United States v. Marilyn Jean Buck

ELY, Circuit Judge

(dissenting):

I first note, incidentally, that the majority’s statement as to the trial judge’s discretion in relation to sentencing is too broad. My Brothers apparently choose to ignore United States v. Capriola, 537 F.2d 319 (9th Cir. 1976). While the application of Capriola would not affect the disposition of the present appeal, it seems to me that, out of considerations of accuracy, that opinion should have been noted.

Now turning to a matter of extreme significance, I hold that the majority opinion cannot be fairly reconciled with our opinion in United States v. Alter, 482 F.2d 1016 (9th Cir. 1973). The majority takes two approaches in respect to Alter. First, after rather feebly remarking that' the Alter question need not be reached, it proceeds with the reaching that it has declared unnecessary. Even so, however, my Brothers do not analyze Alter. In two brief paragraphs, the application of Alter is rejected in conclusory statements that “claims of certain instances of wiretapping were inadequate” and “requirements [of Alter ] were not met and ... the denials made were more than adequate.” This facile treatment of such a grievous question of intrusive wiretapping is, to me, wholly unacceptable.

When the affidavits in Alter are examined side by side with those presented by the appellant here, I see absolutely no escape from the conclusion that the affidavit of the appellant’s attorney in this case fully and fairly complied with the requirements set forth by the Alter court. If I am correct in this, then the Government was legally obliged to “file a responsive factual, unambiguous, and unequivocal affidavit [in response].” 482 F.2d at 1027. See also Alderman v. United States, 394 U.S. 165, 180-185, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The Government did not meet its burden; hence, the judgment of conviction should be REVERSED.