Chandler v. U.S. Army, 95-35882

Citation125 F.3d 1296
Decision Date23 September 1997
Docket NumberNo. 95-35882,95-35882
Parties97 Cal. Daily Op. Serv. 7546, 97 Daily Journal D.A.R. 12,161 John CHANDLER, Jr., Plaintiff-Appellant, v. The UNITED STATES ARMY; Kenneth Simpson, in his capacity as Commander, U.S. Army Recruiting Command, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Daniel L. Hawkley, Boise, ID, for plaintiff-appellant.

Warren S. Debridge, Assistant United States Attorney, Boise, ID, for defendants-appellees.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. No. CV-94-00243-EJL.

Before: ALARCON, NORRIS and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge.

This is an action for declaratory and injunctive relief under a federal statute prohibiting wiretapping.

FACTS

This case was resolved on summary judgment, so the true facts have not been determined. Thus, our review treats the evidence in the light most favorable to Captain Chandler to determine whether there are genuine issues of material fact, and whether the law as applied to the facts so construed entitled the prevailing party to judgment.

Captain Chandler and his wife were having marital problems, and he had filed for a divorce. Mrs. Chandler bought and set up electronic equipment to record her husband's telephone conversations without his knowledge. She recorded him talking to Julie Ann Kelch, a Sergeant in the Army with whom Captain Chandler had professional contact. Mrs. Chandler listened to the tape and reached the conclusion that her husband was having an affair with Sergeant Kelch.

Mrs. Chandler then took two actions to retaliate against her husband. She falsely charged him with rape at the sheriff's office, and she told his commanding officer that he was having an affair, and that she had a tape recording that proved it. In her affidavit, she admitted that:

M. In addition to making a false claim to the police alleging that my husband had raped me, I called my husband's commander [Lieutenant Colonel] Hays and told him that I believed my husband was having an affair with Sgt. Kelch;

N. He asked if I had any evidence of that, and I told him I had a tape recording of a telephone conversation as proof of my allegation, and further told him that our telephone records showed that my husband spoke frequently with Sgt. Kelch using our home phone;

O. After going to the first Sgt.'s house and making a couple of copies of the tape recording, I gave my original copy to the Ada County Deputy Sheriff investigating my claim that my husband had raped me;

The next day Mrs. Chandler talked to a lawyer, who told her that secretly recording a telephone conversation between two other people was illegal. Mrs. Chandler then called Colonel Hays and told him what her lawyer had said. Colonel Hays "told me that the Army could still use it because civilian law did not apply to the Army." Aff. of Delores Chandler, pp m, n. Mrs. Chandler then destroyed her copies of the tape and got her original back from the sheriff's office. But the sheriff's office had made a copy of the tape, and had given the copy to Colonel Hays. Colonel Hays assigned Major David F. Gilbert to investigate. Major Gilbert was investigating allegations of conduct unbecoming an officer, adultery, fraternization, and conduct unbecoming a noncommissioned officer.

Major Gilbert's report was submitted to Captain Chandler for rebuttal, in accord with Army regulations for investigations where adverse administrative action is contemplated against an individual. Captain Chandler's attorney claimed that the use of the tape violated a federal wiretapping statute.

The Army responded to Captain Chandler's lawyer's argument by having a different commanding officer, Colonel Richard L Captain Chandler sued for a declaratory judgment that any use of any information from the tape violated federal law, and for an injunction that all records referring to the tape be destroyed. He also sought a declaration that any recommendation based in whole or in part on use of the recorded telephone conversations violated federal law. The wiretapping statute provides for declaratory and equitable relief for a person whose electronic communication is intercepted or used in violation of the law. 18 U.S.C. § 2520(b)(1).

Teters, Jr. appoint a different investigator, Major Gregory A. Guren, to conduct an investigation untainted by the tape. Colonel Teters did not listen to it or otherwise acquaint himself with the contents. Major Guren investigated the complaint again without obtaining the tape or asking questions about it. We cannot tell from the record whether Major Guren actually talked to anyone, or just reread the materials Major Gilbert had compiled, with the descriptions of the contents of the tape blacked out. Major Gilbert concluded that Captain Chandler "had engaged in an improper personal relationship" with Sergeant Kelch, and recommended that Captain Chandler be relieved of his command, reprimanded, and removed from the promotion list. Captain Chandler has received a formal written reprimand, been relieved of command for cause, and has been subjected to other adverse action.

The district court concluded that disclosure and use of the tape by the Army did not violate the federal wiretapping statutes, because the exception for law enforcement use in 18 U.S.C. § 2517 allowed use of the tape, and the second investigation, by Major Guren, was as a matter of law untainted by the tape.

ANALYSIS

The federal wiretapping statute goes further to protect privacy than the Fourth Amendment. "Except as expressly authorized ... all interceptions of wire and oral communications are flatly prohibited. Unauthorized interceptions and the disclosure or use of information obtained through unauthorized interceptions are crimes ... Title III also bars the use as evidence before official bodies of the contents and fruits of illegal interceptions...." Gelbard v. United States, 408 U.S. 41, 46, 92 S.Ct. 2357, 2360, 33 L.Ed.2d 179 (1972). The legislative purpose is plain: "The protection of privacy was an overriding congressional concern." Id. at 48, 92 S.Ct. at 2361.

Unlike Fourth Amendment limitations on searches, the wiretapping statute applies even to evidence obtained by entirely private misconduct. Cf. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). The limitation on use turns on improper interception, under 18 U.S.C. § 2515, regardless of whether the interception was governmental or private. Gelbard expressly rejects the proposition that wire tapping evidence can be used after "the invasion of privacy is over and done with." Gelbard, 408 U.S. at 51, 92 S.Ct. at 2363.

1. Was use of the tape a violation?

The Army argues that use of the tape was permissible under the law enforcement exceptions in the wiretapping statute, 18 U.S.C. § 2517(1), (2). The statute provides for criminal and civil actions against "any person who ... intentionally uses ... any ... device to intercept any oral communication" such as a telephone call. 18 U.S.C § 2511(1)(b). There are a large number of carefully drafted statutory exceptions for switchboard operators, foreign intelligence monitoring, FCC enforcement, citizens band radio, marine communications, etc. 18 U.S.C. § 2511. It is undisputed in this case, though, that Mrs. Chandler's surreptitious taping of her husband's telephone conversations with Sergeant Kelch violated the statutory command that no person may, "intentionally use[ ] ... any electronic ... device to intercept any oral communication...." 18 U.S.C. § 2511(1)(b).

If the facts are as Captain Chandler's evidence says, the Army violated the statute, not just Mrs. Chandler. The statute prohibits use of information others have obtained by wiretapping, not just the wiretapping itself. Unless an exception applies, no one may intentionally use or disclose the contents of an electronic communication, knowing or having reason to know that the information was obtained by a violative interception, regardless of whether the user procured the interception. 18 U.S.C. §§ 2511(1)(c), (d):

Section 2511. Interception and disclosure of wire, oral or electronic communications prohibited.

(1) Except as otherwise specifically provided in this chapter any person who-

. . . . .

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

. . . . .

... shall be punished as provided in subsection 4 or shall be subject to suit as provided in subsection 5.

If Mrs. Chandler's affidavit were proved, then Colonel Hays and perhaps Major Gilbert would have violated the statute. Colonel Hays would have "intentionally disclosed ... to [Major Gilbert] ... the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through [Mrs. Chandler's] interception of a wire, oral, or electronic communication in violation of this subsection." 18 U.S.C. § 2511(1)(c). Colonel Hays and Major Gilbert would have "intentionally use[d]" Mrs. Chandler's interception during the first investigation of Captain Chandler. Colonel Hays and possibly Major Gilbert would have had reason to know that the tape was obtained in violation of the wiretapping law, because Mrs. Chandler told Colonel Hays it was, and even told him that her lawyer said the taping was illegal, to which he replied "that the Army could still...

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1 books & journal articles
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