U.S. v. Wuliger

• Decision Date: 22 December 1992
• Docket Number: No. 92-3061,92-3061
• Citation: 981 F.2d 1497
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William T. WULIGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1497

981 F.2d 1497

61 USLW 2424

UNITED STATES of America, Plaintiff-Appellee, v. William T. WULIGER, Defendant-Appellant.

No. 92-3061.

United States Court of Appeals Sixth Circuit.

Argued Oct. 15, 1992.

Decided Dec. 22, 1992.

Scott J. Glick (argued and briefed), Annette K. Tamblyn, and Daniel S. Schneider, U.S. Dept. of Justice, Crim. Div., DC, for plaintiff-appellee.

William T. Wuliger (argued and briefed), Wuliger, Fadel & Beyer, defendant-appellant pro se.

John S. Pyle (briefed), Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH, for amicus curiae.

Before: KENNEDY and MILBURN, Circuit Judges; and WELLFORD, Senior Circuit Judge.

KENNEDY, Circuit Judge.

Defendant William T. Wuliger appeals the judgment of conviction and sentence for multiple violations of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ("Title III" or the "Act"), 18 U.S.C. §§ 2510-2520. A jury convicted the defendant under section 2511(1)(d) for intentionally using the contents of telephone conversations recorded in violation of section 2511(1)(a) on three separate occasions. The jury acquitted the defendant of a fourth use count under section 2511(1)(d) and of four charges under section 2511(1)(c) involving the intentional disclosure of the contents of wrongfully recorded telephone conversations. Defendant filed a motion to acquit after verdict which was denied. The District Court fined defendant $5,000 and placed him on probation for two years provided that he surrender his license to practice law and serve a thirty-day home detention. Execution of the sentence, other than the fine, was stayed pending disposition of this appeal. For the reasons stated below, we REVERSE the defendant's conviction and REMAND the case to the District Court for a new trial consistent with this opinion.

I.

Defendant, an Ohio attorney, was retained on April 4, 1989 by David Ricupero to represent him in a divorce action commenced by Ricupero's wife, Polly Ricupero, a.k.a. Polly Wilhelm. During a one-week period in mid-March of 1989, Mr. Ricupero intercepted and recorded all telephone calls at the Ricupero's marital home without Mrs. Ricupero's prior knowledge or consent by installing a wiretap device. Conversations between Mrs. Ricupero and her priest, her marriage counselor, her attorney and many of her friends were recorded. Mr. Ricupero was not a party to any of these communications.

These tapes were made in violation of Title III which criminalizes unauthorized unconsensual wiretapping. Section 2511(1)(a) is the basis for liability and provides that "any person who intentionally intercepts [or] endeavors to intercept ... any wire, oral, or electronic communication" shall be fined or imprisoned not more than five years. ¹ Title III also makes any use or disclosure of the contents of a communication obtained in violation of section 2511(1)(a) illegal, 18 U.S.C. § 2511(1)(c)-(d).

Mr. Ricupero gave these tapes to the defendant for use in the divorce proceedings and represented that he had recorded the telephone conversations with his wife's knowledge. When the defendant became aware that the tapes of the conversations were in fact made without the knowledge or consent of Mrs. Ricupero is disputed. The defendant had his secretary transcribe the tapes and had a law clerk prepare written summaries of their contents.

On April 10, 1989, a hearing was held in an Ohio state court on Mrs. Ricupero's charges of domestic violence by Mr. Ricupero. During the defendant's cross-examination of Mrs. Ricupero he used the written summaries of the transcripts in an attempt to impeach her testimony. This was the first time Mrs. Ricupero obtained actual knowledge that her husband had tapped the telephones. Counts 1 and 2 of the indictment charged the defendant with intentionally using and disclosing the contents of a wire communication in violation of Title III at this hearing. The defendant was acquitted of both of these charges.

The defendant was convicted on counts 4, 6 and 8 of the indictment for using the contents of the non-consensual recordings in violation of section 2511(1)(d) on three subsequent occasions. ² The first was the May 24, 1989 deposition of Mrs. Ricupero. The defendant brought several audio tapes and folders filled with the written transcripts to the deposition. The defendant relied on the contents of the tapes to ask Mrs. Ricupero pointed questions about statements she allegedly made or that others made to her in telephone conversations recorded during March 1989. He also played the tapes themselves numerous times. Mrs. Ricupero's attorney, Carl Murway, objected to the use of the tapes and their contents, but allowed the deposition to continue.

The defendant next used the contents of the tapes at the May 26, 1989 deposition of John Wilhelm, the man with whom Mrs. Ricupero was involved at the time and to whom she is now married. Relying on the transcripts, the defendant asked Mr. Wilhelm about a specific conversation he and Mrs. Ricupero allegedly had in March 1989 which had been recorded. Once again Mrs. Ricupero's attorney objected to this use of the tapes.

The third occasion on which the defendant used the contents of the recordings was the July 8, 1989 state court divorce hearing. The defendant used tape derived information to cross-examine Mrs. Ricupero on whether she had hidden marital money from her husband prior to the divorce.

The defendant admits that he intentionally used the contents of the recordings on these three occasions. He argues that his conduct was not criminal under the Act. The defendant alleges several errors in the court below. The defendant contends that the trial court wrongly interpreted section 2511(1)(d) and as a result committed plain error in instructing the jury that it could find guilt without finding that the defendant knew or had reason to know that the recordings were made in violation of the Act. The defendant also finds error in the court's instruction to the jury on the "reason to know" standard. He argues that the court should not have couched it in terms of reasonable foreseeability. In the alternative, he argues that a statute imposing criminal liability based upon a defendant's knowledge or reason to know is constitutional only if construed to require actual knowledge, intent or bad faith. The defendant also assigns as error the court's failure to give other jury instructions. Finally, the defendant alleges that the court committed reversible error by failing to give instructions related to several exceptions to Title III which the court refused to recognize.

II.

A. Knowledge or Reason To Know of the Violation

The standard of review in evaluating a claim of error in a trial court's charge to the jury is whether the charge, when considered as a whole, "fails accurately to reflect the law." United States v. Busacca, 863 F.2d 433, 435 (6th Cir.1988), cert. denied, 490 U.S. 1005, 109 S.Ct. 1640, 104 L.Ed.2d 156 (1989). A trial court's exercise of its discretion in charging the jury will only be reversed if the instructions "taken as a whole" are "misleading" or give an "inadequate understanding of the law." United States v. Buckley, 934 F.2d 84, 87 (6th Cir.1991). When there is no objection to an instruction at trial, a defendant can only obtain relief if he can demonstrate "plain error," Fed.R.Crim.P. 30, 52(b), and if a "miscarriage of justice would otherwise result." United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985). Plain errors are "limited to those harmful ones that are so rank that they should have been apparent to the trial judge without objection, or that strike at the fundamental fairness, honesty, or public reputation of the trial." United States v. Driscoll, 970 F.2d 1472, 1485 (6th Cir.1992) (quoting United States v. Causey, 834 F.2d 1277, 1281 (6th Cir.1987), cert. denied, 486 U.S. 1034, 108 S.Ct. 2019, 100 L.Ed.2d 606 (1988)). Where, in formulating instructions, the "district court engages in statutory construction as a matter of law, ... [the Sixth Circuit] review[s] [the] conclusions de novo." Buckley, 934 F.2d at 87-88 (quoting United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990)).

With these standards in mind, we find that the District Court committed plain error in its instructions to the jury on the government's burden of proof under section 2511(1)(d). This section provides that:

any person who ... intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection [shall be fined or imprisoned].

18 U.S.C. § 2511(1)(d) (emphasis added). After reading this section to the jury, the court charged it to find the defendant guilty of violating section 2511(1)(d) if the government proved the following elements beyond a reasonable doubt:

First, that on or about the date charged in the indictment, in the Northern District of Ohio, defendant William T. Wuliger did intentionally use or endeavor to use the contents of a wire communication.

And, second, that defendant William T. Wuliger knew or had reason to know that the information which was used or endeavored to be used was obtained through the intentional interception of a wire communication.

And, third, that the information used or endeavored to be used was obtained in violation of Title 18, United States Code, Section 2511(1)(a).

Section 2511(1)(a) provides in pertinent part that: "Any person who intentionally intercepts or endeavors to intercept any wire communication shall be guilty of a criminal offense."

The charge required the jury to find only that the defendant knew or had reason to know that the information was derived from a wire interception. It did not require the jury to find that the defendant knew or had reason to know that the interception itself was...