Citron v. Citron

• Decision Date: 01 June 1982
• Docket Number: No. 81 Civ. 5212 (WK).,81 Civ. 5212 (WK).
• Parties: Casper CITRON, Steven Casper Henry Citron and Alisande Citron Slivka, Plaintiffs, v. Fiona Graham CITRON, M.D., Defendant.
• Court: U.S. District Court — Southern District of New York

539 F. Supp. 621

Casper CITRON, Steven Casper Henry Citron and Alisande Citron Slivka, Plaintiffs, v. Fiona Graham CITRON, M.D., Defendant.

No. 81 Civ. 5212 (WK).

United States District Court, S. D. New York.

May 25, 1982.

As Amended June 1, 1982.

London & Buttenwieser by Helen Buttenwieser, New York City, for plaintiffs.

Greene & Zinner by Stanley S. Zinner, White Plains, N. Y., for defendant.

MEMORANDUM AND ORDER

WHITMAN KNAPP, District Judge.

This is an action for unlawful interception of telephone communications in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (the "Act"). Following trial on the merits, the defendant moved to dismiss the complaint. We now grant that motion.

The Statute

The relevant statutory provisions are found in Sections 2511 and 2520 of the Act. Insofar as here applicable, Section 2511 makes guilty of a felony (except as otherwise specifically provided) any person who:

"willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication...." (Emphasis supplied.)

The Section also provides that violators shall be fined not more than $10,000 or imprisoned for not more than five years, or both.

Section 2520 provides for the imposition of several forms of civil sanctions on those who violate the statute:¹ compensation for actual damages suffered by any victim of a violation, or — if higher — "liquidated" damages of $100 a day, but not less than $1,000; punitive damages; and counsel fees. Thus the Section states in pertinent part:

"Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person —

(a) actual damages but not less than liquidated damages computed at the rate of $100 for each day of violation or $1,000, whichever is higher;

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs reasonably incurred." (Emphasis supplied.)

Section 2520 also contains a "good faith" defense, which provides:

"A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this chapter or any other law." (Emphasis supplied.)

The Instant Litigation

Background

Plaintiff Casper Citron (the "husband") and defendant Fiona Graham (the "wife") were married in 1970. Their marriage has been stormy, featured by bitter disputes about the care and custody of their adopted children. The wife ultimately filed a complaint for divorce in New York County Supreme Court, to which complaint the husband promptly filed a counter-claim. The marital action is now pending in that court.

The husband is a television and radio commentator accustomed to public appearances and public speaking. The wife is a psychiatrist with no such experience. She testified that she was apprehensive she would be no match for her husband in court, and that she therefore feared losing the children. To redress this perceived imbalance, she intercepted various of the husband's telephone conversations, hoping to obtain self-revealing information with which to confront him in the marital action.

The means she adopted was to place a recording device on a telephone line which had an extension in the parties' marital bedroom and another in the husband's business office. The device made recordings on a removable "cassette" and was automatic; that is to say, as soon as the receiver was taken off the hook on either of the telephone extensions, the device would start recording, and would continue to do so until the receiver was replaced. Each cassette had a playing time of 180 minutes (90 minutes on each side) so, once connected to the telephone line, it would automatically record a total of 90 minutes of conversation without human intervention.

The device recorded several conversations by the husband which appear relevant to the pending marital litigation. However, numerous other conversations (both business and social) between the husband and various persons, including two of his children by a former marriage, plaintiffs Steven and Alisande, were also recorded.

At trial, the defendant wife testified that she acquired the interception device through a mail order house by responding to an advertisement in the New York Times. She said that the first interception turned out to be a social conversation between the husband and a woman, making her apprehensive about the propriety of her conduct. She therefore sought legal advice. The lawyer she consulted assured her that she need not worry,² and she continued with the interceptions.

Prior Proceedings

When the instant complaint was filed, the defendant wife moved to dismiss on the authority of Anonymous v. Anonymous (2d Cir. 1977) 558 F.2d 677. We denied that motion noting that — unlike the situation in Anonymous — the interceptions here involved were alleged to have been automatic and continuous throughout a several month period, and were concededly not confined to conversations between the husband and persons directly related to the pending marital action.

At the close of plaintiffs' evidence and again at the close of the whole case, the defendant wife renewed her motion based on Anonymous, and added the ground that there was no evidence to show that her conduct had been "willful" within the meaning of the statute. These motions were denied and the case submitted to the jury on special interrogatories.

The jury was asked to state on how many different days the defendant wife had intercepted conversations of each plaintiff, and what if any actual damages the respective plaintiffs had suffered. They found that interceptions had occurred on sixteen different days, and that conversations of plaintiff husband had been involved on each of those days. They found conversations of plaintiff's son Steven to have been intercepted on seven days; and of his daughter Alisande, on three. They further found that no plaintiff had suffered any actual damage as a result of such interceptions. On our then understanding of the statute, these responses would have entitled plaintiffs to recover "liquidated" damages totaling $3,600 — $1,600 for plaintiff husband ($100 for each day of interception), and $1,000 each for plaintiffs Steven and Alisande.

With respect to punitive damages, the jury was directed to assess such damages only if they answered the following question in the affirmative:

"Do you find that the defendant either knew she was violating the law or acted in reckless disregard of whether or not her conduct was unlawful?"

They answered this question in the negative. Accordingly, no punitive damages were specified.

Upon return of the verdict, the defendant renewed her previous motions, and moved to dismiss on the further ground that, since the verdict established that she had acted neither with intent to violate the law nor in reckless disregard of her legal obligations, her conduct could not be deemed "willful" and she could not be found to have violated the statute. We denied these motions, and directed plaintiffs' attorney to prepare an application for counsel fees.

We have since reconsidered our ruling as to defendant's final motion,³ and have come to the conclusion that her position is sound.

Discussion

In drafting Title III of the Omnibus Safe Streets and Crime Control Act, the Congress was primarily concerned with regulating the electronic surveillance activities of law enforcement officials. See S.Rep. No.1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2153-56; Briggs v. American Air Filter Co., Inc. (5th Cir. 1980) 630 F.2d 414, 418; Anonymous v. Anonymous, supra, 558 F.2d at 677.⁴ But see United States v. Jones (6th Cir. 1976) 542 F.2d 661, 669. The Act nevertheless contemplates imposition of serious penalties against any person found "willfully" to have engaged in conduct violating its provisions — law enforcement personnel and private citizen alike. On the criminal side, violators face imprisonment of up to 5 years and a maximum fine of $10,000 or both; and on the civil side — apart from compensatory damages and attorney's fees — both traditional punitive damages, and the possibility of "liquidated" damages with no apparent relationship to actual harm suffered. Moreover the statute makes no distinction in the quantum of evidence necessary for invocation of those sanctions. Once willfulness is shown everything else follows, no further guidance being provided as to the state of mind appropriate to support imposition of its various criminal and civil sanctions.⁵

In such circumstances, the word "willfully" is usually read to connote intentional violation or reckless disregard of the law. See, e.g., United States v. Murdock (1933) 290 U.S. 389, 394-96, 54 S.Ct. 223, 225-26, 78 L.Ed. 381; Goodman v. Heublein, Inc. (2d Cir. 1981) 645 F.2d 127, 131.

In Murdock, for example, the Supreme Court observed (290 U.S. at 394-95, 54 S.Ct. at 225):

"The word willful often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful, or conduct marked by careless disregard whether or not one has the right so to act." (Citations omitted.)

The Court later made clear that the bad purpose to which it there referred is simply the "voluntary, intentional violation of a known legal duty." United States v. Pomponio (1976) 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12. Accord, United...