instigate or participate in the illegality. The criminal defendant cannot suppress it on Wiretap Act grounds.
  • Wharton’s Rule – A narrow doctrine saying you need more than the statutory minimum number of people for a conspiracy charge when the underlying crime requires two. It does not apply when the statute can be violated solo.

Conclusion

United States v. Grayson is significant for two reasons. First, it adapts long-standing evidentiary doctrines to modern smartphone realities, holding that imperfect, user-generated recordings may still clear Rules 901, 1003, and 1004. Second, it entrenches the Sixth Circuit’s “clean-hands” stance, setting up an ever-sharper conflict with sister circuits over the Wiretap Act’s exclusionary reach. Practitioners should take note: in the Sixth Circuit, privately obtained digital evidence—no matter how surreptitious—remains potent, and defendants face an uphill battle trying to suppress it when the government’s hands are clean.

Case Details

Year: 2025
Court: Court of Appeals for the Sixth Circuit

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