Scott Malouche, Plaintiff-appellant, v. Jh Management Co., Inc., a Georgia Corporation, Defendant-appellee,anddurban Haralson Companies, D/b/a Carolina Inn; Richardarsenault, Defendants, 839 F.2d 1024 (4th Cir. 1988)

A jury trial was held on March 16, 1987. Appellant's case consisted of his testimony and that of a former co-employee, Jeffrey Clark. At the conclusion of appellant's case, appellee's motion for a directed verdict was granted by the district court. Appellant appeals the court's decision, alleging that it erred in requiring him to show criminal willfulness in order to establish civil liability under Title 18 U.S.C. § 2520. He also argues that there was sufficient evidence of criminal willfulness to avoid a directed verdict.

II

Section 2520, with respect to civil liability under the Omnibus Crime Control and Safe Streets Act of 1968, provided:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action * * * [for damages] (emphasis added).

At the time of the alleged misconduct by appellee, section 2511 of Title III provided for criminal liability:

[A]ny person who--

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication.... (emphasis added).¹ 

It should be noted that sections 2511 and 2520 are in the same chapter of the Act, i.e. Chapter 119, and that the only standard of liability for the interception and disclosure of wire or oral communications, i.e. "willfully intercepts," is that specified in section 2511. Therefore, section 2520 also required that an interception or attempt to intercept a wire communication be willful before it could be the basis of civil liability.

The Second Circuit, in a case where it was faced with the identical issue we address here, held that the word willfully in section 2511 was intended "to denote at least a voluntary, intentional violation of, and perhaps also a reckless disregard of, a known legal duty." Citron v. Citron, 722 F.2d 14, 16 (2d Cir. 1983), cert. denied, 466 U.S. 973, 104 S. Ct. 2350, 80 L. Ed. 2d 823 (1984). Support for this is found in United States v. Murdock, 290 U.S. 389, 394-95, 54 S. Ct. 223, 225, 78 L. Ed. 381 (1933), where the Supreme Court explained that:

The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal statute it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful, or conduct marked by careless disregard whether or not one has the right so to act. (citations omitted).

Although it is true that the word willfully may be interpreted to have a different meaning when required by the statutory context in which it appears, as the Second Circuit concluded, "no special context is presented by the wiretapping statute." Citron, 722 F.2d at 16. It is significant that the Senate Report accompanying Title III of the Omnibus Crime Control and Safe Streets Act of 1968 cites to United States v. Murdock in discussing its requirement, with respect to subsections (c) and (d) of 2511(1), that a violation must be willful to be criminal. See S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2181. This supports a traditional construction of the word. Thus, we agree with the Second Circuit and hold that the word "willfully," as used in section 2511, was intended to be given its traditional meaning when used in a criminal statute. In this case, as civil liability under section 2520 depends on a violation of the willfulness standard of section 2511, we also hold that appellant was required to establish an intentional or reckless disregard of its legal obligations by appellee. Neither the language of the statute nor its legislative history suggest that Congress intended different standards of willfulness to apply in the civil and criminal context. Citron, 722 F.2d at 16.² 

III

We next address whether, in light of the applicability of the definition discussed above, the district court acted properly in granting appellee's motion for a directed verdict. The standard of review with respect to a directed verdict is, "whether the evidence is such, without weighing the credibility of the witnesses, that there is only one conclusion that reasonable jurors could have reached." Keller v. Prince George's County, 827 F.2d 952, 955 (4th Cir. 1987).

The district court noted that there was "very slight evidence, if any" to support the factual allegations as to the wiretapping of appellant's office telephone by defendant. (App. at 173). Nevertheless, the court did not rest its decision on this view of the evidence. Rather the court found, in effect, that even if appellant's telephone was wiretapped, there was no evidence that this was done willfully by appellee. Indeed, the record contains no evidence with respect to: (i) The circumstances under which the alleged device was obtained; (ii) who installed the device or why; (iii) whether appellee attempted to conceal the device; or (iv) whether appellee had knowledge that the device was being used to tap appellant's telephone in violation of its legal duty. We agree with the district court that based on the evidence in the record reasonable jurors could not conclude that appellee had acted willfully.

IV

Although we agree with the reasoning and decision of the district court, we cannot say this appeal was frivolous. We therefore deny appellee's motion for sanctions.

V

The decision of the district court granting appellee's motion for a directed verdict isAFFIRMED.

Motion for Sanctions Denied.