United States v. Guy Mickey McNulty George O'brien, Theodore Tulper, Donald Staadts, James Nestoff and Dennis Valley , 729 F.2d 1243 ( 1984 )

ALDON J. ANDERSON, District Judge.

Because I find that the wiretap order issued by Colorado District Court Judge Robert F. Kelly complied with the requirements of the Colorado wiretapping statute, as well as the federal statute, I find it unnecessary to reach the question addressed by Judge Doyle. Since the order complied with both statutes, it is not necessary to determine which statute applies in order to determine the result in this case.

The court below suppressed the evidence obtained pursuant to the state judge’s wiretap order, on the grounds that the order did not comply with Colo.Rev.Stat. § 16-15-102 (1978), the Colorado wiretapping statute. In essence, this statute authorizes an ex parte wiretap order if there is probable cause to believe that evidence will be obtained of the commission of any one of several enumerated offenses. Colo.Rev.Stat. § 16-15-102(4) (1978).¹ One of the enumerated offenses is professional gambling. Colo.Rev.Stat. § 16-15-102(1)(a)(III) (1978).² However, the above provisions are modified by § 16-15-102(1)(b), which provides that “[a]nything to the contrary notwithstanding, an ex parte order for wiretapping or eavesdropping may be issued only for a crime specified in this subsection (1) for which a felony penalty is authorized upon conviction.”

Of the crimes listed in the wiretap application, only professional gambling and criminal conspiracy are crimes for which a wiretap is authorized by the statute.³ Professional gambling may be either a misdemeanor or felony offense, depending on whether the offender is classified as a “repeating gambling offender.” Colo.Rev.Stat. § 18-10-103(2) (1978). A repeating gambling offender is “any person who is convicted of an offense under section 18-10-103(2) or sections 18-10-105 to 18-10-107 within five years after a previous misdemeanor conviction under these sections or a former statute prohibiting gambling activities, or at any time after a previous felony conviction under any of the mentioned sections.” Colo.Rev.Stat. § 18-10-102(9) (1978).

The defendants and the court below have focused their attention on defendant McNulty. The affidavit accompanying the wiretap application shows he had a misdemeanor professional gambling conviction in 1979, one year before the wiretap application. Of course, in order for him to be subject to a felony penalty for professional gambling, he must be convicted of that crime within five years of the 1979 misdemeanor conviction. Though it was highly probable that McNulty, if convicted at all, would be convicted within the five year limit, Judge Kelly, in reviewing the wiretap application, could not know for certain that the time requirement would be met. Therefore, reasoned the court below, since this unknown condition subsequent must be satisfied before a “felony penalty is authorized” for the crime under investigation, the wiretap order issued by Judge Kelly did not comply with the requirement of § 16—15—102(1)(b).

Although I question the conclusion reached by the court below as to defendant McNulty,⁴ it is not necessary to base my determination of this case on McNulty’s prior misdemeanor professional gambling conviction. I have discovered in the record what the parties and the court below apparently overlooked: the affidavit accompanying the wiretap application clearly shows that defendant Dennis Valley had a prior felony professional gambling conviction, which therefore makes the crime under investigation by the wiretap certainly one “for which a felony penalty is authorized upon conviction.”

The affidavit accompanying the wiretap application includes a section entitled “Background on Principal Subjects.” A biographical sketch of each of the defendants is contained in this section, including the prior criminal record of each. The pri- or criminal records of both defendant McNulty and defendant Valley are rather voluminous. Item (aa) under the record for Valley notes as follows:

(aa) Denver, Colorado, April 3, 1974 arrested for gambling, gambling information, professional gambling, conspiracy, pled guilty to professional gambling and conspiracy, received five years at the Colorado State Penitentiary (sentence suspended).

Record at Vol. I, p. 126. It is clear to me, as it was to Judge Kelly, that this conviction must have been a felony professional gambling conviction. This conclusion is based on the following observations: (1) a five year sentence is definitely a felony penalty — the most severe misdemeanor penalty is two years imprisonment Colo.Rev.Stat. 18-1-106 (1978); (2) incarceration in the state penitentiary is a felony penalty — it is a forbidden penalty for a misdemeanor violation unless served concurrently with a term for conviction of a felony, id.; (3) item (v) under the prior criminal record of Valley, a misdemeanor gambling conviction in 1970, provides the prior misdemeanor gambling conviction within five years upon which the 1974 felony conviction could have been predicated; (4) the felony penalty could not have been based on the conspiracy charge alone, for the penalty for conspiracy in Colorado depends on the penalty for the underlying crime, see Colo.Rev.Stat. § 18-2-201(5) (1978).

Hence, from the affidavit accompanying the wiretap application it appears that defendant Valley had a prior felony professional gambling conviction, making him a “repeating gambling offender” in any subsequent professional gambling prosecution in Colorado and subjecting him to a felony penalty upon conviction. His status certainly meets the requirements of § 16-15-102(1)(b) of the wiretapping statute, if McNulty’s does not.

Judge Seymour has underscored the fact that “[njowhere did the affidavit allege that the proposed wiretap was for the investigation of a felony. ” Seymour, J., dissenting, p. 1262, infra (emphasis hers). However, under Colorado law it is not necessary to allege such a conclusion in the application. It is only necessary to allege sufficient facts to support the conclusion of the judge issuing the order. See, People v. Martin, 176 Colo. 322, 490 P.2d 924, 926 (Colo.1971).

Judge Seymour has also apparently concluded that the fact that the parties and the court below overlooked defendant Valley’s prior felony gambling conviction somehow negates its existence. However, the neglect of the parties and the court below cannot detract from the conclusion that a state judge, familiar with state law, could (and indeed undoubtedly would) reasonably determine from the entry in the affidavit that Valley had a prior felony professional gambling conviction. Moreover, we cannot infer that Judge Kelly overlooked this important fact in the affidavit just because the parties and the court below did. It was manifestly in the defendants' interest to overlook it, and the government attorney and federal court may not be as familiar with state law as Judge Kelly, a state judge, is. Undoubtedly familiar with both the state wiretapping statute and the state gambling statutes, and knowing that a repeating gambling offender was necessary for the crimes under investigation to be punishable as felonies, he would have looked for — and found — the prior professional gambling convictions of not only Guy McNulty but also Dennis Valley.

“Our role on review of the sufficiency of a wiretap application is a limited one; it is ‘not to make a de novo determination of sufficiency ... but to decide if the facts set forth in the application were minimally adequate to support the determination that was made.’ ” United States v. Gerardi, 586 F.2d 896, 897 (1st Cir.1978), quoting United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 55 L.Ed.2d 278 (1977). Proceeding under this principle, I must conclude that the affidavit sets forth sufficient facts to support a determination that Dennis Valley was a repeating gambling offender and thus the wiretap order was for a designated offense “for which a felony penalty is authorized.”

It is not inappropriate, as Judge Seymour apparently contends, for this court to consider all the facts in the record, whether pointed out by the parties or not, in making our determination of this case. This opinion has not raised, sua sponte, a new issue before the court. The issue remains whether the wiretap order issued by Judge Kelly fully complied with the Colorado wiretapping statute. This opinion merely applies the facts before us in the record to determine that issue in accordance with the law. Judge Seymour has cited no authority in support of her contention that it is inappropriate for us to do so.

Accordingly, I conclude that the state wiretap order at issue in this case complied fully with the state wiretapping statute, and hence evidence from that wiretap is admissible in the proceedings below. Therefore, I concur in the result reached by Judge Doyle that the judgment of the trial court suppressing the evidence be reversed.

The judgment of the district court is reversed and the cause remanded for further proceedings consistent with the views expressed herein.

1 . Subsection (4) of the statute provides as follows:

(4) Upon an application, the judge may enter an ex parte order, as requested or as modified, authorizing or approving wiretapping or eavesdropping within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that:

(a) There is probable cause for belief that a person is committing, has committed, or is about to commit a particular offense enumerated in this section;

(b) There is probable cause for belief that particular communications concerning that offense will be obtained through the interception;

(c) Normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous;

(d) There is probable cause for belief that the facilities from which or the place where the wire or oral communications are to be intercepted are being used or are about to be used, in connection with the commission of an offense, or are leased to, listed in the name of, or commonly used by the person alleged to be involved in the commission of the offense.

2 . Subsection (1)(a) of the statute provides as follows:

(1)(a) An ex parte order for wiretapping or eavesdropping, or both, as those offenses are described in sections 18-9-302 to 18-9-304, C.R.S.1973, may be issued by any judge of competent jurisdiction of the state of Colorado upon application of the attorney general or a district attorney, showing by affidavit that there is probable cause to believe that evidence will be obtained of the commission of any one of the crimes enumerated in this subsection (1) or that one of said enumerated crimes will be committed:

(I) Murder in the first or second degree as defined in sections 18-3-102 and 18-3-103, C.R.S.1973;

(II) Kidnapping in the first or second degree as defined in sections 18-3-301 and 18-3-302, C.R.S.1973;

(III) Gambling, meaning professional gambling, as defined in section 18-10-102(3) [sic; should be 102(8) ], C.R.S.1973, and subject to prosecution under section 18-10-103(2), C.R.S.1973;

(IV) Robbery as defined in section 18-4-301, C.R.S.1973, aggravated robbery as defined in section 18-4-302, C.R.S.1973, or burglary in the first or second degree as defined in sections 18-4-202 and 18-4-203, C.R.S.1973;

(V) Bribery as defined in section 18-8-302, C.R.S.1973, compensation for past official behavior as defined in section 18-8-303, C.R.S. 1973, attempt to influence a public servant as defined in section 18-8-306, C.R.S.1973, designation of supplier as defined in section 18-8-307, C.R.S.1973, or misuse of official information as defined in section 18-8-402, C.R.S. 1973;

(VI) Dealing in narcotic or other dangerous drugs as covered by sections 12-22-322 and 12-22-412, C.R.S.1973, as such offenses are subject to prosecution as felonies;

(VII) Crimes dangerous to life, limb, or property, meaning extortion, as defined as menacing by use of a deadly weapon in section 18-3-206, C.R.S.1973, theft by means other than the use of force, threat, or intimidation as defined in section 18-4-401(5), C.R.S. 1973, arson as defined in sections 18-4-102 to 18-4-105, C.R.S.1973, as these offenses are subject to prosecutions as felonies, assault in the first or second degree as defined in sections 18-3-202 and 18-3-203, C.R.S.1973;

(VIII) A criminal conspiracy as defined in section 18-2-201, C.R.S.1973, to commit any of the aforementioned enumerated crimes.

3 . The District Attorney, in his application for the wiretap order, stated:

I am informed and do believe that there is probable cause existing that the communications, conversations, or discussions occurring on the above listed telephone, are an element of the crimes defined in C.R.S.1973, 18-10-103, (1) and (2), as amended [gambling and professional gambling], C.R.S.1973, 18-10-105, as amended [possession of a gambling device or record], C.R.S.1973, 18-10-106, as amended [gambling information], C.R.S.1973, 18-10-107, as amended [maintaining a gambling premises], and C.R.S.1973, 18-2-201 as amended [criminal conspiracy].

Record, Vol. I, p. 112.

4 . The court below and Judge Seymour have interpreted Colo.Rev.Stat. § 16—15—102(1)(b) to mean that a state judge may not issue a wiretap order unless he is absolutely, unequivocably certain that the offender will be subject to a felony penalty upon conviction. I cannot attribute so stringent a meaning to this provision. I prefer to give it a more ordinary, common sense meaning: the crime under investigation must be one for which a felony penalty is provided by law. Under this simple interpretation, the crime of professional gambling meets the requirement of the wiretapping statute, for a felony penalty is one of the two alternative penalties authorized by the professional gambling statute. Colo.Rev.Stat. § 18-10-103(2) (1978). Furthermore, not only is a felony penalty an authorized penalty under the professional gambling statute, but to Judge Kelly, reviewing the wiretap application just one year after McNulty’s prior professional gambling conviction, it appeared highly probable that McNulty would in fact be subject to that penalty. The court below acknowledged that "in view of the fact that under state law, criminal cases must come to trial within six months, ... one could reasonably anticipate that [McNulty would be convicted within five years of his 1979 misdemeanor conviction]." Record, Vol. Ill, p. 46.

A judge considering a wiretap application can never know for certain whether a conviction will result from the investigation. To approve the wiretap, he must have probable cause to believe that the evidence of the specific crime will be obtained. Each felony has its elements which proof at trial must satisfy. In the instant case, for example, at a state trial, the element of prior conviction within five years would have to be shown by the state in order to obtain a felony conviction. But the state judge considering the wiretap application could not know, and is not required to know, whether each element, including the prior gambling conviction within five years, would be proven at trial. His standard is probable cause, and the cases establish that probable cause is a matter of probabilities, and must be applied reasonably. See, e.g., United States v. Rahn, 511 F.2d 290 (10th Cir.1975); People v. Lindholm, 591 P.2d 1032 (Colo.1979). In addition, reviewing courts are to give deference to determinations of probable cause by the issuing judges. Id.- Under the circumstances, the court below should have found that the wiretap order, as applied to McNulty, complied with the requirements of the state statute.

This conclusion is, I believe, totally consistent with the intent of the Colorado legislature. Judge Seymour asserts that the "obvious intent" of the Colorado legislature, in passing the wiretapping statute, was to protect privacy by "limiting wiretapping to the investigation of felonies.” A look at the history of the felony penalty provision in the Colorado wiretapping legislation, however, reveals that a more probable and more practical legislative purpose behind the felony penalty provision in the state wiretapping statute was to conform the statute to the requirements of the federal provisions.

In 1971, the Colorado wiretapping statute had no requirement that the crime under investigation be a felony. 1971 Sess.Laws, p. 486, § 2. In fact, some of the offenses enumerated in that statute carried misdemeanor penalties of less than one year imprisonment. The Colorado Supreme Court opined in a 1971 case that state authorization of a wiretap for such minor offenses would violate the "punishable by imprisonment for more than one year” language in 18 U.S.C. § 2516, and hence would be "grounds for suppression.” People v. Martin, 176 Colo. 322, 490 P.2d 924 (1971). In an apparent response to this concern, the Colorado General Assembly amended the wiretapping statute in 1972, conforming it more closely to the federal statute. 1972 Colo.Sess.Laws, pp. 269-71, §§ 1-2. The new statute added the provision now codified at Colo.Rev.Stat. § 16—105—102(1)(b), limiting wiretap orders to only crimes for which a felony penalty is authorized. Since the statutory penalty for the least severe felony (class 5) is "one to two years plus one year of parole,” Colo.Rev.Stat. § 18-1-105 (1982 Pocket Part), I am convinced that the “felony” language was added to the wiretapping statute in 1972 as a short hand method to ensure compliance with the federal statute’s requirement that a designated offense be punishable by imprisonment for more than one year. That is, the Colorado General Assembly merely intended to conform to the requirements of the federal statute. This conclusion is supported by the Colorado Supreme Court, which has emphasized that the Colorado statute is intended to correspond closely to the federal wiretapping statute. People v. Martin, 176 Colo. 322, 490 P.2d 924, 929 (1971) ("the virtually identical Colorado statute”); People v. Milnes, 186 Colo. 409, 527 P.2d 1163, 1165, n. 1 (1974) ("our Act is patterned after the federal law”). Thus, admitting the evidence from the wiretap authorized by Judge Kelly, even on the sole basis of McNulty’s prior misdemeanor conviction, is fully consistent with the Colorado legislature’s intent.