UNITED STATES of America, Plaintiff-Appellee, v. Richard J. SMITH, Defendant-Appellant

In this appeal from an insider securities trading conviction, we must decide difficult evidentiary issues involving an illegal interception of voicemail, as well as whether internal corporate earnings projections may constitute “material” inside information and whether conviction requires proof of actual use of that inside information.

I

PDA Engineering, Inc. (“PDA”) was, in 1993, a software design firm with headquarters in Orange County, California. Shares in PDA were publicly traded on the National Association of Securities Dealers Exchange (commonly referred to as “NASDAQ”). Richard Smith served as PDA’s Vice President for North American Sales and worked in PDA’s Nashville, Tennessee, office. By early 1993, after nearly .three years with PDA, Smith had accumulated 51,445 shares of PDA stock.

In a series of transactions between June 10 and June 18, 1993, Smith liquidated his entire position in PDA. In addition to selling his own shares, Smith “sold short” 1 25,000 shares on July 8, and another 10,000 shares on July 20. Smith’s parents also sold and sold short a total of 12,000 shares.

Amidst this flurry of sales activity, on June 19, Smith telephoned Angela Bravo de Rueda (“Bravo”), an employee in the Los Angeles office of PDA, and left her the following voicemail message:

Hi, Angie, Rich.... I talked to Tom last night after I left you some messages and he and Lou discovered that there was about a million and a half dollar mistake in the budget, so now we’re back at ground zero and we’ve got to scramble for the next few days. Anyway, finally I sold all my stock off on Friday and I’m going to short the stock because I know its going to go down a couple of points here in the next week as soon as Lou releases the information about next year’s earnings. I’m more concerned about this year’s earnings actually. 2

*1054 Unbeknownst to either Smith or Bravo, another Los Angeles-based PDA employee, Linda Alexander-Gore (“Gore”), guessed correctly Bravo’s voicemail password and accessed Bravo’s mailbox. When Gore encountered Smith’s message, she forwarded it to her own mailbox. In order to retrieve it, she then called her own voicemail from her home telephone, played the message, and recorded it with a handheld audiotape recorder. 3 After recording the message, Gore approached a co-worker, Robert Phillips (“Phillips”). She informed him of the genei’al nature of the communication and provided him with a copy of the recording.

Phillips listened to the message and telephoned the United States Attorney’s Office for the Central District of California, where he spoke to Assistant United States Attorney Bart Williams (“Williams”). Phillips told Williams that he believed he had information, in the form of an audiotape, that indicated possible criminal activity. He played the tape for Williams approximately four times and attempted to answer several questions about the contents of the recording. He informed Williams that he believed that the speaker on the tape was Smith and that the references in the message to “Tom” and “Lou” were probably to Tom Curry and Lou Delmonico, both corporate officers at PDA. Phillips offered to send Williams a copy of the tape itself, but Williams declined. Phillips never spoke to Williams again.

Williams referred the matter to Special Agent Maura Kelly (“Kelly”) of the Federal Bureau of Investigation (“FBI”). Kelly contacted the Pacific Regional Office of the Securities and Exchange Commission (“SEC”) and relayed to a staff attorney that an “anonymous informant had told [Williams] about insider trading in the stock of a company called PDA Engineering by a person named Richard Smith and that the anonymous informant had a tape of a conversation involving an individual purporting to be Smith discussing insider trading.” In November 1993, the SEC issued a formal order of investigation against Smith. Over the course of the ensuing eight months, the SEC obtained documentary evidence from various sources and deposed a number of witnesses. Sometime during the seventh month of its eight-month investigation (in July 1994), the SEC obtained via administrative subpoena an audiotape copy of the recorded voicemail message.

In September 1994, the SEC referred the matter back to the United States Attorney in Los Angeles for possible criminal prosecution. Throughout the next eighteen months, the United States Attorney’s Office and the FBI conducted substantial additional investigation, during which they interviewed fifteen individuals and subpoenaed sixteen additional boxes of documents.

Smith was indicted on eleven counts of insider trading in violation of § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5, and on one count of obstruction of justice in violation of 18 U.S.C. § 1505. Smith moved to suppress the evidence supporting the eleven insider trading counts and to dismiss the indictment as a whole, including the obstruetion-of-justice count. After an extensive hearing, the district court suppressed the voicemail message itself, but refused to exclude the remainder of the government’s evidence, concluding that it was not “derived from” the initial illegal recording. Although the court granted Smith’s motion to dismiss the obstruction count, 4 it denied his motion to dismiss with respect to the insider trading counts.

After a week-long trial, a jury returned guilty verdicts on all eleven insider trading counts. Smith filed a motion for judgment of acquittal or, in the alternative, for a new trial. The district court denied the motion, and Smith appealed.

Smith’s contentions on appeal are essentially these: (1) that the government’s evidence of insider trading was “derived from” an illegal wiretap and, therefore, should have been excluded pursuant to 18 U.S.C. § 2515; (2) that the information he possessed was *1055 forward-looking, or “soft,” information, and hence was not “material” within the meaning of Rule 10b—5; and (3) that the district court erroneously instructed the jury that it could convict Smith based upon his mere possession, as opposed to his use, of inside information.

II

Prior to trial, the district court suppressed the tape of the voicemail message because it concluded that the tape had been illegally “intercepted” within the meaning of 18 U.S.C. § 2515. The court refused, however, to exclude the remainder of the government’s evidence. Smith contends on appeal that all evidence produced by the government at trial should have been suppressed because it was “derived from” an illegal wiretap in violation of § 2515. The government counters on two fronts. In addition to its argument that the district court correctly rejected Smith’s “derived from” argument, see infra Part II.B, the government maintains (as an alternative basis for affirmance 5 ) that the district court erred in concluding that § 2515 governs this case in the first place. The government contends that a separate section of Title 18— § 2701—applies to situations like the one presented here and thus controls the evidentiary question.. Because the government’s alternative argument presents a threshold issue, we address it first.

A

When the Fifth Circuit observed that the Wiretap Act “is famous (if not infamous) for its lack of clarity,” Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 462 (5th Cir.1994), it might have put the matter too mildly. Indeed, the intersection of the Wiretap Act (18 U.S.C. §§ 2510-2520) and the Stored Communications Act (18 U.S.C. §§ 2701-2710) is a complex, often convoluted, area of the law. This case turns, at least in part, on issues at the very heart of that intersection.

Smith insists that the Wiretap Act controls. The district court agreed. Section 2515 provides, in relevant part, that “[w]hen-ever any wire ... communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received, in evidence in any trial.” 18 U.S.C. § 2515 (emphasis added). Section 2510(1) defines “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection” and expressly includes within its scope “any electronic storage of such communication.” 18 U.S.C, § 2510(1) (emphasis added). 6 Section 2510(4) defines “intercept” as “the aural or other acquisition of the contents of any wire ... communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4).

In view of the rather broad definitions supplied in § 2510, Smith argues, the voice-mail message Gore retrieved from Bravo’s mailbox seems rather plainly to fit within the language of the exclusionary provision of § 2515. For starters, the message itself, which Smith left in the voicemail system via telephone, was a “wire communication”; it was an “aural transfer,” made using a wire facility (the telephone line), and was subsequently “electronically] stor[ed]” within the voicemail system. In addition, Gore’s act of recording the message with a handheld audiotape-recording “device” constituted an “aural or other acquisition” 7 —and, hence, an “interception”—of the message. It is clear, Smith insists, that § 2515 applies. The government’s response: Not so fast.

Section 2701, which is part of the Stored Communications Act, provides for the criminal punishment of anyone who “intentionally *1056 accesses without authorization a facility through which an electronic communication service is provided ... and thereby obtains ... access to a wire ... communication while it is in storage in such system.” 18 U.S.C. § 2701. There is no doubt that the voicemail message at issue is a “wire communication.” 8 We have also already observed that the message was in “storage” within PDA’s voicemail system. When Gore used Bravo’s password to dial into the voicemail system, and then retrieved and recorded Smith’s message, the government argues, she violated § 2701’s prohibition on “accessing]” stored wired communications. Consequently, the government argues, the voicemail message fits within § 2701.

The fact that § 2701, as well as § 2515, appears to apply to the voicemail message is significant, the government argues, because, unlike the Wiretap Act, the Stored Communications Act does not provide an exclusion remedy. It allows for civil damages, see 18 U.S.C. § 2707, and criminal punishment, see 18 U.S.C. § 2701(b), but nothing more. Indeed, the Stored Communications Act expressly rules out exclusion as a remedy; § 2708, entitled “Exclusivity of Remedies,” states specifically that § 2707’s civil cause of action and § 2701(b)’s criminal penalties “are the only judicial remedies and sanctions for violations of’ the Stored Communications Act. 18 U.S.C. § 2708 (emphasis added). Therein lies the rub. If the voicemail message at issue is subject to the strictures of the Stored Communications Act, then suppression is not an available remedy. If, however, it is subject to the Wiretap Act, then suppression is quite explicitly available. In other words, with respect to this case, the Wiretap Act and the Stored Communications Act appear, on their faces, to be mutually exclusive statutes (with mutually exclusive remedial schemes). Unfortunately, at least at first glance, Congress seems to have defied the laws of semantics and managed to make the voicemail message here at issue simultaneously subject to both. 9

1

In an effort to alleviate the apparent textual tension, the government endeavors to take the voicemail message at issue outside the scope of § 2515 by narrowly interpreting the word “intercept.” Citing a handful of decisions — most prominently United States v. Turk, 526 F.2d 654 (5th Cir.1976) — the government insists that the term “interception]” in § 2515 necessarily connotes contemporaneity; that is, it “mean[s] listening to a conversation as it is taking place.” In Turk, the Fifth Circuit held that the word “intercept” does not include “the replaying of a previously recorded conversation.” Turk, 526 F.2d at 658. Rather, it “require[s] participation by the one charged with an ‘interception’ in the contemporaneous acquisition of the communication through the use of the device.” Id. Consequently, according to the government, there exists a fairly distinct division of regulatory labor, with the Wiretap Act governing the retrieval of wire communications while in 'progress and the Stored Communications Act governing the retrieval *1057 of wire communications while in storage. 10 This ease, the government maintains, is within the latter category, not the former.

The government’s explanation encounters problems, however. Most significantly, although the government’s proposed definition of “intercept” might comport with the term’s ordinary meaning—“to take, seize or stop by the way or before arrival at the destined place,” see, e.g., Webster’s Third New International Dictionary 1176 (1986) (emphasis added)—in this case, ordinary meaning does not control. When, as here, the meaning of a word is clearly explained in a statute, courts are not at liberty to look beyond the statutory definition. See Colawtti n Franklin, 439 U.S. 379, 393, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (“As a rule, ‘[a] definition which declares what a term “means” ... excludes any meaning that is not stated.’” (quoting 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp.1978))); cf. Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (emphasis added)). And as the Turk court itself frankly acknowledged, “[n]o explicit limitation of coverage to contemporaneous ‘acquisitions’ appears in the Act.” Turk, 526 F.2d at 658.

The government cites a slew of cases that it claims supports its narrow definition of “intercept” as requiring contemporaneity. The lion’s share of those cases, however, concern electronic communications, not wire communications. See Steve Jackson Games, 36 F.3d 457; Wesley College v. Pitts, 974 F.Supp. 375 (D.Del.1997); Bohach v. City of

Reno, 932 F.Supp. 1232 (D.Nev.1996); United States v. Reyes, 922 F.Supp. 818 (S.D.N.Y.1996). The distinction is critical, because unlike the definition of “wire communication,” see 18 U.S.C. § 2510(1), the definition of “electronic communication” does not specifically include stored information. Rather, the statute defines “electronic communication” simply as the “transfer of signs, signals, writing, images, sounds, data, or intelligence.” 18 U.S.C. § 2510(12) (emphasis added). Consequently, in cases concerning “electronic communications]”—the definition of which specifically includes “transferfs]” and specifically excludes “storage”—the “narrow” definition of “intercept” fits like a glove; it is natural to except non-contemporaneous retrievals from the scope of the Wiretap Act. In fact, a number of courts adopting the narrow interpretation of “interception” have specifically premised their decisions to do so on the distinction between § 2510’s definitions of wire and electronic communications. As the Fifth Circuit put the matter in Steve Jackson Games, an electronic-communications case:

Congress’ use of the word “transfer” in the definition of “electronic communication,” and its omission in that definition of the phrase “any electronic storage of such communication” (part of the definition of “wire communication”) reflects that Congress did not intend for “intercept” to apply to “electronic communications” when those communications are in “electronic storage.”

Steve Jackson Games, 36 F.3d at 461-62; accord Wesley College, 974 F.Supp. at 386.; Bohach, 932 F.Supp. at 1235-36; Reyes, 922 F.Supp. at 836 & n. 19. 11

*1058 In a case involving wire communications, like this one, the narrow definition of “intercept” is much harder to swallow. If, as the government insists, the term “intercept” necessarily implies contemporaneous acquisition, then the portion of § 2510(1) that specifically explains “wire communication” as including stored information is rendered essentially meaningless because messages in electronic storage cannot, by definition, be acquired contemporaneously. 12 We cannot accept such an interpretation, which flies in the face of “the cardinal rule of statutory interpretation that no provision [of a statute] should be construed to be entirely redundant.” Kungys v. United States, 485 U.S. 759, 778, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988); see also Colautti 439 U.S. at 392, 99 S.Ct. 675 (“[It is an] elementary canon of statutory construction that a statute should be interpreted so as not to render one part inoperative.”). Rather, “[i]t is our duty ‘to give effect, if possible, to every clause and word of a statute.’ ” United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883)). Consequently, we conclude that the government’s attempt to divide the statutory provisions cleanly between those concerning in-progress wire communications (e.g., § 2515) and those concerning in-storage wire communications (e.g., § 2701) is not a viable one.

2

It is not necessary, as the government assumes, either to rewrite or to ignore congressionally approved language to make sense of the Stored Communications Act and the Wiretap Act. Rather, the two statutes “admit[ ] a reasonable construction which gives effect to all of [them] provisions.” Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961). The terms “intercept” and “access” are not, as the government claims, temporally different, with the former, but not the latter, requiring contemporaneity; rather, the terms are conceptually, or qualitatively, different. The word “intercept” entails actually acquiring the contents of a communication, whereas the word “access” merely involves being in position to acquire the contents of a communication. In other words, “accessf ]” is, for all intents and purposes, a lesser included offense (or tort, as the case may be) of “interception].” As applied to the facts of this case, Gore might have violated the Stored Communications Act’s prohibition on “accessing]” by simply making unauthorized use of Bravo’s voicemail password and roaming about PDA’s automated voicemail system, even had she never recorded or otherwise “intercepted” the contents of any given message. Once she retrieved and recorded Smith’s message, however, she crossed the line between the Stored Communications Act and the Wiretap Act and violated the latter’s prohibition on “interception].”

Both textual and structural considerations support our interpretation. First, our construction comports with the statutory definition of “intercept” as entailing actual “acquisition,” see 18 U.S.C. § 2510(4), and with the ordinary meaning of “accessf ]” (which is not statutorily defined) as meaning “to get at” or to “gain access to,” see Webster’s Ninth New Collegiate Dictionary 49 (1986). 13 Second, *1059 whereas the language of § 2701 refers broadly to accessing a communications “facility,” § 2515 refers more pointedly to intercepting the “wire ... communication” itself. 14 One assuredly can access a communications facility—such as a company voicemail system— without listening to or recording any of the messages stored within that facility. Third, our reading of the Acts explains their contrasting penalty schemes. If, for instance, a hypothetical hacker were merely to “access! ]” a communication facility (ie., put himself in position to acquire a wire communication), he could be either sued for civil damages under § 2707 or criminally prosecuted under § 2701(b), which provides for incarceration for a period of up to two years. If, however, he were to go further, and actually to “intercept! ]” (ie., acquire) a wire communication, he may be sued for civil damages under § 2520 or criminally prosecuted under § 2511, which provides for incarceration for a period of up to five years. The fact that criminal violations of the Wiretap Act are punished more severely than those of the Stored Communications Act reflects Congress’s considered judgment regarding the relative culpability that attaches to violations of those provisions and supports our conclusion that a violation of the latter is, conceptually, a “lesser included offense” of the former. Fourth, our construction explains the absence of an exclusion remedy among the Stored Communications Act’s provisions. Obviously, the act of , merely “access[ing]” a communications facility would not alone produce the contents of any wire communication that might be suppressed; hence, an exclusion provision in the Stored Communications Act is unnecessary. The actual “interception]” of a wire communication, however, could yield suppressible evidence; hence, pursuant to § 2515, the contents of any such communication illegally intercepted may not be introduced in any official proceeding. Finally, and perhaps most importantly, our interpretation permits the Wiretap Act and the Stored Communications Act to coexist peacefully; that is, it prevents us from having simply to ignore a congressional enactment or a portion thereof. See United Savings Ass’n v. Timbers of Inwood Forest, 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (“Statutory construction ... is a holistic endeavor.”).

3

We thus reject the government’s interpretation in favor of what we believe to be a more holistically sound approach to this confusing area of the law. Pursuant to that approach, we conclude that Gore’s act of retrieving and recording Smith’s voicemail message constituted an “interception],” and is therefore governed, not by the Stored Communications Act but, instead, by the Wiretap Act and the exclusionary rule of § 2515. Consequently, we conclude that the district court was correct to suppress the tape of the voicemail message.

B

Section 2515 requires the suppression of not only the illegally intercepted wire communication itself, but also any “evidence derived therefrom.” 15 Smith insists that the entirety of the government’s case against him was “derived from” the unlawful wiretap and should therefore have been excluded from evidence. We have long recognized that § 2515 “codifies the ‘fruits of the poisonous tree’ doctrine with respect to violations that trigger application of the section.” United States v. Spagnuolo, 549 F.2d 705, 711 (9th Cir.1977). Consequently, we must look to Fourth Amendment seareh-and-sei-zure jurisprudence to determine the meaning and application of the statutory phrase “evidence derived therefrom.” See Chandler v. *1060 United States, 125 F.3d 1296, 1304 (9th Cir.1997).

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court articulated the basic standard for analyzing “fruit of the poisonous tree” issues: “The ... question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Id. at 488, 83 S.Ct. 407 (quoting John McArthur Maguire, Evidence of Guilt 221 (1959)). The Court has fashioned three distinct exceptions to the “fruits” exclusionary rule: (1) the “independent source” exception; (2) the “inevitable discovery” exception; and (3) the “attenuated basis” exception. See United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir.1989). We concern ourselves today only with the third of those three. 16

The “attenuated basis” exception is, at bottom, the manifestation of the courts’ consistent rejection of a “but for” causation standard in “fruit of the poisonous tree” doctrine. As the Supreme Court put the matter in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978):

Even in situations where the exclusionary rule is plainly applicable, we have declined to adopt a “per se or ‘but for’ rale” that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.

Id. at 276, 98 S.Ct. 1054 (citing Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)); accord United States v. Cales, 493 F.2d 1215, 1215 (9th Cir.1974) (“Evidence need not be suppressed merely because it would not have come to light but for the illegal wiretap.”). Rather, the taint inquiry is more akin to a proximate causation analysis. That is, at some point, even in the event of a direct and unbroken causal chain, the relationship between the unlawful search or seizure and the challenged evidence becomes sufficiently weak to dissipate any taint resulting from the original illegality. See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). In other words, at some point along the line, evidence might be “fruit,” yet nonetheless be admissible because it is no longer “tainted” or “poisonous.” Of course, the line between “taint” and “attenuation” is not an easy one to draw. As a leading treatise observes, “there is not now and doubtless never will be any litmus-paper test for determining when there is only an ‘attenuated connection’ between a Fourth Amendment violation and certain derivative evidence.” 5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.4(a), at 236 (3d ed.1996). Rather, “the question of attenuation inevitably is largely a matter of degree.” Brown, 422 U.S. at 609, 95 S.Ct. 2254 (Powell, J., concurring). Whether derivative evidence is admitted or excluded “will depend upon the precise role the illegal seizure in fact played in the subsequent discovery.” United States v. Bacall, 443 F.2d 1050, 1057 (9th Cir.1971).

In arguing for suppression, Smith advocates an “impetus” test for determining taint. He points to the district court’s “factual finding” that “it’s fairly obvious that the intercepted message was the impetus for starting the investigation,” and argues that “[b]eeause the district court’s finding ... was not clearly erroneous, the evidence obtained in the subsequent investigation of Smith *1061 should have been suppressed.” Smith relies upon this court’s decision in United States v. Johns, 891 F.2d 243 (9th Cir.1989), in support of his proposed “impetus” standard. His reliance, however, is misplaced. Although there is loose language in the Johns opinion to the effect that “[t]he illegal stop was the impetus for the chain of events leading to the [incriminating evidence] and thus [was] too closely and inextricably linked to the discovery for the taint to have dissipated,” id. at 245^46, the statement is clearly dictum. The Johns court premised its holding upon a much narrower ground, namely upon the district court’s “express finding” that the investigation occurred as a “direct result” of an initial illegal identification. See id. at 245. What is more, prior to Johns, in United States v. Celia, 568 F.2d 1266 (9th Cir.1978), we had specifically rejected “impetus” as the linchpin of taint analysis. The defendants in Celia had contended that, if unlawfully seized information “gives an impetus or direction toward what is to be focused on by the government, then all evidence thereafter produced must be suppressed.” Id. at 1285. Our response was decisive: “The defendants’ position is not consistent with the law of this circuit.” Id. Indeed, as the government correctly points out in its brief, an “impetus” standard is functionally equivalent to a “but for” test for evaluating taint, a test that both the Supreme Court and this court have repeatedly renounced. See, e.g., Ceccolini, 435 U.S. at 276, 98 S.Ct. 1054; Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407; Chandler, 125 F.3d at 1304; Cales, 493 F.2d at 1215.

We likewise decline Smith’s invitation to couch the taint inquiry in terms of “links in [a] causal chain” leading to incriminating evidence. The question of taint simply “cannot be answered on the basis of ‘causation in the logical sense alone.’ ” See United States v. Carsello, 578 F.2d 199, 202 (7th Cir.1978). As the Supreme Court has recognized, “[s]o-phisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government’s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint.” Nardone, 308 U.S. at 341, 60 S.Ct. 266. As is Smith’s proposed “impetus” standard, a “logical causation” standard is tantamount to a “but for” test, and we therefore reject it.

Contrary to Smith’s suggestions, under Ninth Circuit precedent, the baseline inquiry in evaluating taint is not whether an unlawful search was the “impetus” for the investigation or whether there exists an unbroken “causal chain” between the search and the incriminating evidence; rather, courts must determine whether “anything seized illegally, or any leads gained from illegal activity, tend[ed] significantly to direct the investigation toward the specific evidence sought to be suppressed.” Cales, 493 F.2d at 1216 (emphasis added). And although it is by no means clear precisely what constitutes “significant direction” sufficient to trigger the exclusion remedy, courts have deemed it probative whether the initial illegality “led directly to any of the evidence actually used against the defendant at trial,” Carsello, 578 F.2d at 203 (emphasis added), or, to put the matter slightly differently, whether the government’s evidence was the “direct result” of an unlawful search or seizure, Johns,