U.S. v. Tavarez, No. 94-6048
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before TACHA and KELLY; TACHA |
| Citation | 40 F.3d 1136 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Balbino DeJesus TAVAREZ, a/k/a Munchie, Defendant-Appellant. |
| Docket Number | No. 94-6048 |
| Decision Date | 22 November 1994 |
Page 1136
v.
Balbino DeJesus TAVAREZ, a/k/a Munchie, Defendant-Appellant.
Tenth Circuit.
Page 1137
Joseph Luis Ruffin, Oklahoma City, OK, for defendant-appellant.
Vicki Miles-LaGrange, U.S. Atty., and Frank Michael Ringer, Asst. U.S. Atty., Oklahoma City, OK, for plaintiff-appellee.
Before TACHA and KELLY, Circuit Judges, and VRATIL, * District Judge.
TACHA, Circuit Judge.
I. Background
On June 2, 1993, defendant Balbino DeJesus Tavarez (a.k.a. "Munchie") was indicted for one count of conspiracy to possess with intent to distribute methamphetamine and cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The government's only evidence against defendant consisted of taped telephone conversations between defendant and several codefendants. This evidence was obtained by a court-ordered wiretap of a codefendant's telephone. After the district court denied defendant's motion to suppress the wiretap evidence, defendant pleaded guilty to conspiracy. Defendant reserved his right to appeal the denial of the motion to suppress evidence, and this appeal followed. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm.
II. Discussion
Defendant contends that both the Application for Order Authorizing the Interception of Wire Communications (the "application") and the Order Authorizing the Interception of Wire Communications (the "order") were facially invalid and that all evidence obtained pursuant to the order should be suppressed. Defendant alleges two infirmities with the application and order: (1) the application was requested by a district attorney who lacked jurisdiction to do so; and (2) both the application and order were deficient in their descriptions of the locations of the wiretaps.
The order was obtained pursuant to the Oklahoma Security of Communications Act (the "Oklahoma Act"), Okla.Stat.Ann. tit. 13, Secs. 176.1 through .14 (West 1994). The federal wiretap statute, 18 U.S.C. Sec. 2516(2), requires federal courts to defer to state law "on the question of the validity of [a] wiretap order obtained in state court under state law." United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc). We review a district court's determination of state law de novo. Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 495 (10th Cir.1992) (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)).
A. Authority of District Attorney McCoy to Apply for Order
Defendant first contends that the application and order were invalid because the district attorney who applied for the wiretap order lacked jurisdiction to do so. Because an order must conform to all provisions of the Oklahoma Act, an improper application results in an invalid order. See Okla.Stat.Ann. tit. 13, Sec. 176.7 (West 1994).
The Oklahoma Act establishes a two-step application process for wiretap orders. Id. First, the district attorney for the jurisdiction in which the interception will take place must file an application with the state's attorney general. The attorney general then applies for an order from the presiding judge of the Oklahoma Court of Criminal Appeals. Id.; see also Sec. 176.2(9) (defining a "judge of competent jurisdiction" as the presiding judge of the Court of Criminal Appeals). Upon the submission of an application by the attorney general, the presiding judge may issue an order "authorizing interception of wire ... communications within the territorial jurisdiction of the judicial district of the district attorney requesting the order." Sec. 176.9(C).
Page 1138
The application in the instant case sought authorization to intercept the communications from two specific telephone numbers. The application identified the same Atoka County, Oklahoma address for both telephone numbers. Atoka...
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U.S. v. Edwards, Nos. 94-5202
..." 'on the question of the validity of [a] wiretap order obtained in state court under state law.' " United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)). We review a district court's determin......
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United States v. Cano-Flores, Nos. 13–3051
...S.Ct. 376, 148 L.Ed.2d 290 (2000) ; United States v. Denman, 796 F.3d 87 100 F.3d 399, 402–03 (5th Cir.1996) ; United States v. Tavarez, 40 F.3d 1136, 1138 (10th Cir.1994).Cano–Flores points out that in United States v. Glover, 736 F.3d 509 (D.C.Cir.2013), we observed that the statute “does......
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United States v. Kazarian, 10 Cr. 895 (PGG)
...v. Ramirez, 112 F.3d 849, 852 (7th Cir. 1997); United States v. Denman, 100 F.3d 399, 402-03 (5th Cir. 1996); United States v. Tavarez, 40 F.3d 1136, 1137-38 (10th Cir. 1994) (applying Rodriguez to a "similarly worded" Oklahoma statute); United States v. Giampa, 904 F. Supp. 235, ......
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United States v. Dahda, No. 15-3236
...deemed to occur." United States v. Rodriguez , 968 F.2d 130, 136 (2d Cir. 1992).We addressed that issue in United States v. Tavarez , 40 F.3d 1136 (10th Cir. 1994). There we interpreted an Oklahoma counterpart to Title III, holding that interception occurs both where the tapped telepho......
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U.S. v. Edwards, Nos. 94-5202
..." 'on the question of the validity of [a] wiretap order obtained in state court under state law.' " United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir.1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir.1983) (en banc)). We review a district court's determin......