Heggy v. Heggy

• Decision Date: 02 October 1991
• Docket Number: No. 90-6122,90-6122
• Citation: 944 F.2d 1537
• Parties: Catherine A. HEGGY, Plaintiff-Appellee, v. T.L. HEGGY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1537

944 F.2d 1537

60 USLW 2242

Catherine A. HEGGY, Plaintiff-Appellee, v. T.L. HEGGY, Defendant-Appellant.

No. 90-6122.

United States Court of Appeals, Tenth Circuit.

Oct. 2, 1991.

Stephen Jones (Carol Hambrick, with him on the briefs), of Jones & Hambrick, Enid, Okl., for defendant-appellant.

John C. McMurry (Gomer Smith, with him on the briefs), Oklahoma City, Okl., for plaintiff-appellee.

Before McKAY, Chief Judge, HOLLOWAY, Circuit Judge, and WINDER, District Judge. ^*

WINDER, District Judge.

Defendant-appellant Tom Heggy appeals from the final judgment of the district court in favor of plaintiff-appellee Catherine A. Heggy and against appellant for violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. §§ 2510-2521. Appellant's central argument is that the district court erred in ruling that Title III applies to interspousal wiretapping within the marital home. Additionally, appellant contends the district court erred in instructing the jury and in excluding certain evidence. We hold that Title III does apply to interspousal wiretapping within the marital home. ¹ We also find that the district court's instructions and evidentiary rulings were not in error. We therefore affirm the judgment of the district court and remand this case for a determination of attorney's fees and costs on appeal.

I. Background

During the last three years of his marriage to Catherine, Tom repeatedly told her he wanted a divorce. About six months before that divorce was granted, Tom placed a recording device on an extension telephone located in a barn adjacent to the marital home. At the time he installed the wiretap, Tom and Catherine were living together as husband and wife. Also at that time, Tom was Director of the Oklahoma Bureau of Narcotics and Dangerous Drugs.

There was no court order authorizing Tom to place a wiretap on the marital phone. Tom did not inform Catherine of the wiretap nor did Catherine consent to it. Tom instructed the Bureau of Narcotics agent who installed the tap at his direction not to disclose its existence to any Bureau co-workers or to members of the Heggy household. The agent reminded Tom that the consent of one of the parties was necessary to record a telephone call.

For nearly three months, Tom used the wiretap to record Catherine's telephone conversations. He played at least one of those conversations for his secretary. Tom then catalogued the recorded interceptions and labeled them by date and content of conversation.

Following their divorce in 1987, Catherine brought this action against Tom under the civil damages provision of Title III, 18 U.S.C. § 2520, seeking both compensatory and punitive damages. Tom filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on grounds that Title III does not apply to a spouse's placement of a recording device on a phone within the marital home. The district court denied the motion. 699 F.Supp. 1514.

At trial, Tom claimed he installed the wiretap because he had been receiving death threats by telephone and wanted to record them. The jury rejected this explanation and returned a verdict in Catherine's favor for $75,000 in compensatory damages and $140,000 in punitive damages. The district court entered judgment on the verdict.

II. Discussion

A. Applicability of Title III to Interspousal Wiretaps

Appellant contends Title III does not apply to interspousal wiretaps ² and thus the trial court erred in denying his motions to dismiss and for directed verdict. The district court's construction of a federal statute is a question of law that we review de novo. In re Thompson, 894 F.2d 1227, 1228 (10th Cir.1990). De novo review means we make an independent determination of the issues. United States v. Irvin, 906 F.2d 1424, 1426 (10th Cir.1990).

Whether Title III provides a remedy for interspousal wiretapping within the marital home is a question that has divided the federal courts of appeal. ³ The Fourth, Sixth and Eighth Circuits have held that such wiretapping is actionable under Title III. See Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984); United States v. Jones, 542 F.2d 661, 673 (6th Cir.1976). The Second and Fifth Circuits have held that Title III does not apply to interspousal wiretaps. See Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977); Simpson v. Simpson, 490 F.2d 803, 810 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974).

After reviewing these authorities, and others, the district court below held that Title III, specifically 18 U.S.C. § 2520 thereof, does apply to interspousal wiretaps. See Heggy v. Heggy, 699 F.Supp. 1514, 1517 (W.D.Okla.1988). We agree with the district court, and join the majority of federal circuit courts in holding that Title III does provide a remedy for such wiretapping. We believe this conclusion is compelled first and foremost by the clear and unambiguous language of the statute.

At the time Tom placed the wiretap on the phone, Title III provided in relevant part:

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

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; ...

(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication ...

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

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

shall be fined not more than $10,000 or imprisoned not more than five (5) years, or both.

18 U.S.C. § 2511(1) (emphasis added). ⁴

A civil cause of action for violation of § 2511 is provided by 18 U.S.C. § 2520 which, at the time the wiretapping in this case began, provided in 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 a day 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.

18 U.S.C. § 2520 (emphasis added). ⁵

As would seem clear from the emphasized language, Tom's wiretapping of the household phone is proscribed, and Catherine's recovery is allowed, because § 2511(1) prohibits the interception, use or disclosure of wire communications by any person except as specifically provided in the statute. And, furthermore, § 2520 provides a cause of action to any person who is the victim of a § 2511 violation. The statute defines "person" as "any individual," 18 U.S.C. § 2510(6), thus including Tom and Catherine. Finally, appellant makes no claim that any of the specific exceptions provided in 18 U.S.C. § 2511(2) are applicable.

Because the reach of the statute appears clear on its face, resort to legislative history would seem unnecessary. Appellant, however, urges the court to adopt the view in Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), where the Fifth Circuit carved out an exception for interspousal wiretapping because it could find no specific indication in the legislative history that Congress intended the statute to reach that far. The Simpson court reached this conclusion despite the frank recognition that the "naked language" of Title III covered interspousal wiretapping. Simpson, 490 F.2d at 805. ⁶

The Simpson court's approach to statutory construction has been criticized by courts and commentators. See, e.g., Kempf v. Kempf, 868 F.2d 970, 972-73 (8th Cir.1989); Kratz v. Kratz, 477 F.Supp. 463, 468-69 (E.D.Penn.1979); Comment, Wiretapping and the Modern Marriage: Does Title III Provide a Federal Remedy for Victims of Interspousal Electronic Surveillance? 91 Dick.L.Rev. 855, 872, 876 (1987) (hereinafter "Wiretapping and Modern Marriage ").

We reject not only the Simpson court's method of statutory analysis but also its interpretation of the legislative history. ⁷ Instead, we agree with the district court that the legislative history of Title III evinces a congressional awareness of the widespread use of electronic eavesdropping in domestic relations cases and an intent to prohibit such eavesdropping. See Remarks of Sen. Long, Hearings on Invasions of Privacy Before the Subcomm. on Admin. Practice and Procedure of the Sen. Comm. on the Judiciary, 89th Cong. 1st Sess., part 5 at 2261 (1965-66) ("The three large areas of snooping in this [non-governmental] field are (1) industrial (2) divorce cases, and (3) politics. So far, we have heard no real justification for continuance of snooping in these areas.").

Professor Robert Blakey, generally credited as the architect of Title III, testified that "private bugging in this country can be divided into two broad categories, commercial espionage and marital litigation." Hearings on the Right to Privacy Act of 1967 Before the Subcomm. on Admin. Practice and Procedure of the Sen. Comm. on the Judiciary, 90th Cong., 1st Sess., part 2 at 413 (1967). Senator Hruska, a co-sponsor of the bill, commenting on the scope of the statute, noted that "[a]...