Noel v. Hall

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC NOEL, 
Plaintiff-Appellant,
No. 06-35730
v.
D.C. No.
BRIAN C. HALL; SANDRA A. HALL,  CV-99-00649-
aka Sandra Johnson; GABRIELLE S. ALH/DCA
LENNARTZ; HERB WEISSER;
OPINION
MICHELLE A. MERCHANT,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
July 9, 2008—Portland, Oregon
Filed June 12, 2009
Before: Harry Pregerson and Stephen Reinhardt,
Circuit Judges, and Lyle E. Strom,* District Judge.
Opinion by Judge Reinhardt
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
7043
7046 NOEL v. HALL
COUNSEL
Richard L. Grant, Esq., Portland, Oregon, for the appellant.
Jonathan M. Radmacher, Esq.; Trung D. Tu, Esq., McEwen
Gisvold LLP, Portland, Oregon, for the appellees.
OPINION
REINHARDT, Circuit Judge:
This is a second trip to our court for Eric Noel in his more
than a decade-long feud with Sandra Hall over a $750 horse,
a $5000 mobile home, and tapes of recorded telephone calls.
It all started with the horse. In this unhappy chapter of the
continuing saga, Noel appeals from summary judgment
entered by the District Court of Oregon dismissing his case
against Herb Weisser, Hall’s attorney during the early part of
the dispute. Noel challenges the district court’s dismissal of
his federal and state law claims against Weisser, as well as the
denial of leave to file a fifth amended complaint that alleges
RICO violations. Here, we affirm the district court’s entry of
summary judgment on the federal wiretap claims. In a sepa-
rate memorandum disposition, we affirm the district court on
all other claims, including the denial of the motion to file a
fifth amended complaint.1
1
Although we denied Weisser’s Motion for Summary Dismissal of
Appeal and Imposition of Sanctions Against Appellant, we note that
Noel’s briefs and excerpts of record were sorely deficient. For example,
Noel incorporated by reference the arguments in the numerous briefs that
he submitted to the district court, which is “an entirely improper way of
presenting argument to this court.” Sandgathe v. Maass, 314 F.3d 371, 380
n.8 (9th Cir. 2002); Ninth Circuit Rule 28-1(b). He also did not set forth
the relevant facts in his brief. See Fed. R. App. P. 28(a)(7). There were
other problems that complicated our review of this fact-intensive case.
Counsel for Noel would be well-advised to comply with the court’s rules
in the future if he expects to continue to escape sanctions. The next panel
may not be as empathetic.
NOEL v. HALL 7047
I. BACKGROUND2
Before all the lawsuits and enmity began, Sandra Hall lived
and worked at the Vancouver Riding Academy, a business
that Eric Noel owned and operated. In 1995 and 1996, Noel
and Hall entered into two inauspicious agreements. First, in
May 1995, they agreed to jointly purchase a horse named
“Red Hot Prospect” for $750, train it and ready it for resale,
and share equally in any profits earned. Second, around
August 1996, Hall sold Noel her mobile home which was
parked on the premises of the Academy. The sale price of
$5000 was to be paid in full when Red was sold.
By August 1996, Hall and Noel’s relationship had turned
sour, and it continued to deteriorate as the two fought over the
management of the horse and the ownership of the home.
Then in May 1997, Hall and her husband, Brian Hall, went to
the mobile home, where Noel now lived, and found a number
of cassette tapes on a table and in a stereo that belonged to
Hall. She played one of them and realized that the tapes con-
tained recordings of her telephone conversations while she
lived at the Academy. (Id.) She took the tapes and called her
friend, Gabrielle Lennartz, whose conversation had also been
recorded, to seek her advice. It is not clear from the record
how or by what means Noel made these recordings, although
both parties appear to assume that he intercepted Hall’s calls
and recorded her conversations on the tapes.
Immediately after hearing from Hall, Lennartz contacted
Herb Weisser, an attorney. Weisser told Lennartz that the
women may have federal and state wiretap claims against
Noel, but that either he or she would have to listen to the tapes
in their entirety and summarize them before he could evaluate
the legal claim. Weisser advised Lennartz to turn over the
2
We limit the background to the facts necessary to resolve the federal
wiretap claims. A more complete description of the facts and the proce-
dural posture can be found in Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003).
7048 NOEL v. HALL
original tapes to the police as evidence of a crime but to make
a copy for him for purposes of pursuing a civil claim against
Noel. He also suggested that she contact the other parties
whose conversations had been recorded to inform them that
the tapes had been made. Lennartz took his advice and lis-
tened to the tapes as she copied them, prepared a summary of
the contents, delivered the tapes and the summaries to
Weisser and to the Clark County Sheriff’s Department, and
called the recorded parties to inform them of the existence of
the tapes. Noel also alleges that Lennartz disclosed the con-
tents of the conversation to his clients and prospective
employer in order to discredit him.
A number of lawsuits ensued thereafter. Of some relevance
here, in the lawsuit over Red the Horse filed by Noel in the
Skamania County Superior Court, Hall, represented by
Weisser, filed counterclaims alleging the violation of wiretap-
ping laws. Hall later voluntarily dismissed the counterclaims,
hired William R. Brendgard as her lawyer, and filed a sepa-
rate suit against Noel in state court, alleging violations of fed-
eral wiretap law under 18 U.S.C. § 2511 and state wiretapping
law under section 9.73.030 of the Revised Code of Washing-
ton. She won a judgment of $2500 plus costs and attorney’s
fees in August 1999.
The dispute finally reached the federal courts on May 6,
1999, when Noel filed suit in the District Court of Oregon
against Hall, her husband Brian, Weisser, Lennartz, and
Michelle Merchant.3 In the third amended complaint, the one
being pursued in this lawsuit, he alleged the violation of fed-
eral wiretap laws, the violation of Oregon wiretap laws, loss
of use of the mobile home, damage to the mobile home, dam-
age to personal property, intentional interference with con-
tractual relations, breach of fiduciary duty, blackmail,
3
Noel alleges that Michelle Merchant, who appears to be a friend of the
Halls and Lennartz, also took part in the various acts underlying his
claims.
NOEL v. HALL 7049
extortion, and injurious falsehood. In fact, there were few
torts he failed to allege other than horse thievery. The case
was appealed previously when the district court dismissed all
claims against the Halls based on the doctrines of Rooker-
Feldman and claim preclusion. On September 2, 2003,
intrigued by the technical jurisdictional issues, we wrote a
lengthy and learned disquisition on the Rooker-Feldman doc-
trine and reversed on that ground as well as on the ground of
claim preclusion as to which our disquisition was equally
learned although not as lengthy. We remanded the case to the
district court affirming the dismissal of the wiretapping-
related claims against Hall but reversing the dismissal of all
other claims. Noel v. Hall, 341 F.3d 1148 (9th Cir. 2003).
Thus the saga of Red the Horse survived once more and once
more the federal courts became enmeshed in the petty feud
between Noel and the others.
On remand, Noel sought leave to file a fifth amended com-
plaint. Seeing light at the end of the tunnel, or at least a glim-
mer of light, the magistrate judge denied the motion, and the
district judge overruled Noel’s objections to the magistrate
judge’s order. The magistrate judge then recommended grant-
ing Weisser’s motion for summary judgment, and the district
judge adopted the recommendation and granted the motion.
The district court entered a Rule 54(b) judgment in favor of
Weisser on September 26, 2006. Noel again timely appealed.4
II. JURISDICTION
We have jurisdiction over Noel’s appeal of the federal
wiretap claim pursuant to 28 U.S.C. § 1291 if we determine
that the district court properly entered final judgment as to all
claims against Weisser.
4
Noel filed his notice of appeal prior to the entry of Rule 54(b) judg-
ment, but the subsequent entry of judgment cured the notice’s deficiency.
See Anderson v. Allstate Insurance Co., 630 F.2d 677, 680 (9th Cir. 1980).
7050 NOEL v. HALL
[1] When the district court dismisses claims against one of
a number of parties, it has discretion to “direct the entry of a
final judgment as to [that party] . . . only if the court expressly
determines that there is no just reason to delay.” Fed. R. Civ.
P. 54(b). Our function on appeal is to “scrutinize the district
court’s evaluation of such factors as the interrelationship of
the claims so as to prevent piecemeal appeals in cases which
should be reviewed only as single units.” Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980). If we are satis-
fied that such “juridical concerns” have been met, however,
we accord “substantial deference” to the district court’s
assessment of equitable factors such as prejudice and delay.
Id.; see also Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797-98
(9th Cir. 1991).
[2] In this case, the district court expressly determined that
there was no just reason for delay and directed that final judg-
ment be entered as to all claims against Weisser.5 This deter-
mination was proper. The summary judgment disposed of the
case between Noel and Weisser, freeing Weisser from further
unduly burdensome litigation. See Alcan Aluminum Corp. v.
Carlsberg Fin. Corp., 689 F.2d 815, 817 (9th Cir. 1982).
Although similar claims remain pending against other defen-
dants, the factual bases of many of the claims differ as to each
defendant. Moreover, we have held that claims certified for
appeal do not need to be separate and independent from the
remaining claims, so long as resolving the claims would
“streamline the ensuing litigation.” Texaco, 939 F.2d at 798.
It would do so here. As a result, Red the Horse may finally
be on the path to ending his journey through the federal
courts. In short, we conclude that we have jurisdiction over
this appeal.
5
Although the district court did not make “specific findings setting forth
the reason for [granting final judgment]”, we have held that lack of such
findings is not a jurisdictional defect as long as we can independently
determine the propriety of the order. Alcan Aluminum Corp. v. Carlsberg
Fin. Corp., 689 F.2d 815, 816-17 (9th Cir. 1982) (internal citations and
quotation marks omitted).
NOEL v. HALL 7051
III. FEDERAL WIRETAP CLAIMS
The civil damages provision of the federal wiretap act, Title
III of the Omnibus Crime Control and Safe Streets Act of
1968, as amended by the Electronic Communications Privacy
Act of 1986, 18 U.S.C. §§ 2510 et seq. (“Wiretap Act”), pro-
vides a private right of action to “any person whose wire . . .
communication is intercepted, disclosed, or intentionally used
in violation of this chapter.” 18 U.S.C. § 2520. A Washington
state court found Noel liable under this provision for inter-
cepting Hall’s telephone conversations and recording them on
audiotapes. Noel contended before the district court that
Weisser violated the same provision by directing Lennartz to
listen to and copy the tapes, thus “intercept[ing]” his “wire
communication,” and intentionally “us[ing] and “disclos[ing]”
the tapes’ contents in the course of filing a lawsuit against
him and in making settlement offers.6 We review de novo the
district court’s grant of summary judgment. See Simo v.
Union of Needletrades, 322 F.3d 602, 609 (9th Cir. 2003),
cert. denied, 540 U.S. 873 (2003).
A. Statutory Standing
[3] Section 2520 provides a cause of action to “any person
whose . . . communication is intercepted, disclosed, or inten-
tionally used.” 18 U.S.C. § 2520 (emphasis added).7 The dis-
6
Noel also argues that the district judge was bound by his earlier deci-
sion denying Weisser’s motion to dismiss. We have held, however, that
such denials are “generally interlocutory” and “subject to reconsideration
by the court at any time.” Preaseau v. Prudential Ins. Co. of America, 591
F.2d 74, 79-80 (9th Cir. 1979) (internal quotation marks omitted) (holding
that district court is not bound by an earlier denial of motion for summary
judgment). The district court did not abuse its discretion here in departing
from its earlier decision, “particularly in light of the correctness of its legal
conclusion.” Id.7
This provision stands in contrast to 18 U.S.C. § 2518(10)(a), which
gives any “aggrieved person” the right to suppress evidence obtained in
violation of the wiretap law. The definition of “aggrieved person” is
broader than “any person whose . . . communication is intercepted.” Spe-
cifically, an “aggrieved person” includes “a party to any intercepted wire
. . . communication” and “a person against whom the interception was
directed.” 18 U.S.C. § 2510(11).
7052 NOEL v. HALL
trict court interpreted this provision to require plaintiffs to
have been party to the communication in order to have stand-
ing to bring a claim. The district court thus held that Noel
could bring his wiretapping claims only on the basis of
recordings of conversations to which he was a party.8
Noel challenges the district court’s ruling, arguing that he
had “possessory interest” over the communication and his
recordings because they were made in the course of his busi-
ness. He refers us to the Sixth Circuit, which has permitted
standing based on possessory interest of entities. See Smoot v.
United Transp. Union, 246 F.3d 633, 639-41 (6th Cir. 2001)
(holding that a union and a corporation had standing to sue
under § 2520 for unlawful tape recordings of an executive
meeting between representatives of the two entities). The
Sixth Circuit recognized that this was necessary in order to
give meaning to the term “any person,” which includes “any
individual, partnership, association, joint stock company,
trust, or corporation.” 18 U.S.C. § 2510(6). Unless entities
could sue based on “possessory interest,” it would be “diffi-
cult to conceive of a corporation or association ever having
standing under the Act.” Smoot, 246 F.3d at 640. Noel, how-
ever, brings this suit as an individual.
In any event, we need not reach the question of the precise
scope of statutory standing; such standing, unlike constitu-
tional standing, is not jurisdictional. See Cetacean Cmty. v.
Bush, 386 F.3d 1169, 1175 (9th Cir. 2004). We can thus
bypass the issue when, as is the case here, the plaintiff ’s
claims would fail anyway. See Steel Co. v. Citizens for a Bet-
ter Env’t, 523 U.S. 83, 1013 n.2 (1998); Nat’l R.R. Passenger
Corp. v. Nat’l Ass’n of R.R. Passengers, 414 U.S. 453, 456
(1974). We will, however, consider statutory standing in other
respects infra.
8
The record is not clear on whether the recordings included any of
Noel’s own conversations.
NOEL v. HALL 7053
B. Interception Claim
[4] Noel contends that he is entitled to damages under
§ 2520 because Weisser “procure[d] [a] person to intercept
. . . [a] wire communication” in violation of 18 U.S.C.
§ 2511(1)(a) when he advised Lennartz to listen to and copy
Noel’s tape recordings of phone conversations. He is wrong.
The plain language and the statutory scheme require the
conclusion that Lennartz did not “intercept” the original
phone conversation when she listened to a tape recording of
it and made a copy. The Wiretap Act defines “intercept” as
“the aural or other acquisition of the contents of any wire . . .
communication through the use of any electronic, mechanical,
or other device.” 18 U.S.C. § 2510(4). Such acquisition
occurs “when the contents of a wire communication are cap-
tured or redirected in any way.” United States v. Rodriguez,
968 F.2d 130, 136 (2d Cir. 1992). No new interception occurs
when a person listens to or copies the communication that has
already been captured or redirected. Any subsequent use of
the recorded conversation is governed not by the prohibition
on interception, but by the prohibition in § 2511(c) and (d) on
the “use” and “disclos[ure]” of intercepted wire communica-
tions. As the Fifth Circuit has recognized, if such subsequent
replaying of the acquired communication were a new inter-
ception, “Congress in its wisdom presumably would not have
added a separate section providing a redundant section
[regarding the use and disclosure of intercepted communica-
tions.]” United States v. Turk, 526 F.2d 654, 658 (5th Cir.
1976), cert. denied, 429 U.S. 823 (1976).
[5] In reaching this conclusion, we join a number of other
circuits that have held that a replaying of tapes containing
recorded phone conversations does not amount to a new inter-
ception in violation of the Wiretap Act. See United States v.
Hammond, 286 F.3d 189, 193 (4th Cir. 2002), cert. denied,
537 U.S. 900 (2002); Reynolds v. Spears, 93 F.3d 428, 432-33
(8th Cir. 1996); United States v. Shields, 675 F.2d 1152, 1156
7054 NOEL v. HALL
(11th Cir.), cert. denied, 459 U.S. 858 (1982); Turk, 526 F.2d
at 658.9 Although these cases involved only the replaying of
recorded tapes rather than the copying of such tapes, we find
no difference between the two forms of conduct. Once the ini-
tial interception has occurred, subsequent conduct is governed
by the Wiretap Act’s use and disclosure provisions.
Our conclusion does not undermine United States v. Smith,
155 F.3d 1051 (9th Cir. 1998), cert. denied, 525 U.S. 1071(1999), in which we held that voicemail messages were pro-
tected under the Wiretap Act in effect at the time, and at the
time the events of this case occurred.10 Id. at 1059. In Smith,
we looked to the meaning of “wire communication,” which
was defined in the Act in effect at the time as “any aural
transfer made in whole or in part . . . between the point of ori-
gin and the point of reception,” specifically including “any
electronic storage of such communication.” Id. at 1055 (18
U.S.C. § 2510(1)). We reasoned that the communication left
in a voicemail system was “wire communication” because it
was an “aural transfer” made using a wire facility that was
“electronic[ally] stor[ed].” Id. at 1058. We then concluded
that the third-party’s retrieval and recording of voicemail
9
Because Turk is a case predating the 1986 amendments to the Wiretap
Act, we have rejected its reasoning to the extent it could be read to define
“intercept” in the Wiretap Act in effect in 1997 as requiring acquisition
contemporaneous to the communication. See United States v. Smith, 155
F.3d 1051, 1057 n.11 (9th Cir. 1998), cert. denied, 525 U.S. 1071 (1999).
Smith does not preclude us from adopting Turk’s holding that interception
occurs only the first time communication is captured or redirected.
10
In 2001, Congress amended the Wiretap Act so that the definition of
“wire communication” no longer specifically includes “electronic stor-
age.” See Uniting and Strengthening America By Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act
of 2001, Pub. L. No. 107-56, § 209, 115 Stat. 272, 283 (enacted Oct. 26,
2001); Konop v. Hawaiian Airlines, 302 F.3d 868, 878 (9th Cir. 2002),
cert. denied, 537 U.S. 1193 (2003). We do not analyze which version of
the Wiretap Act should apply to this case, as Noel’s argument fails
whether or not “electronic storage” is specifically included in the defini-
tion of “wire communication.”
NOEL v. HALL 7055
messages amounted to an “interception” of that “wire commu-
nication.” Id. at 1059.
Noel argues that listening to his audiotapes similarly
amounts to an “interception” under Smith because the tele-
phone conversations were in “electronic storage.” There is,
however, a difference between voicemail messages and
Noel’s tape recordings of phone conversations. As we
explained in Smith, voicemail messages are the same as phone
conversations for the purposes of the Act because they are a
part of the original “aural transfer” between parties to the
communication. If A divulges a secret to B on the phone, her
conversation is protected; if B is not at home and A leaves the
same secret on the voicemail for B to retrieve later, that mes-
sage is also protected. If C records B’s voicemail or A and
B’s phone conversation on his own audio tape, C’s act would
constitute an interception. The intercepted communication
stored in C’s audiotape, however, is not “wire communica-
tion” under the Act because it is not a part of the aural transfer
between “the point of origin” and “the point of reception,”
including “electronic storage,” Smith, 155 F.3d at 1055 (citing
18 U.S.C. § 2510(1)). “[E]lectronic storage is defined in rele-
vant part as “any temporary, intermediate storage of a wire or
electronic communication incidental to the electronic commu-
nication thereof.” 18 U.S.C. § 2510(17)(A) (emphasis added).11
11
In the alternative, “electronic storage” is “any storage of such commu-
nication by an electronic communication service for purposes of backup
protection of such communication.” 18 U.S.C. § 2510(17)(B). We reject
Noel’s attempt — which is made for the first time in front of our court —
to characterize the Riding Academy as an “electronic communication ser-
vice,” which is defined as “any service which provides to users thereof the
ability to send or receive wire or electronic communications.” 18 U.S.C.
§ 2510(15). We do not normally consider arguments not raised below. See
USA Petroleum Co. v. Atlantic Richfield Co., 13 F.3d 1276, 1284 (9th Cir.
1994). Although Noel contends that the magistrate judge “sua sponte”
rejected this argument, “this situation does not differ significantly from the
case in which a party alleges two different . . . legal theories, chooses to
pursue only one at summary judgment, and then, when the first theory
7056 NOEL v. HALL
Unlike voicemail which temporarily stores messages from A
on its course to reaching B, C’s audiotape is the result of C’s
interception of the communication between A and B and is
not an intermediate storage for that communication.
[6] Because an individual does not “intercept” a “wire com-
munication” by listening to or copying recorded tapes of
phone conversations, we conclude that Weisser did not violate
the interception provision of the Wiretap Act.12 We note that
the result that we reach provides ample protection for privacy,
the “overriding congressional concern” underlying the Wire-
tap Act. Gelbard v. United States, 408 U.S. 41, 48 (1972).
Although an individual cannot be held liable under the inter-
ception provision for listening to and copying a tape of a
phone conversation, he or the wiretapper could still be held
liable for using or disclosing the contents of the tape. We
therefore turn to Noel’s use and disclosure claims.
C. Use and Disclosure Claims
[7] Noel also contends that Weisser violated 18 U.S.C.
§ 2511(1)(c) and (d)’s prohibition on “intentionally disclos-
[ing]” or “intentionally us[ing]” the “contents of any wire . . .
communication, knowing or having reason to know that the
information was obtained through the interception of a wire
. . . communication in violation of this subsection.” This pro-
vision protects against the dissemination of private communi-
cations that have been unlawfully intercepted. Because we
fails on the merits, seeks to revisit the discarded theory.” Id. at 1286.
Because we do not consider this argument, we deny Noel’s motion to sup-
plement the record with evidence supporting his theory. We grant
Weisser’s motion to file a late opposition to Noel’s motion to supplement
the record.
12
We do not consider here whether for purposes of criminal liability two
or more persons involved in the arrangements for conducting the intercep-
tion of the original communication may be held responsible under a con-
spiracy or another theory.
NOEL v. HALL 7057
decided above that Lennartz did not “intercept” a wire com-
munication by listening to and copying Noel’s tapes, if Noel
has any claim under these sections, it would have to be based
on the dissemination of the phone conversations that he him-
self intercepted.
[8] Noel cannot, however, assert a claim based on his own
interception of the communication. We would be required to
reject any such contention either for failure to state a claim or
for lack of standing. If Noel asserted that his own interception
was not unlawful,13 he could not state a claim against Weisser
for using or disclosing an unlawfully intercepted communica-
tion. For example, if Noel met the exception in the Wiretap
Act which allows a “party to the communication” to record
the conversation, 18 U.S.C. § 2511(2)(d), or the exception
which allows recordings of phone conversations “in the ordi-
nary course of . . . business,” § 2510(5)(a), Noel would not
have violated the interception provisions of the Wiretap Act.
Accordingly, these conversations would not have been
recorded unlawfully, and Noel could not prevail on a claim
that Weisser used or disclosed conversations that were
acquired unlawfully.
[9] In the alternative, were Noel to acknowledge that he
illegally intercepted the conversations, he would not have
standing under the Wiretap Act to obtain damages for the use
or disclosure of those conversations. Whatever the limits of
standing under § 2520, it does not include standing based on
conversations that the plaintiff himself illegally intercepted.
As we have stated before: “the purpose of the statute is to pro-
tect persons talking on the phone from interception, so the
illegal interceptor has no standing to invoke the act as a shield
for his own violation.” Chandler v. Army, 125 F.3d 1296,
13
We do not consider whether Noel would be precluded from making
such an assertion given the state court judgment against him on Hall’s
wiretapping claims. Neither party raises the question of the effect of that
judgment on these proceedings.
7058 NOEL v. HALL
1302 (9th Cir. 1997). The principle we stated in Chandler was
based on congressional intent that a defendant charged with
illegal interception should not be allowed to invoke the Wire-
tap Act to suppress the use and disclosure of materials he is
accused of illegally intercepting. See id.; S. Rep. No. 1097
(1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2188 (“[U]se
and disclosure [of illegally intercepted material] would be
necessary in the investigation and prosecution of an illegal
wiretapper himself.”); see also United States v. Underhill, 813
F.2d 105, 112 (6th Cir. 1987) (holding that defendants are not
entitled to suppress the illegally recorded tapes in their crimi-
nal proceedings because they waived their privacy in the con-
versations by causing them to be taped unlawfully). The same
principle applies in the civil context. If the Wiretap Act were
to be interpreted to grant standing to bring civil suit to those
who illegally intercepted wire communications, the illegal
wiretapper could use the Act to make it difficult for his vic-
tims to bring a civil suit against him and to threaten them and
their lawyers with damages for the use and disclosure of com-
munications that he illegally acquired. In fact, this is precisely
what Noel attempts to do. We reject such an anomalous inter-
pretation of a statute that is intended to protect the privacy of
the wiretap victims. See Gelbard, 408 U.S. at 48; see also
Underhill, 813 F.2d at 112 (concluding that Congress did not
intend the absurd result that “the very people who committed
the unlawful interceptions” be shielded by the Wiretap Act
from the consequences of their wrongdoing).
[10] We hold that Noel either did not engage in illegal
interception and therefore cannot state a claim that Weisser
used or disclosed illegally intercepted material, or, in the
alternative, that he did engage in illegal interception and has
no standing to collect damages for the use or disclosure of the
communications that he intercepted. In light of our conclu-
sion, we need not reach Weisser’s argument that he was enti-
tled to a prosecution privilege or litigation privilege for his
use of the recordings to bring a wiretap claim against Noel.
NOEL v. HALL 7059
IV. CONCLUSION
We affirm the district court’s grant of summary judgment
for Weisser on Noel’s federal wiretap claims.
AFFIRMED