940 F. 2d 1539 - United States v. Evans

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This is an appeal from the denial of a motion under 28 U.S.C. Sec. 2255. We affirm.

Defendant Thomas Joel Evans asserts the admission of tape recordings and videotapes as evidence at his trial violated the Constitution and federal wire tap and oral interception laws. He maintains introduction of that evidence was prohibited because the government did not obtain an order from the district court authorizing the recordings.

As the district court noted, no authorization for the interception of a conversation is required, and the defendant's individual rights are not violated, when one of the parties to the communication consents to the interception. The recordings that were introduced into evidence were made with such consent.1 We agree with that analysis. Defendant has simply confused those cases dealing with nonconsensual interceptions with the facts of this case, making his legal authority irrelevant.

Defendant contends the district court erred by not requiring the government to respond to his initial motion. Given the apparent invalidity of his claim and the court's summary disposition, however, any response would have been moot.

AFFIRMED. The mandate shall issue forthwith.