                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 15-3287
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                      KIRK EADY,

                                              Appellant
                                   ________________

                      Appeal from the United States District Court
                             for the District of New Jersey
                     (D.C. Criminal Action No. 2-14-cr-00277-001)
                       District Judge: Honorable Jose L. Linares
                                  ________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 12, 2016

                Before: AMBRO, SMITH, and KRAUSE, Circuit Judges

                               (Opinion filed May 4, 2016)
                                  ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Kirk Eady appeals his conviction for one count of illegal wiretapping in violation

of 18 U.S.C. § 2511(1)(a) and the sentence of 21 months’ imprisonment. He makes three

primary arguments: 1) Government witness Todd Saul was ineligible to testify without

being qualified as an expert; 2) the jury instructions were incorrect; and 3) the

computation of his advisory Sentencing Guidelines range was incorrect because it

included a two-level upward adjustment for abuse of a position of trust under U.S.S.G.

§ 3B1.3. For the reasons that follow, we reject Eady’s arguments and affirm the

judgment of the District Court.1

       In 2012, while serving as the Deputy Director of the Hudson County Correctional

Center (HCCC) in Kearny, New Jersey, Eady surreptitiously recorded several phone calls

between senior members of the Corrections Officers Union and the operator of the

EDPDLaw.com website. Both the union members and EDPDLaw participated in

processing grievances against HCCC’s management, and EDPDLaw was publicly critical

of management.

       To record the calls, Eady used a web service known as “Evil Operator.” Marketed

by Tapfury, LLC, for making prank phone calls, Evil Operator allowed customers to

input two target telephone numbers and initiate a call between those two people. On each

target’s caller ID it would appear as though the call came from the other target. The

customer could then listen to the resulting conversation and record it without the targets

being aware of his presence. After obtaining the union members’ cell phone numbers

       1
        That Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
to review Eady’s conviction per 28 U.S.C. § 1291, and we have jurisdiction to review his
sentence under 18 U.S.C. § 3742(a).
                                              2
from HCCC records, Eady used Evil Operator to initiate calls between them and secretly

record the resulting conversations. Eady then retaliated against the union members by

changing their work schedules, placing anonymous calls to their spouses accusing them

of infidelity, and registering one of them as a member of the Ku Klux Klan.

       When one of the union members learned what Eady had done, he informed the

FBI. It launched an investigation and Eady admitted his use of the Evil Operator service

in recorded conversations with a confidential informant. Based on the evidence obtained

in the investigation, Eady was indicted by a grand jury in the District of New Jersey. In

preparation for trial, Todd Saul, a senior engineer at Tapfury, was asked to testify. Saul

had no prior experience with Evil Operator because Tapfury had discontinued it before he

joined the company. He therefore learned about the service by speaking with other

Tapfury employees and reviewing the relevant source code.

       At trial, Saul testified regarding the operation and interface of Evil Operator (he

also authenticated records of Eady’s use of the service). The Government presented

excerpts from the recorded conversations as proof of Eady’s use of it. At the conclusion

of the trial, Eady was convicted and, as noted, sentenced to 21 months’ imprisonment.

This appeal followed.

       Eady argues that Saul could not testify without being qualified as an expert

because his testimony was based on specialized knowledge and he lacked first-hand

experience concerning the Evil Operator service. We review those claims for abuse of

discretion. See United States v. Stadtmauer, 620 F.3d 238, 260 (3d Cir. 2010). Although

Federal Rule of Evidence 702 specifically authorizes expert witnesses to testify based on

                                             3
specialized or technical knowledge, “[w]hen a lay witness has particularized knowledge

by virtue of her experience, she may testify—even if the subject matter is specialized or

technical—because the testimony is based on the layperson’s personal knowledge rather

than on specialized knowledge within the scope of Rule 702.” Donlin v. Philips Lighting

North America Corp., 581 F.3d 73, 81 (3d Cir. 2009). When testifying about his

business, a lay witness’s personal knowledge may include “inferences that he could draw

from his perception of a business’s records, or facts or data perceived by him in his

corporate capacity.” United States v. Polishan, 336 F.3d 234, 242 (3d Cir. 2003). While

Saul’s testimony is perhaps at the outer limits of permissible lay witness testimony, his

knowledge was nonetheless based on business records and information that he acquired

from his professional colleagues. Moreover, Saul’s testimony regarding Evil Operator

was essentially duplicative of Eady’s recorded admissions regarding his use of the

service. In these circumstances, allowing Saul to testify as a lay witness was not an abuse

of discretion.

       Eady challenges the District Court’s instructions to the jury on three grounds: that

a specific unanimity requirement should have been imparted; that the jury instructions

constructively amended the indictment; and that the rule of lenity required the District

Court to adopt his proposed definition of a “party” for purposes of the defense created by

§ 2511(2)(d).

       Eady contends that the alternative bases for criminal liability provided in

§ 2511(1)(a) required a specific unanimity instruction to the effect that the jury had to

agree on how he had violated the statute. As he failed to raise this argument in the

                                              4
District Court, we review for plain error. To satisfy this standard, “there must be (1)

error, (2) that is plain, … (3) that affects substantial rights … [and] (4) the error [must]

seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc) (internal quotation

marks omitted). Section 2511(1)(a) provides that a defendant who “intentionally

intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to

intercept, any wire, oral, or electronic communication” has committed a federal crime. 2

Even when the Government alleges multiple factual bases for conviction, a specific

unanimity instruction is not required unless “the complexity of the case, or other factors,

create[] the potential that the jury will be confused.” United States v. Beros, 833 F.2d

455, 460 (3d Cir. 1987). There was no risk of confusion in this case because the

Government presented only one theory at trial – that Eady himself intercepted the

relevant phone calls – and thus a specific unanimity instruction was unnecessary.

       Eady argues next that the jury instructions constructively amended the indictment

by failing to include the jurisdictional limitation contained in 18 U.S.C. § 2510(1). As

Eady also failed to raise this objection in the District Court, we again review for plain

error. While § 2510(1) requires that a “wire communication” be sent through facilities

“furnished or operated by any person engaged in providing or operating such facilities for

the transmission of interstate or foreign communications or communications affecting

interstate or foreign commerce,” this jurisdictional limitation did not appear in the


       2
          As § 2511(1)(a) requires that the defendant act “intentionally,” Eady’s contention
that it creates a strict liability offense is incorrect.
                                               5
indictment, and thus the jury instructions matched the indictment. Moreover, the Court

also instructed the jury that landline and cellular telephone calls are wire

communications. As this is unquestionably true, it was not plain error for the District

Court to omit an express discussion of the jurisdictional limitation.

       Eady’s third and final challenge to the jury instructions concerns the definition of

a “party” for purposes of the defense contained in § 2511(2)(d). Pursuant to

§ 2511(2)(d), the defendant may not be held criminally liable for intercepting a wire

communication if he was “a party to the communication or … one of the parties to the

communication has given prior consent to such interception.” Per the jury instructions, a

“party” is a participant whose presence is known to the other parties contemporaneously

with the communication. Although his argument is not clear, Eady appears to contend

that “party” could also mean someone who could have participated in the

communication. As he could have spoken during the phone calls he intercepted, Eady

posits this qualified him as a party and thus the rule of lenity required the District Court

to follow this interpretation in its instructions.3 The proper definition of a “party” is a

question of law and our review is de novo. See United States v. Brown, 740 F.3d 145,

149 n.7 (3d Cir. 2014).

       Eady’s argument fails because the District Court correctly stated the law and thus

the rule of lenity does not apply. As the Court reasoned, it is clear that Congress intended

       3
          Eady also makes a confusing argument to the effect that, as he initiated the calls
at issue, § 2510 either protects him from prosecution under § 2511(1)(a) or renders
§ 2511(2)(d) ambiguous as applied to him. Section 2510, however, is simply a list of
statutory definitions and provides no support for this argument.

                                               6
to require actual participation in the conversation at issue to be considered a “party.” The

Senate Report on § 2511 expressly provides this definition, see S. Rep. 90-1097,

reprinted in 1968 U.S.C.C.A.N. 2112, 2182 (“‘[P]arty’ would mean the person actually

participating in the communication.”) (citing United States v. Pasha, 332 F.2d 193 (7th

Cir. 1964)), and it is also consistent with Congress’s purpose of preventing “an unseen

auditor” from intercepting communications. Id. at 2154. We have also held that a

“party” is “one who takes part in the conversation.” See In re Google Inc. Cookie

Placement Consumer Privacy Litigation, 806 F.3d 125, 143 (3d Cir. 2015) (quoting Caro

v. Weintraub, 618 F.3d 94, 97 (2d Cir. 2010)). While the District Court used different

words, its instructions to the jury were consistent with Congressional intent and our

precedent; a defendant does not actually participate in a conversation unless his presence

is known to the other participants. Section 2511 therefore contains no “grievous

ambiguity or uncertainty” as required for application of the rule of lenity, see Muscarello

v. United States, 524 U.S. 125, 139 (1998) (internal quotation marks omitted), and Eady

has failed to show any error in the jury instructions.4

       With regard to the Guidelines computation, Eady contends that he should not have

received a two-level upward adjustment for abuse of a position of trust pursuant to

U.S.S.G. § 3B1.3 because his position did not “contribute[] in some significant way to

facilitating the commission or concealment of the offense” as required by the first

application note to § 3B1.3. While that application note generally requires that the


       4
        For the same reasons, Eady’s argument that the ambiguity of the term “party”
renders all of § 2511 void for vagueness fails.
                                              7
defendant’s position play a significant role, this is not the case when the defendant uses it

to “obtain … or use without authority … any means of identification,” as defined in 18

U.S.C. § 1028(d)(7). U.S.S.G. § 3B1.3 n.2. Pursuant to § 1028(d)(7)(D), “a means of

identification” includes any “telecommunication identifying information or access device

(as defined in section 1029(e)).” 18 U.S.C. § 1029(e)(11) in turn defines

“telecommunication identifying information” as an “electronic serial number or any other

number or signal that identifies a specific telecommunications instrument or account, or a

specific communication transmitted from a telecommunications instrument.” The

telephone numbers that Eady obtained from HCCC records are therefore means of

identification, as they identify the employees’ specific telephones. Thus he is eligible for

an abuse-of-trust adjustment.

                                *     *       *      *      *

       We conclude that the District Court did not err in allowing Saul to testify as a lay

witness, in instructing the jury, or in applying the abuse-of-a-position-of-trust adjustment,

and we affirm its judgment of conviction and sentence.




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