July 23, 2019

Tenth Circuit: Evidence from Wiretaps Authorized Under Outdated AG Order Still Admissible as New Order Merely Expanded Authorizing Scope of Outdated Order

The Tenth Circuit Court of Appeals issued its opinion in United States v. Foy on Monday, May 23, 2011.

The Tenth Circuit affirmed in part and reversed in part the district court’s conviction and sentence. Petitioner was found guilty of conspiring to manufacture, possess with intent to distribute, or to distribute cocaine, as well as attempting to possess with intent to distribute between 500 grams and less than five kilograms of cocaine. Petitioner argues that the district court erred in denying his motion to suppress evidence obtained from the wiretaps, and that venue regarding his attempt charge was improper. The Court found that the wiretap evidence was properly admitted. Although the successive wiretap authorizations were granted under an outdated AG Order, the new Order merely expanded the scope of those with authority to grant the wiretaps, and there the wiretaps sought in this situation were necessary. However, the Court agreed that venue for the attempt charge was improper; there is no evidence that Petitioner committed any act which constitutes a substantial step toward the commission of the substantive offense in the District of Kansas.

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