Petition for Writ of Certiorari — Thompson v. United States

Supreme Court brief1992

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No.

IN THE SUPREME COURT OF THE UNITED STATES

November Term, 1991

UNITED STATES OF AMERICA,

RESPONDENT,

versus

BYRON LESTER THOMPSON,

PETITIONER.

On Petition for a Writ of Certiorari

To the United States Court

Of Appeals For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

COUNSEL OF RECORD:

W. GASTON FAIREY, ESQUIRE

FAIREY & PARISE, P., A.

Post Office Box 8443

Columbia, South Carolina 29202

(803) 252-7606

ATTORNEY FOR THE PETITIONER.

QUESTIONS PRESENTED

Should improperly obtained pen

exclusionary rule where it is used to

establish probable cause for the issuance

of the Title III wiretap order?

TABLE OF CONTENTS

QUESTIONS PRESENTED .... .

TABLE OF CONTENTS ..... .

TABLE OF AUTHORITIES ... .

CITATIONS TO OPINION BELOW.

JURISDICTION ....-.-o« ~»

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED ... .

STATEMENT OF THE CASE... .

REASONS FOR GRANTING THE WRIT

CONCLUSION ....+.-+«-o-«.« e

APPENDIX ee ee aa ee

PAGE

iii

TABLE OF AUTHORITIES

PAGE

Smith v. Maryland, 442 U.S. 735

(1979) . . . > . _ > > bel . 7 . > 9

United States v. Thompson, No. CR489-59

a ae epee ee 2.

United States v. Thompson, 936 F.2d

1249 (11th Cir. 1991) . 2-8 oe 2,6,

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iii

No.

IN THE SUPREME COURT OF THE UNITED STATES

November Term, 1991

“\ UNITED STATES OF AMERICA,

RESPONDENT,

versus

BYRON LESTER THOMPSON,

PETITIONER.

On Petsition for Writ of Certiorari

To the United States Court

Of Appeals For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Byron L.

Thompson, prays that a Writ of Certiorari

be issued to review the judgment of the

United States Court of Appeals for the

Eleventh Circuit in this case.

CITATIONS TO OPINION BELOW

The opinions relevant to this

case are reported in United States v.

f asl q

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Thompson, No. CR489-59 (S.D. Ga. 1989),

aff'd, United States v. Thompson, 936 F.2d

1249 (11th Cir. 1991). (See Appendix A.,

pp. 1-3).

JURISDICTION

The United States Court of

Appeals for the Eleventh Circuit entered

its judgment on September 3, 1991. The

Petitioner did not seek a rehearing in

that Court. He invokes this Court's

jurisdiction, pursuant to 28 U.S.C. §§41,

1291, and 1294(1) and Rule 4 of the

Federal Rules of Criminal Procedure.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The pertinent provisions and

statutes are Chapter 119 of Title 18 U.S.

Code (Title III), §§2510-2520 (wiretap

statute) and §§3121-3127 (pen register

statute).

STATEMENT OF THE CASE

The Petitioner, Byron L.

Thompson, (hereinafter Thompson) , was

indicted by the Federal Grand Jury of the

Southern District of Georgia and charged,

along with twenty-nine’ others, with

operating a drug conspiracy out of

Savannah, Georgia. In pre-trial motion

hearings, Thompson challenged the validity

of a Title III wiretap issued by the

District Court on August 1, 1989. The

magistrate issued a pen register order on

June 28, 1989, and a wiretap order was

issued by the District Court in August of

1989. Although the applicant for the pen

Newman, Assistant United States Attorney

(AUSA), the application was signed by AUSA

Kathy M. Aldridge “for Joseph D. Newman."

Thompson challenged this procedure as

violative of 18 U.S.C. §3122 (1988) and

asked the Court to suppress the wire tap

issued as a result of evidence obtained

from the pen register.

The District Court’ rejected

Thompson's arguments as to the invalidity

of the issuance of the pen register and

subsequent wire tap. The Court found Ms.

Aldridge was an “applicant" within the

meaning of 18 U.S.C. §3122 (1988) "despite

the manner in which [she} signed the

application." (Appendix C., p. (16) -

Magistrate's Report and Recommendation,

No. CR 489-59 (S.D. Ga. 1989)).

Additionally, the District Court found

that even if Ms. Aldridge were not a

proper applicant for the order, the

"exclusionary rule in this case would be

inappropriate since no- constitutional

violation occurred." (Appendix C. at p.

(18)) The District Court held that, absent

the constitutional exclusionary rule under

the Fourth Amendment, there was no

statutorily-created exclusionary rule

regarding pen registers.

Following the denial of

Thompson's motion on wiretap evidence, he

entered into a plea agreement with the

United States government and pleaded

guilty to counts two and three of the

indictment. As part of the plea

agreement, Thompson reserved his right to

appeal the District Court's determination

of the propriety cf the pen register and

wire tap orders and to withdraw his guilty

plea if the District Court was reversed.

Subsequent to his guilty plea and pre-

sentence report, Thompson was sentenced by

the District Court to 293 months

incarceration. Thompson is presently in

the custody of the United States Bureau of

Prisons.

The Court of Appeals for the

Eleventh Circuit assumed that the

procedure used by the District Court

constituted "a technical violation of the

[Pen Register] Act." U. S. v. Thompson,

936 F.2d 1249, 1250 (11th Cir. 1991). The

Court of Appeals reasoned that where the

magistrate could not remember the specific

circumstances of the seticdeton, where it

was uncertain that the substitute attorney

had knowledge of the case, and where the

application did not meet the statutory

requirements, the Act had been violated.

"In the absence of explicit recollection

by the magistrate judge or testimony from

the signing attorney about any assurances

she made to the court, we have serious

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reservations about the accuracy of the

holding." Thompson, 936 F.2d at 1250.

The Court of Appeals held that

even if the pen register order was

improperly issued under the _ statute,

Thompson would still not be entitled to

suppress the information obtained by the

government through the pen register. The

Court of Appeals refused to exclude the

evidence for two reasons. First, since

there was no constitutional requirement

for a warrant prior to obtaining a pen

§3122 would not be under a judicially-

created exclusionary rule. Second,

because Congress did not specifically

include an exclusionary rule under the pen

tap legislation at 18 U.S.C. §§2515 and

2518(10) (a) (1988), Congress did not

‘i

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intend for that statutory exclusion to

apply to pen registers. The Court of

Appeals noted — violators of the

provisions of the statute regarding pen

registers incur fines and _ possible

imprisonment. The Court reasoned that if

Congress intended an additional

exclusionary penalty to apply, it would

have placed it within this’ section.

Thompson, 936 F.2d 1252.

The Court entered its judgment

September 3, 1991. The basis for federal

jurisdiction is 28 U.S.C. §1254.

REASONS FOR GRANTING THE WRIT

This case involves a novel

issue of law which has not previously been

decided by this Court, but which should be

resolved. Whether evidence obtained from

an improperly issued pen register and

subsequent wire tap should be subject to

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the exclusionary rule is a crucial issue

in light of the controls imposed by

Congress in the area of electronic

surveillance.

The Court of Appeals for the

Eleventh Circuit assumed that the

procedure followed in the application and

issuance of the pen register was a

violation of the pen register statute. At

the same time the Court denied Thompson a

remedy. The Court reasoned that even if

the substitute attorney were not a proper

applicant, the exclusionary rule would be

inapplicable to the statutory violation as

the use of the pen register is not a

search under the Fourth Amendment. This

rule was based upon this Court's decision

in Smith v. Maryland, 442 U.S. 735 (1979).

An order for a pen register may

issue upon application of an attorney for

the government "in writing under oath or

equivalent affirmation." 18 U.S.C. §3122

(1988). The attorney for the government

certifies that the information likely to

be obtained by the installation of a pen

criminal investigation. 18 U.S.C. §3123.

The requirements that the

applicant for a pen register: 1) apply in

writing "under oath or equivalent

affirmation," and 2) certify that the

information likely to be obtained by the

installation cf a pen register is relevant

to an ongoing criminal investigation,

express: the clear intent of Congress to

impose controls on the issuance of orders

for pen registers and to place the

issuance of pen register orders under the

authority of the Court. 18 U.S.C. §§3122

(a)(1), 3122(b)(2) (1988). Here, the

information obtained from the improperly

issued pen register was used to establish

probable cause to secure a Title III

wiretap. Title III (18 U.S.C. §§2515 and

2518(10) (a) ) excludes evidence from

wiretaps obtained in violation of the

statute. The chain of actions leads to

the conclusion that if the pen register

was based on an improper application, then

the order for the wiretap must necessarily

also be improper. The next logical link

in the chain is to exclude the evidence

improperly received to remedy violations

of the congressional mandate. To deny a

remedy for the improper issuance of a pen

incorporated by Congress into the 1986 Pen

Although the statute imposes

fines and imprisonment for knowing

violations of the Act, these remedies are

not applicable to cases, as here, in which

an order is, obtained for the pen register.

18 U.S.C. §§3124(e) and 3121(a) (1988).

The fundamental unfairness of this

situation does not square with the intent

of Congress, manifest in the provisions of

the 1986 Pen Register Act, to safeguard

citizens from the improper issuance of pen

the Government’ strictly comply with

federal laws relating to electronic

surveillance. The ruling below makes it

clear that this congressional mandate is

hollow. A necessary remedy to assure

compliance with the law is to disallow

evidence obtained as a result of the

,improper pen register order to be used as

the basis for a Title III wiretap order.

Without such remedy, the safeguards

incorporated by Congress into the 1986 Pen

CONCLUSION

Thé judgment below fails to

provide a remedy for an improperly issued

pen register and allows the illegal order

to be used for issuance of a Title III

wiretap order. The case involves

substantial and important issues. not

previously addressed by this Court but

which should be settled. The Petition for

Writ of Certiorari should, therefore, be

granted.

RESPECTFULLY SUBMITTED, this the

27 aay of November, 1991.

FAIREY & PARISE, P. A.

Cs oe

W. GASTON FAIREY —a_

Post Office Box 8443

Columbia, South Carolina 29202

(803) 252-7606

Attorney for the Petitioner.

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PENDIX

Order and Judgment, U.S. v.

Thompson, No. CR489-59

(3.0. Ge. S900) 3 so *

Order, dated 6/28/90, CR489-59

Magistrate's Report and

Recommendation, No. CR489-59

(S.D. Ga. 1989)

(1).

(4)

(6)

APPENDIX A.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF AMERICA )

vs CR489-59

BYRON LESTER THOMPSON

D) The judgment of this court in

the shove entitled action having been

"ecyy

AFFIRMED;

IT IS HEREBY ORDERED that the

judgment of the Eleventh Circuit, U. S.

Court of Appeals, is made the judgment of

this Court.

This 3rd day of September, 1991.

B. AVANT EDENFIELD

CHIEF JUDGE, U. S. DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

(1)

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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 90-8343

D. C. DOCKET NO. CR489-59-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BYRON LESTER THOMPSON,

Defendant~Appellant.

Appeal from the United States District

Court for the Southern District

of Georgia

Before KRAVITCH and COX, Circuit Judges,

and RONEY, Senior Circuit Judge.

JUDGMENT c.

This cause came to be heard on

the transcript of the record from the

United States District Court for the

Southern District of Georgia, and was

argued by counsel;

ON CONSIDERATION WHEREOF, it is

(2)

now hereby ordered and adjudged by this

Court that the judgment of convictions: of

the said District Court in this cause be

and the same is hereby AFFIRMED.

Entered: July 30, 1991

For the Court: Miguel J. Cortez, Clerk

By: Karleen McNoble, Deputy Clerk

ISSUED AS MANDATE: AUGUST 22, 1991

(3)

APPENDIX B.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF AMERICA ) NO.: CR489-59

Vv.

BYRON LESTER THOMPSON,

et al.,

DEFENDANT.

THIS MATTER comes’ before the

Court pursuant to the Order, dated and

entered on March 11, 1990, (a copy of

which is attached hereto and made a part

hereof), regarding allowance of Defendant

Thompson's Objections to the Magistrate's

Report, filed on November 29, 1989.

WHEREFORE, after careful review

of the file, the Court concurs with the

Magistrate's Report and Recommendation, to

which objections have been filed by

Defendant. Accordingly, the Report and

(4)

Recommendation of the Magistrate is

adopted as the opinion of the Court and

the Defendant's Motion to Suppress is

hereby DENIED.

AND IT IS SO ORDERED, this the

28th day of June, 1990, in Savannah,

Georgia.

B. AVANT EDENFIELD, JUDGE

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

(5)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

UNITED STATES OF AMERICA, )

Plaintiff,

Ve Case No. CR489-59

BYRON LESTER THOMPSON,

et al.,

Defendants.

eee ee ee ee ee ee eee ee

REPORT AND RECOMMENDATION

Defendant Byron Thompson has

moved the Court to suppress’ certain

evidence obtained by the government by

electronic surveillance of defendant's

cellular phone, (404) 626-2032. In his

motion to suppress the wiretap evidence,

defendant contends that probable cause for

the issuance of the wiretap order was

based upon unlawful evidence, that the

wiretap was issued without probable cause

to believe that the defendant in fact used

the cellular phone, and that federal

(6)

agents failed to minimize the interception

cf nonrelevant conversations. After

carefully considering the evidence, the

statutory provisions, and the case law, I

find that the defendant's motion is

without merit and should be denied.

BACKGROUND

On August 1, 1989, Assistant

United States Attorney Joseph D. Newman,

after obtaining the necessary

authorization from the Assistant Attorney

General in charge of the Criminal

Division, applied for an order from this

Court authorizing the interception of wire

communications associated with cellular

telephone number (404) 626-2032. In the

application and accompanying affidavit by

DEA Special Agent Darrell R. Snider, the

government set forth its probable cause

basis for believing that the subject

(7)

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telephone was being used in connection

with an on-going conspiracy to possess and

distribute cocaine and crack cocaine in

the Savannah, Georgia area. The agent's

affidavit set forth in elaborate detail

the government's factual basis for

believing that Yves "Lucky" Pierre, Byron

Lester Thompson, Anthony Jackson, Julie

Kennedy, Byron Sanders, Mark Williams,

Lawson Huff, Reginald Wall, Eugene Moore,

and other unidentified individuals were

members of a large cocaine distribution

organization headed by Pierre in Miami and

by Thompson in Savannah. The affidavit

reflected that the probable cause showing

was based upon information furnished by

confidential informants, intelligence

information: from various law enforcement

agencies, telephone billing and toll

records, information obtained through pen

(8)

registers authorized by this Court, and

information obtained pursuant to a

judicially authorized wiretap of cellular

telephone number (912) 658-2724.!

After considering the

government's application and the affidavit

of the DEA case agent, on August 1, 1989,

Chief Judge Anthony A. Alaimo of this

Court entered an Order authorizing the

interception of wire communications over

cellular telephone number (404) 626-2032,

subscribed to by Leroy Stanley. During

the 22-day period of the wire tap, the

government intercepted a total of 584

' The initial wiretap in this case was

conducted pursuant to an order entered by

Judge Edenfield of this Court on July 5,

1989. The wiretap order authorized the

intetception of communications over a

cellular telephone subscribed to by Alissa

Hamilton and frequently used by Anthony

Jackson in connection with the criminal

conspiracy. The wiretap was terminated on

July 28, 1989.

(9)

calls, 51 of which were minimized. The

wiretap was terminated on August 21, 1989,

whereupon the original tapes and logs were

delivered to the Court and placed under

seal.

DISCUSSION

= Was The Wiretap Based Upon Evidence

Obtained From An Unlawful Pen Register?

The defendant first contends

that the government's showing of probable

cause for an order authorizing the wiretap

of cellular telephone (404) 626-2032 was

based upon evidence obtained pursuant to

the unlawful use of a pen register device

on the subject phone. The defendant

concedes that on June 28, 1989, the

undersigned judicial officer entered an ex

parte Order authorizing the installation

and use of the pen register device. The

defendant- points out, however, that the

(10)

pen register order was issued pursuant to

an application which listed Assistant

United States Attorney (AUSA) Joseph D.

Newman as the applicant but which was in

fact signed by AUSA Kathy M. Aldridge "for

Joseph D. Newman." The defendant argues

that since no provision of the pen

‘

attotney to sign for another, the pen

regigter Order should not have issued and

the eVidence obtained pursuant to that pen

establish probable cause for the issuance

of the second Title III wiretap.

In 1979 the Supreme Court held

that the government's installation and use

of a pen register device to record numbers

dialed from a suspect's telephone is not a

“search within the meaning of the Fourth

Amendment." Smith v. Maryland, 442 U.S.

(11)

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735 (1979). Hence, the Court concluded

that there is no constitutional

requirement .that the government obtain a

warrant before utilizing a pen register

device. In 1986, however, Congress

enacted the Electronic Communications

Privacy Act, 18 U.S.C. §3121 et seq.,

which imposes a general prohibition on the

use of pen registers or trap and trace

devices without a court order. 18 U.S.C.

§3121(a). Under §3122(a) of Title 18,

"fajn attorney for the Government may make

application" for a court order authorizing

the use of a pen. register. The

application shall be "in writing under

oath or equivalent affirmation...." Id.

The application shall contain, inter alia,

"a certification by the applicant that the

information likely to be obtained [through

the pen register] is relevant to an

(12)

ongoing criminal investigation" being

conducted by the designated law

enforcement agency. 18 U.S.C. §3122(b).

Upon review of such an application, a

court “shall” enter an ex parte order

authorizing the pen register if the court

finds that the government attorney has in

fact made the proper certification. 18

U.S.C. §3123(a). As the legislative

history reflects, §3123 (a) “does not

envision an independent judicial review of

whether the application meets the

relevance standard, rather the Court needs

only to review the completeness of the

certification submitted." S. Rep. No.

541, 99th Cong., 2d Sess. 1, 47 (1986),

reprinted in 1986 U. S. Code Cong. & Ad.

News 3555, 3601. >

On June 28, 1989, the Court was

presented with an application for the

(13)

installation and use of a pen register

device on cellular telephone number (404)

626-2032. Although the “applicant" was

listed as AUSA Joseph D. Newman, the

application was actually presented by AUSA

Kathy M. Aldridge, who works in the same

office as Mr. Newman. Generally, the

Assistant United States Attorney seeking a

pen register authorization presents the

ene teliebin in person; from time to time,

however, the Court has permitted another

Assistant to submit the application where

the person named as "“applicant" is

unavailable. In all such cases, it is the

practice of the undersigned judicial

officer to inquire whether the AUSA

presenting the application is familiar

with the general background of the

criminal investigation and can assure the

Court as to the accuracy of the

(14)

certification set forth in the

application. The very -purpose of having

the AUSA swear to the truthfulness of the

application is to ensure that whoever

presents the application is in fact a

proper “applicant" within the meaning of

the pen register statute. In any case,

the Court would decline to enter an Order

authorizing a pen register if the AUSA who

presents the application is unable to

certify personally that the pen register

is likely to result in information

relevant to an ongoing criminal

investigation. Although I have no

specific recollection of the presentation

of this particular application for a pen

procedure was employed in this case.

In this case, AUSA Kathy M.

Aldridge signed the application "for

(15)

Joseph D. Newman." The defendant is

entirely correct that it cannot be said

from the face of the application that Ms.

Aldridge is in fact an "applicant" who is

signing the form "under penalty of

perjury" (as stated in the final paragraph

of the application).? I find, however,

that despite the manner in which Ms.

Aldridge signed the application, she was

in fact an “applicant" within the meaning

of 18 U.S.C. §3122. Before issuing the

pen register Order, the Court required Ms.

Aldridge to attest to the truthfulness of

the certification set forth in the

application that she was presenting. I

find that this procedure satisfies the

"oath or equivalent affirmation"

? Obviously, Ms. Aldridge could not

expose Mr. Newman to the penalty of

perjury by signing an application on his

behalf.

(16)

requirement of §3122(a). See United

States v. Florea, 541 F.2d 568 (6th Cir.

1976), cert. denied, 430 U.S. 945 (1977)

(FBI agent's failure to sign affidavit in

support of wiretap applicaticn did not

require suppression where judge based

order on agent's sworn statements made in

his presence).

Even assuming the Court were to

conclude that Ms. Aldridge never became a

proper applicant for an Order authorizing

the use and installation of a pen

the suppression of the information which

the government obtained through the use of

the pen register. As noted earlier, the

use of a pen register device does not

result in a "search" for purposes of the

Fourth Amendment, and therefore there is

no constitutional requirement that a

(17)

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warrant be obtained prior to the

installation of such a device.

Accordingly, the government's

noncompliance with the provisions of §3122

in obtaining an order authorizing the

installation of a pen register would not

require or justify the invocation of the

judicially created "exclusionary rule" for

remedying Fourth Amendment violations.

See Stone v. Powell, 428 U.S. 465, 482,

486 (1976); United States v. Comstock, 805

F.2d 1194, 1207-08 (5th Cir. 1986)

(judicially created exclusionary rule is

applicable only to constitutional

violations). Application of such an

exclusionary rule in this case would be

inappropriate since no- constitutional

violation occurred.’

3 Even if the Fourth Amendment

applied, it is questionable whether

suppression would be warranted in view of

(18)

Perhaps anticipating this point,

the defendant suggest that the statutory

exclusionary rule set forth in Title III

of the Omnibus Crime Control and Safe

Streets Act of 1968 -- the federal wiretap

law -- requires the suppression of

evidence obtained pursuant to a= pen

defective application. The Supreme Court

has held that "(bjoth the language of the

the Supreme Court's decision in United

States v. Leon, 468 U.S. 897 (1984). Leon

recognized a good faith exception to the

exclusionary rule where government agents

obtained evidence in objectively

reasonable reliance on a properly issued

search warrant which was later found to be

invalid for lack of probable cause. See

Massachusetts _ v. Sheppard, 468 U.S. 981

(1984); United States v. Malekzadeh, 855

F.2d 1492, 1497 (11th Cir. 1988) (applying

Leon's good faith exception to the

exclusionary rule to uphold a Title III

wiretap). Leon would apply with

compelling force in this case since the

agents reasonably relied on a pen register

order which was arguably invalid only

because the application was not properly

signed.

(19)

[wiretap] statute and its legislative

history establish beyond any doubt that

pen registers are not governed by Title

III." United States v. New York Telephone

Co., 434 U.S. 159, 166 (1977). "It is

clear that Congress did not view pen

registers as posing a threat to privacy of

the same dimension as the irterception of

oral communications and did not intend to

impose Title III restrictions upon their

use." Id. at 168. Undaunted by this

precedent, the defendant suggests that

since the definitional section of the more

recently enacted pen register statute

refers to the wiretap statute for the

definition of certain terms, 18 U.S.C.

§3127(1), it is therefore "clear" that

violations of the pen register statute are

subject to the Title III exclusionary

rule.

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It is an elemental cannon of

statutory construction "‘that the mention

of one thing implies the exclusion of

another; expressio unius est exclusio

alterius.'" United States v. Castro, 837

F.2d 441, 442 (llth Cir. 1988). While

Congress, in enacting the pen register

statute, borrowed certain definitions set

forth in §2510 of the wiretap statute, it

nowhere adopted or incorporated the

statutory exclusionary rule set forth in

an entirely different section of Title

III. 18 U.S.C. §§2515, 2518(10)(a). By

clear implication, therefore, Congress

never meant to apply the Title III

exclusionary rule to violations of the pen

4 Further evidence of this intent is

seen in 18 U.S.C. §3121(c), which provides

that the knowing use of a pen register

without a court order shall result in a

fine or imprisonment up to one year. Had

(21)

unius principle must yield to persuasive

evidence of contrary legislative intent,

Transamerica Mortgage Advisors, Inc. v.

Lewis, 444 U.S. 11, 19-24 (1979); Castro,

837 F.2d at 443, there is no indication in

the legislative history of the pen

ineeveerete into that statute the

exclusionary rule which it had fashioned

for violations of Title III. It appears,

therefore, that there is neither a

constitutional nor a statutory basis for

excluding the evidence which the

government obtained pursuant to the pen

™e

of June 28, 1989.

In a related area, numerous

cases from this circuit and the new fifth

Congress chosen to adopt the additional

"exclusionary" penalty set forth in Title

III, it could certainly have done so.

(22)

circuit have recognized that, absent a

clear constitutional violation,

noncompliance with the provisions of Fed.

R. Crim. P. 41 in the issuance of a search

warrant requires suppression of evidence

only where "‘(1) there was ‘prejudice' in

the sense that the search might not have

occurred or would not have been so

abrasive if the rule had been followed or

(2) there is evidence of the intentional

and deliberate disregard of a provision in

the Rule.'" United States v. Comstock,

805 F.2d 1194 (5th Cir. 1986) (issuance of

a search warrant by a state court which

was not a "court of record" as required by

Rule 41 did not require the suppression of

evidence seized in the search); United

States v. Loyd, 721 F.2d 331, 333 (11th

Cir. 1983) (magistrate's failure to

certify the accuracy of the transcript of

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a taped oral search warrant did not

require suppression), quoting United

States v. Stefanson, 648 F.2d 1231 (9th

Cir. 1981); United States c. Giancarli,

617 F.Supp. 551, 553-54 (S.D. Fla. 1985) /

(magistrate's failure to place affiant

under oath before issuing telephone search

warrant did not require suppression of the

evidence seized pursuant to the warrant).