Jail Official Convicted of Illegally Recording Phone Conversations Loses Appeal
A former high-ranking official at a New Jersey county jail, convicted on federal charges for illegally listening to and recording the private phone conversations of jail union leaders, has lost his appeal and will remain in federal prison.
Kirk Eady, 46, of East Brunswick, New Jersey, was convicted in March 2015 on charges of illegal interception of wire, oral or electronic communications of others. On September 10, 2015 he was sentenced to 21 months in prison plus three years of supervised release.
Eady appealed, seeking to overturn his conviction and sentence on the grounds of inappropriate application of sentencing guidelines, inappropriate use of a government witness as an “expert” and improper jury instructions. His appeal was rejected by the Third Circuit on May 4, 2016.
According to the criminal complaint, Eady was a deputy director at the Hudson County Correctional Facility and represented the county in labor negotiations with unions representing guards and other employees at the jail. From March to July 2012, Eady intercepted conversations between several members of the union who, according to court documents, had criticized Eady’s work performance.
He had intercepted the calls by using an online prank service known as “Evil Operator,” which, for a small fee, allowed users to call, listen to and record parties at different phone numbers by calling both and making it appear as though they called each other. Eady accessed the “Evil Operator” website at least 12 times to place calls to union members and another person who had posted unflattering articles about Eady. He then “retaliated against the union members by changing their work schedules, placing anonymous calls to their spouses accusing them of infidelity, and registering one of them as a member of the Ku Klux Klan.”
His illegal interceptions of the calls were discovered after jail guard Latania Freeman, who described herself and Eady as “best friends,” informed the FBI that Eady had told her about the scheme and played one of the recordings for her on his cell phone. Freeman then agreed to allow the FBI to record her conversations with Eady, in which he laid out in detail how he had committed the illicit phone calls and recordings.
At trial, Eady’s defense attorney, Peter Willis, argued that his client could not be convicted of illegally intercepting the conversations because Evil Operator allowed the user to participate in the recorded phone calls if they wanted to, thereby making him a “party” to the calls. Federal law holds that, in order for a phone conversation to be legally recorded, only one party to the call needs to consent to the recording.
Federal prosecutors rebutted that defense by arguing the legality of secretly recording the conversations of other people using such a method defied common sense as well as privacy laws and expectations.
In his appeal, among other claims, Eady argued the jury was improperly instructed as to the definition of “party,” reasserting his belief that he had been, by virtue of his surreptitious role, a party to the phone calls he had recorded. The Third Circuit upheld the district court’s determination that spying does not equate to being a party to a conversation, and also rejected Eady’s challenge to a two-level sentencing enhancement he received for abuse of a position of trust. See: United States v. Eady, 648 Fed.Appx. 188 (3d Cir. 2016).
Sources: www.mycentralnewjersey.com, www.nj.com, www.trentonian.com