U.S. v. Townsend
| Decision Date | 08 March 1993 |
| Docket Number | D,No. 747,747 |
| Citation | 987 F.2d 927 |
| Parties | UNITED STATES of America, Appellee, v. Dwight G. TOWNSEND, Defendant-Appellant. ocket 92-1399. |
| Court | U.S. Court of Appeals — Second Circuit |
R. Peter Decato, Lebanon, NH (Nighswander, Martin & Mitchell, of counsel), for defendant-appellant.
David V. Kirby, Chief, Crim. Div., D.Vt. (Charles A. Caruso, U.S. Atty., Peter W. Hull, Asst. U.S. Atty., D.Vt., of counsel), for appellee.
Before: KEARSE, WINTER, and ALTIMARI, Circuit Judges.
Defendant-appellant Dwight G. Townsend appeals from a judgment entered after a jury trial in the United States District Court for the District of Vermont (Franklin S. Billings, Jr., Judge.), convicting him of intentionally intercepting the telephone conversations of third parties without their knowledge or consent in violation of 18 U.S.C. § 2511(1)(a) (1988). Townsend was sentenced to a prison term of twelve months to be followed by two years of supervised release.
On appeal, Townsend contends that his conviction should be reversed because the district court erroneously instructed the jury as to the mens rea element of the crime charged. Specifically, Townsend contends that the district court instructed the jury that it could find Townsend guilty if he "knowingly" intercepted the telephone conversations, whereas the statute under which Townsend was prosecuted required the government to prove that he had acted "intentionally." 18 U.S.C. § 2511(1)(a) (1988). Townsend further argues that the district court committed reversible error by excluding evidence which Townsend claims supported his professed motive in taping phone calls made to his office and residence.
For the reasons set forth below, we affirm the judgment of the district court.
In September 1990, Special Agent Charles McGinnis, Jr. of the FBI began an investigation of Townsend's conduct as Sheriff of Orange County in Vermont. The investigation was prompted by a complaint lodged by a former deputy sheriff alleging that Townsend routinely used automatic recording equipment to capture the telephone conversations of his employees.
In an initial interview with Special Agent McGinnis, Townsend denied that he had ever recorded conversations of third parties, and specifically denied recording a telephone conversation between Roseann Sayers and Reevie Rockhill, a present and a past employee respectively. Townsend did, however, admit that he had purchased recording equipment capable of automatically recording calls.
Almost immediately after this initial interview, Townsend's attorney called Special Agent McGinnis in order to schedule another interview for Townsend to explain his answers, conceding that Townsend had not been "completely candid" in the first interview. In the second interview, Townsend admitted that he had "accidentally" taped the specific conversation about which Special Agent McGinnis had previously questioned him. However, Townsend continued to maintain that the equipment was routinely used to record only his own conversations. Townsend explained that he had been getting harassing phone calls at the sheriff's complex, which included his office and official residence, and was trying to capture these conversations on tape.
Townsend was subsequently indicted in May 1991, and his one count indictment charged him with violating 18 U.S.C. § 2511(1)(a) by surreptitiously recording the telephone conversations of third parties without their knowledge or consent. In February 1992, Townsend was tried by a jury before the United States District Court for the District of Vermont (Billings, J.). At trial, the government introduced Special Agent McGinnis's testimony concerning Townsend's initial denial and subsequent admissions. The government also presented the testimony of Townsend's former wife, who recounted that Townsend had purchased the automatic recording equipment and she observed that it was turned on most of the time. Moreover, Townsend's ex-wife testified that Townsend had played for her the specific conversation about which Special Agent McGinnis had questioned Townsend. The topic of this recorded conversation was the antipathy that both Roseann Sayers and Reevie Rockhill felt for Townsend. According to Townsend's ex-wife, one of the reasons Townsend gave for recording this conversation was to "find out who might be in the office that was betraying him [sic]." This recording was also played for one of Townsend's deputies who testified that Townsend explained that this was his way of keeping track of his employees' loyalties. Another of Townsend's former deputies testified that Townsend had played for him a recording of a conversation between the deputy and the deputy's wife. The deputy testified that after playing the recording Townsend told him: "this shows you what I can do."
Townsend testified in his own defense, stating that he had purchased the equipment in order to capture harassing telephone calls he had received. Townsend admitted to recording only one conversation not involving himself--the conversation between Roseann Sayers and Reevie Rockhill about which both his ex-wife and former deputy had previously testified--but, according to Townsend, his recording of this conversation was accidental.
Townsend also sought to introduce testimony about the "bad blood" between himself and the previous sheriff, specifically concerning the condition in which Townsend found the sheriff's complex upon assuming the office. Townsend claims to have found dead rats, weapons missing, and a picture of a pig with the notation "Kill the Pig, Townsend." Townsend attempted to introduce this testimony to support the proposition that he had additional reasons to be concerned about getting harassing phone calls. Through this testimony Townsend hoped to establish that he had a proper motive for employing the recording equipment. The district court excluded this testimony, pursuant to Fed.R.Evid. 403, on the ground that it was tangential to Townsend's motivation for putting in the recording equipment. The district court ruled that Townsend could testify to the harassing phone calls, but not to the unrelated problems with the former sheriff, since there was no evidence of any connection between the two.
Following a two-day trial, the jury convicted Townsend of the one count contained in the indictment. Thereafter, the district court denied Townsend's motion for a new trial, and sentenced Townsend to twelve months imprisonment.
Townsend now appeals.
On appeal, Townsend first contends that the district court erred by failing to provide the jury with the proper definition of "intentionally"--the mens rea element of 18 U.S.C. § 2511(1)(a). Specifically, Townsend argues that the district court improperly employed a model jury charge adapted from the definition of "knowingly," whereas the statute under which he was prosecuted required the government to prove that he had acted "intentionally." 18 U.S.C. § 2511(1)(a).
In order to convict Townsend, the jury had to find that he "intentionally" intercepted the conversations of third parties without their knowledge or consent. 18 U.S.C. § 2511(1)(a). However, there are apparently no model jury instructions that define the word "intentionally" in this context. See, e.g., 1 Leonard B. Sand et al., Modern Federal Jury Instructions (Criminal) § 3A.01; Comm. on Model Criminal Jury Instructions Within the Eighth Cir., Manual Of Model Criminal Jury Instructions for the Dist. Courts Of The Eighth Cir. § 7 (1992); U.S. Sixth Cir. Dist. Judges Ass'n., Pattern Criminal Jury Instructions §§ 2.05-2.09 (1991); United States Fifth Cir. Dist. Judges Ass'n., Pattern Jury Instructions: Criminal Cases §§ 1.35-1.36 (1990). The court, therefore, solicited a proposed charge.
Townsend's counsel proposed that the following charge be given:
In the case before you, the government must prove beyond a reasonable doubt that the defendant's acts were intentional. As used in the Electronic Communications Privacy Act, the term intentional is narrower than the dictionary definition of intentional. Intentional means more than that one voluntarily...
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