Hutton v. Woodall

Filing 57

ORDER denying 29 Motion for Summary Judgment, by Magistrate Judge Boyd N. Boland on 10/03/2014. Judgment shall enter in favor of the defendant on all claims.(slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 13-cv-1338-BNB-KMT
REBECCA HUTTON,
Plaintiff,
v.
CHARLES P. WOODALL, IV,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
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 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
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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

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The defendant further concedes these facts in his Response [Doc. # 33], admitting that
he “bought a voice-activated recording device and placed it in a potted plant in an office in the
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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 (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 such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The moving party bears the initial burden of demonstrating by reference to portions of
pleadings, discovery and disclosure materials on file, and any affidavits, the absence of genuine
issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party

barn used by his clients as a lounge area. On two occasions, conversations were recorded,
unbeknownst to the Plaintiff, and portions of these conversations were played on one occasion
for employees to hear.” Id. at p. 2.
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may carry its initial burden either by producing affirmative evidence negating an essential
element of the nonmoving party’s claim, or by showing that the nonmoving party does not have
enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties,
Inc., 318 F.3d 976, 979 (10th Cir. 2002).
The party opposing the motion is then required to go beyond the pleadings and designate
evidence of specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at
324. Only admissible evidence may be considered when ruling on a motion for summary
judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
II. UNDISPUTED MATERIAL FACTS
1. The defendant is a veterinarian licensed to practice in the State of Colorado. He has a
specialty in equine medicine, and his practice is exclusively the provision of medical care for
horses. He is not licensed in any other state.
2. The defendant is the sole owner of Aspen Ridge Equine Hospital, PC (“Aspen
Ridge”), located at 1480 Higby Road, Monument, Colorado.
3. At the time of the events in question, Aspen Ridge owned property consisting
of 35 acres. The improvements consisted of an 18,867 square foot building within which is a
hospital designed and built for horses; barn; arena; residence; office; and a break room that was
used by Aspen Ridge’s employees, boarders (owners of horses being stabled on the premises),
trainers, guests, and others.
4. The business of Aspen Ridge is a veterinary practice exclusively for the treatment
and

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care of horses. Collateral to the veterinary practice is the boarding of horses for several clients
of Aspen Ridge. The plaintiff was one such client.
5. Starting in about 2008, the downturn in the economy was reflected in the cash flow
of Aspen Ridge’s operations. This, in turn, led to defaults on the loans secured by the property.
After his attempts to refinance or restructure the secured debt were unsuccessful, Dr. Woodall
found an investor to buy the outstanding loans so that the business of Aspen Ridge could be
preserved until the economy rebounded. The investor brought a foreclosure action in order to
consolidate the debt.
6. On March 6, 2013, the El Paso County Public Trustee held a foreclosure auction for
the property. The defendant attended the sale at which time he was surprised to discover that the
plaintiff had submitted the winning bid. He subsequently concluded that the plaintiff intended to
evict Aspen Ridge from the property.
7. The defendant wanted to learn who, if anyone else, was collaborating with the
plaintiff in the purchase of the property and suspected eviction. He bought a sound activated
voice recorder and placed it in a potted plant in the break room.
8. On March 13 and 16, 2013, discussions were recorded in the break room between Ms.
Hutton and others. Dr. Woodall transferred the recorded discussions from the recorder directly
onto his laptop computer.
9. Ms. Hutton had an expectation of privacy in the break room and would not have
discussed the matters which were discussed--family matters, medical matters, and private
financial matters-- in public or in a situation where third parties would have been able to listen.
10. On or about March 21, 2013, the defendant called a meeting of the Aspen Ridge

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employees during which he played several segments of the recorded discussions.
11. None of the recordings was made or transmitted over any telephone or cable line.
None of the recordings was transmitted by means of any radio equipment, the mails, or through
the use of any channel or instrumentality of interstate commerce.
12. Aspen Ridge is a purely local business. In that regard:
(a) It has only one location, which is at 1480 Higby Road, Monument, Colorado;
(b) It has only local business. All of its clients, from the time it started
business to the present, are from the area around Monument, Colorado. No client has been from
out of the state. No out of state horses have been treated at the hospital;
(c) All of its employees are from the Monument, Colorado area. None of its
employees, while employed, have ever resided out of state;
(d) Aspen Ridge does not advertise, except for one instance in 2006 when it
posted an advertisement on the internet for a veterinarian;
(e) Although some employees are originally from other states, Aspen Ridge did
not recruit them from out of state;
(f) Virtually all of the supplies for Aspen Ridge are purchased within the state;
and
(g) All of the service providers utilized by Aspen Ridge are local, with the
exception that some laboratory work (not more than 10%) that is sent out of state.

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III. ANALYSIS
A. The Plaintiff Does Not Assert a Claim Under 18 U.S.C. § 2511(1)(b)
Although the defendant challenges the constitutionality of section 2511(1)(b), the
plaintiff has not expressly alleged a violation of that subsection, and she does not address the
defendant’s arguments regarding subsection (1)(b).2 Therefore, I find that the Complaint does
not assert a claim under 18 U.S.C. § 2511(1)(b). To the extent the Complaint may be read to
contain a claim under subsection (1)(b), however, the plaintiff has abandoned it. See Poole v.
Southwestern Bell Telephone L.P., 86 Fed.Appx. 372, 374 (10th Cir. 2003) (deeming claims
abandoned in the district court because the plaintiff did not oppose defendant’s argument to
dismiss them in response to motion to dismiss).
B. 18 U.S.C. § 2511(1)(a) Is Not Unconstitutional On Its Face
The defendant argues that 18 U.S.C. § 2511(1)(a) is unconstitutional on its face. “A facial
challenge to a legislative Act is, of course, the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act would
be valid.” U.S. v. Salerno, 481 U.S. 739, 745 (1987). The defendant has not addressed this
standard. Therefore, his facial challenge must fail. Moreover, circumstances exist under which
the prohibition against the unlawful interception of oral communications contained in section
2511(1)(a) may be constitutionally applied. As noted in the Senate Report which recommended
passage of the bill, “the broad prohibitions of subparagraph (a) could, for example, be

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To the contrary, the plaintiff disavows any such claim, relying in her Reply [Doc. # 34]
on the surreptitious interception of oral communications, in violation of section 2511(1)(a),
which were intentionally disclosed to others, in violation of section 2511(1)(c). Id. at pp. 1-2.
There is no mention of section 2511(1)(b).
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constitutionally applied to the unlawful interception of oral communications by persons acting
under color of State or Federal law . . . .” S.Rep. 90-1097, at 62 (1968), reprinted in 1968
U.S.Code Cong. & Ad.News 2112, 2180 (referring to the Fourteenth Amendment’s grant of
privacy).
C. 18 U.S.C. § 2511(1)(a) Is Unconstitutional As Applied
The plaintiff is entitled to summary judgment only if there is no material fact dispute and
she is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). I find that the plaintiff is not
entitled to judgment as a matter of law, however, because section 2511(1)(a) is unconstitutional
as the plaintiff attempts to apply it.
The broad prohibition in section 2511(1)(a) could be constitutionally applied to a state or
federal official’s unlawful interception of oral communications. See Part III.B., supra. The
legislative history demonstrates, however, that the constitutionality of its application in other
circumstances was questioned by the Committee on the Judiciary:3
The broad prohibition of subparagraph (a) is also applicable to the
interception of oral communications. The interception of such
communications, however, does not necessarily interfere with the
interstate or foreign communications network, and the extent of the
constitutional power of Congress to prohibit such interception is
less clear than in the case of interception of wire communications.
The Supreme Court has indicated that Congress has broad power
to protect certain rights under the Equal Protection Clause of the
14th amendment against private interference. (United States v.
Guest, 86 S.Ct. 1170, 383 U.S. 745 (1966) (concurring and

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On June 17, 2014, I issued a Certificate of Question of Constitutionality pursuant to 28
U.S.C. § 2403(a) and Fed.R.Civ.P. 5.1(b) to the Attorney General of the United States. I
identified the question as a challenge to the constitutionality of 18 U.S.C. § 2511(a) on its face
and as applied. The United States had an opportunity to intervene for the presentation of
evidence on both a facial and an as-applied challenge to section 2511(a), but declined to do so.
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dissenting opinions).) The right here at stake-- the right of
privacy--is a right
arising under certain provisions of the Bill of Rights and the due process
clause of the 14th amendment. Although the broad prohibitions of
subparagraph (a) could, for example, be constitutionally applied to the
unlawful interception of oral communications by persons acting under
color of State or Federal law, see Katzenbach v. Morgan, 86 S.Ct. 1717,
384 U.S. 641 (1966), the application of the paragraph to other
circumstances could in some cases lead to a constitutional challenge that
can be avoided by a clear statutory specification of an alternative
constitutional basis for the prohibition.
Therefore, in addition to the broad prohibitions of subparagraph
(a), the committee has included subparagraph (b), which relies on
accepted jurisdictional bases under the commerce clause and other
provisions of the Constitution to prohibit the interception of oral
communications.
S.Rep. 90-1097, at 62 (1968), reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2180.4
The federal government exercises limited and enumerated powers. As the court stated in
United States v. Hubbard, 474 F. Supp. 64, 73 (D. D.C. 1979):
The Constitution has explicit protections against excessive
concentration of power in the federal government. Power is
allocated among the federal government and the states by
specifying those powers the Congress might exercise and by

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The plaintiff does not rely on Congress’ Commerce power as a basis of authority
supporting the enactment of section 2511(1)(a), and any such reliance has been found to be
unsupported. Specifically, in United States v. Perkins, 383 F. Supp. 922, 925 (N.D. Ohio 1974),
the court ruled:
In support of the statute, the Government cites the power of
Congress to regulate Interstate Commerce. This is not a tenable
position in view of the legislative history . . . and plain language of
the statute. In enacting 18 U.S.C. § 2511(1)(b)(iii) and (iv),
Congress clearly relied upon the Interstate Commerce Clause since
these sections require, as an element of the offense, proof that there
was contact with interstate commerce. In 18 U.S.C. § 2511(1)(a),
there is no requirement of involvement in interstate commerce, and
therefore, the power to enact such a law must lie elsewhere.
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emphasizing in the [T]enth [A]mendment that undelegated powers
were reserved to the states or respectively to the people.
Accordingly, Congress has authority to act only with respect to the
powers specified in the Constitution.
The court in United States v. Burroughs, 564 F.2d 1111 (4th Cir. 1977) (overruled on
other grounds by United States v. Steed, 674 F.2d 284 (4th Cir. 1982)), considered the
constitutionality of section 2511(1)(a), and noted:
Undeniably, subsections (1)(b)(i)-(iv) are based upon the power of
Congress to regulate interstate commerce and require a specific
showing of an effect upon interstate commerce. But because
subsection (1)(a) does not specify any particular basis for
jurisdiction, we are of the opinion that proof of any rational basis
would be adequate. The essential element is that some basis for
federal jurisdiction be established at trial.
(Internal citation omitted.)
In two cases involving criminal prosecutions, challenges to the constitutionality of
section 2511(1)(a) were rejected. In each case, the court construed section 2511(1)(a) to require
“some demonstrated federal nexus.” Burroughs, 564 F.2d at 1115 (4th Cir. 1977). Specifically,
in Burroughs the defendants (Burroughs and Guerry), private citizens and not law enforcement
officers or other governmental officials, attached a listening device to a telephone so that they
could intercept conversations occurring in a motel room. Importantly, however, “[t]he telephone
was not rigged in such a way as to permit the interception of telephone conversations and could
only be used to eavesdrop on the conversation between individuals in the . . . motel room.” Id. at
1113 n. 2. The Fourth Circuit affirmed the rulings of the district court, stating:
The interception of wire communications under § 2511(1)(a) and
oral communications under § 2511(1)(b)(i)-(iv) specifically require
a showing of an effect upon interstate commerce to establish a
violation of the statute. However, the interception of oral
communications under § 2511(1)(a) does not specify in statutory
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language any requirement of a federal nexus to establish a
violation of the statute. Because of this absence of jurisdictional
language in § 2511(1)(a) as it pertains to oral communications, the
district court interpreted this portion of the statute as applying only
to persons acting under color of state or federal law.
Id. at 1113-14. The court refused to invalidate section 2511(1)(a) on constitutional grounds, but
it entered an order of acquittal because the government had failed to establish the required
federal nexus of showing that Burroughs and Guerry were acting under color of state law. Id. at
1114. Accord Hubbard, 474 F. Supp. 64,73-74 (D. D.C. 1979)(adopting the reasoning in
Burroughs and holding that section 2511(1)(a) “requires some federal nexus as an essential
element thereof”).

The record here contains no allegation or evidence of any federal nexus.

In particular, the defendant was not acting under color of state law, and the recordings were not
made through the facilities of a communication common carrier engaged in the transmission of
interstate or foreign communications. In the absence of a federal nexus, 18 U.S.C. § 2511(1)(a)
is unconstitutional as applied here. Because the statute is unconstitutional as applied, the
plaintiff’s claim for its violation must fail.
The plaintiff relies on United States v. Perkins, 383 F.Supp. 922 (N.D. Ohio 1974), for a
contrary result. In Perkins, the defendants were charged with intercepting, via electronic
listening devices, oral communications of people in the private office a radio station manager.
The defendants were not state or federal officials. Nevertheless, the court relied on the right to
privacy guaranteed by the Fourth and Fifth Amendments as the constitutional basis supporting
enactment of section 2511(1)(a), stating:
[T]here is a Constitutional basis for the action of Congress in
enacting § 2511(1)(a). It is the basis which the Congress itself
expressly recognized:

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“Virtually all concede that the use of wiretapping or electronic
surveillance techniques by private unauthorized hands has little
justification where communications are intercepted without the
consent of one of the participants. No one quarrels with the
proposition that the unauthorized use of these techniques by law
enforcement agents should be prohibited. It is not enough,
however, just to prohibit the unjustifiable interception, disclosure,
or use of any wire or oral communications. An attack must also be
made on the possession, distribution, manufacture, and advertising
of intercepting devices. All too often the invasion of privacy itself
will go unknown. Only by striking at all aspects of the problem
can privacy be adequately protected.” 1968 U.S. Code Cong. &
Admin. News pp. 2112, 2156.
There is a right of privacy guaranteed to the citizens of this nation.
. . . Through the Fourth and Fifth Amendments, however, all the
protection needed was given; express delineation of a right to
privacy was not, and is not, necessary.
Today we live in populous clusters. People exist stacked atop each
other. With the uncontrolled development of technological means
whereby anyone can invade the privacy of another under virtually
any condition, the essential need for protection of this penumbral
right becomes apparent. We must be cautious lest through the
spread of these devices we plant the seeds of despotism at our own
door. . . .
The court concedes that Griswold [v. Connecticut, 381 U.S. 479
(1965)] and the more recent pronouncements of the Supreme Court
on the right to privacy . . . deal with invasion of the right of
privacy by the Government. But when a citizen discovers that his
office has been “bugged”, the fact that it was his employer rather
than the sheriff, affords little comfort. The Fourth Amendment
does not protect against unreasonable Governmental searches only
but against all unreasonable searches.
Id. at 926-26.
I find the courts’ reasoning in Burroughs and Hubbard more persuasive, and I adopt their
requirement that a violation of 18 U.S.C. § 2511 (1)(a) requires proof of a federal nexus. In any
event, the facts of this case differ materially from those presented in Perkins. There, the

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listening devices were surreptitiously installed in a private office where the occupant may have a
reasonable expectation of privacy. Here, by contrast, the recording device was placed by the
owner of the property in a public break room that was used by employees, boarders, trainers,
guests, and others. No similar right to privacy may be said to exist in such a public space, and
installation of the recorder under these circumstances cannot fairly be characterized as an
unreasonable private search.
IV. CONCLUSION
IT IS ORDERED:
(1) Plaintiff’s Motion for an Summary Judgment [Doc. #29] is DENIED; and
(2) Judgment shall enter in favor of the defendant on all claims.
Dated October 3, 2014.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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