# Petition for Writ of Certiorari — Wuliger v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0929%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1191 ## Text 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? ii 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 v 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 2 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 3 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 4 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. 5 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. 7 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. 8 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 9 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 10 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 11 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 12 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. 13 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. 14 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. 15 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. 16 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 17 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 18 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 19 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, 20 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 21 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 22 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 23 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. 24 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, 25 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. 26 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 27 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. 28 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 29 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. 30 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. 31 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. U 32 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. 33 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). 34 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 35 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 36 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 © 37 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 38 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 39 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. 40 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 41 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. 42 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 43 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. 44 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. 45 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 46 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. 47 "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. 48 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 ai 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 50 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 51 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. 52 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 EO 53 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. 54 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. 55 970 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 56 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. 57 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 58 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. Dicieaedaeat enema Seabee yah habe 59 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 60 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 61 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. 62 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 63 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. od 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 A2 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. I. 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. A3 oe 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. AG 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 A6 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 A7 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 emma mamma emcee aaa eaneiamrenaiaan nee 2 per ee ys oe hee Lee ae Rea ae eee OT SU ENS RO SRS CT Et ie aa ht aa Sak Bie ti a i be ce ne bi CH BIRR A 8 LI NA ici a ad a sie il cd a 5! Be AQ 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. er we Se cy oe Te ee ee ee ee ae ee a ee ee ee ee ee ey ee ee DS me ee oP nn ee Al) 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 “ > Lt piteatte na sie Brae Ore pa i ste Al4 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 Resp [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0929%3A1. Public record. Not legal advice.