U.S. v. Rose, s. 81-1140

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, DAVIS; COFFIN
• Citation: 669 F.2d 23
• Parties: UNITED STATES of America, Appellee, v. Robert ROSE, Sr., Defendant, Appellant. UNITED STATES of America, Appellee, v. James HILL, Defendant, Appellant.
• Docket Number: 81-1258,Nos. 81-1140,s. 81-1140
• Decision Date: 27 January 1982

Page 23

669 F.2d 23 UNITED STATES of America, Appellee,
v.
Robert ROSE, Sr., Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
James HILL, Defendant, Appellant. Nos. 81-1140, 81-1258. United States Court of Appeals,
First Circuit. Argued Nov. 4, 1981.
Decided Jan. 27, 1982.

Page 24

John Wall and Nancy Gertner, Boston, Mass., with whom Ronald Kovner, Washington, D. C., Cullen & Wall, Harvey A. Silverglate, and Silverglate & Gertner, Boston, Mass., were on joint brief, for defendants, appellants.

John H. LaChance, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, DAVIS, Judge, ^* BREYER, Circuit Judge.

COFFIN, Chief Judge.

Appellants James Hill and Robert Rose seek reversal of their convictions for possession with intent to distribute marijuana and for conspiring to import and distribute marijuana. 21 U.S.C. §§ 952, 955a, 960, 963; 18 U.S.C. § 2.

On October 29, 1981, an employee in the monitoring branch of the enforcement division of the Federal Communications Commission (FCC) intercepted what appeared to him to be a suspicious radio transmission. It was a point-to-point communication transmitted on the "ham" radio operator's band, but contrary to FCC regulations

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which limit that band to transmissions on land, it seemed to originate from and be sent to points off the Atlantic coast. Although the FCC confirmed within an hour that the transmission was from a marine source, the employee did not institute actions to rectify the violation of the regulations but instead continued to listen and take notes. He had concluded that the transmissions referred to contraband trafficking.

After five hours of overhearing, FCC officials turned the information accumulated through the interception over to the United States Coast Guard which, after listening further, directed one of its cutters to the location of the suspected "drop site". As the cutter approached in the dark on the night of October 30, it saw two vessels side by side, apparently transferring bales of marijuana from one to the other. Upon hearing the Coast Guard's announcement of its presence, the people on board the boats started throwing bales overboard. When the Coast Guard boarded after seeing bales on the ships, it arrested twelve Americans and ten Colombian nationals.

Two days after the arrest, the government turned one of the Colombians, Edgar Danies-Ocampo, Jr., over to the Immigration and Naturalization Service for deportation, a deportation that occurred with more haste than usual. The government pointed to Danies-Ocampo's status as a 17-year-old minor to justify its decision to drop charges and instigate deportation proceedings.

Appellants argue that the trial court should have granted their pre-trial motion for suppression of the marijuana because the interception by the FCC, its decision to turn the information obtained by interception over to the Coast Guard, and the Coast Guard's subsequent interception violated Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., the federal wiretapping statute. In addition, they appeal the trial court's denial of their motion to dismiss the indictment. They had moved to dismiss on the grounds that the government's decision to deport Danies-Ocampo without notice to appellants violated their rights to compulsory process and due process because it denied them the opportunity to interview the only individual who witnessed the events, was not indicted, and had not agreed to be a witness for the government.

In ruling on appellants' claim that the interception of the point-to-point transmissions violated Title III and therefore required suppression of the marijuana seized as a result, the threshold and, in this instance, the determinative issue is whether the communications intercepted come within the protection of the Act. Although Title III establishes extensive restrictions on the interception of communications, it applies only to those communications deemed to be either "wire" or "oral" communications. See 18 U.S.C. § 2511. Obviously not a wire communication, a point-to-point radio transmission is protected only if it falls within the definition of oral communication-"any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such exception", 18 U.S.C. § 2510(2). This definition has been interpreted to require that the speaker have a subjective expectation of privacy that is objectively reasonable. See Holman v. Central Arkansas Broadcasting Co., 610 F.2d 542, 544-45 & n.3 (8th Cir. 1979); United States v. Pui Kan Lam, 483 F.2d 1202, 1206 (2d Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978); S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Admin.News 2112, 2178.

The trial court, trying the case without a jury, found that appellants had...