EDDIE OSBORNE, PETITIONER V. UNITED STATES OF AMERICA

   No. 87-22

   In the Supreme Court of the United States

   October Term, 1987

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit

   Memorandum for the United States in Opposition

   Petitioner contends that the court of appeals erred in reversing an
order suppressing as evidence recorded telephone conversations that
were seized during a warrant-authorized search.

   Petitioner, together with Walter Person (petitioner in No. 86-1874)
and several others, was charged in a five-count indictment returned in
the United States District Court for the Western District of
Tennessee.  The indictment charged petitioner with conducting an
illegal gambling business, in violation of 18 U.S.C. 1955;  conspiring
to violate federal gambling laws, in violation of 18 U.S.C. 371;
traveling in commerce with intent to distribute the proceeds of
unlawful activity, in violation of 18 U.S.C. 1952(a)(1);  using wire
communication facilities in commerce to transmit gambling information,
in violation of 18 U.S.C. 1084(a);  and accepting wagers without
paying the wagering tax, in violation of 26 U.S.C. 7262.

   Petitioner moved to suppress tape recordings of gambling-related
conversations that were seized in a warrant-authorized search of a
"wire room" that petitioner and his co-defendants had allegedly used
for illegal gambling.  Petitioner argued that the use of the tapes as
evidence was prohibited by the federal wiretap statute, Title III of
the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510
et seq.  He relied in particular on 18 U.S.C. 2511(2)(d), which
permits surreptitious recording by a party to a conversation, except
when the interception is "for the purpose of committing any criminal *
* * act in violation of the * * * laws of the United States or of any
State." He also relied on 18 U.S.C. 2515, which prohibits the receipt
of illegally intercepted conversations in evidence "in any trial."

   On March 6, 1986, the district court granted the motion.  It
rejected the argument that suppression was contrary to the purposes of
the wiretap statute.  On the government's appeal, the court of appeals
reversed.  It found that neither the general purpose of Title III to
protect the privacy of parties nor the particular purpose of Section
2511(2)(d) to prevent the misuse of the contents of intercepted
communications would be served by suppression in the context of this
case.  The court of appeals concluded that the parties to the
conversations waived their right of privacy by the deliberate act of
recording them.  In addition, the court concluded that Congress did
not intend for Section 2515 to shield the very persons who conducted
the interceptions from the consequences of their own acts.  86-1691
Pet. App. 12-14;  United States v. Underhill, 813 F.2d 105 (6th Cir.
1987).

   Petitioner contends (Pet. 17-39) that a proper construction of the
federal wiretap statute bars the use of the fruits of interceptions
made for the purpose of committing a criminal act such as illegal
gambling.  Whatever the merits of petitioner's contentions, they are
not presently ripe for review by this Court.  The court of appeals'
decision places petitioner in precisely the same position he would
have occupied if the district court had denied his motion to suppress.
 If petitioner is acquitted following a trial on the merits, his
contentions will be moot.  If, on the other hand, petitioner is
convicted and his conviction is affirmed on appeal, he will then be
able to present his contentions to this Court, together with any other
claims he may have, in a petition for a writ of certiorari seeking
review of a final judgment against him.  /1/ Accordingly, review by
this Court of the court of appeals' decision would be premature at
this time.  /2/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1987

   /1/ The Court has previously denied petitions for a writ of
certiorari in two companion cases, Rayburn v. United States, No.
86-1691 (June 1, 1987) and Tata v. United States, No. 86-1832 (June
26, 1987).  Another petition for a writ of certiorari is pending in
the companion case of Person v. United States, No. 86-1874.

   /2/ Because this case is interlocutory, we are not responding on
the merits to the questions presented by the petition.  We will file a
response on the merits if the Court requests.