U.S. v. Herring

• Citation: 933 F.2d 932
• Decision Date: 17 June 1991
• Docket Number: No. 90-7280,90-7280
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bennie Dean HERRING, Billy Clyde Herring, Ronald Mills, and Dee Dee Bell, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 932

933 F.2d 932

UNITED STATES of America, Plaintiff-Appellee, v. Bennie Dean HERRING, Billy Clyde Herring, Ronald Mills, and Dee Dee Bell, Defendants-Appellants.

No. 90-7280.

United States Court of Appeals, Eleventh Circuit.

June 17, 1991.

W. Terry Travis, George Beck, Dennis R. Pierson, Montgomery, Ala., for defendants-appellants.

James E. Wilson, U.S. Atty., Charles R. Niven, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before ANDERSON and CLARK, Circuit Judges, and TUTTLE, Senior Circuit Judge.

CLARK, Circuit Judge:

Appellants Bennie Dean Herring, Billy Clyde Herring, Ronald Mills, and Dee Dee Bell were convicted for their complicity in a conspiracy to sell a device (known as a VideoCipherII or VCII) that when modified descrambles satellite pay-television transmissions. Informants and undercover agents of the United States Customs Service entered Tri-State Satellites in Brundidge, Alabama, in December of 1987 and recorded various transactions in which several appellants indicated that they modified the VCII's so that the devices would descramble satellite pay-television signals. The Customs Service raided the store on December 23, 1987, and removed as evidence several VCII's that had been modified. A different informant contacted appellant Dee Dee Bell in June 1988 about purchasing descrambling equipment. As a result of their conversation, the informant traveled to Ariton, Alabama, where he purchased a modified descrambler from Billy Clyde Herring.

Appellants were indicted on October 17, 1989 for conspiracy and for substantive violations of a provision of the federal Wiretap Law, 18 U.S.C. Sec. 2512(1)(b). The jury convicted appellants Bennie Dean Herring Billy Clyde Herring, and Ronald Mills of both conspiracy and substantive counts. Dee Dee Bell was found not guilty on the single substantive count charged to her but was found guilty on the conspiracy count. Bennie Dean Herring was sentenced to six months of home detention, probation for five years, and to pay a fine of $5,000 and a special assessment of $150. Billy Clyde Herring was sentenced to four months of home detention, probation for three years, and to pay a fine of $1,000 and a special assessment of $150. Ronald Mills was sentenced to three months of home detention and probation for three years. Dee Dee Bell was placed on probation for one year.

This case raises a novel question of statutory interpretation in this circuit. The question is whether the appellants were convicted under the correct statute. Only one circuit court to date has held that the Wiretap Law prohibits the conduct for which appellants were convicted. ¹ However, a second statute, 47 U.S.C. Sec. 605, had been held to prohibit the specific acts appellants committed long before appellants were indicted. ² Because we cannot with confidence conclude that the Wiretap Law sanctioned appellants' conduct, we reverse appellants' convictions.

I. SECTION 2512(1)(b) OF THE WIRETAP LAW

Section 2512(1)(b) of the Wiretap Law states:

[A]ny person who intentionally ... manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. ³

The Wiretap Law was completely overhauled in 1986, and we must decide whether the 1986 amendments to the section (highlighted above) made appellants amenable to conviction under its terms.

A. The Pre-1986 Wiretap Law

Prior to its amendment in 1986, it is clear that this statute would not have been applicable to appellants. The legislative history shows that the statute prohibits "a relatively narrow category of devices whose principal use is likely to be for wiretapping or eavesdropping.... To be prohibited, the device would also have to possess attributes that give predominance to the surreptitious character of its use, such as the spike in the case of the spike mike or the disguised shape in the case of the martini olive transmitter...." ⁴

A particularly relevant case is United States v. Schweihs, ⁵ which reversed a conviction under section 2512(1)(b). In Schweihs, the defendant had made an amplifier that apparently assisted him in avoiding detection by the alarm system of the Wells Fargo office he was attempting to burglarize. The court held,

The amplifier here, unlike martini olive transmitters and spike mikes, reveals no design characteristics which suggest surreptitious listening as its primary function. Indeed, on cross-examination both Government witnesses stated that Schweihs' device is basically an ordinary amplifier, that it can be used in conjunction with radios, phonographs, and other audio equipment, and that it is not primarily useful for the purpose of surreptitious interception of oral or wire communications. ⁶

The Schweihs court discussed the legislative history of section 2512(1)(b): "[E]ven though a device is constructed or purchased specifically for use in covert wiretapping or eavesdropping ... it is not proscribed by the statute if its design characteristics do not render it primarily useful for that purpose." ⁷ Schweihs also holds, "This statutory language reflects a careful and studied congressional decision to leave untouched the production, distribution, and possession of electronic equipment designed for regular use in varied nonsurreptitious activities, even though the equipment is capable of being used in a surreptitious manner...." ⁸ Schweihs thus limited the applicability of section 2512(1)(b) to devices whose design showed that they had few if any legal purposes. ⁹ A device that had a significant legitimate use but whose owner used it illegitimately was not prohibited.

The descramblers involved here have no specifically surreptitious characteristics--the problem with them is that their design is identical to descramblers that are legitimate. This identity in design characteristics to company-provided descramblers is what makes appellants' descramblers useful in the first place. Indeed, the government's electronics expert testified that the software built into the descramblers was seventy-five percent identical to that in authorized descrambler units. ¹⁰ There was also evidence showing that the descramblers were necessary to receive satellite transmissions that were scrambled but required no authorization for their use. ¹¹ These "soft scrambled" signals constitute ninety percent of satellite television signals, and it is not illegal to intercept them. ¹² Because the design of the descramblers gives them significant nonsurreptitious and legitimate uses, and therefore the descramblers are not primarily useful for surreptitious listening, there is no possibility that appellants could have been convicted under section 2512(1)(b) prior to 1986.

B. The 1986 Amendments

The next question is whether the 1986 amendments changed the nature of the statute. The amendments simply changed "willfully" to "intentionally" and added the phrase "or electronic" to the section. ¹³ Appellants' actions were intentional and satellite pay-television transmissions are "electronic communications."

Congress stated in the legislative history of the amendments, known as the "Electronic Communications Privacy Act of 1986," that the "bill amends the 1968 law to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies." ¹⁴ The legislative history indicates that Congress intended to broaden the Wiretap Law to take into account new technologies. The legislative history also indicates that Congress fairly clearly intended to protect personal and business "point-to-point" communications transmitted by satellite. It does not discuss the satellite pay-television industry. It does not indicate that Congress intended to broaden the meaning of "surreptitious" to encompass devices that have legitimate uses but whose owners use them illegitimately or to broaden the definition in any other way.

The government argues that section 2512(1)(b) applies to the sale and manufacture of satellite pay-television descramblers because Congress simultaneously excepted private viewing of unencrypted satellite transmissions from the criminal provisions of the Wiretap Law. ¹⁵ However, this exception occurs in section 2511 of the Wiretap Law, which applies only to the acts of intercepting, using, or disclosing wire, oral, or electronic communications and not to the making or selling of listening devices. There is no requirement in section 2511 that the interception be surreptitious. Section 2511 is therefore much broader than section 2512(1)(b), and so it was necessary to establish an exception to its terms. The legislative history makes it clear that in formulating the exception Congress was concerned about home owners of satellite dishes who were inadvertently able to receive personal or business communications on their satellite dishes. ¹⁶

Indeed, the legislative history of the 1986 amendments to the Wiretap Law states, "The private viewing of satellite cable programming, network feeds and certain audio subcarriers will continue to be governed exclusively by [47 U.S.C. Sec. 605] and not by [18 U.S.C. Sec. 2511]." ¹⁷ This statement arguably could indicate either that only private viewing is covered exclusively by section 605, or that private viewing and assisting in private viewing (the conduct involved here) is covered exclusively by section 605. We believe the better interpretation is the latter. From our reading of the legislative history, it seems that Congress simply did not consider that the manufacture and sale of satellite signal descramblers would need to be excepted from the...