U.S. v. Shriver

• Decision Date: 02 April 1993
• Docket Number: No. 92-1510,92-1510
• Citation: 989 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Stephen L. SHRIVER, Joseph R. Denman, Harry Lawrence Daly, and Joseph D. Fones, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 898

989 F.2d 898

UNITED STATES of America, Plaintiff-Appellant, v. Stephen L. SHRIVER, Joseph R. Denman, Harry Lawrence Daly and Joseph D. Fones, Defendants-Appellees.

No. 92-1510.

United States Court of Appeals Seventh Circuit.

Argued Sept. 11, 1992.

Decided Nov. 23, 1992.

As Amended on Grant of Rehearing

April 2, 1993.

Rodger A. Heaton, Elizabeth L. Collins (argued), Asst. U.S. Attys., Office of the U.S. Atty., Springfield, Ill., for U.S.

Howard W. Feldman, Feldman & Wasser, Springfield, Ill., for Stephen L. Shriver.

Steven Skelton, Bloomington, Ill., for Joseph R. Denman.

Steven Nardulli, Stratton, Dobbs & Nardulli, Springfield, Ill., for Harry L. Daley.

Bruce D. Locher, Springfield, Ill., argued for Joseph D. Fones.

Before BAUER, Chief Judge, MANION, Circuit Judge, and MOODY, District Judge. ¹

MOODY, District Judge.

On September 26, 1991, defendants-appellees were indicted under certain provisions of the wiretap laws, ² specifically 18 U.S.C. § 2511(1), 18 U.S.C. § 2512(1)(a) and (b), and Section 705(a) of the Communications Act of 1934, 47 U.S.C. § 605(a), for conspiring to manufacture, sell and assist others in the use of electronic devices commonly known as "modified descramblers". ³ On December 19, 1991, the government, plaintiff-appellant, obtained a superseding indictment against defendants, containing substantially the same charges as those contained in the original indictment. Defendants then moved to dismiss the counts of the superseding indictment arising out of the wiretap laws, on the ground that the conduct with which defendants were charged did not violate either § 2511 or § 2512. Prior to trial, the district court ⁴ granted defendants' motions and dismissed all counts of the superseding indictment charging defendants with violations of 18 U.S.C. §§ 2511 and 2512, 782 F.Supp. 408. The district court reasoned that, as a matter of law, the conduct with which defendants were charged--the manufacture and sale of modified descramblers--is not covered by the wiretap laws, and that such conduct is governed exclusively by Section 705 of the Communications Act of 1934, 42 U.S.C. § 605. The government has now appealed that order. ⁵

The government argues that the district court improperly dismissed before trial the counts arising out of the wiretap laws. The government contends that it was entitled to a trial on those counts, since it is a factual issue as to whether defendants' alleged conduct falls within the scope of the wiretap laws. Had a trial occurred, the government contends, it would have proven through expert testimony that, in fact, defendants violated § 2511 and § 2512. Defendants, on the other hand, argue that the district court properly granted their motions to dismiss, for, to them, the language and legislative history of the wiretap laws clearly demonstrate that Congress never intended the wiretap laws to cover modified descramblers. Thus, defendants contend, no trial on the matter was necessary, because, as a matter of law, neither § 2511 nor § 2512 applies to the conduct alleged in the superseding indictment. For the following reasons, we reverse the opinion of the district court and remand with instructions for an evidentiary hearing in accordance with the terms of this opinion.

This appeal is one of first impression for this court. It involves the question of whether the wiretap laws cover the manufacture and sale of modified descramblers. Modified descramblers are electronic devices that intercept satellite transmissions to privately-owned, home satellite dishes. They enable their users to receive clear reception of television programs without having to pay the television programmer a subscription fee, and, as gleened from the mounting information now available to the court, modified descramblers in general operate as follows. Pay television programming is transmitted by satellite in an encrypted, scrambled format, so that nonsubscribers cannot gain free access thereto. To receive the programming, one can either subscribe through a local, cable television company, or one can own a satellite dish and purchase the programming directly from the program provider.

In either case, though, a descrambler is necessary to descramble the programs for which the subscriber has paid. Owners of satellite dishes must purchase what is called a home satellite television descrambler, an electronic device that contains what is called the Video Cypher II circuit board. General Instruments, Inc. makes these Video Cypher II descramblers, and each one has a unique address, programmed onto computer chips contained on the circuit board. The address allows the owner of a satellite dish to view those encrypted television programs to which the owner has subscribed.

These Video Cypher II descramblers, though, can be modified, so as to allow free and clear reception of encrypted programs not subscribed to. The descramblers are modified by removing and replacing the unique address with a "working address", an address identical to that of another descrambler, the latter of which is programmed to descramble a greater number of encrypted programs. The cloning process is done simply by copying the address of one descrambler onto blank computer chips and then installing those chips onto the circuit board of another descrambler.

Thus, any number of descramblers can be given the same address, and the owners of such modified descramblers can receive additional, encrypted programs without having to pay the programmer for them. Moreover, the programmer is not aware that the scrambled signals sent to a descrambler with a unique address are being unscrambled not only by that descrambler but also by any and all other modified descramblers using the same, cloned address. Understandably, owners and potential buyers of home satellite dishes are willing to pay a premium for these modified descramblers, since the device allows the owner to view encrypted broadcasts without paying a subscription fee to the programmer.

Defendants were charged with manufacturing and selling these modified descramblers, in violation of both the wiretap laws, specifically 18 U.S.C. §§ 2511 and 2512, and Section 705(a) of the Communications Act of 1934, 47 U.S.C. § 605(a). Everyone agrees that defendants were properly charged under Section 705(a) of the Communications Act of 1934; the law is clear that the alleged conduct--assisting others in the unauthorized interception of scrambled, subscription television programming--is covered by 47 U.S.C. § 605(a). ON/TV of Chicago v. Julien, 763 F.2d 839, 843 (7th Cir.1985); see also United States v. Scott, 783 F.Supp. 280, 282 (N.D.Miss.1992) (§ 605(a) prohibits the unauthorized interception of satellite transmissions to home satellite dishes through the use of modified Video Cypher II descramblers). ⁶ Thus, the only question on appeal is whether that same conduct falls within the meaning and scope of 18 U.S.C. §§ 2511 and/or 2512. ⁷

This is a case of pure statutory interpretation, and, as such, the court of appeals must review the district court's interpretation of the applicable statutes de novo. United States v. Powell, 929 F.2d 1190, 1193 (7th Cir.1991), cert. denied --- U.S. ----, 112 S.Ct. 584, 116 L.Ed.2d 609 (1991); United States v. Montoya, 827 F.2d 143, 146 (7th Cir.1987). The general rule of statutory interpretation is that one must first look to the language of the statute and assume that its plain meaning "accurately expresses the legislative purpose." Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 661, 83 L.Ed.2d 582 (1985). 'When the language of the statute is lucid, we examine the legislative history only to see whether it reflects "a clearly expressed legislative intention to the contrary." ' United States v. Doherty, 969 F.2d 425, 429 (7th Cir.1992) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). Thus, the legislative history of a statute is of weighty import only when the statute is not clear or when the application of its "plain language produces absurd or unjust results." Trustees of Iron Workers Local 473 Pension Trust v. Allied Products Corp., 872 F.2d 208, 213 (7th Cir.1989).

We therefore turn to the language of the wiretap laws, specifically that of §§ 2511 and 2512, to see whether its plain meaning, if one exists, applies to modified descramblers. First, all agree that both § 2511 and § 2512 apply to electronic communications of the kind involved in this case. In 1986, Congress amended the wiretap laws to include electronic communications, with the idea in mind that the wiretap laws had to be updated so as to take into account new computer and telecommunication technologies, including satellite transmissions. 1986 U.S.Cong. & Admin.News at 3555; United States v. Herring, 933 F.2d 932, 935 (11th Cir.1991). The only question is whether, in expanding the scope of the wiretap laws to cover satellite transmissions, Congress meant to prohibit the interception thereof by modified descramblers.

First is § 2511. The language of § 2511 is clear: it is unlawful to intercept or procure another to intercept electronic communications without prior authorization. Furthermore, one need only refer to the statute itself for the precise meaning of the terms used therein. "[I]ntercept" means "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." 18 U.S.C. § 2510(4). An "electronic, mechanical, or other device" is defined as "any device or apparatus which can be used to intercept a wire, oral, or electronic communication...." 18 U.S.C. § 2510(5).

Based on this unambiguous language, one can only conclude that the use or encouragement of use of modified descramblers, if intentional, violates § 2511. Accord United States v. Lande, 968 F.2d 907, 910 (9th Cir.19...