United States v. Smith, 71-1480.

• Decision Date: 02 August 1972
• Docket Number: No. 71-1480.,71-1480.
• Citation: 463 F.2d 710
• Parties: UNITED STATES of America, Appellee, v. Melvin Bryan SMITH, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

463 F.2d 710 (1972)

UNITED STATES of America, Appellee, v. Melvin Bryan SMITH, Appellant.

No. 71-1480.

United States Court of Appeals, Tenth Circuit.

July 7, 1972.

Rehearing Denied August 2, 1972.

Thomas E. Joyce, Kansas City, Kan., for appellant.

Gary T. Cornwell, Special Atty., U. S. Dept. of Justice (Robert J. Roth, U. S. Atty., with him on the brief), for appellee.

Before LEWIS, Chief Judge and HOLLOWAY and BARRETT, Circuit Judges.

LEWIS, Chief Judge.

This case involves application of the wiretap provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Two issues are presented. First, under the circumstances presented is suppression required by tardy service upon petitioner of the wiretap inventory? Second, may petitioner appeal from the district court order which denied his motion?

During the last half of December 1970 petitioner, Melvin Bryan Smith, was the subject of a wiretap authorized by court order pursuant to provisions of the Omnibus Act.

The proceeding appears generally to have complied with statutory requirements. The only challenge raised in the court below¹ and in this court is the assertion that suppression is appropriate because properly formed notice or inventory of the wiretap was not served upon Smith within the required 90-day period following the completion of the wiretap.²

The record indicates that Smith was also the subject of warranted searches of residence and person which occurred during January of 1971. In conjunction with these warrants Smith was served with supporting affidavits which disclosed the location, duration and authorization of the December wiretap. Prior to expiration of the 90-day limit, Mr. Joyce, Smith's attorney, was also aware of the wiretap as shown by his motion for inspection which the court found to be premature.

On March 15, 1971, orders were entered requiring notification of Smith and six others. The marshal made several attempts to serve Smith with the required return or inventory. Attorney Joyce was notified that said attempts were proving unsuccessful but Smith's whereabouts was unknown. He was out of town and returned to his residence and was served during the first part of April; service was late by approximately 30 hours. Within the context of this wiretap proceeding and on the same day service was effected, Attorney Joyce filed Smith's motion to suppress on the sole ground of tardy notice. Denial of this motion prompted Smith's appeal to this court. The trial judge made findings of fact and conclusions of law.

I

We agree with the district court's determination that the motion was meritless. Smith claims no prejudice by the short delay. He asks for strict construction.

The language of this section and the Act's legislative history³ make it clear that this section is modeled after existing search warrant return practice, i. e. the similar provisions found in Rule 41(d) of the Federal Rules of Criminal Procedure. Cases interpreting the existing law define the filing of the return and filing of a warrant as ministerial acts and failure of strict compliance does not require suppression except upon affirmative showing of prejudice. See inter alia, Evans v. United States, 6 Cir., 242 F.2d 534, cert. denied, 353 U.S. 976, 77 S.Ct. 1059, 1 L.Ed.2d 1137, and United States v. Averell, E.D.N.Y., 296 F.Supp. 1004.

In a recent decision on similar facts Judge Huyett of the Eastern District of Pennsylvania denied a motion for suppression when the return was eight days tardy. United States v. Lawson, E.D. Pa., 334 F.Supp. 612. The reasoning there is sound and sufficiently supports the trial court's denial.

II

The case involves an issue of appealability, however, which goes to this court's jurisdiction. Accordingly our decision requires the following analysis of timeliness of Smith's motion and right to appeal from denial.

Smith's argument for appealability fails to make clear the ground upon which the right to appeal is asserted. However the amended notice of appeal speaks of "final judgment and order" and the government makes the reasonable assumption that Smith is appealing under 28 U.S.C. § 1291. Argument proceeds accordingly.

In DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614, the Court spoke of the policy against premature appeal and said "only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse . . . can the proceeding be regarded as independent." Without this independence appeal will not lie. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374.

The Omnibus Act contemplated motions to suppress and considerable discussion has arisen on the issue of whether the statute authorizes the motion by an immunized witness before a grand jury. See In re Egan, 3 Cir., 450 F.2d 199; In re Evans, 146 U.S.App.D.C. 310, 452 F.2d 1239; and United States v. Gelbard, 9 Cir., 443 F.2d 837. The facts of the three cases are similar because in each case grand jury witnesses had refused to testify claiming the questions were derived from unauthorized wiretaps. The refusal led to entrance of a civil order of contempt from which speedy appeal is contemplated by 28 U.S.C. § 1826 (1970).⁴ See also Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783.

Accordingly, Egan, Evans, and Gelbard, all supra, did not present the appealability question in the DiBella context. Nonetheless appealability was at issue in that the cases grapple with the issue of what basis if any is provided by the Omnibus Act for a motion to suppress made while before the grand jury. On somewhat different bases the second and third circuits found the motion to be timely and the movants to have standing. The second circuit adopted much of the third circuit's reasoning but distinguished the ninth circuit's decision which had found the motion to be premature and the movants to lack standing.

The fifth circuit has also construed the subject provisions. United States v. Dudley, 5 Cir., 427 F.2d 1140. The facts in Dudley did not involve a grand jury but were...