Kassap v. Seitz

ADKINS, Judge. The question we are called upon to decide in the case before us is the proper allocation of the burden(s) of proof in a civil suit brought under the Electronic Surveillance Act; Maryland Code (1984 Repl.Vol., 1988 Cum.Supp.), Courts and Judicial Proceedings Article, §§ 10-401 — 10-414 1 (the Act). In particular, we are presented with the question of which party carries the burden of persuading the trier of fact in regard to whether the interceptor was or was not acting under the direction and supervision of a Maryland investigative or law enforcement officer and was or was not gathering evidence about one of the listed criminal activities in compliance with § 10-402(c)(2). I. The Maryland General Assembly adopted the Act in 1977.

See Ch. 692, Acts of 1977. It is first and foremost a ¹⁵⁸ criminal statute. Section 10-402 outlines what is “unlawful” and “lawful” under the Act and, in parts pertinent to our consideration here, reads: (a) Unlawful acts. — Except as otherwise specifically provided in this subtitle it is unlawful for any person to: (1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (2) Wilfully disclose, or endeavor 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 in violation of this subtitle; or (3) Wilfully use, or endeavor 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 subtitle. (b) Penalty. — Any person who violates subsection (a) of this section is guilty of a felony and is subject to imprisonment for not more than 5 years or a fine of not more than $10,000, or both.

(c) Lawful acts.— (2) It is lawful under this subtitle for an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication in order to provide evidence of the commission of the offenses of murder, kidnapping, gambling, robbery, any felony punishable under the “Arson and Burning” subheading of Article 27, bribery, extortion, or dealing in controlled dangerous substances, including violations of Article 27, § 286B or § 287A, or any conspiracy or solicitation to commit any of these offenses, or where any person has created a barricade situation and probable ¹⁵⁹ cause exists for the investigative or law enforcement officer to believe a hostage or hostages may be involved, where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception. Section 10-410, which provides for civil liability as an additional enforcement mechanism, sets forth both the civil cause of action and an affirmative defense in the form of “good faith reliance on a court order or legislative authorization .... ” It reads: (a) Civil liability. — Any person whose wire, oral, or electronic communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person: (1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (2) Punitive damages; and (3) A reasonable attorney’s fee and other litigation costs reasonably incurred. (b) Defense. — A good faith reliance on a court order or legislative authorization shall constitute a complete defense to any civil or criminal action brought under this subtitle or under any other law.

II

Section 10-410(a) makes clear that in order for a plaintiff to maintain a civil action the defendant must have acted “in violation” of the Act The focal issue at trial in this case was whether the conduct of defendants-appellees, Gregory Seitz (Seitz) and William Kisby (Kisby), came, in fact, within the scope of § 10-402(e)(2), and thus was not “in violation” of the Act. The facts adduced on this issue and their significance were, of course, fiercely disputed at trial. Since this particular trial issue underlies the one we address ¹⁶⁰ here, and relates directly to whether Seitz and Kisby carried the burden of production of evidence of compliance, we will recount the evidentiary facts that support the jury finding of compliance with § 10-402(c)(2). The record reveals that the case arose out of a 1982-1983 investigation conducted by the New Jersey State Police (NJSP) into allegations that individuals who were not licensed by the New Jersey Casino Control Commission 2 were extorting money from licensed junket operators who sought to run gambling junkets into Atlantic City, New Jersey, casinos.

Seitz, an NJSP officer, was working undercover in conjunction with the investigation, posing as a licensed junket operator. During the course of the investigation, it became apparent to Seitz that he would have to travel to Maryland to meet with plaintiff-appellant, Sigmund Kassap a/k/a Captain John Doyle, a Maryland resident. It was believed that in this meeting Kassap would furnish evidence of crimes of extortion and conspiracy to commit extortion. Sometime around 15 July 1983, Seitz’s superior, NJSP officer William Kisby, contacted then First Lieutenant Robert Graham (Graham), Assistant Commander of the Maryland State Police (MSP) Special Services Division and MSP’s designated intelligence liaison officer, to seek the assistance of MSP and to determine if it would be lawful for Seitz to record his meeting with Kassap.

At trial Graham testified that from the information related to him by Kisby, he determined that the criminal activity being investigated by NJSP might also involve extortion under Maryland law. Graham then authorized the tape recording of the meeting. The trial transcript suggests that from that point on, Graham, and other MSP officers, became actively involved in what could be viewed as a “joint” investigation. Graham testified that this involvement was not only to assist NJSP ¹⁶¹ with its investigation, but was also carried out as part of MSP’s own investigation.

He further testified that “[t]his was as much a Maryland case as it was a New Jersey case.” On 20 July 1983, Seitz met with Kassap and others at the Pimlico Hotel in Baltimore. Seitz recorded the meeting on an NJSP Nagra recording device which may or may not have been previously registered with the Maryland Department of Public Safety and Correctional Services. 3 Seitz evidenced his prior consent to the recording through introduction at trial of an MSP “CONSENT TO USE OF EAVESDROP EQUIPMENT” form signed by Seitz and dated 20 July 1983. Also on the morning of the 20th, prior to the meeting, Kisby had met with Graham and other MSP officers to discuss plans for visual surveillance and security at the Pimlico Hotel. The MSP provided a surveillance team that maintained visual surveillance of the Pimlico Hotel both before and during the meeting.

The team recorded the surveillance using still photography and videotape. On 21 February 1985, Kassap filed a civil suit under § 10-410 against Seitz and others. He alleged a violation of the Act. Kisby was later joined as a defendant.

The case was tried before a jury in the Circuit Court for Baltimore County (John Fader, II, J., presiding). The jury returned a verdict in favor of Seitz and Kisby. Kassap noted a timely appeal to the Court of Special Appeals. Before argument in that court, we brought the matter here by writ of certiorari.

III

It is well established that the broad concept of “burden of proof” consists of at least two component parts: the burden of production (also referred to as the duty of ¹⁶² going forward with the evidence) and the burden of persuasion. Montgomery Co. Fire Bd. v. Fisher, 298 Md. 245, 256 , 468 A.2d 625, 630-631 (1983). In the recent case of Commodities Reserve Corp. v. Belt’s Wharf, 310 Md. 365 , 368 n. 2, 529 A.2d 822 , 823 n. 2 (1987), Judge Rodowsky, writing for the Court, noted Dean McCormick’s analysis of the practical distinctions between the respective burdens. ‘The burden of producing evidence on an issue means the liability to an adverse ruling (generally a finding or directed verdict) if evidence on the issue has not been produced. It is usually cast first upon the party who has pleaded the existence of the fact, but ... may shift to the adversary when the pleader has discharged his initial duty.

The burden of producing evidence is a critical mechanism in a jury trial, as it empowers the judge to decide the case without jury consideration when a party fails to sustain the burden. ‘The burden of persuasion becomes a crucial factor only if the parties have sustained their burdens of producing evidence and only when all of the evidence has been introduced. It does not shift from party to party during the course of the trial simply because it need not be allocated until it is time for a decision. When the time for a decision comes ... [t]he jury must be told that if the party having the burden of persuasion has failed to satisfy that burden, the issue is to be decided against him. If there is no jury and the judge finds himself in doubt, he too must decide the issue against the party having the burden of persuasion [C. McCormick, McCormick on Evidence § 336, at 947 (3d ed. 1984)].’ Kassap’s primary challenge on appeal is to the trial court’s denial of a proposed instruction which would have placed on Seitz and Kisby the burden of proving by a preponderance of the evidence the fact that their electronic surveillance complied with § 10-402(c)(2). 4 Put otherwise, ¹⁶³ Kassap objects because the jury instructions placed on him the burden of persuading the jury that Seitz and Kisby did not comply with § 10-402(e)(2).

While a plausible argument can be made on behalf of Seitz and Kisby that, contrary to Kassap’s assertion, the jury instruction taken as a whole, see Pressley v. State, 295 Md. 143, 152 , 454 A.2d 347, 353 (1988), in fact, placed on them the full burden of production and persuasion on the issue, we accept arguendo Kassap’s view of the jury instructions as correct. 5 We hold, however, that the trial court’s failure to instruct the jury as requested was not error since (as we will explain) Seitz and Kisby labored only under the duty of producing sufficient evidence to meet Kassap’s prima facie ¹⁶⁴ case of a violation of the Act. At no time did they bear the burden of persuasion on the issue. Kassap’s view of the plaintiff’s burden of proof is simple and straightforward: once a plaintiff has established a prima facie case, i.e., produced legally sufficient evidence of a willful interception of a private conversation, the burden of both production of the evidence and persuasion on the issue of compliance with § 10-402(c)(2) shifts to the defendant. He contends that § 10-402(c)(2) is an exception to the general statutory prohibition against electronic surveillance which has not been consented to by all participants to the conversation.

It is incumbent on the party claiming the benefit of the exception, the argument continues, to prove that his or her conduct comes within the exception. Seitz and Kisby dispute that § 10-402(c)(2) operates as an “affirmative defense” type of statutory exception. They argue, in essence, that a defendant’s duty is to meet plaintiff’s prima facie case with evidence legally sufficient to show compliance with § 10-402(c)(2). Once this is accomplished, noncompliance becomes an element of proof of a violation of the Act.

Proof by a preponderance of the evidence that a violation has occurred is, of course, the fundamental responsibility of the plaintiff. They also assert that in a criminal prosecution under the Act, once the defendant produces evidence of compliance with § 10-402(c)(2), the prosecution is constitutionally obligated to bear the risk of nonpersuasion on the issue. Since the Act is a penal statute, they argue, the burdens of persuasion with regard to criminal and civil liability should be the same. As we prepare to assess these arguments, we note that the Act does not offer a formula for allocating the various burdens of proof.

Nor have any reported opinions of this Court or the Court of Special Appeals previously addressed this issue. We have often recognized that the Act finds its genesis in and is substantially patterned after Title III of the Omnibus ¹⁶⁵ Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (Title III). Ricks v. State, 312 Md. 11, 15 , 537 A.2d 612, 614 , cert. denied, — U.S. —, 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988), and cases cited therein. Thus, we have on occasion sought guidance from federal eases interpreting or applying Title III.

See Ricks, 312 Md. at 21-24 , 537 A.2d at 616-618 ; Adams v. State, 289 Md. 221 , 424 A.2d 344 (1981); State v. Mayes, 284 Md. 625, 635-638 , 399 A.2d 597, 603-605 (1979). Section 2511(1) of Title III and § 10-402(a) of the Act are substantially similar in what both define as “unlawful.” 6 ¹⁶⁶ Also both the Act and Title III contain one-party consent provisions that provide for exceptions to the general statutory prohibitions. Subsections (c) and (d) of § 2511(2) of Title III give broad allowance to interceptions when one of the parties to the communication has given prior consent. 7 Unlike its federal counterpart, however, § 10-402(c)(2) of the Act limits permissible instances of one-party consent to interceptions by “an investigative or law enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law enforcement officer” in order to “provide evidence of the commission of” certain listed offenses. The Maryland one-party consent provision is substantially more restrictive and affords greater protection from surreptitious electronic surveillance than does its counterpart in Title III.

See Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183, 194 (1979). Recognizing this disparity, however, we may, nonetheless, look to federal case law to observe the role of the one-party consent provision in relation to the statutory scheme. Seitz and Kisby direct us to Consumer Electronic Products v. Sanyo Elec., Inc., 568 F.Supp. 1194 (D.Colo.1983), and By-Prod Corporation v. Armen-Berry Co., 668 F.2d ¹⁶⁷ 956 (7th Cir.1982). Consumer Electronic Products , involved a counterclaim, for damages, by a defendant (ESP), alleging that the plaintiffs (CEPI) company president had unlawfully tape recorded a telephone conversation with the president of ESP.

CEPI admitted that the conversation was recorded but contended that it did not violate Title III because its conduct was lawful under 18 U.S.C. § 2511 (2)(d). The court granted CEPFs motion for summary judgment, and dismissed the counterclaim, holding that ESP did not set forth