United States v. Burroughs

• Decision Date: 02 August 1974
• Docket Number: Crim. No. 73-538.
• Citation: 379 F. Supp. 736
• Parties: UNITED STATES of America v. Larry Emerson BURROUGHS and Harold Eugene Guerry.
• Court: U.S. District Court — District of South Carolina

379 F. Supp. 736

UNITED STATES of America v. Larry Emerson BURROUGHS and Harold Eugene Guerry.

Crim. No. 73-538.

United States District Court, D. South Carolina, Florence Division.

August 2, 1974.

COPYRIGHT MATERIAL OMITTED

Marvin Smith, Asst. U. S. Atty., for the government.

John C. Lindsay, Bennettsville, S.C., Henry Hammer, Columbia, S.C., for defendants.

ORDER ON DEFENDANTS' MOTION FOR JUDGMENT OF ACQUITTAL, AND, OR IN THE ALTERNATIVE, PETITION FOR A NEW TRIAL

HEMPHILL, District Judge.

Defendants are management employees of J. P. Stevens & Co., a large textile corporation with office and plants throughout the Southeast. A finishing plant of the company in Wallace, South Carolina is known as the Delta plant.

Sometime during the month of November, 1972, organizers from the Textile Workers Union of America (T.W.U. A.) attempted to unionize the employees of the Delta plant. During the progress of this effort, the assigned organizers registered at the Wallace Motor Court, across from the target plant.

During the course of the organizing campaign in January, 1973, one of the organizers, Alfred Motley, reported that a "dirty trick" had been committed by the company, by "bugging" his motel room.

Following an investigation by the F. B.I., defendants were charged by the grand jury, on October 17, 1973, with violation of 18 U.S.C. § 2 and § 2511(1)(b)(i).¹ The indictment was dismissed² and the United States Attorney charged defendants by information on December 10, 1973 with violation of 18 U.S.C. § 2511 (1)(a).³ The information charged:

Commencing on or about the 1st day of January 1973, the exact date to the United States Attorney being unknown, and continuing thereafter to and including the 31st day of January 1973, in the District of South Carolina, LARRY EMERSON BURROUGHS and HAROLD EUGENE GUERRY unlawfully, knowingly and wilfully did intercept, endeavor to intercept, and procure other persons to intercept and endeavor to intercept, wire and oral communications made and sent during such period by and between individuals in certain rooms at the Wallace Motel, Wallace, South Carolina, and said defendants did aid, abet and assist one another in the commission of the aforesaid acts, in violation of the provisions of Title 18, United States Code, Section 2511(1)(a), and Section 2.

At the trial held in Greenville, South Carolina, December 10-14, 1973, the United States Attorney attempted to prove that Burroughs, who admitted his presence at the motel during the time in question, endeavored to intercept oral communications made in the organizer's room by converting the telephone into a listening device. As to defendant Guerry, who the government admitted was not present at the motel during the time in question, the government attempted to prove that he solicited or procured others to endeavor to intercept oral communications made in the organizer's room. Defendants' alibi was that Guerry had received an anonymous telephone call informing him that the union would "bug" its own phone and blame the company for an unfair labor practice. Defendants testified that Guerry ordered Burroughs to investigate the accuracy of the "tip" before filing a complaint against the union, with the National Labor Relations Board (N.L.R.B.), for conducting unfair labor practices. This was relied upon to explain Burroughs' presence at the motel.

The jury returned a verdict of guilty against both defendants, giving impetus to this motion for judgment of acquittal and, or in the alternative, for a new trial.

APPLICABLE STATUTES

The federal prohibition against "eavesdropping" is contained in 18 U.S. C. § 2511. Two types of eavesdropping are proscribed. Interception of wire communications, i. e., "wiretapping", is illegal under § 2511(1)(a); interception of oral communications, i. e., "bugging", is illegal under § 2511(1)(a) and (1)(b). Defendants were convicted of bugging under subsection (1)(a), which lists no specific type of bugging activity proscribed. Subsection (1)(b), lists five types of specific buggings proscribed, enumerated (i) through (v).

Defendants accept the constitutionality of the federal eavesdropping statute and argue that the construction that the government puts upon the bugging prohibitions are incorrect as a matter of statutory interpretation.

ISSUES

I. A. IS THE FEDERAL PROHIBITION AGAINST BUGGING IN 18 U.S. C. § 2511(1)(a) LIMITED TO STATE ACTION?

B. IS THE FEDERAL PROHIBITION AGAINST BUGGING IN 18 U.S. C. § 2511(1)(b) LIMITED TO PRIVATE ACTION AFFECTING INTERSTATE COMMERCE?

II. HAS THE GOVERNMENT PROVED ITS CASE THAT DEFENDANTS VIOLATED THE BUGGING PROHIBITION OF 18 U.S.C. § 2511 (1)(a), AS CHARGED?

THE FEDERAL PROHIBITION AGAINST BUGGING IN 18 U.S.C. § 2511(1)(a) COVERS STATE ACTION AND 18 U.S.C. § 2511(1)(b) COVERS PRIVATE ACTION AFFECTING INTERSTATE COMMERCE.

Congress intended to reach both state action and private action in passing the eavesdropping statute, 18 U.S.C. § 2511. This is clear from the Congressional findings which constituted the basis for enacting the Omnibus Crime Control and Safe Streets Act, June 19, 1968, 82 Stat. 212, P.L. 90-351. Title III, § 801(a) (Historical Note following 18 U.S.C. § 2510) stating:

Electronic, mechanical, and other intercepting devices are being used to overhear oral conversations made in private, without the consent of any of the parties to such communications. The contents of these communications and evidence derived therefrom are being used by public and private parties as evidence in court and administrative proceedings, and by persons whose activities affect interstate commerce . . . . (Emphasis added.)

In § 801(b), Congress continues:

In order to protect effectively the privacy of wire and oral communications, to protect the integrity of court and administrative proceedings, and to prevent the obstruction of interstate commerce, it is necessary for Congress to define on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized, to prohibit any unauthorized interception of such communications, and the use of the contents thereof in evidence in courts and administrative proceedings. (Emphasis added.)

In establishing, as it did, its findings concerning the magnitude of the problem of electronic surveillance and the demonstrated effect such activities have on persons whose activities affect interstate commerce, Congress has sought to make the provisions of Title III a broad and comprehensive scheme of federal control over all interception of communication activity.

It is a violation of § 2511(1)(a) to intercept or to endeavor to intercept any wire or oral communication. There is no direct reference to the interstate or intra-state character of the communication.

As to the wiretapping prohibition under § 2511(1)(a), a "wire communication" is defined in § 2510(1). The subsection states:

"Wire communication" means any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications. (Emphasis added.)

Thus, the requisite effect on interstate commerce by wiretapping, either by state action or by private action, is crucial and therefore § 2511(1)(a) is constitutional as a valid exercise of Congressional power under the Commerce Clause. One of the essential elements that the government must prove in a criminal prosecution under § 2511(1)(a) is that a wire communication is used in interstate commerce. This is explicit in the definition of "wire communication" in § 2510(1) and implicit from the legislative history of § 2511(1)(a):

Subparagraph (a) establishes a blanket prohibition against the interception of any wire communication. Since the facilities used to transmit wire communications form part of the interstate or foreign communications network, Congress has plenary power under the commerce clause to prohibit all interception of such communications, whether by wiretapping or otherwise. (Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298 (1939)). 2 U.S.Code Cong. & Adm. News, p. 2180 (90th Cong., 2d Sess. 1968).

As to the bugging prohibition under § 2511(1)(a), an "oral communication" is defined in § 2510(2). The subsection states:

"Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.

The definition is devoid of any indication that the oral communication must be interstate in character. The requisite effect on interstate commerce by bugging is absent and therefore § 2511(1)(a) is constitutional only if the statute is construed to be limited to state action and not private action.

Indeed, this appears to be the effect intended by Congress. The statute is constitutional when construed in accordance with applicable principles of law which enable Congress, in accordance with the Tenth Amendment, to legislate in reference to those powers expressly or impliedly granted to the United States, and those prohibited to the states.

With reference to the blanket prohibition of subsection (1)(a) against the interception of oral communications, Congress recognized that in accordance with the decisions of the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), it has the power under the Fourth and Fourteenth Amendments to prohibit interception of such communications only when applied against those acting under color of state or federal law. Thus, in order to carry out its intent to proscribe the interception...