United States District Court, Central District of Illinois, Springfield Division
February 4, 1992
UNITED STATES OF AMERICA, PLAINTIFF,
STEPHEN L. SHRIVER, JOSEPH R. DENMAN, HARRY LAWRENCE DALY, AND JOSEPH D. FONES, DEFENDANTS.
The opinion of the court was delivered by: Richard Mills, District Judge:
What do a martini olive transmitter and a modified satellite
television descrambler have in common?
Fortunately, for the Defendants: nothing.
The issue in this case is whether modified satellite
television descramblers are primarily useful for the
surreptitious interception of electronic communications.
This Court concludes that they are not.
Defendants move to dismiss the superseding indictment, which
charges them with conspiracy to violate 18 U.S.C. § 2511-12,
1343 and 47 U.S.C. § 605 for allegedly selling modified
satellite television descramblers which the Government asserts
were primarily useful for the purpose
of surreptitious interception of wire, oral or electronic
In order to thwart the unauthorized reception of signals and
to prevent owners of home satellite dishes from accessing,
without charge, programming for which cable recipients must pay
subscription fees, television programmers "scramble" the audio
and video signals being transmitted. A television descrambler
(via circuit boards and computer chips) allows the owners of
satellite dishes to receive premium programming. Ordinarily,
these devices are purchased and attached to home satellite
dishes thereby permitting the owners to view programs to which
they have subscribed. However, unscrupulous individuals have
learned to modify descramblers so that these devices can
receive premium programming without authorization or payment of
subscription fees and sell them to owners and potential buyers
of home satellite dishes who are willing to pay a high price.
Defendants are accused of conspiring to manufacture, possess
and sell modified television descramblers, for monetary
benefits; thereby defrauding the programmers of scrambled
satellite television broadcasts in violation of, inter alia,
18 U.S.C. § 2511-12.
This case boils down to the difficult and "shaky endeavor" of
statutory interpretation. Environmental Defense Fund, Inc. v.
Chicago, 948 F.2d 345, 350-51 (7th Cir. 1991). 18 U.S.C. § 2510
et seq. are commonly known as the Wiretap Laws. The Wiretap
Laws were amended in 1986 and provide criminal penalties for:
(1) . . . any person who intentionally —
(a) sends through the mail, or sends or carries
in interstate or foreign commerce, any electronic,
mechanical, or other device, knowing or having
reason to know that the design of such device
renders it primarily useful for the purpose of the
surreptitious interception of wire, oral, or
(b) manufactures, assembles, possesses, or sells
any electronic, mechanical, or other device,
knowing or having reason to know that the design
of such device renders it primarily useful for the
purpose of the surreptitious interception of wire,
oral or electronic communications, and that such
device or any component thereof has been or will
be sent through the mail or transported in
interstate or foreign commerce;
18 U.S.C. § 2512.
A difficult question of statutory interpretation which has
caused a split of opinion between the Circuits now confronts
this Court, we must determine whether Defendants are amenable
to conviction under this statute.
A. Principles of Statutory Interpretation
The starting point in interpreting a statute is the language
of the statute itself. Demarest v. Manspeaker, ___ U.S. ___,
111 S.Ct. 599, 112 L.Ed.2d 608 (1991) and ambiguous criminal
statutes must be narrowly construed in favor of the accused.
Rewis v. United States, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d
493 (1971). "It is a basic principle of statutory construction
that a statute dealing with a narrow, precise, and specific
subject is not submerged by a later enacted statute covering a
more generalized spectrum." Radzanower v. Touche Ross & Co.,
426 U.S. 148, 153, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976).
In addition to the legislative history of § 2512, Congress has
enacted two statutes relevant to this Court's interpretation of
§ 2512: 18 U.S.C. § 2511 and 47 U.S.C. § 605.
As originally promulgated, the legislative history of § 2512
indicates that it was intended to apply to a relatively narrow
category of devices principally used for wiretapping or
eavesdropping. S.Rep. No. 90-1097, 90th Cong.2nd Sess.
reprinted in 1968 U.S.C.C.A.N. 2112, 2183. "To be prohibited,
the device would also have to possess attributes that give
predominance to the surreptitious character of its use, such as
the spike in the case of the spike mike or the disguised shape
in the case of
the martini olive transmitter. . . ." 1968 U.S.C.C.A.N. at
Undoubtedly, this section would not have applied to
Defendants. However, in 1986, the Wiretap Laws were completely
overhauled by the Electronic Communications Privacy Act of
1986*fn1 in order to update the laws to account for new
computer and telecommunications technology. S.Rep. No. 99-541,
99th Cong.2nd Sess., reprinted in 1986 U.S.C.C.A.N. at 3555.
The updated version added electronic communications to the
types of communications covered by the original act. There is
no question that satellite transmissions fall within the
purview of the Act. However, satellite transmission
interception by home viewers is mentioned in the legislative
history of the Act only in the context of excepting unscrambled
satellite transmissions pursuant to 18 U.S.C. § 2511.*fn2 1986
U.S.C.C.A.N. at 3575. In fact, the legislative history states
that "[t]he private viewing of satellite cable programming . .
. will continue to be governed exclusively by [47 U.S.C. § 605]
and not by 18 U.S.C. § 2511." 1986 U.S.C.C.A.N. at 3576.
At the time Defendants allegedly committed their offenses
(March 1, 1987 to March 5, 1988), § 605 provided criminal
Any person who manufactures, assembles, modifies,
imports, exports, sells, or distributes any
electronic, mechanical, or other device or
equipment, knowing or having reason to know that
the device or equipment is primarily of assistance
in the unauthorized decryption of satellite cable
programming. . . .
47 U.S.C. § 605(e)(4). Clearly, this provision applies to the
conduct charged in this case. As a result, two Circuit Courts
of Appeal have concluded that because Congress knew it already
had specific prohibitions regarding the unauthorized
descrambling of satellite programming in place, it did not
intend to supersede or overlap this provision with the Wire Tap
B. The Circuit Courts of Appeal
The first case addressing this question was United States v.
McNutt, 908 F.2d 561 (10th Cir. 1990), cert. denied, ___ U.S.
___, 111 S.Ct. 955, 112 L.Ed.2d 1043 (1991). McNutt was
involved in a conspiracy to sell cloned satellite descramblers
and charged with a violation of § 2512. McNutt challenged his
conviction under this section. The court reasoned that the
defendant was properly charged under this section because the
reception of programming through a cloned descrambler was
"surreptitious" in that satellite television programmers were
unaware that their signals were being intercepted without
authorization. Consequently, the court held that § 2512
criminalizes the manufacture and sale of satellite signal
descramblers. In reaching this conclusion, the court did not
consider § 605.
The Eleventh Circuit announced an opposite conclusion in
United States v. Herring, 933 F.2d 932 (11th Cir. 1991). In
Herring, the defendants were also charged pursuant to § 2512
for modifying satellite television descramblers. The court
noted that § 2512 was ambiguous and must therefore be construed
in favor of the defendants. Herring, at 937. After thoroughly
investigating the legislative history and case law of § 2512
both before and after the 1986 amendments, the Herring court
determined that modified television descramblers had no
specifically surreptitious characteristics. Herring, at 934.
Furthermore, their similarity to legitimate descramblers was
exactly what made them capable of being used for illegitimate
purposes. Thus, the court reasoned that because the
descramblers have a significant legitimate use and are not
primarily used for surreptitious listening, the defendants
could not have been convicted under § 2512 prior to the 1986
amendments. Herring, at 937. Because the 1986 amendments stated
that private viewing of cable programming was governed
exclusively under § 605 (which clearly prohibited the
defendants' conduct) the court concluded that the Government
was required to prosecute the defendants under the more
specific § 605 rather than under the ambiguous § 2512. Herring,
In United States v. Hux, 940 F.2d 314 (8th Cir. 1991), the
defendant appealed his conviction under § 2512 for modifying
and selling satellite descramblers. The court examined both the
Herring and McNutt decisions. The Hux court concluded that
Herring was the better reasoned decision because it considered
the past and present legislative history, prior case law,
principles of statutory construction, and the provisions of §
605. Accordingly, it reversed the defendant's conviction under
Two factors are determinative of whether the Defendants in
this case were properly charged under § 2512: 1) the meaning of
"surreptitious;" and 2) the relationship of § 2512 and § 605.
This Court agrees with the reasoning set forth by the Eleventh
and Eighth Circuits: "surreptitious," as used in the Wire Tap
Laws, refers to the design of the interception device, not its
use. Therefore, because the primary function of a device such
as a martini olive transmitter is fundamentally different from
that of a satellite descrambler, this Court concludes that
descramblers are not within the spectrum of devices prohibited
under § 2512 despite their potential illegitimate use.
Furthermore, such an interpretation is consistent with
Congressional intent as expressed in § 2511 and § 605. The
legislative history of the 1986 amendments to the Wire Tap Laws
clearly states that § 605 exclusively governs the private
viewing of cable programming. Accordingly, Defendants cannot be
charged with violations under § 2511 and 2512.
Ergo, Defendants' motion to dismiss the superseding
indictment is ALLOWED.