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Perry v. State12/10/1999
telephone calls between pay phones near where Perry was living in Michigan to Horn's phone in California, and from pay phones in California to Perry in Michigan. Additionally, $6,000 believed to be payment, or partial payment, for the murders was transferred under a fictitious name from Los Angeles, where Horn was then staying, to Perry's girlfriend in Michigan.
Presuming that California's conspiracy laws are similar to Maryland's, the application of Mustafa's holding to the case at bar could result, should California choose to try Horn for conspiracy to commit murder, in the recording being admissible in the state where the conspiracy to commit the crime was made and where the recording was lawfully made, but not in the jurisdiction where the murders were actually committed. I respectfully suggest that such a result would also be absurd.
Under Mustafa, a criminal conspirator in Illinois , who has never been in Maryland, who records, without the co-conspirator's knowledge, a telephone conversation from the co-conspirator in California, who also has never been in Maryland, violates the Maryland Wiretap Act at the time the recording is made. This is because the exclusionary clause relied on in Mustafa excludes only evidence obtained and/or disclosed in violation of the Maryland statute, and the Court held in Mustafa that acts committed elsewhere violate the Maryland statute for exclusionary purposes. To me, this makes little sense and, as this case evidences, is unsound in practice and, as I view it, incongruous.
Under Mustafa, a recording of a communication from Cape Canaveral, made by an astronaut standing on the surface of the moon, recorded without NASA's consent, would not be admissible in Maryland's courts because it would violate the Maryland Act if the parties had been in Maryland. Because violations of the Maryland Act are felonies, is the astronaut a felon? I hasten to indicate that I consider this example to be absurd; but that is the point.
The Maryland Wiretap Act also contains civil liability provisions similar to the criminal liability provisions.
Section 10-410 provides in relevant part:
(a) Civil liability. - Any person whose . . . communication is intercepted, disclosed, or used in violation of this subtitle shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use the communications, and be entitled to recover from any person:
(1) Actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;
(2) Punitive damages; and
(3) A reasonable attorney's fee and other litigation costs reasonably incurred. [Second emphasis added.]
If Mustafa's holding were to be extended to these civil penalty provisions, persons in other states and countries receiving and recording calls made from Maryland, could be subjected to civil liability in Maryland courts, even though their state's statutes permit the recording upon the receiving party's consent. In my view, that, too, would be absurd.
Under Mustafa, conversations between callers in different states, each of which has the one-party consent standard, if recorded in a state where it is legal to do so, from a state in which it was legal to do so, would still not be admissible in Maryland courts. If the parties thereafter moved into Maryland, could the one whose conversation had, without his consent, been legally recorded elsewhere, initiate a civil suit under the Maryland statute and Mustafa's extra-territorial extension of Maryland's jurisdiction? I
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