Opposition Brief — Chaplin v. United States

Supreme Court; U.S.

FILED

oS MAY 6 1996

In the Supreme Court of the Gnited States

OCTOBER TERM, 1995

KERRY CHAPLIN, PETITIONER

v.

UNITED STATES OF AMERICA

TERRY RATLIFF, SR., PETITIONER

v.

UNITED STATES OF AMERICA

WILLIAM THOMAS LAWRENCE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Drew S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly rejected

petitioners’ challenge to the validity of a state

wiretap on the ground that the court was bound by the

ruling of a prior panel that had rejected the same

legal challenge to the validity of the wiretap.

|

(I)

TABLE OF CONTENTS

RON TIE SP OO a ED

ES ERR ae eg s

I AE LTA Re ee

i EN Ne CE ae Oe aE

a REE es A A oc

TABLE OF AUTHORITIES

Cases:

Cannon v. United States Dep’t of Justice, U.S.

Parole Commission, 973 F.2d 1190 (5th Cir. 1992),.

cert denied, 508 U.S. 915 (1993) .0................ccceceeeeeee

Ciba-Geigy Corp. v. Bolar Pharmaceutical Co.,

747 F.2d 844 (3d Cir. 1984), cert. denied, 471 U.S.

Cf REISE ER SE NG

Hernandez-Uribe v. United States, 515 F.2d 20

(8th Cir. 1975), cert. denied, 423 U.S. 1057 (1976) ...

Jones-Hamilton Co. v. Beazer Materials & Services,

Inc., 973 F.2d 688 (9th Cir. 1992) 2200.00.00... eeeee ee

Pena-Cabanillas v. United States, 394 F.2d 785

I te cncinsanomacs

Smith, In re, 10 F.3d 723 (10th Cir. 1993), cert.

denied, 115 S. Ct. 53 (1994) ...............cccccssccosesesceeeeee

EE ERNE LE ont 1 Oo

ETS SRO ae Ne A

EEE OLE AI OO SN

United States v. Killion, 7 F.3d 927 (10th Cir.

1993), cert. denied. 114 S. Ct. 1106 (1994) ................

United States v. Ortiz-Granados, 12 F.3d 39 (5th

ge SIT a

IV

Cases—Continued: Page

United States v. Pelullo, 14 F.3d 881 (3d Cir.

BN ks idsccsiiccccoesteicsdeatsnccpetnamitemdeanestentainameaas 6

SOD esenccnchciapetadinescetnncsitnteitadamathtaties tec stati ahidass 6

United States v. Storm, 36 F.3d 1289 (5th Cir.

1994), cert. denied, 115 S. Ct. 1798 (1995) ................ 5

United States v. Tavarez, 40 F.3d 1136 (10th Cir.

I ii cesses siseithitgn tcc ene Retard areal iain rts enh tages 4, 5,6

Statutes:

BE TET, GING). vcoicsmvsectsinnetecpnnbioniansgniennns 2

BE TE ak ee cnesecirndintncensneetiaecepilibeniniisiahindinnpiaete 2

BE teas WE cdesenstaescemiesaheassrnipncintmnnipiiebainannamentscienss 2

Oklahoma Security of Communications Act, Okla.

Stat. Ann. tit. 13, §§ 176.1-176.14 (West 1994)........... 3

Miscellaneous:

1 B James W. Moore, et al., Moore’s Federal Practice

|: Re es ee eee 5

In the Supreme Court of the Gnited States

OCTOBER TERM, 1995

No. 95-1355

KERRY CHAPLIN, PETITIONER

v.

UNITED STATES OF AMERICA

No. 95-8134

TERRY RATLIFF, SR., PETITIONER

v.

UNITED STATES OF AMERICA

No. 95-8147

WILLIAM THOMAS LAWRENCE, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR-THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-

37a)' is reported at 69 F.3d 419.

1 “Pet. App.” refers to the appendix filed in No. 95-1355.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

October 24, 1995. A petition for rehearing was denied

on December 1, 1995. Pet. App. 41a-42a. The petition

for a writ of certiorari in No. 95-1355 was filed on

February 23, 1996. The petition in No. 95-8134 was

filed on March 4, 1996, and is therefore out of time

under this Court’s Rule 13.1. The petition in No. 95-

8147 was filed on February 29, 1996. The jurisdiction

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

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Oklahoma, peti-

tioners were convicted of conspiring to possess

cocaine with intent to distribute it, in violation of 21

U.S.C. 846. Petitioner Chaplin was also convicted of

using a communications facility in furtherance of a

drug trafficking offense, in violation of 21 U.S.C.

843(b); and possessing cocaine with intent to dis-

tribute it, in violation of 21 U.S.C. 841(a)(1). Peti-

tioner Chaplin was sentenced to 151 months’ im-

prisonment, tobe followed by a five-year term of

supervised releasé, and fined $5,000. Petitioner Rat-

liff was sentenced to 120 months’ imprisonment, to’ be

followed by a five-year term of supervised release, and

fined $1,000. Petitioner Lawrence was sentenced to

262 months’ imprisonment, to be followed by a five-

year term of supervised release, and fined $3,000. The

court of appeals affirmed. Pet. App. la-37a.

1. Petitioners and Milton Edwards purchased co-

caine from Balbino Tavarez in Houston, Texas, for

resale in Atoka, Oklahoma. Jerry Grist transported

the cocaine from Houston to Tulsa where he distri-

3

buted the cocaine to petitioners and Edwards. Pet.

App. 3a-4a.

In April 1993, an Oklahoma state court authorized

the interception of telephone communications from

two telephone numbers used by Grist in Atoka

County, Oklahoma. Pursuant to the wiretap order,

state agents intercepted a telephone conversation

between Grist and Tavarez that revealed that Grist

planned to travel to Houston to purchase cocaine from

Tavarez. Agents arrested Grist near Atoka as he was

returning from Houston, and found four kilograms of

cocaine in his possession. Petitioners Lawrence and

Chaplin had contributed money toward the purchase

of that cocaine. Pet. App. 3a-4a.

Following his arrest, Grist began cooperating with

the government. He made several calls to petitioner

Ratliff informing him that a “friend” (DEA agent Joe

Leszezynski) would be visiting Tulsa for the purpose

of distributing cocaine. Thereafter, Leszczynski con-

tacted Ratliff and Chaplin concerning cocaine pur-

chases. Grist’s father also began cooperating with

the government, and agents recorded calls he made to

Chaplin and Ratliff concerning planned purchases of

cocaine. Chaplin purchased one kilogram of cocaine

from Grist’s father and was arrested. Grist’s father

also agreed to provide two kilograms of cocaine to

Edwards and Lawrence on credit. Edwards and

Lawrence were arrested after Lawrence took pos-

session of the cocaine. Pet. App. 4a-6a.

2. Following their indictment, petitioners moved

to suppress evidence obtained pursuant to the April

1993 wiretap on Grist’s phones on the ground that the

“interception” of those communications did not occur

“within the territorial jurisdiction * * * of the dis-

trict attorney requesting the order” as required by

4

the Oklahoma Security of Communications Act, Okla.

Stat. Ann. tit. 18, §§ 176.1-176.14 (West. 1994). The

district court rejected that contention. It held that,

under the Oklahoma wiretap statute, an “inter-

ception” occurs where the agents monitor the call,

not where the phones are located. Because the agents

monitored the calls within the jurisdiction of the

district attorney who applied for the wiretap, the

court concluded that the district attorney had author-

ity to apply for the wiretap. Pet. App. 38a-40a.

3. The court of appeals affirmed. Pet. App. la-37a.

The court rejected petitioner’s challenge to the wire-

tap order on the authority of its decision in United

States v. Tavarez, 40 F.3d 1136 (10th Cir. 1994). In

that case, the Tenth Circuit held that, under the

Oklahoma wiretap statute, an “interception” occurs

“in the place where the contents of the communi-

cation are first heard by law enforcement officials.”

Id. at 1187. While petitioners urged the court of

appeals to reconsider its ruling in Tavarez, the court

declined to do so. The court held that “[w]Je are bound

by our authoritative construction of the Oklahoma

wiretap statute in Tavarez absent an intervening

Supreme Court precedent or en banc reconsidera-

tion.” Pet. App. 10a:

ARGUMENT

1. Petitioners argue (95-1355 Pet. 6-8; 95-8134 Pet.

6-9; 95-8147 Pet. 7-11) that, because they were not

parties in Tavarez, the court of appeals erred in

applying the doctrine of collateral estoppel to pre-

clude them from relitigating the validity of the

wiretap upheld in Tavarez. That contention is with-

out merit.

5

In refusing to reconsider its decision in Tavarez,

the court of appeals in this case applied the doctrine of

stare decisis, not the doctrine of collateral estoppel.

See Pet. App. 8a-10a. Under the doctrine of stare

decisis, an appellate panel is generally bound by the

holding of a prior panel, absent an intervening

contrary decision by the en banc court, the Supreme

Court, or, when the issue is one of state law, the

courts of the State. United States v. Storm, 36 F.3d

1289, 1297 (5th Cir. 1994), cert. denied, 115 S. Ct. 1798

(1995); Snell v. Lockhart, 14 F.3d 1289, 1305 (8th Cir.),

cert. denied, 115 S. Ct. 419 (1994); United States v.

Ortiz-Granados, 12 F.3d 39, 41 (5th Cir. 1994); In re

Smith, 10 F.3d 723, 724 (10th Cir. 1993), cert. denied,

115 S. Ct. 53 (1994); United States v. Killion, 7 F.3d

927, 930-931 (10th Cir. 1993), cert. denied, 114 S. Ct.

1106 (1994); United States v. Hogan, 986 F.2d 1364,

1369 (11th Cir. 1993); Cannon v. United States Dep’t

of Justice, U.S. Parole Comm’n, 973 F.2d 1190, 1196

(5th Cir. 1992), cert. denied, 508 U.S. 915 (1993);

Jones-Hamilton Co. v. Beazer Materials & Services,

Inc., 973 F.2d 688, 696 n.4 (9th Cir. 1992); Ciba-Geigy

Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844, 856

n.10 (3d Cir. 1984), cert. denied, 471 U.S. 1137 (1985).

Unlike’ the doctrine of collateral estoppel, which pre-

cludes relitigation of factual issues and applies only

to parties to the prior proceeding (and those in privity

with them), the doctrine of stare decisis precludes

reconsideration of legal issues and applies to all

persons, regardless of whether they were parties to

the prior proceeding. 1B James W. Moore, et. al.,

Moore’s Federal Practice 4 0.401 (2d ed. 1995).

The court of appeals correctly applied the doctrine

of stare decisis in this case. In Tavarez, the Tenth

Circuit held that the Oklahoma wiretap statute

————— —————————

authorizes a district attorney to apply for a wiretap

order when the conversations will be monitored

within the district attorney’s jurisdiction. 40 F.3d at

1138. The Tavarez court expressly rejected the

defendant’s argument that the Oklahoma statute

permits a district attorney to apply for a wiretap

order only when the tapped phones are within the

district attorney’s jurisdiction. Jbid. Petitioners in

this case did not seek to relitigate any of the factual

issues decided in Tavarez. Instead, they raised the

same legal contention raised by the defendant in

Tavarez—that the Oklahoma _ wiretap statute

authorizes a district attorney to request a wiretap

only when the tapped phones are within his

jurisdiction. Pet. App. 9a. Because the Tavarez

decision had authoritatively resoived inat legal issue,

and there was no intervening en banc, Supreme

Court, or state court decision to the contrary, the

court of appeals correctly rejected petitioners’ chal-

lenge to the wiretap at issue in this case on the

authority of its decision in Tavarez.

2. Petitioners alternatively contend (95-1355 Pet.

8-10; 95-8134 Pet. 9-12) that the Court should grant

review to resolve the conflict in the circuits

concerning whether collateral estoppel may be applied

against a criminal defendant. Compare United States

v. Pelullo, 14 F.3d 881, 889-896 (3d Cir. 1994) (col-

lateral estoppel may not be applied against a criminal

defendant); United States v. Harnage, 976 F.2d 633,

635 (llth Cir. 1992) (same) with United States v.

Rosenberger, 872 F.2d 240, 241-242 (9th Cir. 1989)

(collateral estoppel may be applied against a criminal

defendant); Hernandez-Uribe v. United States, 515

F.2d 20, 21-22 (8th Cir. 1975) (same), cert. denied, 423

U.S. 1057 (1976); United States v. Colacurcio, 514 F.2d

1, 6-7 (9th Cir. 1975) (same); Pena-Cabanillas v.

United States, 394 F.2d 785, 786-788 (9th Cir. 1968)

(same). As discussed above, however, the court of

appeals in this case applied the doctrine of stare

decisis, not the doctrine of collateral estoppel. This

case therefore does not present an occasion to resolve

the conflict in the circuits identified by petitioners.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

DEBORAH WATSON

Attorney

MAY 1996