Petition for Writ of Certiorari — Wuliger v. United States

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SUPREME COURT OF THE UNITED STATES... _ -

October Term, 1993

WILLIAM T. WULIGER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FoR A WRIT OF CER?ORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

WILLIAM T. WULIGER

Pro se Petitioner

1340 Sumner Court

Cleveland, Ohio 44115

(216) 781-7777

—

QUESTIONS PRESENTED FOR REVIEW

1. In order to avoid an inevitable chilling effect on the bar, the

judiciary and litigants’ rights to zealous advocacy and the effective

assistance of counsel, must 18 U.S.C. § 2511(1)d) be construed as

providing an attomey a qualified immunity from criminal

prosecution where that attomey’s use of information derived from

a wire interception is limited solely to a good faith exploration of

issues in formal judicial proceedings for purposes of creating a

record upon which the trial court may subsequently determine the

issue of the admissibility of such information and is further based

on the attomey’s good faith belief that such information has been

lawfully obtained or is lawfully admissible?

2. Does it constitute a crime for an attomey to use the contents

of a wire interception for purposes of impeaching an opposing

party upon Cruss-examination during the course of formal legal

proceedings?

3. Following an agreement between counsel allowing the

limited use of the contents of a wire interception for purposes of

discovery and an anticipated pre-trial ruling on the issue of

admissibility, and following a party’s waiver of the right to contest

the admissibility thereof, does an attomey’s use of such information

constitute a crime, absent a motion to suppress or for a protective

order by the other party?

4. Does it constitute a crime for an attorney to use the contents

of a wire communication of litigant-wife which was intercepted by

client-husband by placing an interception device on an extension

line in the marital home while the parties were residing together as

husband and wife?

5. Is an attomey entitled to a complete good faith defense

under the provisions of 18 U.S.C. §§ 2515, 1518(10) and

2520(d)1), where he uses the contents of an unlawful wire

interception in good faith conformity with his State-created

professional ethical obligations to his client, where the subject of

the interception both expressly consented to such use and

affirmatively waived the right to contest such use, where the

attomey’s use is consistent with precedent of courts of the State

where such use occurs and is consistent with precedent set forth by

federal courts in Circuits other than the one in which his State is

situated?

6. Must 18 U.S.C. § 2510, et seq., be construed in such a way

as to avoid an unconstitutional intrusion by Congress and the

federal executive branch upon matters constitutionally reserved to

the States and upon fundamental rights which are essential to the

iii

separation of powers, the independence of the judiciary and the Bar

and the viability of the adversary system?

7. Without violating fundamental aspects of due process of law,

Can an attomey be subject to criminal prosecution and deprived of

defenses thereto on the basis of newly created law announced by

the reviewing court and where the newly announced judicial

interpretation is contrary to the law which was existing in other

jurisdictions at the time of the charged offense?

8 Pr rrrrrr rrr errr ee ee eee 2

STATEMENT OF THE CASE AND THE FACTS ...........- 3

REASONS FOR GRANTING THIS WRIT .............-.-- 18

L CERTIORARI SHOULD BE GRANTED SO

THAT THIS COURT CAN DECIDE THE

IMPORTANT FEDERAL QUESTION OF

WHETHER, IN ORDER TO AVOID AN

INEVITABLE CHILLING EFFECT ON THE

BAR, THE JUDICIARY AND CLIENTS’

RIGHTS TO ZEALOUS ADVOCACY, TITLE

m OF THE OMNIBUS CRIME CONTROL

AND SAFE STREETS ACT OF 1968 (18 U.S.C.

§§ 2510, ET SEQ.) MUST BE CONSTRUED

AS PROVIDING A NARROWLY DEFINED

CRIMINAL IMMUNITY FOR THOSE

INDIVIDUALS WITHIN THE ADVERSARY

SYSTEM WHO UTILIZE THE CONTENTS

OF WIRE INTERCEPTS BASED UPON THE

REASONABLE, GOOD FAITH POSITION

THAT SUCH INFORMATION HAS BEEN

LAWFULLY OBTAINED OR IS LAWFULLY

[\) || | |) See 18

IL THE SIXTH CIRCUIT’S RULING IS IN

CONFLICT WITH DECISIONS OF THE

FIRST, FIFTH, SEVENTH AND NINTH

CIRCUITS IN REFUSING TO RECOGNIZE

THAT IT IS LAWFUL TO USE THE

CONTENTS OF EVEN AN UNLAWFUL

WIRE INTERCEPTION FOR PURPOSES OF

IMPEACHING AN OPPOSING PARTY

DURING THE COURSE OF FORMAL

LEGAL PROCEEDINGS. .................

THE SIXTH CIRCUIT’S RULING IS IN

CONFLICT WITH DECISIONS OF THE

SECOND, FOURTH, EIGHTH, NINTH AND

DISTRICT OF COLUMBIA CIRCUITS IN

REFUSING TO RECOGNIZE THAT IT IS

NOT UNLAWFUL FOR AN ATTORNEY TO

USE THE CONTENTS OF EVEN AN

UNLAWFUL WIRE INTERCEPTION

DURING LEGAL PROCEEDINGS AFTER

THE VICTIM OF THE INTERCEPTION HAS

EXPRESSLY CONSENTED TO SUCH USE

AND/OR HAS UNCONTROVERTEDLY

WAIVED HER RIGHT TO CONTEST THE

ADMISSIBILITY THEREOF...............

- THE SIXTH CIRCUIT’S RULING IS IN

CONFLICT WITH DECISIONS OF THE

SECOND, FIFTH AND ELEVENTH

CIRCUITS IN REFUSING TO RECOGNIZE

THAT IT DOES NOT CONSTITUTE A

CRIME FOR A PERSON TO INTERCEPT

CALLS OF HIS SPOUSE BY PLACING AN

INTERCEPTION DEVICE ON AN

EXTENSION LINE IN THE MARITAL HOME

WHILE THE PARTIES WERE RESIDING

TOGETHER AS HUSBAND AND WIFE. ......

THE SIXTH CIRCUIT’S RULING

MISINTERPRETED THE PROVISIONS OF 18

U.S.C. §§ 2515, 2518(10)(aA) AND 2520(D\(1), TO

THE EFFECT THAT AN ATTORNEY WHO

PRESENTS UNCONTROVERTED EVIDENCE

OF HIS GOOD FAITH IS ENTITLED TO A

JUDGMENT OF ACQUITTAL ON CHARGES

BROUGHT PURSUANT TO 18 USS.C. §

y i i) SPPrrerrrrereereerrirere Cree 46

VL. THE SIXTH CIRCUIT’S INTERPRETATION

AND APPLICATION OF 18 U.S.C. § 2511(1)(D)

COMPRISED AN UNCONSTITUTIONAL

INTRUSION UPON MATTERS

CONSTITUTIONALLY RESERVED TO THE

STATES AND UPON FUNDAMENTAL

RIGHTS WHICH ARE ESSENTIAL TO THE

INDEPENDENCE OF THE JUDICIARY AND

THE BAR AND THE VIABILITY OF THE

ADVERSARY SYSTEM. .................- $2

Vil. THE SIXTH CIRCUIT’S RULING, IN

RETROACTIVELY APPLYING NOVEL

INTERPRETATIONS OF TITLE Ill, WHICH

ARE INCONSISTENT WITH OR CONTRARY

TO BOTH STATE AND FEDERAL LAW

EXISTING AT THE TIME OF THE

OFFENSES CHARGED, CONSTITUTES A

DENIAL OF DUE PROCESS OF LAW. ....... 59

COMERMIEN cciccccuscedepsseneceodtantasanees 63

Appendix

Opinion of the United States Court of Appeals For The

Sixth Circuit, of December 22, 1992 .............. A-1

Decision of the Sixth Circiut, of August 11, 1993

denying Respondent's Petition For Rehearing ...... A-28

Judgment of the United States District Court For The

Northem District of Ohio, Eastern Division,

OF SAEED TE, FOO ccc ccc csceccssccsscevss A-30

18 U.S.C. § ZSTICINE) .. cc ccc ccc ccc cecccce A-39

18 U.S.C. § ZSRICANE) .. ce ccc cece cree cceee A-39

Viii

TABLE OF AUTHORITIES

Cases

Page

Anonymous v. Anonymous, 558 F.2d 677 (2nd Cir., 1977) . 44

Baumrind v. Ewing, 276 S.C. 350, 279 S.E.2d 359 (1981) .. 44

Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E. 2d 910

Sea es BUD wacccccceccsccecs 33, 45, 50

Bietz v. Economou, 438 U.S. 478 (1978) .............. 27

California v. Otto, 2 Cal. 4th 1088, 831

P.2d 1178, cert. denied

a ae a 36

Cooper v. Cooper, unreported, C.A. Cuyahoga County,

Case Nos. 49605 & 50022 (1/23/86) ......... 30, 50

DeVargas v. Mason & Hanger - Siles Mason Co., Inc.,

844 F.2d 714 (10th Cir., 1988)................ 29

Dixon v. Georgia Indigent Legal Services, Inc., 388 F. Supp.

Cf PPT eee T ere Te ree ee 57

Epps v. St. Mary’s Hospital of Athens, Inc., 802 F.2d 412

SII oy bl 6 a ho oe Wao ao A Oo 45

Farroni v. Farroni, 862 F.2d 109 (6th Cir., 1988) ..... 45, 58

FERC v. Mississippi, 456 U.S. 742 (1982) ............. 56

Fluherty v. Fluherty, unreported, C.A. Summit Cty.,

Ge Se CED ce cacsbasioceaccsse 61

Fultz v. Gilliam, 942 F.2d 396 (6th Cir., 1991) .......... 45

Page

Garcia v. San Antonio Metro. Transit Auth.,

Ck ar 56

Gorin v. United States, 312 U.S. 19 See 46, 47

Heggy v. Heggy, 944 F.2d 1537 (10th Cir., 1991),

cert. denied 112 S. Ct. 1514 (1992) ............ 46

In Re Watts, 190 U.S. 1 (1903) .................. 24, 25

Jacks v. Duckworth, 486 F.Supp. 1366 (D. Ind., 1980) .... 32

Jones v. Preiut & Mandlin, 808 F.2d 1435 (11th Cir, 1987) . 27

Kempf v. Kempf, 868 F.2d 970 (8th Cir., 1989) ......... 45

Liparota v. United States, 471 U.S. 419, (1985) ......... 55

Lizza v. Lizza, 693 F. Supp. 529 (E.D.N.Y., 1986) ....... a4

Maness v. Meyers, 419 U.S. 449 (1975) ............ 24, 25

McQuade v. Michael Gassner Mechanical & Electrical

Contractors, Inc., 587 F. Supp. 1183 (D. Conn.,

CATES eae ros ah ae 40, 41, 51

Mitchell v. Forsyth, 472 U.S. 511 (1985) .............. 28

Moity v. Louisiana State Bar Ass'n, 414 F. Supp. 180

I en a's ak spas asc cs a a coh ae ae 57

Mullaney v. Wilbur, 421 U.S. 684 (1975).............. 46

National League of Cities v. Usery, 426 U.S. 833 (1976) ... 56

Newcomb v. Ingle, 944 F.2d 1534 (10th Cir., 1991),

cert. denied 112 S.Ct 903 (1992) .............. 46

Patterson v. New York, 432 U.S. 197 (1977) ........... 46

Perfit v. Perfit, 693 F. Supp. 851 (D. Cal, 1988) ........ 44

Petric v. State, 66 Md. App. 470, 504 A.2d 1168 (1986) ... 47

Philadelphia Resistance v. Mitchell, 58 F.R.D. 139, 147

GEN BU SEE 6 bb oc ceca cbee tee eaapne aps ae

Pritchard v. Pritchard, 732 F.2d 372 (4th Cir., 1984) ...... 45

Rice v. Rice, 951 F.2d 942 (8th Cir. 1991) ............. 29

Scheib v. Grant, 814 F. Supp. 736

ne SS Se is 6 as od ke ok oe 26, 58

Silverman v. Browning, 414 F. Supp. 80 (D. Conn., 1976) .. 57

Simpson v. Simpson, 490 F.2d 803 (Sth Cir., 1974) . . 23, 44, 50

State v. Otto, 226 Cal. App. 3d 163, 27

8 | errr rrrrerrre rT Terr 6

Thompson v. Delaney, 970 F.2d 744

RS id ada a nie beta. One wa anes 54

United States v. Bragan, 499 F.2d 1376

SP CEE SeobeskeatsseeaK enna 38, 39, 41

United States v. Caron, 474 F.2d 506 (Sth Cir., 1973) ..... 32

United States v. Eschavarria-Olarte, 904 F.2d 1391

ig SUMED cb beeen eesacesnevisorseces 32

United States v. Johnson, 539 F.2d 181 (D.C. Cir, 1976)... 42

United States v. Jones, 542 F.2d 661 (6th Cir., 1976) .. 23, 61

United States v. King, 528 F.2d 68 (9th Cir. 1975) ....... 40

Page

United States v. Liddy, 354 F. Supp. 217 (D.D.C.),

wg oy oe fT). s ) ee 38

United States v. Scavo, 593 F.2d 837 (8th Cir., 1979) ..... 42

United States v. Sisca, 503 F.2d 1337 (2nd Cir., 1974),

gs Bk A are 42

United States v. Vest, 813 F.2d 477 (1st Cir., 1987) ...... 32

United States v. Winter, 663 F.2d 1120 (Ist Cir., 1981) .... 32

Walder v. United States, 347 U.S. 62 (1954) ........ 33, 36

Zweibon v. Mitchell, 606 F.2d 1172 (D.C. Cir., 1979) ..... 28

Statutes

Rs Sede >. | errr re eee yee ee ee ee 38

Oy CRs PR UREIEEE 0 ech c cic e seb tecescéwese eres 4

Oe Gets PE EEID 9 bocca ek desc eeae wee seneseus 4

Se Chas B OED bcos a wcscaas 32, 38, 40, 41, 43, 48, 51, 55

pe oe @ rr eer 32, 41-43, 48, 51, 55

SU Cs EU onc ce hee ceaes see raeansees 40, 50, 51

pk | ot | Sr oar a eee ra 2 a 11, 43

Ohio Revised Code, Section 2323.51 .............+.4.. 53

xii

Page

Miscellaneous

1968 U.S. Code Cong. & Admin. News, at 2184-85

(90th Cong. 2d Sess., 1968) S.Rep. No. 1097 ..... 33

Code of Professional Responsibility EC 7-3, 7-4 and 7-5 ... 25

Ohio Code of Professional Responsibility, EC 7-2 ........ 53

Ohio Code of Professional Responsibility, EC 7-3........ 53

Ohio Code of Professional Responsibility, EC 74 ........ 53

Ohio Code of Professional Responsibility, EC 7-19 ....... 53

Ohio Rules of Civil Procedure 26(C) ................. 42

Ohio Rules of Civil Procedure 30(D) ................. 42

Rule 11 of the Federal Rules of Civil Procedure ......... 53

Rule 11 of the Ohio Rules of Civil Procedure ........... 53

Tenth Amendment to the Constitution of the United States .. 55

NO.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

WILLIAM T. WULIGER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

To The Honorable Chief Justice and Associate Justices of

The Supreme Court Of The United States:

Petitioner, William T. Wuliger, respectfully prays that a

writ of certiorari issue to review the December 22, 1992 judgment

of the United States Court of Appeals for the Sixth Circuit, which

judgment became final when said cour rejected Respondent's

Petition for Rehearing on August 11, 1993.

OriNions BELOW

The Decemebr 22, 1992 decision of the United States Coun

of Appeals for the Sixth Circuit is contained in the Appendix

hereto, beginning at page Al and is published in 981 F.2d 1497.

The Sixth Circuit’s August 11, 1993 muling, which denied

Respondent's Petition For Rehearing, is unpublished and is

contained herein beginning on page A28. The January 13, 1992

judgment of the United States District Court for the Northen

District Court for the Northem District of Ohio, Eastern Division

is unpublished and is contained herein beginning on page A30.

JURISDICTIONAL STATEMENT

The judgment sought to be reviewed is the Sixth Circuit's decision

of December 22, 1992. Respondent's Petition for Rehearing was

denied by the Sixth Circuit on August 11, 1993. The case was

Originally tried in the United States District Coun for the Northem

Distria of Ohio, Eastem Division upon an indictment under 18

U.S.C. §§ 2511(1X(c) and 2511(1)d), and the trial coun had

jurisdiction under 18 U.S.C. §3231. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

ution of the United States, Tenth Amendment

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.

United States Code

Contained in the Appendix hereto are the provisions of 18

U.S.C. §§ 2511(1Xd), 2511(2Xd), 2515, 2518(10XA) and

2520(d)(1).

STATEMENT OF THE CASE AND THE FACTS

This case presents novel and significant issues arising out

of this country’s first and only criminal prosecution of an attomey

solely for using information from a wire interception in the course

of judicial proceedings.’ Attorney William T. Wuliger (hereinafter

referred to as "Wuliger”) was convicted of three counts of such use,

pursuant to 18 U.S.C. § 2511(1)(d), which rendered it illegal to

intentionally use "...the contents of any wire...communication,

knowing or having reason to know that the information was

obtained through the interception of a wire...communication in

violation of this chapter."* Although the Sixth Circuit ultimately

'See Wall Street Journal article, attached hereto as page A-

42.

*Wuliger’s alleged use of such information consisted of his

cross-examination of a litigant and her paramour in four judicial

proceedings, consisting of two domestic relations court hearings

and two depositions. The indictment set forth four counts alleging

reversed the conviction and remanded the case for a new tial,

Petitioner seeks relief herein on the basis that no remand should be

necessary because he should have been acquitted of the charged

offenses.

The pertinent evidence presented in this case was largely

uncontested. For instance, it was uncontroverted that Wuliger’s

client, David K. Ricupero placed a recording device on an

extension line in his own home in order to record the telephone

conversations of his wife, Polly Ricupero, while the couple were

living together as husband and wife. Tr. 391-417.

It was also uncontroverted that Wuliger did not take part in

‘these interceptions, did not counsel his client to intercept these

violations of 18 U.S.C. § 2511(1)(c), which prohibits the intentional

disclosure of the contents of a wire communication with knowledge

or reason to know that the communication was intercepted in

violation of the Act. The indictment alleged that the disclosures

occurred during four judicial proceedings: a domestic relations

hearing on April 10, 1989; two depositions on May 24 and May

26, 1989; and a second domestic relations hearing on July 8, 1989.

The indictment also set forth four counts under § 2511(1Xd),

alleging the intentional use of the contents of wire communications

with knowledge or reason to know that the communications were

intercepted in violation of the Act. Each of the above-described

judicial proceedings gave rise to one “disclosure” count and one

virtually identical “use” count. Insofar as other procedural matiers

are significant to this appeal, they are discussed below.

conversations and, in fact, had not even met or been retained by

Ricupero until well after Ricupero had ceased recording his wife's

telephone conversations. Tr. 391, 410, 420, 856.

Wuliger, further admitted that he used information from the

wire interception in depositions and court hearings during the

divorce proceeding in which he represented David Ricupero.

However, Wuliger did not know the circumstances under which the

recordings were made, and, pursuant to his ethical duties to his

Client, was obligated to use the information in representing David

Ricupero. Tr. 316, 423, 619, 855-6, 919. In pertinent detail, the

facts of the case are as follows.

On March 27, 1989, Polly Ricupero’s attorney, Cari

Murway (hereinafter “Murway") wrote to David Ricupero,

demanding, inter alia, that he produce tape recordings of Mrs.

Ricupero’s conversations. Tr. 467-8, 542-4; Gov. Ex. 8 & 9.

Several days later, Polly Ricupero filed her divorce complaint and

immediately obtained an ex parte order removing her husband from

the marital home, based on her uncorroborated allegations of

*Murway later formally requested production of tapes, in his

request for production of documents. Tr. 742-4.

domestic violence. Tr. 468-9.

On April 4, 1989, David Ricupero had his first contact with

Wuliger and retained him to serve as counsel in the divorce case.

Tr. 410-11. During that initial conversation, Ricupero represented

to Wuliger that he ran a snow-plowing business out of the marital

home, that he used an answering machine in connection therewith,

and that he had some telephone tape recordings which he thought

might be important. Tr. 423-4, 853. Ricupero further indicated that

some of the recordings were of his own calls and some of his

wife’s, but that all recordings had been made with his wife's

knowledge.‘ Tr. 423, 853. Wuliger assumed that such recordings

were from that telephone answering machine.’ Tr. 316, 855-6. At

“Despite testifying under a grant of immunity, Ricupero

consistently confirmed at Wuliger’s trial that he had indeed

represemted to Wuliger that these recordings were consensually

acquired. Tr. 423.

‘Although the prosecutor was permitted to argue that there is

no such thing as an answering machine that records outgoing as

well as incoming calls (Tr. 1133) it is a matter of common

knowledge that there are indeed such devices (¢.g., State v. Otto,

226 Cal. App. 3d 163, 27 Cal. Rptr. 596 (1991), in which the

reviewing court held that nonconsensually acquired interspousal

recordings from a voice-activated tape recorder were admissibic)

and the only testimony on this question af trial was thal such

technology is on the market. Tr. 1002.

Wuliger’s direction, his law clerk, Doug Leak (hereinafter “Leak")

had Ricupero bring the tapes into the office, where they were

transcribed by Wuliger’s secretary Laura Davis. Tr. 853.

Thereafter, Leak reviewed these transcripts and prepared written

summaries thereof. Tr. 858. The reason for the summaries was so

that Wuliger could save himself time, and his client money, by not

having to listen to the tapes or read the complete transcript

himself. Tr. 859. Thus, Wuliger never sat down and listened to the

tapes nor did he read the transcripts in full. Id.

Prior to the quickly approaching April 10th hearing* (on

the issue of whether Ricupero would continue to be barred from the

marital home), Wuliger sought unsuccessfully to convince Murway

of the wisdom of getting Ricupero back into the marital home and

settling this case without creating the significant expenses of

contested litigation.’ Tr. 852.

‘Two counts of the indictment dealt with events during the

hearing of April 10, 1989. However, since Wuliger was acquitted

on both of these counts, no extended discussion thereof will be

contained herein.

"Wuliger pursued the possibility of settlement throughout these

proceedings, contacting Murway on April 11, May 9-10, June 6,

June 13 and throughout 1989. Tr. 577-9.

In her divorce complaint, her answer to David Ricupero’s

counterclaim for divorce and her testimony at the hearing of April

10 and her subsequent deposition, Polly Ricupero consisiently

sought to portray herself as a dutiful, loving and long-suffering

wife who was driven from this marriage by a violent and abusive

husband. See generally, Gov. Ex. 1. However, by the time of Polly

Ricupero’s continued deposition of May 24, 1989, Wuliger had

reviewed Leak’s summaries and was aware of contradictory

information. The summaries suggested that, if David Ricupero had

been guilty of marital fault in the past, he had reformed prior to the

commencement of the divorce action; according to Polly Ricupero’s

phone conversations, she was well aware that her husband had

ceased drinking and smoking and had become or was allempting to

become the “perfect” husband and father. Tr. 860. The tapes also

indicated that the source of Polly Ricupero's dissatisfaction with the

marriage was not any wrongdoing on his part, but merely that his

reformation did not coincide with the lifestyle to which she had

grown accustomed, one centered around the bar scene, drug use,

infidelity and “partying.” Tr. 156-8, 412-13. Alas, David had

become a homebody; his efforts to support his family and care for

his children had rendered him, in Polly Ricupero’s estimation,

boring. Tr. 193.

As to the issue of domestic violence which led to David

Ricapess’s ouster from tee maxted heme — and to Polly icusess

decidedly gaining the upper hand in the divorce proceedings --

Leak's summaries reflected conversations in which Polly Ricupero

had earlier discussed how easy it would be to fabricate such

charges. Tr. 966-8.

Leak’s summaries also revealed that Polly Ricupero had

been secreting marital funds in anticipation of a divorce since at

least December of 1988 -- a fact which would be significant to the

issues of temporary alimony, alimony and property division. Tr.

574-5. The following exchange occurred at Polly Ricupero’s May

24th deposition:

Q: Do you have any idea why you would

make a staiement to someone thal you were trying

to hide money prior to Christmas from your

husband? Do you have any idea why you would

make such a statement? Would that be another

example of your humor?

A: No, probably it would be another example

of how I knew J was being taped at my house after

someone told me there probably was a listening

devise (sic) installed in my house. So there were

and listening to them.. Tr. 633, Gov. Ex. 2, pp.

237-8 (Emphasis added).

Earlier in the deposition, Murway objected in carefully

limited language to inquiry based on these recordings, stating that

Mrs. Ricupero had "...no idea when these tapes were made...[and

that she] was apparently unaware at the time this particular

recording was made that she was being recorded.” Gov. Ex. 2, p.

198 (emphasis added). Murway also agreed, in the presence of his

client, that tape-related inquiry could proceed on the condition that

any tapes so used would be produced in discovery and with the

understanding that the divorce court would ultimately rule on

contested issues of discoverability and admissibility. Tr. 622-4;

Gov. Ex. 2, pp. 178-82. At Wuliger’s trial, Murway acknowledged

that this was a binding agreement. Tr. 622-7.

Two days later, on May 26, 1989, Wuliger conducted the

deposition of John Wilhelm and explored the issue of whether

Polly Ricupero was aware that her phone calls were being recorded.

Wuliger also inquired regarding the conversation about hiding

money, which Mrs. Ricupero had previously indicated was “another

example” of her knowledge that she was being recorded. Tr. 633;

Gov. Ex. 3, p. 62-3. Wuliger also questioned Wilhelm as to any

discussions he had with Mrs. Ricupero regarding her knowledge or

belief that David Ricupero had tapped her phone. Tr. 900-01; Gov.

Ex. 3, p. 69. The trial court refused to allow Wuliger to explain

why he engaged in this line of inquiry. Tr. 901.

At David Ricupero’s deposition on June 16, 1989, Wuliger

attempted to resolve the ongoing discovery and admissibility issues

by offering to tum the tapes over to Murway, upon his agreement

that the contents would not be revealed to Mrs. Ricupero until her

deposition could be completed. Murway rejected that offer. Tr.

636-7, 903-7. Wuliger then offered to provide the tapes to the

divorce court for an in camera inspection and admissibility ruling,

but Murway rejected that offer as well. Id.

During the course of the Ricupero divorce litigation,

Murway never sought court intervention, via either federal

injunctive relief under § 2521 or in the divorce court through a

motion to suppress or for a protective order. Tr. 591, 613-14. His

only action involved his June 30, 1989 motion to disqualify

Wuliger, to which he attached his own affidavit and that of Polly

Ricupero. Tr. 613-14; Gov. Ex. 14. The focus of these affidavits

was that the tapes allegedly contained confidential communications

between Murway and his client, although no evidence of that

allegation was ever presented in the divorce litigation or in the case

at bar." Mrs. Ricupero’s affidavit indicated that she had

discovered evidence of a wiretap, an empty recording-device box

from Radio Shack. Gov. Ex. 14. Siguificantly, neither of the

affidavits alleged the date on which Mrs. Ricupero found this

empty box and whether this discovery was before or after the

recordings had been made; nor did either affidavit allege the

recordings were made without Mrs. Ricupero’s knowledge. Id.

After that allegation, Wuliger’s only use of tape-related

evidence occurred at the temporary alimony hearing of July 8,

1989, at which time Wuliger’s use was an inquiry solely limited to

asking Mrs. Ricupero if she recalled her May 24th deposition

testimony where she admitted she knew she was being recorded.

Tr. 912-13; Gov. Ex. 4, pp. 59-62. Murway’s general objection to

this question was overtuled by the hearing referee. Gov. Ex. 4, p.

*Doug Leak testified in general terms that he recalled a portion

of the transcript where Polly Ricupero placed a phone call and a

voice responded "Kelley, McCann & Livingstone", which was

Murway’s law firm. Tr. 737. However, absolutely no evidence

was presented that Mrs. Ricupero’s call was then connected with

Murway or that any confidential or privileged information was

revealed.

59.

On October 5, 1989, the Ricupero divorce court held a

hearing or. the motion to disqualify and, for the first time, Murway

cited the Act and unequivocally alleged that all of the recordings

were non-consensual. Tr. 643, 649, 917. Despite the earlier waiver

of Mrs. Ricupero’s attomey-client privilege’, much of Murway’s

argument at this hearing was that Wuliger should be disqualified

because the tapes purportedly contained privileged information. Id.

Because anes was intentionally concealing the existence of the

ongoing criminal investigation, the fraudulent nature of Murway’s

privilege argument was not revealed to Wuliger or the divorce

court. Tr. 557-63.

On the same date, Wuliger explained to his partner,

William Beyer, the allegations of illegality which had been raised

at the hearing; Beyer then advised Wuliger that if the tapes were

indeed illegally obtained, the divorce court would not allow them

*Unbeknownst to Wuliger, Mrs. Ricupero had waived her

attomey-client privilege in early September, 1989, at which time

she and Murway began supplying information to the Government,

relative to its secret investigation of Wuliger. Tr. 557-63. This

investigation was deliberately concealed from Wuliger until April

of 1990. Tr. 322, 925, 935.

to be used as evidence.”° Tr. 919-20. At approximately the same

time, Wuliger told David Ricupero that he could pick up the tapes

because Wuliger was leaning toward not using them. Tr. 923-4.

Ricupero subsequently picked up the tapes. Thereafter, on October

25, Wuliger wrote to Ricupero explaining that he would not use the

tapes in any manner, regardless of Ricupero’s assurances that they

were legally obtained. Tr. 925-7; Gov. Ex. 15. The letter further

explained that Ricupero could obtain substituted counsel if he

disagreed. Id. Following receipt of that letter, Ricupero phoned

Wuliger, indicating that he understood that Wuliger would not use

the tapes and authorizing Wuliger to proceed on that understanding.

Tr. 927. With the disqualification motion still pending, Wuliger

wanted to be in a position to represent to the divorce court thal

there would be no future use of the tapes and that, in fact, he no

longer had either the tapes or the transcripts thereof; accordingly,

Wuliger threw out the transcripts and the summaries. Tr. 928.

In late October and November of 1989, Wuliger and

‘Reyer testified at trial that he believed that this conversation

occurred shortly after Mrs. Ricupero’s deposition, but that, despite

reviewing his calendar he was unable to specifically recall the time-

frame of that conversation. Tr. 294, 312-20.

Murway engaged in ongoing settlement discussions, which

culminated in an agreement resolving all issues before the divorce

court and containing a provision in which Mrs. Ricupero released

Wuliger and her husband from all potential civil liability from any

source. Tr. 563, 666-7, 929-30.

Nevertheless, after signing the release, Mrs. Ricupero

surreptitiously recorded her conversations with David Ricupero, in

an effort to obtain admissions from him as to his or Wuliger’s

wrongdoing. Tr. 246, 249-52, 335-45, 349-50. The purpose of

these recordings, according to the prosecutor, was so that Polly

Ricupero could convince a local atlomey, Gerald Gold, to represent

her on a contingent fee basis in a civil suit against Wuliger and

David Ricupero. Tr. 250-52."

It now appears that David Ricupero intercepted Polly

Ricupero’s wire communications, during a one-week period in mid-

114g U.S.C. § 2511(2)(d) declares unlawful any surreptitious

recording done for a tortious purpose. Mrs. Ricupero’s purpose in

recording David Ricupero was for the purpose of enabling her to

commit a tort (malicious prosecution) by commencing a civil action

against Wuliger and Mr. Ricupero after she had formally released

both of them from any such civil liability. Despite the fact that this

recording was done for tortious purposes -- in violation of the Act -

- the Government utilized them in its case-in-chief in an effort to

impeach David Ricupero. Tr. 439-44.

March of 1989, by placing a device on an extension line in his own

home, without his wife's prior knowledge or consent. Tr. 417-18.

According to Mrs. Ricupero’s trial testimony, she did not discover

evidence of the tap until June of 1989. Tr. 71. It is equally clear

however, that neither of these facts were known by Wuliger until

well after the last event charged in the indictment. Tr. 619, 919;

Gov. Ex. 14.

Defense counsel presented this case to the trial court on

two theories: That a conviction under § 2511(1)(d) requires proof

that the defendant intentionally used information which he knew or

had reason to know was derived from an unlawful wiretap and that,

therefore, the issue of Wuliger’s good faith was crucial; and that

attomeys and others in court proceedings may make limited use of

even allegedly tainted evidence, providing that such use is done in

good faith, However, in the Government's argument and in the

trial court’s instructions, this case was presented to the jury upon

the erroneous theory that the Govemment had absolutely no burden

of proving Wuliger’s knowledge of the illegal source of the

recordings and that all considerations relating to good faith were

totally irrelevant. Under the trial court’s instructions, the jury was

only permitted to consider the issues which were uncontested at

trial, i.€., that he used information which had, in fact, resulted from

a wiretap. The court’s erroneous instructions amounted to a directed

verdict of guilty. No instruction whatsoever was given on good

faith.

At the conclusion of this trial, the jury retumed a verdict

of guilty as to Counts 4, 6 and 8 of the indictment (relating to the

divorce court proceedings of May 24, May 26 and July 8, 1989),

and not guilty as to the remaining “use” count and all four of the

"disclosure" counts. Wuliger was sentenced to a thirty-day term of

house arrest, a $5,000.00 fine, a statutory assessment of $125.00,

and a two-year probationary term, conditioned upon the immediate

surrender of Wuliger’s license to the practice law. Execution of the

sentence was stayed pending appeal, with the exception of the

provision for the fine, which has since been satisfied by Wuliger.

On appeal to the United States Court of Appeals for the

Sixth Circuit, the reviewing court reversed Wuliger’s conviction

and remanded the case for a new trial on the grounds that the trial

court committed reversible error in its definition and application of

“reason to know” and in failing to instruct the jury on all essential

elements of the charged offenses. The Sixth Circuit further noted

that the trial court’s instructions erroneously deprived Wuliger of

his only defense and were tantamount to a directed verdict of

guilty. Although the Sixth Circuit acknowledged that other

insturctions were prosecutorially skewed, the remainder of

Wuliger’s assignments of error were overruled.

The Government's subsequent petition for a rehearing was

overruled by the appellate court on August 11, 1993. The

Government then moved for an extension of time to file a

suggestion for rehearing en banc, which motion was overruled on

September 30, 1993.

REASONS FOR GRANTING THIS WRIT

I. CERTIORARI SHOULD BE GRANTED SO THAT

THIS COURT CAN DECIDE THE IMPORTANT FEDERAL

QUESTION OF WHETHER, IN ORDER TO AVOID AN

INEVITABLE CHILLING EFFECT ON THE BAR, THE

JUDICIARY AND CLIENTS’ RIGHTS TO ZEALOUS

ADVOCACY, TITLE m OF THE OMNIBUS CRIME

CONTROL AND SAFE STREETS ACT OF 1968 (18 U.S.C. §§

2510, ET SEQ.) MUST BE CONSTRUED AS PROVIDING A

NARROWLY DEFINED CRIMINAL IMMUNITY FOR

THOSE INDIVIDUALS WITHIN THE ADVERSARY

SYSTEM WHO UTILIZE THE CONTENTS OF WIRE

INTERCEPTS BASED UPON THE REASONABLE, GOOD

FAITH POSITION THAT SUCH INFORMATION HAS BEEN

LAWFULLY OBTAINED OR IS LAWFULLY ADMISSIBLE.

Society demands much of those who serve it as its legal

advisors and advocates. It requires that an attorney zealously

champion his client's cause, unencumbered by -- and often contrary

to -- the attomey’s personal opinions, desires or fears. These

requirements are so fraught with complexities and uncertainties that

virtually every state has adopted detailed compilations of principles

governing the practice of law. Attomeys such as Wuliger, who

practice in Ohio's state court system, are governed by the Code of

Professional Responsibility, which in 1989 provided, in pertinent

part, as follows:

EC 7-2

f the law in any given c fien

difficult to ascertain. The language of legislative

enactments and judicial opinions may be uncertain

as applied to varying factual situations. The limits

and specific meaning of apparently relevant law

may be doubtful by changing or developing

constitutional interpretations, inadequately

expressed statutes or judicial opinions, and

changing public and judicial attitudes. Certainty of

law ranges from well-settled rules through areas of

conflicting authority to areas without precedent.

EC 7-3

Where the bounds of the law are uncertain, the

rm he is

Serving as advocate or adviser. A lawyer may

serve simultaneously as both advocate and adviser,

EC 7-4

The advocate may urge any permissible

construction of the law favorable to his client,

without regard to his professional opinion as to the

likelihood that the construction will ultimately

prevail. His conduct is within the bounds of the

law, and therefore permissible, if the position is

Supported by the law or is supportable by a good

faith argument for an extension, modification, or

reve f law....

sss

EC 7-6

Whether the proposed action of a lawyer is within

the bounds of the law may be a perplexing

question when his client is contemplating a course

of conduct having legal consequences that vary

according to the client’s intent, motive, or desires

at the time of the action. Often a lawyer is asked

to assist his client in developing evidence relevant

to the state of mind of the client at a particular

time. He may properly assist the client in the

development and preservation of evidence of

existing motive, intent, or desire; obviously he may

not do anything furthering the creation or

preservation of false evidence. In many cases a

lawyer may not be certain as to the state of mind

of his client, and in this situation he should resolve

reasonable doubts in favor of his client....

EC 7-19

Our legal system provides for the adjudication of

disputes governed by the mules of substantive,

Se and procedural law. An. aivermacy

5, codiiie to taanas of tie Gentiles toes which is is

sa aa a ees 0 avec ae cai

on_and tion of facts and law,

enables the tribunal to come to the hearing with an

open mind and to render impartial judgments...

(Emphasis added).

In the case at bar, Wuliger'’s first contact with Mr. Ricupero

and the recordings of Mrs. Ricupero’s conversations occurred after

Mr. Ricupero had ceased all intercept activities. Polly Ricupero

had already commenced her divorce action and managed to have

her husband judicially removed from the marital home on the basis

of her ex parte allegations of domestic violence. By the time of her

May 24th deposition, she had also filed a motion for temporary

alimony and a response to David Ricupero’s counterclaim for

divorce, denying that she had been guilty of any marital fault. In

her pleadings and testimony, she attempted to portray herself as a

loving and dutiful wife and mother who lived in constant fear of an

abusive, violent husband. Gov. Ex. 1.

The recordings of her telephone conversations, however,

suggested that this portrayal constituted a viral fraud upon the

court. The truth was that she was well aware that David Ricupero

was not the monster that she was claiming. Indeed, he was doing

everything he could to please her and to become the perfect

husband and father. The tapes also reflected that Mrs. Ricupero

was anything but a demure and dutiful housewife and mother.

Rather, she was more interested in the bar scene than her home life

and more interested in satisfying her own promiscuous predilections

than in the needs of her own husband and children. Indeed, while

she was engaged in trysts and adventures away from home, David

Ricupero was baby-sitting the couple's four children. Moreover,

the tapes strongly suggested that the domestic violence charges may

have been fabricated and that she had strategically distanced herself

from the marriage some months earlier, as reflected by her

surreptitious sequestering of marital assets in December of 1988, in

anticipation of the divorce suit. Thus, the veracity of Mrs.

Ricupero’s past representations was doubtful. Her strategy for the

future was relatively clear: In an aftiempt to gain an unfair

advantage in the divorce case, in terms of child custody, alimony

and property division, she would continue to aflempt to perpetrate

a fraud upon the court.

When David Ricupero submitted the tapes to Wuliger, he

represented that the tapes had been made while the couple was still

residing together as husband and wife and that the recordings were

made with his wife's knowledge. Moreover, Wuliger was aware of

at least one federal court decision which held that the Act does not

proscribe an interception by one spouse of the other in the marital

home while the couple resides together." Wuliger was also aware

that Ohio courts were admitting such taped evidence in divorce

trials, whether or not the recordings were made with the consent of

the parties.

Under such circumstances, Wuliger was obligated as an

advocate to pursue these matters in discovery in order to create a

record upon which the divorce coum could determine the

admissibility of the tape recordings.’” The question presented here

is whether such a limited use by an attorney in formal judicial

proceedings can constitute a crime.

'2E g., Simpson v. Simpson, 490 F.2d 803 (Sth Cir., 1974),

cert. denied 419 U.S. 897. Wuliger was not aware at that time of

the Sixth Circuit’s decision in United States v. Jones, 542 F.2d

661 (6th Cir., 1976). However, because the parties in Jones were

no longer residing together at the time of the interceptions, Jones

is distinguishable from the facts of the Ricupero divorce case and

was, therefore, not dispositive of this issue. Accordingly, even if

Wuliger had been familiar with the Jones decision, he would still

have been ethically obliged, as an advocate, to proceed as he did.

‘The wiretap act itself presupposes such a limited use in

judicial proceedings, in that 18 U.S.C. §§ 2515 and 2518 provide

a mechanism for a court ruling on the admissibility or suppression

of wiretap information prior to trial.

Under analogous circumstances, this Court has held that an

atlomey’s conduct in the course of judicial proceedings is to be

evaluated in the context of his essential role within the adversary

System and the importance of that system to the entire process of

administering justice. In reversing an atiomey’s contempt

conviction, which arose from his erroneous advice to a client, this

Court held as follows:

In the ordinary case of advice to clients, if an

attomey acts in good faith and the honest belief

that his advice is well founded and in the just

interests of his client, he cannot be held liable for

error in judgment. The preservation of the

independence of the bar is too vital to the due

administrative of justice to allow the application of

any other rule. In Re Watts, 190 U.S. 1, at 29

(1903).

Similarly, in Maness v. Meyers, 419 U.S. 449 (1975), this

Court reversed a contempt conviction against another attorney, who

had advised his client to disobey a court order. The majority

opinion expressed a concern that an ever-present risk of contempt

sanctions, resulting from an atiorney’s honest, though erroneous,

advice to a client, would cause some advocates to "...lose their zeal

for forthrightness and independence..." which would contravene

their duties as advocates. Id. at 466. The Court further noted that,

if a lawyer may be punished for rendering advice in good faith,

there would be a genuine risk that clients would not receive

essential advice as to their legal rights. Id., at 467. In a separate

concurring opinion, Justices Stewart and Blackmun noted as

follows:

The Court’s opinion and Mr. Justice White's

concurring opinion fully explain the circumstances

that in this case justified Maness’ advice to his

client to refuse to comply with the trial judge's

order to produce the subpoenaed material. Under

these circumstances, Maness did no more than

properly perform the conventional service of a

lawyer. To punish him for performing his

professional duty in good faith would be an

arbitrary interference with his client’s right to the

presence and advice of retained counsel -- and thus

a denial of due process of law. Id., at 472.

In the case at bar, the conduct which gave rise to the

charges against Wuliger was not advice, but actions taken by him

as an advocate. Pursuant to the Code of Professional

Responsibility, the role of an atiommey as an adviser demands

greater circumspection than his role as advocate.’ Thus, the

rationale of the opinions in In Re Watts, supra and Maness v.

Meyers, supra -- which recognized the dangers resulting from an

“See EC 7-3, 7-4 and 7-5 of the Code of Professional

Responsibility.

attomey’s excess of caution in rendering legal advice -- applies

with even greater force to the potential chilling effect on advocacy.

Under circumstances substantially similar to those of the

case at bar, one court has recently echoed these concems in

recognizing civil immunity for attomeys. Scheib v. Grant, 814 F.

Supp. 736 (N.D. Ilinois, 1993). In that case, the court noted thal

the unique roles of attomeys in judicial proceedings mandates that

they be able to participate zealously without fear of intimidation or

harassment. The Court went on to note tha! there are sufficient

safeguards within the judicial system -- ¢.g., suppression of

evidence and disciplinary sanctions -- to protect litigants from

improper uses of evidence in court proceedings.

In the case sub judice, any atlomey who sapereneind David

Ricupero in 1989 would have been confronted with the same

circumstances which confronted Wuliger, to wit: (1) A client who

represented that the tapes were consensual in nature; (2) An

opposing party whose recorded conversations were inconsistent

with her representations during the divorce proceedings; and (3)

Knowledge of precedent holding that the Act did not proscribe

spousal interceptions from an extension line within the marital

residence during the marriage and cohabitation of spouses; (4) An

opposing party, who, through her attomey, agreed to allow Wuliger

to use the tapes for purposes of discovery and an ultimate ruling by

the trial court as to the admissibility thereof; (5) An opposing party

whose swom deposition testimony was that she knew she was

being recorded and that she had, in fact, fictionalized the contents

of her telephone conversations in an apparent effort to irritate her

husband; and (6) The obligation to explore tape-related issues to

prepare a defense for his client regarding the taping.’

Courts have recognized such factors in extending good faith

immunity for private individuals, at least in a civil context. E.g.,

Bietz v. Economou, 438 U.S. 478 (1978); Jones v. Preiut &

'S At the May 24 deposition, Mrs. Ricupero’s atlomey

indicated that she was “apparently” unaware that one "particular"

conversation had been recorded. Thus, under the doctrine set forth

in McQuade v. Michael Ga Mechanical & Electrical

Contractors, Inc., 587 F. Supp. 1183, at 1190-91 (D. Conn.,

1984), Wuliger could lawfully explore the extent of her consent or

knowledge as it related to David Ricupero’s potential civil or

criminal liability under the Act, particularly because Mrs. Ricupero

had already exhibited both propensity to lie and a hostility toward

her husband which might lead her to pursue even groundless

actions against Wuliger’s client.

Under those circumstances, Wuliger was duty-bound to

explore in discovery all issues relating to or arising from the tapes.

More importantly, Wuliger’s client was entitled to the zealous

representation of counsel which is essential to the adversary system.

Mandlin, 808 F.2d 1435 (11th Cir., 1987), rehearing en banc 951

F.2d 1321 (1988), vacated on other grounds and remanded per 109

S. Ct 573 (1989). The threshold question in determining the issue

of immunity is whether, at the time of the actor’s conduct, his

actions violated clearly established law. Mitchell v. Forsyth, 472

U.S. 511 (1985).

...Contradictory lower coun rulings might not

establish that a decision was not clearly

foreshadowed and should not have retroactive

effect, but such a split of decisions might provide

reasonable grounds for taking actions based on one

or ther ition for official immuni

purposes. Zweibon v. Mitchell, 606 F.2d 1172, at

1181, foomote 49 (D.C. Cir., 1979), cert denied

453 U.S. 912. (Emphasis added).

In the instant case, such a conflict of decisions existed as

to the criminality of interspousal and extension line wiretaps.

Under similar but not identical circumstances, the Eighth Circuit

Court of Appeals refused to hold a lawyer civilly liable under the

ACt, Stating as follows:

As recognized by the district court in Kratz v.

Kratz, 477 F.Supp. at 483,

Lawyers are not soothsayers, and possess

no crystal balls in which to foresee |

Changes in judicial interpretations of the $

law.

* s+ &¢ &© & &

We cannot, as a matter of fundamental

justice say that individuals act at their peril

when they reasonably rely upon judicial

interpretations. If the law required

otherwise, we would do better to replace

our courts with casinos and dispense

judgments by a spin of the roulette wheel.

Rice v. Rice, 951 F.2d 942, at 945-6 (8th Cir. 1991)."*

On any of the above-stated bases, Wuliger was constrained,

by Ohio’s formally adopted rules regulating the conduct of

attomeys, to utilize these tape recordings. The significance of such

a countervailing, governmmentally imposed regulation was

recognized by the court in DeVargas v. Mason & Hanger - Siles

Mason Co., Inc., 844 F.2d 714, at 721-2 (10th Cir., 1988), cert

denied 111 S. Ct. 799 (1991) which stated as follows:

The type of case before us presents the strongest

arguments for extending qualified immunity to

private party defendants. First, the governmental

authority involved requires private defendants to

act as they do. Indeed, were they to act otherwise

they would be liable for breach of contract to the

governmental body with whom they contracted.

Not to allow immunity here places defendants

between Scylla and Charybdis -- potentially liable

‘Unlike Wuliger, the atlomey-defendant in Rice had advised

his client to obtain evidence by intercepting the telephone calls of

the client’s husband. At the time of such advice, federal district

courts located in the attomey’s State recognized a spousal

exception to the Act. That position was later overruled by the

Circuit Court.

either to plaintiffs for obeying the contract, or to

governmental bodies for breaching it.

If an attommey may be held criminally liable for using taped

information under such circumstances, he would most Certainly be

trapped between the Scylla of violating his professional duties to

his client and the Charybdis of risking criminal prosecution if his

client's conduct in recording such conversations is later determined

to have been unlawful.” If an attomey may be criminally

prosecuted under these circumstances, then judges, jurors and court

reporters might also be at risk for their use of information from a

wire intercept which is later determined to be unlawful. Even

reviewing courts, such as the Cuyahoga County Court of Appeals

in Cooper v. Cooper, unreported, C.A. Cuyahoga County, Case

Nos. 49605 & 50022 (1/23/86), would be at risk. In Cooper, the

trial judge allowed the litigant-wife's attorney to cross-examine the

husband in detail on the basis of the contents of his wire

communications, but excluded the transcripts themselves. In

"in Newcomb v. Ingle, 944 F. 2d 1534 (10th Cir., 1991), the

court implicitly recognized the interplay between an attomey’s

duties and the need for recognizing a limited immunity relative to

the federal wiretap act, holding that a prosecutor has "absolute

immunity for her actions taken prior to deciding not to prosecute,

such as reviewing and evaluating the tapes.” Id., at 536.

considering whether the trial court erred, the court of appeals

compared the contents of the transcripts with the testimony of the

husband and concluded that any error was harmless. Thus, rather

than determining whether the tapes resulted from an illegal wiretap,

the court of appeals instead used the tainted evidence to decide a

collateral issue.'* Unless there exists an immunity based on the

good faith use of such materials in judicial proceedings, it is clear

that, not only the wife's attorney, but both the trial judge and

reviewing court in the Cooper case could have been risking

criminal prosecution.

Accordingly, appellant respectfully submits that it is vital

that this Court review this case to determine whether the Act must

be construed as providing a narrowly defined criminal immunity for

those individuals within the adversary system who utilize the

contents of wire intercepts based upon the reasonable, good faith

position that such information is both lawfully obtained and

lawfully admissible.

I. THE SIXTH CIRCUIT’S RULING IS IN CONFLICT

WITH DECISIONS OF THE FIRST, FIFTH, SEVENTH AND

"The trial court in Cooper was the very same domestic

relations court in which the Ricupero divorce was pending.

NINTH CIRCUITS IN REFUSING TO RECOGNIZE THAT

IT IS LAWFUL TO USE THE CONTENTS OF EVEN AN

UNLAWFUL WIRE INTERCEPTION FOR PURPOSES OF

IMPEACHING AN OPPOSING PARTY DURING THE

COURSE OF FORMAL LEGAL PROCEEDINGS.

The Act provides a mechanism through which the fruits of

a wire intercept may be suppressed or excluded in judicial

proceedings. §§ 2515 and 2518. However, the existence of this

mechanism does not necessarily preclude the use of the contents of

even an unlawful tap in all judicial proceedings. Courts iri at least

five federal circuits have recognized that the fruits of even an

illegal wiretap may lawfully be used for impeachment purposes.

United States v. Eschavarria-Olarte, 904 F.2d 1391 (9th Cir.,

1990); United States v. Vest, 813 F.2d 477 (ist Cir., 1987);

United States v. Winter, 663 F.2d 1120 (1st Cir., 1981), cert

denied 460 U.S. 1011; United States v. Caron, 474 F.2d 506 (Sth

Cir., 1973); Jacks v. Duckworth, 486 F.Supp. 1366 (D. Ind.,

1980), aff'd 651 F.2d 480 (7th Cir., 1981).’”

The court in United States v. Vest, supra, at 484,

buttressed its conclusion as to the existence of this impeachment

"Indeed, as discussed above, the prosecutor in the case at bar

used apparently unlawful recordings during the course of this trial

in an atiempt to impeach David Ricupero.

exception to the exclusionary statute by noting the legislative

history of the Act,”in which Congress specifically referenced

Walder vy. United States, 347 U.S. 62 (1954) -- the case which

first established the impeachment exception in another context.

In the case at bar, by the time of Polly Ricupero’s

deposition, she had already misrepresented herself and her case to

the trial court in a number of significant respects, not the least of

which related to allegations of marital fault and domestic violence.

Under these circumstances, Wuliger’s impeachment use of the

recordings was both appropriate and lawful.

Under very similar circumstances, an Ohio domestic

relations court ruled that such recordings would be admissible to

impeach the plaintiff-wife, who had lied and been evasive as to the

extent and nature of her extramarital affair and who also had

apparently fabricated or attempted to fabricate grounds for her

divorce action. Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E. 2d

910 at 96-7 (CP. Stark Cty., 1974). The Court further stated as

follows:

See S. Rep. No. 1097, at 96, reprinted in 1968 U.S. Code

Cong. & Admin. News, at 2184-85 (90th Cong. 2d Sess., 1968).

This Court is convinced that any other finding

relative to the admission of these tapes would be a

denial of justice to the defendant in this cause...

When one of the parties violates the marriage

contract, within the confines of the home and is

sufficiently secretive so as to avoid public

knowledge, the other party is placed in an

indefensible position. To deny the admission of

these tapes would be to deny the defendant the

only material, creditable evidence that he was able

to obtain.

Therefore, this Court is satisfied that the tapes

were properly admitted so as to impeach the

testimony of the plaintiff, and further, that neither

the statutes, the Ohio Constitution, the federal

Constitution as it relates to the right of privacy, or

the Omnibus Crime Control Act prevent the

admission of said tapes. Id., at 103-04.

In the case at bar, Polly Ricupero went to great lengths to

fraudulently gain the upper hand in the divorce proceedings by

misrepresenting herself. Certainly, none of the cases cited in this

section contemplated that the provisions of the Act could both

shield a party from the dangers of perpetrating a fraud upon the

Court and, at the same time, be used as a sword to deter opposing

Counsel's attempt to air the truth. In the case sub judice, the Sixth

Circuit noted that the other jurisdictions which have considered this

issue have thus far only recognized an impeachment exception for

prosecutors in federal criminal cases. While refusing to reach the

issue of whether prosecutors are entitled to the protection of an

impeachment exception, the Sixth Circuit refused to apply such

exception in this case, where the underlying use was by a private

attomey in a civil action. The court's rationale was that the truth-

finding goal is more important in criminal than in civil cases and

that the impeachment use of intercepted information in civil

discovery proceedings would not be amenable to immediate judicial

oversight. However, the Sixth Circuit's suggestion that private

attomeys may be held criminally liable for the same acts which a

prosecutor may engage in with impunity creates an unconstitutional

distinction between classes of lawyers based solely upon who their

clients happen to be.

Such an_ interpretation effectively exempts federal

prosecutors from criminal prosecution while simultaneously

granting to the Justice Department the ultimate control over the

private bar, by usurping the traditional authority of State supreme

courts to regulate the conduct of attorneys who practice in cach

State’s court system.

Moreover, the purpose of the impeachment exception, as

developed through Fourth Amendment cases, is not to guarantee

that the trial court will discover the truth. If truth-finding were the

paramount concem, there would be no exclusionary rule to begin

with. The purpose of the impeachment exception is, rather, to

protect the integrity of the truth-finding function of the court, i.e.,

to prevent people from perpetrating a fraud upon the court by

perjuring themselves while using the exclusionary rule to shield

themselves from the disclosure of their deceit. E.g., Walder v.

United States, 347 U.S. 62 (1954). Petitioner submits that this

purpose is equally and identically important regardless of whether

a criminal or a civil case is involved and regardless of whether the

impeaching attorney is the agent of the government or a private

individual.

Recently, this Court declined jurisdiction of an appeal from

the decision in California vy. Otto, 2 Cal. 4th 1088, 831 P.2d 1178,

cert. denied 121 L.Ed. 338 (1992), a murder case in which the

prosecutors had used the contents of an interspousal interception in

obtaining a conviction, following an unsuccessful motion to

suppress. The Stale supreme court ruled that the evidence should

have been suppressed based on its rejection of a statutory

exemption for interspousal taps. However, the court, in dicta,

“ a ae pene ©

strongly indicated that, had the defendant testified at trial, an

impeachment use of the tape recording would have been

appropriate. It seems equally clear that, had the defendant sued her

murdered husband's insurer for life insurance proceeds and testified

during those civil proceedings, defense counsel would have been

equally justified in using the tapes for impeachment purposes, just

as Wuliger did herein.

Thus, Petitioner respectfully submits that the confusion and

division among the Circuits on this issue warrants this Court's

review of this important question.

Il. THE SIXTH CIRCUIT’S RULING IS IN CONFLICT

WITH DECISIONS OF THE SECOND, FOURTH, EIGHTH,

NINTH AND DISTRICT OF COLUMBIA CIRCUITS IN

REFUSING TO RECOGNIZE THAT IT IS NOT UNLAWFUL

FOR AN ATTORNEY TO USE THE CONTENTS OF EVEN

AN UNLAWFUL WIRE INTERCEPTION DURING LEGAL

PROCEEDINGS AFTER THE VICTIM OF THE

INTERCEPTION HAS EXPRESSLY CONSENTED TO SUCH

USE AND/OR HAS UNCONTROVERTEDLY WAIVED HER

RIGHT TO CONTEST THE ADMISSIBILITY THEREOF.

Early in the May 24, 1989 deposition of Polly Ricupero, it

was agreed between counsel, in Mrs. Ricupero’s presence, that the

subject tapes could be used during discovery, but that the tial

judge would ultimately have to decide the contested discovery and

admissibility issues. Gov. Ex. 2, pp. 178-82. At trial, Murway

acknowledged thai this was a binding agreement which was reached

in the presence of his client and further acknowledged that, upon

subsequent use of the tapes by Wuliger, he (Murway) even

admonished Mrs. Ricupero to answer Wuliger's questions. Tr. 624-

29.

It is beyond peradventure that no crime is committed by a

person who intercepts telephonic communications with the consent

of one of the parties. Similarly, no crime is committed by one who

uses or discloses information from an illegal intercept where one of

the parties thereto consents to such use or disclosure. As held by

one reviewing court:

Because [the defendant's] victims consented to the

introduction of their wiretapped conversation, the

exclusionary rule of 18 U.S.C. § 2515 did not

render inadmissible the wiretaps [the defendant)

made in violation of 18 U.S.C. § 2511. It is the

victims’ consent that distinguishes this case from

the ruling of the court of appeals reversing United

States v. Liddy, 354 F. Supp. 217 (D.D.C.), rev'd,

155 U.S. App. D.C. 382, 478 F.2d 586 (1973).

United States v. Bragan, 499 F.2d 1376, 1380

(4th Cir., 1974)(footnote reference omitted).

Section 2515 mandates the exclusion of the contents of a

wire intercept in any judicial proceeding ”...if the disclosure of that

information would be in violation of [§§ 2510, et seq.).” Thus, the

admissibility ruling in United States v. Bragan, id., can only mean

that no violation of the § 2511(1)(d) occurs when an aftomey uses

the contents of a wiretap with the consent of one of the parties to

the taped conversation.”"

Similarly, a defendant and his attoney may lawfully use

"In the case sub judice, the Sixth Circuit rejected appellant's

argument that a victim's consent to the use of his unlawfully

intercepted conversations vitiates the criminality of the subsequent

use thereof. The reviewing court believed that the Bragan holding

was based on the victim's consent to the interception itself and not

on their consent to the use of information from the interception.

Appellant respectfully submits that the Sixth Circuit's reading of

Bragan was erroneous. Bragan was charged with wiretapping and

possession of wiretap devices. He was convicted of those offenses,

and the reviewing court affirmed those convictions. Clearly, if the

victims of Bragan’s wiretapping activities had consented to the

interceptions, the appellate court could not have affirmed his

conviction for wiretapping, since it is not a crime to intercept a

wire communication where a party has consented to the

interception. Appellant submits that, although inartfully drafted,

the Bragan opinion was referencing two sets of recordings. As

indicated at 499 F.2d 1380, the government's proof consisted in

part of Bragan's taped wire conversations with his accomplices and,

therefore, those tapes were admissible because the accomplices had

consented to the interceptions themselves. However, in the last full

paragraph of the opinion, the court also indicated that Bragan’s

victims consented to the introduction into evidence of their

intercepted conversations. The court also noted that Bragan was not

a party to those conversations with his accomplices. Thus, the

accomplice recordings were admissible because the accomplices

consented to the interceptions. The victims’ recordings, on the

other hand were admissible solely because the victims consented to

their use at trial. In order to warrant a wiretapping conviction and

an affirmance thereof, that is the only possible reading of Bragan.

the contents of an allegedly unlawful wiretap for purposes of

preparing a defense to potential criminal or civil liability under the

Act United States v. King, 528 F.2d 68 (9th Cir. 1975);

Philadelphia Resistance v. Mitchell, 58 F.R.D. 139 (E.D. Pa.,

1972). As recognized by the court in McQuade v. Michael

& Electrical Contractors, Inc., 587 F. Supp.

1183, at 1190-91 (D. Conn., 1984):

To deny defendant’s counsel any possibility of

investigating or rebutting allegations on which

plaintiffs’ claim for punitive damages is based, or

of discussing the contents of the tapes with their

clients in the course of preparing a defense of this

lawsuit, would be to convert the allegations of the

complaint into a judgment. Any such construction

of the statute would be absurd on its face and

would be so incompatible with basic notions of

fairness in adversary proceedings that it might well

raise questions regarding the statute's

constitutionality

** &

Section 2515 was no more designed to keep

defendants in lawsuits brought under § 2520 from

defending the alleged violations of § 2511 than it

was to keep the Government from prosecuting

violators under § 2511. (Foomote reference

omitted).

Thus, whenever a pafty to an intercepted wire

communication consents to the use of its contents -- whether

expressly, as in the Bragan case, or constructively, as in McQuade

-- any such - cannot constitute a crime.

Moreover, the Act itself (§§ 2515 and 2518(10)(a))

contemplates some use of the contents of even illegal wire

interceptions, at least for the purpose of permitting the tial coun

to determine their admissibility, which would necessarily require an

examination of the contents of the intercepted communication, the

scope of the evidence which was derived therefrom and the legality

of the interception itself. As noted in McQuade, supra, in order to

survive constitutional scrutiny, the statute must be construed as

implicitly allowing certain other uses.”

Accordingly, in a variety of contexts, an aftomey may

utilize the contents of unlawful wiretaps without risking criminal

prosecution. In the case sub judice, Wuliger’s use of the recordings

made by David Ricupero was limited to impeaching Polly Ricupero

in this context, it is important to note that, once Mrs.

Ricupero’s attomey alleged that she was “apparently” unaware of

the recording of one "particular" conversation, it was essential that

Wuliger explore in discovery the nature of her awareness or

unawareness of the recordings, which he in fact attempted to do at

both Wilhelm’s and Mrs. Ricupero’s depositions. Moreover, as

noted above, use of the contents of even an unlawful interception

is also permissible for purposes of impeachment.

and to exploring issues such as Polly Ricupero’s knowledge of

and/or consent to the recording (as a matter of defense to his

client’s potential liability under the Act and to lay a foundation

upon which the trial court could ultimately base its admissibility

ruling).

Moreover, a party who unjustifiably fails to make a timely

motion to suppress, pursuant to § 2518(10)(a), waives the right to

contest the admissibility of even a clearly unlawful wiretap. E.g.,

United States v. Scavo, 593 F.2d 837 (8th Cir., 1979); United

States v. Johnson, 539 F.2d 181 (D.C. Cir., 1976), cert. denied

429 U.S. 1061; United States v. Sisca, 503 F.2d 1337 (2nd Cir.,

1974), cert. denied 420 U.S. 1005. In each of those cases, the

prosecutors used apparently unlawful wiretap information following

the defendant's waiver. It would be absurd to conclude that any of

those prosecutors could have been criminally prosecuted for

properly using the contents of such wire interceptions after the

defendant's waiver. In the instant case, at any point during the

divorce proceedings, Polly Ricupero and/or her attomey could have

———— moved the trial court for a protective order or for suppression

relative to the contents of her telephone communications. Rules

26(C) and 30(D) of the Ohio Rules of Civil Procedure; §§ 2515,

2518(10Xa). As an alternative, federal injunctive intervention could

| have been sought pursuant to § 2521. However, no such action

was taken. Tr. 484, 614. In light of this waiver and the agreement

of counsel that the contents of these tapes could be used by

Wuliger, his use of these recordings cannot be deemed a crime.

In rejecting this waiver argument, the Sixth Circuit

suggested that, although a party’s waiver may render the contents

of a wire interception admissible in civil proceedings, that question

was irrelevant to the issue of whether an attomey's use of such

information following a waiver is criminally sanctionable. Thus,

the Sixth Circuit's opinion herein suggests that the Act can provide

that a waiver may render unlawfully intercepted information

admissible into evidence and, at the same time, provide that

Criminal liability will result when an atiomey fulfills his ethical

obligations to his client by presenting or using that admissible

evidence on his client’s behalf. Appellant respectfully submits that

this statute may not be reasonably construed to mean that an

atlommey may use admissible evidence in judicial proceedings and

yet be held criminally liable for doing so.

In ruling as it did, the Sixth Circuit has created new law

with vast implications on issues which are central to the application

of this statute. On that basis and on the basis that the Sixth

Circuit’s ruling diverges significantly from the law of other federal

jurisdictions, Petitioner submits that certiorari should be granted

herein.

IV. THE SIXTH CIRCUIT’S RULING IS IN CONFLICT

WITH DECISIONS OF THE SECOND, FIFTH AND

ELEVENTH CIRCUITS IN REFUSING TO RECOGNIZE

THAT IT DOES NOT CONSTITUTE A CRIME FOR A

PERSON TO INTERCEPT CALLS OF HIS SPOUSE BY

PLACING AN INTERCEPTION DEVICE ON AN

EXTENSION LINE IN THE MARITAL HOME WHILE THE

PARTIES WERE RESIDING TOGETHER AS HUSBAND

AND WIFE.

By 1989, a number of federal and stale courts had

determined that the wiretap act does not render unlawful an

interception of one spouse’s wire communications by the other

spouse on an extension line in the marital home, at least while the

couple still reside therein as husband and wife. E.g., Anonymous

vy, Anonymous, 558 F.2d 677 (2nd Cir., 1977); Simpson _v.

Simpson, supra; Perfit v. Perfit, 693 F. Supp. 851 (D. Cal, 1988);

Lizza v. Lizza, 693 F. Supp. 529 (E.D.N.Y., 1986); Baumrind v.

Ewing, 276 S.C. 350, 279 S.E.2d 359 (1981) cert. denied 454 US.

1092; Beaber v. Beaber, supra. These opinions were based upon

two distinct rationales, utilized either separately or in combination,

i.e. the tort doctrine of interspousal immunity and the “extension

line exception” provided for in § 2510(5)(a)(i).” See also, Epps

v. St. Mary’s Hospital of Athens, Inc., 802 F.2d 412 (11th Cir.,

1986), rehearing denied 807 F.2d 999.

Clearly, if David Ricupero’s interception of his wife’s wire

communications was lawful, then Wuliger cannot be criminally

liable for his use thereof. E.g., Farroni_ v. Farroni, 862 F.2d 109

(6th Cir., 1988).

Appellant is aware that various other appellate courts have

determined that there is no statutory exemption for interspousal

taps.“ However, due to the continuing split among federal and

pursuant to 18 U.S.C. § 2510 (4), “intercept” is defined as the

" acquisition of the contents of any wire... communication through

the use of any electronic, mechanical, or other device..." However,

section 2510(5\aXi) excludes from the definition of device “...any

telephone... furnished to the subscriber or user by a provider of

wire or electronic communication service... and being used by the

subscriber or user in the ordinary course of its business..."

“E.g. 942 F.2d 396 (6th Cir., 1991); Kempf

v. Kempf, 868 F.2d 970 (8th Cir., 1989); Pritchard v. Pritchard,

732 F.2d 372 (4th Cir., 1984). Other courts have reached the

conclusion that some nonconsensual interceptions by family

members are lawful (i.c., interceptions of calls between children

State courts and the lack of any dispositive resolution of this

question by this Court, Petitioner submits that it is important for

this Court to grant this Petition and decide this question which

continues to divide federal appellate courts.

V. THE SIXTH CIRCUIT’S RULING MISINTERPRETED

THE PROVISIONS OF 18 U.S.C. §§ 2515, 2518(10\A) AND

2520(D1), TO THE EFFECT THAT AN ATTORNEY WHO

PRESENTS UNCONTROVERTED EVIDENCE OF HIS

GOOD FAITH IS ENTITLED TO A JUDGMENT OF

ACQUITTAL ON CHARGES BROUGHT PURSUANT TO 18

U.S.C. § 2511(1){D).

In criminal prosecutions, the Government must prove all

elements of charged offenses (Mullaney v. Wilbur, 421 U.S. 684

(1975)), and thus bears the burden of disproving any defense which

bears a necessary relationship to an element of the charged offense

(Patterson v. New York, 432 U.S. 197 (1977)).

Moreover, as recognized in Gorin v. United States, 312

U.S. 19 (1941), a criminal statute based upon a defendant's

and an estranged spouse), whereas other intra-family interceptions

constitute criminal activity (i.¢., interceptions by one spouse of

another) Compare Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.,

1991), cert. denied 112 S.Ct. 903 (1992), with Heggy v. Heggy,

944 F.2d 1537 (10th Cir., 1991), cert. denied 112 S. CL 1514

(1992). Although the Act itself does not differentiate among such

Categories, these cases nevertheless evidence the difficulty that

federal courts are having in construing this statute.

"knowledge or reason to know" demands a showing of actual

_ knowledge, intent or bad faith Thus, in the case at bar, the

question of Wuliger’s good faith bore a necessary relationship to an

element to the offense charged under § 2511(1)(d), which defines

its mental element in terms virtually identical to those considered

by the Supreme Court in Gorin. See also, Petric v. State, 66 Md.

App. 470, 504 A.2d 1168 (1986), cert. denied 306 Md. 289, 508

A.2d 489, cert denied 479 U.S. 860, rehearing denied 479 U.S.

1001. Thus, the Govemment should have been required to

disprove Wuliger’s good faith’ which was established in a

number of respects, to wit: (1) David Ricupero’s trial testimony

that he told Wuliger these recordings were consensually acquired;

(2) Polly Ricupero’s swom deposition testimony that she knew of

the wiretap and engaged in certain misleading telephone

communications for the sole purpose of having her husband listen

to them; (3) The testimony of Mrs. Ricupero’s attomey to the effect

that, in the presence of his clients, he agreed that Wuliger could use

the recordings in discovery, with the understanding that the divorce

2518 U.S.C. § 2520(d)(1) establishes good faith reliance on a

court order or legislative or statutory authorization as a "complete

defense” to criminal liability under the wiretap act.

court would ultimately determine the contested issue of

admissibility; (4) The presence of a statutory mechanism (i.e., §§

2515 and 2518(10)a)) for presenting such a record for an

admissibility ruling by the trial court; (5) The failure of Polly

Ricupero, through her attorney, to challenge the use of these

recordings via a motion for protective order, a motion to suppress,

a motion for an order in limine or a federal action for an

injunction, thus creating a waiver as to Wuliger’s use of these

recordings; (6) The reasonableness of the legal argument that even

nonconsensual recordings are lawful when they result from an

interspousal wiretap on an extension line within the marital home

while the spouses continue to reside together as husband and wife;

and (7) Wuliger’s obligations as an afttormmey to zealously represent

his client in accordance with Ohio’s Code of Professional

Responsibility -- both as to the substantive issues involved in the

divorce case and issues relating to the potential civil and/or

criminal liability of Wuliger’s client pursuant to the Act.

Petitioner submits that the uncontroverted evidermme as to

any one of these factors mandated a judgment of acquittal.

However, the Sixth Circuit ignored the inconsistency of interpreting

this Act to mean that, following a waiver, unlawfully intercepted

information is admissible and yet, somehow, the lawyer who

fulfilled his duties by presenting the admissible evidence may be

criminally prosecuted for doing so. The Sixth Circuit also

erroneously held that, on the basis of legislative history, the good

faith defense contained in § 2520 was only intended to protect

telephone companies and others who cooperate under a court order

with law enforcement officers. Interestingly, the plain meaning of

§ 2520(d)(1) is not so limited. Rather, it applies to anyone who

acts in good faith. Since "plain meaning" was the Sixth Circuit’s

standard for deciding all other issues, the same rule of construction

should have been applied to this issue.

The interplay of Wuliger’s ethical obligations and the

division among federal and state courts as to the existence of a

spousal or extension line exception to the Act is central to the

question of whether Wuliger, in his role as advocate, could have

known or had reason to know that the interceptions or his use

thereof were in violation of law. Clearly, there was no uniform

interpretation of federal law goveming spousal wiretaps. Moreover,

if there was any indication at all in 1989 as to what the position of

this Coun would be on this issue, it was reflected in the fact that

it had denied certiorari in the very case which had first established

the spousal exception to the Act. Simpson vy. Simpson, supra In

addition, Ohio domestic relations courts were allowing the use al

trial of interspousal wiretap recordings or of information derived

therefrom for purposes of impeachement or following a waiver by

the opposing party. Eg. Cooper v. Cooper, supra; Beaber v.

Beaber, supra

Wuliger was aware of the Simpson decision since the early

1980's due to an inter-office memorandum on a related issue thal

had been prepared for one of Wuliger’s previous cases. Tr. 860-71.

In addition to this judicially recognized good faith defense,

the Act itself provided Wuliger with a complete defense based upon

his good faith reliance on a court order, or a legislative or statutory

authorization. § 2520(dx1). Ohio's Code of Professional

Responsibility is essentially both a court order and a legislative

authorization, as was essentially acknowledged by the Sixth Circuit

in its opinion. In reliance upon the provisions of Canon 7 thereof,

Wuliger in good faith used the contents of Polly Ricupero’s wire

communications in the confines of formal legal proceedings on

behalf of his client. A second such authorization for such use is set

forth in the wiretap act itself, via the mechanism by which a trial

court may determine whether such evidence should be admitted or

suppressed. §§ 2515, 2518(10)(a).

Cenainly, at least some lawful uses of information derived

from even unlawful wiretaps are contemplated by the Act. For

instance, atlomeys representing an individual who is sued under the

provisions of § 2520 has at least a limited right to use such

information, as noted in McQuade, supra”

Thus, certiorari is warranted herein so that this Court may

consider the question of whether the Sixth Circuit has promulgated

an erroneously narrow interpretation of the provisions of the Act

relating to the statutory good faith defense.

in the case at bar, despite David Ricupero’s representations

as to the consensual nature of the recordings, there would still be

a risk -- however minimal and unlikely it may have appeared at the

time -- that the tapes could potentially become the subject of a civil

action or criminal prosecution against Wuliger’s client, especially

in view of Mrs. Ricupero’s clear hostility and propensity to

misrepresent herself. Thus, in addition to the necessity of using

these recordings for purposes of impeaching Polly Ricupero's

credibility in the divorce action, David Ricupero’s interest also

demanded that Wuliger explore, in discovery, the extent of Polly

Ricupero’s knowledge of or consent to the interceptions.

YL THE SIXTH CIRCUIT’S INTERPRETATION AND

APPLICATION OF 18 US.C. § 2511(14D) COMPRISED AN

UNCONSTITUTIONAL INTRUSION UPON MATTERS

CONSTITUTIONALLY RESERVED TO THE STATES AND

UPON FUNDAMENTAL RIGHTS WHICH ARE ESSENTIAL

TO THE INDEPENDENCE OF THE JUDICIARY AND THE

BAR AND THE VIABILITY OF THE ADVERSARY

SYSTEM.

In the course of representing a client’s interests, 4

substantial portion of an attorney's role involves the gathering and

presentation of evidence in the course of litigation, developing @

legal theory for the prosecution or defense of a claim and arguing

his client’s position to the court In carrying out these functions,

a lawyer is necessarily concemed with making choices based upon

any reasonably arguable position which may prove beneficial to his

client’s cause. Although the ultimate goal of the adversary system

is the ascertainment of the truth, it is not the office of the advocate

to tailor his case to his personal conception of the truth or to what

he speculates will be the trial court's perception of the truth. The

advocate’s role is necessarily non-judicial in nature: He does not

pre-judge the merits of his client’s factual allegations or legal

arguments in terms of whether they are likely to be deemed truc or

viable by a court of law upon the completion of the case. Rather,

the advocate’s duty is to attempt to present to the judicial officer

any evidence or theory which is arguably viable, subject to

standards of good faith and reasonableness.” His role in the

adversary process is not to pre-censor his client’s case, but to

zealously pursue and advocate any colorable position in support of

his client's cause.

Thus, when an atlomey is charged, under § 2511(1)(d),

with using the contents of a wire communication, “knowing or

having reason to know” that it was obtained unlawfully, the

question of his knowledge must be measured by standards

significantly different from those which apply to individuals who

have no such professional obligations. A layman who uses the

contents of a wire communication may logically be charged with

the duty to decide on an objective basis whether it is probable that

the interception was made in violation of federal law. A lawyer,

on the other hand, may -- and should -- reiy on the factual

representations of his client regardless of his personal opinion as to

the credibility thereof. Similarly, he must proceed under any

“These principles are expressly or implicitly recognized and

countenanced in a variety of enactments. E.g., Ohio Code of

Professional Responsibility, EC 7-2, 7-3, 7-4, 7-19; Ohio Revised

Code, Section 2323.51; Rule 11 of the Ohio Rules of Civil

Procedure; Rule 11 of the Federal Rules of Civil Procedure.

favorable legal theory which can be supported in good faith, even

if it is contrary to existing law. To fulfill his role in the adversary

system, Wuliger had to proceed to the basis that his client was

telling him the truth when he represented that Polly Ricupero knew

that her calls were being recorded.

Under the circumstances of this case, it was incumbent

upon Wuliger to use these tapes, not only to prepare his client's

divorce case, but also to protect his client against any future

criminal or civil liability arising from the recordings. It was

certainly arguable in good faith that the tapes were consensually

made and, therefore, both lawful and admissible. Even if there had

been no evidentiary support for that position, it was nevertheless

arguable in good faith that the tapes were iawfully obtained or

usable for the numerous reasons set forth above which are

irrelevant to the issue of consent.

Moreover,-as held by the only court which has reached this

issue, an attorney's use of intercepted information does not violate

the Act unless the attorney is aware of sufficient facts regarding the

circumstances of the interception such that he could determine that

the interception was unlawfully obtained. Thompson v. Delaney,

Sahai acti PRO

SS SER ite Lares.

970 F.2d 744 (10th Cir., 1992); accord, Liparota v. United States,

471 U.S. 419, at 425 (1985). In the case at bar, there was no

dispute that Wuliger was in fact unaware of such circumstances.

The position of the prosecution and the trial court was that

an attorney’s duties to his client must be abandoned unease there

is any risk that recordings were made in violation of the Act. The

Sixth Circuit rejected that view, but refused to hold that an attorney

must be completely insulated from criminal culpability for merely

cross-examining an opposing party during legal proceedings, in

conformity with his ethical obligations, the law established by the

courts of his State and existing precedent from federal circuits

(which admittedly were divided and remain divided on a number

of significant issues). Appellant submits that such a construction

constituted an impermissible intrusion into the power of the courts

to regulate evidentiary matiers and the power of the States to

regulate the conduct of attomeys, in contravention of the separation

of powers doctrine and the Tenth Amendment to the Constitution

of the United States.”

wees

It also contravenes the provisions of 18 U.S.C. § 2515 and

2518, which provide for some use of even illegal wiretap

information for purposes of determining admissibility or

The scope of the Tenth Amendment reservation of powers

has been the subject of continuing debate in this Court since its

decisions in National League of Cities v. Usery, 426 U.S. 833

(1976) and the case which overruled it, Garcia v. San Antonio

Metro. Transit Auth., 469 U.S. 528 (1985). In dissenting opinions,

Justice O’Connor, for instance, has argued that "...each State is

sovereign within its own domain, goveming its citizens and

providing for their general welfare..." (FERC v. Mississippi, 456

U.S. 742, at 777 (1982)) and that "...the autonomy of a State is an

essential component of federalism.” (Garcia _v. San Antonio

Metro. Transit Auth., supra, at 570). Moreover, in arguing for a

re-affirmance of the principle set forth in National League of

Cities v. Usery, supra, Chief Justice Rehnquist stated as follows,

in a separate dissent:

..[T]he judgment in these cases should be

affirmed, and I do not think it is incumbent on

those of use in dissent to spell out further the fine

points of a principle that will, I am confident, in

time again command the support of a majority of

this Court. Garcia v. San Antonio Metro. Transit

Auth., supra at 580.

In the case at bar, the Sixth Circuit's interpretation

suppression.

intruded, in several ways, on important powers constitutionally

reserved to the States. First, by allowing for the prosecution of an

atlomey based upon his good faith use of evidence during state

court proceedings, the ruling below will inevitably result in

atlomeys ignoring the provisions of Canon 7 of Ohio’s Code of

Professional Responsibility in order to avoid potential criminal

‘liability. As such, the Sixth Circuit's approach is, thus, an

unconstitutional intrusion into a State's prerogative to regulate the

conduct of attomeys who practice within its judicial system.

Accord, Silverman v. Browning, 414 F. Supp. 80 (D. Conn.,

1976), aff'd 429 U.S. 876; Moity v. Louisiana State Bar Ass’n,

414 F. Supp. 180 (E.D. La., 1976), aff'd 537 F.2d 1141 (Sth Cir.);

Dixon v. Georgia Indigent Legal Services, Inc., 388 F. Supp.

1157 (S.D. Ga., 1975).

Second, by interpreting this statute as imposing criminal

Sanctions on atlomeys, judges, jurors and court reporters for their

several uses of information ultimately found to have been

unlawfully obtained, the trial court created a federal monster which

could threaten to devour a State's traditional power to regulate its

own judicial system. The resulting chilling effect upon everyone

in the judicial system is simply two far-reaching to justify this

federal intrusion. Accord, Scheib v. Grant, supra.

Third, the Sixth Circuit’s ruling as to the absence of

exceptions for impeachment use, waiver, consemt-to-use and

interception between spouses constitutes a severe intrusion into the

decision-making process of the State judiciary. Accordingly, despite

the division among the courts, a State court judge would not be

free to admit such evidence based on its conclusion that spousal

interceptions, impeachment uses and uses following consent or

waiver are exempted from the scope of the Act. This leads to the

absurd conclusion that a State or even a federal judge may be

subject to criminal sanctions for failure to adhere to legal precedent

established by the corresponding federal Circuit Court, rejected by

other Circuits and never decided by this Court.”

Moreover, under the Sixth Circuit’s interpretation, the

>The resulting chilling effect upon the judiciary is dramatically

illustrated in Farroni_v. Farroni,supra, in which Judge Ross D.

Avellone of the Domestic Relations Court of Lake County, Ohio

was sued civilly, under 18 U.S.C. § 2520, for denying the plaintiff-

wife’s motion in limine to exclude recordings resulting from a

wiretap by her husband. Upon the filing of that civil suit, Judge

Avellone reversed his previous evidentiary ruling, granted the

wife’s motion in limine and recused himself from the case.

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Judicial Branch would be deprived of its traditional and essential

powers to regulate the conduct of attomeys appearing before it and

to decide questions regarding the admissibility of evidence in

accordance with its understanding of the law, even where that

understanding may be in error. These decisions would, rather, be

made ex post facto by the Department of Justice, which would then

be the ultimate supervision of both the bar and the judiciary.

Accordingly, for the foregoing reasons, Petitioner

respectfully submits that the Act, as construed and applied by the

Sixth Circuit, sweeps too broadly and unconstitutionally intrudes

upon the sovereign provinces of the States and the traditional

separate rule of the judiciary vis-a-vis their regulation of attomeys,

judges and the functioning of the judicial System. Therefore,

Petitioner submits that this case presents significant constitutional

issues which warrant this Court’s review.

VII. THE SIXTH CIRCUIT’S RULING, IN

RETROACTIVELY APPLYING NOVEL

INTERPRETATIONS OF TITLE Il, WHICH ARE

INCONSISTENT WITH OR CONTRARY TO BOTH STATE

AND FEDERAL LAW EXISTING AT THE TIME OF THE

OFFENSES CHARGED, CONSTITUTES A DENIAL OF DUE

PROCESS OF LAW.

Until Wuliger’s conviction was appealed, the Sixth Circuit

had never decided whether it is permissible for an attommey to use

information from an unlawful wire interception to impeach an

opposing party upon cross-cxamination. A number of other

Circuits (i.e., the Fist, Fifth, Seventh and Ninth) had reached this

issue and determined that such conduct was lawful, as had the

courts of the State in which Wuliger was practicing. Similarly, the

Sixth Circuit had never determined whether an atlomey may use

information from an interception after the subject of the

interception had consented to such use. At least one other Circuit

(i.e., the Fourth) had previously reached this issue and determined

that such conduct was lawful. The Sixth Circuit had also never

decided until this appeal whether an atlomey may make evidentiary

use of information from an interception following a party's waiver

of his right to contest the admissibility thereof. Other jurisdictions

(i.e., the Second, Eighth and D.C. Circuits) which had previously

considered this issue had determined that evidence was admissible

under such circumstances.

Finally, it must be noted that, as of 1989, the Sixth Circuit

had never even determined whether there was an interspousal

exception to the Act under circumstances where the spouses were

still living together within the marital home. In United States v.

Jones, supra, the Sixth Circuit had suggested that it would be

adverse to such a construction, but the fact remains that Jones did

not involve an interception while the spouses were living together.

The Fifth Circuit and various District Courts and state courts, on

the other hand, had declared such interceptions lawful.

Thus, based on the law as it existed prior to the Sixth

Circuit's ruling herein, Wuliger’s conduct did not constitute

criminal activity. Clearly, no other atlomey in the twenty-five year

history of this Act was ever prosecuted for using intercepted

information to impeach an opposing party on cross-examination.™

Furthermore, no attorney had ever been prosecuted for using such

information where the subject of the interception had consented to

the use or waived the right to contest the admissibility of such

Clearly, this is not an uncommon occurrence, as discussed in

Section II above. Moreover, in the Ohio case of Fluherty v.

Fluherty, unreported, C.A. Summit Cty., Case No. 8951

(11/29/78), the tial court had overtuled the wife’s motion to

suppress the contents of her unlawfully taped conversations, which

were used during the divorce proceedings for impeachment

purposes. On appeal, the U.S. Attomey’s office filed an amicus

brief regarding the interceptions. However, neither in that case nor

in any other case has the Justice Department ever prosecuted an

attorney for such an impeachment use or any other use where the

lawyer was not involved in the intercept.

evidence. Indeed, on the basis of one or another of the

circumstances discussed immediately above, Wuliger could not

have been prosecuted in the First, Second, Fourth, Fifth, Seventh,

Eighth, Ninth, Eleventh and D.C. Circuits!

Petitioner respectfully submits that neither the Act itself nor

the judicial interpretations of the Act which were in existence in

1989 provided notice that it would be considered criminal for an

attomey under such circumstances to use such information for

purposes of cross-examination.

Under those circumstances, to permit the ruling of the Sixth

Circuit to have anything other than a prospective application would

be to deprive Wuliger of due process of law. This is particularly

SO in the case of an attorney whose ethical obligation it is to pursue

any reasonably arguable position, particularly where the boundaries

of the law are unclear or uncenain. EC 7-, 7-3, 7-4.

Petitioner further submits that the position of the Sixth

Circuit on these issues is incorrect, for the reasons set forth above

and that such sweeping changes in the law are of sufficient

magnitude to warrant this Court's attention. Accordingly, Petitioner

respectfully requests that this Court issue a writ of certiorari herein.

tS Nah hil 26 NE eit NS

CONCLUSION

In the court below, both the Government and the Ohio

Association of Criminal Defense Lawyers, as amicus curiae, took

the position that this case presents "novel and Significant issues."

Certainly, never before has this Court been presented with a Title

Il] case which contains such a broad range of distinct and important

issues in terms of defining the meaning and scope of the Act.

Moreover, this case presents Significant constitutional issues

which impact upon the independence and integrity of the judiciary

and the bar, the separation of Powers, and the traditional right of a

Stale to regulate its own judicial proceedings and to control the

conduct of members of its bar.

Finally, a decision by this Court on the various issues set

forth herein will serve to resolve the many conflicts among the

Circuits regarding the application of this statute and will, therefore,

prevent the sort of selective Prosecution that permits the

Goverment to target certain individuals who engage in conduct

which would be considered lawful in other jurisdictions but is

deemed criminal by the Circuit Coun with geographical jurisdiction

over the charged offense.

Accordingly, Petitioner prays that this Court assert its

jurisdiction and hear this case on the merits.

Respectfully submitted,

WILLIAM T. WULIGER, Pro Se

1340 Sumner Court

Cleveland, Ohio 44115

Cea

No. 92-3061

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plainsiff-Appellee,

v. ON APPEAL from the

United States District

WILLIAM T. WULIGER, Court for the Northern

Defendant-Appellant. | District of Ohio

Decided and Filed December 22, 1992

Before: KENNEDY and MILBURN, Circuit Judges;

and WELLFORD, Senior Circuit Judge.

KENNEDY, Circuit Judge, delivered the opinion of the

court, in which MILBURN, Circuit Judge, joined.

WELLFORD, Senior Circuit Judge (pp. 24-26), delivered

a separate concurring opinion.

KENNEDY, Circuit Judge. Defendant William T.

Wuliger s 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

ractice law and serve a ot fy home detention.

ecution of the sentence, other the fine, was stayed

ding disposition of this appeal. For the reasons stated

low, we REVERSE the defendant's conviction and

REMAND the case to the District Court for a new trial

consistent with this opinion.

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.2. Pally Wilhelm. During a one-week period in mid-

March of 1989, Mr. Ricupero intercepted and recorded all

telephone calls at the Ricu ro'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.’ Title Ill also makes any use OF

disclosure of the contents of a communication 0 tained in

Mr. Riengece was granted use immunity for his testimony in the

defendant's and was not prosecuted under Title III.

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 | and 2 of the indictment smal 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 25 11(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

2Counts 3, S, and 7 charged the defendant with violating section

2511(1}(c) for disclosing the contents of the tapes on the same three

occasions. The defendant was acquitted of these charges.

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 uire 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 II] which the court

refused to recognize.

il.

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 (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, 2 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 (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

faimess, honesty, or | ae reputation of the trial.”

United States v. Driscoll, 970 F.2d 1472, 1485 (6th Cir.

1992) ( uoting United States v. Causey, 834 F.2d 1277,

1281 (6th Cir. 1987), cer. denied, 486 U.S. 1034

(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 ee 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). 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 ed 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 Norther District of Ohio,

defendant William T. Wuliger did intentionally use

or endeavor to use the contents of a wire

communication. et

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 in violation

of Title Il]. As we interpret this section, however, .

knowledge or reason to know of the illegality is an

element of this offense.

In Liparota v. United States, 471 U.S. 419 (1985), a

’ food stamp case, the Supreme Court addressed the issue

of whether the government must prove that a defendant

knew he was using food stamps in violation of a federal

statute governing food stamp fraud. The. statute, 7

U.S.C. § 2024(b)(1) (West 1988), provides that "whoever

knowingly uses, transfers, acquires, alters, or possesses

coupons or authorization cards in any manner not

authorized by [the statute] or regulations” is subject to a

fine and imprisonmert. In Liparota, the government

argued that a violation occurs when one acquires or

possesses food stamps 2nd that acquisition or possession is

in fact unauthorized. The petitioner claimed that a

violation occurs only if an individual knows that he has

acquired or possessed food stamps and that he has done so

in an unauthorized manner. -

The Court found no guidance in the legislative history

or the words themselves, as they lend themselves to either

interpretation, on what type of mental element Congress

intended for this crime. So it looked, as do we, to the

significance of the mens rea requirement in our criminal

law. “The contention that an injury can amount to a

crime only when inflicted by intention is no provincial or

transient notion. It is as universal and persistent in mature

~ systems of law as belief in freedom of the human will and

a consequent ability and duty of the normal individual to

choose between good and evil." Liparota, 471 U.S. at

425 (quoting Morissette v. United States, 342 U.S. 246,

250 (1952)). The Court further noted that "[cJertainly far

more than the simple omission of the appropriate phrase

from the statutory definition is necessary to justify

dispensing with an intent requirement." Jd. (quoting.

United States v. United States Gypsum Co., 438 U.S.

422, 438 (1978)). Thus, the Court held that the food

stamp fraud provision required both knowing use and

knowledge of illegality. /d. at 425.

The Supreme Court's reasoning in Liparota guides this

Court's interpretation of the mental element required

under 18 U.S.C. § 2511(1)(d). The syntax of section

2511(1)(d) parallels that of the food stamp provision; the

“knowing” requirement is followed by the “use”

A8&

requirement which is followed by the "illegality"

requirement. The government wrongly asserts that

"Liparota stands for the proposition that if knowledge of

illegality is an- essential element of the offense, then it

must be charged by the court." Gov't Brief at 37.

Indeed, the Supreme Court addressed the same problem of

statutory interpretation presented to this Court, i.e.,

whether knowledge of illegality is an element of the

offense. The government presents no persuasive evidence

that the legislative history of Title III distinguishes this

case from Liparota.

Additionally, in Fultz v. Gilliam, 942 F.2d 396 (6th

Cir. 1991), a case construing sections 2511(1)(c) and (d)

of the Act, this Court assumed that knowledge of illegality

was an essential element of these offenses. While

discussing the scope of these sections the Court stated that

"[b]y prohibiting all intentional uses and disclosures of

unauthorized interceptions by an_ individual with

knowledge of the violation, subsections (1)(c) and (d)

strengthen subsection (1)(a) by denying the wrongdoer the

fruits of his conduct." Jd. at 401 (emphasis added).

The government cites Fultz to support the well accepted

rule that ignorance or mistake of the law is no defense, in

this case, to a violation of the Wiretap Act. The

government seems to be arguing that by recognizing a ~

knowledge of illegality requirement, this Court would be

creating a mistake of law defense. This position is

mistaken. If the defendant claimed ignorance that the use

of nonconsensual recordings was illegal, that claim would

be one of mistake of law. However, whether or not the

defendant knew or had reason to know the interception in

oy case was nonconsensual and thus, illegal, is a question

of fact.

The defendant admitted that he used the contents of the

tapes and that he knew the information was obtained from

an intentional wire interception. Mr. Ricupero told the

defendant as much when he gave the defendant the tapes.

Mrs. Ricupero testified that did not know her husband

had ta the home phone and that she did not consent to

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the recordings. Nonconsensual recordings violate the Act,

18 U.S.C. § 2511(1)(a).3 Under these facts and the

court's instructions, the only verdict the jury could retum

was guilty.

Under these instructions, the government did not have

the burden of proving that the defendant knew or had

reason to know that the recordings were nonconsensual.4

Mr. Ricupero testified that he told the defendant that the

recordings were made with his wife's knowledge. Under

the given instructions, the jury did not deliberate on

whether or not the defendant knew or had reason to know

that Mrs. Ricupero had not given her consent to the

recording of her phone conversations, at the time he used

the recordings.

The government argues that when viewed as a whole,

the instructions adequately instruct the jury on the

government's burden of proof. In its charge, the District

Court discussed “proving the defendant's state of mind."

The Court addressed how difficult it is to prove a person's

state of mind directly, and that it may be proved indirectly

with circumstantial evidence.

You may find that the defendant acted

knowingly if you find that he acted with a

conscious purpose to avoid learning the truth.

Stated ano way, a defendant's knowledge of a

fact may be inferred from his willful blindness to

the existence of a fact. No one can avoid

responsibility for a crime he may be committing

by deliberately ignoring the obvious. A defendant

3Consensual recordings do not violate Title Ill. The Act

provides that it is not unlawful “for a person .. . to intercept a wire

een. ++: Where cae of the Ls oe

communication ven prior consent to such interception.”

U.S.C. § 2511(2(d4) West $970).

A10

cannot deliberately close his eyes to the obvious

risk that he is engaging in unlawful conduct.

These instructions can be construed as referring to

whether or not the defendant knew Mrs. Ricupero lacked

knowledge that her phone was tapped. However, the

instructions and the question of Mrs. Ricupero's

knowledge were never so connected by the court.

Nowhere in its instructions did the court instruct the jury

that the government had to prove the defendant knew or

had reason to know of her lack of consent. The court also

stated that:

The government is not required to prove the

deferdant's motive in engaging in the prohibited

conduci, or that the defendant acted with a bad

purpose, with an intent to violate the law.

The government is also not required to prove

that the defendant knew that he was violating the

law when he allegedly disclosed or used the

contents of the telephone conversations.

And “prohibited conduct" was defined by the court as

knowing use of the contents of a recording which was in

fact made in violation of the Act.

We find that by failing to instruct the jury that it had to

find the defendant knew or had reason to know that the

recordings were made in violation of the Act, the

defendant was deprived of his only defense. The court's

instructions were tantamount to directing a verdict against

the defendant and amounted to plain error.

B. Reason to Know Standard

The court instructed the jury that a “person has reason

to know of a particular fact or circumstance when there is

a reasonable foreseeability of such a fact or

circumstance." The defendant raises several issues

regarding this instruction.

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First, the defendant contends that a statute imposing

criminal liability based upon a person's “knowledge or

reason ta know" may survive constitutional challenge only

if construed to require actual knowledge, intent or bad

faith. The defendant relies upon numerous cases to

support this proposition. Kansas Retail Trade Co-op v.

Stephan, 695 F.2d 1343, 1346 (80th Cir. 1982); New

England Accessories Trade Association, Inc. v. Tierney,

691 F.2d 35, 36-7 (ist Cir. 1982); Tobacco Accessories

and Novelty Craftsmen Me Association of

Louisiana v. Treen, 681 F.2d 378, 385 n.16 (Sth Cir.

1982); New England Accessories Trade Association, Inc.

v. City of Nashua, 679 F.2d 1, 4-5 (lst Cir. 1982);

Florida Businessmen for Free Enterprise v. ae of

Hollywood, 673 F.2d 1213, 1219 (ilth Cir. 1982).

These cases deal with statutes regulating the use and

distribution of drug paraphernalia. The relevant section

prohibited the delivery or manufacture of drug

paraphernalia by one who knew or had reason to know

that the item would be used to take drugs. The statutes

were challenged on the “reason to know standard.” The

challengers alleged that a seller's criminal liability could

be based on the unknown intent of a third party since a

seller cannot know what the ultimate recipient intends to

do with an item. The courts found that, based on a

definitional section of the statutes, an item is only drug

paraphernalia if the seller intends it to be sold for drug

use. Only after finding this requisite intent on the part of

the seller does the seller's constructive knowledge of its

use by a buyer come into play. These cases rejected

challenges to the “reason to know" standard and viewed as

constitutionally proper “that the seller be required to open

his eyes to the objective realities of the sale." Stephan,

695 F.2d at 1346.

There are numerous criminal statutes providing for

criminal liability where the mens rea element is “reason to

know." See e.g., 18 U.S.C. § 1384 (prostitution near

military establishments); 18 U.S.C. § 1546 (fraud and

misuse of visas, permits, and other documents); 18

U.S.C. § 2251 (sexual exploitation of children). We find

Al3

that the reason to know standard is constitutionally

sufficient as a basis for criminal liability.

Second, by couching the “reason to know standard” in

terms of reasonable foreseeability, the defendant alleges

that the court construed and applied section 251 1(1)(d) in

a manner as to render it unconstitutionally vague and

overbroad. The government argues that ngress

intended that the knowledge element of section 2511(1)(d)

could be satisfied upon proof of actual knowledge or the

“reasonable foreseeability” of a fact or circumstance.

The legislative history of Title III states that “(t]he

scope of the knowledge required to violate [section

2511(1)(d)] reflects existing law,” citing Pereira v.

United States, 347 U.S. 1 (1954). In Pereira, the

defendant was convicted of violating the mail fraud

statute, 18 U.S.C. § 1341. The elements of section 1341

are a scheme to defraud, the mailing of a letter for the

purpose of executing the scheme and proof that the

defendant caused the mailing. The only question was

whether Pereira “caused” the mailing. The Court found

that one causes a mailing where 1) one acts with

knowledge that use of the mails will follow, or 2) where

such use can reasonably be foreseen, even though not

actually intended.

We do not interpret Pereira as establishing that

“reasonable foreseeability” sasisfies the “reason to know"

standard of section 2511(1)(d), as the government asserts.

In pol vag case, the court instructed the jury to use

reasonable foreseeability as a basis for finding that the

defendant had reason to know a fact. “A person has

reason to know of a particular fact or circumstance when

there is a reasonable foreseeability of such fact or

circumstance."

We agree with defendant that reasonable foreseeability

does not satisfy the “reason to know" requirement as the

above jury instruction appears to indicate. Reasonable

foreseeability is only a factor to be considered with other

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circumstantial evidence in determinin whether one has

reason to know a fact. Upon lal, the court should

focus on defendant's reason to know rather than on

whether it was reasonably foreseeable that Mrs. Ricu

would or would not consent. We are not concerned beng

with future conduct where foreseeability of what others

will do is relevant.

In a related issue, the defendant argues that due to an

attorney's professional obligations, attorneys are entitled

to a special instruction on the "reason to know" standard.5

The defendant asserts that as an advocate his role is not to

pre-judge the merits of his client's factual allegations.

Mr. Ricupero represented to the defendant that the ta

were made with his wife's knowledge, in which case ey

would not violate Title III. The defendant argues that he

should be able to rely on the factual representations of his

client regardless of his personal opinion as to the client's

credibility. He points to his professional duty to present

any evidence or theory which is arguably viable, subject

to standards of good faith and reasonableness. Because

he proceeded on the belief his client was telling the truth,

the defendant contends he had no “reason to know" Mrs.

Ricupero did not in fact consent to the recordings.

There is nothing in the Act which affords attomeys

special treatment. Accordingly, we find that the

SThe defendant proposed the following instruction:

1. _ A lawyer, in the performance of his duties, has

a right to rely upon information furnished by his

client and to act upon such information.

See ¢.¢., Ohio Code of Professional Responsibility, EC 7-2,

7-3, 7-4, 7-f9' . _ -

A15

defendant was not entitled to a special instruction on the

reason to know standard solely because he used the tapes

in his role as attomey. However, an attorney's

professional duties may be a factor in determining

whether there is reason to know that recorded

information, given by the client, was illegally obtained.

Although an attorney must not tum a blind eye to the

obvious, he should be able to give his clients the benefit

of the doubt. This countervailing duty is one the jury

may take into account in deciding whether defendant had

reason to know.

Ii.

The defendant argues that the trial court erred in failing

to recognize various exceptions to the application of Title

III and thus failed to instruct the jury on the defenses

provided by these alleged exceptions. A district court's

refusal to deliver a requested instruction is reversible only

if that instruction is 1) a correct statement of the law, 2)

not substantially covered by the charge actually delivered

to the jury, and 3) concerns a point so important in the

trial that the failure to give it substantially impairs the

defendant's defense. Uvited States v. Williams, 952 F.2d

1504, 1512 (6th Cir. 1991). We find that the District

Court correctly refused to recognize the asserted

exceptions to the Act, and uphold the Court's decision to

refuse defendant's proposed instructions.

A. Impeachment Exception to Section 2515

Section 2515 of the Wiretap Act serves as an

exclusionary rule. It prohibits any information obtained

from a wiretap from being introduced into evidence “in

any trial, hearing, or other proceeding in or before any

court . . . or other authority of the United States, a State,

or a political subdivision f if the disclosure of that

information would be in violation of this chapter." 18

U.S.C. § 2515.

ern Wr,

A116

_ The Fifth Circuit was the first to recognize an

impeachment exception to this rule in United States v.

Caron, 474 F.2d (Sth Cir. 1973). Since then, three

other circuits have addressed this issue and have followed

tnbal Rice it inion a See,

United States v. larte, 904 F.2d 1391 (9th

Cir. 1990); United States v. Vest, 813 F.2d 477 (1st Cir.

1987); Anthony v. United States, 657 F.2d 870 (10th Cir.

1981), cert. denied, 457 U.S. 1133 (1982).

In finding an impeachment exception to exist, the Fifth

Circuit looked to section 2515's legislative hi which

specifically cites Walder v. Ui States, 347 U.S. 62

(1954). passage explicitly states that section 2515

a i +p gach Foner to...

press scope 0 suppression role beyond present

search and seizure law. See Walder v. United States, 347

U.S. 62 (1954)."_ S. . No. 1097, 90th Cong., 2d

Sess. 1 (1968), reprin in 2 U.S. Code Cong. &

Admin. News 2112, 2185 (1968). Walder was the first

case to establish an impeachment exception to the Fourth

Amendment exclusionary rule. It involved a perjury

prosecution in which the government used illegally seized

evidence to impeach the defendant. Likewise, in Caron,

the defendant was indicted for giving false testimony to

the grand jury. The prosecution introduced into evidence

recordings of conversations to which the defendant was a

party without a prior evidentiary hearing on their validity.

The use of this exception to section 2515 has been

limited thus far to government prosecutors. The

defendant requests both that this Court follow the a

Circuit in recognizing the impeachment exception, an

that we extend its availability to private individuals.

Whether or not an impeachment exception exists at all

is an open question in this Circuit. The plain language of

section 2515 allows for no exceptions to its reach.

"[W]here ... the statute's language is plain, ‘the sole

function of the courts is to enforce it according to its

terms.’" United States v. Ron Pair Enterprises, Inc., 489

Al7

U.S. 235, 241 (1989) (quoting Caminetti v. United States,

242 U.S. 470, 485 (1917)). In United States v. Vest, the

First Circuit stated that:

[We believe that if Congress had intended to

commit the courts general authority to create

exceptions to section 2515 in the same manner as

the courts might develop future exceptions to the

fourth amendment exclusionary rule, Congress

could certainly have said so more clearly.

813 F.2d at 482. However, assuming that an exception

exists in the criminal law based on Congress’ express

approval in the legislative history to the continued use of

illegally obtained wiretap evidence for impeachment

* by the government in criminal cases, we see no

asis to create such an exception in civil actions between

private parties.

Recently, this Court laid out the purposes of the

Wiretap Act.

Title III has as its dual purpose (1) protecting the

privacy of wire and oral communications, and (2)

delineating on a uniform basis the circumstances

and conditions under which the interception of

wire and oral communications may be authorized.

[A]lthough Title Ill authorizes invasions of

individual privacy under certain circumstances, the

protection of privacy was an overriding

congressional concem.

Fultz v. Gilliam, 942 F.2d 396, 401 (6th Cir. 1991)

(citations omitted; emphasis added).

In light of this overriding concern for protectior of

privacy, and because the Act sets out when certain uses or

disclosures of wiretap material are authorized, it may be

a that “what is not permitted is forbidden.” Id. at

Therefore, since section 2515 allows for no

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Ai8

exceptions, we refuse to go an impeachment

exception to section 2515 in civil proceedings. The

greater value to society to learn the truth in criminal cases

where it may be discovered by impeaching materials, even

if unlawfully obtained, may outweigh the individual rights

to fore. While in the civil context, it is principally the

individual rights that are at issue and Congress has

balanced the scale in favor of the right of privacy.

An additional consideration for treating civil and

Criminal cases differently is that evidence of impeachment

in criminal cases, with very limited exceptions, occurs at

the trial under the supervision of the court. This is not

true in civil cases where there is extensive impeachment at

depositions. Most use of wiretaps-—when not used for

tortious or criminal purposes which are covered by other

sections of the Act-will be in litigation and for

impeachment. A blanket impeachment exception would

swallow up the statutory prohibition.

B. Interspousal Exception

Next, the defendant contends that the trial court's

failure to instruct on the conflicting interpretations of Title

III, concerning the existence of an_ interspousal

wiretapping exception to section 2511(i)(a), was error.

“(T]he unlawfulness of interspousal wiretapping has been

a settled point of law in this Circuit since our decision in

[United States v. Jones, 542 F.2d 661 (6th Cir. 1976)}."

Fultz, 942 F.2d at 404. Concededly, in Simpson v.

Simpson, 490 F.2d 803 (Sth Cir.), cert. denied, 419 U.S.

897 (1974), the Fifth Circuit held that section 2511(1)(a)

was not intended to prohibit purely interspousal wiretaps

placed on telephones in the marital home. The Jones

Court rejected this view. Unlike the Fifth Circuit, this

Court was unwilling to look beyond the language of

section 2511(1)(a) which clearly expresses a blanket

prohibition on all electronic surveillance (except under

A19

circumstances specifically enumerated in the statute).7

We are bound to follow Jones. There is no interspousal

exception to the Act.

The defendant proposed the following instruciion:

Even though you have been instructed that

tapping a telephone in the marital residence while

the spouses live together is not legal, you may

consider the evidence that the federal courts are in

disagreement on this issue when determining

whether Wuliger knew or had reason to know that

the taps involved in this case were illegal.

The defendant alleges that in his research he discovered

the Simpson case, and cases indicating that Ohio domestic

relations courts were allowing the use at trial of

rere wiretap recordings or of information derived

therefrom. E.g., Beaber v. Beaber, 41 Ohio Misc. 95,

322 N.E.2d 910 (Ohio Com PI., 1974). He submits that

because of this precedent, he believed that the tapes Mr.

Ricupero made were legal and therefore the existence of

these cases bore on his knowledge or reason to know

whether the tapes were made in violation of the Wiretap

Act.

Due to this mistake, the defendant contends that he did

not possess the requisite knowledge to violate section

2511(1)(d). In Fultz, 942 F.2d at 396, we addressed a

very similar issue under section 2511(1)(c) which

prohibits disclosure of the contents of an intercepted

communication, by an individual knowing or having

reason to know that the information was obtained ihrough

an interception in violation of Title III. The defendant in

Fultz asserted that "not even the Circuit Courts are in

agreement whether interspousal wiretapping is a violation

of the Federal Wiretapping Act or is excluded.” /d. at

404. The Court rejected the defendant's argument that he

TSee, 18 U.S.C. §§ 2510(5)(a), 2511(2M(aM(i), 2511(2)(a)(ii),

2511(2)(b)-{e). §§ 2510(5X(2) (2(a)(1) (2)(a)(ii)

‘te M lbanie Siete es a eee

RMSE Oe Ad pated oat ee gore seins 2

A20

lacked the requisite mental state because the argument was

premised on a mistake of law, which has long been

recognized as no defense to a criminal prosecution. See

Cheek v. United States, 498 U.S. 192, __, 111 S. Ct.

604, 609 (1991).

We interpret the defendant's proposed instruction as a

request for a mistake of law defense and, therefore, find

that the District Court did not err in refusing to give it.

C. Good Faith Defense

Next, the defendant claims that there is a statutory

"good faith" defense which authorized his conduct. To

support his theory, he cites section 2520(d), which

provides in pertinent part that:

a good faith reliance on ... a court warrant or

order, a grand jury subpoena, a legislative

authorization, or a statutory authorization .. . is a

complete defense against any . . . criminal action

brought under this chapter... .

18 U.S.C. § 2520(d). The defendant then asserts that

because the Ohio Code of Professional Responsibility is

both a court order and a legislative authorization, he is

entitled to an acquittal since he “relied on” the Code in

deciding whether or not to use the tapes. Nothing in the

Code “authorizes” the defendant to violate Title III in

carrying out his professional duties. The defendant's

reliance on section 2520 is mistaken; it is not applicable to

this case. This defense was intended in part to protect

telephone companies or others who cooperate under court

order with law enforcement officials. Jacobson v. Rose,

592 F.2d 515, 522-23 (9th Cir. 1978), cert. denied, 442

U.S. 930 (1979).

D. Consent to Use Defense to Section 2511(1)(d)

The defendant further assigns as error the trial court's

failure to recognize a “consent to use" defense. No crime

A21

is committed under the Act by one who intercepts and

records a telephone conversation with the priar consent of

one of the parties. 18 U.S.C. § 2511(2)(d). The

defendant submits that even though the statute does not

explicitly so provide, jit is sim.iarly no crime for one to

use or disclose information from an illegal intercept where

one of the parties consents to such use or disclosure.

The defendant cites United States v. Bragan, 499 F.2d

1376 (4th Cir. 1974), in support of this view. The

Bragan court found that “[bJecause Bragan's victims

consented to the introduction into evidence of their

wiretapped conversation, the exclusionary rule of 18

U.S.C. § 2515 did not render inadmissible the wiretaps

Bragan made in violation of 18 U.S.C. § 2511." dd. at

1380 (footnote omitted). But a careful reading of this

case indicates that the court admitted the contents of the

recordings into evidence not because the victims

consented to their admission, but rather, because they

consented to the recording itself. Id. The statute does not

expressly provide a “consent to use” exception to section

2511(1)(d).

Additionally, the defendant contends that because Mrs.

Ricupero consented to the use of the recordings and failed

to make a motion to suppress, she waived the right to

contest the admissibility of the wiretap under section

2518(10)(a). This section provides that:

be aggrieved person in any . . . proceeding in or

before any court, ... may move to suppress the

contents of any ... communication intercepted

pursuant to this chapter ... on the grounds ...

that the communication was unlawfully intercepted

Such motion shall be made before the ...

proceeding unless there was no opportunity to

make such motion or the person was not aware of

the grounds of the motion.

MRS REE OR bpp eayikvath ES RIB Te an AES GASB lL SIN egaE OA aac ID Be i tN A Sei -

Se a eae

A22

18 U.S.C. § 2518(10)(a). This section is not applicable

to this case. It could apply if Mrs. Ricu was

contesting the admissibility of the recordings in a civil

suit, but we are not concerned with the rights of Mrs.

rg 0 This case involves the criminal prosecution of

Mr. Wuliger and thus the notion of waiver is irrelevant.

E. Instruction on Mr. Ricupero's Credibility

Next, the defendant claims as error the trial court's

failure to give the defendant's ar 0g jury instruction

number 12. This instruction provided an explanation that

a grant of immunity did not grant witnesses any license to

give false testimony or to commit perjury or obstruction

of justice.® The trial court instructed the jury that because

Mr. Ricupero was given use immunity in exchange for his

truthful testimony, it should consider his testimony with

more caution and whether this promise could have

influenced his testimony.

The defendant argues that the court should not have

given this “grain of salt" instruction because the

immunized testimony exculpated the defendant.

Mr. Ricupero testified that when he presented the tapes to

the defendant he represented that his wife knew he had

recorded them. The defendant asserts that this

exculpatory testimony was gee | to the wishes of the

entity granting the immunity, his testimony should

have been given even more credence by the jury.

The government counters that the testimony inculpated

the defendant. Mr. Ricupero admitted that when he

8The defendant proposed the following instruction:

were not. given immunity to give false statements

to commut perjury or the obstruction of justice.

A23

installed the wiretap device he did not have his wife's

permission to do so. But this testimony doesn't establish

that the defendant knew of this fact. In terms of what the

defendant knew, Mr. Ricu *s testimony shows onl

that he told the defendant the tapes were made with

his wife's knowledge. Because the testimony was

exculpatory, the instruction was inappropriate. However,

because the Court instructed the jury that Mr. Ricupero

was given immunity in exchange for his ¢ruthful

testimony, we find that the failure to give the defendant's

uested instruction did not substantially impair the

defendant's defense.

IV. Denial of Motion For Judgment of Acquittal

The defendant asserts that the trial court's denial of his

motion for judgment of acquittal after the verdict, Fed. R.

Crim. P. 29(c), is grounds for reversal. This Court must

review the denial of a motion for acquittal de novo under

the standard of “whether, after reviewing all the evidence

in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of a

crime beyond a reasonable doubt." United States v.

Busacca, 936 F.2d 232, 239 (6th Cir.), cert. denied, 112

S. Ct. 595 (1991) (quoting Jackson v. Virginia, 443 U.S.

307, 319 (1979)).

The defendant contends that he is entitled to an acquittal

because there was evidence that Mrs. Ricupero knew her

telephones were being recorded. Section 2511(2)(d)

provides that it is no crime under the Act for one to

record a conversation if one of the parties thereto

consents. And thus, the defendant claims that his conduct

could not be criminal if the recordings were lawful. The

trial court instructed the jury that since Wuliger raised the

issue of “consent,” the government “must prove beyond a

reasonable doubt that Polly Ricupero did not give her

rior consent to the interception of her telephone calls."

There is ample evidence in the record indicating that in

mid-March 1989 Mrs. Ricupero was unaware that her

telephone calls were being recorded. The record indicates

ter most of the conversations were recorded. More

importantly, she testified she did not actually know of the

wiretap until the April 10th hearing ‘at which the

defendant first used the recordings.

Vv.

Under section 2511(1)(d), the government must prove

beyond a reasonable doubt that the defendant knew or had

reason to know that the recordings he used were obtained

in violation of the Act. The District Court's failure to

instruct the a? 4 properly on the requisite mental element

of section 11(1)(d) amounted to plain error.

Accordingly, we REVERSE the defendant's conviction

and REMAND the case for a new trial consistent with this

opinion.

A25

WELLFORD, Senior Circuit Judge, concurring. I am

in full agreement with all but part IL.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(1)(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 interception 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 oe 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 Ricupero, 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(1)(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

A26

jury. The district court adequately advised the jury that

the government had to prove all the elements

charged in the indictment bapend s sessonsbte deutt.

The elements as set out by the district court omitted the

requirement that dealt with vg taps elle pelle torarse

about the interception's being in vi of law; that is,

without the consent or approval of the user,

Polly Ricupero. (Wilhelm) (18 U.S.C. § 2511(1)(d)).

"Even if an instruction issible viewed in

isolation, the preccin | court ds 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 (1987) (holding 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.‘ 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

VWuliger’s law office assistants had this impression.

2Wuliger later disposed of the transcripts.

A27

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.

A-28

Case No. 92-3061

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA |

Plaintiff-Appellee, :

vs. > ORDER

WILLIAM T. WULIGER

Defendant-Appellant.

BEFORE: KENNEDY AND MILBURN, Circuit Judges; and

WELLFORD, Senior Circuit Judge.

Upon consideration of the petition for rehearing filed by the

appellee,

It is ORDERED that the petition for rehearing be, and it

hereby is, DENIED.

WELLFORD, Senior Circuit Judge, concurring:

As indicated in my initial separate opinion, I find this to be

a very close case. United States v. Chan Chun-Yin, 958 F.2d 440

(D.C. Cir.), cert. denied, 112 S. Ct. 3010 (1992), is a basis for

finding that the omission in the jury instruction may be harmless

error. I find an insufficient basis to dissent from denial of a

rebearing, but the court may deem it a proper candidate for

ie alr detail ahi IN 1 tas eg ei Mit kn Pan AS Sor SA EU Leprph acta tne eo eee eee CTR OER PE -

sn" CN anes 28 eet to eg ape Aires IOinD eRe. GAL EL POUR VCR eL iS Stk Spaniel i ace eat a Ree sama | Wien

A-29

rehearing en banc, because this controversy involves a statute and

interesting issue not previously considered by the Sixth Circuit.

This Court “should not exercise [its] discretion [to correct the

forfeited error] unless the error “seriously affect{[s] the fairness,

integrity or public reputation of judicial proceedings.” United States

y. Young, 470 U.S. 1, 15 (1985\quoting United States v, Atkinson,

297 U.S. 157, 160 (1936)).” United States v. Olano & Gray,

—US._. 61 US.LW. 4421, 4423 (April 26, 1993(emphasis

added). I am not sure that the error in jury instruction did seriously

or necessarily affect the fairness and integrity of the proceedings

against Wuliger, an experienced trial counsel.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

A-30

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO, EASTERN DIVISION

UNITED STATES OF AMERICA Judgment In A Criminal Case

v. For Offenses Committed On

or After November 1, 1987)

WILLIAM T. WULIGER

Case Number-1-91CR0104-001

(Name of Defendant) Jack G. Day

Defendant's Attorney

THE DEFENDANT:

Opleaded guilty to count(s)

was found guilty on count(s)__4, 6,8 _after a plea of not guilty.

Accordingly, the defendant is adjudged guilty of such

count(s), which involve

the following offenses:

Date Offense Count

Title & Section Nature of Offense Concluded Number(s)

18 U.S.C. Intentional Use of

2511(1d) Illegally 5/24/89 4

Intercepted Wire

communications, 5/26/89 6

A Class D Felony 7/8/89 8

The defendant is sentenced as provided in pages 2 through

4 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

A-31

Judgment-Page __2_ of _9

@iThe defendant has been found not guilty on count(s)_], 2, 3, 5.

2___., and is discharged as to such count(s).

OoCount(s)__(isXare) dismissed on the motion of the United States.

Blt is ordered that the defendant shall pay a special assessment of

$50.00 , for count(s) 4. 6, 8 ($150.00) , which shall be due

& immediately 0 as follows:

IT IS FURTHER ORDERED that the defendant shall notify

the United States attorney for this district within 30 days of any

change of name, residence, or mailing address until all fines, ~~

restitution, costs, and special assessments imposed by this judgment

are fully paid.

Defendant's Soc. Sec. No.:_274-40-1705

Defendant's Date of Birth:_2/]5/44 _ January 9, 1992

Date of Imposition of

Defendant's Mailing Address: Sentence

35939 Solon Road

Bentleyville, Ohio Signature of Judicial

Officer

Defendant's Residence Address:

George W. White,

__‘Same as above __ US. District Judge

Name & Title of Judge

Date

A-32

Judgment-Page 3 of _9

PROBATION

The defendant is hereby placed on probation for a term of two

(2) years.

While on probation, the defendant shall not commit another

Federal, state, or local crime, shall not illegally possess a controlled

substance, and shall not possess a firearm or destructive. The

defendant also shall comply with the standard conditions that have

been adopted by this court (set forth below). If this judgment

imposes a fine or a restitution obligation, it shall be a condition of

probation that the defendant pay any such fine or restitution. The

defendant shall comply with the following additional conditions:

During the first thirty days of probation the defendant shall remain

at his place of residence unless given written permission in advance

by the U.S. probation Office to be elsewhere (work/medical release

privileged granted).

The defendant will immediately surrender his license to practice

law.

THE ABOVE SENTENCE IS STAYED PENDING A RULING

BY THE U.S. COURT OF APPEALS.

A-33

Judgment-Page __4 of _9

STANDARD CONDITIONS OF SUPERVISION

While the defendant is on probation pursuant to this judgment, the

defendant shall not commit another federal, state or local crime. In

addition:

1) the defendant shall not leave the judicial district without the

permission of the court or probation officer,

2) the defendant shall report to the probation officer as directed by

the court or probation officer and shall submit a truthful and

‘complete written report within the first five days of each month;

3) the defendant shall answer truthfully all inquiries by the

probation officer and follow the instructions of the probation

officer,

4) the defendant shall support his or her dependents and meet other

family responsibilities;

5) the defendant shall work regularly at a lawful occupation unless

excused by the probation officer for schooling, training, or other

acceptable reasons;

6) the defendant shall notify the probation officer within 72 hours

of any change in residence or employment,

oo OP ere

A-34

Judgment-Page 5 of = Ty

7) the defendant shall refrain from excessive use of alcohol and

shall not purchase, possess, use, distribute, or administer any

narcotic or other controlled substance, or any paraphernalia related

to such substances, except as prescribed by a physician;

8) the defendant shall not frequent places where controlled

substances are illegally sold, used, distributed, or administered:

9) the defendant shall not associate with any persons engaged in

criminal activity, and shall not associate with any person convicted

of a felony unless granted permission to do so by the probation

officer,

10) the defendant shal] permit a probation officer to visit him or

her at any time at home or elsewhere and shall permit confiscation

of any contraband observed in plain view by the probation officer;

11) the defendant shall notify the probation officer within seventy-

two hours of being arrested or questioned by a law enforcement

Officer,

12) the defendant shall not enter into any agreement to act as an

informer or a special agent of a law enforcement agency without

the permission of the court;

A-35

Judgment-Page __6 of _9

13) as directed by the probation officer, the defendant shall notify

third parties of risks that may be occasioned by the defendant's

criminal record or personal history or characteristics, and shall

permit the probation officer to make such notifications and to

confirm the defendant’s compliance with such notification

requirement.

FINE

The Defendant shall pay a fine of $_5,000.00 _. The find

includes any costs of incarceration and/or supervision.

counts, as follows:

ability to pay interest. It is ordered that:

OC) The interest requirement is modified as follows:

This fine plus any interest required shall be paid:

0) in fully immediately

A-36

Judgment-Page __7 of _9

C in full not later than

DC in equal monthly installments over a period of

months. The first payment is due on the date of this judgment.

Subsequently payments are due monthly thereafter.

payments:

Be.

If the fine is not paid, the court may sentence the defendant to any

sentence which might have been originally imposed. See 18 U.S.C.

§ 3614.

A-37

Judgment-Page 8 of _9

STATEMENT OF REASONS

C The court adopts the factual findings and guideline application in

the presentence report. |

ie ee my

G3 The court adopts the factual findings and guideline application in

the presentence report except (see attachment, if necessary): The

court did not add two points for adjustment to obstruction of

justice.

Guideline Range Determined by the Court:

Total Offense Level:___7

Criminal History Category:___]

Imprisonment Range:__]_ to __7_ months

Supervised Release Range:_2 to _3_ years

Fine Range: $__ 1,000 _ to $_10,000__

C) Fine is waived or is below the guideline range, because

of the defendant's inability to pay.

Restitution: $

O Full restitution is not ordered for the following

reason(s):

A-38

Judgement-Page 9 of 9

C) The sentence is within the guideline range, that range does not

exceed 24 months, and the court finds no reason to depart from the

sentence called for by application of the guidelines.

C) The sentence is within the guideline range, that range exceeds 24

months, and the sentence is imposed for the following reason(s):

The sentence departs from the guideline range

0) upon motion of the government, as a result of defendants

substantial assistance.

A-39

18 U.S.C. § 2511. Interception and disclosure of wire, oral,

or electronic communications prohibited

(1) Except as otherwise specifically provided in this chapter

any person who -

sss

(d) 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 punished as provided in subsection (4) or shall be subject

to suit as provided in subsection (5).

18 U.S.C. § 2511(2\d)

(d) It shall not be unlawful under this chapter for a person not

acting under color of law to intercept a wire, oral, or electronic

communication where such person is a party to the communication

or where one of the parties to the communication has given prior

consent to such interception unless such communication is

intercepted for the purpose of committing any criminal or tortious

act in violation of the Constitution or laws of the Unites States or

of any State.

18 U.S.C. § 2515. Prohibition of use as evidence of

intercepted wire or oral communications

Whenever any wire or oral communication has been intercepted,

no part of the contents of such communication and no evidence

derived therefrom may be received in evidence in any trial, hearing,

or other proceeding in or before any court, grand jury, department,

officer, agency, regulatory body, legislative committee, or other

authority of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in violation

of this chapter.

18 U.S.C. § 2518(10)\a)

(10a) Any aggrieved person in any tial, hearing, or

proceedings in or before any court, department, officer, agency,

regulatory bid, or other authority of the United States, a State, or

political subdivision thereof, may move to suppress the contents of

any wire or oral communication intercepted pursuant to this

chapter, or evidence derived therefrom, on the grounds that -

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which

it was intercepted is insufficient on its face; or

the interception was not made in conformity with

the order of authorization or approval.

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Such motion shall be made before the trial, hearing, or proceeding

unless there was no opportunity to make such motion or the person

was not aware of the grounds of the motion. If the motion is

granted, the contents of the intercepted wire or oral communication,

or evidence derived therefrom, shall be treated as having been

obtained in violation of this chapter. The judge, upon the filing of

such motion by the aggrieved person or his counsel for inspection

such portions of the intercepted communication or evidence derived

therefrom as the judge determines to be in the interests of justice.

18 U.S.C. § 2520(d)

(d) Defense. - A good faith reliance on -

(1) a court warrant or order, a grand jury subpoena, a

legislative authorization, or a statutory authorization;

(2) a request of an investigative or law enforcement officer

under section 2518(7) of this title; or

(3) a good faith determination of that section 2511(8) of this

title permitted the conduct complained of;

is a complete defense against any civil or criminal action brought

under this chapter or any other law.

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LAWYER IS CONVICTED OF EMPLOYING EVIDENCE

WIRETAPPED BY HIS CLIENT

By Milo Geyelin and Christi Harlan - Staff Reporters of the Wall

Street Journal

A federal jury in Cleveland convicted a lawyer of using

wiretapped phone conversations gathered illegally by his client in

a divorce case, believed to be the first such prosecution of a lawyer

under federal wiretap statute in the country.

The case highlights a problem long recognized by divorce

lawyers, the illegal gathering of information against husbands and

wives by their estranged spouses. It also highlights a question over

which courts remain deeply split: does the Federal Wiretap Act of

1968 bar family members from tape recording each other’s

conversations?

The legislative intent of the federal law, as applied to families,

has always been unclear. Last January it became an issue in a

sensational murder trial in California. That case involved a woman

accused of murder who allegedly plotted her husband's death over

the phone, only to find herself incriminated because her husband

had installed a voice activated tape recorder.

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A California state appeals court ruled that the tapes could be

used against her at a trial: “Interspousal eavesdropping and phone

tapping in the family home, over family phones,” the court ruled,

are not prohibited by the federal wiretap act. That case has since

been appealed to the California Supreme Court.

The Cleveland case raised the same issue, though not as

dramatically. Cleveland attorney William T. Wuliger accepted

several tape recordings from his client of conversations on his

home phone. The conversations included some between the client's

wife and her boyfriend. Mr. Wuliger had nothing to do with the

taping but reasoned that his client's wife gave implicit consent to

being recorded because in one conversation she openly voiced her

suspicion that the line was tapped.

Mr. Wuliger subsequently used transcripts from the

conversations in two hearings and two depositions. Federal

prosecutors decided to pursue him because the Justice Department's

“priority is to go after the professionals involved,” said a prosecutor

involved in the case. Mr. Wuliger’s client received immunity and

was not prosecuted because his testimony was needed to convict

Mr. Wuliger.

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A prosecutor said that nearly 80% of illegal electronic

surveillance, including wiretapping, occurs in divorce cases.

Bringing criminal charges in this imstance was seen as an

opportunity to deter continued abuses, the prosecutor said.

Lawyers who specialize in family law said yesterday that

clients in contested or bitter divorce cases frequently wiretap their

home phones to gather incriminating evidence. To the fighting

parties, said Gary Skoloff, past chairman of the American Bar

Association's family law section, wiretapping is not much different

than opening a spouse's mail.

"Unfortunately, wiretapping is more widespread than most

people realize,” said Mr. Skoloff, adding that most divorce lawyers

shun it because of criminal implications.

John Garver, Mr. Wuliger’s attorney in Cleveland, said he

plans to appeal the verdict.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.