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United States v. Terrell

United States Court of Appeals, Eighth Circuit

January 10, 2019

United States of America Plaintiff - Appellee
v.
Jeremy D. Terrell Defendant-Appellant

          Submitted: October 19, 2018

          Appeal from United States District Court for the Northern District of Iowa - Ft. Dodge

          Before WOLLMAN, ARNOLD, and BENTON, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         Jeremy D. Terrell pled guilty to conspiracy to distribute methamphetamine and possession with intent to distribute meth and "a mixture or substance containing a detectable amount of cocaine" in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), § 841(b)(1)(C), 846, and 851. The district court[1] denied the motion to suppress evidence from the wiretaps. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         In 2014, Nebraska law enforcement began investigating a series of gang-related robberies. Terrell, an alleged member of the NIKE gang, was a "target suspect." In 2015, the county attorney for Douglas County, Nebraska submitted a wiretap application-not "signed and sworn"-to the Nebraska Attorney General. The application sought to tap the phones of two members of the NIKE gang (not Terrell). It included extensive information about felony firearms violations, drug use and trafficking, robberies, and gang activity. The Attorney General recommended granting it. The next day, the state court ordered the wiretap. It later extended it.

         In August 2015, after the first wiretap ended, the county attorney applied for a wiretap on Terrell's phones. The county attorney submitted another wiretap application-again not "signed and sworn"-to the Nebraska Attorney General, who recommended granting it. Four days later, the state court ordered the wiretap. It also was extended.

         The second wiretap ended September 15. Terrell learned about the wiretaps for the first time on October 26 during a proffer interview with law enforcement. He received written notice of the wiretaps in January 2016.

         Terrell contends the district court erred in denying his motion to suppress. This court reviews the district court's factual findings for clear error, and its legal conclusions de novo. United States v. Lomeli, 676 F.3d 734, 738 (8th Cir. 2012).

         I.

         Terrell believes the wiretaps and extensions were invalid because they were not preauthorized by the Nebraska Attorney General. The federal wiretap statute requires that a federal prosecutor, before applying to a federal court for a wiretap, receive authorization from the United States Attorney General (or a designee). See 18 U.S.C. § 2516(1). Terrell argues this requirement applies to Nebraska's state wiretap statute. It does not.

         A "wiretap order issued by a state court must comply with state as well as federal law." United States v. Moore, 41 F.3d 370, 373 n.1 (8th Cir. 1994). When sought by a state prosecuting attorney, the federal statute requires that state-issued wiretaps comply with "applicable State statute." See 18 U.S.C. § 2516(2). Under the Nebraska wiretap statute, the Attorney General is required to give a recommendation, not pre-authorization, to the district court. See Neb. Rev. Stat. § 86-291 ("Within twenty-four hours of receipt by the office of the Attorney General of the application from the county attorney, the Attorney General or his or her designated deputy or assistant, as the case may be, shall state to the district court where the order is sought his or her recommendation as to whether the order should be granted."). The district court did not err in granting the wiretap applications without preauthorization from the Nebraska Attorney General.

         II.

         Terrell argues the wiretap applications were improper because they were not sworn under oath before submission to the Attorney General and were submitted by a deputy county attorney rather than the ...


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