Appendix — Choate v. United States

Supreme Court brief1978

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IN THE

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1978

no. _@8-42

DENNIS ROY CHOATE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDICES FOR

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY B. FLYNN

Center for Law

in the Public Interest

10203 Santa Monica Boulevard

Los Angeles, California 90067

(213) 879-5588

RICHARD G. SHERMAN

MICHELLE R. ROSENBLATT

6420 Wilshire Boulevard

Los Angeles, California 90048

(213) 658-6800

FRED OKRAND

ACLU Foundation

of Southern California

633 South Shatto Place

Los Angeles, California 90005

(213) 487-1720

Attorneys for Petitioner

a tee

INDEX TO APPENDICES

APPENDIX A Opinion and Order of the

United States Court of

Appeals for the Ninth

Circuit, filed March 15,

1978

APPENDIX B Order of the Ninth Circuit

denying the Petition for

Rehearing En Banc, filed

June 6, 1978

APPENDIX C Opinion and Order of the

United States District Court

for the Central District of

California, filed November 16,

1976, as officially reported

in 422 F.Supp. 261

APPENDIX D Letter dated July 19, 1972

to Mr. Stanley H. Jenson

Postal Inspector in Charge

P.O. Box 30456

Los Angeles, California

from MELVIN C. JOHNSON

Special Agent in Charge

APPENDIX A

= SOT? REY BEE eer

a oe

FILED

MAR 15 1978

EMIL E. MELFI, JR.

CLERK, U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

vs. No. 76-3486

DENNIS ROY CHOATE, OPINION

Defendant~-Appellee.

Appeal from the United States

District Court for the Central

District of California

Before: CUMMINGS’, HUFSTEDLER and

WALLACE, Circuit Judges

CUMMINGS, Circuit Judge

On August 21, 1974, a two-count in-

dictment was returned against defendant,

then a resident of Long Beach, California.

Count One charged that defendant filed a

false individual income tax return for

® The Honorable Walter J. Cummings,

United States Circuit Judge, Seventh

Circuit, sitting by designation.

1970, listing his adjusted gross income

as $4,681 instead of the correct figure

of $32,581, in violation of 26 U.S.C.

§ 7201. Count Two charged a similar

violation for the year 1971, with defen-

dant listing his adjusted gross income

as $5,306 instead of the proper figure

of $64,744,

Two and one-half months later, defen-

dant filed a motion to dismiss the in-

dictment on the ground that it was "the

result of impermissably [sic] discrimina-

tory law enforcement and unequal applica-

tion of the law denying the defendant

equal protection of the law." On December

6, 1974, this motion was granted and the

case dismissed on the ground that the

activities of government informer Tony

Gordon had violated defendant's Sixth

Amendment right to counsel. On appeal

this Court held that the Government's

attempted use of Gordon had not preju-

diced defendant, so that the case was

remanded for trial. United States v.

Choate, 527 F.2d 748 (9th Cir. 1975).

Upon remand, defendant filed a

motion on March 12, 1976, to supress all

the physical items of evidence sought to

be introduced against him. After first

hearing evidence on July 13, 1976, Judge

Ferguson granted the motion to suppress

“as to mail cover issue" after hearing

oral argument on October 18, 1976. A

memorandum opinion was filed on November

16, 1976, and is now reported in 422 F.

Supp. 261. On the same date, the Govern-

ment appealed the ruling granting the

motion to suppress evidence, and on

December 7, 1976, the Government filed

an amended notice of appeal to include

Judge Ferguson's memorandum decision.

Jurisdiction properly was lodged in the

district court under 26 U.S.C. § 7201

and 18 U.S.C. § 3232, and the appeal of

the order granting the motion to dismiss

was taken pursuant to 18 U.S.C. § 3731.

In the district court, defendant ini-

tially argued that a now-deceased state

government informant named Carl Thompson

had obtained substantial information

from an illegal search of defendant's

residence, supposedly providing the im-

petus for the entire income tax investi-

gation that culminated in defendant's

indictment and Prosecution. However,

Judge Ferguson held that the Government

had established by a preponderance of

the evidence that any such illegality

"did not taint the evidence in this case

in more than a de minimis manner" (422

F.Supp. at 263).

Concerning the "mail cover issue,"

the court found that the Government had

initiated a mail cover on defendant's

mail from July 31, 1972, to August 25,

1972,2/ This mail cover permitted the

1/ Under the postal regulations, a mail

cover is defined as:

"Mail cover" is the process by

which a record is made of any data

appearing on the outside cover of

any class of mail matter, includ-

ing checking the contents of any

second-, third-, or fourth-class

mail matter as now Sanctioned by

law, in order to obtain informa-

tion in the interest of (i) pro-

tecting the national security,

(ii) locating a fugitive, or (iii)

obtaining evidence of commission

or attempted commission of a crime.

39 C.F.R. § 233.2(c) (1) (1975).

Under 39 C.F.R. § 233.2(c) (3),

"crime" is defined as "any commission of

recording of the data appearing on the

outside cover of defendant's incoming

first and fourth class mail at three

listed addresses, two in Balboa and one

in Newport Beach, California. The data

consisted of the class of mail, eee

of the addressees (occasionally a piece

of mail was addressed to Choate and an-

other person), name and return addresses

of the senders and place and date of

postmarks on mail going to defendant.

The mail cover was obtained through

Bureau of Customs Special Agent Melvin C.

Johnson's letter to the postal inspector

in charge in Los Angeles, California.

The letter read as follows:

July 19, 1972

LA06RO692701

Mr. Stanley H. Jenson

Postal Inspector in Charge

P.O. Box 30456

Los Angeles, California

Dear Sir:

A cover for First and Fourth Class mail

is requested for the following names and

addresses:

an act or the attempted commission of an

act that is punishable by law by imprison- S.

ment for a term exceeding 1 year."

Dennis Roy CHOATE

511 W. Bay St., Apt. A

Balboa, California

CARSON AND CHOATE SURFBOARDERS

2811 Newport Blvd.

Newport Beach, California

Dennis Roy CHOATE

P.O. Box 886

Balboa, California

The above listed subject is currently

under investigation by this office for

the suspected smuggling of large quanti-

ties of narcotics into the United States.

CHOATE is currently organizing a large

narcotic smuggling ring with the primary

source located in South America. It is

felt that CHOATE and the source in South

America correspond by mail. Return ad-

dresses on mail received at the above

addresses would be of aid:‘in identifying

the source in South America and other

members of the smuggling ring. It is

requested that a mail cover be placed at

the above addresses for a period of 30

days. It is further requested that all

replies be directed to Special Agent

Lynn P. Williams.

ee ae

ee ee eee eee

Smuggling narcotics into the United

States is in violation of Title 21 USC

952 and carries a penalty under Title 21

USC 960(a) (1) of 15 years imprisonment

or a fine of $25,000 and/or both. CHOATE

is not under indictment as a result of

any investigation conducted by this of-

fice nor does this office have any know-

ledge of any other indictments pending

against CHOATE. It is believed that

CHOATE has retained Sherman & Sturman,

Attorneys at Law, 8500 Wilshire Blvd.,

Suite 908, Beverly Hills, California

as legal counsel.

Your cooperation in this matter would be

appreciated.

Sincerely yours,

MELVIN C. JOHNSON

Special Agent in Charge

cc; SUI 5

[Lynn] WILLIAMS/ab

"422 F.Supp. at 264-265 n. 5".

(emphasis supplied.)

This letter was initiated by Special

Agent Lynn Williams of the Drug Enforce-

ment Agency who was then working as a

special agent for the Bureau of Customs,

assigned to its hard narcotics unit. In

March or April 1972, Williams had been

assigned to investigate defendant be-

cause he was suspected of importing

large quantities of cocaine into the

United States.

Judge Ferguson first held that the

foregoing letter did not specify "the

reasonable grounds that exist" for re-

questing a mail cover as required by a

July, 1965, postal regulation, which

provides that all postal inspectors in

charge may order mail covers within

their district, viz.:2/

"Where written request is received

from any law enforcement agency of

the Federal, State, or local gov-

ernments, wherein the requestin

authority stipulates and specifies

the reasonable grounds that exist

which demonstrate the mail cover

would aid in the location of a

fugitive, or that it would assist

in obtaining information concern-

ing the commission or attempted

commission of a crime" (39 C.F.R.

§ 233.2(e) (1) (ii); emphasis

supplied).

2/ The mail cover regulations were re-

: setae without substantial change

n Marc 5. 40 Fed. Reg. 1157

3. ee g 9 (March

The district court next held that the “

use of the mail cover as part of the

early narcotics investigation of defen-

dant was unconstitutional under the

Fourth Amendment, citing Katz v. United

States, 389 U.S. 347. The opinion noted

that it was the identity of the sender

that was of interest to the law enforce-

ment authorities here and that a reason-

able person who posted a piece of mail

would have an expectation of privacy

"(1) that the information contained in

the return address will only be used for

postal purposes, and (2) that it will be

utilized in only a mecahnical fashion

without any records being kept" (422 F.

Supp. at 270). Judge Ferguson could

find no compelling governmental interest

which could justify the incursion on

what he viewed to be a substantial

privacy interest.

In closing, the district court con-

cluded that all the evidence the Govern-

ment sought to introduce against the

defendant "was derived from exploitation

of leads derived from the illegal mail

cover" (422 F.Supp. at 271), so that no

part of the evidence could be purged of

the taint of the mail cover. In its

principal brief the Government admitted

that it could not prove the absence of

taint if the mail cover was illegal (Br.

8), and at the oral argument the Govern-

ment conceded that it could not proceed

with the trial if the motion to suppress

evidence was properly granted. We

reverse.

The Government's Evidence Was Not Fatally

Tainted by Informant's Entry into Defen-

dant's Home.

The district court found that Carl

Thompson, an informer for Primo T. Orosco

of the California Bureau of Narcotics

Enforcement, had burglarized defendant's

Huntington Beach, California, residence

in April 1971 and had obtained Choate's

future wife's Farmers and Merchants Bank

stetement for the period March 15-April

15, 1971. However, the court held that

the Government established by a prepon-

derance of the evidence that any such

illegality "did not taint the evidence

in this case in more than a de minimis

manner" (422 F.Supp. at 263). In attack-

ing this holding, it was unnecessary for

10.

—— Ss meee < = -

defendant to file a cross-appeal because

he was endeavoring to support the judg-

ment in his favor on this issue on the

claim that he had advanced below. United

States v. Campbell, 293 F.2d 816, 822

(9th Cir. 1961) .2/ We are in accord with

the district court's disposition of this

matter.

The record shows that Carl Thompson,

who died in May 1976, was used as an

undercover informer in April and May

1971 by California Narcotics Agent Orosco

to help build a state narcotics case

against defendant in exchange for favor-

able treatment in a potential inquiry

into Thompson's own connections with

narcotics importation. In Orosco's May

3, 1971, report for the California Bureau

of Narcotics Enforcement, he noted that

the bank statement Thompson had obtained

See also Tiedeman v. Chicago, Milwaukee,

2/ St. Paul & Pacific R. Co., 513 F.2d

1267, l2?2-l273 (8th Cir. 1975); Olympic

Fastening Systems, Inc. v. Textron, Inc.

504 F.2d 609, 617-618 (6th Cir. 1974);

James v. Reese, 546 F.2d 325 (9th Cir.

1976); 9 Moore's Federal Practice

q 204.11[3].

ll.

from defendant's residence in April 1971

was for an account in the name of Suzanne

Sylvester (later Mrs. Choate) and that

Thompson had indicated that she and

defendant were authorized to sign on her

account at the Farmers and Merchants Bank

in Long Beach, California.

Orosco's report was turned over to

Special Agent Lynn Williams of the

Federal Bureau of Customs in early April

of 1972. In order to give Williams a

feeling for the hard narcotic unit's

work, the Bureau gave Williams some

closed files to study. Believing that

there was sufficient information in

Choate's file to warrant fuller investi-

gation, Williams had reopened an earlier

federal narcotics investigation of defen-

dant closed in April 1971. Orosco's

report was in Choate's file. Williams

had discussions with Thompson during the

Spring of 1972 concerning his relation-

ship to Dennis Choate and his involvement

in deriving narcotics intelligence re-

garding Choate for state narcotic

ot Cele Oe tse

7 ie ne et ee a ee

ct all, lia

developed information regarding defen-

dant's »ssets, in order to see if they

coincided with the amount of cocaine

reportedly involved, which was later

communicated to the Internal Revenue

Service and used as part of the present

tax prosecution. On May 8, 1972,

Williams determined that defendant was

not a signatory on, and had no interest

in, the Farmers and Merchants Bank ac~-

count mentioned in Orosco's report and

made no further use of that account in

tracing defendant's assets. When

Williams turned over his information re-

lating to defendant's assets to the

Internal Revenue Service, none of that

information emanated from Suzanne

Sylvester's bank account.

Special Agent Raymond Sherrard of

the Internal Revenue Service commenced

a criminal tax investigation of defen-

dant in the late Spring of 1972 after

being contacted by Customs Agent

Williams. Williams told Sherrard that

Choate was outspending his apparent

means and turned over some of his infor-

agencies. During his ensuing narcotics

investigation of defendant, Williams mation on Choate to the Inter1.al Revenue

sc $3.

Service since Williams had not been able

to build a substantive narcotics case

against Choate. Sherrard ceased his

investigation in July 1972, when he was

unofficially replaced by IRS Special

Agent Emmett S. Roach.

In September 1972 Roach was official-

ly placed in charge of the investigation

involving defendant's violation of the

income tax laws. Williams gave him

Orosco's May 1971 report. Roach had the

task of verifying expenditures made by

defendant in 1970 and 1971, the two tax

years included in this indictment. No

reference was made to the Farmers and

Merchants Bank account in verifying the

expenditures for 1970 when Roach began

his investigation. However, when he was

examining defendant's expenditures for

1971, he discovered that out of defen-

dant's $50,000 in expenditures for that

year, under $500, precisely $432.59,4/

4/ The $432.59 consisted of

4 ; payments of

$117.60 and $70.36 to Master Charge,

$54.58 and $118.72 to Diner's Club and

$71.33 to Carte Blanche.

14.

ne a RE ln ihe

~~ e

“<

was made through that account, while over

$44,000 was expended in cash without re-

ference to any bank account. The $432.59

in question was first documented by re-

cords from the credit card recipients

and only later verified by the bank

statement. Since these payments amounted

to less than $500, Judge Ferguson was

certainly justified in concluding that

Thompson's obtaining of the merely corro-

borating one-month bank statement "did

not taint the evidence in this case in

more than a de minimis manner" (422 F.

Supp. at 263).

Thompson's entry into defendant's

Huntington Beach residence was to lear.

of defendant's narcotics activity, and

defendant is now being charged with tax

evasion. Defendant's modest expenditures

to the credit card companies made through

the Farmers and Merchants Bank in 1971

were ascertained through the three credit

card companies before any recourse to the

bank statement. The amount was extremely

small in comparison with the understate-

ments of income alleged in the indictment.

Consequently, under the various standards

15.

developed in United States v. Bacall,

443 F.2d 1050 (9th Cir. 1971), the

Thompson burglary, upon the preponderance

of evidence in the record (United States

v. Cales, 493 F.2d 1215, 1216 (9th Cir.

1974), did not fatally taint the Govern-

ment's evidence and did not require its

suppression. Because the standard of

proof in the district court was prepon-

derance of the evidence, we may not over-

turn the district judge in this regard

unless his factual conclusion was clearly

erroneous. As demonstrated above, it was

not.

There Was Compliance with the Postal

Regulations.

As already noted, 39 C.F.R. § 233.2

(i) (1) (ii) requires the requesting autho-

rity to stipulate and specify "the reason-

able grounds that exist which demonstrate

the mail cover would aid in * * * obtain-

ing information concerning the commission

or attempted commission of a crime."

Here the requesting authority stated that

the Bureau of Customs was investigating

defendant for the suspected smuggling of

large quantities of narcotics into the

16.

i ait la ats | lie A cle “

Ce ee a ee ee ee a, ee ee

a. a

United States. He was said to be "cur-

rently organizing a large narcotics

smuggling ring with the primary source

located in South America." In his key

letter, the special agent in charge of

the Bureau of Customs office in Los

Angeles then stated "It is felt that

[defendant] CHOATE and the source in

South America correspond by mail."

Johnson next wrote that return addresses

on mail received at defendant's listed

three addresses "would be of aid in iden-

tifying the source in South America and

other members of the smuggling ring."

Johnson noted that smuggling narcotics

into the United States violated 21 U.S.C.

§ 952, with a penalty of fifteen years'

imprisonment or a fine of $25,000, or

both, under 21 U.S.C. § 960(a)(1). He

added that defendant was not under indict-

ment as a result of any investigation

conducted by Johnson's office, and that

Johnson's office knew of no other indict-

ments pending against defendant, whose

lawyer was then identified so that in

accordance with customary practice under

39 C.F.R. § 233.2(f) (2), there would be

17.

no mail cover of correspondence between

Choate and his counsel, >/

Judge Ferguson decided that the

letter was defective because Johnson used

the phrase "It is felt" that the defen-

dant and the source in South America

correspond by mail:

"The [regulation] should, there-

fore, be read as having some signi-

ficance -- if an agency's mere

'feeling' that criminal activity

is afoot is sufficient to provide

the needed showing, it will have

been read out of existence."

(422 F.Supp. at 266).

In our judgment this was too strict an

interpretation of the regulations. The

letter written by one layman to another

is replete with "reasonable grounds"

demonstrating that the mail cover would

aid the Bureau of Customs in obtaining

5/ Since Thompson was represented by the

same lawyer as defendant in 1971 or

earlier, Thompson probably relayed the

lawyer's name to Orosco. It also should

be noted that the secretary for defen-

dant's lawyer had previously been em-

ployed by Thompson. Thompson was con-

victed of conspiracy to import narcotics

into this country in 1970. See United

States v. Thompson, 493 F.2d 305 (9th

ri 1974), certiorari denied, 419 U.S.

18.

lt a

tee I a ee lit

information concerning the commission or

attempted commission of a crime, as re-

quired by this regulation. Neither the

regulations governing requests for mail

covers nor the postal interpretation of

mail cover procedures require a probable

cause finding or a determination by a

judicial officer .o/ According to House

testimony of William J. Cotter, Chief

Postal Inspector, United States Postal

Service in 1975, which we must take as

an authoritative construction of the

regulations (Udall v. Tallman, 380 U.S.

1, 4), "mail covers were to be instituted

only upon written request stipulating

and specifying a reasonable need for the

mail cover and a proper reason for its

use" Postal Inspection Hearings at 47.

The regulations simply do not require

the specification of the factual predi-

cate upon which the requesting agency

6/ Hearings on Postal Inspection

Service's Monitoring and Control of

Mail Surveillance and Mail Cover Programs

before the House Subcommittee on Postal

Facilities, Mail and Labor Management of

the House Committee on Post Office and

Civil Service, 94th Cong., lst Sess.,

Ser. No. 94-39, 49, 51-52 (1975) (here-

inafter "Postal Inspection Hearings")

19.

bases its conclusion that the mail cover

subject is involved in the commission or

attempted commission of a crime. Failure

to specify this predicate is proper under

the regulations. Whether a mail cover

may sustain constitutional muster will

be addressed infra. "Mail covers cannot

be authorized for exploratory purposes"

where reasonable grounds are not put

forth to show the cover will aid in the

investigation of a crime. Postal Inspec-

tion Hearings at 52.

Of course, Stanley H. Jenson, the

postal inspector in charge or his desig-

nee had to be satisfied under the regu-

lations that the Bureau of Customs’

request set forth reasonable grounds

to demonstrate that the mail cover

would assist in obtaining information

about the commission or attempted com-

Mission of a crime (39 C.F.R. §§ 233.2

(e) (1) (ii) and 233.2(e) (2)). Moreover,

the Chief Postal Instpector mus .5e con-

vinced in his review of actions taken by

postal inspectors upon initial submis-

sion of a report on a request for a

mail cover that the regulations have

been satisfied. 39 C.F.R. -§ 233.2 (i)

20.

~—

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Pet. et oe WOE Older its ted

ees

TG es Sletten able ee ES

The requesting letter stated that defen-

dant was currently organizing a large

narcotics smuggling ring with its primary

source in South America and that it was

suspected of smuggling large quantities

of narcotics into the United States.

Based on their prior experience, the

requesting special agent and his asso-

ciates would know that defendant and his

South American source would probably

correspond by mail. The Committee for

Public Justice and the American Civil

Liberties Union Foundation of Southern

California (amici) filed a joint brief

and participated in the oral argument

urging affirmance of the district court's

decision. One of their grounds is that

there was noncompliance with the postal

regulations because requesting Special

Agent Jenson wrongfully stated in his

July 19, 1972, letter to the Los Angeles

postal inspector in charge that "CHOATE

is currently organizing a large narcotics

smuggling ring with the primary source

located in South America" (emphasis

supplied). Amici attack this statement

on the ground that the federal narcotic

investigation of defendant had been

ai.

closed in April 1971. However, it was

reopened by Special Agent Lynn Williams

on April 3, 1972, because of additional

information received by the Bureau of

Customs. That narcotics investigation

was continuing even at the time of the

July and October 1976 hearings below.

Therefore, amici cannot fault the mail

cover request on the ground that it

related to a closed matter. Although

the requesting letter was apparently

prepared by Agent Williams (422 F.Supp.

at 264), defendant on appeal and the

district judge did not question Williams'

veracity, and it is inappropriate for us

as reviewing judges to impugn his truth-

fulness on the basis of a cold record

that can be read consistently with the

contents of the letter.

Viewing the Jensen letter, drafted

by a nonlawyer, in a "practical and not

abstract * * * commonsense and realistic

fashion," it satisfies the applicable

regulations, as the Supreme Court held

with respect to affidavits for search

warrants in United States v. Ventresca,

380 U.S. 102, 108. As Justice Goldberg

22.

there stated, "Technical requirements of

elaborate specificity once exacted under

common law pleadings have no proper place

in this area." (Id.) Since hypertech-

nical niceties should not be applied to

this mail cover request,— we hold that

there was no violation of the applicable

postal regulations. Accordingly, there

is no need to suppress the evidence on

the ground of intentional circumvention

of administrative regulations as in

United States v. Caceres, 545 F.2d 1182

(9th Cir. 1977).

The Mail Cover Does Not Violate The

Constitution

"[T) he protection of a person's

general right to privacy - his right to

be let alone by other people - is, like

the protection of his property and of

his very life, left largely to the law

of the individual States." Katz v.

United States, 389 U.S. 347, 350-351

(footnotes omitted). Almost tautologi-

cally, only if specific "provisions of

7/ See Andresen v. Maryland, 427 U.S.

~ 463, 478-479 n. 9.

23.

the Constitution protect personal pri-

vacy from other forms of governmental

invasion" (id. at 350) will a person be

able to raise the shield of the Consti-

tution against the practice. The speci-

fic sources for zones of privacy in the

Constitution seem only to include the

First, Third, Fourth, Fifth and Ninth

Amendments. Griswold v. Connecticut,

381 U.S. 479, 484. If a zone of privacy

cannot be grounded on neutral principles

rooted in one of these constitutional

sources, it simply may not enjoy consti-

tutional protection. See Craven,

Personhood: The Right to Be Let Alone,

1976 Duke L.J. 699, 704.

Requiring that a constitutional right

be locatable in the Constitution most

emphatically does not, of course, suggest

a strict circumscription of the various

specific constitutional guarantees in the

Bill of Rights. Each guarantee still has

its Griswold penumbras and emanations.

But if it is demonstrated seriatim that

none of the specific guarantees creates

a zone of privacy in a given case, then

there simply is not a constitutional

24.

"right of privacy" in that case. Nor is

there any question of synergistic cou-

pling between the several Bill of Rights

guarantees to create by the operation of

all of them together a constitutional

right not locatable upon any one of them.

See Whalen v. Roe, 429 U.S. 589, 598-599

n. 23. This follows from the text of

the Ninth Amendment itself: "The

enumeration in the Constitution, of

certain rights, shall not be construed

to deny or disparage others retained by

the people." Griswold v. Connecticut,

381 U.S. 479, 491-492 (Goldberg, J.,

concurring).

So posed, our task is to analyze the

several specific provisions in the Bill

of Rights to see if the zones of privacy

emanating therefrom encompass Choate's

claimed right to have a mail cover placed

on his mail. Clearly, under the facts of

this case, the Third Amendment may be

dismissed by an ipse dixit. Nor need the

Fifth Amendment give us pause since de-

fendants and the amici concede that mail

cover information derives from an exte-

rior inspection when the mail matter is

25.

still under the sender's control. 2/

Indeed neither the Third nor the Fifth

Amendments were raised anywhere in the

record below. Only the Fourth and First

Amendments have been relied upon.

This Mail Cover Does Not Violate the

Fourth Amendment

We now turn in our analysis to in-

quire whether the Fourth Amendment was

violated by the mail cover. As ex-

plained by the Seventh Circuit in United

States v. Balistrieri, 403 F.2d 472, 475

n. 2 (1968), a mail cover is conducted

by the Postal Service's furnishing the

requesting government agency with the

information appearing on the face of

the envelope or packages addressed to a

Suspect. Information given includes the

name of the addressee, the postmark, the

name and address of the sender (if it

appears), and the class of mail. The

mail itself is promptly delivered to the

8/ The only conceivable substantive

Fifth Amendment protection would be

over self-incrimination or fundamental

liberty interests. See Whalen v. Roe,

429 U.S. 589, 598-599 n.- 23. Ghoate does

not have standing to raise either one.

26.

addressee, and the Postal Service fur-

nishes this confidential information

only to the requesting agency. A crime

has to be a felony before a mail cover

will be permitted under 39 C.F.R.

§ 233.2(e) (1) (ii).2% See note 1 supra.

First of all, there is some question

whether this mail cover even constituted

a "search" within the Fourth Amendment

for, as this Court explained in United

States v. Solis, 536 F.2d 880, 881 (9th

Cir. 1976):

"Generally evidence acquired by

unaided human senses from without

a protected area is not considered

an illegal invasion of privacy,

but is asable under doctrines of

plain view or open view or the

equivalent.”

Assuming a search was involved here,

since 1878, it is settled that the Fourth

Amendment's protection against "unreason-

able searches and seizures" protects a

citizen against the warrantless opening

of sealed letters and packages addressed

to him in order to examine the contents.

Ex parte Jackson, 96 U.S. 727. A recent

9/ Postal Inspection Hearings, 10, 47.

27.

article by Professor Geoffrey R. Stone

discussed the scope of the Fourth Amend-

ment since that time, The Scope of the

Fourth Amendment: Privacy and the Policy

Use of Spies, Secret Agents and Informers,

American Bar Foundation Research Journal

1195 (1976). As shown therein, the most

important relevant case since Ex parte

Jackson is Katz v. United States, 389

U.S. 347. There the Supreme Court held

that because of the Fourth Amendment the

prosecution could not introduce evidence

of the contents of a telephone conversa-

tion of the defendant, which was heard

by placing a device on the outside of the

public telephone booth in which the defen-

dant was speaking, since an individual

speaking to someone over the telephone

has a "reasonable expectation of privacy"

with respect to the contents of those

conversations. 389 U.S. at 360 (Justice

Harlan concurring). The Court decided

that "[w]hat a person knowingly exposes

to the public, even in his own home or

office, is not a subject of Fourth Amend-

ment protection," whereas "what he seeks

to preserve as private, even in an area

accessible to the public, may be

28.

constitutionally protected." 389 U.S.

at 351, 352. "(T]he Fourth Amendment

protects people, not places." Id. at 351.

Prior to Katz, the courts uniformly

upheld the constitutionality of mail

covers. E.g., United States v. Costello,

255 F.2d 876, 881 (2d Cir. 1958);

Canaday v. United States, 354 F.2d 849

(8th Cir. 1966); Cohen v. United States,

378 F.2d 751 (9th Cir. 1967), certiorari

denied, 389 U.S. 897; Lustiger v. United

States, 386 F.2d 132 (9th Cir. 1967),

certiorari denied, 390 U.S. 951

Subsequent to Katz, the crucial

question presented has been whether an

individual has a reasonable expectation

of privacy which would prevent the Govern-

ment from inspecting information contained

on the outside of mail addressed to him.

In all post-Katz decisions except this,

the courts have again sustained mail

covers on the ground that there is no

reasonable expectation that such infor-

mation will remain unobserved. United

States v. Bianco, 534 F.2d 501, 508 (2d

Cir. 1976); United States v. Leonard,

524 F.2d 1076, 1087 (2d Cir. 1975);

29.

United States v. Balistrieri, supra;

United States v. Isaacs, 347 F.Supp. 743,

750 (N.D. Ill. 1972), affirmed on other

grounds, 493 F.2d 1124 (7th Cir. 1974),

certiorari denied, 417 U.S. 976. Less

than three months after Katz, certiorari

was denied in our Lustiger case, supra.

However, it does appear that the instant

case is the first post-Katz situation

where the constitutionality of the mail

cover device has been squarely presented

in a manner requiring extended analysis.

While the Supreme Court has not ex-

pressly passed on the mail cover device,

recent analogous opinions lead us to

conclude that it would not hold mail

covers unconstitutional even though

neither the addressee nor the sender is

aware that the exterior data is being

used for purposes other than the proper

routing of the mail. In United States

v. Miller, 425 U.S. 435, it was held

that a bank customer has no legitimate

"expectation of privacy" in the contents

of his original checks and deposit stubs

because they "contain only information

voluntarily conveyed to the banks and

30.

exposed to their employees in the ordi-

nary course of business." 425 U.S. at

442. Here too the information in ques-

tion was voluntarily conveyed to the

Postal System and exposed to its employ-

ees and others in the ordinary course of

passage of letters and packages from the

senders to the defendant. The following

passage from Justice Powell's Miller

opinion, substituting the mailer for the

depositor, seems singularly apt:

"The depositor takes the risk

in revealing his affairs to an-

other, that the information will

be conveyea by that person to the

Government. United States v.

White, 401 U.S. 745, 751-752

(1971). This Court has held re-

peatedly that the Fourth Amend-

ment does not prohibit the ob-

taining of information revealed

to a third party and conveyed by

him to Government authorities,

even if the information is re-

vealed on the assumption that it

will be used only for a limited

urpose and the conticence a

laced in the third party w

ae be betrayed. i1d., ic 752;

Hoffa v. United States, 385 U.S.

at 302; Lopez v. United States,

373 U.S. 4 963). (Footnote

omitted, emphasis supplied.)

425 U.S. at 443.

31.

This portion of Miller concluded that

even if the banks were acting solely as

Government agents in transcribing the

information and complying with the sub-

poenas, there would be no intrusion upon

the depositors' Fourth Amendment rights.

Id. Applying Miller here would mean the

transcription of the information in ques-

tion by the postal authorities and the

transmitting of it only to the Bureau of

Customs would not violate the Fourth

Amendment, 22/

10/ As the district court noted below,

this "Circuit has held that there is

no reasonable expectation of privacy as to

the fact that telephone calls were placed

on particular dates to particular phone

numbers from a home * * * telephone" (422

F.Supp. at 270 n. 19). United States v.

Baxter, 492 F.2d 150, 167 (Sth Cir. 19753)

ge 416 U.S. 940; United .

ates v. thian, 452 F.2d 505, 506 (9th

Cir. 1971). The district court drew the

following distinction between telephones

and the mail: "While one desiring to

protect his privacy may be put to a

choice as to whether or not to install a

telephone, there are few alternatives to

the mail" (422 F.Supp. at 270-271). But

if a sender wishes to avoid the mail

cover, he simply may refrain from using

his return address. Moreover, since the

mail covers are subject to regulations

(continued)

32.

Subsequently, in United States v.

Santana, 427 U.S. 38, the Court held

that the warrantless arrest of Mrs.

Santana upon the threshold of her

dwelling-house would not violate the

Fourth Amendment because she was not

in an area where she had any expectation

10/ (continued) (and have been the

theme of three Congressional hearings

in a decade), the sender must be presumed

to know of the possible existence of a

mail cover upon the mail of his addressee.

Therefore, we find the district court's

plea that "in a free society, citizens

should be left at least one unfettered

means of communication which cannot be

invaded without the showing of probable

cause necessary for a search warrant"

(422 F.Supp. at 271) to have a defective

assumptive premise.

As with telephonic pen registers, the

contents of the letters are not disclosed,

nor does a mail cover encroach upon the

privacy upon which one justifiably relies.

Therefore, there has been no search or at

least no unreasonable search within the

meaning of the Fourth Amendment. Hodge

v. Mountain States Tel. & Tel. Co., 555

F.2d 254, 256-257, 266, 267 (9th Cir.

1977) (majority and concurring opinions).

It is certainly more plausible to expect

privacy to be invaded when a communica-

tion must pass through many hands than

when it is transmitted by an electronic

pen register system. See also United

States v. Baxter, 492 F.2d 150, 167 (9th

Cig. 1973}.

33.

of privacy and because what she knowingly

exposed to the public, even in her own

house, would not be a subject of Fourth

Amendment protection. 427 U.S. at 42.

Thus the last word spoken by the Supreme

Court in this field during its October

1975 Term indicates that in accord with

Ex parte Jackson, supra, the sender or

the recipient of mail does not have a

reasonable expectation of privacy with

respect to the information on the

outside.

Perhaps the closest modern Supreme

Court case is United States v. Van

Leeuwen, 397 U.S. 249. There respondent

sent two packages by first class mail

from Mt. Vernon, Washington, to Van Nuys,

California, and to Nashville, Tennessee.

The postal clerk told a policeman present

in the Post Office that he was suspicious

of the packages and the policeman noticed

that the return address on the packages

was that of a vacant housing area of a

nearby junior college. This information

was transmitted to the Bureau of Customs

in Seattle, Washington, and the Customs

officials then learned that the addressee

34.

of one package was under investigation

in Van Nuys for trafficking in illegal

coins, and that the second addressee

was under investigation ir. Nashville,

Tennessee, for the same crime. This

Court reversed the defendant's convic-

tion on the ground that the coins were

improperly admitted in evidence because

a timely warrant had not been obtained,

but the Supreme Court in turn reversed

us.. Its opinion first noted that as

established in Ex parte Jackson, letters

and sealed packages cannot be opened

without a warrant, although "their out-

ward form and weight" can be inspected.

397 U.S. at 251.

Van Leeuwen pointed out that first

class mail is not beyond reach of inspec-

tion and that a fictitious return ad-

dress plus other suspicious circumstances

justified the retention of the packages

for investigation without a warrant.

Because there had been "no possible inva-

sion of the right 'to be secure' in the

‘persons, houses, papers and effects'

protected by the Fourth amendment against

‘unreasonable searches and seizures'",

35.

the inspection of the outside of the

first class mail was held not to disturb

its privacy. 397 U.S. at 252, 253.

Applying Van Leeuwen to a mail cover

induced by appropriate reasons given by

the requesting agency means that the

mail cover "cannot be said to be ‘un-

reasonable’ within the meaning of the

Fourth Amendment." 397 U.S. at 253.

In his above-mentioned article,

Professor Stone has concluded that a

warrantless search or seizure under the

Fourth Amendment is only unreasonable

"if it poses a relatively serious threat

to [one's] privacy" (Id. at 1212). Here

the senders' placement of their names

and addresses on the mail in question

waives any privacy claim because the

information would foreseeably be avail-

able to postal employees and others look-

ing at the outside of the mail. Cer-

tainly the defendant could not keep that

information invisible, and yet the

Fourth Amendment only bars intrusions

upon a person's "reasonable expectation

of privacy." United States v. Dionisio,

410 U.S. 1, 8, 14. Here it cannot be

36.

said that there was any governmental

intrusion into defendant's home, hotel

room or similar place of solitude.

Senders knowingly exposed the outsides

of the mail to postal employees and |

others, and defendant could not keep

those areas private. This is not a :

situation where an individual has at-

tempted to control information about

himself, nor are all practices of the

Government in seeking information about

a person unreasonable under the Fourth

Amendment. Defendant has not satisfied

us that this particular mail cover was

unreasonable. See note 10, supra.

In supporting affirmance, the earliest

case relied upon by amici is Ex parte

Jackson, supra, but there the Court ex-

cepted the examination and inspection of

the "outward form" of mail from the scope

of the Fourth Amendment. Thus the Court

was protecting the contents of letters

and sealed packages from examination and

inspection. This is made clear because

the opinion stated sealed items were to

remain "closed" against inspection. See

96 U.S. at 733. In addition, Justice

37.

Field stated that postal regulations can-

not "permit an examination into letters

or sealed packages subject to letter post-

age, without warrent" but may be enforced

"as from the parties receiving the letters

or packages * * * (emphasis supplied). 96

U.S. at 935,24 Postal regulations first

authorized the use of mail covers in 1879,

only a year after Ex parte Jackson was de-

cided. Postal Inspection Hearings at 46.

Certainly the draftsmen of those regula-

tions must have intended to fit within the

strictures of that already famous mail

case. Indeed Chief Postal INspector Cotter

recently explained to a House subcommittee

that Ex parte Jackson was interpreted by

the postal authorities from the beginning

as permitting mail covers. Id. at 49. In

his May 1975 testimony to the subcommittee,

il/ At oral argument, counsel for amici

cited United States ex rel. Milwaukee Pub-

lishing Co. v. Burleson, 255 U.S. 407, ap-

parently relying on Justice Holmes dissent

that "while it [the United States] carries

it [postal service] on the use of the mails

is almost as much a part of free speech as

the right to use our tongues ***" (at 437).

Nothing in that passage denigrates from t

the inspection carried on here under the

imprimatur of Ex parte Jackson, supra,

which is twice cited with approval in

Justice Brandeis' companion dissent in

Milwaukee publishing Co. at 420, 431).

38.

Cotter also reviewed the leading court

decisions approving mail covers until

then. Id. at 49, 50.

Throughout their brief, amici en-

deavor to show that mail covers can be

abused. When such a case occurs, the

Fourth Amendment may be implicated, but

as shown elsewhere in this opinion, there

was no such abuse here. Amici also con-

tend that this mail cover violated the

rights of senders of the mail. They fail

to realize that it was requested as part

of the investigation of defendant, not

his correspondents. At any rate, only

the senders would be entitled to raise

any question as to intrusion into their

Fourth Amendment rights. Alderman v.

United States, 394 U.S. 165, 171-172;

United States v. Lisk, 559 F.2d 1108,

1110, 1111 (7th Cir. 1977). And none of

them has complained.

This mail cover was not directed at

the contents of postal cards or the con-

tents of second, third or fourth class

mail, as amici fear (Br. 21) 224

12/ The information requested is trans-

~ mitted to the requestor on form

(continued)

39.

Moreover, only an established federal

agency was requesting the mail cover

here, so that amici cannot properly

argue that this mail cover permits snoop-

ing by obscure local agencies (cf. Br.

32) .22/ Likewise, the amici are wrong

12/ (continued) POD 2009. Five columns

of information are given detailing

the information on the outside of mail:

addressee, sender, return address, place

and date of postmark and class of mail.

Photocopies of the exterior service of

the covered mail are not forwarded to

the requestor. Thus amici's concern that

handwriting, fingerprints or other types

of physical evidence could be transmitted

to the requestor is without foundation.

13/ In addition, the only law enforcement

agencies which may request mail

covers are those agencies "one of whose

functions is to investigate the commis-

sion or attempted commission of acts

constituting a crime." 39 C.F.R.

§ 233.2(c) (4).

The amici also bemoan the scope of

those authorized to approve mail covers.

However, a postal inspector in charge can

only delegate his authority to no more

than three designees, and the delegation

must be in writing for mail covers within

his district. The Chief Postal Inspector,

the only person authorized to grant mail

covers (39 C.F.R. § 233.2(f) (3)), also

can only formally delegate authority and

then to a tightly limited number of de-

signees. 39 C.F.R. § 233.2(d) (1).

40.

in asserting that this mail cover would

include mail addressed to a "Mr. Carson"

(Br. 42), for, in addition to Choate, it

was only to apply to mail addressed to

"CARSON AND CHOATE SURFBOARDS,” thus in-

cidentally including Carson only when his

business with Choate was involved. Nor

has Carson protested this measure.

Much of amici's attack on this mail

cover is on the just-dismissed basis that

the postal regulations are unconstitu-

tionally vague and over-broad (Br. 30-42).

To the extent that overbreadth and vague-

ness, Other than what has been raised to

us, might conceivably exist, this matter

was not raised in the district court and

therefore will not be considered on

appeal. Our function is not inquisi-

torial. United States Steel Corp. v.

Train, 556 F.2d 822, 839 (7th Cir. 1977)

However, it should be noted, as even

amici recognize (Br. 30, 44, 45), that

the postal regulations were tightened in

1965 as a result of Congressional hear-

ings that year. After the more rigid

regulations issued in 1965, Senator Long,

chairman of the subcommittee that had

41.

considered mail covers, expressed his

satisfaction with them, while warning

that his subcommittee would renew its

push to outlaw mail covers completely

if the new regulations were ignored,

violated or abolished. Long, The Right

to Privacy: The Case Against the

Government, 10 St. Louis Univ. L.J. l,

25 (1965). Through that warning and

the routine introduction of bills there-

after threatening to abolish this inves-

tigative tool, Congress has in effect

established itself as a watch-dog to

prevent mail cover abuse.

Amici quote from a Note entitled

Invasion of Privacy: Use and Abuse of

Mail Covers in 4 Columbia Journal of Law

and Social Problems 165, 175-176 (1968)

(Br. 23-24), but that passage concerns

whether mail covers violate statutory

prohibitions against delaying the mail

(18 U.S.C. §§ 1701, 1702 and 1703), a

matter not raised here. The Note does

say that the monthly number of mail

covers "is now low" and that the 1965

revisions in the postal regulations

"covered virtually all objections that

42.

had been theretofore raised," thus

stifling prior Senatorial criticism

(id. at 165, 173-174).

Throughout their brief, amici rely

on the Hearings on Invasions of Privacy

(Government Agencies) before the Senate

Judiciary Subcommittee on Administrative

Practice and Procedure, 89th Cong., lst

Sess. (1965) (Invasions of Privacy).

Instead of supporting amici, those hear-

ings actually support the Government's

position. Thus H.B. Montague, then Chief

Postal Inspector of the Post Office

Department, testified that the Post

Office Department tries to restrict mail

covers to 30 days and encourages outside

agencies to restrict them to 15 days.

Id. at 88. Montague said that he be-

lieved requesting agencies were not on

fishing expeditions because:

"There has to be some trust

and mutual understanding among

enforcement agencies or you would

never get your work done. We

have confidence in these other

agencies. Up to now I have had

no reason to question or distrust

any of them.

zxkeke*rkeitk

43.

"I think any law enforcement

agency, when they make an inves-

tigation, has a good reason for

doing it and that there is some

suspicion a crime has been com-

mitted. They don't just go out

without having some idea that a

violation has been committed."

Montague also told the Senate sub-

committee that the Post Office had not

received complaints of mail cover abuses,

probably because the requesting agencies

are in law enforcement work and "are

dedicated to the same principles we are.

They take the same oath of office that

we take, and we have found no reason to

not have confidence and trust in them,

and we do." He added that law enforce-

ment agencies do not put in indiscrimi-

nate requests for mail covers. (Id. at

89.) In a table covering the period of

1960 through 1965 supplied by the Post-

master General to subcommittee Chairman

Long on May 3, 1965, it was stated that

postal inspectors denied a Bureau of

Customs request for a mail cover in 1960

and two such requests in 1964 (id. at 341)

The table does not cover July 1972 when

the instant mail cover was issued. Far

from seeking a plethora of mail covers,

44.

the Bureau of Customs sought only one

mail cover in July 1973 and five in July

1974,24/ Hearings on Surveillance be-

fore the House Judiciary Subcommittee on

Courts, Civil Liberties and the Adminis-

tration of Justice, 94th Cong., lst Sess.

(1975) (Surveillance) 332, 334.

In May 1965 the Postmaster General

sent the Senate subcommittee excerpts

from confidential instructions to postal

inspectors relating to mail covers,

providing as follows:

"OUTSIDE AGENCIES

"It is important that agents

of outside agencies fully under-

stand that the purpose of a mail

cover is to assist them in appre-

hending fugitives or to give them

leads in other cases in which

they are investigating violations

of law and that mail cover infor-

mation is restrictive and must

be treated confidentially.

Mail cover information must

not be given to private investi-

gators nor furnished in civil

action cases. Mail covers are

not permitted in routine security

14/ We have not been cited to any statis-~-

—~ tics for July 1972, when the present

mail cover was authorized.

45.

investigations for clearance of

an individual, but are allowed

in suspected espionage cases or

on other matters inimical to the

interests of the United States.

Refer all requests for mail

covers or extension of existing

covers from outside agencies to

division headquarters for consi-

deration and action by the in-

spector in charge or his imme-

diate designee. If a verbal

request is received direct the

requestor to submit it in writing.

POSTAL INVESTIGATIONS

"Prior approval by inspectors

in charge is not required in our

own investigations; however, good

judgment must be exercised. The

number of mail covers in effect

must be reduced to the absolute

minimum, and must be strictly

controlled. Confine requests to

a 30-day period or less. Avoid

indiscriminate use of this im-

portant investigative technique.

"SECTION 831.44, POSTAL MANUAL

-44 MAIL COVER. Requests by

postal inspectors in charge and

postal inspectors for information

regarding the addresses, return

addresses, or postmarks on mail

must be treated in strict confi-

dence and complied with carefully

and accurately. In obtaining the

information, do not delay delivery

of the mail. (See 311.6 and

311.7.)" Invasions of Privacy at

339.

46.

These excerpts tend to show that the

abuses conjured up by amici are more

ephemeral than real.

In an effort to show mail cover

abuses, amici have been able to find

only one example, and this is a mail

cover in the nebulous field of national

security rather than the more specific

area of gathering information concerning

a crime. Thus in Paton v. La Prade,

524 F.2d 862 (3d Cir. 1975), plaintiff,

Lori Paton, wrote a letter intended for

the Socialist Labor Party and addressed

to the Socialist Workers Party on whom

a mail cover was in effect, resulting

in an abortive investigation of that

plaintiff by an FBI agent, but clearing

her of any wrongdoing. The Third Circuit

did not pass upon the validity of the

mail cover (at 872), and Chief Postal

Inspector Cottor explained that the mixup

occurred from "human error" (Surveillance

at 320). Nobody has asserted that human

error or any kind of error was invovled

in defendant's mail cover.

Similarly inapt is Stanford Daily v.

Zurcher, 353 F.Supp. 124 (N.D. Ca. 1972),

47.

affirmed, 550 F.2d 464 (9th Cir. 1977),

certiorari granted, 46 LW 3214, ' relied

upon by amici (Br. 12-13). There a

warrant to search the premises of a

university newspaper for photographs of

demonstrations was invalidated because

the newspaper was not suspected of any

offense. Here the mail cover target was

reasonably thought to be importing

cocaine from South America, thus justify-

ing the 30-day mail inspection. In

Piazolla v. Watkins, 442 F.2d 284 (5th

Cir. 1971) (Amici's Br. 15 n. 12), Troy

State University officials searched for

narcotics in the college rooms of the

two student plaintiffs without warrants

or consent. By no stretch of the imagi-

nation can such a search be analogized

to this mail cover. See also Stoner v.

California, 376 U.S. 483. Finally, in

United States v. United States District

Court, 407 U.S. 297 (Amici's Br. 37-38),

government agents had engaged in wiretaps

involving the domestic national security.

Quite foreseeably, the Court applied

Katz and held that search warrants were

required because of “the potential danger

posed by unreasonable surveillance to

48.

individual privacy and free expression"

(at 315). As shown, those factors are

simply not present here .22/

15/ Amici, in hornbook fashion, summarize

—~ the elaborate legal framework sur-

rounding the issuance of search warrants

(Br. 34-36):

(1) the requirement that the fac-

tual basis for the search be

set forth under oath;

(2) any precise calculus for asses-

sing the accuracy, reliability

and sufficiency of the "reason-

able grounds" which must be

established to support the

search;

(3) the requirement that the "rea-

sonable grounds" which "demon-

strate [that] the mail cover

would ... assist in obtaining

information concerning the

commission or attempted com-

mision of a crime" consist of

timely and not stale informa-

tion;

(4) the requirement that the "rea-

sonable grounds" which factually

support the search constitute

the nexus between the nature

and scope of things to be seized

and the underlying criminality,

so as to avoid the inherently

unreasonable "general search";

and

(continued)

49.

This Mail Cover Does Not Violate the

First Amendment

The dissenting opinion rests on the

Fourth Amendment insofar as the Consti-

tution is concerned. The opinion below

also never relied on the First Amendment,

probably because it was only peripherally

relied upon in the district court by

defendant. Similarly, in this Court,

defendant stresses his Fourth Amendment

rights. Apparently taking that cue,

amici also rely principally on the Fourth

Amendment. In mentioning the First

Amendment, neither defendant nor amici

have cited any mail case in their favor

apart from Paton supra. [In any event,

no First Amendment rights of defendant

were violated. As seen, the only infor-

mation being gleaned by the Bureau of

15/ (continued)

(5) the requirement of a proper

return and inventory of the

fruits of the search.

(Footnotes omitted.)

But here this framework is of course a

red herring. These elements of the legal

mechanism which have been constructed to

implement the Fourth Amendment are, of

course, wholly irrelevant when the Fourth

Amendment does not apply in the first

instance. United States v. Lisk, supra.

50.

Customs was material on the outside of

Choate's incoming mail and packages.

Such material certainly would not ab-

ridge Choate's freedom of speech. In-

deed, like any other reasonable citizen,

he could expect no privacy as to the

outside of his incoming mail, and any

"Chill" on the exercise of First Amend-

ment rights resulting from that "lack of

privacy" is not significant enough to

be constitutionally impermissible when,

as here, the challenged activity does

not concern the substance of a communi-

cation and fits within regulatory re-

strictions. See United States v. Ramsey,

U.S. ’ , 45 LW 4577, 4581;

generally Laird v. Tatum, 408 U.S. 1, 1l;

Donohoe v. Duling, 465 F.2d 196 (4th

Cir. 1972). Speech thought to promote

a criminal scheme, such as emcompassed

by this mail cover, is hardly within the

ambit of the First Amendment. Moreover,

the practice of associating with com-

patriots in crime is not a protected

associational right. See Runyon v.

McCrary, 427 U.S. 160, 176.

51.

Nor may the associational rights of

the senders be raised by Choate.

N.A.A.C.P. v. Alabama, 357 U.S. 449,

458-460. Even if he could do so, there

is absolutely no support in the record

that an equality of interest between

Choate and the senders would be anything

other than a false equivalency. Paton,

Supra, at 873-874. This is because there

is no support in the record for the

theory that any of the senders who were

actually subject to the mail cover, and

whose identity was actually used in pre-

paring the tax case against Choate,

would, in fact, care that others knew of

the fact of their “association with

Choate". In any event, the record dis-

closes that defendant did not raise

senders' First Amendment rights in the

district court2§/ and therefore we need

not squarely pass on his ability to

raise the senders' First Amendment

rights in a purely jus tertii manner.

16/ Consequently, amici are also barred

from advancing this ground.

52.

This Mail Cover Does Not Violate the

Ninth Amendment.

Rather than covering necessary aids

to criminal investigation, such as mail

covers, the cases which recognize the

right to privacy at least partially on

Ninth Amendment grounds, have been des-

cribed as neatly categorized into mat-

ters involving family and procreational

activities. See generally, Wilkinson &

White, Constitutional Protection for

Personal Lifestyles, 62 Cornell L.Rev.

563 (1977). This case appears to fit

into neither category. Rights under the

Ninth Amendment are only those "so basic

and fundamental and so deep-rooted in

our society" to be truly "essential

rights," and which nevertheless, cannot

find direct support elsewhere in the

Constitution. Griswold v. Connecticut

381 U.S. 479, 488-489, 491 (Goldberg,

J., concurring).

Perhaps that is why in her Cardozo

lecture on "The Directions and Mis-

directions of a Constitutional Right of

17/

Privacy" our colleague Judge

Hufstedler initiated her search for the

constitutional guarantees of that right

with a specific constitutional provision:

the Fourth Amendment (id. at 551-558).

As there noted, the pertinent words from

that Amendment guarantee that people

shall be "secure in their * * * papers

* * * against unreasonable searches * * *,"

It may be doubted whether the material

collected from mail addressed to defen-

dant before delivery to him was really

from his papers. Even assuming so, only

unreasonable searches are interdicted.

As seen, this was not such a search. As

Judge Hufstedler has stated:

"The right to protect the autonomy

of one's personality cannot be

abolute, but it is nevertheless a

fundamental constitutional right.

In striking the balance between

public interest and fundamental

private rights, the weight is on

the side of the private right un-

less there is strong justification

in favor of the Government action,

and the Government has chosen rea-

sonable means for vindicating its

17/ 26 The Record, Ass'n of the Bar of the

City of New York 546 (1971). The lec-

ture concentrated on First and Fourth

Amendment rights.

overriding interest. When govern-

mental action consists of protect-

ing the constitutional rights of one

group of private citizens against

the competing rights to privacy of

others of its citizens, the socie-

tal interests of each are similarly

weighed against the other, except

that the scale is not initially

tipped as it is when the interests

that are opposed are fundamental

private rights and general public

interest." Id. at 562.

From the information in the possession

of the Bureau of Customs, there was

"strong justification in favor of the

Government action" in permitting this

mail cover. Moreover, the Government

"has chosen reasonable means for vindi-

cating its overriding interest" in en-

forcing the narcotics laws. Therefore,

assuming his standing, we cannot conclude

that defendant's right of privacy, stem-

ming from any provision of the Bill o5/

Rights, was impermissibly overborne.—

The Supreme Court's 1976 October Term

We are reinforced in our conclusion

that the mail cover on Choate was

18/ The balancing undertaken herein ac-

cords with Craven, Personhood: The Right

to Be Let Alone, 1976 Duke Law Journal 699.

55.

constitutional by cases decided by the

Supreme Court at its past Term. Thus the

inspections here are less intrusive than

the screening of former President Nixon's

papers which was recently upheld over

right of privacy arguments based on the

First, Fourth and Fifth Amendments. Nixon

v. Administrator of General Services,

__U.S. ’ , 45 L.W. 4917, 4925-4929,

They are also less intrusive than the

opening of international mail that just

survived First and Fourth Amendment at~.9/

tacks. United States v. Ramsey, supra.

As in Ramsey, we conclude that any "chill"

to defendant and his correspondents is

not only minimal but wholly subjective in

the light of the safeguards provided by

the postal authorities. The information

on the outside of envelopes and packages

normally passes through so many hands,

public and private, that a mail cover can-

not be said to invade any constitutionally

protected zone of privacy. Thus it is

akin to the statutory drug patient

19/ This Supreme Court opinion reversed

United States v. Ramsey, 538 F.2d

415 (D.C. Cir. 1976) on which amici

relied at oral argument.

56.

identification requirement sustained in

Whalen v. Roe, 429 U.S. 589, 599-600,

where the Court discussed and distin-

guished its prior cases in the various

right of privacy areas.

Unlike the situation in United States

v. Chadwick, U.S. ’ , 45 LW.

4797, 4800, the notations on the outside

of this mail were not made with "an

expectation that the [exterior] contents

would remain free from public examina-

tion," thus placing defendant outside the

right of privacy protections in the

Constitution. 29/ No family sanctity

problem exists here such as in Moore

v. East Cleveland, 431 U.S. 494, 498-500

where a municipal ordinance which pre-

vented a grandchild from living in his

grandmother's home was invalidated under

the Due Process Clause of the Fourteenth

20/ For a detailed discussion of Chadwick,

see United States v. Berry, 560 F.2d

861, 863-8604 (7th Cir. 1977). Not being

retroactive, Chadwick is inapplicable

here. United States v. Berry, F.2d

(7th Cir. 1978, on rehearing) ;

United States v. Reda, 563 F.2d ca (2d

Cir. 1977); United States v. Montgomery,

558 F.2d 311 (5th Cir. 1977).

57.

21/

Amendment .— Nor is the mail cover

analogous to cases invalidating statutes

that "burden the freedom to make [child-

bearing] decisions" such as involved in

Carey v. Population Services Interna-

tional, U.S. _, 45 LW 4601, 4603.22/

In this case, the record shows that

the information being gleaned from the

mail cover on defendant was being used

only for legitimate government purposes,

namely for enforcement of the narcotics

and later the income tax laws. The mail

cover was not an attempt to garner a

complete profile of defendant. As with

most people's mail, inspection of the

exterior of envelopes and packages for

thirty days would not enable the request-

ing authority to build up such a complete

21/ But compare Smith v. Organization of

Foster Families, U.S. , 45 LW

4638, upholding a statutory and regula-

tory procedure for removal of foster

children from foster homes.

22/ But compare Maher v. Roe, U.S. ,

45 LW 4789, upholding a state regu-

lation which prevented two indigent

women from obtaining abortions.

58.

picture of the subject that it could be

used to invade such intimately personal

rights as protected by Griswold v.

Connecticut, 381 U.S. 479, and its

spawn.

The order granting the motion to

suppress is reversed and the cause is

remanded for further proceedings.

39.

United States v. Choate - No. 76-3486

HUFSTEDLER, Circuit Judge, concurring

and dissenting:

In an August 21, 1974 indictment,

Choate was charged with income tax eva-

sion for understating his income in 1970

and 1971, in violation of 26 U.S.C.

§ 7201. The Government intended to offer

at trial Choate's amended returns for

those years, which he filed in October,

1972, and documentary evidence tending

to prove that Choate's expenditures were

greatly in excess of his originally-

reported income.—

1/ Choate admitted the underpayment and

paid his back taxes. He initially

moved to dismiss the indictment on

November 1, 1974, for "discriminatory

law enforcement" on the ground that the

usual IRS policy is not to prosecute

taxpayers who have voluntarily filed

amended returns and paid their taxes

prior to the institution of prosecution.

The district judge instead dismissed the

indictment because testimony at that hear-

ing revealed that the government had

attempted to elicit information about

Choate from his attorney through the

agency of an undercover informant in

August, 1972. This court reversed,

(continued)

Choate moved to suppress "all physi-

cal evidence sought to be introduced

against him" on the theory that it was

tainted by illegal searches of his home

conducted by a government informant in

1971. After an evidentiary hearing, the

district court found that the Government

had sustained its burden of proving that

the taint of the illegal searches had

been dissipated. The testimony at the

hearing, however, revealed that during

1972, Choate had been subjected to a

mail cover of all of his correspondence.

The district court held that the mail

cover was conducted in violation of ap-

plicable Postal Service regulations,

that it constituted an unreasonable

search and seizure in violation of the

Fourth Amendment, and that the evidence

must be suppressed. (United States v.

1l/ (continued) finding no denial of

~ the effective assistance of counsel

because the informant told the attorney

at the time of his covert purpose and

offered to supply him with information

about the government investigation.

Thus Choate was not prejudiced. United

States v. Choate (9th Cir. 1975) 527

F.2d 748, 751-52.

Choate (N.D. Cal. 1976) 422 F.Supp. 261,

263.) The district court also found,

and the Government concedes on this

appeal, that "all evidence sought to be

introduced against the defendant in this

case was derived from exploitation of

leads derived from the illegal mail

cover." (Id. at 271.)

The case presents singularly sensi-

tive and difficult statutory and consti-

tutional issues, involving as it does

the extent to which the applicable statu-

tes and the Constitution protect persons

from searches invisible to the persons

whose effects are searched and from the

seizures of intangibles that lead to the

discovery of tangible evidence. If

Choate is unshielded by the Fourth Amend-

ment from the Government's illegal and

oppressive conduct in this case, none of

us can be secure from similar, unan-

nounced governmental invasions of areas

in which we have a reasonable expectation

of privacy.

The mail cover was secured by inten-

tionally false statements made by the

Customs officer who wrote the request

for the cover. The searches and seizures

that followed were obtained in violation

of the Fourth Amendment because no judi-

cial warrant was obtained to authorize

the intrusion into the privacy of

Choate's mail, none of the jealously

guarded exceptions to the warrant re-

quirement exist, and the search was over-

broad and thus in violation of the rea-

sonableness clause of the Fourth

Amendment.

I concur with the majority opinion

only on the point that the taint of the

illegal searches of Choate's home was

sufficiently dissipated by intervening

events to permit the use of the evidence

thus obtained.

Some detail respecting the factual

background of this case is essential to

an understanding of the legal issues.

According to a 1971 report of the

California State Bureau of Narcotics

Enforcement (BNE), Choate first came to

the attention of law enforcement autho-

rities when an undercover informant for

the BNE, one Thompson, alleged that

Choate was involved in importing cocaine

from Peru. Thompson was about to be

indicted for his own narcotics dealings,

and he later asserted that he was pro-

mised leniency if he could "make a case"

against Choate. 2/ During April, 1971,

he made a series of illegal entries into

Choate's home to obtain evidence and

also reported on Choate's alleged drug

dealing.2/ He produced a tin containing

2/ Thompson was ultimately prosecuted

and convicted in December, 1972. In

a subsequent habeas corpus petition he

alleged that his prosecution and imprison-

ment was unlawful as government agents

had promised him that he would receive

different treatment if he assisted them.

He cited as an example of his compliance

with his end of the bargain the tax pro-

secution of Choate, claiming he had been

told he could "take credit" for it. He

asserted he had first brought Choate to

their attention. Agent Orosco of the

BNE also testified that he knew the pur-

pose of Thompson's assistance was to

"buy some insurance" for himself.

3/ He reported that Choate had brought

a large quantity of cocaine from

Peru in early April 1971 and had re-

turned for more, but was arrested while

trying to exchange money on the black

market. Thompson also informed the BNE

(continued)

some marijuana and a bank statement from

the Farmers and Merchants Bank. The

latter was in the name of Choate's wife,

whom he was then living prior to their

marriage, but Thompson alleged that

Choate used it for his own transactions.

Shortly thereafter, Thompson's services

as an informant were terminated because

his credibility was questioned due to

his own legal difficulties. The case on

Choate was then closed.

The 1971 BNE report was transmitted

to the Federal Bureau of Customs, and on

April 3, 1972, Agent Williams of Customs

reopened its investigation of Choate. 4/

3/ (continued) that Choate had nothing

to do with cocaine seized in the

possession of a passenger on a flight

viet ai to San Diego during the same

month.

4/ Williams testified that he had been

given the file to review upon joining

the Bureau of Customs in March, 1972. He

also stated that he had become interested

in Choate because of the allegations of

drug dealing in the BNE report. His des-

cription of the file's contents indicated

that it contained the only substantive

allegations of drug dealing

It appears that Williams contacted

Thompson at this time, but he reported

that he had no information on Choate in

addition to that in the 1971 report.2/

5/ Williams gave conflicting versions of

~ his contacts with Thompson and their

dates. In one affidavit he testified he

first learned of Thompson "after May l,

1972" and used him for narcotics investi-

gations unrelated to Choate. (Affidavit

of Lynn Williams, dated March 6, 1976.)

In a second, he stated that he discussed

Choate with Thompson in April, 1972.

(Affidavit of Lynn Williams, dated July

12, 1976.) At the hearing on July 13,

1976, he stated that his first conversa-

tions with Thompson occurred in early

1973 and that the earlier affidavits and

prior testimony was erroneous. However,

his testimony was that, whenever they

spoke, Thompson told him he had no addi-

tional information to that in the BNE

report. The version which has these

events occurring in 1973 is less than

credible as Thompson was then in federal

prison, and Williams' role in the Choate

inquiry was apparently over. It appears

to be a later fabrication to bolster the

government's contention at the hearing

that the IRS investigation was unblemished

by contacts with Thompson.

Viewed from the perspective of wheth-

er Williams' institution of the mail

cover was justified, neither version

assists the government: either Williams

(continued)

Williams began an investigation of the

extent of Choate's assets to see if they

"coincided" with the amount of cocaine

purportedly involved. He testified that

one of his first steps was to investigate

the Farmers and Merchants Bank account,

but he discontinued this avenue of in-

quiry immediately upon learning that

Choate was not in fact an authorized

Signatory on the account. Williams ra-

pidly concluded that while he had found

"lots of assets," he was "not having

much luck in getting a seizure or coming

up with a substantive case against Mr.

Choate." Therefore, he went to the

Internal Revenue Service (rs) &/ and

5/ (continued) made no attempt to up-

date the 1971 BNE report prior to

asserting that Choate was "currently"

smuggling cocaine in 1972 or he in fact

learned prior to making the request that

the sole source of such reports knew of

no new developments.

6/ Mr. Williams testified that he "went

to [Sherrard] because I was having

trouble with the investigation. I was

having trouble determining how Mr. Choate

was smuggling the cocaine into the United

States. I was not having much luck in

getting a seizure or progressing with a

substantive case against Mr. Choate and I'd

come up with a lot of assets and soI went to

IRS to see if they could have luck in the case."

attempted to interest IRS Agent uel

in investigating Choate for tax evasion-—

Sherrard, however, declined to become

involved in the case until after the

Customs investigation ceased. There-

after Williams continued his asset in-

vestigation and instituted a mail cover

of all Choate's correspondence. 2/ The

mail cover revealed the identity of

Choate's personal bank account and at

least two creditors, Diner's Club and

Carte Blanche. From these sources,

Williams was able to obtain a great deal

of information about Choate's expenditures

which was ultimately turned over to the IRS.

7/ Again there is a conflict as to the

~ precise date of this meeting.

Sherrard testified at an earlier hearing

that it occurred in April, 1972. This

information was confirmed in an affidavit

by IRS Agent Emmett T. Roach, Sherrard's

successor in the Choate investigation.

At the hearing, Williams said he first

met with Sherrard in "July or August of

1972" or “June or July of 1972". In

either event, his testimony was that the

meeting occurred prior to his instituting

the mail cover.

8/ The cover was requested on July 19,

~ 1972, and ran from July 25 - August

25, 1972.

In September of 1972, an official IRS

investigation was opened with Agent Roach

in charge. Roach testified that he made

use of the information obtained through

the mail cover, but that the Farmers and

Merchants Bank account was of little use.

The latter was used only after the fact

that expenditures were made had been in-

dependently verified to ascertain that

the payments had been made from checks

drawn on that account. Those expenditures

amounted to less than $500, while total

expenditures by Choate for the period in

question were over $60,000.=

Taint of Thompson's Illegal Searches

Choate presses the point that “all"

the Government's evidence should be

9/ Roach also testified that most of

Choate's expenditures were in cash

and that some of the information respect-

ing these expenditures had been obtained

through investigation not derived from

the mail cover--for example, the purchase

of cars and a boat. Thus, in 1970 per-

sonal checks accounted for $3,400 in

expenditures against total expenditures

of $11,736, and in 1971 checks accounted

for $6,639 while total expenditures were

over $50,000.

10.

suppressed because of Thompson's illegal

searches. We may assume for present pur-

poses that the entries were illegal and

the product of governmental misconduct.

The question is whether the primary il-

legality led to the discovery of the

evidence sought to be introduced or

whether it was obtained through indepen-

dent means. (Wong Sun v. United States

(1963) 371 U.S. 471, 487-88.)

A simple examination of the facts as

previously set forth demonstrates the

remote relationship between the fruits

of Thompson's illegal entries as embodied

in the BNE report, and this tax evasion

prosecution. The BNE report may well

have contributed to Agent Williams' de-

cision to reopen the narcotics investiga-

tion of Choate, as it suggested that he

was a major trafficker in cocaine. How-

ever, the sole lead used by Williams was

the bank statement which quickly proved

unproductive. That bank statement was

used again only after Choate's expendi-

tures were known to the IRS to verify

the mode of payment.

1l.

Choate's primary contention is that,

if the BNE report provided the impetus

for reopening the investigation of Choate

and contributed to its vigor, all evidence

obtained in succeeding investigations is

tainted. This Circuit has consistently

rejected such arguments and has held that

only evidence specifically derived from

illegal leads can be deemed tainted.

Where the succeeding investigations pro-

duce evidence from independent sources,

it may be introduced despite the original

illegality. (E.g., United States v.

Cella (9th Cir. Dec. 9, 1977) _ F.2d___

[Slip Op'n 3179, 3200-02] (mere fact

investigation is intensified not enough) ;

United States v. Sand (9th Cir. 1976)

541 F.2d 1370, 1375-76 (nexus between

illegally seized evidence and that

sought to be suppressed must be shown

irrespective of the degree of police il-

legality); United States v. Cales (9th

Cir. 1974) 493 F.2d 1215, 1215-16;

United States v. Brandon (9th Cir. 1972)

467 F.2d 1008, 1010 (test is not whether

a "but for" relationship exists between

the illegal search and later investiga-

tion but whether its fruits tended to

Ade

tended to significantly direct that in-

vestigation to the evidence in question) ;

United States v. Bacall (9th Cir. 1971)

443 F.2d 1050, 1055-61 (original ille-

gality must "in fact" lead to specific

evidence contested); Durham v. United

States (9th Cir. 1968) 403 F.2d 190.

See also United States v. Pike (5th Cir.

1975) 523 F.2d 734; United States v.

Friedland (2d Cir. 1971) 441 F.2d 855.)

While the ultimate burden of proof

is on the Government to show the absence

of taint, the defendant must first

establish a factual nexus between the

illegality and the challenged evidence.

The mere establishment of an illegal

search does not place upon the Government

the burden of affirmatively proving that

each and every piece of evidence is free

from taint. (United Stetes v. Tella

//// / supra, contains a thorough dis-

cussion of this point.) Choate did not

establish any factual or logical nexus

between the BNE report and the subse-

quent evidence uncovered by Williams and

Roach as to Choate's assets and expendi-

tures, except for the Farmers and

Merchants Bank statement. (Alderman v.

United States (1969) 394 U.S. 165, 183;

United States v. Cella, supra, Slip Op'n

at 3200; United States v. Sand, supra,

541 F.2d at 1375-76.) While that bank

statement should, of course, be sup-

pressed, and any evidence as to that

account's use as a source of Choate's

expenditures, it cannot be deemed to

taint the other evidence of Choate's

expenditures which was independently

discovered through the mail cover, state

motor vehicle records, and other sources.

The Mail Cover

A Mail cover is a procedure by which

the United States Postal Service segre-

gates all mail sent to a particular ad-

dressee and records all information which

appears on its outside cover and, in some

cases, identifies the contents of second,

third, and fourth class mai1.+0/

10/ 39 C.F.R. § 233.2(c) (1) (1977):

""Mail cover' is the process

by which a record is made of any

data appearing on the outside

(continued)

14,

The recording in Choate's case was

accomplished by a postal employee's

listing on a form, for all first and

10/ (continued) cover of any class

~~ of mail matter, including check-

ing the contents of any second-,

third-, or fourth-class mail

matter as now sanctioned by law,

in order to obtain information

in the interest of (i) protect-

ing the national security, (ii)

locating a fugitive, or (iii)

obtaining evidence of commission

or attempted commission of a

crime."

Mail covers may also be instituted of

persons believed to be engaged in viola-

tions of postal statutes. (Id. § 233.2(d)

(2) (1).) The crimes being investigated

must be felonies. (Id. § 233.2(c) (3).)

The present appeal involves only subsec-

tion (c) (1) (iii). The present regula-

tions were promulgated on March 12, 1975.

They do not differ, however, in any

material substantive respect from those

applicable at the time of the Choate mail

cover--June and July, 1972. (See The

Matter of Wiretapping, Electronic Eaves-

dropping, and other Surveillance: Hear-

ings before the Subcomm. on Courts, Civil

Liberties and the Administration of

Justice of the House Comm. on the Judi-

ciary, 94th Cong. lst Sess., Ser. No. 26,

Part 1 at 326, 352-54 (1975) (hereinafter

cited as "Hearings on Surveillance").

See also 40 Fed. Reg. 11579, 11580 (March

I2, 1975).) For a detailed history of

15.

fourth class mail received over a thirty-

1l/

day period,— the addressee (three

10/ (continued) mail cover regulations

see Postal Inspection Service's

Monitoring and Control of Mail Surveil-

lance and Cover Programs: Hearings be-

fore the Subcomm. on Postal Facilities,

Mail and Labor Management of the House

Comm. on Post Office and Civil Service,

94th Cong., lst Sess., Ser. No. 94-39 at

46 (1975) (hereinafter cited as "hearings

On Postal Inspection Service"); Invasions

of Privacy (Government Agencies): Hear-

ings before the Subcomm. on Admin. Prac-

tice and Procedure of the Senate Comm.

on the Judiciary, 89th Cong., lst Sess.

at 67-69 (1965) (hereinafter cited as

"Hearings on Invasions of Privacy").