Opposition — Adams v. United States

office Supreme Court, U

FILED

Y 20 (983

No. 82-1427 ma

ALEXANDER L. STEVAS,

Ou the Supreme Court of the Hnited States

OcToBER TERM, 1982

HELGA MARIE ADAMS, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

Goria C. PHARES

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether evidence obtained pursuant to consensual wire-

taps, legal under federal law but allegedly illegal under state

law, was properly admitted in a federal prosecution.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Elkins v. United States, 364 U.S.

ME Sa ece wad wateedevee beacuse coeeuner 5, 6,7

Hawaii v. Galaza, Cr. No. 55080

(Ist Cir. Hawaii June 30, 1981) ........ ce eees 6

Hawaii v. Harris, Cr. No. 55905

(Ist Cir. Hawaii Nov. 6, 1981) ..........0eee 6

Hawaii v. Okubo, Cr. No. 55122

(Ist Cir. Hawaii Sept. 4, 1981),

appeal pending, No. 8286 (Sup. Ct.

PT uc cone esOes ou bb0b0600000080R000000 6

United States v. Antelope, 430 U.S.

ce beade uh bes be Oeeh ese bebaene eee 8

United States v. Daniel, 667 F.2d 783 .........+: 5

United States v. Hall, 543 F.2d 1229,

cert. denied, 429 U.S. 1075 ........5000ee 4, 5,6

United States v. Horton, 601 F.2d 319,

cert. denied, 444 U.S. 937 ... ccc ccc eee eee 5

United States v. Keen, 508 F.2d 986,

cert. denied, 421 U.S. 929 ....... cece eee ees 4,5

IV

Cases—Continued:

United States v. Lovasco, 431 U.S. 783 ....

United States v. Nelligan, 573 F.2d 251 ....

United States v. Neville, 516 F.2d 1302 ....

United States v. Shaffer, 520 F.2d 1369,

cert. denied, 423 U.S. 1051 .............

United States v. Yazzie,693 F.2d 102 .....

United States v. Zemek, 634 F.2d 1159,

cert. denied, 450 U.S. 985 .........0005.

Wolf v. Colorado, 338 U.S. 25 .......0045:

Constitution, statutes and rule:

U. S. Const. Amend. rrr re

Federal Youth Corrections Act,

18 U.S.C, SOIO(€) . 6. eee e cece eee eee

Major Crimes Act:

IS U.S.C. TUTE wc ccccccccccvcccccecs

18 U.S.C, 1153 .ccccccccccccccccvees

Omnibus Crime Control and Safe Streets

Act of 1968, Title III, 18 U.S.C.

(& Supp. V) 2510 et seq. :

18 U.S.C. 2SV1(1) wee ccc cece cece cees

18 U.S.C. SIMIC) cc ceeeceeeeeeeee

18 U.S.C, 2SIN(IMd) oc ceeee cece evens

18 U.S.C, 2511(2) ccc eee cceeeeeeeees

18 U.S.C. 2S1M(2C) vseecccccccecees

18 U.S.C, 2516(2) .. ccc cccccccccccees

18 U.S.C. 2S17(1) wc eee cece eee eeees

1S U.S.C, 25072) wcccccccccccccvcees

Vv

Page

Constitution, statutes and rule—Continued:

Ps Ene sheesbsce vk b000esssenens 2

Ee Wis MEUNLED coecceccovecvecescees 2

Fe Su DEED cb ccccetbeesoconceess 2

Pe Seas GREEN Decvcccccocccencbevesses 2

ue Es MELEE Gn6csoueehés cadeeseddivceesxe 5

Miscellaneous:

S. Rep. No. 1097, 90th Cong., 2d Sess.

(ERED ccccccscvecccccecccsvesscessesceveee 5

On the Supreme Court of the Hnited States

OCTOBER TERM, 1982

No. 82-1427

HELGA MARIE ADAMS, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-A11) is

reported at 694 F.2d 200. The opinion of the district court

(Pet. App. B1-B19) is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. C!-C2)

was entered on December 7, 1982. The petition for a writ of

certiorari was filed on February 5, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

- 1, On August 7, 1981, a federal grand jury in the District

of Hawaii returned a 12-count indictment charging peti-

tioners with offenses relating to obscene materials that

involve the sexual exploitation of minors. Count | charged

all petitioners with conspiring to receive for the purpose of

distribution for sale, and to sell and distribute for sale,

2

obscene visual and print media, the production of which

used and depicted minors engaging in sexually explicit con-

duct, in violation of 18 U.S.C. 371. Counts 2 through 5

charged all petitioners with specific substantive offenses, in

violation of 18 U.S.C. 2252(a)(2). Counts 6 through 11

charged petitioner Proctor with additional substantive

offenses, also in violation of 18 U.S.C. 2252(a)(2), and

Count 12 charged him with transport of the same type of

materials, in violation of 18 U.S.C. 2252(a)(1). After a

bench trial, petitioners were convicted as follows: Proctor,

Counts 1, 2, 3,4 and 12; Adams, Counts |, 3 and 4; Mum-

mert, Count 4.!

Petitioner Proctor was sentenced to five years’ probation

on Count I, and concurrent ten-year terms of imprisonment

on Counts 2, 3, 4 and 12, subject to later modification

following a study as provided in 18 U.S.C. 4205(c). Peti-

tioner Adams was sentenced to five years’ probation on

Count | and concurrent four-year terms of imprisonment

on Counts 3 and 4. Petitioner Mummert was committed to

the custody of the Attorney General for observation and

‘study under the Federal Youth Corrections Act, 18 U.S.C.

5010(e).

2. The investigation that led to this prosecution was

initiated as a joint federal and state undercover investiga-

tion of alleged violations of both federal and state laws

regarding child pornography (Pet. App. B3). As part of the

investigation, United States Customs Agent Darryl Cosme

posed as a pornography distributor, and between May 9

and 20, 1980, he recorded—by means of tape recording,

‘Also charged on Counts | through 5 was co-defendant Shingaki. He

was convicted on Counts |, 2, 3 and 4, and was sentenced to five years’

probation on Count | and concurrent four-year terms of imprisonment

on the remaining counts.

3

video tape and body (audio tape) recorder—his conversa-

tions and meetings with petitioners (id. at B3-B4). A Hono-

lulu Police Department officer installed the tape recording

and videotaping equipment, and each conversation or meet-

ing was monitored by both a local police officer and a

United States customs officer (E.R. 197-199).2 Agent

Cosme was a party to each of the recorded conversations,

and he gave his consent to each recording (ibid.; Pet. App.

B4).

3. Prior to trial, petitioners moved for an order suppress-

ing all evidence obtained or derived from the interception of

wire or oral communications between them and Agent

Cosme. Petitioners argued that this evidence was obtained

in violation of Hawaii law, which, they contended, had been

adopted and incorporated into federal law by a provision of

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, 18 U.S.C. 2516(2).3 The district court denied

the motion (Pet. App. B1-B19). The court ruled that the

intercepted conversations were exempt from the provisions

of Title III in light of 18 U.S.C. 2511(2)(c), which provides

that warrantless recordings of conversations are not unlaw-

ful so long as one party to the conversation consents to the

recording (Pet. App. B10-B12, B17-B18).

On appeal, petitioners again claimed that, despite the

consensual nature of the interceptions, the conversations

could not be admitted because they violated Hawaii law

(Pet. A3-A4). The court of appeals summarily disposed of

the claim on the basis of clear circuit precedent that “evi-

dence obtained from a consensual wiretap conforming to

E.R.” refers to the Excerpts of Record in the court of appeals.

ISection 2516(2) establishes procedures to be followed by state pro-

secutors seeking wiretap authorizations from state court judges. It

requires compliance with applicable state statutes as well as the provi-

sions of Title III.

4

18 U.S.C. section 2511(2)(c) is admissible in federal court

proceedings without regard to state law. United States v.

Hall, 543 F.2d 1229, 1234-35 (9th Cir. 1976) (en banc), cert.

denied, 429 U.S. 1075 (1977); United States v. Keen, 508

F.2d 986, 989 (9th Cir. 1974), cert. denied, 421 U.S. 929

(1975)” (Pet. App. A4-AS5).

ARGUMENT

Petitioners contend (Pet. 8-16) that the decision of the

court of appeals (1) contravenes the intent of Congress to

incorporate state wiretap standards into Title III, thereby

encouraging lawless behavior by state law enforcement

officials, and (2) deprives petitioners of equal protection of

the laws. Petitioners’ contentions are without merit and

have been rejected by every court of appeals that has had

occasion to consider them.

1. Petitioners’ argument that Congress intended state

wiretap standards to govern the admissibility of evidence in

federal court arises from a fundamental misapprehension of

the scope of Title III. Section 251 1(1) sets forth the prohibi-

tions concerning interception of oral and wire communica-

tions. Section 251 1(2) specifically exempts certain intercep-

tions from the coverage of Title III. Among the explicitly

exempted interceptions are those by “a person acting under

color of law * * * [who] is a party to the communication

** "(18 U.S.C. 2511(2)(c)). The remaining provisions of

Title III, including those applicable when permission to

intercept is sought from:a state court judge (18 U.S.C.

2516(2)), do not apply to exempted interceptions. That

simple proposition was the basis for the correct conclusion

by the court of appeals that the challenged interceptions

were properly admitted in this federal proceeding.‘

Petitioners contend (Pet. 12) that Section 2517(1) and (2), governing °

disclosures of intercepted conversations by any law enforcement official

“to the extent such use is appropriate to the proper performance of [his]

5

The court of appeals also correctly refused to reach the

question whether the interceptions violated Hawaii law.

Whether evidence is admissible in a federal court is a ques-

tion of federal law, see, e.g., Elkins v. United States, 364

U.S. 206, 223-224 (1960); United States v. Zemek, 634 F.2d

1159, 1164 n.4 (9th Cir. 1980), cert. denied, 450 U.S. 985

(1981); Fed. R. Evid. 402, and federal law clearly permits

the admission of consensual wiretap evidence irrespective

of whether it conforms to state wiretap standards. See, e.g.,

United States v. Horton, 601 F.2d 319, 323 (7th Cir.), cert.

denied, 444 U.S. 937 (1979); United States v. Nelligan, 573

F.2d 251, 253 (Sth Cir. 1978); United States v. Hall, supra,

543 F.2d at 1234-1235; United States v. Shaffer, 520 F.2d

1369, 1371-1372 (3d Cir. 1975), cert. denied, 423 U.S. 1051

(1976); United States v. Neville, 516 F.2d 1302, 1309 (8th

Cir. 1975); United States v. Keen, supra, 508 F.2d at 989.5

official duties,” incorporates state standards. The courts to which that

argument has been addressed have rejected it, concluding instead that

the provision was intended “to protect the public from unnecessarily

widespread dissemination of the contents of interceptions and from the

wholesale use of information gleaned from a legal wiretap by an

officer—state or federal—for personal or illegal purposes.” United

States v. Hall, supra, $43 F.2d at 1233; United States v. Daniel, 667

F.2d 783, 784 (9th Cir. 1982). Petitioner cites no authority to the

contrary.

Petitioners’ only other argument for the proposition that Hawaii law

is not preempted by Title III's exemption for consensual wiretaps is the

statement in the Senate Report that “{tJhere is no intent to preempt

State law.” S. Rep. No. 1097, 90th Cong., 2d Sess. 93 (1968). But

petitioners neglect to point out that this sentence appeared in a discus-

sion of 18 U.S.C, 2511(1)(c) and (d), which govern the disclosure or use

of the contents of intercepted communications by people who know or

have reason to know that the information was obtained through an

interception in violation of Title II]. The passage thus has no bearing on

the question in this case.

SMoreover, it is not at all clear that Hawaii law regarding consensual

recordings is more restrictive than federal law. Petitioners rely on

language in the Hawaii State Constitution (Pet. 2-3), but that language

6

Petitioners nevertheless argue (Pet. 11) that the effect of

the court of appeals’ decision is to encourage state law

enforcement officers to violate state law, thereby“ ‘endors-

[ing] a novel variation on the sort of illegal trade-off repu-

diated by [this] Court in Elkins v. United States, 364 U.S.

206 (1960),’” quoting United States v. Hall, supra, 543

F.2d at 1237 (Koelsch, J., dissenting). This claim ignores the

rationale of Elkins.

In Elkins, the Court invoked its supervisory power over

the lower federal courts to hold that “evidence obtained by

state officers during a search which, if conducted by federal

officers, would have violated the defendant's immunity

from unreasonable searches and seizures under the Fourth

Amendment is inadmissible over the defendant's timely

objection in a federal criminal trial” (364 U.S. at 223; foot-

note omitted). After Wolf v. Colorado, 338 U.S. 25 (1949),

both logic and concern for judicial integrity compelled that

result, See Elkins, 364 U.S. at 213-216, 222-223. The effect

of Elkins was that no federal officer would be able to

circumvent the requirements of the Constitution by resort

‘to his state counterpart. Contrary to petitioners’ argument,

the decision below does not turn Elkins on its head. It

simply recognizes that, even if evidence is obtained in viola-

tion of state law (but see note 5, supra), it is admissible in a

federal criminal proceeding so long as it was obtained ina

manner that comports with federal law. Any speculation

does not explicitly address the factual situation presented here, and

there is as yet no Hawaii Supreme Court decision resolving the conflict-

ing lower state court decisions. See Hawaii v. Okubo, Cr. No, 55122

(Ist Cir, Hawaii Sept. 4, 1981), appeal pending, No. 8286 (Sup, Ct.

Hawaii) (E.R, 115-149); Hawaii v. Harris, Cr. No, 55905 (ist Cir.

Hawaii Nov. 6, 1981)(E.R. 166-168); Hawaii v. Galaza, Cr. No, 55080

(Ist Cir, Hawaii June 30, 1981) (E.R, 172-177). In the absence of a

definitive ruling by the Hawaii Supreme Court, this Court should not

presume that Hawaii law is any more restrictive than federal law on the

subject of consensual recordings.

—_

ee

7

that the decision encourages a Hawaii law enforcement

official to violate state law is a policy argument that is more

properly addressed to the Hawaii courts and legislature

than the federal courts. See Elkins, 364 U.S. at 221 (“The

question with which we deal today affects not at all the

freedom of the states to develop and apply their own sanc-

tions in their own way”); see also United States v. Shaffer,

supra, 520 F.2d at 1372.

2. Petitioners’ final argument—that the decision below

deprives them of equal protection of the laws—is raised in

this Court for the first time. Absent exceptional circum-

stances not present in this case, this Court will not decide a

question that was not presented to the courts below. United

States v. Lovasco, 431 U.S. 783, 788 n.7 (1977). In any

event, the argument is frivolous.

Petitioners claim that Title III sets up two classes of

people—those whose conversations are intercepted by state

officers through a consensual wiretap and those whose

conversations are intercepted by state officers pursuant toa

state warrant. While that claim may be correct, it does not

make out an equal protection violation. It is simply a statu-

tory distinction based on the rational decision that one type

of interception implicates no Fourth Amendment interest

requiring a warrant.¢ Classification is endemic to all legisla-

tion. Only legislation that treats similar people differently

or different people as if they were the same offends the

principle of equal protection. Title III does no such thing.

_ *That Congress has decided that an application to a state judge for a

warrant also requires conformance to state law is similarly a rational,

non-discriminatory distinction, United States v. Yazzie, 693 F.2d 102,

104 (9th Cir, 1982), that happens also to satisfy petitioners’ concern

(Pet, 15-16) for federal-state comity.

What petitioners are really saying is that their conversa-

tions might have been treated differently under state law.

This Court answered that argument in United States v.

Antelope, 430 U.S. 641 (1977), in which Indians challenged

the application to them of a felony-murder provision, 18

U.S.C. 1111, under the federal Major Crimes Act, 18

U.S.C, 1153, for an offense committed on an In‘ian reser-

vation in Idaho, a state that does not have a felo... murder

provision, This Court held that “it is of no consequence that

the federal scheme differs from a state criminal code * * *,

Under our federal system, the National Government does

not violate equal protection when its own body of law is

evenhanded, regardless of the laws of States with respect to

the same subject matter” (430 U.S. at 648-649; footnotes

omitted). There is no need to address this issue again.

CONCLUSION

The petition for a writ of certiorari should be denied,

Respectfully submitted,

Rex E. Lee

Solicitor General

D. Lowett JENSEN

Assistant Attorney General

Goria C, PHARES

Attorney

May 1983

DOJ-1985-05