The Honorable William G. Cambridge, Chief Judge, United

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States District Court for the District of Nebraska.

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No. 96-1140

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Cheryl M. Morford, *

*

Appellant, *

*

v. *

*

City of Omaha, a municipal *

corporation and political * Appeal from the United States

subdivision of the State of * District Court for the

Nebraska; James Skinner, * District of Nebraska.

individually and in his *

capacity as Chief of Police of *

the Police Department of the *

City of Omaha, Nebraska; John *

Car, individually and in his *

capacity as a police officer *

for the City of Omaha, Nebraska,*

*

Appellees. *

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 Submitted: September 11, 1996

 Filed: October 21, 1996

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Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

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BOWMAN, Circuit Judge.

Cheryl Morford appeals from the decision of the District Court1

denying her claims for statutory damages, attorney fees, and costs, despite

a jury verdict in her favor in her suit against the city of Omaha and

certain law enforcement officers for the unlawful interception of her

telephone conversations. We affirm.
 Car testified that he did not wait for the wiretap to be

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authorized because, once the warrant was signed, it was only valid

for thirty days. If something was amiss with the telephone lines

or recording equipment, investigators could lose already limited

wiretap time while the problem was identified and corrected.

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In the spring of 1990, a metro area task force that included, among

others, the Omaha Police Department and the Douglas County Sheriff's

Department, in a continuing investigation of the Omaha Hell's Angels

Motorcycle Club, received court authorization to install a pen register on

the telephone of Gary Apker. A pen register collects and prints out

information about calls made to or from the target telephone, although it

tells an investigator nothing about the content of the calls. By June

1990, investigators had sufficient information to apply for court

authorization for a wiretap of Apker's telephone so that they might record

his conversations. Omaha police officer John Car, who had been with the

police department's special operations squad since January 1985, was

assigned to assist in installing first the Apker pen register and then

later the Apker wiretap. Car asked the task force to advise him

approximately one week before the wiretap was expected to receive court

approval, so that he might run audio tests on the equipment, a practice he

regularly followed.2

On June 19, 20, and 21, 1990, having received notification that court

approval of the wiretap was imminent, Car tapped into Apker's telephone

line with audio equipment that he attached to the pen register that already

was operating. Car's only purpose in doing so was to check the sound

quality on the line and to be sure that the recording equipment was

operating properly. As he described his testing routine, when the

equipment indicated that the target's telephone was in use, Car would

listen for a few seconds with headphones, then put the headphones around

his neck and turn on one or more cassette tape recorders, taping the

conversations. Car would then rewind each cassette tape, listen to
 Morford testified that her husband was not in the shop that 3

day, and thus it could not have been his conversation that was

recorded, because he was in prison on drug charges at the time.

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ten or fifteen seconds of the first part of the tape and a later part of

the tape, then physically destroy the tape.

On June 21, 1990, someone using Apker's telephone twice dialed the

telephone number of the Old Brass Shack, a metal polishing business owned

and operated by Morford and her husband. A paper tape printed out by the 3

pen register/wiretap showed that the first call went out at approximately

12:10 p.m. and lasted only twelve seconds, a duration that, in Car's

experience, indicated the call was not answered. (He had no recollection

of specific calls or conversations.) Approximately two minutes later,

another call made to the Old Brass Shack lasted one minute, eighteen

seconds.

Four days later, on June 25, 1990, a state district court judge

signed a warrant authorizing the wiretap on Apker's telephone. The

investigation led eventually to the arrest and prosecution of several

individuals, including Cheryl Morford. Morford entered a conditional

guilty plea in federal court. She then appealed the conviction, arguing,

inter alia, that the evidence obtained from the wiretap should be

suppressed for reasons related to the pre-warrant testing. This Court

concluded that the district court in Morford's criminal case properly

denied suppression. United States v. Lucht, 18 F.3d 541, 546 (8th Cir.),

cert. denied, 115 S. Ct. 363 (1994). When Car's testing procedures came

to light as a result of the suppression hearing, the Omaha police

department policy was changed so that no testing involving the interception

of telephone conversations would occur until a wiretap was properly

authorized.

In October 1993, Morford filed this civil lawsuit against the city

of Omaha, Car, and Omaha police chief James Skinner under
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Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18

U.S.C. §§ 2510-2521 (1988 & Supp. II 1990) (the Act), seeking statutory

damages, punitive damages, attorney fees, and costs for the unlawful

interception of her telephone conversations. After trial, a jury found in

favor of Morford, but denied her claim for punitive damages. The District

Court thereafter denied Morford statutory damages, attorney fees, and

costs. Morford appeals.

Morford first argues that the District Court was without discretion

to deny her an award of statutory damages when the jury found in her favor

on her claim that defendants violated the Act. That argument is foreclosed

by our opinion in Reynolds v. Spears, 93 F.3d 428, 433-35 (8th Cir. 1996),

where we held that the trial court has discretion under 18 U.S.C.

§ 2520(c)(2) (1988) to decline to award statutory damages for illegal

telephone interceptions. The question remains, however, whether the

District Court abused its discretion in declining Morford's request for

statutory damages in the amount of $10,000 for each violation. We hold

that it did not.

The District Court is on the record in a ruling from the bench with

a number of reasons for denying statutory damages. The court found Morford

sustained no actual damages, and that the "privacy intrusion . . . appears

to have been relatively minor." Partial Transcript of Proceedings, Dec.

1, 1995, at 10. The court concluded that those who may have played a part

in the unlawful interceptions misunderstood the law and did not believe the

pre-warrant testing was illegal. Further, according to the court, Car

never intended to monitor for information, or to use in any way information

gleaned from any conversations that may have been intercepted in the course

of his testing of his equipment. Finally, although the testing procedure

has been changed, the court found that Morford's civil lawsuit did not

cause the change.
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To those reasons we would add that the evidence shows Morford was

recorded on only one day, two times at most, and for no more than ninety

seconds total. There is no evidence that Car disclosed to anyone the

substance of any conversation that he may have heard. Car was the officer

assigned to handle only the technical aspects of the intercept. He was not

a member of the task force investigating Apker and therefore was not privy

to the details of the ongoing investigation. Car physically destroyed each

tape by breaking it and ripping it out of the cassette as soon as he

verified, by listening to a few seconds of the tape, that the recording

equipment was operating properly. He clearly did not believe his actions

were illegal and never tried to conceal the fact of his pre-warrant

testing. Car's actions were part of an otherwise lawful investigation that

resulted in the arrest and conviction of several individuals, including

Morford, and the dissolution of a substantial conspiracy to distribute

methamphetamine in the Omaha area.

In these circumstances, we conclude that the District Court did not

abuse its discretion in denying Morford's request for statutory damages.

Finally, we come to the question of attorney fees and costs. Under

the Act, a person whose communication is unlawfully intercepted may recover

"a reasonable attorney's fee and other litigation costs reasonably

incurred." 18 U.S.C. § 2520(b)(3) (1988). Because such an award is

discretionary with the court, we will reverse only for an abuse in the

exercise of that discretion. See Reynolds, 93 F.3d 428, 436 (8th Cir.

1996). The District Court denied fees and costs "for the same reasons [the

court] found with regard to statutory damages." Partial Transcript of

Proceedings at 11. Finding no abuse of discretion, we affirm.

In addition to the reasons enumerated in support of the denial of

statutory damages, the most cogent reason for denying attorney
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fees and costs is Morford's lack of success on her claim--statutory and

punitive damages were denied. We have previously concluded that a district

court would not abuse its discretion in excluding from a fee award "time

spent in unsuccessfully seeking amended statutory damages and punitive

damages." Bess v. Bess, 929 F.2d 1332, 1335 (8th Cir. 1991). Since

statutory and punitive damages were the only relief Morford sought, and no

such damages were awarded, we cannot say that the District Court abused its

discretion in denying fees and costs.

Morford has claimed, both in her testimony before the District Court

and in her brief, that she brought suit "mainly to make the [sic] sure the

City of Omaha stopped this outrageous policy of illegally intercepting

unknown members of her community." Brief of Appellant at 29. She claims

that, "[b]ecause of this case, the City of Omaha has stopped" and that she

should be awarded fees for accomplishing this public purpose. Id. Given

the uncontroverted record in this case, that argument is unavailing.

Morford and her co-defendants were arrested in the fall of 1990. A

hearing on the motion to suppress the wiretap evidence in Morford's

criminal case because of Car's audio tests was held in October 1991. The

undisputed testimony at the trial in this civil case demonstrates that the

Omaha police department policy of performing pre-warrant audio tests by

tape recording telephone conversations had been abolished by 1992--well

before Morford's complaint was filed in October 1993. Thus, her claim that

this suit was responsible for changing Omaha's unlawful policy must be

rejected.

The judgment of the District Court is affirmed in all respects.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.