U.S. v. Adams, s. 82-1121

• Decision Date: 07 December 1982
• Docket Number: 82-1139,Nos. 82-1121,82-1179 and 82-1180,s. 82-1121
• Citation: 694 F.2d 200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Helga Marie ADAMS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Masaru SHINGAKI, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jeni MUMMERT, aka Jeni Proctor, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Raymond James PROCTOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 200

694 F.2d 200

UNITED STATES of America, Plaintiff-Appellee, v. Helga Marie ADAMS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Masaru SHINGAKI, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jeni MUMMERT, aka Jeni Proctor, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Raymond James PROCTOR, Defendant-Appellant.

Nos. 82-1121, 82-1139, 82-1179 and 82-1180.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 4, 1982.

Decided Dec. 7, 1982.

Paul A. Tomar, Honolulu, Hawaii, for Adams.

No appearance for Shingaki.

Pamela J. Berman, Honolulu, Hawaii, for Mummert.

Earle A. Partington, Honolulu, Hawaii, for Proctor.

Kathleen A. Felton, Washington, D.C., for U.S.

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

Before CHOY, SNEED and FARRIS, Circuit Judges.

CHOY, Circuit Judge:

Appellants Adams, Shingaki, Mummert, and Proctor were convicted on various counts relating to receiving, shipping, and distributing obscene print media involving minors. All four appellants challenge their convictions on the ground that the district court improperly failed to suppress evidence obtained through a joint federal-state wiretap. Appellants Proctor, Shingaki, and Mummert also claim that the district court's failure to dismiss certain counts of the indictments against them violated the Speedy Trial Act. In addition, appellant Proctor contends that there was insufficient evidence to sustain a conviction against him on one of the counts. Finally, appellants Proctor and Mummert contest their sentences on the ground that the district court improperly refused to strike the testimony of a Government witness at the sentencing hearing or, alternatively, to recall the witness for cross-examination. We affirm the convictions and sentences of all appellants.

I. Wiretap Evidence

The evidence presented at trial included videotapes of meetings and tape recordings of telephone conversations between appellants and Darryl Cosme, a United States Customs Service agent who posed as a pornography distributor and who consented to the wiretap surveillance. Both federal and state law-enforcement officials participated in the interceptions and recordings of the meetings and conversations. Appellants concede that under 18 U.S.C. Sec. 2511(2)(c), the interceptions and recordings were lawful as consensual wiretaps. However, appellants argue that the interceptions and recordings were illegal under the law of the State of Hawaii and that, therefore, evidence obtained from these activities was not admissible in federal court.

We need not reach the issue of the legality of the interceptions and recordings under Hawaii law, for this circuit has established a clear and simple rule that evidence obtained from a consensual wiretap conforming to 18 U.S.C. Sec. 2511(2)(c) is admissible in federal court proceedings without regard to state law. United States v. Hall, 543 F.2d 1229, 1234-35 (9th Cir.1976) (en banc), cert. denied, 429 U.S. 1075, 97 S.Ct. 814, 50 L.Ed.2d 793 (1977); United States v. Keen, 508 F.2d 986, 989 (9th Cir.1974), cert. denied, 421 U.S. 929, 95 S.Ct. 1655, 44 L.Ed.2d 86 (1975). ^* Since the interceptions and recordings that occurred here conformed to federal law, the district court did not err in admitting evidence obtained from these activities.

II. Speedy Trial Act

Appellants Proctor, Shingaki, and Mummert sought to dismiss five of the counts against each of them on the ground of undue delay. They invoked a provision of the Speedy Trial Act, 18 U.S.C. Sec. 3161(b). That provision mandates that any information or indictment charging an individual with the commission of an offense shall be filed within 30 days of the date of arrest in connection with that offense. Proctor, Shingaki, and Mummert were arrested by state officers on June 12, 1980. Because the investigation that led to their arrest was a joint federal-state investigation, appellants argue that the relevant time period for purposes of 18 U.S.C. Sec. 3161(b) should be deemed to run from the date of the state arrest to the date of the federal indictment.

We join a unanimous body of case law in other circuits in holding that regardless of the degree of federal involvement in a state investigation and arrest, only a federal arrest will trigger the running of the time period set forth in 18 U.S.C. Sec. 3161(b). E.g., United States v. Iaquinta, 674 F.2d 260, 264-69 (4th Cir.1982); United States v. Wilson, 657 F.2d 755, 767 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1456, 71 L.Ed.2d 667 (1982); United States v. Lai Ming Tanu, 589 F.2d 82, 88 (2d Cir.1978); United States v. Mejias, 552 F.2d 435, 441-42 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977). Proctor, Shingaki, and Mummert were arrested by federal authorities on August 7, 1981, the same day the federal indictment was filed. Since the indictment was filed before federal agents arrested appellants, the requirements of Sec. 3161(b) of the Speedy Trial Act were met and no undue delay occurred.

III. Sufficiency of Evidence

Appellant Proctor challenges the sufficiency of the evidence to support his conviction on Count XII of the indictment, shipping pornographic materials involving minors in interstate and foreign commerce and the mails, for purposes of distribution and sale, in violation of 18 U.S.C. Sec. 2252(a)(1). Contrary to Proctor's assertions, the conviction was not...