United States v. Cox

Decision Date05 June 1972
Docket Number71-1167.,71-1135,71-1139,No. 71-1108,71-1108
PartiesUNITED STATES of America, Appellee, v. Eddie David COX, Appellant. UNITED STATES of America, Appellee, v. Carl Edward BRANCH, Appellant. UNITED STATES of America, Appellee, v. Edward Courtland MILLER, Appellant. UNITED STATES of America, Appellee, v. James Phillip DEARBORN, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit


Robert G. Duncan, Kansas City, Mo., for appellants, Cox, Branch and Miller.

James R. Wyrsch, Kansas City, Mo., for appellant, Dearborn.

Anthony P. Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Chief Judge, and LAY and ROSS, Circuit Judges.

Rehearing and Rehearing En Banc Denied July 19, 1972.

MATTHES, Chief Judge.

Appellants Cox, Branch and Miller are three of the 17 persons named in a thirty-count indictment which resulted from uncovering in Kansas City, Missouri, a large narcotics ring.1 The three above-named appellants were jointly tried, and in separate verdicts, were found guilty as charged in Count I of the indictment. This count alleged a conspiracy by all 17 defendants, and other persons not named as defendants, to violate 21 U.S.C. §§ 173 and 174, which proscribe trafficking in a narcotic drug knowing it to have been illegally imported.2

The charges against appellant Dearborn were severed for trial. He pleaded nolo contendere to Count I and was convicted in a separate trial of two substantive counts: possessing heroin in violation of 18 U.S.C. § 2 and 26 U.S.C. § 4704(a) Count XX; and receiving, concealing, and facilitating the transportation and concealment of heroin knowing that the drug had been illegally imported, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 173 and 174 Count XXI.

Appellant Cox was sentenced to imprisonment for 15 years, Branch for 12 years and Miller for 17 years. Appellant Dearborn was sentenced to concurrent terms of 20 years on Counts I and XXI and a consecutive 5 year term on Count XX.

Cox, Branch and Miller each had individual representation by counsel in their joint trial. Dearborn also had individual representation at his separate trial. Each of the four appellants filed a separate notice of appeal. The appeals were consolidated in this court for the purposes of argument and opinion. Appellants Cox, Branch and Miller are represented by the same attorneys in this court and a joint brief has been filed on their behalf. Appellant Dearborn is represented by another attorney who has filed two briefs in Dearborn's behalf.

Cox, Branch and Miller in their brief rely upon five points for reversal: (1) insufficiency of the evidence to show they possessed heroin, or alternatively, insufficient evidence to prove that the heroin possessed was illegally imported or that they had knowledge of its illegal importation; (2) the alleged unconstitutionality of the presumption of knowledge of illegal importation of heroin arising from possession of it; (3) error in the admission of evidence of certain sales of narcotics by other persons; (4) error in the instructions relating to the conspiracy to violate 21 U.S.C. § 174; and (5) error in refusing to sever some of the conspiracy charges, the contention being that two or more separate conspiracies existed.

Appellant Dearborn in his initial brief also challenged the constitutionality of the presumption in 21 U.S.C. § 174 and the sufficiency of the evidence of his possession, and knowledge of the illegal imporation, of heroin. Additionally, his brief contested: (1) the sufficiency of the evidence, as to the charge under 26 U.S.C. § 4704(a), to prove the heroin he possessed was not in a stamped package; (2) the admission into evidence of narcotics paraphernalia seized from his possession; (3) the failure of Judge Hunter, the trial judge, to recuse himself when Dearborn allegedly proved the judge had prejudged Dearborn's case; (4) the validity of the search of Dearborn's home based upon the "poisonous tree" doctrine and the allegedly illegal execution of the warrant; and (5) the constitutionality of the wiretapping provisions of the Omnibus Crime Control Act of 1968, 18 U.S.C. § 2510 et seq., upon which all the evidence against Dearborn ultimately rests.3

Dearborn also filed a supplemental brief asserting all the wiretap evidence should have been suppressed: (1) because the government failed to "minimi-mize" the interceptions of telephone conversations; and (2) because the requirements of the statute relating to authorization of an application for the wire interception order were not followed.

Shortly prior to the arguments in these appeals, appellants Cox, Branch and Miller moved this court in the alternative either to remand their cases to the District Court for hearing to determine whether the statutory procedures for authorization of the wiretap were followed, or to decide that issue upon the affidavits presented in this court. At oral argument the attorney for appellants Cox, Branch and Miller was granted leave, without objection by the government, to join with Dearborn's counsel in presenting the validity of the authorization procedures. Similarly, because the wiretap was the source of most if not all, of the evidence against Cox, Branch and Miller, and since the constitutionality of that same wiretap was raised in this appeal by Dearborn, the Court, in an attempt to avoid collateral proceedings, has on its own initiative elected to consider the issue of the constitutionality of 18 U.S.C. § 2510 et seq., as applying to their cases as well as to Dearborn's. Therefore, the questions of authorization for, minimization of, and constitutionality of, the wiretap apply equally to all four appellants; and, inasmuch as the wiretap was the source of these convictions, we turn at the outset to those three contentions. In doing so we need not detail the substance of the conversations heard. It is sufficient to note there were introduced into evidence a number of recorded conversations which were selected from the ninety reels of taped conversations overheard via a wiretap on the telephone of Eugene Richardson, the alleged ringleader of the conspiracy.

I. The Wiretap Authorization

We turn initially to appellants' contention that the government, in seeking judicial authorization for the wiretap, failed to conform to the procedural requirements of the Crime Control Act. Specifically, the contention is that, as in United States v. Robinson, No. 71-1058 (5th Cir., Jan. 12, 1972); United States v. Aquino, 338 F.Supp. 1080 (E.D.Mich. 1972);4 and United States v. Cihal, 336 F.Supp. 261 (W.D.Pa.1972), the authorization to apply for the wiretap warrant was issued not by the Attorney General or an Assistant Attorney General, as required by 18 U.S.C. § 2516(1), but by their assistants. That statute provides in pertinent part:

"The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which application is made. . . ."

In Robinson, Cihal and Aquino, each court was presented affidavits from the participants showing the Justice Department's procedure in those cases involved neither former Attorney General John Mitchell nor former Assistant Attorney General Will Wilson. Instead, General Mitchell's Executive Assistant, Sol Lindenbaum, designated Wilson to authorize the application and Deputy Assistant Attorney General now Assistant Attorney General Henry Peterson sent the letter of authorization signing Wilson's name thereto. Finding legislative history evidencing a congressional intention to affix upon the publicly visible officers named in the statute the responsibility to consider whether a wiretap was warranted in each particular case, and finding that neither of the statutorily named officers ever scrutinized the application as required, those courts held that procedure vitiated the wiretap order and the evidence procured by it.

The present case, however, is factually distinguishable from those cases. Here, Peterson's affidavit5 demonstrates that the application from the Bureau of Narcotics was first considered by an attorney in the Organized Crime and Racketeering Section of the Criminal Division of the Justice Department for "strict adherence to the required statutory, judicial and Constitutional standards." That attorney then forwarded his favorable recommendation to the Deputy Chief of the Section, who commended the application to Peterson. Peterson "examined the file and forwarded it to the Office of the Attorney General with a detailed recommendation that the authorization be granted." As Lindenbaum's affidavit6 and General Mitchell's personally initialed memorandum7 show, the Attorney General then considered the application and sent a memorandum to Mr. Wilson reciting "Pursuant to the powers conferred on me by Section 2516 of Title 18, United States Code, you are hereby specially designated to authorize Calvin K. Hamilton8 to make the above described application." Mr. Peterson thereupon sent Mr. Hamilton a letter of authorization to seek the wiretap order, signing Mr. Wilson's name.

The foregoing demonstrates that, like the authorization to apply for the wireered in United States v. Pisacano, 459 F.2d 259 (2nd Cir., 1972); United States v. Aquino, 338 F.Supp. at 1081; United States v. Cihal, 336 F.Supp. at 264-265; and United States v. LaGorga, 336 F. Supp. 190, 194-195 (W.D.Pa.1971), the present case differs from the Robinson situation in a very essential way: in Robinson the authorization was...

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