U.S. v. Smart, No. 00-6458.

• Decision Date: 29 January 2002
• Docket Number: No. 00-6458.
• Citation: 278 F.3d 1168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Robert SMART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1168

278 F.3d 1168

UNITED STATES of America, Plaintiff-Appellee, v. James Robert SMART, Defendant-Appellant.

No. 00-6458.

United States Court of Appeals, Tenth Circuit.

January 29, 2002.

Submitted on the briefs.^*

Daniel G. Webber, Jr., United States Attorney, Arlene Joplin, Assistant United States Attorney, and Jerome A. Holmes, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Burck Bailey and Warren F. Bickford of Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, Oklahoma, for Defendant-Appellant.

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and ROGERS,^** District Judge.

BRORBY, Senior Circuit Judge.

A jury convicted James Robert Smart of bribing a government official in violation of 18 U.S.C. § 666(a)(2). Federal agents developed significant evidence used against Mr. Smart during the trial through the use of wiretaps allowing agents to hear and record Mr. Smart's telephone conversations. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. §§ 2510-2522 (1994 & Supp.2000), requires federal agents seeking a wiretap authorization to obtain approval first from the Attorney General, or a designated Assistant Attorney General, and then in turn from a federal judge of competent jurisdiction. United States v. Castillo-Garcia, 117 F.3d 1179, 1184-85 (10th Cir.), cert. denied, 522 U.S. 962, 974, 118 S.Ct. 395, 428, 139 L.Ed.2d 309, 328 (1997). Moreover, agents may only obtain authorization to investigate certain serious offenses enumerated by statute. 18 U.S.C. § 2516. Mr. Smart asserts on appeal that during this wiretap authorization procedure, investigating authorities and two federal judges made references to offenses not enumerated in the statute, thereby rendering the authorization and recordings illegal. Mr. Smart concludes he is entitled to a new trial because the illegally obtained telephone recordings should have been suppressed by the district court. Because we conclude the wiretap authorizations were legal, we affirm the district court's ruling.

BACKGROUND

In the late 1990s an extensive federal investigation focused on the activities of Brent Eugene VanMeter, an Oklahoma State Department of Health official responsible for the oversight of nursing homes throughout Oklahoma. Using a variety of conventional investigation techniques, federal agents came to suspect several illegal schemes designed to make money through defrauding the government and nursing home patients. Hoping to flush out the extent of these illegal activities, investigators sought permission to intercept the suspects' telephone conversations.

On March 9, 2000, investigators obtained a memorandum from an Assistant Attorney General allowing them to seek a court order authorizing interception of wire communications for thirty days in order to investigate possible violations of seven federal offenses. Five of these offenses are clearly enumerated as subject to investigation by wiretap.¹ 18 U.S.C. § 2516(1)(c). However, the United States Code sections involving two of the seven offenses are not specifically mentioned in 18 U.S.C. § 2516. These two offenses are 18 U.S.C. § 371 (conspiracy to violate the laws of the United States) and 42 U.S.C. § 1320a-7b (fraud relating to federal health care programs). 42 U.S.C. § 1320a-7b is clearly not an offense enumerated in 18 U.S.C. § 2516. However, § 2516 does state that a federal judge may authorize interception of wire communications "when such interception may or has provided evidence of... any conspiracy to commit any offense described in any subparagraph of this paragraph," thereby arguably extending to 18 U.S.C. § 371. 18 U.S.C. § 2516(1)(p) (emphasis added).²

The next day, a Department of Justice official submitted an application for authorization to intercept wire communications to a United States district court judge. In two places this application incorrectly characterized all seven of the suspected offenses as enumerated in 18 U.S.C. § 2516(1)(c).³ Later that day, the district court issued an order authorizing federal agents to proceed with the wiretaps. Using language closely tracking the application, the district court's findings also incorrectly characterized all seven of the suspected offenses as enumerated in 18 U.S.C. § 2516(1)(c).⁴ However, in the portion of the order setting out the district court's directives, authorization to intercept wire communications was limited to only three of the seven offenses.⁵ These offenses were 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1951 (interference with commerce by threats or violence), and 18 U.S.C. § 1952 (interstate and foreign travel or transportation in aid of racketeering).

For the next thirty days, federal agents proceeded to intercept telephone calls and gather evidence against the targets of their investigation. On April 11, 2000, the Assistant Attorney General gave permission to seek a second wiretap order extending the wiretap authorization an additional thirty days. This memorandum added two additional offenses to the previous seven, referencing a total of nine possible statutory violations. The added offenses were 18 U.S.C. § 1341 (relating to mail fraud) and 18 U.S.C. § 1518 (obstruction of criminal investigation of health care offenses). Section 1341 is enumerated; however, 18 U.S.C. § 1518 is not an enumerated offense subject to wiretap investigation under federal law. 18 U.S.C. § 2516. The Department of Justice then submitted an application for an extension of time on the previous wiretap order. This application also incorrectly characterized all the suspected offenses as enumerated in 18 U.S.C. § 2516. This second application was approved by a different federal judge. The second order also incorrectly stated in the findings that all nine offenses were enumerated in 18 U.S.C. § 2516. But once again, the order authorized the use of wiretaps only for 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1951 (interference with commerce by threats or violence), and 18 U.S.C. § 1952 (interstate and foreign travel or transportation in aid of racketeering).

On April 17, 2000, federal agents intercepted a telephone call between Mr. VanMeter and Mr. Smart. During this call, Mr. Smart agreed to give Mr. VanMeter money in exchange for Mr. VanMeter's promise to falsify government records with respect to Mr. Smart's nursing home business. After the two men met, allegedly for Mr. Smart to deliver the money to Mr. VanMeter, both men were arrested. At a joint trial, Mr. Smart moved to suppress recorded telephone conversations, arguing that the wiretap orders were unlawful. The district court refused to suppress the telephone conversations. A jury convicted both men, and the district court judge sentenced each to prison terms.

DISCUSSION

On appeal, Mr. Smart argues references to non-enumerated offenses in the wiretap application materials and orders rendered those orders "invalid on their face," and "fundamentally flawed." The government counters that in referring to non-enumerated offenses "the Government was simply fulfilling its statutory duty to fully disclose to the court the nature and scope of the investigation." The district court agreed with the prosecution, explaining that "a statement of the government's belief that certain non-enumerated offenses had been committed in addition to enumerated offenses does not render invalid the subsequent orders authorizing a wiretap to investigate three enumerated offenses."

Title III of the Omnibus Crime Control and Safe Streets Act allows judges of competent jurisdiction to issue ex parte orders authorizing interception of wire communications where an application from authorized investigators shows probable cause of the commission of one or more certain enumerated offenses.

[T]he judge may enter an ex parte order... authorizing or approving interception of wire, oral, or electronic communications... if the judge determines on the basis of the facts submitted by the applicant that —

(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter....

18 U.S.C. § 2518(3). On appeal from a motion to suppress evidence obtained pursuant to such a wiretap, we accept the district court's factual findings unless clearly erroneous and review questions of law de novo. Castillo-Garcia, 117 F.3d at 1186. Because the issue of whether references to non-enumerated offenses in wiretap application materials and orders invalidates those orders is entirely one of law, we apply de novo review. Nevertheless, "a wiretap authorization order is presumed proper, and a defendant carries the burden of overcoming this presumption." United States v. Quintana, 70 F.3d 1167, 1169 (10th Cir.1995). We read applications for wiretap orders "in a practical and commonsense manner rather than hypertechnically." United States v. Johnson, 645 F.2d 865, 867 (10th Cir.), cert. denied, 454 U.S. 866, 102 S.Ct. 329, 70 L.Ed.2d 168 (1981). Mr. Smart's argument for the suppression of telephone conversations obtained through use of the March 10, 2000 and April 11, 2000 wiretap orders is best addressed in two parts. First, we consider whether the orders' inclusion of 18 U.S.C. § 371 as a predicate for the wiretaps constituted an unlawful authorization to investigate a general conspiracy. Second, we discuss whether references in wiretap application documents and orders to non-enumerated offenses, some of which are incorrectly characterized as enumerated, invalidate those wiretap orders.

Initially, Mr. Smart argues the March 10, 2000 and April 11, 2000 wiretap orders unlawfully "authorized an investigation into a general conspiracy." Although § 371 is not specifically mentioned on the list of offenses subject to wiretap investigation, a conspiracy to commit any of the other offenses enumerated in 18 U.S.C. § 2516(1) is a lawful...