U.S. v. Park

Full title: UNITED STATES OF AMERICA, Plaintiff, v. DONG WAN PARK, Defendant

Court: United States District Court, W.D. Washington, Tacoma

Date published: May 5, 2006

Case No. CR05-5811RBL (W.D. Wash. May. 5, 2006)

Opinion

Case No. CR05-5811RBL.

May 5, 2006

ORDER

RONALD LEIGHTON, District Judge

THIS MATTER comes on before the above-entitled Court upon Defendant's Motion to Suppress [Dkt. #39]. Having considered the entirety of the records and file herein, the Court rules as follows:

The defendant is charged by way of indictment with Conspiracy to Defraud the United States, four counts of Visa Fraud, and two counts of Obstruction of Justice. The charges arise out of the government's allegations that the defendant used his position as the pastor of the Tacoma Hope Korean Church to obtain on behalf of three Korean nationals fraudulent R-1 Religious Worker Visas in return for cash payments. One of the obstruction of justice charges involves a telephone conversation with a cooperating witness who consented to the recording of the conversation. The defendant seeks to suppress the recorded conversation as well as checks, public records, and agents' reports.

The defendant argues that the recorded conversation should be suppressed because it was recorded without his consent and is therefore in violation of Washington law requiring all parties to consent to the recording of conversations. RCW 9.73.030. He argues that admitting the conversation somehow violates the Ninth and Tenth Amendments to the United States Constitution because the evidence (the recorded conversation) was obtained in violation of state law. Defendant is mistaken.

In United States v. Keen, 508 F.2d 986 (9^th Cir. 1974), cert. denied 421 U.S. 929 (1975), the Ninth Circuit addressed the admissibility in federal court of evidence obtained in violation of Washington State's consent law. The Court ruled that "wiretap evidence obtained in violation of neither the Constitution nor federal law is admissible in federal courts, even though obtained in violation of state law." Id. at 989. The Ninth Circuit has consistently ruled that state laws do not govern the admissibility of evidence in federal courts. See e.g. United States v. Testa, 548 F.2d 847, 855 (9^th Cir. 1977) (rejecting a challenge similar to Park's as "decidedly without merit"); United States v. Chavez-Vernaza, 844 F.2d 1368, 1373 (9^th Cir. 1987) (collecting cases). As the government correctly notes, "[t]he Ninth and Tenth Amendments are not themselves sources of any additional substantive rights." (Government's Sur-Reply to Defendant's Motion to Suppress, p. 2, Dkt. #42). See Strandberg v. City of Helena, 791 F.2d 744, 748-49 (9^th Cir. 1986). And, as Chief Judge Posner has pointed out, "[t]he Ninth Amendment does not invert the supremacy clause and allow state constitutional provisions to override otherwise lawful federal statutes." United States v. Spencer, 160 F.3d 413, 414 (7^th Cir. 1998).

Therefore, because the evidence (the recorded conversation) was not obtained in violation of the Constitution or federal law, defendant's motion to suppress based on violation of Washington law is DENIED.

The defendant further challenges the admissibility of the recorded conversation on the grounds that the meaning of the recording is vague and speculative, contains inadmissible hearsay, is without foundation and is irrelevant. The motion to suppress on those bases will be DENIED without prejudice.

The defendant also seeks to suppress checks, public records (immigration forms), and agents' reports. The motion to suppress those documents will be DENIED without prejudice. Therefore, it is hereby

ORDERED that Defendant's Motion to Suppress [Dkt. #39] is DENIED in part and DENIED without prejudice in part.

The Clerk shall send uncertified copies of this order to all counsel of record, and to any party appearing pro se.