U.S. v. McNulty, s. 81-2116

• Decision Date: 03 March 1983
• Docket Number: Nos. 81-2116,s. 81-2116
• Citation: 729 F.2d 1243
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Guy Mickey McNULTY, George O'Brien, Theodore Tulper, Donald Staadts, James Nestoff and Dennis Valley, Defendants-Appellees. to 81-2119, 81-2130 and 81-2131.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1243

729 F.2d 1243

UNITED STATES of America, Plaintiff-Appellant, v. Guy Mickey McNULTY, George O'Brien, Theodore Tulper, Donald

Staadts, James Nestoff and Dennis Valley,

Defendants-Appellees.

Nos. 81-2116 to 81-2119, 81-2130 and 81-2131.

United States Court of Appeals,

Tenth Circuit.

March 3, 1983.

On Rehearing En Banc April 5, 1984.

Charles Torres, Asst. U.S. Atty., Denver, Colo. (Joseph Dolan, U.S. Atty., Robert Gay Guthrie, Asst. U.S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellant.

Michael G. Katz, Federal Public Defender, Denver, Colo., for defendant-appellee McNulty.

Gary Lozow, Denver, Colo., for defendant-appellee O'Brien.

Isaac H. Kaiser, Denver, Colo., for defendant-appellee Nestoff.

Scott H. Robinson, Gerash & Robinson, Denver, Colo. (Walter L. Gerash, Gerash & Robinson, Denver, Colo., with him on the brief), for defendant-appellee Dennis Valley.

Joseph Saint-Veltrie and Howard M. Mullen, Denver, Colo., submitted an amicus brief for Albert C. Levy.

Before DOYLE and SEYMOUR, Circuit Judges, and ANDERSON, District Judge ^*.

ALDON J. ANDERSON, District Judge.

Because I find that the wiretap order issued by Colorado District Court Judge Robert F. Kelly complied with the requirements of the Colorado wiretapping statute, as well as the federal statute, I find it unnecessary to reach the question addressed by Judge Doyle. Since the order complied with both statutes, it is not necessary to determine which statute applies in order to determine the result in this case.

The court below suppressed the evidence obtained pursuant to the state judge's wiretap order, on the grounds that the order did not comply with Colo.Rev.Stat. Sec. 16-15-102 (1978), the Colorado wiretapping statute. In essence, this statute authorizes an ex parte wiretap order if there is probable cause to believe that evidence will be obtained of the commission of any one of Of the crimes listed in the wiretap application, only professional gambling and criminal conspiracy are crimes for which a wiretap is authorized by the statute. ³ Professional gambling may be either a misdemeanor or felony offense, depending on whether the offender is classified as a "repeating The defendants and the court below have focused their attention on defendant McNulty. The affidavit accompanying the wiretap application shows he had a misdemeanor professional gambling conviction in 1979, one year before the wiretap application. Of course, in order for him to be subject to a felony penalty for professional gambling, he must be convicted of that crime within five years of the 1979 misdemeanor conviction. Though it was highly probable that McNulty, if convicted at all, would be convicted within the five year limit, Judge Kelly, in reviewing the wiretap application, could not know for certain that the time requirement would be met. Therefore, reasoned the court below, since this unknown condition subsequent must be satisfied before a "felony penalty is authorized" for the crime under investigation, the wiretap order issued by Judge Kelly did not comply with the requirement of Sec. 16-15-102(1)(b).

                several enumerated offenses.  Colo.Rev.Stat. Sec. 16-15-102(4) (1978). 1   One of the enumerated offenses is professional gambling.  Colo.Rev.Stat. Sec. 16-15-102(1)(a)(III) (1978). 2   However, the above provisions are modified by Sec. 16-15-102(1)(b), which provides that "[a]nything to the contrary notwithstanding, an ex parte order for wiretapping or eavesdropping may be issued only for a crime specified in this subsection (1) for which a felony penalty is authorized upon conviction."
                gambling offender."    Colo.Rev.Stat. Sec. 18-10-103(2) (1978).  A repeating gambling offender is "any person who is convicted of an offense under section 18-10-103(2) or sections 18-10-105 to 18-10-107 within five years after a previous misdemeanor conviction under these sections or a former statute prohibiting gambling activities, or at any time after a previous felony conviction under any of the mentioned sections."    Colo.Rev.Stat. Sec. 18-10-102(9) (1978)
                

Although I question the conclusion reached by the court below as to defendant McNulty, ⁴ it is not necessary to base my The affidavit accompanying the wiretap application includes a section entitled "Background on Principal Subjects." A biographical sketch of each of the defendants is contained in this section, including the prior criminal record of each. The prior criminal records of both defendant McNulty and defendant Valley are rather voluminous. Item (aa) under the record for Valley notes as follows:

determination of this case on McNulty's prior misdemeanor professional gambling conviction. I have discovered in the record what the parties and the court below apparently overlooked: the affidavit accompanying the wiretap application clearly shows that defendant Dennis Valley had a prior felony professional gambling conviction, which therefore makes the crime under investigation by the wiretap certainly one "for which a felony penalty is authorized upon conviction."

(aa) Denver, Colorado, April 3, 1974 arrested for gambling, gambling information, professional gambling, conspiracy, pled guilty to professional gambling and conspiracy, received five years at the Colorado State Penitentiary (sentence suspended).

Record at Vol. I, p. 126. It is clear to me, as it was to Judge Kelly, that this conviction must have been a felony professional gambling conviction. This conclusion is based on the following observations: (1) a five year sentence is definitely a felony penalty--the most severe misdemeanor penalty is two years imprisonment Colo.Rev.Stat. 18-1-106 (1978); (2) incarceration in the state penitentiary is a felony penalty--it is a forbidden penalty for a misdemeanor violation unless served concurrently with a term for conviction of a felony, id.; (3) item (v) under the prior criminal record of Valley, a misdemeanor gambling conviction in 1970, provides the prior misdemeanor gambling conviction within five years upon which the 1974 felony conviction could have been predicated; (4) the felony penalty could not have been based on the conspiracy charge alone, for the penalty for conspiracy in Colorado depends on the penalty for the underlying crime, see Colo.Rev.Stat. Sec. 18-2-201(5) (1978).

Hence, from the affidavit accompanying the wiretap application it appears that defendant Valley had a prior felony professional gambling conviction, making him a "repeating gambling offender" in any subsequent professional gambling prosecution in Colorado and subjecting him to a felony penalty upon conviction. His status certainly meets the requirements of Sec. 16-15-102(1)(b) of the wiretapping statute, if McNulty's does not.

Judge Seymour has underscored the fact that "[n]owhere did the affidavit allege that the proposed wiretap was for the investigation of a felony." Seymour, J., dissenting, p. 1262, infra (emphasis hers). However, under Colorado law it is not necessary to allege such a conclusion in the application. It is only necessary to allege sufficient facts to support the conclusion of the judge issuing the order. See, People v. Martin, 176 Colo. 322, 490 P.2d 924, 926 (Colo.1971).

Judge Seymour has also apparently concluded that the fact that the parties and the court below overlooked defendant Valley's prior felony gambling conviction somehow negates its existence. However, the neglect of the parties and the court below cannot detract from the conclusion that a state judge, familiar with state law, could (and indeed undoubtedly would) reasonably determine from the entry in the affidavit that Valley had a prior felony professional gambling conviction. Moreover, we cannot infer that Judge Kelly overlooked this important fact in the affidavit just because the parties and the court below did. It was manifestly in the defendants' interest to overlook it, and the government attorney and federal court may not be as familiar with state law as Judge Kelly, a state judge, is. Undoubtedly familiar with both the state wiretapping statute and the state gambling statutes, and knowing that a repeating gambling offender was necessary for the crimes under investigation to be punishable as felonies, he would have looked for--and found--the prior professional gambling convictions of not only Guy McNulty but also Dennis Valley.

"Our role on review of the sufficiency of a wiretap application is a limited one; it is 'not to make a de novo determination of sufficiency ... but to decide if the facts set forth in the application were minimally adequate to support the determination that was made.' " United States v. Gerardi, 586 F.2d 896, 897 (1st Cir.1978), quoting United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 55 L.Ed.2d 278 (1977). Proceeding under this principle, I must conclude that the affidavit sets forth sufficient facts to support a determination that Dennis Valley was a repeating gambling offender and thus the wiretap order was for a designated offense "for which a felony penalty is authorized."

It is not inappropriate, as Judge Seymour apparently contends, for this court to consider all the facts in the record, whether pointed out by the parties or not, in making our determination of this case. This opinion has not raised, sua sponte, a new issue before the court. The issue remains whether the wiretap order issued by Judge Kelly fully complied with the Colorado wiretapping statute. This opinion merely applies the facts before us in the record to determine that issue in accordance with the law. Judge Seymour has cited no authority in support of her contention that it is inappropriate for us to do so.

Accordingly, I conclude that the state wiretap order at issue in this case complied fully with the state wiretapping statute, and hence evidence from that wiretap is admissible in the proceedings below. Therefore, I concur in the result reached ...