holding that similarly disjunctive jury instructions were compatible with an indivisible offense
How later courts described this case
- holding that similarly disjunctive jury instructions were compatible with an indivisible offense
- holding that similar language in the Wiretap Act [on which the “in furtherance of’ enhancement in § 1030 was based] applies only when the elevating ci'ime is “other than” the Wiretap Act violation
- finding that a violation of FCC regulations could not be used at trial as evidence of tortious or criminal purpose
- under the federal wiretap statute, a person may reasonably expect that an oral communication is not being intercepted through the use of electronic devices even though the person does not have an expectation of complete privacy
Written by the judges who cited it.
The opinion
WELLFORD, Circuit Judge,
concurring:
I concur in Judge Brown’s well written opinion, but would also add for the benefit of the trial court, upon remand, the following guidelines as to application of 18 U.S.C. § 2511 (2)(d) from the ease authorities cited in the opinion:
(1) By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956, 959 (7th Cir.1982):
*340 A desire to make an accurate record of a conversation to which you are a party is a lawful purpose under the statute even if you want to use the recording in evidence.
(2) Moore v. Telfon Communications Corp., 589 F.2d 959, 965-66 (9th Cir.1978) (footnotes omitted):
Congress did not define the meaning of “injurious act.” While we acknowledge that the term embraces acts not easily classified as either “criminal” or “tor-tious,” we cannot believe that Congress intended it to be read to embrace every act which disadvantages the other party to this communication. Such a reading would nullify the exemption created by § 2511(2)(a)(d). Presumably there is some disadvantage in having any conversation intercepted in the absence of consent of all parties. Congress, we believe, intended to permit one party to record conversation with another when the recorder is acting “out of a legitimate desire to protect himself.”
(3) United States v. Phillips, 540 F.2d 319, 325 (8th Cir.), cert. denied, 429 U.S. 1000 , 97 S.Ct. 530 , 50 L.Ed.2d 611 (1976) (quoting 114 Cong.Rec. 14694 (May 28, 1978):
“The provision would not, however, prohibit any such activity [intercepting a wire or oral communication] when the party records information of criminal activity by the other party with the purpose of taking such information to the police as evidence.”