United States v. Marilyn Jean Buck

548 F.2d 871, 1977 U.S. App. LEXIS 14651, 1 Fed. R. Serv. 806
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 22, 1977
Docket73-3560
StatusPublished
Cited by58 cases

This text of 548 F.2d 871 (United States v. Marilyn Jean Buck) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth 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. Marilyn Jean Buck, 548 F.2d 871, 1977 U.S. App. LEXIS 14651, 1 Fed. R. Serv. 806 (9th Cir. 1977).

Opinions

OPINION

LYDICK, District Judge:

Appellant stands convicted after jury trial of violation of two counts of 18 U.S.C. § 922(a)(6) (furnishing false information in connection with the acquisition of ammunition) and two counts of 18 U.S.C. § 924 (making a false statement with respect to information required to be kept by a licensed firearm dealer) arising out of the purchase by her of ammunition from a San Francisco gun store on two separate occasions in 1973.1

On both occasions, appellant used the name Mariann Turner and presented as identification a drivers license in that name which reflected a date of birth different from her own. The drivers license had been [874]*874obtained through an applicant which falsified her place of birth and driving history.

Appellant raises seven separate grounds of appeal, four of which relate to standards and procedures utilized below with respect to alleged illegal electronic surveillance. We shall not attempt to summarize the extensive evidence introduced at the trial or during the 2lh day post-trial taint hearing. We have read the transcript of all proceedings, however, and believe that the record manifests that the evidence questioned by appellant had a clearly independent source and could not have been the primary product of or the result of exploitation of any illegal surveillance.

Appellant first contends that she was denied a fair trial by refusal of the trial court to hold a hearing before rather than after trial on her claim that certain evidence was tainted because of illegal government surveillance. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); 18 U.S.C. § 2518(10)(a). It is argued that such refusal restricted her right to testify in her own behalf, restricted cross-examination of government witnesses, was contrary to Congressional intent and ignored considerations of judicial economy.

Neither the pertinent statute nor its legislative history purports to mandate that such a hearing be held before trial. The propriety of holding such hearings post-trial has been recognized widely and is within the trial court’s discretion. See United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); United States v. Cales, 493 F.2d 1215 (9th Cir. 1974); United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557; United States v. Sacco, 428 F.2d 264 (9th Cir. 1970), cert. denied, 400 U.S. 903, 91 S.Ct. 141, 27 L.Ed.2d 140; United States v. Nolan, 420 F.2d 552 (5th Cir. 1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 47 (1970); United States v. Cole, 325 F.Supp. 763 (S.D.N.Y.1971), aff’d 463 F.2d 163, 171 (2d Cir. 1972), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972). This is particularly true where, as here, there is no discernible nexus between the alleged illegal surveillance and the matters to be proved at trial. We find nothing in the procedures followed by the District Court which inhibited appellant’s right to testify or restricted her counsel’s right to cross-examination and the judicial economy argument is without support.

Appellant next contends that the post-trial taint hearing was improperly conducted and that as a result the findings of the District Court that plaintiff’s evidence was not tainted should be set aside. It is first claimed the hearing denied appellant due process because, rather than being directed primarily at allowing her to prove taint, it permitted the government to prove its information came from an independent legal source.

While the Alderman hearing procedure is to first allow the defendant to go forward with specific evidence demonstrating taint and then to shift the burden to the government to show that it acquired its evidence from an independent source, here the defense had no specific evidence demonstrating taint and accordingly the government took up its burden at the outset.

The purpose of the Alderman hearing is to determine whether, granting establishment of the primary illegality, the evidence has been come at by exploitation of that illegality or instead by means sufficiently distinguishable. Alderman v. United States, supra 394 U.S. at 181, 89 S.Ct. 961. That purpose was fully served in the circumstances of this case by the procedures followed by the trial court.

Appellant argues further that denial of her motions for the names of monitors of and those with access to certain tapes prevented her demonstration of taint. In United States v. Polizzi, supra, the names of monitors were given to the defendants. This was done so that the defendants could ask each government prosecutor on the witness stand whether he received any information about the logs from the named officials. In this, case, all the investigative [875]*875agents were available for cross-examination with respect to whom they had spoken concerning appellant and what information was learned through such conversations. Although here defense counsel could not name in her questions to witnesses the specific monitors, the distinction is trivial and the denial of the names was not prejudicial. Polizzi does not require the naming or calling as witnesses of all who had access to tapes unless there is some reason to believe that such persons communicated information received from the tapes to any of those who had charge of the preparation of the evidence in the particular case. Here there was a denial that any such information was received by the investigators, the wiretapped conversations in issue occurred several years before the crime charged was committed and independent source was clearly established, and the failure to require production of all those who might have had access to the tapes was not error. Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939); Polizzi, supra at 912; United States v. Jackson, 448 F.2d 963 (9th Cir. 1971), cert. denied sub nom. Willis v. United States, 405 U.S. 924, 92 S.Ct. 970, 30 L.Ed.2d 796 (1972).

Appellant’s motion for production of FBI files and records was properly denied. The question of whether to turn over such material is within the discretion of the trial judge, Alderman, supra; Nardone, supra, and no abuse of such discretion is shown.

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Bluebook (online)
548 F.2d 871, 1977 U.S. App. LEXIS 14651, 1 Fed. R. Serv. 806, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-marilyn-jean-buck-ca9-1977.