U.S. v. Burroughs, 74-2018

• Decision Date: 31 October 1977
• Docket Number: No. 74-2018,74-2018
• Citation: 564 F.2d 1111
• Parties: UNITED STATES of America, Appellant, v. Larry Emerson BURROUGHS and Harold Eugene Guerry, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1111

564 F.2d 1111

UNITED STATES of America, Appellant, v. Larry Emerson BURROUGHS and Harold Eugene Guerry, Appellees.

No. 74-2018.

United States Court of Appeals Fourth Circuit.

Argued Nov. 30, 1976.

Decided Oct. 31, 1977.

David J. Kline, Atty., U. S. Dept. of Justice, Washington, D. C. (Mark W. Buyck, Jr., U. S. Atty., and Marvin L. Smith, Asst. U. S. Atty., Columbia, S. C., on brief), for appellant.

John C. Lindsay, Bennettsville, S. C. (Henry Hammer, Columbia, S. C., on brief), for appellees.

Before BOREMAN and FIELD, Senior Circuit Judges, and WIDENER, Circuit Judge.

BOREMAN, Senior Circuit Judge:

Larry Emerson Burroughs and Harold Eugene Guerry, appellees herein, were tried on an information which charged them with violating 18 U.S.C. §§ 2511(1)(a) and 2 by knowingly and willfully intercepting, endeavoring to intercept, and procuring other persons to intercept and endeavor to intercept certain wire and oral communications. ¹ After a jury verdict of guilty, the court, upon motion of the defendants, granted a judgment of acquittal. The district court determined that there was a failure of proof of any state action or any action under color of state or federal law in the attempt to intercept the communications. Although no state action was alleged in the information, and the statute in question does not specifically require such state action, the trial court concluded that such an interpretation was necessary to preserve the constitutionality of the statute. United States v. Burroughs, 379 F.Supp. 736 (D.S.C.1974).

The government filed a notice of appeal from the judgment of acquittal and thereafter the defendants moved that the appeal be dismissed. Concluding that the judgment of acquittal was not properly appealable by the government, we granted defendants' motion and dismissed the appeal. United States v. Burroughs, 510 F.2d 967 (4 Cir. 1975) (Table). Thereafter the government filed a petition for rehearing and, based upon a more recent decision of the Supreme Court in United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), we held that the government could appeal the judgment; we then reinstated the appeal. United States v. Burroughs, 537 F.2d 1156 (4 Cir. 1976). We now turn to the consideration of the merits of the government's appeal.

Burroughs and Guerry were management employees of J. P. Stevens and Company, a corporation with a textile plant in Wallace, South Carolina. In November 1972 union organizers of the Textile Workers Union of America initiated an attempt to unionize the employees of the Wallace plant. During the organizational drive, union organizers registered at a motel across the street from the plant. Sometime during January 1973, Burroughs and Guerry allegedly arranged to have the telephone instrument in the union organizers' room converted into a listening device so that conversations in that room could be overheard in certain other motel rooms by use of the motel's internal telephone system and with the cooperation of the motel telephone switchboard operator. ²

One of the union organizers discovered and reported the "bugging" of the motel room and, after an investigation by the FBI, Burroughs and Guerry were charged in an indictment by a federal grand jury with the violation of 18 U.S.C. § 2511(1)(b)(i) the interception of oral communications through the use of a device used in interstate wire communication. After the original indictment was dismissed the United States filed an information charging the appellees with the violation of 18 U.S.C. § 2511(1)(a) the interception of oral or wire communications. The jury returned a verdict of guilty but the district court granted defendants' subsequent but timely motion for judgment of acquittal on the ground that the government failed to provide the necessary evidence of a federal nexus in the motel "bugging" operation.

The basis of the government's appeal is its challenge to the district court's assertedly erroneous interpretation of the statute. The government contends that: § 2511(1)(a) does not require a showing that the persons charged were acting under color of state or federal law; § 2511(1)(a) does not require proof of an effect on interstate commerce; and the appellees lack standing to challenge the constitutionality of the statute.

The interception of wire communications under § 2511(1)(a) ³ and oral communications under § 2511(1)(b)(i)-(iv) specifically require a showing of an effect upon interstate commerce to establish a violation of the statute. However, the interception of oral communications under § 2511(1)(a) does not specify in statutory language any requirement of a federal nexus to establish a violation of the statute. ⁴ Because of this absence of jurisdictional language in § 2511(1)(a) as it pertains to oral communications, the district court interpreted this portion of the statute as applying only to persons acting under color of state or federal law. The district judge reasoned that if an effect upon interstate commerce was also a basis for establishing an illegal interception of oral communications under § 2511(1)(a), then this subsection would result in some overlapping of the prohibition established by § 2511(1)(b) and subsection (1)(b) would be "redundant and unnecessary legislation." 379 F.Supp. at 741. Because the government failed to show that Burroughs and Guerry were acting under color of state or federal law, the court granted defendants' motion for judgment of acquittal.

The notion that subsection (1)(a) was enacted to dovetail neatly with subsection (1)(b) rests perhaps on a conception of model legislative process; but all statutes are not models of legislative logic or clarity. "While courts should interpret a statute with an eye to the surrounding statutory landscape and an ear for harmonizing potentially discordant provisions, these guiding principles are not substitutes for congressional lawmaking." United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 521, 30 L.Ed.2d 488 (1971). Subsection (1)(a) is clear and unambiguous it prohibits any person from intercepting wire or oral communications. ⁵ This subsection complements subsection (1)(b) by punishing a broader class of behavior. Congress' intent is clearly evidenced in the legislative history of the statute:

Subparagraph (a) (of § 2511) establishes a blanket prohibition against the interception of any wire communication. . . .

The broad prohibition of subparagraph (a) is also applicable to the interception of oral communications. The interception of such communications, however, does not necessarily interfere with the interstate or foreign communications network, and the extent of the constitutional power of Congress to prohibit such interception is less clear than in the case of interception of wire communications. . . . Although the broad prohibitions of subparagraph (a) could, for example, be constitutionally applied to the unlawful interception of oral communications by persons acting under color of State or Federal law, . . . the application of the paragraph to other circumstances could in some cases lead to a constitutional challenge that can be avoided by a clear statutory specification of an alternative constitutional basis for the prohibition.

Therefore, in addition to the broad prohibitions of subparagraph (a), the committee has included subparagraph (b), which relies on accepted jurisdictional bases under the commerce clause and other provisions of the Constitution to prohibit the interception of oral communications.

Taken together, subparagraphs (i) to (v) of subparagraph (b) create an essentially comprehensive ban on the interception of oral communications. The provisions will be applicable to the overwhelming majority of cases involving the unlawful interception of such communications, and it will be unnecessary to rely on the broader prohibition of subparagraph (a). . . . 2 U.S.Code Cong. & Admin.News, pp. 2180-81, 90th Cong., 2d Sess. (1968) (emphasis added, citations omitted).

In our view, this portion of the legislative history indicates that Congress intended subsection (1)(a) to overlap with subsection (1)(b) and that (1)(a) could be applied to persons other than those acting under color of state or federal law who intercepted oral communications. Congress expressed concern for the constitutionality of subsection (1)(a) in "some cases," but it did not limit the subsection's application merely to persons acting under color of state or federal law. Thus the district court's reading of § 2511(1)(a) as it applies to oral communications was overly restrictive. ⁶

Undeniably, subsections (1)(b)(i)-(iv) are based upon the power of Congress to regulate interstate commerce and require a specific showing of an effect upon interstate commerce. But because subsection (1)(a) does not specify any particular basis for jurisdiction, we are of the opinion that proof of any rational basis would be adequate. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). The essential element is that some basis for federal jurisdiction be established at trial.

In granting the judgment of acquittal the district judge held that the government failed to present any specific evidence of a federal nexus or to request during trial that the trial court take judicial notice of facts from which some federal nexus might have been found as fact. ⁷ The government now argues that it is unnecessary to prove a federal nexus in each individual case because once Congress has established a sufficient nexus to legislate, this nexus will be imputed to all violations of the statute. However, Congress has not clearly manifested its intent in this regard. All the other portions of subsections (1)(a) and (1)(b) require a specific showing of federal jurisdiction as an essential element of the offense proscribed by the statute. Only subsection (1)(a) as it applies to the interception of oral communications...