U.S. v. Harrell, 91-7373

• Decision Date: 29 January 1993
• Docket Number: No. 91-7373,91-7373
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Leslie HARRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 36

983 F.2d 36

129 A.L.R.Fed. 737

UNITED STATES of America, Plaintiff-Appellee, v. Charles Leslie HARRELL, Defendant-Appellant.

No. 91-7373.

United States Court of Appeals Fifth Circuit.

Jan. 29, 1993.

George L. Lucas, Guy N. Rogers, Jr., Jackson, MS, for defendant-appellant.

Joe Hollomon, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, MS, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before REYNALDO G. GARZA, HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

Appellant, Charles Leslie Harrell, appeals his convictions of modifying and selling descramblers modules for the purpose of decrypting satellite transmissions in violation of 18 U.S.C. § 2512(1)(b) and 47 U.S.C. § 605(e)(4). Upon review, we find both statutes were correctly applied and we therefore AFFIRM.

FACTS

The FBI and the Motion Picture Association of America conducted an investigation involving the illegal modification of Video-Cipher II (VCII) systems used to descramble satellite transmissions. Talley, an undercover agent for the MPA, brought 4 modules to Harrell for modification to illegally intercept satellite programming signals. Harrell was arrested and charged with modifying and selling descramblers on 2 occasions, November 29 and December 6, 1990. He was indicted on 4 counts, counts 1 and 2 for the manufacture and sale of devices for the interception of electronic communication in violation of 18 U.S.C. § 2512(1)(b) and counts 3 and 4 for the manufacture and sale of devices used for the unauthorized decryption of satellite cable programming in violation of 47 U.S.C. § 605(e)(4). Appellant was convicted on all counts and he then filed motions for a judgment of acquittal and for a new trial, which were denied. Harrell was sentenced to 3 years probation on each count to run concurrently and ordered to reside in a halfway house for 4 months. He was also fined $3000 and charged a special assessment of $200.

ANALYSIS

I. Appellant argues that 18 U.S.C. § 2512(1)(b) ¹ does not apply to the interception of satellite transmissions and specifically to modified decryption modules. He states that the statute's phrase "design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications" does not encompass modified decoders. Harrell contends that the modules were only slightly modified and therefore were not primarily designed for surreptitious listening. The modules had been implanted with a chip with the address of a paying customer in order that non-paying usurpers could unscramble encrypted satellite transmissions.

It is obvious from the exceptions adopted by the statute that the descrambling of encrypted messages constitutes piracy. Section 2511(2)(g)(iii)(II) adopts the exception stated in 47 U.S.C. § 605(b)(1), ² formerly § 705 of the Communications Act of 1934. That exception states the interception of unencrypted transmissions is not unlawful. The statute clearly does not exempt the surreptitious interception of encrypted Since it has been determined that the statute applies to the piracy of satellite cable programming, we must now ask if the modified module has become primarily useful for this surreptitious interception. We now join several other circuits who have previously found that the modified VCII modules are primarily designed for electronic eavesdropping proscribed by § 2512(1)(b). The primary purpose of the legal unscrambling of subscribed programs has been permanently changed by the new computer chip which enables unlimited viewing of unpaid signals. We find it unreasonable to believe that an individual, having illegally spent about $300 for the modified chip, will still primarily limit himself to his originally paid programming. These air communication pirates consciously transgress the law because they want to watch specific scrambled programs such as newly released movies or timely sporting events. The modified modules are rendered incapable of any service because the observed tampered seal would subject the users to the risk of being reported to the proper authorities. The modules, also, cannot have their official programming changed because their assigned address computer chips have been replaced. Therefore, the modules cannot be serviced, changed, sold or even given away in fear that the user's piracy be found out. The broken seal has delegated the modules to secrecy, unable to reenter the legal mainstream.

                and scrambled signals.   Section 2512 plainly states the proscription of eavesdropping of electronic communications, such as satellite transmissions
                

We agree with the Eighth Circuit's recent opinion, United States v. Davis, 978 F.2d 415 (8th Cir.1992) (en banc), which overruled their earlier interpretation in United States v. Hux, 940 F.2d 314 (8th Cir.1991). The panel found that the surreptitious interception of satellite transmissions was prohibited by § 2512(1)(b). The court stated in Davis:

Receiving and decrypting or unscrambling a satellite signal, however, takes significant effort and is not an act of inadvertence. Furthermore, the act of encrypting or scrambling a satellite signal evinces the originator's intent to prevent unauthorized persons from viewing the transmission.... Davis [defendant] altered the operation of the VCII devices by making major modifications. He opened the devices, thereby breaking a security seal, removed an epoxy-protected microprocessor chip by melting away the epoxy, added a connector and replaced the removed microprocessor chip with a new one containing modified software.... [A]ny direct examination of a device in order to discover its address or to repair it would have led to the discovery of the illegal modifications. Consequently, individuals possessing these modified devices were required to use them in a most surreptitious manner. Also, "[a] device will not escape the prohibition merely because it may have innocent uses. The crucial test is whether the design of the device renders it primarily useful for surreptitious listening." ... Accordingly, the devices Davis modified violated section 2512(1)(b).

Id. at 419, 420, (quoting S.Rep. No. 1097, 90th Cong.2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2183 (emphasis in original).

The modification renders the modules illegal without any chance that they could become legal again. The design has been forever changed so that the module can conduct surreptitious interception and it follows that the user of such a modified decoder will risk breaking the law only because he primarily wants to use this module to view nonsubscribed programming. Other circuits also share our interpretation. The 9th Circuit recently stated in United States v. Lande, 968 F.2d 907 (9th Cir.1992):

We also agree that the "design" of these modified descramblers renders them "primarily useful for the purpose of ... surreptitious interception." It is difficult to imagine any purpose for these modified descramblers other than the unauthorized interception of satellite television signals.

Id. at 910. The 10th Circuit also found that modified television modules that surreptitiously intercept encrypted messages II. The appellant also argues that § 605(e)(4) ³ is vague and that the statute solely prohibits commercial cable transmissions as opposed to individual television signals as delineated in the definitions, § 605(d)(1). ⁴ We find that the statute specifically proscribes the surreptitious interception of satellite transmissions and it is not vague or ambiguous at all. We reject the argument that the word "cable" signifies only commercial usage and that the statute distinguishes between the direct transmission of satellite signals directly to individuals or its retransmission via a cable operator. The statute prohibits the surreptitious interception of any encrypted satellite signal intended for private use, either directly to the individual or indirectly through a cable operator. The statute's purpose is to proscribe the piracy of programming signals, whether they be for commercial or personal use. The 7th Circuit stated in ON/TV of Chicago v. Julien, 763 F.2d 839 (7th Cir.1985):

                is prohibited by § 2512.  United States v. McNutt, 908 F.2d 561, 565 (10th Cir.) cert. denied, --- U.S. ----, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991).   We distinguish our own circuit's holding in United States v. Schweihs, 569 F.2d 965 (5th Cir.1978) on its facts.   We found that § 2512 did not apply to an amplifier being used during a burglary.   The amplifier had alligator clamps connected to it and was being used to determine which telephone wire was transmitting a silent alarm.   The device was not modified as the module was in the instant case.   The amplifier was found to be the same as any other when the temporary clamps were removed.   The actual instrument had not been modified and therefore retained its

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