United States v. Marilyn Jean Buck

548 F.2d 871 1 Fed. R. Evid. Serv. 806 UNITED STATES of America, Plaintiff-Appellee, v. Marilyn Jean BUCK, Defendant-Appellant. No. 73-3560. United States Court of Appeals, Ninth Circuit. Feb. 22, 1977. 1 Susan B. Jordan, argued, Anne Flower Cumings, Cumings & Jordan, San Francisco, Cal., Charles G. Warner, Engel & Warner, San Francisco, Cal., for defendant-appellant. 2 David P. Bancroft, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee. 3 Appeal from the United States District Court for the Northern District of California. 4 Before ELY and WALLACE, Circuit Judges, and LYDICK, * District Judge. OPINION LYDICK, District Judge: 5 Appellant stands convicted after jury trial of violation of two counts of 18 U.S.C. § 922 (a)(6) (furnishing false information in connection with the acquisition of ammunition) and two counts of 18 U.S.C. § 924 (making a false statement with respect to information required to be kept by a licensed firearm dealer) arising out of the purchase by her of ammunition from a San Francisco gun store on two separate occasions in 1973. 1 6 On both occasions, appellant used the name Mariann Turner and presented as identification a…

Appellant stands convicted after jury trial of violation of two counts of 18 U.S.C. § 922 (a)(6) (furnishing false information in connection with the acquisition of ammunition) and two counts of 18 U.S.C. § 924 (making a false statement with respect to information required to be kept by a licensed firearm dealer) arising out of the purchase by her of ammunition from a San Francisco gun store on two separate occasions in 1973.

On both occasions, appellant used the name Mariann Turner and presented as identification a drivers license in that name which reflected a date of birth different from her own. The drivers license had been *874 obtained through an applicant which falsified her place of birth and driving history.

Appellant raises seven separate grounds of appeal, four of which relate to standards and procedures utilized below with respect to alleged illegal electronic surveillance. We shall not attempt to summarize the extensive evidence introduced at the trial or during the 2lh day post-trial taint hearing. We have read the transcript of all proceedings, however, and believe that the record manifests that the evidence questioned by appellant had a clearly…

(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…