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United States v. Harold Ivan Booker
Citations: 952 F.2d 247; 91 Daily Journal DAR 15158; 1991 U.S. App. LEXIS 28735; 1991 WL 258849Docket: 89-50269
Court: Court of Appeals for the Ninth Circuit; December 11, 1991; Federal Appellate Court
Harold Ivan Booker appealed his conviction for possession of unauthorized access devices under 18 U.S.C. 1029(a)(3), challenging the district court's denial of his motion to suppress evidence and a motion to exclude a transcript of a recorded conversation. The appeal followed a search warrant execution at his apartment after an undercover operation where he detailed the use of stolen Bank of America microfilm for illegal purchases. On execution of the search warrant, agents knocked and announced their purpose, but after five to ten seconds, concerned about evidence being destroyed, they forcibly entered the apartment. Booker claimed the agents violated the "knock-and-announce" statute (18 U.S.C. 3109) and filed a motion to suppress the seized evidence, which the district court deemed untimely. Although Booker renewed the motion during trial, the court found no inconsistencies in the evidence and cited exigent circumstances for the search. Additionally, Booker sought to exclude a government-prepared transcript of a phone conversation with a federal agent, arguing insufficient time for review, but the court denied this motion as well. The Ninth Circuit affirmed the district court's rulings, noting that the decision to deny the untimely suppression motion was not an abuse of discretion and that the court considered Booker's arguments on the merits before rejecting the renewed motion. In United States v. Vasquez, the court established that appellate review is permissible when a district court addresses an untimely suppression motion on its merits, indicating sufficient cause to bypass waiver. The appellate court reviews factual findings for clear error and legal applications de novo. In this case, Booker acknowledged a proper knock and announcement but disputed the existence of exigent circumstances for a forcible entry. The district court determined Booker was not on the phone prior to the knock, a finding supported by testimonies indicating ongoing conversation inside the premises. Consequently, the suppression motion was denied. Booker also challenged the jury's use of a government-prepared transcript of his recorded conversation, which is evaluated for abuse of discretion. The court outlined conditions under which such transcripts may be used: judicial accuracy review, agent testimony on accuracy, and jury limiting instructions. In this instance, the jury was instructed not to view the transcripts before listening to the tapes and was reminded that the recordings were the primary evidence. Although the district judge did not personally review the transcript, the agent confirmed its accuracy, and the judge provided a limiting instruction. The late availability of the transcripts did not warrant reversal since defense counsel had prior access to the tapes for preparation. The judgment was affirmed without oral argument per relevant rules.