the defendant purchased descrambling devices from Global during the
course of a seventeen month period beginning in January 1990. The action
bearing index no. 94-CV-5412 was commenced by complaint filed on November
23, 1994. Plaintiffs learned that defendant had acquired devices from
Global on or about October 1993 when it received a printout of Global
sales into Cablevision's market area from General Instrument
Notwithstanding defendant's protestations to the contrary, there is no
convincing evidence indicating that Global should have known of those
purchases prior to that date. Therefore whether the statute is two years,
as defendant contends (relying on 47 U.S.C. § 415), or three years,
as plaintiffs maintain, (citing N.Y.C.P.L.R. § 214(2); Goldstein, 3
F. Supp.2d at 431-32), the 1994 action was timely brought.
Attention will now be directed to defendant's second objection to the
admissibility of the Global sales records. To place that objection in
context, some background information is required. Global was a major
distributor of descrambling devices. The Federal Bureau of Investigation
("FBI") obtained a search warrant for its offices. In executing the
warrant, possession was taken of Global's computers and related records.
Those computers were then secured in an FBI office. Michael Burgeles
("Burgeles") was hired to review Global's records to determine purchases
Burgeles's testimony concerning his expertise, and the manner in which
he retrieved defendant's name, address and the dates of his orders from
Global's computers was convincing. Cablevision proffered the resulting
evidence, viz., plaintiffs' Exhibits 1 and 2, as business records under
Federal Rule of Evidence 803(6) and, alternatively, under the residual
exception embodied in Rule 807. The Court, while permitting the evidence
to be adduced, reserved decision on its admissibility to permit counsel
to brief the issue.
Plaintiffs' Exhibits 1 and 2 have a significant stamp of
trustworthiness as is evident from, inter alia, a review of the testimony
furnished by Burgeles. Moreover, the procedural prerequisites to the
invocation of Rule 807 have been satisfied. Accordingly, the documents
are found to be admissible under Rule 807, obviating the need to address
their admissibility under Rule 803(6).
Having found that plaintiffs' claims predicated on the Global records
are not time-barred, and are admissible, suffice it to say that those
records convince the Court that defendant purchased the items listed. In
reaching that conclusion, I have considered defendant's argument that
someone could have used defendant's name and address and that this
possibility is fatal to the government's proffer. However, as noted by a
witness for plaintiffs, using someone else's name and address would
typically prevent the caller from obtaining the items in question.
That defendant was the purchaser of the subject items is further
evidenced by the conversations he had with James Buglion ("Buglion"), a
principal of J.E.S. Inc. ("J.E.S."), a now defunct marketer of
descrambling devices. Buglion testified that during those conversations,
Guercio indicated that he had lost his initial supplier, which supplier
(presumably Global) was located somewhere north of San Diego, and provided
information about his employment in the education field.
In sum, I find that defendant was a mail order purchaser from Global as
reflected in plaintiffs' Exhibits 1 and 2.
4. Cablevision Has Established That Defendant Purchased Descrambling
Devices from J.E.S.
Defendant has raised two points concerning this portion of plaintiffs'
the statute of limitations and whether Buglion's testimony should not be
considered based on a purported violation of 18 U.S.C. § 201. These
objections will be addressed in turn.
a. Statute of Limitations. The mail order purchases from J.E.S. by an
individual identifying himself as Guercio were made in September and
October of 1991. However, plaintiffs did not discover that J.E.S. had
sold pirate descramblers to such individual until Buglion so advised them
in the Spring of 1997. Case No. 97-CV-7466 was commenced by plaintiffs
filing their complaint in December of 1997, i.e., less than a year
later. As was true with respect to Global, no convincing information has
been provided by the defense to indicate that plaintiffs should have
known of the purchases by Guercio earlier and, accordingly, this action
was timely brought.
b. 18 U.S.C. § 201(c)(2) and (3). Section 201(c)(2) provides that
it is a crime for a party to purchase the testimony of a fact witness.
Subdivision 3 makes it criminal for a fact witness to accept anything of
value in return for his or her testimony. Buglion, after his company was
criminally prosecuted, was sued by Cablevision. That case was settled for
the sum of $250,000. It was agreed that $50,000 of that amount would be
forgiven if Buglion provided information about the illegal marketing of
descramblers to plaintiffs' security personnel.
Buglion credibly testified that he had completed the services required
for the $50,000 credit "around June of `98, May of `98." (Trial
Transcript ("Tr.") at 207.) His testimony was given before this Court a
year and a half later, with his attendance being obtained via the service
of a subpoena. Under the circumstances, plaintiffs' arrangement with
Buglion does not run afoul of Section 201. Accordingly, defendant's
argument that Buglion's testimony should not be considered is rejected.
Attention will now be directed to the question of whether Cablevision
has established that defendant purchased pirate descramblers from J.E.S.
Buglion testified that he spoke to defendant five or six times. He
remembered those conversations in part because he and defendant had
discussed the area in which Buglion had grown up which was close to
defendant's residence in Kings Park. He also testified that defendant
explained that he was endeavoring to market the descrambling devices
through advertisements in national sports magazines.
Buglion identified plaintiffs' Exhibit 4 as a series of sheets which
were downloaded from his computer, which sheets he recognized based on,
inter alia, their format. Those sheets detailed the items that J.E.S.
sold to defendant, which items the witness described and explained how
they were compatible with the scrambling technology used by plaintiffs.
Defendant objected to Buglion's testimony concerning conversations had
with "Tom Guercio" as being hearsay, using the example of an individual
identifying himself as Bill Clinton checking into a hotel if offered to
prove, without verification, that the person presenting himself was in
fact the ex-president.
Defense counsel's hearsay objection is correct. But the concomitant
conclusion that the evidence is inadmissible is not. Buglion's testimony
about his conversations with a person identifying himself as Guercio is
"admissible as non-hearsay laying a foundation for further evidence"
tending to prove that the caller to J.E.S. was in fact defendant. United
States v. Lieberman, 637 F.2d 95, 101 (2d Cir. 1980). Such further
evidence is found in (1) Global's records identifying Guercio as a
purchaser of commercial quantities of pirate descrambling devices and (2)
the caller's explanation to Buglion that he was contacting J.E.S. because
he had lost his earlier source of supply. Significantly, that explanation
by the person who identified himself as Guercio dovetails with (1) the
FBI executing a search warrant, and confiscating Global's computers in
June of 1991, and (2) the caller's initial purchase from J.E.S. on
September 11, 1991.
Additionally, Buglion's recollection that the caller indicated that he
lived in Kings Park and was an educator parallels the defendant's trial
testimony as to his residence and vocation. Based on the foregoing, the
Court is satisfied that the caller was Guercio, and — given that
evidence, as well as other evidence in the case — that he purchased
pirate descramblers from J.E.S. on four separate occasions between
September 11, 1991 and October 28, 1991.
4. Absence of Direct Evidence of Use or Distribution by Guercio
There is no direct evidence that Guercio either used or distributed one
or more pirate descrambling devices in plaintiffs' market area or,
parenthetically, elsewhere, notwithstanding Cablevision's efforts to
obtain such information. (Tr. at 285-86.)
CONCLUSIONS OF LAW
1. Applicable Statute
As noted earlier, plaintiffs claim that Guercio violated the following
a) 47 U.S.C. § 553(a)(1). That provision of the Communications Act
reads in pertinent part:
(1) No person shall intercept or receive or assist in
intercepting or receiving any communications service
offered over a cable system, unless specifically
authorized to do so by a cable operator or as may
otherwise be specifically authorized by law.
b) 47 U.S.C. § 605(a). That provision of the Communications Act
reads in pertinent part:
No person not being entitled thereto shall receive or
assist in receiving any interstate or foreign
communication by radio and use such communication (or
any information therein contained) for his own benefit
or for the benefit of another not entitled thereto.
c) 47 U.S.C. § 605(e)(4). That provision of the Communications Act