                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                                No. 91-7373


                       UNITED STATES of AMERICA,

                                                      Plaintiff-Appellee,


                                   VERSUS


                        CHARLES LESLIE HARRELL,

                                                     Defendant-Appellant.




           Appeal from the United States District Court
             For the Southern District of Mississippi
                             (January 29, 1993)


Before REYNALDO G. GARZA, HIGGINBOTHAM and EMILIO M. GARZA, Circuit
Judges.

REYNALDO G.GARZA, Circuit Judge:

     Appellant, Charles Leslie Harrell, appeals his convictions of

modifying and selling descramblers modules for the purpose of

decrypting satellite transmissions in violation of 18 U.S.C. §

2512(1)(b) and 47 U.S.C. § 605(e)(4).           Upon review, we find both

statutes were correctly applied and we therefore AFFIRM.



                                   FACTS

     The   FBI   and   the   Motion   Picture    Association   of   America

conducted an investigation involving the illegal modification of
Video-Cipher     II   (VCII)     systems   used   to   descramble   satellite

transmissions.     Talley, an undercover agent for the MPA, brought 4

modules     to   Harrell   for    modification    to   illegally    intercept

satellite programming signals.         Harrell was arrested and charged

with modifying and selling descramblers on 2 occasions, November 29

and December 6, 1990.      He was indicted on 4 counts, counts 1 and 2

for the manufacture and sale of devices for the interception of

electronic communication in violation of 18 U.S.C. § 2512(1)(b) and

counts 3 and 4 for the manufacture and sale of devices used for the

unauthorized decryption of satellite cable programming in violation

of 47 U.S.C. § 605(e)(4).         Appellant was convicted on all counts

and he then filed motions for a judgment of acquittal and for a new

trial, which were denied.            Harrell was sentenced to 3 years

probation on each count to run concurrently and ordered to reside

in a halfway house for 4 months.             He was also fined $3000 and

charged a special assessment of $200.



                                    ANALYSIS

I.   Appellant argues that 18 U.S.C. § 2512(1)(b)1 does not apply to

      1
           18 U.S.C. § 2512 states in relevant part:
           Manufacture, distribution, possession, and
           advertising of wire, oral, or electronic communication
           intercepting devices prohibited
          (1) Except as otherwise specifically provided in this
           chapter, any person who intentionally-
             . . .
             (b) manufactures, assembles, possesses, or sells any
             electronic, mechanical, or other device, knowing or
             having reason to know that the design of such device
             renders it primarily useful for the purpose of the
             surreptitious interception of wire, oral, or electronic
             communication, and that such device or any component

                                       2
the interception of satellite transmissions and specifically to

modified decryption modules.      He states that the statute's phrase

"design of such device renders it primarily useful for the purpose

of the surreptitious interception of wire, oral, or electronic

communications" does not encompass modified decoders.                 Harrell

contends that the modules were only slightly modified and therefore

were not primarily designed for surreptitious listening.                   The

modules had been implanted with a chip with the address of a paying

customer   in   order   that   non-paying     usurpers    could    unscramble

encrypted satellite transmissions.

      It is obvious from the exceptions adopted by the statute that

the descrambling of encrypted messages constitutes piracy.                   §

2511(2)(g)(iii)(II) adopts the exception stated in 47 U.S.C. §

605(b)(1)2, formerly § 705 of the Communications Act of 1934.              That

exception states the interception of unencrypted transmissions is

not   unlawful.     The    statute       clearly   does   not     exempt   the

surreptitious interception of encrypted and scrambled signals.               §

2512 plainly states the proscription of eavesdropping of electronic

communications, such as satellite transmissions.

      Since it has been determined that the statute applies to the



           thereof has been sent through the mail or transported
in             interstate or foreign commerce;. . .
      2
       47 U.S.C.§ 605(b) provides in pertinent part:
       (b) The provisions of subsection (a) of this section
shall         not apply to the interception or receipt by any
individual,         or the assisting (including the manufacture
or sale) of            such interception or receipt, of any
satellite cable               programming for private viewing if-
          (1) the programming involved is not encrypted;

                                     3
piracy of satellite cable programming, we must now ask if the

modified module has become primarily useful for this surreptitious

interception.        We    now    join   several   other   circuits    who    have

previously found that the modified VCII modules are primarily

designed for electronic eavesdropping proscribed by § 2512(1)(b).

The   primary     purpose    of   the    legal   unscrambling   of    subscribed

programs has been permanently changed by the new computer chip

which enables unlimited viewing of unpaid signals.                   We find it

unreasonable to believe that an individual, having illegally spent

about $300 for the modified chip, will still primarily limit

himself     to    his     originally     paid    programming.         These    air

communication pirates consciously transgress the law because they

want to watch specific scrambled programs such as newly released

movies or timely sporting events.                  The modified modules are

rendered incapable of any service because the observed tampered

seal would subject the users to the risk of being reported to the

proper authorities.         The modules, also, cannot have there official

programming changed because their assigned address computer chips

have been replaced.          Therefore, the modules cannot be serviced,

changed, sold or even given away in fear that the user's piracy be

found out.       The broken seal has delegated the modules to secrecy,

unable to reenter the legal mainstream.

          We agree with the Eighth Circuit's recent opinion, United

States v. Dwayne, 978 F.2d 415 (8th Cir. 1992) (en banc), which

overruled their earlier interpretation in United States v. Hux, 940

F.2d 314 (8th Cir. 1991).          The panel found that the surreptitious


                                          4
interception   of   satellite   transmissions   was   prohibited   by   §

2512(1)(b).    The court stated in Dwayne:

          Receiving and decrypting or unscrambling a
          satellite signal, however, takes significant
          effort and is not an act of inadvertence.
          Furthermore,   the   act  of   encrypting   or
          scrambling a satellite signal evinces the
          originator's intent to prevent unauthorized
          persons from viewing the transmission . . . .
          Davis [defendant] altered the operation of the
          VCII devices by making major modifications.
          He opened the devices, thereby breaking a
          security seal, removed an epoxy-protected
          microprocessor chip by melting away the epoxy,
          added a connector and replaced the removed
          microprocessor chip with a new one containing
          modified   software.   .   .   .[A]ny   direct
          examination of a device in order to discover
          its address or to repair it would have led to
          the discovery of the illegal modifications.
          Consequently, individuals possessing these
          modified devices were required to use them in
          a most surreptitious manner.       Also, "[a]
          device will not escape the prohibition merely
          because it may have innocent uses.         The
          crucial test is whether the design of the
          device renders it primarily useful for
          surreptitious listening.". . . Accordingly,
          the devices Davis modified violated section
          2512(1)(b).

Id. at 419, 420, (quoting S.Rep. No. 1097, 90th Cong.2d Sess.

(1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2183 (emphasis in

original).

     The modification renders the modules illegal without any

chance that they could become legal again.        The design has been

forever changed so that the module can conduct surreptitious

interception and it follows that the user of such a modified

decoder will risk breaking the law only because he primarily wants

to use this module to view nonsubscribed programming.              Other

circuits also share our interpretation.      The 9th Circuit recently

                                   5
stated in United States v. Lande, 968 F.2d 907 (9th Cir. 1992):

                  We also agree that the "design" of these
             modified descramblers renders them "primarily
             useful for the purpose of . . . surreptitious
             interception." It is difficult to imagine any
             purpose for these modified descramblers other
             than   the   unauthorized   interception   of
             satellite television signals.

Id. at 910.        The 10th Circuit also found that modified television

modules     that    surreptitiously   intercept   encrypted   messages    is

prohibited by § 2512.        United States v. McNutt, 908 F.2d 561, 565

(10th Cir.) cert denied, 111 S.Ct. 955 (1991).        We distinguish our

own circuit's holding in United States v. Schweihs, 569 F.2d 965

(5th Cir. 1978) on its facts.         We found that § 2512 did not apply

to an amplifier being used during a burglary.          The amplifier had

alligator clamps connected to it and was being used to determine

which telephone wire was transmitting a silent alarm.          The device

was not modified as the module was in the instant case.                  The

amplifier was found to be the same as any other when the temporary

clamps were removed.       The actual instrument had not been modified

and therefore retained its primary legal use.          The module in our

case was internally and permanently changed to accommodate the

surreptitious interception of actual satellite programs, not just

silent alarm signals.         The appellant's reliance on Schweihs is

misplaced.



II.   The appellant also argues that § 605(e)(4)3 is vague and that

      3
          47 U.S.C. § 605(e)(4) states:
          (4) Any person who manufactures, assembles, modifies,
          imports, exports, sells, or distributes any electronic,

                                       6
the statute solely prohibits commercial cable transmissions as

opposed to individual television signals as delineated in the

definitions, § 605(d)(1).4       We find that the statute specifically

proscribes       the     surreptitious    interception   of   satellite

transmissions and it is not vague or ambiguous at all.        We reject

the argument that the word "cable" signifies only commercial usage

and that the statute distinguishes between the direct transmission

of satellite signals directly to individuals or its retransmission

via a cable operator.         The statute prohibits the surreptitious

interception of any encrypted satellite signal intended for private

use, either directly to the individual or indirectly through a

cable operator.        The statute's purpose is to proscribe the piracy

of programming signals, whether they be for commercial or personal

use.       The 9th Circuit stated in On/TV of Chicago v. Julien, 763

F.2d 839 (9th Cir. 1985):


       mechanical, or other device or equipment, knowing or
having          reason to know that the device or equipment is
primarily of          assistance in the unauthorized decryption of
satellite cable          programming, or is intended for any other
activity                  prohibited by subsection (a) of this
section, shall be fined          not more than $500,000 for each
violation, or imprisoned for          not more than 5 years for
each violation, or both. For              purposes of all
penalties and remedies established for              violations of
this paragraph, the prohibited activity               established
herein as it applies to each such device shall          be deemed
a separate violation.
       4
       47 U.S.C. § 605(d)(1) states:
       (d) Definitions
          For the purposes of this section-
              (1) the term "satellite cable programming" means
video                programming which is transmitted via
satellite and                  which is primarily intended for the
direct receipt by                cable operators for their
retransmission to cable                   subscribers;

                                      7
                Thus, courts have concluded that although the
                content of subscription television programming
                may be of interest to the general public, the
                scrambled transmissions are intended only for
                the benefit of the paid-up subscribers.
                Because subscription television programming is
                intended for the benefit of paying subscribers
                only,   it    does   not   fall   within   the
                "broadcasting for the use of the general
                public" exception to § 605.      Section 605,
                therefore, prohibits unauthorized interception
                of the scrambled signal.

Id. at 843.        The legislative history of the 1988 amendment for §

605 is clear.         The district court quoted some of this history in

United States v. Scott, 783 F.Supp. 280 (N.D.Miss. 1992):

                Section 5 of the Act amends Section 705 of the
                Communications Act pertaining to the piracy of
                satellite cable programming. The Committee's
                amendment   is   intended   to  deter   piracy
                practices by (1) stiffening applicable civil
                and criminal penalties, (2) expanding standing
                to sue, and (3) making the manufacture, sale,
                modification, importation, exportation, sale
                or distribution of devices or equipment with
                knowledge that its primary purpose is to
                assist in unauthorized decryption of satellite
                cable programming expressly actionable as a
                criminal act.    The Committee believes these
                changes are essential to preserve the longterm
                viability of the TVRO industry. . . . The
                piracy   problem    is  rampant   both   among
                commercial users of the VideoCipher II
                (hotels, lounges, and other establishments)
                and among private home users.

Id. at 282, (quoting from 1988 U.S.Code Cong. & Admin.News 5657-

58).       It    is   unambiguous   that       the   interception   of   encrypted

satellite transmissions for television programming for commercial

or private use is also prohibited by § 605(e)(4).5                  United States

       5
           There seems to be a significant overlap between § 2512 and
           § 605. Since a possible double jeopardy question is not
           before us, we do not address this issue today. Ball v.
           United States, 470 U.S. 856, 84 L.Ed.2d 740, 105 S.Ct.

                                           8
v. Shriver, 980 F.2d 456 (9th Cir. 1992).                    It challenges reason

that   the      statute    would    not    include     the   prohibition    of   the

surreptitious interception of subscribed individual television

programming.



III.   The appellant also argues that the court erred in responding

affirmatively       to    the    jury    that   §    605(e)(4)   applied   to    home

satellite dishes. For the aforementioned reasons, it is clear that

the statute pertains to commercial as well as individual users,

including those with their own satellite dishes.



                                        CONCLUSION

       § 2512(1)(b) and § 605(e)(4) clearly prohibit the surreptitous

interception of satellite transmissions, for commercial and private

use.      The    modified       module   becomes     primarily   useful    for   this

purpose.     For all of the above reasons, we

AFFIRM.




1168         (1985); Illinois v. Vitale, 447 U.S. 410, 65 L.Ed.2d
228,          100 S.Ct. 2260 (1980). We note, that at least the
sentences         for the 4 convictions, 2 violations under each
statute, are         to run concurrently.

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