978 F.2d 171 (5th Cir. 1992), 91-5077, United States v. Smith

Docket Nº:91-5077.
Citation:978 F.2d 171
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Lee SMITH, Defendant-Appellant.
Case Date:November 12, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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978 F.2d 171 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,


David Lee SMITH, Defendant-Appellant.

No. 91-5077.

United States Court of Appeals, Fifth Circuit

November 12, 1992

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[Copyrighted Material Omitted]

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Bruce N. Smith, Beaumont, Tex. (court-appointed), for defendant-appellant.

Louis Guirola, Jr., Kerry M. Klintworth, Asst. U.S. Attys., Bob Wortham, U.S. Atty., Beaumont, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, and JOHNSON and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

David Lee Smith was convicted by a jury on five counts arising out of his drug trafficking activities. Smith raises two issues on appeal. First, he contends that all of the evidence against him was discovered as a direct result of the interception of his conversations over a cordless telephone. Smith argues that the interception of his conversations violated both Title III of the Omnibus Crime and Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2521, and the Fourth Amendment. Second, Smith argues that the evidence was insufficient to sustain his conviction on the charge that he used and carried a firearm during and in relation to a drug trafficking crime. This Court disagrees with all of Smith's arguments and affirms his conviction on all counts.


David Lee Smith and Michael Varing were next-door neighbors. Varing had reason to believe that Smith was involved in some recent break-ins at Varing's house. Varing had witnessed Smith using a cordless telephone, and one of Varing's co-workers suggested that Varing eavesdrop on Smith's calls using a Bearcat scanner. 1 Varing did not overhear anything connecting Smith to the recent burglaries, instead he discovered that his neighbor was a drug dealer.

Varing contacted a friend in the Port Arthur police department and told him that Smith was trafficking in cocaine. Varing was "instructed" by the Port Arthur police to tape record Smith's calls, and the police provided Varing with some blank cassette tapes. On one occasion, members of the Port Arthur police department were present and assisted in intercepting and recording Smith's phone calls. The intercepted calls and the tape recordings made by Varing eventually led to the arrest of Smith

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and four other defendants on drug-trafficking charges.

Immediately after his arrest, Smith signed a consent form authorizing officers to search his residence. The search uncovered crack cocaine, drug paraphernalia, customer lists, and a loaded .38 calibre revolver.

Smith was convicted of one count of conspiracy to distribute cocaine, one count of using or carrying a firearm during or in relation to a drug trafficking crime, and three counts of using a telephone to cause or facilitate a drug felony. Smith appeals his conviction on all counts by raising two arguments. First, Smith argues that the interception of his cordless telephone conversations violated both Title III and the Fourth Amendment. Therefore, Smith contends that all evidence discovered as a result of these intercepted conversations should have been excluded by the trial court. Second, Smith argues that the evidence was insufficient to sustain his conviction on the firearms charge. Because Smith's second argument can be disposed of so easily, we will examine these issues in reverse order.


  1. The Firearms Charge

    Smith contends that the evidence was insufficient to sustain his conviction on the charge that he used and carried a firearm during and in relation to a drug trafficking crime. When evaluating the sufficiency of evidence on appeal, this Court considers the evidence in the light most favorable to the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The standard is whether, given the evidence presented at trial, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Ivy, 929 F.2d 147 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 234, 116 L.Ed.2d 191 (1991).

    The jury found Smith was guilty of violating 18 U.S.C. § 924(c)(1). This code section provides in pertinent part that

    [w]hoever, during and in relation to any crime of violence or drug trafficking crime ..., uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....

    Smith argues that there was no evidence that he ever used or carried the handgun discovered at his residence. Such proof, however, is not required by § 924(c)(1). This Court has held that possession of a gun is sufficient to satisfy the statute's "use" requirement if possession is an integral part of the felony. United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.1988). In Robinson, where several loaded guns were found in the defendant's residence along with money, drugs, and drug paraphernalia, this Court held that there was sufficient evidence for the jury to conclude that the guns were an integral part of the drug trafficking because they safeguarded the defendant's operation. Id. Smith's case is indistinguishable. Just as in Robinson, the police search of Smith's residence discovered crack cocaine, a large amount of cash, and various drug paraphernalia, in addition to the loaded handgun.

    From these facts, a jury could have reasonably concluded that the gun was used to safeguard and facilitate Smith's drug transactions. Thus, the evidence was sufficient to sustain Smith's conviction on the firearms charge.

  2. Smith's Cordless Telephone Conversations

    Finding no error in Smith's firearms conviction, we now turn to the more difficult question: whether all of the evidence against him must be excluded because it was a direct result of the warrantless interception of Smith's conversations over a cordless telephone.

    1. Title III

    Smith first argues that, under Title III, his conversations over the cordless phone were inadmissible as evidence and that, as such, the trial judge should have

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    suppressed the tapes and all of the evidence gained by using the tapes. The argument that Title III applies to cordless phone communications has been uniformly rejected by every court that has considered it. See, e.g., Tyler v. Berodt, 877 F.2d 705 (8th Cir.1989); State v. Howard, 235 Kan. 236, 679 P.2d 197 (1984); State v. Delaurier, 488 A.2d 688 (R.I.1985); State v. Smith, 149 Wis.2d 89, 438 N.W.2d 571 (1989). This Court sees no reason to buck that trend.

    Title III essentially prohibits the nonconsensual interception of "wire," "oral," and "electronic" communication without prior judicial approval. See 18 U.S.C. § 2516-2518. The statute prohibits an individual from willfully intercepting or attempting to intercept wire, oral, or electronic communications and from willfully disclosing or using the contents of such communications obtained in violation of Title III. 18 U.S.C. § 2511(1). Violators are subject to criminal prosecution and may even be liable for monetary damages to the party whose communications were intercepted. 18 U.S.C. §§ 2511(1)(b), 2520.

    More important for our purposes, Title III includes an exclusionary rule; illegally intercepted communications may not be introduced as evidence in any trial or hearing. 18 U.S.C. § 2515. Of course, this exclusionary rule only applies to communication that is "wire," 2 "oral," 3 or "electronic" 4 as defined in the statute. Although Title III expressly excludes cordless telephone transmissions from the definitions of "wire" and "electronic" communication, Smith argues that his conversations are nonetheless entitled to Title III protection because they fit within the definition of "oral communications." Such an interpretation is out of step with both the plain language of Title III and with its legislative history.

    By its own terms, Title III limits the definition of oral communication to "any oral communication uttered by a person." 18 U.S.C. § 2510(2). In this case, it was not Smith's actual utterances that were overheard and recorded by the Varings; it was a radio signal produced by Smith's cordless phone that was intercepted, and it was a reconstruction 5 of the conversation produced by the Bearcat scanner that was tape recorded. Thus, by the plain terms of the statute, Smith's cordless telephone conversations do not fit within the terms of "oral communication."

    Lest one think this interpretation is too restrictive, we note that it is fully supported by the legislative history of the 1986 amendments to Title III. 6 The Senate Report on the 1986 amendments explained...

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