United States v. John

508 F.2d 1134
CourtCourt of Appeals for the Eighth Circuit
DecidedJanuary 6, 1975
DocketNos. 72-1565, 72-1566, 72-1581 and 72-1594
StatusPublished
Cited by41 cases

This text of 508 F.2d 1134 (United States v. John) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John, 508 F.2d 1134 (8th Cir. 1975).

Opinion

HEANEY, Circuit Judge.

Victor Padratzik and Charles Bernstein were found guilty of violating 18 U.S.C. § 19521 and of a conspiracy to violate the statute. Nick John and Steve Lekometros were found guilty of a conspiracy to violate the same statute. Evidence obtained pursuant to Title III of the Omnibus Crime Control and Safe [1137]*1137Streets Act of 1968 (18 U.S.C. §§ 2510-2520) was essential to the government’s case. Thirteen points of error are assigned on review; each will be discussed separately. We affirm.

I. THE CONSTITUTIONALITY OF 18 U.S.C. § 1952.

Appellants assert, without supporting argument, that 18 U.S.C. § 1952 is violative of the First, Fifth, Sixth and Tenth Amendments to the United States Constitution. This naked assertion of unconstitutionality is insufficient to warrant judicial review. United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). Moreover, we have upheld the constitutionality of the section in prior cases. See, e. g., United States v. Nichols, 421 F.2d 570 (8th Cir. 1970); Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Bass v. United States, 324 F.2d 168 (8th Cir. 1963).

II. THE CONSTITUTIONALITY OF 18 U.S.C. §§ 2515-2518.

Appellants also attack the constitutionality of §§ 2515-2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. They invite us to reconsider United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), where we found Title III to be constitutional. We decline the invitation.

III. WHETHER THE GOVERNMENT’S FAILURE TO CORRECTLY IDENTIFY THE OFFICER WHO IN FACT AUTHORIZED APPLICATIONS FOR WIRETAP ORDERS PURSUANT TO 18 U.S.C. § 2518(l)(a) REQUIRES SUPPRESSION OF THE WIRETAP EVIDENCE.

This issue was decided adversely to the appellants in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Here, as in Chavez, the application for the order authorizing the interception of wire communications misidentified the officer authorizing the application in violation of 18 U.S.C. § 2518(l)(a).2 At trial, it was established, by affidavit, that then Attorney General John Mitchell was the officer who in fact gave the authorization to apply for the order.3 The Supreme Court in Chavez held that the initial misidentification, although improper, did not render the interceptions conducted under the order unlawful and subject to suppression. It reasoned that § 2518(l)(a) does not play a role in the regulatory scheme of Title III sufficient to justify the remedy of suppression when its provisions are violated. United States v. Chavez, supra, 416 U.S. 578-580, 94 S.Ct. 1857-1858, 40 L.Ed.2d at 394-395. See also United States of America v. Eugene Schaefer, et al., 510 F.2d 1307 (8th Cir. 1974); United States of America v. Steve Thomas, et al., 508 F.2d 1200 (8th Cir. 1974); United States v. Brick, 502 F.2d [1138]*1138219 (8th Cir. 1974); United States v. Cox, supra.

Appellants request further that the case be remanded for an evidentiary hearing to challenge Mr. Mitchell’s sworn statement that the authority to apply for the wiretap order was given before the order issued.4 We deny the request. We have held that the Supreme Court has approved the procedure followed here. See United States v. Brick, supra, 502 F.2d at 227 (Bright, J., concurring).5

IV. WHETHER THE POSTPONEMENT OF THE SERVICE OF THE NOTICE AND INVENTORY PURSUANT TO § 2518(8)(d) OF THE ACT REQUIRES SUPPRESSION OF THE WIRETAP EVIDENCE.

During the course of the government’s investigation between January 8, 1971 and May 14, 1971, four orders authorizing the interception of wire communications were issued. The investigation terminated with the arrest of the appellants on June 19, 1971. Only the first order, issued January 8, 1971, became subject to the notice and inventory requirements of 18 U.S.C. § 2518(8)(d)6 before the investigation terminated.7 In order to preserve the effectiveness of the continuing investigation, the government applied for and received on April 22, 1971 and May 21, 1971, two successive orders of [1139]*1139postponement of the service of the notice and inventory for the first wiretap order. The appellants assign this as error.

We emphasize that the inventory requirements were not ignored here. See United States v. Eastman, 465 F.2d 1057 (3rd Cir. 1972). Post-use notice must always be given by the issuing judge. United States v. Wolk, 466 F.2d 1143, 1146 (8th Cir. 1972). The notice here was received by the appellants after their arrest. Issue is taken only with the postponement of the notice and inventory which caused the service to occur more than ninety days after the termination of the first wiretap order.

Title III requires that an order of postponement be based upon “good cause.” 18 U.S.C. § 2518(8)(d). Here, the postponement was found by the District Court to be necessary for the continued effectiveness of the government’s investigation. This reason has been held sufficient to satisfy the “good cause” requirement. United States v. Manfredi, 488 F.2d 588, 602 (2nd Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Lawson, 334 F.Supp. 612, 616 (E.D.Pa.1971). See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Electronic Surveillance, “Approved Draft 1971” at 161.

* * * On an ex parte showing of good cause, the serving of the inventory may be, not dispensed with, but postponed.

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Bluebook (online)
508 F.2d 1134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-ca8-1975.