When asked whether he would be able to prepare additional
items on short notice — specifically the drop-in telephone
transmitters and a special receiver — Wynn answered "for a set
like that it takes a day to put it together." Gov't Exhibits #
36 and # 37.
On November 13, Special Agent Galloway travelled to Houston,
Texas. In Houston he placed a call to Wynn from the local FBI
office. Galloway and Wynn arranged to meet the next day. Gov't
Exhibits # 38 and # 39.
In a telephone conversation the next day, Special Agent
Galloway and Wynn arranged a meeting at Wynn's house. Gov't
Exhibits # 40 and # 41. Galloway and FBI Special Agent Martin
Patterson went to Wynn's home where, acting undercover, they
were greeted by Wynn and welcomed in.*fn5 Wynn acknowledged
that he had spoken "alot" with "Bergschneider" (Galloway) on
Once inside, Wynn informed Galloway that he had his order
finished. Wynn explained the operation of the SR-1000 special
receiver. He advised Galloway that the SR-1000 would work with
all of the other devices in the order.
Wynn and Galloway next discussed the Model 2000 Cigarette
Package transmitter. Wynn informed Galloway that he could not
provide the advertised plastic Winston cigarette case for the
device since the Winston company had forced the company that
made them to stop. Wynn added however that the device could be
placed inside a cardboard cigarette package.
Galloway expressed concern about placing too many details as
to how he intended to use the devices in letters to Wynn. Wynn
stated that he didn't see any problem. Wynn also pointed out
that no one could find out that ABLE dealt with him since he
didn't give out mailing lists.
Wynn and Galloway also discussed the possibility of
constructing an eavesdropping device for a businessman's
office that could not be detected during a "sweep" of the
office. Wynn commented that some of the local oil companys
hired outside agencies to occasionally check their offices.
Wynn informed Galloway that such a device was possible but
that it might get too large. Wynn estimated its price at
In answer to a question by Galloway, Wynn stated that he had
heard of eavesdropping devices being placed in wall outlets.
He stated that he had seen such devices but cautioned that
they were dangerous since they got hot.
Wynn also explained to Agent Galloway how he could avoid
legal problems when selling the devices to others. Wynn
advised Galloway to tell the buyer that the devices were
"microphones", not "bugs", and that he could not be
responsible for whatever the buyer used it for. Wynn informed
Galloway of a friend of his that had "beat" an indictment in
Following this conversation, Wynn, Galloway and Patterson
left Wynn's house and placed all of the items (Gov't Exhibits
# 44 thru # 48), in the trunk of Galloway's car.*fn6 The sale
of these items for interstate transport forms the basis of
Immediately after the devices were placed in Galloway's car,
Patterson identified himself to Wynn as an FBI agent. Several
FBI agents, Texas State Police officers and Houston police
officers then executed a search warrant on Wynn's home.
Wynn does not contest the accuracy of any of the recorded
telephone conversations. Wynn does contest various portions of
the body microphone recording made at his home on November 14.
He has submitted with his stipulation changes to six pages of
the transcript of this recording. Of the changes he makes, all
are minor and bear at best minimally on the substance of the
charges. Only one change arguably bears on the resolution of
this case: in response to Special Agent Galloway calling
the transmitters "bugs", Wynn stated that "these are not bugs
that's ilegal [sic] these are wireless microphones." Having
listened to the tape, this court can find no support for this
insertion; the transcription appears to be accurate. In any
case, it is clear that later in the tape Wynn does say that
the devices he was selling to Galloway were not "bugs". Wynn
consistently refers to the devices as "wireless microphones"
or "microphones". Thus, Wynn's insertion adds little if
anything to the substance of the conversation.
There is no dispute in this case that Wynn advertised, sold
or made the devices that form the basis of the indictment.
Wynn argues that: (1) the devices are not "primarily useful
for the purpose of surreptitious interception of wire or oral
communications" ("PSIC"); and, (2) even if they are, he did
not possess the requisite criminal state of mind for a
violation of Section 2512. The government of course takes the
opposite position regarding each contention.
A. PRIMARILY USEFUL FOR SURREPTITIOUS INTERCEPTION
Interpreting the legislative history and language of Section
2512, the Seventh Circuit recently stated:
The statute was intended to focus on a relatively
narrow category of devices and apparatus whose
design renders them useful primarily for
surreptitious listening. See S.Rep. No. 1097, 90th
Cong., 2d Sess. 94-95, reprinted in 1968 U.S.C.ode
Cong. & Ad.News 2112, 2183 ["Senate Report"]. The
statute was not intended to prohibit the use of a
device merely because it may be adapted to
wiretapping or eavesdropping; by the same token,
however, a device does not fall outside the ambit
of the statute merely because it may have innocent
uses. The inquiry is to be directed toward whether
the device is designed in such a way that its
"principal use is likely to be for wiretapping or
eavesdropping." Id. (emphasis added).
United States v. Pritchard, 745 F.2d 1112, 1114, 122-23 (7th
Cir. 1984) (Pritchard I). See also United States v. Pritchard,
773 F.2d 873, 878-79 (7th Cir. 1985) (Pritchard II); United
States v. Bast, 495 F.2d 138, 143 (D.C. Cir. 1974). In
determining whether the primary use of a device is for
wiretapping or eavesdropping, "the sort of judgment called for
. . . in close cases . . . warrant[s] the use of expert
testimony." Senate Report at 95, U.S.Code Cong. & Admin.News
1968, p. 2183.
The government presents two expert witnesses in this regard:
Special Agent Kurt Schmid of the Illinois Department of Law
Enforcement and Supervisory Special Agent Charles Wilmore,
Jr., of the FBI. As a preliminary matter, this court rejects
Wynn's opinion that neither of these witnesses are qualified
to render an expert opinion in this case. Special Agent Schmid
has a technical electronics background and lists extensive
experience concerning the electronics of eavesdropping
devices. Special Agent Wilmore has been with the FBI for 20
years and has extensive experience with electronic
communications devices. Importantly, Special Agent Wilmore was
accepted as an expert witness concerning electronic
eavesdropping devices in both Pritchard I and Pritchard II.
Special Agent Schmid opined that each device listed in the
indictment was designed primarily for surreptitious
interception. He found that the PT-103 Drop-In Telephone
Microphone had a virtually infinite life, was easily installed
and had only a remote possibility of discovery.
Schmid determined that the SR-1000 receiver with recording
capability was a commercially available radio receiver that
had been modified by the addition of two toggle switches and
voice operated relay (VOX) circuitry.
One toggle switch disables the receiver's speaker
for covert listening purposes. The second toggle
switch incorporates VOX circuitry. . . . With the
toggle switch in the position where the VOX is
in circuit, the tape recorder . . . operates only
when activity is occurring in the target area
thus conserving recording tape.
Gov't Stipulation at 23-24. The modifications in Schmid's
opinion render the otherwise commercially available