finding fault with the district court’s “reasonable foreseeability” instruction instead of a “reason to know” standard, and stating that on retrial, the court should focus on defendant’s reason to know rather than on whether it was generally reasonably foreseeable that the required circumstance would occur
How later courts described this case
- finding fault with the district court’s “reasonable foreseeability” instruction instead of a “reason to know” standard, and stating that on retrial, the court should focus on defendant’s reason to know rather than on whether it was generally reasonably foreseeable that the required circumstance would occur
- finding that “[njothing in the [Ohio Code of Professional Responsibility] authorized the attorney defendant to violate Title III in carrying out his professional duties” in case in which attorney was criminally prosecuted for violation of Title III after using intercepted recordings in divorce proceeding
- explaining that "[a]lthough an attorney must not turn a blind eye to the obvious, he should be able to give his clients the benefit of the doubt”
- directing the district court to examine factors "to be considered with other circumstantial evidence in determining whether 8 Likewise, 18 U.S.C.A. § 2511(1)(c) (West Supp. 1999
Written by the judges who cited it.
The opinion
WELLFORD, Senior Circuit Judge,
concurring.
I am in full agreement with all but part II.A. of Judge Kennedy’s decision in this interesting case. I join in the result reached, but write separately because I wish to emphasize that the issue of plain error in the district court’s instruction to the jury on “knowledge or reason to know of the violation” under 18 U.S.C. § 2511 (l)(d) is a very close question. (Part II.A. of the majority opinion.)
The district judge instructed the jury on this issue, using first the language of the statute which makes it plain that the offender must be shown to have made intentional use of the described communication (in this case, telephone communication) “knowing or having reason to know” that the intercepted information was “in violation of” the law. The jury was thus given necessary information that the wire inter *1510 ception use statute required: (1) an intentional use or attempted use; (2) knowledge or reason to know that the information in question was obtained through intentional interception; and (3) that the interception itself was in violation of the act.
Only the latter requirement was not adequately explained by the district court in one part of its instruction, but in quoting the language of the statute, that necessary element was included. The indictment counts on which defendant was found guilty also tracked this statutory language in that Wuliger did
intentionally use and endeavor to use, the contents of a wire communication, a telephone conversation of Polly Ricupe-ro, knowing and having reason to know that the information was obtained through the interception of a wire communication in violation of Title 18, United States Code, Section 2511 (l)(a); that is, the information was obtained through the intentional interception of a wire communication.
(emphasis added). The indictment counts, with all the necessary statutory requirements, were also read to the jury. The district court adequately advised the jury that the government had to prove all the necessary elements charged in the indictment beyond a reasonable doubt.
The elements as set out by the district court omitted the requirement that dealt with knowledge or reason to know about the interception’s being in violation of law; that is, without the consent or approval of the telephone user, Polly Ricupero. (Wilhelm) ( 18 U.S.C. § 2511 (l)(d)). “Even if an instruction proves impermissible viewed in isolation, the reviewing court upholds the instruction if it takes on a permissible meaning in the context of surrounding instructions.” United States v. Buckley, 934 F.2d 84, 87 (6th Cir.1991) (citing California v. Brown, 479 U.S. 538, 541 , 107 S.Ct. 837, 839 , 93 L.Ed.2d 934 (1987) (holding that it is what a reasonable juror could have understood that is important)).
What makes this case even more difficult is the very nature of the intercepted information itself, including conversations between Mrs. Ricupero and her lawyer, and between her and her lover. It would seem evident to a reasonable person that there was no consensual interception of such conversations. 1 David Ricupero, Wuliger’s client, admitted that he “thought” he told Wuliger’s law office associate or assistant, Doug Leak, that his wife “was not aware that she was being recorded” after delivering the tapes to Wuliger’s office.
At trial, moreover, Wuliger’s counsel took the position at a bench conference that “the tape was made illegally.” Leak said that he relayed to Wuliger “David’s concerns about using the tapes,” and his own “question of whether it was legal to use the tapes.” In sum, his “impression was that Polly didn’t know that she was being recorded” based on the tapes and the transcripts thereof which were furnished to Wuliger. 2
Only by giving defendant the benefit of considerable doubt can I concur with the decision that the instructions, taken as a whole, were fatally defective and deprived defendant of a fair trial.
. Wuliger's law office assistants had this impression.
. Wuliger later disposed of the transcripts.