U.S. v. Jernigan

• Citation: 582 F.2d 1211
• Decision Date: 07 August 1978
• Docket Number: No. 78-1174,78-1174
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee JERNIGAN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1211

582 F.2d 1211

UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee JERNIGAN, Defendant-Appellant.

No. 78-1174.

United States Court of Appeals,

Ninth Circuit.

Aug. 7, 1978.

Rehearing and Rehearing En Banc Denied Sept. 25, 1978.

Thomas M. Schneiger, Portland, Or., Stuart Trecher (argued), Portland, Or., for defendant-appellant.

Kenneth Bauman, Asst. U. S. Atty., Portland, Or., Frank Wilson, Asst. U. S. Atty. (argued), Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before DUNIWAY and CHOY, Circuit Judges, and GRANT, ^* District Judge.

DUNIWAY, Circuit Judge:

Jernigan was convicted on all eight counts of an indictment charging, in four counts, distribution of cocaine, a violation of 21 U.S.C. § 841(a)(1), and in four counts, the use of a telephone to facilitate distribution of cocaine, a violation of 21 U.S.C. § 843(b). All sentences are concurrent. On appeal, he makes two claims of error. We reject them both, and affirm.

I. USE OF RECORDINGS OF TELEPHONE CONVERSATION

The government introduced in evidence tape recordings of a number of telephone conversations between Jernigan and an informant or between him and an agent of the Drug Enforcement Administration (DEA). Each conversation had been recorded without Jernigan's knowledge but with the knowledge and consent of the other party to the conversation, i. e., the informant or the agent. Before trial, Jernigan unsuccessfully moved to suppress all of the recordings in question. This motion was denied.

Jernigan concedes, as he must, that the recording or overhearing of the conversations did not violate his constitutional rights under the Fourth Amendment. Rathbun v. United States, 1957, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134; United States v. Cosby, 9 Cir., 1974, 500 F.2d 405. He also concedes that making the recordings is permitted by statute, 18 U.S.C. § 2511(2)(c) and (d). Rather, he argues that he has been deprived of due process guaranteed by the Fifth Amendment. He says that his telephone conversations were overheard and recorded in violation of the Attorney General's Memorandum to the Heads of Executive Departments and Agencies, issued on October 16, 1972, and that this violation denied him due process. He relies on our decision in United States v. Caceres, 9 Cir., 1976, 545 F.2d 1182.

In Caceres, we held that tape recordings of face to face conversations, made by Internal Revenue Service (IRS) agents by means of a device carried by one of the participants in the conversations, must be suppressed because the recordings were made in violation of IRS's own regulations. Those regulations, in turn, had been adopted in response to the Attorney General's Memorandum. In so holding, we followed our decision in United States v. Sourapas, 9 Cir., 1975, 515 F.2d 295.

The situation in Jernigan's case is different, however. The Attorney General's Memorandum deals with two kinds of conversations, "(a) Conversations other than telephone conversations," about which the Memorandum sets out detailed regulations, and "(b) Telephone Conversations." As to the latter, here is what the Memorandum says:

Telephone conversations because they involve the transmission of the participants' conversations through a complex and far-flung network of wires, the common use of multi-party lines and extension In response to the requirements of the Memorandum, the DEA Agents Manual, § 6166.21, provides:

telephones, and the possibility of an unseen participant permitting another person to listen at the same telephone have long been considered not to justify the same assumption of privacy as a face-to-face conversation. Nevertheless, there is still a need to provide for the supervision and control of consensual monitoring of telephone conversations. Accordingly, the current practice of charging each department and agency with control of such consensual monitoring by its agents will continue. Each department and agency head shall assure the adoption or the continuation of agency rules on this subject. Such rules shall also provide for the expeditious, oral authorization of such monitoring where necessitated by exigent circumstances.

6166.21 Telephone Consensual

A. Definition. A consensual telephone conversation is one which is being intercepted or monitored with the prior permission or consent of at least one of the parties engaged in the conversation.

B. Authorization. Prior authority from DEA Headquarters is not required for the monitoring and recording of consensual telephone conversations.

C. Recording and Reporting. The separate reporting of monitored consensual telephone conversations is not required; however, the monitoring and recording of all consensual telephone conversations will be reported in the appropriate reports of investigation or informant statements.

Recordings will be made of all consensual telephone interceptions when technically possible.

Thus the DEA has, in response to the Attorney General's Memorandum, adopted regulations. Those regulations do not require, and the Memorandum of the Attorney General does not require that they require, advance approval of the monitoring and recording of telephone conversations with the consent of one party. DEA has not violated either its own regulations or the Memorandum. The DEA is itself an agency in the ...