Rodgers v. Wood
| Decision Date | 16 August 1990 |
| Docket Number | No. 89-3059,89-3059 |
| Citation | 910 F.2d 444 |
| Parties | Darrell RODGERS and Peter Simet, Plaintiffs-Appellees, v. James C. WOOD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Randall D. Crocker, Anna M. Pepelnjak, Lichtsinn, Haensel, Bastian, Erchul & Crocker, John H. Lindquist, Von Briesen & Purtell, Milwaukee, Wis., for plaintiffs-appellees.
James C. Wood, Milwaukee, Wis., pro se.
Before WOOD, Jr., and RIPPLE, Circuit Judges, CRABB, Chief District Judge. 1
Appellees Rodgers and Simet brought this action under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2520, contending that appellant Wood's disclosure of an unauthorized tape of their telephone conversation with a television news reporter violated the Act. The United States District Court for the Eastern District of Wisconsin granted a motion for summary judgment in favor of appellees and awarded statutory damages in the amount of $20,000. Appellant brings this appeal from the grant of summary judgment, the imposition of damages, and the denial of his motion for reconsideration. We affirm.
Appellees Darrell Rodgers and Peter Simet are police officers with the Milwaukee County Police Department. On September 11, 1985, they were executing a search warrant at the home of one Robert LeVine. During the course of the search, they used a telephone in LeVine's barn to make calls to trace the model and serial numbers on some merchandise found during the search, and, in addition, to call a television news person, Allan May, who directs a program called "Crime Line Anonymous."
Unbeknownst to appellees, LeVine had an unauthorized recording device on the telephone in his barn and had recorded all of their calls, including the call to Allan May. From the conversation with May, it was apparent that appellees had contacted him previously and revealed the fact that they would be searching LeVine's residence for stolen goods. It is a violation of Wisconsin law to disclose the issuance of a search warrant prior to its execution. 2
LeVine had placed the recorder on the line to ascertain who, if anyone, had been using his phones without his permission. LeVine gave tapes of the recorded calls to one of his attorneys, appellant Wood, who represented LeVine in a Waukesha County criminal action stemming from appellees' seizure of materials from LeVine's residence.
During the course of Wood's representation of LeVine, Wood disclosed the contents of the police officers' taped telephone conversation with Allan May on at least four occasions:
1. On an unknown date in 1987 to Allan May;
2. On July 16, 1987, to Waukesha County Assistant District Attorney Peg Tarrant, who prosecuted the case against LeVine;
3. On an unknown date in 1987 to certain representatives of the Milwaukee Police Department, in their capacity with the Internal Affairs Division; and
4. On July 17, 1987, to Waukesha County Circuit Judge Roger P. Murphy in a document filed for consideration in the sentencing of LeVine for the charges stemming from the execution of the search warrant.
Neither of the appellees gave Wood permission to disclose the contents of the tapes.
Ultimately, LeVine was sentenced to a term of imprisonment of four years for receiving stolen property in violation of Wis.Stat. Sec. 943.34.
On January 21, 1988, appellees filed a suit in the United States District Court for the Eastern District of Wisconsin, contending that Wood's disclosures of the unauthorized tape of their telephone conversation with Allan May violated the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Sec. 2511(1)(c), which prohibits intentional disclosure of the contents of a wire communication that was obtained in violation of the Act. 18 U.S.C. Sec. 2520 creates a private cause of action for anyone whose wire communications are disclosed in violation of the Act.
In opposing the motion for summary judgment, Wood stipulated to the facts that the wire communication was unauthorized under the Act and that it was disclosed without permission. He argued that his disclosures were protected by common law privileges attaching to persons reporting criminal activity and by an attorney-client privilege. The district court rejected the application of these common law defenses and granted plaintiffs' motion for summary judgment. In a subsequent order, the court imposed statutory damages of $20,000 pursuant to 18 U.S.C. Sec. 2520(c)(2)(B).
Wood moved for reconsideration of the court's decision to grant summary judgment to the plaintiffs, raising several statutory defenses. He averred that he had failed to raise the defenses previously because his "attention was focused on his equitable defense of 'privilege' which substantially distracted him from the painstaking scrutiny of facts ... as well as the interplay of 18 U.S.C. Sec. 2510, 2511, and 2520." The court denied defendant's motion for reconsideration, ruling that defendant had not shown excusable neglect for failing to raise the statutory defenses earlier and that defendant's arguments were "mainly specious, and involve inaccurate readings of the relevant statutes [and] incorrect readings of the law." Rodgers v. Wood, No. 88-C-0069, slip op. at 5 (E.D.Wis. Sep. 6, 1989).
Wood urges this court to recognize exceptions to the Omnibus Crime Control Act based on two common law privileges. The first is a state law privilege that operates as a defense against libel or slander. In Bergman v. Hupy, 64 Wis.2d 747, 221 N.W.2d 898 (1974), the Wisconsin supreme court held that there is an absolute privilege against civil suit for statements made to a district attorney in the course of the investigation of a crime and a conditional privilege for statements made without malice to police officers in the course of the investigation of criminal activity. The purpose of the privileges is to promote the interest of justice in apprehending and convicting criminals. Id. at 751, 221 N.W.2d at 901.
Appellant Wood cites Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), in support of his argument that we should recognize as defenses to suit under the Omnibus Crime Control Act the common law privileges protecting statements made to law enforcement agents. In Simpson, the Court of Appeals for the Fifth Circuit held that the Omnibus Crime Control Act did not provide a remedy for a husband's interception of his estranged wife's telephone conversations with third parties. The court reasoned that the language of the Act is not sufficiently definite to give notice that such action is illegal and its legislative history "focus[es] on crime control ... [and] contains no clear indication that Congress intended to intrude into the marital relation within the marital home." Id. at 807.
Although Simpson can be interpreted to read a common law marital privilege into the Omnibus Crime Control Act, the reasons for recognizing a marital privilege provide no support for recognizing a similar exception for the common law privileges protecting statements made to law enforcement agents in furtherance of criminal investigations. The very nature of the Act is to impose limitations on the effectiveness of law enforcement agents in the interests of protecting the privacy of citizens. For example, the Act provides that the contents of unauthorized recordings or evidence derived from them may not be entered into evidence in any trial. 18 U.S.C. Sec. 2515. The Act represents Congress's careful balancing between the interests of the enforcement of criminal laws and the assurance of privacy in oral and wire communications. To recognize a common law privilege as Wood suggests would upset that balance.
Second, appellant requests us to recognize an exception based on the attorney-client privilege. This request amounts to an argument that because a client gives an attorney some information in confidence, the attorney has the right to disclose that information to anyone. Merely to state the argument is to disclose its lack of merit.
Therefore, we affirm the district court's refusal to recognize these common law privileges as defenses in a civil suit under the Omnibus Crime Control Act.
The civil damages provision for the Omnibus Crime Control Act provides that
any person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.
18 U.S.C. Sec. 2520(a). "Appropriate relief" is defined as including damages under subsection (c), which is entitled "Computation of Damages" and provides two rules for computing damages. One rule applies only to private viewing of a private satellite video communication that is not scrambled or encrypted. The other rule, applies to "any other action under this section" and states The court may assess as damages whichever is the greater of--
(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
18 U.S.C. Sec. 2520(c)(2).
Appellant argues that this damages section should be read to give the district court discretion either to impose the greater of actual or statutory damages or to impose no damages at all, if the case so warrants. The district court rejected this argument. Although the court noted that the statute provided appellees with a "windfall" resulting from their illegal activity in contacting television reporter Allan May, it believed it had no choice but to impose statutory damages of $20,000.
The word "may" in 18 U.S.C. Sec. 2520(c)(2) is ambiguous. It is unclear whether it is intended to...
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