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Hutton v. Woodall

United States District Court, D. Colorado

October 3, 2014

REBECCA HUTTON, Plaintiff,
v.
CHARLES P. WOODALL, IV, Defendant

For Rebecca Hutton, Plaintiff: John R. Torbet, Torbet & Tuft, LLC, Colorado Springs, CO.

Charles P. Woodall, IV, Defendant, Pro se, Monument, CO.

For United States, Intervenor: Robert Joseph Prince, LEAD ATTORNEY, U.S. Department of Justice-DC-#883, Federal Programs Branch, Washington, DC.

Page 1236

ORDER

Boyd N. Boland, United States Magistrate Judge.

This matter arises on Plaintiff's Motion for Summary Judgment [Doc. #29, filed 04/01/2014] (the " Motion" ). The Motion is DENIED, and judgment shall enter in favor of the defendant.

I. BACKGROUND

The Omnibus Crime Control and Safe Streets Act of 1968 is divided into five titles. Rebecca Hutton brings her claim under Title III which regulates wiretapping and electronic surveillance.

In the Complaint [Doc. # 1], Ms. Hutton alleges that the defendant, Charles Woodall, " surreptitiously bugged or taped" conversations involving the plaintiff and others in violation of " 18 U.S.C. § 2510, et seq." Complaint [Doc. # 1] at ¶ ¶ 7, 10. Section 2520, 18 U.S.C., provides a private right of action for violations of the act. The Complaint fails to disclose the specific provision which the plaintiff asserts was violated, however. The Motion [Doc. # 29] provides some guidance, but refers only to 18 U.S.C. § 2511 in general, without specifying a subsection.

Section 2511, 18 U.S.C., provides at subsection (1):

(1) Except as otherwise specifically provided in this chapter any person who--
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--
(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
(ii) such device transmits communications by radio, or interferes with the transmission of such communication; or
(iii) such person knows, or has reason to know, that such device or any component thereof has been sent through the mail or transported in interstate or foreign commerce; or
(iv) such use or endeavor to use (A) takes place on a premises of any business or other commercial establishment the operations of which affect interstate or foreign commerce; or (B) obtains or is for the purpose of obtaining information relating to the operations of any business or other commercial establishment the operations of which affect interstate commerce; or
(v) such person acts in the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States;
(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication

Page 1237

in violation of this subsection;
(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(e) (i) intentionally discloses, or endeavors to disclose, to any other person the contents of a wire, oral, or electronic communication, intercepted by means authorized by sections 2511(2)(a)(ii), 2511(2)(b)-(c), 2511(2)(e), 2516, and 2518 of this chapter, (ii) knowing or having reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, (iii) having obtained or received the information in connection with a criminal investigation, and (iv) with intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation, shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

In the Reply in support of her motion for summary judgment, the plaintiff explains that " [t]he Court . . . is justified in concluding that the Defendant did intentionally intercept an oral communication {18 U.S.C.A. § 2511(1)(a)} and in violation of 18 U.S.C.A. § 2511(1)(c) disclosed the contents of the oral communication knowing that the information was obtained through the interception of an oral communication in violation of this Section." Reply [Doc. # 34] at pp. 1-2.

The defendant admits that he recorded the plaintiff's oral communications on a digital recorder without her knowledge or consent. Deposition of Charles P. Woodall, IV [Doc. # 29-3] (the " Woodall depo." ) at p. 21 line 23 through p. 24 line; p. 49 lines 6-17. It is undisputed that the plaintiff disclosed the contents of the recorded communications to others. Affidavit of Rebecca Hutton [Doc. # 30] at ¶ 7. Based on these undisputed facts, the plaintiff argues that she is entitled to summary judgment.[1]

In opposition, the defendant argues that 18 U.S.C. § 2511(1)(a) and (b) are unconstitutional because " the recorded oral communications did not: (a) take place on the premises of any business or other commercial establishment, the operations of which affect interstate or foreign commerce; nor (b) did not obtain, nor were for the purpose of obtaining, information relating to the operations of any business or other commercial establishment, the operations of which affect interstate or foreign commerce." Response [Doc. # 33] at p. 17. In addition, the defendant argues that " [s]ection 2511(1)(b) is unconstitutional as applied to the facts of this case in that there was no substantial effect on foreign commerce." Id.

I. STANDARD OF REVIEW

In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the party opposing the motion, and that party must be afforded the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S. H. Kress & Co.,398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Summary judgment shall be rendered " if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists " if the evidence is ...


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