# Opposition Brief — Chaplin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1908%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1243 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1908%3A2. Public record. Not legal advice.