United States v. Jackson
Opinion of the Court
ORDER
Johnny Jackson, a member of the Gangster Disciples, was convicted after a jury trial of narcotics-related offenses and sentenced to 100 years in prison. On appeal Jackson asks us to reconsider the holding in United States v. Jackson, 207 F.3d 910 (7th Cir.), vacated and remanded on other grounds, 531 U.S. 953, 121 S.Ct. 376, 148 L.Ed.2d 290 (2000), reinstated, 236 F.3d 886 (7th Cir. 2001), that the government’s wiretap evidence was admissible despite a failure to seal the audiotapes promptly as required by 18 U.S.C. § 2518(8)(a). Twice this court has refused identical requests, see United States v. Hoover, 246 F.3d 1054, 1057 (7th Cir. 2001); United States v. Wilson, 237 F.3d 827, 831 (7th Cir. 2001), and Jackson advances no new or persuasive argument. We affirm.
I. Background
The facts surrounding the Gangster Disciples’ activities are familiar to this court, see Wilson, 237 F.3d at 830, and are set forth only as necessary to resolve Jackson’s appeal.
Before his trial Jackson moved to suppress the wiretap evidence and dismiss the indictment on several grounds, including the two raised on appeal that the government: (1) failed to seal the wiretap evidence immediately as required by 18 U.S.C. § 2518(8)(a) and did not offer an objectively reasonable excuse for the delay; and (2) failed to establish in its wiretap applications a showing of necessity as required by 18 U.S.C. § 2518(l)(c). The district court denied the motion, just as it had denied identical motions previously made by Jackson’s co-defendants. After a one-week trial the jury found Jackson guilty of conspiracy, 21 U.S.C. § 846, possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1), and 15 counts of using telephones in furtherance of the conspiracy, 21 U.S.C. § 843(b), and acquitted him on nine other counts. The court denied Jackson’s post-trial renewal of his motion to suppress and sentenced him to consecutive prison terms totaling 100 years. Jackson filed a timely notice of appeal and challenges only the denial of his motion to suppress the wiretap evidence.
II. Analysis
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 sets forth the requirements for the issuance of wiretap authorization. See 18 U.S.C. § 2510 et seq. Among the information the government must set forth in the wiretap application is “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). Wiretap authorizations generally expire after 30 days unless the government obtains an extension after making the same showing required for the initial authorization. See 18 U.S.C. § 2518(5). “Immediately” following the final expiration of the order, the government must make available to the issuing judge the recordings of the intercepted communications and seal them according to his or her directions. 18 U.S.C. § 2518(8)(a). If the government fails to comply with this provision or cannot provide a “satisfactory explanation” for noncompliance or for a delay in sealing, the evidence is inadmissible. Id.; see United States v. Ojeda Rios, 495 U.S. 257, 260, 110 S.Ct. 1845, 109 L.Ed.2d 224 (1990) (explaining that § 2518(8)(a) has an explicit exclusionary remedy for noncompliance with the sealing requirement); Jackson, 207 F.3d at 915 (same). A satisfactory explanation is one that is “objectively reasonable.” Jackson, 207 F.3d at 916.
A. The Sealing Requirement
In Jackson this court addressed the delayed sealing of the tapes of communica
We denied rehearing in Jackson and no judge found rehearing en banc warranted. See Wilson, 237 F.3d at 831. Although the Supreme Court vacated the judgment and remanded for reconsideration of Harold Jackson’s sentence in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), we ultimately reinstated our previous judgment, United States v. Jackson, 236 F.3d 886, 888 (7th Cir. 2001) (per curiam). See Hoover, 246 F.3d at 1057 (noting that petition for certiorari was denied with respect to wiretap issues); Wilson, 237 F.3d at 831 (noting that Supreme Court’s remand left unaffected this court’s ruling with regard to issues other than Apprendi). Subsequently, other Gangster Disciple defendants have urged us to reconsider Jackson’s holding that the government provided a satisfactory explanation for the delay in sealing the Vienna tapes, and twice we have refused to do so on the basis of stare decisis. See Hoover, 246 F.3d at 1057; Wilson, 237 F.3d at 831.
Notwithstanding Hoover and Wilson, Jackson implores us to reconsider Jackson and rule the wiretap evidence inadmissible because, in his view, Safer’s explanation was unsatisfactory and the one accepted by the Jackson court was waived by the government. Pointing to Judge Rovner’s concurring opinion in Hoover, in which she voiced her concern about the Jackson court’s basis for excusing the delay in sealing the Vienna tapes, see Hoover, 246 F.3d at 1063 (Rovner, J., concurring), Jackson asks us to revisit the issue in the interest of justice. In her concurrence, Judge Rovner accepted Jackson as “the law of this
As we have recognized repeatedly, Jackson is the law of this circuit with regard to the adequacy of the government’s explanation for the delay in sealing the Vienna tapes. See Hoover, 246 F.3d at 1057; id. at 1065 (Rovner, J., concurring); Wilson, 237 F.3d at 831. Rehearing and rehearing en banc was denied in Hoover, Wilson, and Jackson, and the Supreme Court denied the petition for certiorari in Jackson with regard to the wiretap issues. Because we have held that the Vienna tapes were properly admitted in three other trials and because Jackson offers no new argument why the government’s explanation for the delay in sealing the tapes renders them inadmissible, we decline Jackson’s invitation to reconsider the law of the circuit on the admissibility of the Vienna tapes. See Hoover, 246 F.3d at 1057 (finding that it would be “inappropriate for a third panel to offer an independent view as if the matter were presented for the first time”).
B. Showing of Necessity in Wiretap Applications
As an alternative ground for suppression of the wiretap evidence, Jackson argues that the wiretap applications failed to demonstrate necessity for the wiretap authorization required by 18 U.S.C. § 2518(l)(c). While conceding that the affidavits in support of the wiretap applications described the government’s efforts in employing traditional investigative techniques, why these procedures were inadequate, and why other non-wiretap procedures were not feasible, Jackson contends that the affidavits were “deliberately misleading” as to the “breadth and scope” of the investigative techniques employed, and that the tapes thus should have been suppressed.
In Hoover, we rejected as “weak” this very argument about the showing of necessity. See 246 F.3d at 1057. In support of his argument that the government’s “pattern of omission” misled the judge issuing the wiretap authorizations, Jackson points to the same alleged “misrepresentations” and cites the same Ninth Circuit authority raised in the appellants’ consolidated brief in Hoover,
III. Conclusion
Jackson’s appeal raises only arguments that at least one prior panel of this court has already considered and rejected, that no member of this court has voted to rehear en banc, and that the Supreme Court has declined to review. Accordingly, Jackson’s conviction is
AFFIRMED.
. General overviews of the Gangster Disciples' conspiracy may be found in United States v. Smith, 223 F.3d 554 (7th Cir. 2000), and in this court’s initial Jackson opinion.
. Jackson cites United States v. Carneiro, 861 F.2d 1171 (9th Cir. 1988), and United States v. Simpson, 813 F.2d 1462 (9th Cir. 1987), the same two cases quoted by his co-defendants in their consolidated brief in United States v. Hoover, 246 F.3d 1054.
Reference
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