U.S. v. DeJesus
| Citation | 752 F.2d 640 |
| Decision Date | 15 January 1985 |
| Docket Number | Nos. 84-1473,s. 84-1473 |
| Parties | UNITED STATES of America, Appellee, v. Edward DeJESUS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Veronica DeJESUS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Claudius SMITH, Defendant, Appellant. UNITED STATES of America, Appellee, v. Faye HULLUM, Defendant, Appellant. UNITED STATES of America, Appellee, v. Franklin A. SHEARER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mattie LEDBETTER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Charles ROMANO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Grady HAYNES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ricardo TORRES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lanier GRIFFIN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jessie WOODBURY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Rhonda WASHINGTON, a/k/a Rhonda Smith, Defendant, Appellant. UNITED STATES of America, Appellee, v. Kathy AMADO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Clarence VARISTE, Defendant, Appellant. to 84-1481, 84-1483, 84-1484 and 84-1486 to 84-1488. |
| Court | U.S. Court of Appeals — First Circuit |
Andrew Good, Boston, Mass., and Domenick J. Porco, New York City, for defendants, appellants.
John F. Cicilline, Providence, R.I., for Edward DeJesus.
John Bonistalli, Boston, Mass., for Veronica DeJesus.
Walter B. Prince, Boston, Mass., for Claudius Smith.
Richard D. Glovsky, Boston, Mass., for Faye Hullum.
William P. Homans, Jr., Boston, Mass., for Franklin A. Shearer.
Michael J. Liston and Palmer & Dodge, Boston, Mass., for Mattie Ledbetter.
Domenick J. Porco, New York City, for Charles Romano.
Paul J. O'Rourke, Boston, Mass., for Grady Haynes.
Brian T. Callahan, Medford, Mass., for Ricardo Torres.
Andrew Good, Boston, Mass., by appointment of the Court, for Lanier Griffin.
David P. Twomey and Dwyer & Murray, Boston, Mass., by appointment of the Court, for Jessie Woodbury.
Willie J. Davis, Boston, Mass., for Rhonda Washington, a/k/a Rhonda Smith.
Alan D. Rose and Nutter, McLennan & Fish, Boston, Mass., for Kathy Amado.
William Shaw McDermott and McDermott & Rizzo, Boston, Mass., for Clarence Variste.
Tobin N. Harvey, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Paula J. DeGiacomo, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Chief, Asst. Atty. Gen., Crim. Bureau, Barbara A.H. Smith, Chief, Asst. Atty. Gen., Crim. Appellate Div., Boston, Mass., for appellee, Amicus Curiae.
Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.
In the en banc decision entered on January 17, 1984, we remanded this case to the district court to determine only "the existence and extent of authorizations" by the district attorney for certain wiretap renewals and amendments. United States v. Smith, 726 F.2d 852, 859-60 (1st Cir.1984). After a hearing on remand, the district court concluded "that all wiretaps in this case were properly authorized as to all defendants." 587 F.Supp. 653.
Defendants-appellants now argue on appeal that Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975), mandates reversal of the district court's judgment upholding use of the wiretap evidence. They claim that Vitello requires the district attorney to give contemporaneous written authorization for all wiretap renewal and amendment applications. Since the district court based its findings of actual authorization only on post hoc testimonial evidence, appellants contend that the wiretap evidence must be suppressed.
Appellants belatedly raised this claim for the first time at the en banc oral argument. Without the benefit of briefing on the issue, we concluded that Massachusetts law requires proof of actual authorization and remanded the case to the district court for such proof. We had in mind only that the court conduct an individualized inquiry into the existence of actual authorization for the wiretap renewals and amendments. Although we indicated that the presence of documentation would be conclusive on this point, we did not state that a writing was essential to prove adequate authorization. The district court conducted the inquiry we requested and we, therefore, affirm the judgment below.
We do not suggest by our decision that Massachusetts allows post hoc testimonial evidence to prove authorization for wiretap renewal and amendment applications. We simply note that in the en banc decision of this case, we stated that actual authorization, regardless of form, was necessary. Based on this earlier decision, we refuse to reconsider the merits of appellants' authorization claim. Although the analysis has been focused and refined since the en banc argument, we believe our earlier decision stands as law of the case and, as such, became binding precedent in successive stages of the litigation. See Arizona v. California, 460 U.S. 605, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). Law of the case is not a jurisdictional bar to reconsideration of the issue before us, but the policies underlying the rule militate for its application in this proceeding.
White v. Murtha, 377 F.2d 428, 431-432 (5th Cir.1967) (citations omitted).
Law of the case may properly be invoked in any matter, civil or criminal, where, as here, the arguments advanced by appellants on...
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