Anthony v. U.S., s. 80-1953
| Citation | 667 F.2d 870 |
| Decision Date | 05 February 1982 |
| Docket Number | 81-2020,Nos. 80-1953,s. 80-1953 |
| Parties | Jack Holland ANTHONY, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee. Jack Holland ANTHONY, Defendant, v. UNITED STATES of America, Plaintiff-Appellee, v. Vernon V. SISNEY, Intervenor-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Michael E. Tigar, Washington, D. C., (John J. Privitera, Washington, D. C., with him on the brief), of Tigar, Buffone & Doyle, Washington, D. C. (Steven W. Taylor of Gotcher, Gotcher & Taylor, McAlester, Okl., with him on the brief), for Jack Holland Anthony.
John R. Osgood, Asst. U. S. Atty., Oklahoma City, Okl. (David L. Russell, U. S. Atty., Oklahoma City, Okl., with him on the brief), for United States of America.
Andrew M. Coats of Crowe & Dunlevy, Oklahoma City, Okl., for Vernon V. Sisney.
Before BARRETT, DOYLE and LOGAN, Circuit Judges.
These are consolidated appeals. Jack Holland Anthony appeals from his conviction under 18 U.S.C.A. § 2511(1)(a), unlawful interception of wire communications. Dr. Vernon V. Sisney appeals from the District Court's order denying him standing to oppose Anthony's motion for discovery in aid of Anthony's motion for new trial and order requiring discovery of certain tapes which were the product of Anthony's unlawful interception of wire communications.
Anthony was charged with illegally wiretapping the telephones of Dr. Richard Sternlof, Dr. Vernon V. Sisney and Dr. Jerry Lucas. Trial was had before a jury in the United States District Court for the Western District of Oklahoma. The jury convicted Anthony of illegally tapping Dr. Sternlof's phone. However, the jury was unable to reach a verdict on the remaining charges involving the tapping of Dr. Sisney's and Dr. Lucas' phones.
Anthony does not challenge the sufficiency of the evidence. Thus, at the risk of oversimplifying this rather involved situation, the relevant facts are as follows.
At the time of his arrest, Anthony was a graduate student studying for a Ph.D. in psychology. In the course of his studies, Anthony came to be associated with a Dr. George Bakouras and the Bakouras Foundation. Suffice it to say that there existed a good bit of hostility between Dr. Bakouras and other psychologists in Oklahoma City, including Dr. Sternlof and Dr. Sisney.
On February 20, 1980, a Southwestern Bell Telephone Company employee discovered wiretapping equipment on a telephone pole which serviced Dr. Sternlof's home. Upon investigation, it was determined that there was no court authorization for surveillance of the Sternlof's phone. The telephone company then informed the F.B.I. of the situation.
That evening F.B.I. agents set up surveillance of the area surrounding the telephone pole. In the early morning hours of February 21, 1980 the agents observed Anthony approach the area in a 1980 Oldsmobile Cutlass. They then observed Anthony bend over a fishing tackle box containing the wiretapping device. When the agents arrested Anthony he was wearing yellow latex gloves and had a cassette tape in his possession.
A subsequent search of the automobile, pursuant to a warrant, yielded more blank cassette tapes and a CB radio with magnetic mount antenna. In addition to the search warrant for the car, a search warrant for Anthony's residence was issued on the basis of an affidavit sworn to by F.B.I. Agent Coy A. Copeland. The search of the house resulted in the seizure of a quantity of electrical and electronic equipment, blank and recorded cassette tapes, file folders bearing the names of Dr. Sternlof and Dr. Sisney, photographs of the Sternlof and Sisney homes, and various other incriminating evidence. The fruits of this search led to the discovery of taps on the phones of Dr. Sisney and Dr. Lucas.
At trial, Anthony testified in his own defense. Anthony testified that in January of 1980 he was contacted by a woman identifying herself as Carol Sherman. Ms. Sherman allegedly told Anthony that she was conducting an investigation at the request of a spouse of an opponent of the Bakouras Foundation. Ms. Sherman allegedly provided Anthony with information tending to establish a conspiracy between Dr. Sternlof and Dr. Sisney to drive Dr. Bakouras out of business. Ms. Sherman enlisted Anthony's help in conducting her investigation. Anthony claims that he believed that the wiretapping activity was being conducted with the consent of the spouse of one of the subscribers to the intercepted lines. He claimed that on the night of his arrest Ms. Sherman was with him in the car but that in the confusion surrounding the arrest she slipped away unnoticed. The defense contended that it was unable to locate Ms. Sherman to testify at the trial.
Although there were numerous motions and memoranda filed in this case, we are primarily concerned in Anthony's direct appeal with a motion to suppress the evidence gathered from the search of Anthony's residence and a motion for a new trial based upon governmental misconduct. Both motions were denied by the trial court. Dr. Sisney's appeal stems from Anthony's post-trial motions for a new trial on the basis of newly discovered evidence and for discovery of certain tapes, including tapes of conversations intercepted from the Sisney household (hereinafter referred to as the Sisney tapes). These motions were made while Anthony's direct appeal was pending in this court. In response to Anthony's motion for discovery of the tapes, Dr. Sisney filed a motion to intervene for the purposes of opposing Anthony's discovery motion and to move to suppress the contents of the tapes obtained by the tap on his phone. The trial court denied Sisney's motion and granted Anthony's motion for discovery to the extent of an in camera review of the tapes by defense counsel for the limited purposes of presenting evidence on the motion for new trial. This court stayed the trial court's order pending this appeal by Dr. Sisney.
In Anthony's direct appeal from his conviction, he presents four contentions of error involving (1) the sufficiency of the affidavit for the search warrant authorizing the search of Anthony's residence; (2) the propriety of the trial court's action in denying his motion for a new trial based upon governmental misconduct; (3) the effect of certain jury instructions; and (4) the application of the Jencks Act.
In the Sisney appeal, two issues are presented. First we must decide whether or not the trial court erred in finding that Sisney did not have standing to oppose Anthony's discovery motion, and second, whether the trial court's order granting Anthony limited discovery of the tapes was error.
We affirm Anthony's conviction for unlawful interception of wire communications in violation of 18 U.S.C.A. § 2511(1)(a). We reverse the trial court's order granting discovery of the Sisney tapes.
Anthony alleges that the trial court erred in finding that the affidavit supporting the search warrant issued for the search of his residence contained sufficient information to establish probable cause to believe that evidence of illegal wiretapping would be found there.
The affidavit executed by F.B.I. Agent Copeland basically set forth the circumstances leading up to Anthony's arrest and recited that Anthony's address was listed on a car rental agreement for the Oldsmobile, that upon being booked Anthony gave the same address and that Agent Copeland had personally observed the residence which he described. The affidavit also described the device used to intercept communications from the Sternlof phone. Based upon these facts, Agent Copeland stated that he had reason to believe that proofs of purchases of electronic equipment and other evidence in the form of electronic equipment were being concealed at the Anthony residence.
Our review of the sufficiency of an affidavit for a search warrant is limited and we will give deference to the issuing magistrate's determination of probable cause. United States v. Rahn, 511 F.2d 290 (10th Cir. 1975), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975). In determining whether or not probable cause exists to believe that evidence of a crime will be found at the place to be searched, the magistrate is entitled to rely upon practical considerations of everyday life. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
From the description in the affidavit of the recording device, 1 it was not unreasonable for the magistrate to assume that this device had to be assembled. Taking this assumption one step further, it was reasonable to assume that Anthony might have assembled the device at his residence. United States v. Melvin, 596 F.2d 492 (1st Cir. 1979), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979); United States v. McCann, 465 F.2d 147 (5th Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154 (1973). The following language from United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970) appropriately embodies this principle:
The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect's opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.
430 F.2d at p. 1055. Quoted with approval in United States v. Rahn, supra.
Anthony contends that because nobody directly observed any evidence of the crime at his residence and because he had no opportunity to conceal evidence there after his arrest, it was unreasonable to assume that evidence of the crime would be found at his home. However, as we noted in United States v. Rahn, ...
To continue reading
Request your trial
-
Williams v. Poulos
...extend this impeachment exception to civil actions brought under Title III. See, e.g., Wuliger, 981 F.2d at 1506; Anthony v. United States, 667 F.2d 870, 879 (10th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982). In so doing, these courts, have taken note of (......
-
U.S. v. Dorfman
...n.30, 56 L.Ed.2d 168) (1978)). While a non-party may be able to prevent disclosure of intercepted conversations, see Anthony v. United States, 667 F.2d 870 (10th Cir. 1981); 18 U.S.C. §§ 2215, 2517, a question we do not now decide, he cannot prevent the admission of intercepted conversation......
-
U.S. v. Greene
...motions, separately subject to Rule 33's time limits. See, United States v. Hall, 854 F.2d 1269 (11th Cir.1988); Anthony v. United States, 667 F.2d 870 (10th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982); United States v. Newman, 456 F.2d 668 (3rd For exampl......
-
Guerra v. State
...the existence of probable cause, a magistrate is entitled to rely upon practical considerations of everyday life. Anthony v. United States, 667 F.2d 870, 874 (10th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2959, 73 L.Ed.2d 1350 (1982). In the case at hand, of course, the practical i......