Appeal from a judgment of the United States District Court, Southern District of New York, Whitman Knapp, Judge, dismissing the complaint after a jury trial.
Mansfield, Pratt, Circuit Judges, and Tenney, District Judge.*fn*
Plaintiffs, Casper Citron and his two adult children, Steven and Alisande, appeal from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing their complaint which claimed that Casper Citron's wife, Fiona Citron, violated the federal wiretapping statute, 18 U.S.C. § 2510 et seq.
Plaintiffs' appeal focuses primarily on the word "willfully" in the statute. They contend that when the statute is applied to fix civil liability for unlawful wiretapping, "willfully" should be given a different meaning than when the statute is applied criminally. In a careful opinion reported as Citron v. Citron, 539 F. Supp. 621 (S.D.N.Y. 1982), Judge Knapp held that the term "willfully" in the statute has the same meaning whether the statute is applied criminally or civilly. We agree and therefore affirm. We write only to clarify the meaning of "willfully" in § 2511 when the statute is invoked to impose civil liability under § 2520.
Casper Citron is a radio and television personality with extensive public speaking experience. Fiona Citron, his wife, is a psychiatrist who lacks such experience. Because Fiona felt that she would be no match for her husband as a witness in the state divorce proceeding that she planned to file, she obtained an electronic device to intercept and record her husband's telephone conversations. She also hoped to record information to help her obtain custody of their adopted children.
After recording a few calls, Fiona became apprehensive about the legality of her conduct. She consulted her attorney who told her not to worry. Fiona then continued recording the calls until Casper eventually discovered her activity and brought this civil action seeking damages under § 2520 for unlawful wiretapping. The case eventually was tried before Judge Knapp and a jury.
At the close of the entire case Fiona moved to dismiss on the ground, inter alia, that Casper had failed to introduce any evidence showing that Fiona had acted "willfully" within the meaning of § 2511. Judge Knapp denied the motion and submitted the case to the jury on special verdicts. Citron, 539 F. Supp. at 623.
Responding to questions in the form of special verdicts, the jury found that Fiona had intercepted and recorded Casper's calls on sixteen different days, Steven's on seven, and Alisande's on three, but that none of the plaintiffs had suffered any actual damages. In answer to a question on the issue of punitive damages the jury found that Fiona neither knew she was violating the law nor acted in reckless disregard of whether or not her conduct was unlawful.
Fiona then renewed her motion to dismiss, urging that the special verdict on punitive damages conclusively established that she had not acted "willfully" and, therefore, that she had not violated § 2511. The district court initially denied the motion, but upon reconsideration found Fiona's argument persuasive and dismissed the complaint. Citron, 539 F. Supp. at 624. Plaintiffs appeal, contending that in a civil action under the wiretapping statute less need be shown to establish willfulness than in a criminal prosecution. We disagree.
Section 2511 of Title 18 provides:
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication * * * [shall be guilty of a crime]. (emphasis added).
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter (1) shall have a civil cause of action ...