Elizabeth Graham Flowers Frankie Dukes v. Tandy Corporation, and William Lee Flowers Martha Floyd Graham, 773 F.2d 585, 4th Cir. (1985)
Elizabeth Graham Flowers Frankie Dukes v. Tandy Corporation, and William Lee Flowers Martha Floyd Graham, 773 F.2d 585, 4th Cir. (1985)
Elizabeth Graham Flowers Frankie Dukes v. Tandy Corporation, and William Lee Flowers Martha Floyd Graham, 773 F.2d 585, 4th Cir. (1985)
2d 585
* The parties stipulated the following facts. On June 25, 1982, Elizabeth
Flowers served a divorce complaint on her husband, William Flowers. The
following day, William Flowers went to a Radio Shack store owned and
operated by Tandy in Florence, South Carolina. He informed the sales clerk
that he was receiving "hang up" calls, that he had a young daughter who was
making long distance calls, his bill was getting out of hand and he wanted to
know who was making the long distance calls. The salesman thereupon
demonstrated the Archer 43-236 telephone recording control, a device which
activated a tape recorder when the telephone receiver was in use and turned the
recorder off when the receiver was replaced in its cradle. William Flowers
returned to the store on June 28, told a second clerk of similar problems with
long distance calls, received a second demonstration, and purchased the 43-236.
William Flowers then wired the 43-236 and a tape recorder to his home
telephone in order to intercept calls by Elizabeth Flowers. He left the recorder
in place for approximately ten days and intercepted several conversations
between Elizabeth Flowers and Frankie Dukes. William Flowers' daughter
eventually discovered the device and informed Elizabeth Flowers. William
Flowers left the home on July 17 and filed a counterclaim in the divorce action
alleging adultery, ostensibly as a result of information gleaned from the illegal
wiretapping.
Elizabeth Flowers and Frankie Dukes brought this action against William
Flowers, Martha Graham, who also used an Archer 43-236 to tap her husband,
Charles Graham's, phone, and Tandy Corporation. The complaint alleged that
the individual defendants had violated 18 U.S.C. Sec. 25111 and that 18 U.S.C.
Sec. 25202 permitted a civil action for damages resulting from the illegal
wiretapping. The complaint further alleged that Tandy had violated 18 U.S.C.
Sec. 2511 by procuring the wiretapping or alternatively by aiding and abetting
Flowers and Graham. The plaintiffs alleged that 18 U.S.C. Sec. 2520 also
permitted recovery of civil damages for Tandy's violation of 18 U.S.C. Sec.
2512.3 The complaint also stated claims sounding in state tort law for invasion
of privacy and infliction of emotional distress.
Before trial, judgment for $75 was entered in favor of Elizabeth Flowers and
Frankie Dukes against William Flowers based upon the latter's confession of
judgment in that amount.
At trial, the court directed a verdict for Tandy on the allegation that it aided and
abetted Ms. Graham. No appeal is taken from that ruling. The court refused to
direct a verdict for Tandy on the claim of aiding and abetting William Flowers.
The court submitted that claim to the jury, instructed that conduct violative of
Sec. 2512 could be a basis for finding Tandy liable under Sec. 2520, and
instructed the jury on the state law tort of invasion of privacy. The jury returned
general verdicts against Tandy in the amounts of $60,000 actual damages for
both plaintiffs and $22,000 punitive damages for Elizabeth Flowers.
7
Tandy then moved for judgment notwithstanding the verdict and, conditionally,
for a new trial. The court denied these motions. Tandy also moved to amend
the judgment; it contended that the consent judgment entered in favor of
appellees against Flowers served to release Tandy because Tandy's liability, if
any, was joint and several. Alternatively, Tandy contended that the damage
formula provided in Sec. 2520 limited its liability to $100 a day. The court
denied the motion, ruling that the confession of judgment was a covenant not to
sue and therefore did not release Tandy. The court made no ruling on the
alternative ground. This appeal followed.
II
8
At the outset we hold that the district court erred in permitting the jury to
consider the criminal statute, 18 U.S.C. Sec. 2512, as a basis for imposing civil
liability. The court instructed the jury in part as follows:
Now, if a defendant does not know, or has no reason to know, that a device is
primarily useful for the purpose of surreptitious interception of wire or oral
communications, then that defendant has not violated the statute.
10
The term "primarily useful" means use which is first in rank or importance,
chief, principal, basic or fundamental.
11
12
Now, the question of whether a device, such as the one involved in this lawsuit,
is primarily useful for surreptitious interception, is a question for you, the jury,
to decide, based upon all of the facts as developed by the evidence in this case.
***
13
14
I charge you that if you find from the preponderance of the evidence, that the
defendant corporation, directly or indirectly, willfully and knowingly took a
hand in the wiretapping by aiding, abetting, assisting or encouraging the other
16
Appellees then argue that such a private cause of action may be implied from
Sec. 2512 under the statutory purpose doctrine. See Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
We disagree.
17
18
also Arvai v. First Federal Savings & Loan Association, 539 F.Supp. 921, 924
(D.S.C.1982), aff'd 698 F.2d 683 (4th Cir.1983). Congressional intent may be
gleaned from the language of the statute, the legislative history, and the
purpose and focus of the statute. See Touche Ross & Co., 442 U.S. at 576-77,
99 S.Ct. at 2489-90.
19
We believe that neither criterion is satisfied in the statute in issue here. Though
any criminal statute is in part enacted for the benefit of the victims of the crime,
see Cort, 422 U.S. at 79-80, 95 S.Ct. at 2088-89, Sec. 2512 appears to have
been designed for benefitting the public as a whole by removing such devices
from the market. Section 2511, which makes criminal the actual practice of
wiretapping, is more properly aimed at protecting the particular victim, and
indeed, Congress recognized that purpose by expressly providing in Sec. 2520 a
private cause of action for victims of acts made criminal in Sec. 2511.
20
III
21
The question remains whether, without drawing upon the provisions of Sec.
2512, the private cause of action expressly provided by Sec. 2520 reaches the
conduct of Tandy as conceded seller of the device here in issue. We hold that it
does not.
22
Section 2520 creates a cause of action against any person who "intercepts,
discloses, or uses, or procures any other person to intercept, disclose or use" a
wire or oral communication in violation of Chapter 119 of Title 18. Tandy,
through its agents, neither intercepted, disclosed, nor used a wire or oral
communication. Neither can the acts of Tandy's agents sensibly be held to
constitute "procuring" another person to violate the statute. "Procure" is
generally understood to mean actively bringing about, causing or instigating
something to be done. See Black's Law Dictionary 1087 (5th ed. 1979), citing
Rose v. Hunter, 155 Cal.App.2d 319, 317 P.2d 1027, 1030. Other courts
considering the issue have held that the procuring language was intended to
reach the principal who enlists the aid of an agent to do the actual interception.
See, e.g., Jacobson v. Rose, 592 F.2d 515 (9th Cir.1978) (law enforcement
officials held liable for unauthorized interception telephone company made at
their request); United States v. Jones, 542 F.2d 661, 670 n. 17 (6th Cir.1976)
("Congress intended to ensnare not only the operative conducting an illegal
surveillance but the spouse who hired him as well."); Kratz v. Kratz, 477
F.Supp. 463, 476 n. 30 (E.D.Pa.1979) (spouse's divorce attorney held liable
when his participation included active counseling to use a wiretap to gain
evidence). We do not believe the mere selling of a recording control device
rises to the level of active participation that is contemplated by Congress' use of
the term "procures." Therefore we cannot affirm the judgment below on the
procuring theory advanced by plaintiffs.
23
Appellees' final contention is that Tandy may be held liable under Sec. 2520 as
an aider and abettor of a violation of Sec. 2511, a theory accepted by the district
court and expressly submitted to the jury. Assuming without deciding that Sec.
2520 permits recovery on such an "aiding and abetting" theory transposed from
the doctrine of criminal law, we hold that the evidence here was insufficient to
submit that theory to the jury.
24
In the criminal context, a defendant may be found guilty of aiding and abetting
only if he has "knowingly associated himself with and participated in the
criminal venture." United States v. Winstead, 708 F.2d 925, 927 (4th Cir.1983).
Association may be established by showing that the defendant shared in the
principal's criminal intent. Id., citing United States v. Beck, 615 F.2d 441, 449
(7th Cir.1980). Evidence that the defendant "merely brought about the
arrangement that made the criminal acts of the principals possible does not
alone support a conclusion that the defendant was aware of the criminal nature
of the acts." Id.
25
Still within the criminal context, whether a seller of goods that are not
themselves illegal to one who intends to use them illegally shares the buyer's
illegal intent has long been a close question in the law. See R. Perkins, Criminal
Law 663-66 (1969). Resolution of the question has turned to a great degree on
the innocuousness of the sale and the extent to which the buyer has revealed the
particular use to which he plans to put the goods. See Backun v. United States,
112 F.2d 635 (4th Cir.1940), and cases cited therein. In the case at bar, the
evidence simply falls short of establishing sufficient knowledge of the criminal
intent to hold Tandy liable as an aider and abettor, assuming that the concept
can be transposed from the criminal context to extend civil liability under Sec.
2520 past "principals."
26
The evidence taken in the light most favorable to the plaintiffs established that
Flowers indicated to Tandy's agents that he intended to record calls on his own
phone. The sales representatives may have inferred that Flowers would not be a
party to those calls, but that fact does not appear to have been explicitly stated
to the sales people. Even had Flowers so indicated, the question remains
whether he had expressed a criminal intention since the statute makes criminal
willful interception without the consent of any party to the conversation. See 18
U.S.C. Sec. 2511. Flowers' stated intended use of the recording control device
would be within the law if other users of his telephone consented to the use of
the recorder.
27
Simply put, this case is not the case of an arms merchant knowingly selling a
weapon to a buyer who has stated to the merchant an intention to use the
weapon to kill someone. See Backun, 112 F.2d at 637. The evidence fails to
show that Tandy's agents had any knowledge of Flowers' intended use of the
device--to willfully intercept his wife's phone calls in an attempt to obtain
evidence against her in a divorce action. Tandy undeniably brought about the
arrangement whereby Flowers was able to carry out his illegal scheme, but that
evidence is insufficient to establish that Tandy knowingly associated itself with
Flowers' illegal act. See Winstead, 708 F.2d at 927. Therefore, we hold that the
district court erred in submitting the case to the jury on an aiding and abetting
theory.
IV
28
Though the federal claims were erroneously submitted to the jury, there
remains the question whether the general verdict against Tandy may
nevertheless be affirmed on the basis of the state law claim for invasion of
privacy, which was submitted as an alternative basis for recovery.
29
On this point, appellees assert that the verdict may be so upheld, relying on
what they assert to be a "two-issue" rule of South Carolina's law under which
general verdicts may stand if legally and factually supported by either of
alternatively submitted theories. For this proposition, they cite to Todd v. South
Carolina Farm Bureau Mutual Insurance Co., 283 S.C. 155, 321 S.E.2d 602
(S.C.App.1984).
30
Tandy does not challenge on appeal the propriety of the state claim's
submission but contends that the general verdict cannot stand if the federal
claims were erroneously submitted.4 We agree with Tandy. Without regard to
what state law may provide in such circumstances, a question we do not decide,
federal procedural law controls on this point. Our rule is that because of the
impossibility of knowing but what the jury's verdict rested on the legally
erroneous theory, such a general verdict may not stand as the basis for
judgment. See Gill v. Rollins Protective Services Co., 722 F.2d 55, 59 (4th
Cir.1983), citing United New York and New Jersey Sandy Hook Pilots
Association v. Halecki, 358 U.S. 613, 619, 79 S.Ct. 517, 520, 3 L.Ed.2d 541
(1959); see also Jones v. Miles, 656 F.2d 103 (5th Cir.1981).
31
32
Because the state claim is only before the court under its pendent jurisdiction,
dismissal without prejudice is a possible disposition now that the federal claims
have been denied on the merits. But that is a matter for district court discretion
and we express no opinion on it. See Fisher v. Washington Metropolitan Area
Transit Authority, 690 F.2d 1133, 1143-44 (4th Cir.1982); Rheaume v. Texas
Department of Public Safety, 666 F.2d 925, 931-32 (5th Cir.1982)