
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1366                             GEORGE C. WILLIAMS, ET AL.,                               Plaintiffs, Appellants,                                          v.                              RICHARD E. POULOS, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 93-1367                             GEORGE C. WILLIAMS, ET AL.,                                Plaintiffs, Appellees,                                          v.                              RICHARD E. POULOS, ET AL.,                                Defendants, Appellees,                                 ____________________                                    RALPH A. DYER                                Intervenor, Appellant.                                 ____________________        No. 93-1368                             GEORGE C. WILLIAMS, ET AL.,                                Plaintiffs, Appellees,                                          v.                              RICHARD E. POULOS, ET AL.,                                Defendants, Appellees,                                 ____________________                                  RODNEY P. RODRIGUE                               Defendants, Appellants.                                 ____________________        No. 93-1680                             GEORGE C. WILLIAMS, ET AL.,                                Plaintiffs, Appellees,                                          v.                              RICHARD E. POULOS, ET AL.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                           Selya and Stahl, Circuit Judges,                                            ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Allen  S.  Rugg,  with whom  Ronald  R.  Massumi,  Kutak,  Rock  &            _______________              ___________________   _______________        Campbell,  John S.  Whitman, Richardson  & Troubh,  were on  brief for        ________   ________________  ____________________        plaintiffs-appellants George C. Williams, Allied Capital  Corporation,        Allied  Investment  Corporation,  Allied Venture  Partnership,  Allied        Capital Corporation II,  David P. Parker,  David Gladstone, Brooks  H.        Browne, Frederick  L. Russell, Jr.,  and Thomas R. Salley,  E. Stephen                                                                    __________        Murray, with whom Murray, Plumb & Murray were on brief for intervenor-        ______            ______________________        appellant Ralph A. Dyer.            John A.  McArdle, III, with  whom Daniel  G. Lilley and  Daniel G.            _____________________             _________________      _________        Lilley  Law Offices,  P.A., were  on  brief for  defendants/appellees/        __________________________        cross-appellants  Rodney P.  Rodrique, Wayne E.  Bowers, Sr.  and John        Robichaud.            Peter J.  DeTroy, III, with  whom Norman, Hanson &  DeTroy were on            _____________________             ________________________        brief  for  defendants/appellees/cross-appellants Richard  E.  Poulos,        John S. Campbell and Poulos & Campbell, P.A.                                 ____________________                                  December 14, 1993                                 ____________________        ____________________        *Of the District of Puerto Rico, sitting by designation.                      STAHL, Circuit  Judge.   Following a  six-day civil                             ______________            bench  trial,  the  district  court  ruled  that  the  former            principal  owners  of   Consolidated  Auto  Recyclers,   Inc.            ("CAR"), defendants  Wayne Bowers, Rodney  Rodrigue, and John            Robichaud (hereinafter  "the CAR  defendants"), violated  the            federal and Maine anti-wiretap statutes when they intercepted            and recorded telephone calls made  by and to plaintiffs,  who            were  employees   or  former  employees  of   Allied  Capital            Corporation ("Allied") and  certain of  its subsidiaries  and            affiliates.1   See 18 U.S.C.    2511(1)(a) and 15  M.R.S.A.                             ___            710(1).2   The court also  held that counsel retained  by the            CAR defendants, defendants Richard E. Poulos and the law firm            of Poulos, Campbell & Zendzian, P.A. (hereinafter "the Poulos            defendants"), violated 18 U.S.C.   2511(1)(c) and (d)  and 15            M.R.S.A.   710(3)(A) and (B) when they disclosed and used the                                            ____________________            1.  For  simplicity's  sake,  the  term  "Allied"  should  be            construed  as  encompassing  all   corporate  and  individual            plaintiffs, including intervenor Ralph A. Dyer.            2.  18  U.S.C.    2511(1)(a)  is a  provision of  the federal            anti-wiretap statute, found at Title III of the Omnibus Crime            Control and Safe Streets Act of 1968, 18 U.S.C.    2510-2521.            In  conjunction with  other statutory provisions,  it creates            criminal   and   civil   liability   for   any   person   who            "intentionally   intercepts,  endeavors   to  intercept,   or            procures  any  other  person  to  intercept  or  endeavor  to            intercept, any wire, oral, or electronic communication."                 15 M.R.S.A.    710(1) is a provision of  the Maine anti-            wiretap  statute,  found  at  15  M.R.S.A.     709-713.    In            conjunction  with  other  statutory  provisions,  it  creates            criminal   and   civil   liability   for   any   person   who            "intentionally or knowingly intercepts, attempts to intercept            or  procures any  other  person to  intercept  or attempt  to            intercept, any wire or oral communication."                                         -3-            recordings of the telephone calls at issue with the requisite            mens rea.3   As a  result, the court enjoined  all defendants            ____ ___            "from  further using and  disclosing information contained in            the subject interceptions except to obtain rulings  regarding                                            ____________________            3.  18 U.S.C.    2511(c) and  (d), in conjunction  with other            statutory provisions, create criminal and civil liability for            any person who                 (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; or                 (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  of  a   wire,  oral,  or   electronic                 communication in violation of this subsection . . .                 .                  15 M.R.S.A.    710(3)(A)  and (B),  in conjunction  with            other  statutory   provisions,  create  criminal   and  civil            liability for any person who                 A.   Intentionally  or knowingly  discloses  to any                 person  the  contents  of  any wire  communication,                 knowing that  the information was  obtained through                 interception; or                 B.   Intentionally or knowingly uses or attempts to                 use the contents of any wire or oral communication,                 knowing that the  information was obtained  through                 interception.                                         -4-                                          4            admissibility in  [an] underlying  suit [brought  by the  CAR            defendants against plaintiffs]."4  See 18 U.S.C.   2520.5                                               ___                      Each of  the three  sides to  this controversy  has            appealed from  various rulings  made by  the district  court.            Both the CAR  defendants and the Poulos  defendants challenge            sundry  factual   findings  and   legal  judgments,   arguing            essentially that their  respective actions did not  run afoul            of Title III and the Maine anti-wiretap statute.  Plaintiffs'            primary  claim  is  that  the  court's  injunction  does  not            sufficiently  remedy  the  harm they  have  suffered  and are            continuing to suffer.   After carefully reviewing  the record            and the parties' arguments, we affirm the judgment below.                                            ____________________            4.  In the underlying  suit, Bowers v. Allied  Capital Corp.,                                         ______    _____________________            Civ. No. 91-0021-B  (D. Me. filed  January 1991) (Brody,  J.)            ("Bowers"),  which  was  stayed  pending  resolution  of  the              ______            instant  case, the  CAR defendants  assert  causes of  action            under the Racketeer Influenced  and Corrupt Organizations Act            ("RICO"), 18 U.S.C.     1961-68, the Securities  Exchange Act            of  1934, 15  U.S.C.     78a-78kk, and  a host of  common law            theories.  Essentially, they contend that Allied entities and            personnel brought  about the  demise of  CAR through  certain            acts  primarily  committed  in  the  summer  of  1990.    The            particulars  of the relationship  between CAR and  the Allied            entities and personnel will be discussed more fully infra.                                                                _____            5.  Inter  alia,   18  U.S.C.      2520   authorizes  persons                _____  ____            victimized by violations  of 18 U.S.C.    2511(1)(a),(c), and            (d) to recover,  by means of a civil  action, (1) appropriate            equitable  or  declaratory  relief; (2)  actual  or statutory            damages; (3) punitive damages; and (4) litigation costs and a            reasonable attorney's fee.                                          -5-                                          5                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      The following detailed  recitation is derived  from            the   factual  findings  made   by  the  district   court  in            conjunction with  Allied's motion for  preliminary injunctive            relief, see Williams v. Poulos,  801 F. Supp. 867, 868-72 (D.                    ___ ________    ______            Me. 1992) ("Poulos I"), and after the conclusion of the bench                        ________            trial.  See Williams v.  Poulos, Civ. No. 92-0069-B, slip op.                    ___ ________     ______            at 3-10 (D. Me. February 4, 1993) ("Poulos II").6                                                _________                      This case is but one  in a series of civil lawsuits            and  bankruptcy  proceedings  which  can  be  traced  to  the            collapse  of  CAR.   CAR  was  founded in  1988  in  order to            dismantle automobiles  and resell used  parts.  By  May 1990,            CAR employed approximately  one hundred and forty  people and            operated throughout New England and in the Atlantic provinces            of  Canada.  Twenty  people worked in  CAR's East Vassalboro,            Maine,   headquarters,   including  Bowers,   Rodrigue,   and            Robichaud,  the  CAR defendants.   These  three owned  95% of            CAR's  stock and  were members  of  CAR's Board  of Directors            ("the Board").  In addition, Bowers was CAR's Chief Executive            Officer ("CEO") and Treasurer, while Rodrigue served as CAR's            President.                                            ____________________            6.  The  order and memorandum  of opinion on  the bench trial            incorporates by reference  the factual findings set  forth in            the  order and  memorandum of  opinion  on the  motion for  a            preliminary injunction.  See Poulos II, slip op. at 3.                                     ___ _________                                         -6-                                          6                      To  finance its  early growth  and operations,  CAR            developed a banking  relationship with  Casco Northern  Bank.            In  February 1990, Casco  Northern refused to  increase CAR's            lines of credit.  As a result, CAR found itself in  a serious            financial  bind because it  had already spent  the additional            money it  expected to  receive.   Accordingly, CAR turned  to            Allied,  a venture capital firm which had previously invested            in it.   Allied  responded with a  large infusion  of capital            that  raised its  total investment  in  CAR to  approximately            $4,500,000.                      Despite this additional funding, CAR was unable  to            resolve its  financial difficulties.  On May  29, 1990, Casco            Northern declared  CAR in  default on  its obligations.   Two            days  later, Allied followed  suit.  On June  28, 1990, in an            attempt to  resolve the  crisis, the  CAR defendants  entered            into an agreement  with Allied which came to be  known as the            "Midnight  Agreement."   Under its  terms, Ralph A.  Dyer was            made   CAR's   CEO   and  Chairman   of   the   Board,  three            representatives  of Allied,  plaintiffs  George C.  Williams,            David Gladstone, and Frederick  Russell, Jr., became  members            of  the Board,  and  David  Parker became  an  officer.   The            Agreement  also provided that the CAR defendants would remain            on the  Board,  that  Bowers  would retain  his  position  as            Treasurer, and that Rodrigue would continue as President.                                          -7-                                          7                      Meanwhile,  in May  1990,  the  CAR defendants  had            commissioned Michael Leighton, who owned Probe  Investigating            Service,   Inc.   ("Probe"),   to   provide   a  system   for            electronically  monitoring employee  phone  calls.7   The CAR            defendants felt that a surveillance system was needed  (1) to            reduce  CAR's telephone  bills,  and  (2)  decrease  employee            theft.   At  the  time  they installed  the  system, the  CAR            defendants apparently received impromptu advice from Attorney            Nicholas  Lanzilotta that "monitoring would not be illegal if            notice was first given to the monitored employees."                      After  examining CAR's  telephone system,  Leighton            concluded that he lacked the skill and expertise to create an            appropriate   monitoring  system.      He  therefore   sought            assistance from Jonathan Broome.  Broome's principal business            was  repairing consumer electronics; he was not an authorized            telephone system technician.  Although  Broome considered the            project to be unusual, Leighton assured him of its legality.                      On  or about June  17, 1990, Broome,  working after            hours along with CAR security officer David Fisher, installed            a  custom-designed   monitoring   system8   in   CAR's   East                                            ____________________            7.  Leighton and  Probe were also named as defendants in this            action.   At the close  of trial, the district  court granted            their  oral  motions  for  judgment  as   a  matter  of  law.            Plaintiffs have not appealed these rulings.            8.  Apparently, there  was no  commercially available  system            which could perform the intercepting and  recording functions            desired by the CAR defendants.                                         -8-                                          8            Vassalboro  headquarters.   In  its  findings  of  fact,  the            district court described the system as follows:                           The system . . . consisted  of small                      alligator clips attached  to a microphone                      cable at  one end and  a "punch-down"  at                      the  other.     The  wires  to   all  the                      extension  lines  in CAR's  offices  were                      assembled on the punch-down.  Calls could                      be intercepted by attaching the alligator                      clips and microphone wire to a designated                      extension  line on  the punch-down.   The                      system could  only monitor  one extension                      at a time.                           The  monitoring  system  designed by                      Broome   also   involved   an   interface                      connecting the microphone cable to a  VCR                      and  a video camera.  The VCR allowed the                      system to  record calls  for up  to eight                      hours.   The  video  camera recorded  the                      view meter on the  VCR, allowing a person                      to  fast forward  the VCR tape  until the                      meter  indicated  the presence  of  audio                      information.   The VCR, video  camera and                      interface  were  mounted  together  on  a                      plywood  board and  set up  in an  unused                      bathroom next to  the area containing the                      punch-down.   Connecting  wires were  run                      through and over a suspended ceiling.            Poulos II, slip op. at 4-5.            _________                      At some point  in June 1990, Rodrigue  informed the            managers at  CAR that all  telephone calls  at CAR's  offices            would be subject to random monitoring and recording.  He also            instructed the managers  to inform their subordinates  of the            new monitoring  policy.   At about  the  same time,  Rodrigue            directed employees  to record  long distance  phone calls  on            provided  telephone logs.   The employees were  told that the            logging  system  was  to  be used  in  conjunction  with  the            monitoring  system  to  reduce  costs.    On  June  29, 1990,                                         -9-                                          9            Rodrigue  told the new  CEO, Dyer, that  CAR had a  system in            place  to deter employee  phone abuse by  randomly monitoring            employee phone calls.                       David Fisher learned how to operate the  monitoring            system.  At first, he was instructed by the CAR defendants to            monitor the extension  lines randomly.   After a short  time,            however,  the  CAR   defendants  told  him  which   lines  to            intercept.   Fisher  was further  instructed  to deliver  the            tapes of  recorded conversations  to Wayne  Bowers each  day.            Bowers  then   made   cassette  tapes   of  those   telephone            conversations he wished to save.                       On June 21, 1990, Fisher was instructed to monitor            the telephone  line of  CAR Chief  Financial Officer  Richard            Lee,  who   had  been   hired  on   Allied's  recommendation.            Apparently, Rodrigue and Bowers doubted Lee's loyalty to CAR.            A  few  weeks  later,  however,  the  monitoring  system  was            attached to the  phone line of Jim Starr,  an accountant from            an outside firm who had been assigned  to audit CAR.  The CAR            defendants  suspected that  Starr was misusing  the telephone            system.                      During  this  same  general   time  period,  Dyer's            relationship with the CAR defendants, which had been strained            from  the beginning, was rapidly deteriorating.   By July 10,            1990,  Rodrigue and Robichaud  were openly feuding  with him.            On July  12, 1990, Dyer fired Rodrigue  and Robichaud.  About                                         -10-                                          10            a   week  after  the   firing,  Dyer  obtained   a  temporary            restraining order barring Rodrigue and Robichaud from the CAR            premises and prohibiting them from conducting any business on            the company's  behalf.   Meanwhile, on July  17 or  18, 1990,            Dyer   began  occupying  Starr's  office  and  using  Starr's            telephone line.  Between July 18, 1990, and July  25, 1990, a            number  of  Dyer's  telephone   calls  were  intercepted  and            recorded.  The  CAR defendants admit that, by  July 19, 1990,            they were specifically targeting Dyer's conversations.9                      On  July  21,  1990, the  CAR  defendants  met with            attorneys Richard  E. Poulos, John  S. Campbell, and  Paul F.            Zendzian,  the partners of Poulos, Campbell & Zendzian, P.A.,            to discuss possible legal representation in matters involving            CAR, Allied, and  Dyer.10  At that meeting,  the existence of            a tape  containing recorded  telephone conversations  between            Dyer and Allied  employees and representatives was  disclosed            to the  Poulos defendants.   The  Poulos  defendants made  no            inquiry  into  either how  the tape  was obtained  or whether                                            ____________________            9.  Although not mentioned  in the district  court's findings            of  fact,  the record  reflects that  telephone conversations            involving Brooks Browne, an Allied employee working at CAR in            late July 1990,  also were intercepted  and recorded.   These            conversations  took  place  while  Browne  was  using  Dyer's            telephone.            10.  Zendzian was  not named as  a defendant in  this action.            Campbell,  who was  a defendant  below,  was adjudged  by the            trial  court not  to have  violated either  Title III  or the            Maine anti-wiretap  statute.   Plaintiffs  have not  appealed            from this ruling.                                         -11-                                          11            there was  employee notice  or consent.   They did,  however,            advise the CAR defendants to boycott a Board meeting that was            scheduled for  July 23, 1990.   That meeting, which  was held            telephonically so that the out-of-town Allied employees could            participate, was taped by the CAR defendants.                       All    monitoring   and    taping   of    telephone            conversations at CAR's headquarters  was discontinued on July            25, 1990.   On that same date, audio cassettes of some of the            conversations  that  had  been taped  were  delivered  to the            Poulos  defendants, who soon  thereafter agreed  to represent            the CAR defendants in the Bowers lawsuit.   See supra note 4.                                      ______            ___ _____            Over the following six weeks, paralegals from the Poulos firm            prepared transcripts of the tapes.                      On July 27,  1990, pursuant to a  certificate filed            by Dyer with the United States Bankruptcy Court, a Chapter 11            bankruptcy  proceeding  was  initiated  on   behalf  of  CAR.            Anthony Swenson was appointed  Chapter 11 trustee for CAR  on            August 10,  1990.  On August 14, 1990, Swenson fired Dyer and            rehired Bowers, Rodrigue,  and Robichaud.   Subsequently, the            bankruptcy proceeding was converted to Chapter 7.                      In  early  August  1990,  Poulos  asked  Stuart  W.            Tisdale, an  associate attorney in  his office, to  prepare a            memorandum  concerning  the  legality  of  intercepting  wire            communications.   In discussing  the research assignment with            Tisdale,  Poulos stated that  Dyer knew  about the  taping in                                         -12-                                          12            question.   After  reading Tisdale's  memorandum, Poulos  and            Campbell were satisfied that at least some of the information            from the  tapes might be  admissible as evidence or  would be            otherwise useful in the case against Allied.  In the district            court's view, however, they did not "follow through  on their            research  on the  issue of  consent and  the legality  of the            interceptions."   Poulos II,  slip op.  at 8.   Nor did  they                              _________            "make an  effort to determine  directly whether Dyer  and the            other Allied employees  whose conversations were  intercepted            knew of or consented to the  monitoring."  Id.  Finally,  the                                                       ___            Poulos defendants "did not consult with bar counsel or advise            any court of the existence and use of the information derived            from the telephone conversations."  Id.                                                ___                      On  September  3  and  4,  1990,  Poulos  read  the            transcripts  of most of  the recorded conversations  that had            been preserved.  On October  31, 1990, he disclosed  contents            of the  tapes to Daniel  Amory and David Crocker,  counsel to            the CAR Chapter 11 trustee.   In so doing, Poulos  told Amory            and Crocker  that  the tapes  he  possessed might  have  been            criminally  obtained.    He  also  asked  them  to  keep  the            existence and  contents of  the tapes  strictly confidential.            In November and  December of 1990, Poulos  again reviewed the            tapes.                      In September, October, and early November  of 1990,            the  Poulos defendants obtained  a large number  of documents                                         -13-                                          13            previously delivered by  Allied to CAR's Chapter  11 trustee.            The  documents were produced  without any involvement  of the            Poulos defendants and without any connection to the existence            of  the  taped  telephone  conversations.    These  documents            included notes,  memoranda,  and  other  written  records  of            telephone  conversations that had been  taped on July 18, 19,            20, and 23, 1990.                      In  January  1991,  the CAR  defendants  filed  the            Bowers lawsuit, seeking  $63,000,000 in damages from  Allied,            ______            Dyer, and Leo Madden, a  business associate of Dyer's.  After            the  complaint  was  filed, all  discovery  was  stayed until            December  5, 1991.   During January  1992, shortly  after the            discovery stay  was lifted,  Poulos took  the depositions  of            Williams, Parker,  Dyer, and Madden.   Poulos  used both  the            discovery documents pertaining to the taped conversations and            the  tapes of the  conversations themselves in  preparing for            the aforementioned depositions.  Following these depositions,            Poulos revealed the  existence of  the tapes  to counsel  for            Madden and  Dyer.  In so doing, he  (1) told counsel that the            tapes  proved that  Madden  and Dyer  had  lied during  their            depositions,  and  (2)  offered  to  settle  with  them.   No            settlement was reached  between the parties, and  the present            lawsuit was filed by Allied on April 17, 1992.                                         II.                                         II.                                         ___                                  STANDARD OF REVIEW                                  STANDARD OF REVIEW                                  __________________                                         -14-                                          14                      Insofar    as   the    parties   are    challenging            determinations made  by the  district court  prior to  and in            conjunction with  the bench trial, our standard  of review is            familiar.  Claimed errors of  law are, of course, reviewed de                                                                       __            novo.   E.g.,  Dedham  Water Co.,  Inc.  v. Cumberland  Farms            ____    ____   ________________________     _________________            Dairy, Inc.,  972 F.2d 453,  457 (1st Cir. 1992);  LoVuolo v.            ___________                                        _______            Gunning, 925  F.2d 22, 25 (1st Cir. 1991).  Findings of fact,            _______            however, will not be  set aside unless they are  demonstrated            to  be clearly  erroneous.   Fed.  R. Civ.  P. 52(a);  Dedham                                                                   ______            Water, 972 F.2d  at 457.  In  other words, we will  give such            _____            findings effect  unless, after carefully  reading the  record            and according  due deference  to the  trial court's  superior            ability  to judge credibility, we form "`a strong, unyielding            belief that  a mistake  has been made.'"   Dedham  Water, 972                                                       _____________            F.2d at 457 (quoting Cumpiano v. Banco Santander Puerto Rico,                                 ________    ___________________________            902 F.2d 148, 152 (1st Cir. 1990)).  As a result, where there            are two permissible views of the evidence, the interpretation            assigned  by  the lower  court must  be adopted.   Rodriguez-                                                               __________            Morales v. Veterans Admin., 931 F.2d 980, 982 (1st Cir. 1991)            _______    _______________            (citing Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).                    ________    _____________                      The  clearly  erroneous  standard  also  ordinarily            applies when  we review a  trial court's resolution  of mixed            questions of law and  fact.  E.g.,  LoVuolo, 925 F.2d at  25;                                         ____   _______            Henry  v. Connolly, 910 F.2d 1000, 1003  (1st Cir. 1990).  In            _____     ________            such  situations,  however,  we  are  obligated  to determine                                         -15-                                          15            whether the court's  resolution was infected by  legal error.            See LoVuolo, 925 F.2d at 25.   And, "`if a trial court  bases            ___ _______            its findings upon  a mistaken impression of  applicable legal            principles, the reviewing  court is not bound  by the clearly            erroneous standard.'"   Id.  (quoting Inwood  Labs., Inc.  v.                                    ___           ___________________            Ives Labs., Inc., 456 U.S. 844, 855 n.15 (1982)).11            ________________                      With  regard to Allied's attack upon the nature and            extent of  the injunction issued  by the district  court, our            framework for review is equally well-established.   Just as a            trial court's decision  on whether to exercise  its equitable            powers is  committed to  its sound  discretion, Taino  Lines,                                                            _____________            Inc. v. M/V Constance Pan Atlantic, 982 F.2d 20, 24 (1st Cir.            ____    __________________________            1992), so too  is its choice of  equitable remedies, Rosario-                                                                 ________            Torres v. Hernandez-Colon, 889 F.2d 314, 323 (1st  Cir. 1989)            ______    _______________            (en banc).  Thus, our role is  to review only for an abuse of            that discretion.   Taino,  982 F.2d at  24.   Underlying this                               _____            deferential standard is a recognition that, in exercising its            equitable  powers, the  district  court "`has  had first-hand                                            ____________________            11.  In  a recent case, we  explained our review standard for            mixed  questions  in  a  slightly  different  manner:    "The            standard  of  review  applicable to  mixed  questions usually            depends  upon where they  fall along  [a] degree-of-deference            continuum:   the more fact  dominated the question,  the more            likely it  is that  the trier's  resolution will  be accepted            unless shown to be clearly  erroneous."  In re Extradition of                                                     ____________________            Howard,  996 F.2d  1320,  1328  (1st  Cir.  1993)  (reviewing            ______            findings made at  extradition hearing) (citing United  States                                                           ______________            v. Mariano, 983 F.2d 1150, 1158-59 (1st Cir. 1993); Roland M.               _______                                          _________            v. Concord Sch. Comm., 910  F.2d 983, 990-91 (1st Cir. 1990),               __________________            cert. denied, 111 S. Ct. 1122 (1991)).            _____ ______                                         -16-                                          16            exposure  to the  litigants  and  the evidence  and  is in  a            considerably better position to bring the scales into balance            than  an appellate tribunal.'"  Hiraldo-Cancel v. Aponte, 925                                            ______________    ______            F.2d 10, 13  (1st Cir.) (quoting Rosario-Torres,  889 F.2d at                                             ______________            323)  (ellipses omitted)),  cert.  denied,  112  S.  Ct.  637                                        _____  ______            (1991).  Nonetheless,  we will reverse if the court committed            a clear error of law.   See In re Boston and Maine Corp., 719                                    ___ ____________________________            F.2d 493,  495 (1st  Cir. 1983), cert.  denied, 466  U.S. 938                                             _____  ______            (1984); see also Feinstein v. Space  Ventures, Inc., 989 F.2d                    ___ ____ _________    _____________________            49, 51 (1st Cir. 1993) (reviewing preliminary injunction).                      It  is against this  backdrop that we  evaluate the            parties' claims.                                          III.                                         III.                                         ____                                      DISCUSSION                                      DISCUSSION                                      __________                      On appeal,  the CAR and Poulos  defendants together            contend (1) that the court erred in rejecting their arguments            that two statutory exceptions -- the "business extension" and            "consent" exceptions -- shielded them from liability; and (2)            that  the court erroneously  refused to admit  certain expert            testimony.  In  addition, the Poulos defendants  alone assert            (1) that the  court erred in  ruling that plaintiffs'  claims            for equitable relief against them were not moot; (2) that the            court  erred  in  determining  that  Poulos  had  acted  with            sufficient knowledge to have violated Title III and the Maine            anti-wiretap statute; (3)  that the court erred  in rejecting                                         -17-                                          17            their  claim that the statutory "good faith" defense relieved            them of  liability; and (4)  that the court erred  in denying            them a jury trial on these latter two issues.                      Plaintiffs' complaints essentially are (1) that the            court made mistakes of law in fashioning equitable relief for            the violations it found; (2)  that the court erred in denying            their Fed.  R. Civ.  P. 59(e) motion  to amend  judgment; (3)            that the court erred  in ruling that statutory damages  under            18 U.S.C.   2520 are legal, and not equitable, in nature; and            (4) that the  court erred in holding that  the CAR defendants            were not  liable for use  and disclosure violations  under 18            U.S.C.   2511(1)(c) and (d).                   We discuss each of these arguments in turn.            A.  Defendants' Arguments            A.  Defendants' Arguments            _________________________                 1.  Statutory Exceptions                 1.  Statutory Exceptions                 ________________________                      As  both the CAR  and Poulos defendants  point out,            not  all aural  acquisitions of  wire,  oral, and  electronic            communications are illegal  and give rise to  liability under            Title  III  and the  Maine  act.    In fact,  these  statutes            specifically delineate  certain acquisitions that do not give                                                                 ___            rise to  such liability.  Defendants argue  that the district            court erred in ruling that two of these defined exceptions --            the  business extension  and consent  exceptions  -- did  not            apply.  Our  review, however, persuades  us that the  court's            rulings are supported by the record.                                         -18-                                          18                      a.  The Business Extension Exception12                                                                                  a.  The Business Extension Exception12                      ______________________________________                      The business extension exception, often called  the            "extension  telephone"  exception,  see,   e.g.,  Campiti  v.                                                ___    ____   _______            Walonis, 611  F.2d 387, 392  (1st Cir. 1979),  places outside            _______            the  reach  of  Title III  the  monitoring  of communications            carried out  by certain  types of equipment  and done  in the            ordinary course  of business.   It derives  from 18  U.S.C.              2510(4)   and  (5).     Section  2510(4)  defines   the  term            "interception"  as "the  aural or  other  acquisition of  the            contents  of  any  wire,  electronic,  or oral  communication            through  the  use  of any  electronic,  mechanical,  or other            _______  ___  ___  __ ___  __________   __________   __ _____            device." (Emphasis supplied).  Section 2510(5), insofar as is            ______            relevant,  then  defines  "electronic, mechanical,  or  other            device" in the following manner:                   (5)  "electronic,  mechanical, or  other  device"                 means any device or apparatus  which can be used to                 intercept a wire, oral, or electronic communication                 other than --                 _____ ____                        (a)   any   telephone    or   telegraph                      instrument, equipment or facility, or any                      component thereof, (i) . . . furnished by                      [a] subscriber or  user for connection to                      the facilities of  [a wire or  electronic                      communication]  service and  used in  the                      ordinary course of its business[.]            (Emphasis  supplied).  Thus,  if the monitoring  conducted by            the  CAR  defendants  had  been  effectuated by  means  of  a                                            ____________________            12.  The  business extension exception  is found only  in the            federal act.  Thus, we confine our discussion in this section            of the opinion to federal law.                                         -19-                                          19            "telephone or telegraph instrument, equipment or facility, or            any component  thereof" which was  both furnished by  CAR for            connection to the facilities of its communication service and            used  in the  ordinary course  of  its business,  defendants'            actions would  not constitute  an interception  and would  be            beyond the reach of Title III.                      The  district court  determined  that the  business            extension  exception did  not  apply for  two  reasons:   (1)            because  "the  subject  conversations  were  intercepted  and            recorded by  a  device configured  by  someone other  than  a            provider  of  electronic  communication  service";  and   (2)            because "a  legitimate business purpose did not  exist at the            time the subject conversations were intercepted."  See Poulos                                                               ___ ______            II,  slip op.  at  17.   Perhaps  recognizing  the amount  of            __            deference owed to the court's resolution of this paradigmatic            mixed question  of law and  fact, defendants do not  expend a            great  amount  of  energy  attacking  the   factual  findings            underpinning the  court's conclusions.   Instead, they  argue            that  the  court's  ruling was  infected  by  erroneous legal            reasoning.  More specifically,  defendants assert that,  with            regard to its  first stated reason, the  court misapprehended            the technical requirements  of the statute, and,  with regard            to its second stated reason, the court misconstrued  the term            "ordinary course of business."                                          -20-                                          20                      We agree  with defendants that, in  concluding that            the business  extension exception  did not  apply, the  court            erred in its reasoning.  Section 2510(5)(a) does not  require            that the  acquisition device be  configured by a  provider of            electronic  communication service.  Nor does it direct courts            to conduct  an inquiry  into whether  a "legitimate  business            purpose" for monitoring exists at the time  of the challenged            aural acquisition.                      Nonetheless,  we   believe  the   district  court's            ultimate determination, that the business extension exception            does not apply, is sustainable.  Simply put, we are at a loss            to see how the monitoring  system used here, consisting as it            did of "alligator clips attached to a microphone cable at one            end"  and an "interface connecting [a]  microphone cable to a            VCR and a video camera" on the other, can be considered to be            a "telephone or telegraph instrument,  equipment or facility,            or a[]  component thereof."13   In so  stating, we  note that                                            ____________________            13.  In support of its position that the CAR device should be            so considered,  defendants advance three  arguments that are,            at best,  unpersuasive.   First, defendants  assert that  the            record evidence demonstrates  that the monitoring  device was            comprised  of   standard  electronic  components   which  are            "commonly used in  telephone systems."  Upon  close scrutiny,            however, it  is clear that this assertion  is premised solely            upon an  outrageous mischaracterization  of the  testimony of            Jonathan  Broome.    Broome did  not  testify,  as defendants            suggest, that the components of the  CAR system "are commonly                                                                 ________            used in telephone  systems."  (Emphasis supplied).   Instead,                 __            he  answered the question, "So, these wires were not uncommon            parts or  components for use  in various ways with  the [sic]                                                          ____            telephone systems,  were they?" by  responding, "No.   It was            all  -- you don't  usually use balanced  shielded audio cable                                         -21-                                          21            the  CAR system is  factually remote from  the telephonic and            telegraphic  equipment  courts  have  recognized  as  falling            within the exception  at 18 U.S.C.   2510(5)(a).   See, e.g.,                                                               ___  ____            Epps v.  St. Mary's  Hosp., 802 F.2d  412, 415-16  (11th Cir.            ____     _________________            1986)  (dispatch  console  installed  by  telephone   company            considered telephone equipment); Watkins v. L.M. Berry & Co.,                                             _______    ________________            704 F.2d  577, 582-84  (11th Cir.  1983) (standard  extension            telephone implicitly considered  telephone equipment); Briggs                                                                   ______            v. American Air  Filter Co., Inc., 630 F.2d  414, 416-20 (5th               ______________________________            Cir.  1980) (same); James v. Newspaper Agency Corp., 591 F.2d                                _____    ______________________            579, 581  (10th Cir.  1979) (monitoring  device installed  by                                            ____________________            for  telephone, but  it is quite  acceptable to."   (Emphasis            supplied).  In other  words, rather than testifying that  the            components  are  commonly used  in telephone  systems, Broome                             ________       __            stated  that, though  it was  unusual,  the components  could                                          _______                   _____            acceptably be used with telephone systems.  In our view, such                               ____            testimony is not helpful to defendants.                 Second, defendants claim that certain 1986 amendments to            the federal anti-wiretap statute were intended to broaden the            meaning of 18 U.S.C.    2510(5)(a) so as to include equipment            such as the CAR monitoring device.  This argument  flagrantly            misconstrues  the purpose of  the congressional action.   The            legislative   history  makes  it   apparent  that   the  1986            amendments  were  aimed  at   strengthening  the  statute  by                                          _____________            updating   it    to   reflect   nearly    twenty   years   of            telecommunications advances.   See generally S. Rep.  No. 99-                                           ___ _________            541,  99th   Cong.,  2d   Sess.  1-11,   reprinted  in   1986                                                     _________  __            U.S.C.C.A.N. 3555-65.  Despite defendants' contrary  urgings,            there  is absolutely no  evidence in this  history suggesting            that Congress meant to expand the parameters of the  business            extension exception so  as to embrace almost  all wiretapping            equipment.                 Finally,  defendants  seem  to   argue  that  the  First            Circuit, in Campiti, 611 F.2d at 392, read the "any telephone                        _______            or  telegraph  instrument,  equipment  or  facility,  or  any            component  thereof" provision out of    2510(5)(a).  We think            it sufficient to state without elaboration that Campiti, when                                                            _______            fairly read in context, does no such thing.                                           -22-                                          22            telephone company implicitly considered telephone equipment).            Indeed, we  think it  self evident that  the CAR  system, far            from being  the type of exempt equipment  contemplated by the            authors of the business extension exception, is precisely the            type of  intercepting device  Congress  intended to  regulate            heavily when it enacted Title III.                      We recognize that it is not ordinarily the province            of appellate courts  to make findings of fact  or to resolve,            in the first instance, mixed questions of law and fact.  Yet,            where  only  one  resolution  of  a  predominantly  factbound            question would, on  a full record, be  sustainable, courts of            appeals can, and often should, decline to remand where  there            has  been an error committed.  See  Dedham Water, 972 F.2d at                                           ___  ____________            463; see also In re Two  Appeals Arising Out of the San  Juan                 ___ ____ _______________________________________________            Plaza  Hotel Fire Litigation, 994  F.2d 956, 968-69 (1st Cir.            ____________________________            1993)  (appellate  courts may  eschew remand  where remanding            would be  an empty  exercise); Societe  Des Produits  Nestle,                                           ______________________________            S.A.  v. Casa  Helvetia, Inc.,  982 F.2d  633, 642  (1st Cir.            ____     ____________________            1992)  (where trial court "supportably `made the key findings            of  fact' but  applied the wrong  rule of  law, the  court of            appeals ha[s]  the power,  in  lieu of  remanding, simply  to            regroup  the findings  `along the  proper matrix'")  (quoting            United States  v. Mora, 821  F.2d 860, 869 (1st  Cir. 1987)).            _____________     ____            Here, given the  trial court's findings regarding  the nature            of the monitoring  device, the only sustainable  ruling would                                         -23-                                          23            be  that  the  device  was  not  a  "telephone  or  telegraph            instrument, equipment or  facility, or a component  thereof,"            and  therefore  not  within the  parameters  of  the business            extension  exception.   Accordingly,  we reject  the argument            that defendants are protected by this exception.14                      b.  The Consent Exception                      b.  The Consent Exception                      _________________________                      Both the federal and Maine acts specifically exempt            from their prohibitions the  interceptions of telephone calls            where one or more of the conversants has consented to  or, in            the   case  of  the  Maine  act,  previously  authorized  the            interception.  See  18 U.S.C.   2511(2)(d) and  15 M.R.S.A.                             ___            709(4)(C).15   As we  have  made clear,  consent under  Title                                            ____________________            14.  In  their  brief,  the  CAR  defendants  conclude  their            argument that the business extension exception applies with a            very  short  equitable  argument  that  their   "good  faith"            reliance  on  the  advice of  others,  including  counsel, in            installing  the monitoring  system  should absolve  them from            liability.   They do  not, however,  adduce any  authority in            support of this novel proposition.   Moreover, in the  course            of   rebuffing  defendants'   business  extension   exception            argument,  the district  court  supportably  found  that  the            interceptions here at  issue were not effectuated  to further            the original purpose of the monitoring system.  Defendants do            not,  and cannot, seriously contest this  finding.  Thus, the            alleged  good faith  of  the  CAR  defendants  in  originally                                                           __  __________            installing the system is irrelevant.            __________ ___ ______            15.  In relevant part, 18 U.S.C.   2511(2)(d) provides:                   It shall not be unlawful under this chapter for a                 person not acting under color of law to intercept a                 wire, oral, or electronic communication where . . .                 one of the  parties to the communication  has given                 prior consent to such interception . . . .                 Similarly, 15  M.R.S.A.    709(4)(C)  excludes from  the            reach  of   the  statute  those  interceptors   "given  prior                                         -24-                                          24            III16 need  not  be explicit;  instead,  it can  be  implied.            See Griggs-Ryan v. Smith, 904  F.2d 112, 116 (1st Cir. 1990).            ___ ___________    _____            Implied consent is  not, however, constructive consent.   Id.                                                                      ___            "Rather,  implied consent  is  `consent  in  fact'  which  is            inferred `from surrounding circumstances indicating that  the            party knowingly agreed  to the surveillance.'"  Id. at 116-17                  _________ ______                          ___            (quoting United  States v. Amen,  831 F.2d 373, 378  (2d Cir.                     ______________    ____            1987),  cert. denied,  108  S.  Ct.  1573  (1988))  (brackets                    _____ ______            omitted) (emphasis supplied).   In light of  the prophylactic            purposes of Title III, implied consent should not be casually            inferred.  See id. at 117.                        ___ ___                      Here,  the record  reflects and the  district court            found that  Ralph Dyer  was told of  the "monitoring"  of CAR            employee  telephone  calls.17    The  record  is  not  clear,            however, as to whether Dyer was informed (1) of the manner --            i.e.,   the   intercepting   and   recording   of   telephone                                            ____________________            authority by the sender or receiver."               16.  Because  the  "consent"  standard  under  Title  III  is            certainly  no  more  stringent  than  the  "prior  authority"            standard set forth in 15 M.R.S.A.   709(4)(C), see supra note                                                           ___ _____            15, and because, as will  be demonstrated below, we rule that            the district  court did not  clearly err in finding  that the            consent standard had  not been met, we need  only discuss the            federal act in this section of the opinion.            17.  Defendants' consent arguments  involve only the  actions            of Ralph Dyer,  and are not directed at  the district court's            summary judgment ruling that the consent exception does apply            to the conversations involving  Brooks Browne.   Accordingly,            we   limit  our  discussion  to  whether  Dyer  consented  to            interceptions of his telephone conversations.                                         -25-                                          25            conversations  -- in which this monitoring was conducted; and            (2) that  he himself would  be subjected to  such monitoring.            There  was testimony  tending  to  indicate  that he  was  so            informed,  which the district  judge apparently chose  not to            credit, and  testimony tending to  indicate that he  was not.            In our view, the latter testimony, far from being incredible,            was highly  plausible.18  Thus, there  is no basis  for us to            conclude that  the district  court clearly  erred in  finding            that Dyer was not told of the manner in which  the monitoring            was conducted  and that he  himself would be monitored.   Cf.                                                                      ___            Rodriguez-Morales, 931 F.2d at 982 (district court's  finding            _________________            should not be disturbed where there are two permissible views            of  the  evidence).    And, without  at  least  this  minimal                                                 __  _____            knowledge on the  part of Dyer, we do not see how his consent            in fact to the monitoring could be inferred from this record.            Cf.  Griggs-Ryan, 904 F.2d  at 117 (implied  consent inferred            ___  ___________            where defendant was informed (1) that all incoming calls, (2)            on   a  particular  line,   (3)  would  be   tape  recorded).            Accordingly, we reject the contention that the court erred in            finding  that defendants  are not  protected  by the  consent            exception.                 2.  Refusal to Admit Expert Testimony                 2.  Refusal to Admit Expert Testimony                 _____________________________________                                            ____________________            18.  It  is difficult to believe that the newly-installed CEO            and  Chairman  of  the  Board  would  have  assented  to  the            intercepting   and   recording   of   his  conversations   by            subordinates  with whom  he  was engaged  in  a struggle  for            power.                                         -26-                                          26                      Defendants  also assert  that  the  court erred  in                                  refusing  to  admit,  pursuant  to Fed.  R.  Evid.  702,  the            testimony   of  their  expert,  G.  Robert  Blakey.19    This            argument does not require extended discussion.                       Rule 702 provides:   "If scientific,  technical, or            other specialized knowledge  will assist the trier of fact to            understand the  evidence or to  determine a fact in  issue, a            witness  qualified   as  an   expert  by   knowledge,  skill,            experience, training, or  education, may  testify thereto  in            the form  of an  opinion or otherwise."   It is  settled that            "`the  admission  of  expert testimony  under  [Rule]  702 is            within  the  discretion of  the  district court  and  will be            reversed only for an abuse  of that discretion.'"  Navarro de                                                               __________                                            ____________________            19.  Blakey, described by  the CAR defendants as "one  of the            drafters  and architects" of Title III, would, in defendants'            words,  "[have] address[ed] the  many mixed questions  of law            and fact  which [arose] in  this action .  . . ."   Indeed, a            review of  the Poulos  defendants' offer  of proof  regarding            Blakey  reveals that,  if  he had  been  allowed to  testify,            Blakey  would  have opined  on  virtually  all of  the  mixed            questions of law and fact in  this litigation.  Specifically,            Blakey would  have testified, inter  alia, (1)  that the  CAR                                          _____  ____            defendants'  monitoring  equipment  was  not  a  "device"  as            defined by  18 U.S.C.    2510(5)(a) or 15 M.R.S.A.    709(3);            (2) that the  monitoring equipment "was telephone  `equipment            or facility'" [sic], see 18 U.S.C.   2510(5)(a); (3) that the                                 ___            monitoring at  issue was done "within the  ordinary course of            [CAR's]   business,"  see  id.;  (4)  that  the  actions  and                                  ___  ___            activities of  the Poulos defendants  "were carried out  in a            good faith reliance  on a statutory authorization  within the            terms  of 18 U.S.C.    2520(d)"; and (5)  that "under all the            relevant facts and  circumstances, attorneys in the  position            of the Poulos defendants . . .  would not have had `reason to            know' that  the  [intercepted] information  was  obtained  in            violation of law."                                           -27-                                          27            Cosme v.  Hospital Pavia, 922  F.2d 926, 931 (1st  Cir. 1991)            _____     ______________            (quoting Forrestal v. Magendantz, 848 F.2d 303, 305 (1st Cir.                     _________    __________            1988)).                      Here,  the  court  granted  plaintiffs'  motion  to            exclude Blakey  by stating:   "I'm satisfied  with regard  to            expert  witnesses in this case  that expert witnesses are not            appropriate, . .  . and I have excluded  both the plaintiffs'            and  the defendants' experts  by appropriate action  on their            respective motions."   Thus, it  appears that  the court,  as            factfinder, concluded that it could "understand  the evidence            [and]  determine   [the]  fact[s]  in   issue"  without   the            assistance of  experts.  Our review of  this record persuades            us  that the  court acted  well within  its discretion  in so            concluding.20       Accordingly,   we    reject   defendants'            contention  that  the  court   erred  in  excluding  Blakey's            testimony.                 3.  Mootness                 3.  Mootness                 ____________                      The  Poulos  defendants   assert  that  plaintiffs'            claims against them became moot when plaintiffs amended their                                            ____________________            20.  The court's decision  rests upon especially firm  ground            with regard  to  Blakey.   The  Poulos defendants'  offer  of            proof,  see  supra note  19,  reveals that  virtually  all of                    ___  _____            Blakey's  testimony   would  have   been  opinion   testimony            regarding (1) the state of mind of the Poulos defendants, and            (2)  the applicability of certain statutory provisions to the            facts  of this  case.   Leaving  aside overall  admissibility            concerns, it  is apparent  that such testimony  is not  based            upon  "scientific, technical, or . . . specialized knowledge"            likely to be lacking in the able district judge who conducted            this bench trial.                                         -28-                                          28            complaint  so   as  to   drop  their   claims  for   monetary            damages.21   In so  doing, they  point to  the fact that,  as            the  CAR defendants'  attorneys, they would  be bound  by any            injunction  or  restraining  order  issued  against  the  CAR            defendants  alone.   See Fed.  R. Civ.  P. 65(d).22   In  the                                 ___            Poulos  defendants'  view, the  fact  that they  would  be so            bound, when combined with the  fact that the trial was solely            for equitable relief,  means that complete relief  could have            been afforded to  plaintiffs without their presence  as named            defendants.   Thus, the argument concludes, after the damages            claims  were  dropped,   there  was  no  longer   a  case  or            controversy between  plaintiffs and  themselves.   We  cannot            agree with the Poulos defendants' argument.                      Among  its  infirmities,  this  argument  fails  to            recognize that  plaintiffs sought from the  Poulos defendants            two  forms  of  relief  other  than  an injunction.    First,                                    _____  ____            plaintiffs  sought a declaration  that the  Poulos defendants                                                   ___  ______ __________            themselves, irrespective  of their relationship  with the CAR            __________                                            ____________________            21.  In   their   original   complaint,   plaintiffs   sought            declaratory  and  injunctive relief;  actual,  statutory, and            punitive damages; and attorneys' fees.   Eventually, however,            plaintiffs amended their complaint so as to dismiss all their            damages  claims.   As a  result,  the case  was reduced  to a            completely  equitable   proceeding  tried  only   before  the            district court.            22.  The part of Rule 65(d) upon which the  Poulos defendants            rely states:   "Every order granting an injunction  and every            restraining order . .  . is binding only upon  the parties to            the action, their officers, agents, servants,  employees, and            attorneys . . . ."                                         -29-                                          29            defendants,  had violated, inter alia, the disclosure and use                                       _____ ____            provisions of  Title III  and the Maine  act.23   And second,            plaintiffs  sought from the  Poulos defendants the attorneys'            fees  they had  incurred in  the course  of protecting  their            statutorily created rights.  Thus, even if we were to endorse            for the sake  of argument the dubious premise  upon which the            Poulos  defendants' argument rests, we are still compelled to            conclude that  there was  a very  live  case and  controversy            between plaintiffs and  the Poulos defendants.   Accordingly,            we  reject the contention that plaintiffs' claims against the            Poulos defendants were mooted when they dropped their damages            claims.24                 4.  Poulos's Knowledge                 4.  Poulos's Knowledge                 ______________________                                            ____________________            23.  Despite  the fact that it is specifically made available            by 18 U.S.C.   2520(b)(1), the Poulos defendants contend that            such  a declaration,  standing  alone, would  be  "completely            inappropriate" because  it would have no  future application.            We are not persuaded by this argument.  The Poulos defendants            are the  attorneys of  record for the  CAR defendants  in the            Bowers  litigation.   Surely a  declaration  that the  Poulos            ______            defendants had disclosed and used the contents of intercepted            communications, relevant to the  Bowers lawsuit, in violation                                             ______            of  Title III and the Maine act would be useful to plaintiffs            in  any  motion they  might  file  to  disqualify the  Poulos            defendants in that case.            24.  The Poulos  defendants also  assert that the  injunction            issued  against them was improper because plaintiffs were not            in danger of suffering "actual or imminent, not `conjectural'            or `hypothetical'" harm from them.  See Whitmore v. Arkansas,                                                ___ ________    ________            495  U.S. 149,  155 (1990)  (elaborating  upon Article  III's            "case or  controversy"  requirement)  (quoting  City  of  Los                                                            _____________            Angeles v.  Lyons, 461 U.S. 95, 101-02  (1983)).  In light of            _______     _____            the  imminence  of  Bowers  and  the  fact  that  the  Poulos                                ______            defendants may still participate in  it, we find this line of            argument entirely unconvincing.                                         -30-                                          30                      The  Poulos   defendants  next  contend   that  the            district court clearly  erred when, in determining  that they            had violated the disclosure and use provisions of Title  III,            it  found that Richard Poulos knew or had reason to know that            the  interceptions at issue had been effectuated in violation            of Title III.   See 18 U.S.C.    2511(c) and (d),  supra note                            ___                                _____            3.25   More particularly,  they argue that  the judge clearly            erred  in implicitly deciding  that plaintiffs had  met their            burden of proving that Poulos knew or had reason to know that            the  statutory business extension  and consent exceptions did            not  apply to the interceptions.  After carefully considering            this argument, we are not convinced.                      It is  settled that  a person  has not  committed a            disclosure or use violation under Title III unless s/he "knew            or had  reason to  know that the  interception [by  which the                                            ____________________            25.  In the  course of so  ruling, the court also  found that            the Poulos  defendants had  violated the  disclosure and  use            provisions of the Maine act.  See 15 M.R.S.A.   710(3)(A) and                                          ___            (B), supra note  3.  The Poulos defendants  also contest this                 _____            finding, arguing (1) that the Maine act required the court to            find  that  they  had  disclosed  and  used  the  intercepted            information  "actually knowing"  that it  had been  illegally                                                                _________            obtained, and (2) that the  evidence could not support such a            finding.    This   argument  is  built  on   a  faulty  legal            foundation.    Section  710(3)(A)  and  (B)  do  not  require            knowledge  that  the information  was  illegally intercepted;            they  merely  require  knowledge "that  the  information  was            obtained through interception [as that term is defined by the            Maine act]."  See supra note  3.  Accordingly, because of its                          ___ _____            defective  premise,  and  because a  thorough  review  of the            record convinces  us that  the court did  not clearly  err in            implicitly finding that  the Poulos defendants knew  that the            information  they  disclosed  and  used  had  been  "obtained            through interception," we reject this argument.                                              -31-                                          31            information  which was disclosed  or used had  been obtained]            itself  was in  violation of  Title III."   United  States v.                                                        ______________            Wuliger,  981  F.2d 1497,  1501  (10th Cir.  1992);  see also            _______                                              ___ ____            Thompson  v. Dulaney, 970 F.2d 744, 749 (10th Cir. 1992).  In            ________     _______            other  words, "knowledge or reason to  know of the illegality            is an  element of the  offense."  Wuliger, 981  F.2d at 1501.                                              _______            Thus, in a civil action, a plaintiff must demonstrate "1) the            information  used  or  disclosed  came  from  an  intercepted            communication,  and  2)   sufficient  facts  concerning   the            circumstances of  the  interception such  that the  defendant            could, with presumed knowledge of the law, determine that the            interception   was  prohibited   in  light  of   Title  III."            Thompson, 970 F.2d  at 749; see also Cheek  v. United States,            ________                    ___ ____ _____     _____________            498 U.S.  192, 199-200 (1991)  (making clear that  the common            law  presumption that every  person knows the  law ordinarily            applies  when  courts  construe  criminal  statutes).    This            demonstration   includes  a   showing   that  any   statutory            exceptions asserted by  a defendant do  not, in fact,  apply.            See Thompson, 970 F.2d at 749.            ___ ________                      Here,  we perceive no  clear error in  the district            court's implicit findings that the statutory defenses did not            apply.  Insofar as the  Poulos defendants are challenging the            court's finding  regarding the business  extension exception,            we again observe  that the exception applies only when, inter                                                                    _____            alia, the aural acquisition at issue is  effectuated by means            ____                                         -32-                                          32            of  a  "telephone  or   telegraph  instrument,  equipment  or            facility,  or  a  component  thereof."     See  18  U.S.C.                                                          ___            2510(5)(a),  supra at  19.   As  noted earlier,  we think  it                         _____            evident  that  the  monitoring  equipment  used  by  the  CAR            defendants cannot be so characterized.  Moreover, there is no            suggestion  that Poulos  misapprehended  the  nature  of  the            equipment  the CAR  defendants  used  to monitor  plaintiffs'            calls.  Given these facts,  we discern no basis for upsetting            the court's  finding that Poulos  knew or had reason  to know            that  the business extension exception would not apply to the            intercepted calls.                      Similarly,  insofar  as the  Poulos  defendants are            contesting   the  court's   finding  regarding   the  consent            exception, we again note that consent, even if  implied, must            be "`consent in fact.'"   See Griggs-Ryan, 904 F.2d at 116-17                                      ___ ___________            (quoting Amen, 831 F.2d at  378).  As observed earlier, there                     ____            is  record evidence  tending to  indicate  that Dyer26  never            was informed  (1) of the  manner in which the  monitoring was            being conducted; and  (2) that he himself would  be subjected            to such monitoring.  Moreover,  there is record evidence from            which  a  rational  factfinder  could  have  found,  under  a            preponderance of the  evidence standard, that Poulos  was not                                            ____________________            26.  See supra note 17.                 ___ _____                                         -33-                                          33            laboring  under  the   assumption  that  Dyer  had   been  so            informed.27  Thus,  we can  discern  no  clear error  in  the            district court's finding  that Poulos knew  or had reason  to            know  that  the consent  exception  would  not apply  to  the            intercepted calls.                        Accordingly,  we  reject   the  Poulos  defendants'            challenge to  the  court's finding  that Poulos  knew or  had            reason to know that the interceptions violated Title III.                 5.  The Poulos Defendants' Good Faith Defense                 5.  The Poulos Defendants' Good Faith Defense                 _____________________________________________                      The Poulos defendants' next argument, that the good            faith  defense  provided   for  in  18  U.S.C.      2520(d)28            exonerates  them, is  a variation  on  this same  theme.   In            essence, the  Poulos defendants  claim that  Poulos, in  good            faith,  believed  that  the business  extension  and  consent            exceptions applied and were  "statutory authorization[s]" for            the wiretapping that occurred.  Thus, they  assert, they have            a  complete defense against plaintiffs' civil claims.  Again,            we do not agree.                                            ____________________            27.  For   example,  in  response  to  a  question  at  trial            regarding a  journal entry  made by  Dyer, Poulos  testified:            "You people didn't know about  and Dyer didn't know about the                                           ___ ____ ______ ____ _____ ___            wiretaps on August 25 or so and when he's talking about sue -            ________            - [sic]."   Also, when  Poulos disclosed the contents  of the            tapes to  counsel for CAR's  Chapter 11 trustee,  he informed            them that the tapes might have been criminally obtained.             28.  In relevant part,  18 U.S.C.   2520(d) states:   "A good            faith reliance  on . . . a statutory authorization . . . is a            complete defense against any civil or criminal action brought            under this chapter or any other law."                                         -34-                                          34                      As we  have stated, the district  court sustainably            found   that  Poulos  disclosed  and  used  the  contents  of            intercepted communications despite, at the very least, having            had reason to  know that the interception  was effectuated in            violation  of  Title  III.    Therefore,  even  if we  assume            arguendo that the term "statutory authorization" in   2520(d)            ________            encompasses the business extension  and consent exceptions (a            matter that  we do not  now decide),  it is evident  that any            belief on Poulos's part that these exceptions did apply could            have been  premised only  upon mistakes of  law.  And,  as we            have held,  nothing in    2520(d) supports a  conclusion that            the good faith  defense applies where a  defendant mistakenly                                                               __________            believes  that there exists a statutory authorization for the            wiretapping.    See  Campiti, 611  F.2d  at  394-95 (mistaken                            ___  _______            belief that statutory  exceptions apply does not give rise to            a good  faith defense);29 see  also Heggy v. Heggy,  944 F.2d                                      ___  ____ _____    _____            1537,  1542 (10th  Cir.  1991) (   2520(d)  does not  embrace            mistake  of  law),  cert. denied,  112  S.  Ct. 1514  (1992).                                _____ ______                                            ____________________            29.  The Poulos defendants point out that the term "statutory            authorization"  was  added  to    2520(d)  after  Campiti was                                                              _______            handed  down and assert,  without any elaboration,  that this            means  that   2520(d)  "may in fact  now exempt a  mistake of            law."  Given the dearth of contexts where subjective mistakes            of law allow  a defendant to avoid liability,  see Cheek, 498                                                           ___ _____            U.S. at 199-200, we find this  perfunctorily made argument to            be highly  suspect.   At  any rate,  we deem  it waived,  see                                                                      ___            United  States v.  Innamorati, 996  F.2d  456, 468  (1st Cir.            ______________     __________            1993) (issues adverted to in a perfunctory manner and without            developed  argumentation are deemed  waived on appeal), cert.                                                                    _____            denied, 62 U.S.L.W. 3320 (Nov. 1, 1993).            ______                                         -35-                                          35            Accordingly, we  reject as  meritless the  Poulos defendants'            argument that they are protected by the good faith defense of              2520(d).30                 6.  Entitlement to Jury Trial                 6.  Entitlement to Jury Trial                 _____________________________                      Finally,  in one  sentence,  the Poulos  defendants            assert:                        Due to the professional implications, the                      exposure to  substantial attorneys  [sic]                      fees, the [district]  court's decision to                      determine  whether there  was  a use  and                      disclosure  violation  under  both [Title                      III] and  the Maine Act, and the criminal                      nature  of  the  statute  involved,  [the                      Poulos  defendants]   should  have   been                      accorded a  jury trial on  the issues  of                      whether  they used  the tapes  knowing or                      with reason to know of the illegality and                      the good-faith defense.              They do not,  however, explain how the presence  in this case            of "professional  implications," an attorneys'  fees request,            use and disclosure  issues, and the fact that  Title III also            contains   criminal   provisions  renders   this   action  an            essentially legal  one.   Nor do they  cite to  any authority            from  which we can derive such an  inference.  As such, their            argument  is perfunctory  and we  will not  address it.   See                                                                      ___            Innamorati, 996 F.2d at 468.31            __________                                            ____________________            30.  Because    2520(d) does not shield the Poulos defendants            from plaintiffs'  Title III  claims, it  also obviously  does            not, despite their argument to the contrary, shield them from            plaintiffs' claims under the Maine act.            31.  The Poulos defendants do, without elaboration, advert to            authority  which enunciates the  settled rule that  an action            for declaratory relief  which is essentially legal  in nature                                         -36-                                          36            B.  Plaintiffs' Arguments            B.  Plaintiffs' Arguments            _________________________                 1.  Scope of the Injunction                 1.  Scope of the Injunction                 ___________________________                      Plaintiffs'  primary  argument on  appeal  is their            complaint  concerning the reach  of the injunction  issued by            the district court.  The  argument has three components:  (1)            that the court abused its discretion in permitting defendants            to  disclose and/or use the intercepted recordings in Bowers;                                                                  ______            (2) that the  court also abused its discretion  in failing to            enjoin   the  Bowers  litigation;  and  (3)  that  the  court                          ______            erroneously thought itself restricted to the  relief provided            for  in 18  U.S.C.    251532 when  it issued  the injunction.            We address each branch of plaintiffs' argument in turn.                      a.   Disclosure  and/or Use  of  the Recordings  in                      a.   Disclosure  and/or Use  of  the Recordings  in                      ___________________________________________________            Bowers            Bowers            ______                      The  first aspect  of  plaintiffs' argument  is not            difficult  to  comprehend.   They  contend  that  the court's                                            ____________________            gives rise to the right to  a jury trial.  See, e.g.,  Simler                                                       ___  ____   ______            v. Conner, 372 U.S. 221, 223 (1963); Beacon Theatres, Inc. v.               ______                            _____________________            Westover, 359  U.S. 500, 504  (1959).  They do  not, however,            ________            make any  attempt to  demonstrate the  applicability of  this            authority to  the facts of  this case.  Accordingly,  we deem                      __  ___ _____ __  ____ ____            their   efforts  insufficient  to  preserve  this  issue  for            appellate review.  See Innamorati, 996 F.2d at 468.                                 ___ __________            32.  In relevant part, 18 U.S.C.   2515 provides:                   Whenever any wire or oral communication has  been                 intercepted,  no  part  of  the  contents  of  such                 communication and no evidence derived therefrom may                 be received in  evidence in any trial,  hearing, or                 other proceeding  in or before  any court . .  . if                 disclosure  of   that  information   would  be   in                 violation of this chapter.                                         -37-                                          37            injunction,  insofar as  it  permits  defendants to  disclose            and/or  use the  contents  of  the  tapes  for  admissibility            determinations in Bowers,  must be reversed.   In plaintiffs'                              ______            view, Title III33  simply does not allow  for any disclosures            and/or  use of illegally intercepted material in civil cases.            After careful consideration, we disagree with this position.                      In making their argument,  plaintiffs rely upon the            fact  that  Title  III,  without  exception,  makes  criminal            "disclosures"   and/or   "uses"  of   illegally   intercepted            material.   In  our view,  however,  there are  at least  two            reasons why the lack of  any such explicit exception does not            dictate the conclusion reached by plaintiffs.                      First, we think it important to note:                      A statute is passed as a whole and not in                      parts or sections and is animated by  one                      general      purpose      and     intent.                      Consequently, each part or section should                      be  construed  in connection  with  every                      other  part or section so as to produce a                      harmonious whole.            2A  Norman J.  Singer,  Sutherland Statutory  Construction,                                      __________________________________            46.05, at 103 (5th ed. 1992).  Here, if we were  to interpret            the criminal provisions of Title  III in the manner suggested            by plaintiffs,  we would render the  statute unenforceable.34                                            ____________________            33.  Again here, the parties' discussion of the issue centers            around  Title  III.   Therefore, we  confine our  analysis to            federal law.            34.  After all, a court (or  jury) would almost never be able            to  determine  whether  an  interception  violated Title  III            without  having the  interception  "disclosed"  in court  and                                         -38-                                          38            Thus, we must reject  plaintiffs' interpretation as violative            of a fundamental tenet of statutory construction.                      Moreover, we  think  that Congress,  in enacting               2515,  see  supra note  32,  made  clear its  endorsement  of                   ___  _____            disclosures and/or uses of illegally intercepted material for            the adjudicatory purposes contemplated by the district court.            As noted,   2515 bans  the introduction into evidence of both            illegally  intercepted  material  and  any  evidence  derived            therefrom.    Implicit  in  this  ban, we  believe,  are  two            assumptions:    (1)  that the  intercepted  material  will be            presented to a  court or jury for an  initial adjudication of            whether it was acquired illegally;  and (2) that a court will            thereafter determine  whether other evidence was derived from            the  intercepted evidence.   Simply put, we are  at a loss to            see how these  functions could be performed without the types            of adjudicatory  "disclosures" and/or "uses"  that plaintiffs            view as banned by Title III.                      Accordingly, we reject the argument that the  court            erred in  permitting future  disclosures and/or  uses of  the            recordings and transcriptions  here at issue for  the limited            purpose  of  aiding   it  in  the  making   of  admissibility            determinations in Bowers.                              ______                      Despite  the  fact  that  the  court's   injunction            explicitly  made reference only to disclosures and/or uses in                                            ____________________            "using" this interception to inform its determination.                                         -39-                                          39            the context of admissibility determinations, the parties also            disagree over  whether the  tapes at issue  can be  used "for            purposes of impeachment" in Bowers.  Because we believe  that                                        ______            this is an important issue certain to arise during the course            of that litigation, we address it at this time.                      We start with  the obvious.   As we have  observed,            Title III  makes criminal  the intentional  disclosure and/or            use    of   information    obtained   through    unauthorized            interceptions  of  wire, oral,  or  electronic communications            (when the discloser/user knows or has reason to know that the            interception was unauthorized).  See  18 U.S.C.   2511(c) and                                             ___            (d), supra  note 3;  see also Gelbard  v. United  States, 408                 _____           ___ ____ _______     ______________            U.S.  41, 46 (1972).  It also  generally reserves as a remedy            to anyone subjected  to an unlawful interception "such  . . .            equitable or declaratory  relief as may be appropriate."  See                                                                      ___            18 U.S.C.    2520(b), supra  note 5.   We think  it apparent,                                  _____            therefore, that,  in  order to  provide aggrieved  plaintiffs            with   "appropriate"   relief,   courts   ordinarily   should            completely   enjoin  persons   in  possession   of  illegally            intercepted  information from  disclosing  and/or using  that            information.                      With   regard  to   how,  if   at  all,   illegally            intercepted communications may  be disclosed  and/or used  as                                                                       __            evidence  in court proceedings,  Title III is  more explicit.            ________            As noted above,   2515  states that "no part of the  contents                                         -40-                                          40            of such communication  and no evidence derived  therefrom may            be received in evidence . . . ."  See supra note 32.  Despite                                              ___ _____            the  unequivocal nature of  this statutory language, however,            several  courts,   including  this  one,   have  allowed  the            government  to disclose  and use  the  contents of  illegally            __________            intercepted  communications  in order  to  impeach testifying            criminal  defendants.  See  United States  v. Vest,  813 F.2d            ________               ___  _____________     ____            477, 484 (1st  Cir. 1987); United States v.  Winter, 663 F.2d                                       _____________     ______            1120,  1154  (1st Cir.  1981),  cert. denied,  460  U.S. 1011                                            _____ ______            (1983);  see also, e.g.,  United States v. Echavarria-Olarte,                     ___ ____  ____   _____________    _________________            904 F.2d 1391, 1397 (9th  Cir. 1990); United States v. Caron,                                                  _____________    _____            474 F.2d  506,  508 (5th  Cir.  1973).   In  so doing,  these            courts, either explicitly  or implicitly, have relied  upon a            passage  in  the  legislative  history  of  Title  III  which            indicates a congressional desire  to incorporate, inter alia,                                                              _____ ____            the  impeachment  exception  of  "search and  seizure  law"35            into the Title  III calculus.  See generally  Caron, 474 F.2d                                           ___ _________  _____            at 510  (interpreting the meaning  of S. Rep. No.  1097, 90th                                            ____________________            35.  In criminal law,  evidence obtained in violation  of the            Fourth Amendment  can  be used  for  the limited  purpose  of            attacking  a testifying defendant's  credibility.   Walder v.                                                                ______            United States, 347 U.S. 62, 65 (1954).  It can, however, only            _____________            be used  to impeach on  matters "plainly within the  scope of            the  defendant's  direct  examination."    United  States  v.                                                       ______________            Havens,  446 U.S.  620,  627 (1980).   Moreover,  the tainted            ______            evidence can only  be used to impeach the  criminal defendant            him/herself;  it cannot be  used to impeach  other witnesses,            even other  defense witnesses.   James v. Illinois,  493 U.S.                                             _____    ________            307, 313 (1990).                                         -41-                                          41            Cong., 2d Sess.  at 96, reprinted in 1968  U.S.C.C.A.N. 2184-                                    _________ __            85).36                      Every federal court that has passed on the question            has, however,  declined to extend  this impeachment exception            to  civil  actions  brought  under  Title  III.   See,  e.g.,                                                              ___   ____            Wuliger, 981 F.2d at 1506; Anthony v. United States, 667 F.2d            _______                    _______    _____________            870,  879  (10th  Cir.  1981), cert.  denied,  457  U.S. 1133                                           _____  ______            (1982).   In so doing, these  courts, have taken note  of (1)            the  "overriding  concern for  protection  of privacy  .  . .            [Title III] sets out," Wuliger, 981 F.2d at 1506, and (2) the                                   _______            fact that    2515,  by its terms,  allows for  no exceptions.            They,  therefore, have proceeded from the premise that "`what            is not permitted  [by the Act] is forbidden.'"   Id. (quoting                                                             ___            Fultz v. Gilliam, 942 F.2d 396, 401 (6th  Cir. 1991)).  Then,            _____    _______            these  courts  have   observed  that  the  allowance   of  an            impeachment  exception  derives from  the  references  in the            legislative  history  to  "search and  seizure  law"  and the            Supreme Court's  decision in Walder.   See S. Rep.  No. 1097,                                         ______    ___            90th Cong., 2d Sess. at 96, reprinted in 1968 U.S.C.C.A.N. at                                        _________ __            2184.  Thus,  because "[n]ormal search and  seizure laws have            arisen  in the  context  of  the  Fourth Amendment  which  is            directed   against  the   government,  not   against  private                                            ____________________            36.  The legislative  history's reference to  the impeachment            exception  is  made  indirectly  by  means  of  an  approving            citation   to  Walder,  the   case  wherein  the  impeachment                           ______            exception was created.  See supra note 35.                                    ___ _____                                         -42-                                          42            individuals,"  Anthony,  667  F.2d at  879,  and  because the                           _______            Fourth   Amendment  does  not  apply  in  civil  actions  not            involving  the government,  see id.,  these  courts have,  as                                        ___ ___            stated above, declined to recognize an impeachment  exception            to    2515 in civil  proceedings, see id.; see  also Wuliger,                                              ___ ___  ___  ____ _______            981 F.2d at 1506.                      We find  this line  of reasoning  persuasive,37 and            accordingly  limit the  impeachment exception  of    2515  to            criminal actions brought  pursuant to Title III.   Therefore,            it   follows  that  the   illegal  interceptions  (and  their            transcriptions) at issue in this litigation cannot,  pursuant            to the  criminal impeachment  exception,  be introduced  into            evidence for impeachment purposes in Bowers.                                                 ______                                            ____________________            37.  In an attempt  to counteract this authority,  the Poulos            defendants contend  (1) that  Walder and  its progeny do  not                                          ______            explicitly  state that  the impeachment  exception should  be            available only in criminal cases,  and (2) that the  concerns            underlying the exception (e.g., the  prevention of untruthful            testimony)  are equally  applicable  in  the  civil  context.            While this argument has some force, we think, in light of (1)            the unequivocal language  of   2515,  (2) the broad  remedial            purposes  of Title III, and (3)  the restrictions the Supreme            Court  has put on  the impeachment exception,  see supra note                                                           ___ _____            35,  that the  exception we  have read  into    2515 must  be            strictly construed.  Cf. Vest,  813 F.2d at 480-84 (declining                                 ___ ____            to read the legislative history at issue as empowering courts            to read further excep-tions into   2515).  As we have  noted,            the  exception derives from  a specific reference  to "search            and seizure law"  and a citation to Walder,  neither of which                                                ______            is  directly  applicable in  the  civil context.    Thus, any                ________            application of  the exception to  civil cases would  be based            upon  extrapolation.    In light  of  the  three above-stated            factors which incline us towards a strict construction of the            exception,   we  simply   do  not   believe   that  such   an            extrapolation would be appropriate in this instance.                                         -43-                                          43                      b.  Failure to Enjoin Bowers                      b.  Failure to Enjoin Bowers                      ____________________________                      The second  component of  plaintiffs' argument  has            two parts:   that, in failing to enjoin  Bowers, the district                                                     ______            court   (1)   erroneously   relied  upon   Fourth   Amendment            "independent  source"  jurisprudence,38 and  (2)  erroneously            overlooked  the fact that Title III "flatly" bans disclosures            and uses of illegally intercepted  material.39  In our  view,            plaintiffs  misconstrue the  approach taken  by the  district            court.                      With respect to plaintiffs' first claim,  the court            did  not hold  that  the evidence  derived  from the  illegal            interceptions would be  admissible in Bowers pursuant  to the                                                  ______            independent source  rule.40   Instead, the  court found  that                                            ____________________            38.  The  independent   source  rule  "allows   admission  of            evidence that has been discovered by means wholly independent            of any constitutional violation."   Nix v. Williams, 467 U.S.                                                ___    ________            431,  443 (1984); see  also United  States v.  Silvestri, 787                              ___  ____ ______________     _________            F.2d 736,  739 (1st Cir.  1986), cert. denied, 487  U.S. 1233                                             _____ ______            (1988).            39.  To  be more  specific, the  second  part of  plaintiffs'            argument  is that,  to the  extent  that the  court may  have            "balanced  the equities" in deciding not to enjoin Bowers, it                                                               ______            was in  error.  Cf.  Burlington R.R.  Co. v. Blair,  957 F.2d                            ___  ____________________    _____            599, 601-02 (8th  Cir.) (indicating that, in  considering the            propriety of  injunctive relief,  it is not  the role  of the            courts  to balance  the equities  between  the parties  where            Congress  has  flatly   banned  the  conduct  sought   to  be            enjoined), cert. denied, 113 S. Ct. 69 (1992).                       _____ ______            40.  We recognize  that the court  did make reference  to the            independent source rule  in denying plaintiffs' Fed.  R. Civ.            P.  59(e) motion  to  amend  the judgment.    We discuss  the            propriety  of this  reference  in the  next  section of  this            opinion.  See infra at 48-50.                      ___ _____                                         -44-                                          44            "the evidence  presented at trial demonstrated  the existence            of information upon which the allegations in Bowers v. Allied                                                         ______    ______            could be based independent of the subject tapes."  Poulos II,                           ___________ __ ___ _______ _____    _________            slip op. at  29-30 (emphasis supplied).  In  other words, the            court found  that evidence other  than that which was  on the                                       _____  ____            tapes (and  "in no way  attributable to the existence  of the            subject  tapes," see id.  at 30)  could support  the lawsuit.                             ___ ___            Thus,  the independent  source  rule, which  is  a means  for            admitting evidence springing from independent sources despite            the fact that  the evidence replicates tainted  evidence, was            not a basis for the district court's holding.                      With regard to plaintiffs' second claim, we believe            it sufficient to  state that the court's  injunction does not            contravene   the  purposes  of  Title  III.41    Contrary  to            plaintiffs' assertions, Title  III does not "flatly"  ban all                                                                      ___            disclosures and uses of illegally intercepted communications.            Instead,  as  we  have  explained,  it  generally  bans  such                                                    _________            disclosures and uses while, either explicitly or  implicitly,                                            ____________________            41.  We  are aware  that plaintiffs'  argument  ties in  with            their general concern, expressed throughout their brief, that            allowing Bowers  to proceed  will undermine  the purposes  of                     ______            Title  III  and  the  Maine  act.    If,  however,  there  is            independent evidence upon which the allegations of Bowers are                                                               ______            premised,  and if, as we shall explicitly  urge it to do, see                                                                      ___            infra at 48-50, the district court takes pains to ensure that            _____            the  contents of the illegally intercepted conversations, and            any  evidence derived therefrom, are not used or disclosed in            the course  of that litigation  (other than in the  course of            making admissibility determinations), we do not  believe that            plaintiffs' concern will come to fruition.                                         -45-                                          45            allowing  for   certain  exceptions  (i.e.,   an  impeachment            exception  in criminal  cases,  see supra  at  40-41, and  an                                            ___ _____            "adjudication"  exception, see supra at 37-39, in all cases).                                       ___ _____            In our view,  the court's injunction is  consistent with this            statutory nuance.                        Accordingly, we  reject plaintiffs'  assertion that            the  court's failure to  enjoin Bowers was  infected by legal                                            ______            error.                      c.  Erroneous Exclusive Reliance on Section 2515                      c.  Erroneous Exclusive Reliance on Section 2515                      ________________________________________________                      The final facet  of plaintiffs' argument,  that the            court  erroneously thought  itself restricted  to  the relief            provided for in  18 U.S.C.   2515, see supra note 32, when it                                               ___ _____            declined  to   enjoin  Bowers,  does  not   require  extended                                   ______            discussion.  While, as we  shall discuss below, the court did            reveal a somewhat cramped view  of the scope of its equitable            powers in denying plaintiffs' Fed. R. Civ. P. 59(e) motion to            amend  judgment, see  infra  at  48-49,  the  record  clearly                             ___  _____            reveals  that no such restrictive view impaired its treatment            of plaintiffs'  initial request  for injunctive  relief.   In            fact,  contrary   to  plaintiffs'  contention,   the  court's            injunction order explicitly  states that the decision  not to            enjoin Bowers  was based  upon the evidence,  and not  upon a                   ______            perceived lack of legal power to order  the remedy requested.                                         -46-                                          46            See Poulos II,  slip op. at 30 ("The  Court is satisfied that            ___ _________            the injunctive relief sought is beyond the scope warranted by                                                                       __            the  evidence  presented  at  trial.")  (emphasis  supplied).            ___  ________  _________  __  _____            Accordingly, we find this claim  of legal error to be without            merit.                 2.  Motion to Amend Judgment                 2.  Motion to Amend Judgment                 ____________________________                      Plaintiffs next argue that the district court erred            in  denying their  Fed.  R.  Civ. P.  59(e)  motion to  amend            judgment.  In this motion, plaintiffs  averred that they were            seeking,  inter  alia,  to  "clarify"  the  court's  previous                      _____  ____            injunction order.  In reality, however, as the district court            noted,  plaintiffs'  motion actually  sought  (1) "additional            relief" not requested  at trial or in  the amended complaint,            and (2)  evidentiary rulings in  Bowers.   Because the  court                                             ______            acted  well within its discretion  in denying this relief, we            cannot agree with plaintiffs that the court  erred in denying            their motion.   Because, however, we do agree with plaintiffs            that the court's  denial order evinced a  misunderstanding of            (1)  the scope  of its  powers, and  (2) the  requirements of            Title III, we do pause, albeit briefly, to add a few caveats.                                                                 _______                      The decision to  grant or deny a Rule  59 motion is            committed to  the wide discretion  of the district  court and            must be respected absent abuse.  E.g., Fernandez  v. Leonard,                                             ____  _________     _______            963  F.2d  459,  468  (1st  Cir.  1992).    Of  course,  this            discretion attaches to a court's decision on whether to allow                                         -47-                                          47            a party to argue new material or a new theory under  Rule 59.            See Appeal of  Sun Pipe Line Co.,  831 F.2d 22, 25  (1st Cir.            ___ ____________________________            1987), cert.  denied, 486 U.S.  1055 (1988); but see  FDIC v.                   _____  ______                         ___ ___  ____            Meyer, 781 F.2d  1260, 1268 (7th Cir. 1986)  (motion to alter            _____            or amend  judgment "cannot be  used to raise  arguments which                                ______            could,  and  should,  have  been  made  before  the  judgment            issued") (emphasis supplied).                      Here, plaintiffs' Rule 59  motion sought relief not            requested  in  their   amended  complaint.     For   example,            plaintiffs asked  the court  to order, inter  alia, (1)  that                                                   _____  ____            defendants "turn over  for seal or destruction  every illegal            tape and transcript,  and any record  of any sort  containing            any contents of  illegal interceptions"; (2) that  the Poulos            defendants  and Daniel Lilley and his  law firm42 be enjoined            from   further  participation   in  Bowers;   (3)  that   the                                                ______            aforementioned  attorneys  be prohibited  from  communicating            with whatever  attorney/s might  replace them  as counsel  in            Bowers; (4)  that the  disclosure and/or  use of  depositions            ______            taken by  Poulos be  enjoined; and (5)  that defendants  with            exposure  to the  intercepted recordings  be  prohibited from            testifying  in   Bowers.     In  their   complaint,  however,                             ______            plaintiffs requested no such relief  as an alternative to the            enjoining  of  Bowers.   Accordingly,  insofar  as  the court                           ______                                            ____________________            42.  Mr. Lilley has represented the CAR defendants throughout            this litigation.                                         -48-                                          48            denied   plaintiffs'  motion   because   the  motion   sought            "additional  relief",  we  cannot  say  that  it  abused  its            discretion.43                      Nevertheless, we are  concerned about certain dicta            contained in  the district court's  order.  In the  course of            denying plaintiffs' Rule  59 motion, the court  indicated (1)            that  18 U.S.C.     2515,  see supra  note  32, and  (2)  the                                       ___ _____            independent source rule,  see supra note 38,  would constrain                                      ___ _____            its rulings in Bowers.   We think that the court  erred in so                           ______            indicating.  First, we wish to emphasize that, as always, the            court  has   broad  discretion,  through   discovery  orders,            evidentiary rulings, and  the like, in  deciding how it  will            manage that  trial.  See,  e.g., Serrano-Perez v.  FMC Corp.,                                 ___   ____  _____________     _________            985 F.2d 625,  628 (1st Cir. 1993) (district  court has broad            discretion in managing litigation).  However, in Bowers, this                                                             ______            discretion  must  be  tempered  by  the  court's  obligation,            flowing from the  protections set forth in Title  III and the            Maine act, to ensure that the illegally intercepted material,            and  any evidence derived therefrom, not be disclosed or used            in  that proceeding  (other  than for  the  purposes we  have            already  approved,  see  supra  section  III.B.1.a.  of  this                                ___  _____            opinion).    In  our view,  this  discretion  and concomitant            obligation will require the court to consider the possibility                                            ____________________            43.  Similarly,  we  cannot  say that  the  court  abused its            discretion  in deferring the making of evidentiary rulings in            Bowers.            ______                                         -49-                                          49            of rulings that go beyond   2515, which is directed solely at            evidence.  For example, in  order to guard against the future            use of the intercepted material, as the term use is generally            understood, we believe that the court should consider matters            such  as (1)  the  disqualification of  counsel, and  (2) the            prohibition  of  any communication  between  any disqualified            counsel and replacement counsel.                      This leads  to our  second point.    In making  its            rulings, the court  should be aware that, as  a general rule,            Fourth  Amendment doctrines like  the independent source rule            do not apply in private  civil actions implicating Title III.            As the Supreme Court has stated:                           The purpose of  the Fourth Amendment                      is to  prevent unreasonable  governmental                      intrusions  into  the  privacy  of  one's                      person, house,  papers, or effects.   The                      wrong   condemned   is   the  unjustified                      governmental invasion  of these  areas of                      an individual's private life.  That wrong                      .  .  .  is  fully  accomplished  by  the                      original search without probable cause.            United States v. Calandra, 414 U.S. 338, 354 (1974) (allowing            _____________    ________            a grand jury witness to  be asked questions based on evidence            obtained  in violation  of  Fourth  Amendment,  because  such            questions "work no new Fourth Amendment wrong").                        Title III, on the other hand, generally proscribes,            inter   alia,   the  disclosure   and/or  use   of  illegally            _____   ____            intercepted material.  In other words, it prohibits more than                                                                ____            just the initial wrongful invasion.  See Gelbard, 408 U.S. at                                                 ___ _______                                         -50-                                          50            51-52.  Thus,  under Title III, the disclosure  and/or use of            information obtained through a wrongful invasion amounts to a            separate injury  prohibited by  statute, and  makes a  person            subjected to  such a  disclosure and/or  use "a  victim, once            again, of  a federal crime."   Id.  at 52 (ruling  that grand                                           ___            jury witness  may not  be asked  questions based on  evidence                              ___            obtained by illegal wiretapping).                      In  sum, the court  did not abuse  its considerable            discretion in denying  plaintiffs' Rule 59 motion.   However,            in making discovery, evidentiary, or other rulings in Bowers,                                                                  ______            the court should  not (1) assume  that it  is limited to  the            relief set forth  in   2515, or (2)  assume the applicability            of judicially developed Fourth Amendment jurisprudence.                 3.  Statutory Damages                 3.  Statutory Damages                 _____________________                      Plaintiffs' third argument is  that the court erred            in determining that the statutory damages provided  for in 18            U.S.C.    2520(c), see supra  note 5, are legal,  rather than                               ___ _____            equitable, in nature.  Defendants respond that plaintiffs did                                               not  preserve this argument  for appellate review.   We agree            with defendants that this issue is not properly preserved.                      As noted  earlier, see  supra note  21, plaintiffs'                                         ___  _____            original complaint sought  declaratory and injunctive relief;            actual, statutory, and punitive damages; and attorneys' fees.            As the trial date approached, however,  plaintiffs apparently            determined  that they did  not wish to  have a  jury hear any                                         -51-                                          51            portion  of this  case.    Accordingly,  they  amended  their            complaint  so as  to  drop all  but  their statutory  damages            claims.  Then, in their final pretrial memorandum, plaintiffs            stated:  "If  the Court should decide  that statutory damages            are  a legal  remedy so  as to  support the  Defendants' jury            demand, then the  Allied Plaintiffs will dismiss  their claim            for statutory damages."   Subsequently, the court  ruled that            statutory  damages are  legal in  nature.   Thus,  plaintiffs            further amended their  complaint so as  to omit their  prayer            for statutory damages.                      Plaintiffs now  seek to  resurrect their  statutory            damages claim.  This they cannot do.  If plaintiffs wished to            preserve  this issue, they  should have presented  their case            for statutory damages to a jury.  Cf., e.g., Foley v. City of                                              ___  ____  _____    _______            Lowell, 948 F.2d 10, 22 (1st Cir. 1991) ("`It is black letter            ______            law that it is a party's  first obligation to seek any relief            that might fairly have been thought available in the district            court  before seeking it  on appeal.'") (quoting  Beaulieu v.                                                              ________            IRS, 865  F.2d 1351,  1352 (1st  Cir. 1989)).   If  they were            ___            displeased  with  the  results of  the  jury's deliberations,            plaintiffs next could have asked  the court to set the jury's            determination  aside.    If they  still  were  not satisfied,            plaintiffs then could  have appealed the court's  decision to            commit  the statutory  damages question  to the  jury  in the            first instance.                                         -52-                                          52                      Plaintiffs'  approach to  this issue,  if endorsed,            would undermine the efficient administration of justice.  Had            plaintiffs presented their  claim for statutory damages  to a            jury, and  had they  received the  award they  sought (either            from the  jury itself  or from the  court after  a successful            Rule 50 motion for judgment as a matter of law), the need for            an appeal on this point  would have been obviated.  Moreover,            even if  plaintiffs had  not received  the  relief they  were            seeking, the issues  underlying the propriety of  a statutory            damage award would have been fully litigated at the same time            as  the other  issues animating  this litigation.   Thus,  we            would have been in a  position, on a developed record, either            to resolve the question ourselves or to remand for what would            undoubtedly  be  a   less  involved  process  than   the  one            plaintiffs now seek.                      In sum, when plaintiffs amended  their complaint so            as   to  drop  their   claim  for  statutory   damages,  they            irrevocably waived their right thereto.  Accordingly, we need            not reach  the question  of whether the  court erred  when it            determined,  prior  to  plaintiffs'  final  amendment,   that            statutory damages under   2520(c) are legal in nature.                 4.  Disclosure and Use Violations by the CAR Defendants                 4.  Disclosure and Use Violations by the CAR Defendants                 _______________________________________________________                      Finally, in one-half of one page of their fifty-one            page  brief,  plaintiffs  contend  that  the  district  court            committed legal error in ruling  that the CAR defendants  did                                         -53-                                          53            not  violate the disclosure  and use provisions  of Title III            and the Maine  act.  The CAR defendants,  utilizing just over                                             three-quarters of one  page of their forty-eight  page brief,            counter  that any  disclosures and  uses on  their part  took            place   within   the   confines   of   the    attorney-client            relationship, and that such fact absolves them from liability            under the  relevant statutory provisions.   Plaintiffs, again            using  less than  one-half of  one page of  their forty-eight            page   reply   brief,    characterize   this   argument    as            "incomprehensible"  and restate their  position that  the CAR            defendants committed disclosure and use violations.   Neither            side,  at  any  point,  makes  reference  to  any  case  law,            statutory authority, or legislative history.                      The issue here adverted to is an interesting one on            which no federal appeals court has yet spoken:  namely, do 18            U.S.C.   2511(c) and (d) (and, correspondingly, 15 M.R.S.A.              710(3)(A) and  (B)), see supra  note 3, which by  their terms                                 ___ _____            prohibit the "disclos[ure] . . . to any other person" and the            "use" of illegally  intercepted material, make it a  crime to            disclose and use such material  during the course of attorney            consultations?44   Certainly, reasonable  arguments might  be                                            ____________________            44.  At  least one  federal  judge, recognizing  the inherent            tension between the  wording of the statute and  the need for            effective  trial preparation, has held that the disclosure of            the  contents of intercepted  recordings to counsel,  for the                                                                  ___ ___            purpose  of preparing a defense, is not a crime.  See McQuade            _______  __ _________ _ _______                   ___ _______            v. Michael  Gassner Mech. &  Elec. Contractors, Inc.,  587 F.               _________________________________________________            Supp. 1183, 1188-89 (D. Conn. 1984) (Cabranes,  J.); see also                                                                 ___ ____                                         -54-                                          54            made  on both  sides of  this  question of  first impression.            And, in accordance with our usual practice, we do not wish to            decide  it without  the benefit of  such argumentation  and a            developed record.   Accordingly,  we deem  the issue  to have            been waived  in this instance.   See Innamorati, 996  F.2d at                                             ___ __________            468.                                         IV.                                         IV.                                         ___                                      CONCLUSION                                      CONCLUSION                                      __________                      For  the  reasons  herein  stated,  we  affirm  the            district court in all respects.  Affirmed.  No costs.                                             Affirmed.  No costs.                                             ________   ________                                            ____________________            Sound Unlimited, Inc. v. Video Shack Inc., 661 F. Supp. 1482,            _____________________    ________________            1488 (N.D. Ill.  1987) (alluding to but not  deciding issue);            cf.  supra at  37-39 (disclosures  and uses  for  purposes of            ___  _____            adjudication not banned by Title III).                                         -55-                                          55
