James Bush v. United States

Bush appeals from the denial of his petition, under 28 U.S.C. § 2255 , attacking a fifteen-year sentence imposed in 1963 for a second conviction for illegal sale of narcotics. He alleges that his conviction resulted from illegal evidence obtained through electronic eavesdropping by federal agents. The eavesdropping was of a telephone conversation between Bush and a government informant, for which the informant had given consent. We affirm.

Bush relies primarily upon Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). Such reliance is misplaced for Katz is not to be applied retroactively. Desist v. United States, 394 U.S. 244 , 89 S.Ct. 1030 , 22 L.Ed.2d 248 (1969); Lopez v. United States, 409 F.2d 1351 (9th Cir. 1969). We recognize that the law pertaining to electronic eavesdropping may undergo some change as a result of the Supreme Court’s pending decision in United States v. White, 405 F.2d 838 (9th Cir.), cert. granted, 394 U.S. 957 , 89 S.Ct. 1305, 22 L.Ed.2d 559 (1969), restored for reargument, 396 U.S. 1035 , 90 S.Ct. 677 , 24 L.Ed.2d 679 (1970). But as the law now stands, Bush’s conviction and sentence are valid. Should the Supreme Court’s decision…