U.S. v. Gardner

• Decision Date: 26 October 1988
• Docket Number: No. 87-2170,87-2170
• Citation: 860 F.2d 1391
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard A. GARDNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1391

860 F.2d 1391

UNITED STATES of America, Plaintiff-Appellee, v. Richard A. GARDNER, Defendant-Appellant.

No. 87-2170.

United States Court of Appeals Seventh Circuit.

Argued May 18, 1988.

Decided Oct. 26, 1988.

Michael F. McMorrow, Milwaukee, Wis., for defendant-appellant.

James L. Santelle, Asst. U.S. Atty., Patricia J. Gorence, U.S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before WOOD, Jr., and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This is a direct criminal appeal of the defendant's two-count conviction for violating 47 U.S.C. Sec. 553 ¹ by willfully and knowingly assisting in the unauthorized interception and reception of cable service. A jury convicted the defendant-appellant, Richard A. Gardner, for selling seven cable converter boxes, which are capable of receiving unauthorized cable service, to an informant for the Federal Bureau of Investigation ("FBI"). We affirm the conviction.

I

In the indictment, Gardner was charged with two separate incidents of selling cable converter boxes ("black boxes") to G. William Perrin. In the late summer of 1985, Perrin noticed Gardner's advertisement for the black boxes on a computer bulletin board service in Milwaukee, Wisconsin. In his advertisement, Gardner claimed that the black boxes enabled users to intercept premium cable television programming after paying only the minimum monthly subscription rate. After reading the ad, Perrin contacted the executives at the Warner Cable Company, which supplied the cable television service to the area, the Milwaukee Police Department and the FBI to determine the legality of the black boxes.

In cooperation with the FBI, Perrin initiated contact with Gardner to purchase some of the black boxes. The FBI, with the consent of Perrin, recorded the series of telephone and computer board service communications between Perrin and Gardner. On October 7, 1985, Perrin used money provided by the FBI to purchase two black boxes with corresponding remote control units from Gardner. The purchase totaled $450. At the time of this first transaction, Gardner showed Perrin the manner in which the boxes intercepted the premium cable programming. Gardner also gave Perrin a "Notice of Warning," which limited the liability of Gardner's company for illegal use. On December 15, 1985, Perrin purchased another five boxes from Gardner for $1000, and later ceded these boxes to law enforcement officers.

On December 18, 1985, three days after the last purchase by Perrin, federal agents conducted a search of Gardner's residence pursuant to a search warrant. During the search, the agents discovered fifty pieces of highly technical recording and playback equipment. They also found sixteen additional black boxes in various states of repair, and an account book with at least twenty receipts which showed payments made to unidentified purchasers.

During the Government's case-in-chief, the prosecution provided evidence that Gardner had sold the black boxes to other purchasers. The Government introduced testimony by three other individuals who had purchased Gardner's boxes. Phillip A. LaPorte testified that he had a retail agreement with Gardner, whereby he purchased the boxes and resold them for a profit. Patrick G. Babler and Robert A. Bruss also testified that they purchased one box each from Gardner. The prosecution presented evidence that Gardner sold a total of twenty-three black boxes in the late summer and early fall of 1985.

In the indictment against him, Gardner was charged with two counts of violating 47 U.S.C. Sec. 553 for selling the cable converter boxes to Perrin on October 7 and December 15, 1985. The indictment charges Gardner with willfully and knowingly assisting in the unlawful interception and reception of cable services for his personal, pecuniary gain by modifying and distributing for sale equipment that he intended to be used for unauthorized reception of cable services. The jury found Gardner guilty on both counts. The federal magistrate who tried the case by consent of the parties, sentenced Gardner to forty-five days under a work-release program on Count I. The imposition of sentence on Count II was suspended, and Gardner was placed on two-years probation to follow the work-release program. Gardner was also directed to pay $450 in restitution, and a special $50 fine to the United States Attorney's Office.

On appeal, Gardner challenges his conviction on five grounds. First, Gardner contends that 47 U.S.C. Sec. 553 is unconstitutionally overbroad and vague. Second, he contends that the indictment is fatally defective because the Government withheld from the indicting grand jury exculpatory evidence which allegedly negates his guilt. Third, he claims that the Government failed to establish the requisite "specific intent," and that the trial court failed to instruct the jury that "specific intent" must be found. Fourth, Gardner alleges that the Government failed to establish, and the trial court failed to instruct, that the sole and specific purpose of Gardner's black box was the unlawful interception of cable programming, and that Perrin actually used the boxes. Finally, Gardner claims that the trial court abused its discretion by considering a prior conviction which had been set aside under the Federal Youth Corrections Act.

II

Gardner challenges 47 U.S.C. Sec. 553 as unconstitutionally unclear, overbroad and vague. He argues that because the black boxes have both legal and illegal applications, Sec. 553 provides inadequate notice that sales of such boxes are illegal. We reject such a contention.

Statutes are adjudged to be vague if they provide insufficient notice to potential offenders and no guidance for enforcement. See Levas & Levas v. Village of Antioch, 684 F.2d 446, 452 (7th Cir.1982). However, this court has determined that "[t]he practical effect of the vagueness doctrine is not to make statutes readable by the laity but to limit the discretion of police and prosecutors." Waldron v. McAtee, 723 F.2d 1348, 1354 (7th Cir.1983).

The statute before us does not offend any of the concerns underscored by the vagueness doctrine. It unambiguously prohibits any person from intercepting, receiving, or assisting in the interception or reception of cable service, unless authorized by a cable operator or by law. 47 U.S.C. Sec. 553(a)(1). Furthermore, the statute specifically defines the term "assist," see id. Sec. 553(a)(2), for which Gardner was indicted and convicted.

Although the black boxes may have both legal and illegal applications, this factor does not make the statute vague. In defining the term "assist," the statute clearly states that it includes "the manufacture or distribution of equipment intended by the manufacturer or distributor" for unlawful reception of cable service. Id. (emphasis added). This prohibited activity is precisely that for which Gardner was convicted. Moreover, the intent requirement mitigates any vagueness concern. See Record Head Corp. v. Sachen, 682 F.2d 672, 674 (7th Cir.1982). Gardner could not have been convicted if he sold the black boxes with the intent that they would be used for lawful purposes. The statute both puts potential defendants on notice that selling cable converter boxes with the intent that they would be used unlawfully is illegal and gives guidance to law enforcement as to what conduct is proscribed. Thus, we reject Gardner's contention that Sec. 553 is vague and too broad.

III

Gardner challenges the indictment, contending that he suffered undue prejudice because the Government failed to present certain exculpatory evidence to the grand jury. Gardner argues that the Government should have informed the jury that he admitted to potential purchasers that the application of Sec. 553 to the sale was uncertain, and that he had given Perrin a "Notice of Warning," which transferred the responsibility for illegal use of the black box to the purchaser.

The grand jury determines whether probable cause exists that a crime has been committed, and it protects citizens against unfounded criminal prosecutions. See United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974); Branzburg v. Hayes, 408 U.S. 665, 686-87, 92 S.Ct. 2646, 2658-59, 33 L.Ed.2d 626 (1972). To pursue this function, the grand jury has traditionally been accorded wide latitude in considering the evidence presented before it. See Calandra, 414 U.S. at 343, 94 S.Ct. at 617. A grand jury proceeding, however, "is not an adversary hearing in which the guilt or innocence of the accused is adjudicated." Id., 94 S.Ct. at 618. Thus, the Government is not required to submit exculpatory evidence to a grand jury. United States v. Wilson, 798 F.2d 509, 517 (1st Cir.1986); United States v. Hawkins, 765 F.2d 1482, 1488 (11th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 886, 88 L.Ed.2d 921 (1986); United States v. McClintock, 748 F.2d 1278, 1285 n. 3 (9th Cir.1984), cert. denied, 474 U.S. 822, 106 S.Ct. 75, 88 L.Ed.2d 61 (1985).

Moreover, while Gardner asserts that the "Notice of Warning" and other evidence that allegedly limited his liability for the purchasers' illegal use of the "black boxes" served to negate his guilt, the trial court concluded that this evidence merely served as an affirmative defense. Decision and Order at 2 (May 6, 1987) (pertaining to Gardner's pre-trial motions). As the magistrate concluded, the "Notice of Warning" and other relevant evidence were pertinent to Gardner's willfulness. The evidence does not negate Gardner's alleged guilt. This situation is not analogous to Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), in which the Government presented false evidence to the grand jury. Instead, this is a situation in which the Government simply refused to present all of the appellant's available defenses. In such a context, we conclude that the indictment was not defective. In our...