U.S. v. Moriarty

• Decision Date: 07 May 1997
• Docket Number: Criminal Action No. 96-30055-FHF.
• Citation: 962 F.Supp. 217
• Parties: UNITED STATES of America v. James MORIARTY, Defendant.
• Court: U.S. District Court — District of Massachusetts

962 F.Supp. 217

UNITED STATES of America v. James MORIARTY, Defendant.

Criminal Action No. 96-30055-FHF.

United States District Court, D. Massachusetts.

May 7, 1997.

Douglas R. Peterson, East Longmeadow, MA, Mark G. Mastroianni, Springfield, MA, for Defendant.

Kevin O'Regan, U.S. Attorney's Office, Springfield, MA, for U.S.

FREEDMAN, Senior District Judge.

No objections having been filed, the Magistrate Judge's report and recommendations are hereby accepted. The motion to dismiss Count II is allowed. So ordered.

REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTIONS FOR DISMISSAL AND CONSOLIDATION RELEVANT TO COUNT TWO (WIRETAP) AND THREE (VOICEMAIL) (Docket No. 15)

April 3, 1997

NEIMAN, United States Magistrate Judge.

Pursuant to Fed.R.Crim.P. 12(b)(2) and 7(c) and the Double Jeopardy Clause of the Fifth Amendment, Defendant James M. Moriarty ("Defendant") seeks to dismiss Count II of the indictment, which charges him with illegal wiretapping in violation of 18 U.S.C. § 2511(1)(a), and thereby consolidate it with Count III, which charges him with unlawful access to voice mail in violation of 18 U.S.C. § 2701. Defendant's motion has been referred to this Court for a report and recommendation pursuant to Rule 3 of the Rules of United States Magistrates in the United District Court for the District of Massachusetts. See 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, the Court recommends that Defendant's motion be allowed.

DISCUSSION

Defendant argues in the motion that, together, Counts II and III are multiplicitous, that is, they charge him twice with a single offense.¹ In response, the Government asserts that the motion should be denied because the two offenses are distinct.

"An indictment is multiplicitous and in violation of the Fifth Amendment's Double Jeopardy Clause if it charges a single offense in more than one count." United States v. Brandon, 17 F.3d 409, 422 (1st Cir.1994) (citing United States v. Serino, 835 F.2d 924, 930 (1st Cir.1987)). The longstanding test for multiplicity of charges was set down by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932): "[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is that each provision requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182.

Blockburger, however, is often easier to state than apply, a point most recently shown when a splintered majority of the Supreme Court could not agree on how the test should be effectuated. See United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). Nonetheless, the Court understands that it is bound by the Blockburger test even if, as the First Circuit recently acknowledged, it "is mechanistic and often criticized." United States v. Fraza, 106 F.3d 1050, 1054 (1st Cir.1997). What is plain, at least, is that the Blockburger test focuses on the elements required to be proven under the applicable statutes, not on the actual allegations in the indictment. See United States v. Parrilla-Tirado, 22 F.3d 368, 372 (1st Cir.1994). However, although the Blockburger test is primarily a rule of statutory construction, it does not govern if the analysis is overcome by a clear indication of contrary legislative intent. Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1142-43, 67 L.Ed.2d 275 (1981).

Given this framework, the Court has examined the two provisions alleged to have been violated, both of which arise under separate titles of the Electronic Communications Privacy Act of 1986 ("ECPA"). Title I of the ECPA, which spans 18 U.S.C. §§ 2510-2521, proscribes the intentional interception of electronic communications and provides the basis for Count II. Title II, which spans 18 U.S.C. §§ 2701-2711, proscribes intentional access, without authorization, of stored electronic communications and provides the basis for Count III.

More specifically, Count II, the wiretap count, requires the Government to prove that Defendant (i) "intentionally" (ii) "intercep[ted]" (iii) "any wire, oral or electronic communication." 18 U.S.C. § 2511(1)(a). Count III, on the other hand, the unlawful access to voice mail count, requires proof that Defendant (i) "intentionally" (ii) "access[ed] without authorization" (iii) "a facility through which an electronic communication service is provided" and (iv) "thereby obtain[ed], alter[ed], or prevent[ed] authorized access to a wire or electronic communication while it is in electronic storage." 18 U.S.C. § 2701(a)(1).

The crux of Defendant's argument is that the "interception" element of Section 2511(1)(a) (Count II) is identical to "accessing" a facility through which electronic communication service is provided, a required element of Section 2701(a)(1) (Count III). "Both intercepting and accessing, as specifically alleged in the indictment," Defendant asserts, "mean listening to the human voice." (Def.'s Memo. (Docket No. 15) at 5.) Since both counts require proof that electronic communications were involved, Defendant continues, the Government's allegation in Count III — that Defendant actually listened to people's voice mail messages — demonstrates that Count II does not require proof of a different element than Count III. Moreover, Defendant continues, even if Count III otherwise requires proof of a different element than Count II, Blockburger requires that each count require proof of a separate element from the other in order to establish distinct offenses.

In response, the Government acknowledges that its proof, for purposes of both Counts II and III, will show that Defendant actually listened to stored voice mail messages intended for third parties. It emphasizes, however, that the Blockburger test focuses on the elements required under the statute, not on the Government's proof or the factual allegations in the indictment. See Parrilla-Tirado, 22 F.3d at 372. Then, homing in on the two applicable statutory provisions, the Government argues that there are distinct elements in each alleged crime. Foremost, the Government draws a distinction between the elements of "intercept" in Section 2511(a)(1) and "access" in Section 2701. If these elements are in fact different, the Government maintains, the Blockburger test has been met.

Of course, Blockburger cannot be satisfied simply by the use of different — although technically indistinguishable — statutory terms, nor does the Government so argue. Rather, the Government asserts that the terms "intercept" and "access" are in fact technically distinguishable. Section 2511(a)(1), the Government explains, requires that a defendant "actually intercept an electronic communication, that is, the defendant must actually acquire the content of the communication in some fashion." (Gov.'s Resp. (Docket No. 20) at 13 (emphasis added).) In contrast, the Government asserts, Section 2701 only requires "access," which, by implication, does not necessitate the acquisition of the communication. The Government then provides an example: "a person could violate 18 U.S.C. § 2701 by entering the Justice Department's computer system and altering the codes that would allow access to e-mail by authorized users. This would be a violation even though confidential e-mail messages were never intercepted. Such conduct would not violate 18 U.S.C. § 2511(1)(a)." (Id. (emphasis added).)

Interestingly enough, by proffering an example, the Government seeks to provide its own definition of "access," since neither Title II nor Title I of the ECPA, on which Title II relies for its definitions (see 18 U.S.C. §§ 2522(d) and 2711), defines the term. Moreover, the Court does not believe that the Government can satisfy Blockburger by applying the statutory elements to hypothetical crimes. Thus, the Government's example does not reflect Count III as charged, namely, that Defendant actually "listened to and thereby obtained the contents of the voice mail boxes while the contents were in electronic storage." While the Government is certainly free to pose its hypothetical, the Court itself has looked to the applicable statutory terms, as clarified by legislative history.

The ECPA not only added the provisions of Title II in 1986, utilizing the term "access" in Section 2701 for the first time, but simultaneously redefined "intercept." "Intercept" is now defined in Title I as the "acquisition," whether by aural or other means, of the "contents of any wire, electronic, or oral communication." 18 U.S.C. § 2510(4). Like "access," the term "acquisition" is left undefined.

Prior to the passage of the ECPA, "intercept" encompassed only the "aural acquisition" of wire or oral communications. While "aural" was nowhere defined in the statute, it was, and is, commonly accepted to mean acquisition through the sense of hearing. See United States v. Seidlitz, 589 F.2d 152, 157 (4th Cir.1978).² Accordingly, "intercept" originally applied to sound producing communications. As amended by the ECPA, "intercept" was redefined as including both "aural" and "other acquisition" of any wire, electronic or oral communication. The reference to "other acquisition" made clear "that it is illegal to intercept the nonvoice portion of a wire communication," e.g., the "digitized portion of a voice communication." Steve Jackson Games, 36 F.3d at 462 (citing legislative history).

This is not to say that "access" is always equivalent to "intercept." There is a temporal aspect to the definitions. Thus, it is apparent that "intercept" requires the contemporaneous acquisition of the information, whereas "access" could apply to both contemporaneous and stored transmissions. As one commentator has noted, "[b]ased on the common definition of `intercept,' meaning to `interrupt the progress of,' the acquisition of a wire, oral, or electronic...