The opinion of the court was delivered by: JAMES MORAN, Senior District Judge
MEMORANDUM OPINION AND ORDER
Jack Hargrove, one of the defendants, moves to suppress six tape
recordings of telephone conversations. Only five are presently at issue
because the government denies any intention of using one in its
case-in-chief. Accordingly, the motion to suppress the January 5, 2000,
tape recording of a conversation between Hargrove and defendant Laurence
W. Capriotti is denied as moot. We deny the motion with respect to the
other conversations for other reasons.
The government rests upon several grounds for the legality of the
interceptions and Hargrove disputes each of them. We do not believe,
however, that we need go beyond the first ground Gary Bertacchi,
a participant in each of the conversations, consented. 18 U.S.C. § 2511(2)(d)
provides that an interception is not unlawful "where one
of the parties to the communication has given prior consent to such
interception," unless the purpose was for reasons not relevant here.
Hargrove was chairman of the board of directors of Independent Trust
Corporation (Intrust). Gary Bertacchi was president of Intrust and
Capriotti was an Intrust director. The
board of directors, which was the three of them, in 1996 authorized
a replacement of a reel-to-reel system of recording telephone calls.
Implementation was left to a subordinate, James B. Jurewicz. The new
system consisted of a group of lines called "loop lines," plus a number
of private lines. To activate his or her private line, the sender pushed
a button on the telephone. Otherwise, the call went out on the common
office or "loop" lines. Apparently the directors were unfamiliar with the
details, as is evident by Bertacchi's deposition in a civil action.
Bertacchi was unaware that calls on his private line were recorded, until
he heard a recoding of a call on his private line in or about September
1999. Hargrove claims he did not know that calls on private lines were
recorded, and Capriotti claims he did not know that the calls which are
the subject of the motion were recorded (although Jurewicz says he told
Capriotti in 1998 that all calls were needed, except those on a pay
All five calls were placed from Bertacchi's office or the conference
room to Hargrove. The office had a private line; the conference room did
not. The only call on the office private line was on November 11, 1999,
when Bertacchi and Capriotti called Hargrove. While Bertacchi is
"virtually" certain he placed all the calls, who placed them is
irrelevant. Bertacchi was a party to all the communications. The November
11, 1999, call was well after September 1999. Bertacchi knew the call was
being recorded. He knew the other calls were being recorded. He did not
need to sign a consent declaration. Use after actual notice is implied
consent. United States v. Workman, 80 F.3d 688, 693 (2d Cir.
1996), cited favorably in Amati
v. City of Woodstock, 176 F.3d 952, 954 (7th Cir. 1999).