576 F.2d 165 (9th Cir. 1978), 76-3486, United States v. Choate

Docket Nº:76-3486.
Citation:576 F.2d 165
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Dennis Roy CHOATE, Defendant-Appellee.
Case Date:March 15, 1978
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 165

576 F.2d 165 (9th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellant,

v.

Dennis Roy CHOATE, Defendant-Appellee.

No. 76-3486.

United States Court of Appeals, Ninth Circuit

March 15, 1978

Rehearing and Rehearing En Banc Denied June 6, 1978.

Page 166

[Copyrighted Material Omitted]

Page 167

Carleton D. Powell (argued), Dept. of Justice, Washington, D. C., Richard G. Sherman (argued), Los Angeles, Cal., for plaintiff-appellant.

Timothy B. Flynn, Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Page 168

Before CUMMINGS [*], HUFSTEDLER and WALLACE, Circuit Judges.

CUMMINGS, Circuit Judge.

On August 21, 1974, a two-count indictment was returned against defendant, then a resident of Long Beach, California. Count One charged that defendant filed a false individual income tax return for 1970, listing his adjusted gross income as $4,681 instead of the correct figure of $32,581, in violation of 26 U.S.C. § 7201. Count Two charged a similar violation for the year 1971, with defendant listing his adjusted gross income as $5,306 instead of the proper figure of $64,744.

Two and one-half months later, defendant filed a motion to dismiss the indictment on the ground that it was "the result of impermissably (sic) discriminatory law enforcement and unequal application of the law denying the defendant equal protection of the law." On December 6, 1974, this motion was granted and the case dismissed on the ground that the activities of government informer Tony Gordon had violated defendant's Sixth Amendment right to counsel. On appeal this Court held that the Government's attempted use of Gordon had not prejudiced defendant, so that the case was remanded for trial. United States v. Choate, 527 F.2d 748 (9th Cir. 1975).

Upon remand, defendant filed a motion on March 12, 1976, to suppress all the physical items of evidence sought to be introduced against him. After first hearing evidence on July 13, 1976, Judge Ferguson granted the motion to suppress "as to mail cover issue" after hearing oral argument on October 18, 1976. A memorandum opinion was filed on November 16, 1976, and is now reported in 422 F.Supp. 261. On the same date, the Government appealed the ruling granting the motion to suppress evidence, and on December 7, 1976, the Government filed an amended notice of appeal to include Judge Ferguson's memorandum decision. Jurisdiction properly was lodged in the district court under 26 U.S.C. § 7201 and 18 U.S.C. § 3332, and the appeal of the order granting the motion to dismiss was taken pursuant to 18 U.S.C. § 3731.

In the district court, defendant initially argued that a now-deceased state government informant named Carl Thompson had obtained substantial information from an illegal search of defendant's residence, supposedly providing the impetus for the entire income tax investigation that culminated in defendant's indictment and prosecution. However, Judge Ferguson held that the Government had established by a preponderance of the evidence that any such illegality "did not taint the evidence in this case in more than a de minimis manner" (422 F.Supp. at 263).

Concerning the "mail cover issue," the court found that the Government had initiated a mail cover on defendant's mail from July 31, 1972, to August 25, 1972. 1 This mail cover permitted the recording of the data appearing on the outside cover of defendant's incoming first and fourth class mail at three listed addresses, two in Balboa and one in Newport Beach, California. The data consisted of the class of mail, the name of the addressees (occasionally a piece of mail was addressed to Choate and another person), name and return addresses of the senders and place and date of postmarks on mail going to defendant.

The mail cover was obtained through Bureau of Customs Special Agent Melvin C.

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Johnson's letter to the postal inspector in charge in Los Angeles, California. The letter read as follows:

July 19, 1972

LA06RO692701

Mr. Stanley H. Jenson

Postal Inspector in Charge

P.O. Box 30456

Los Angeles, California

Dear Sir:

A cover for First and Fourth Class mail is requested for the following names and addresses:

Dennis Roy CHOATE

511 W. Bay St., Apt. A

Balboa, California

CARSON AND CHOATE SURFBOARDERS

2811 Newport Blvd.

Newport Beach, California

Dennis Roy CHOATE

P.O. Box 886

Balboa, California

The above listed subject is currently under investigation by this office for the suspected smuggling of large quantities of narcotics into the United States. CHOATE is currently organizing a large narcotic smuggling ring with the primary source located in South America. It is felt that CHOATE and the source in South America correspond by mail. Return addresses on mail received at the above addresses would be of aid in identifying the source in South America and other members of the smuggling ring. It is requested that a mail cover be placed at the above addresses for a period of 30 days. It is further requested that all replies be directed to Special Agent Lynn P. Williams.

Smuggling narcotics into the United States is in violation of Title 21 USC 952 and carries a penalty under Title 21 USC 960(a)(1) of 15 years imprisonment or a fine of $25,000 and/or both. CHOATE is not under indictment as a result of any investigation conducted by this office nor does this office have any knowledge of any other indictments pending against CHOATE. It is believed that CHOATE has retained Sherman & Sturman, Attorneys at Law, 8500 Wilshire Blvd., Suite 908, Beverly Hills, California as legal counsel.

Your cooperation in this matter would be appreciated.

Sincerely yours,

MELVIN C. JOHNSON

Special Agent in Charge

cc; SUI 5

(Lynn) WILLIAMS/ab

"422 F.Supp. at 264-265 n. 5". (emphasis supplied.)

This letter was initiated by Special Agent Lynn Williams of the Drug Enforcement Agency who was then working as a special agent for the Bureau of Customs, assigned to its hard narcotics unit. In March or April 1972, Williams had been assigned to investigate defendant because he was suspected of importing large quantities of cocaine into the United States.

Judge Ferguson first held that the foregoing letter did not specify "the reasonable grounds that exist" for requesting a mail cover as required by a July, 1965, postal regulation, which provides that all postal inspectors in charge may order mail covers within their district, viz.: 2

"Where written request is received from any law enforcement agency of the Federal, State, or local governments, wherein the requesting authority stipulates and specifies the reasonable grounds that exist which demonstrate the mail cover would aid in the location of a fugitive, or that it would assist in obtaining information concerning the commission or attempted commission of a crime" (39 C.F.R. § 233.2(e)(1)(ii); emphasis supplied).

The district court next held that the use of the mail cover as part of the early narcotics investigation of defendant was unconstitutional

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under the Fourth Amendment, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. The opinion noted that it was the identity of the sender that was of interest to the law enforcement authorities here and that a reasonable person who posted a piece of mail would have an expectation of privacy "(1) that the information contained in the return address will only be used for postal purposes, and (2) that it will be utilized in only a mechanical fashion without any records being kept" (422 F.Supp. at 270). Judge Ferguson could find no compelling governmental interest which could justify the incursion on what he viewed to be a substantial privacy interest.

In closing, the district court concluded that all the evidence the Government sought to introduce against the defendant "was derived from exploitation of leads derived from the illegal mail cover" (422 F.Supp. at 271), so that no part of the evidence could be purged of the taint of the mail cover. In its principal brief the Government admitted that it could not prove the absence of taint if the mail cover was illegal (Br. 8), and at the oral argument the Government conceded that it could not proceed with the trial if the motion to suppress evidence was properly granted. We reverse.

The Government's Evidence Was Not Fatally Tainted by Informant's Entry into Defendant's Home.

The district court found that Carl Thompson, an informer for Primo T. Orosco of the California Bureau of Narcotics Enforcement, had burglarized defendant's Huntington Beach, California, residence in April 1971 and had obtained Choate's future wife's Farmers and Merchants Bank statement for the period March 15-April 15, 1971. However, the court held that the Government established by a preponderance of the evidence that any such illegality "did not taint the evidence in this case in more than a de minimis manner" (422 F.Supp. at 263). In attacking this holding, it was unnecessary for defendant to file a cross-appeal because he was endeavoring to support the judgment in his favor on this issue on the claim that he had advanced below. United States v. Campbell, 293 F.2d 816, 822 (9th Cir. 1961). 3 We are in accord with the district court's disposition of this matter.

The record shows that Carl Thompson, who died in May 1976, was used as an undercover informer in April and May 1971 by California Narcotics Agent Orosco to help build a state narcotics case against defendant in exchange for favorable treatment in a potential inquiry into Thompson's own connections with narcotics importation. In Orosco's May 3, 1971, report for the California Bureau of Narcotics Enforcement, he noted that the bank statement Thompson had obtained from defendant's residence in April 1971 was for an...

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