Federal Judiciary

Interesting Wiretap Decision from the Tenth

By Robert Loblaw

U.S. v. Verdin-Garcia, 06-3354 (10^th Cir., Feb. 19, 2008)

Fans of the HBO series The Wire will appreciate this Tenth Circuit criminal appeal, which involves a massive drug conspiracy that the government pieced together using 3000 wiretapped calls over a three-month period. But after meticulously putting together its case against drug kingpin Fidencio Verdin-Garcia and one of his top henchman, the government faced one last challenge at trial. How were prosecutors going to prove that the voices on the incriminating calls belonged to the defendants?

The two defendants refused to comply with a court order to turn over a voice sample, so instead the government used recordings of their prison phone calls. The defendants moved to suppress this and other evidence, with Verdin-Garcia arguing that the prison recordings violated Title III of the Wiretap Act because the government did not have his prior consent. But the Tenth rejects this argument, explaining that prisoners are advised that their calls may be monitored or recorded. Because Verdin-Garcia used the prison telephone despite these warnings, his consent to be recorded is implied.

Verdin-Garcia?s co-defendant also loses his appeal, though for a different reason. Here?s a helpful hint on preserving issues for appeal: If you are a criminal defendant, don?t just file a motion to suppress “any and all evidence in the case at bar.” Because when it comes time for the Court of Appeals to do its waiver analysis, that ain?t gonna cut it.

Full post as published by Decision of the Day on February 19, 2008 (boomark / email).