Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Linda R. NYBERG, Defendant-Appellant.

No. 90-30227.

United States Court of Appeals, Ninth Circuit.

Submitted March 7, 1991.* Decided March 14, 1991.

Appeal from the United States District Court for the Eastern District of Washington, No. CR-89-0100-RJM; Robert J. McNichols, Chief District Judge, Presiding.

E.D. Wash.




Lynda Nyberg appeals the denial of her motion to suppress evidence of taped telephone calls, arguing that the calls were inadmissible in federal court because they were recorded in violation of state law. We affirm.

When the telephone conversations were taped, Washington law required either the consent of all parties or judicial authorization before a communication could be recorded. See Wash.Rev.Code Secs. 9.73.030, .050, .090 (1989).1  Nyberg's calls were taped without her knowledge and without judicial authorization. Nyberg does not argue that the recordings were made in violation of federal law, which authorizes recordings upon one party's consent. See 18 U.S.C. § 2511(2) (c) (1988).

We reject Nyberg's argument that because the evidence was obtained in violation of state law it should have been suppressed by the district court. Criminal evidence obtained solely by state officials in violation of state law, but not in violation of the federal constitution or federal statutes, is admissible in federal court. United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987). Whether state law was violated and the possible motive for any state law violation are not material to the admissibility determination. See id. at 1372, 1374.

This court, in rejecting Chavez's comity argument, noted that imposing state evidentiary law on federal courts would "hamper the enforcement of valid federal laws and undermine the policy favoring uniformity of federal evidentiary standards." Id.

We find Nyberg's Tenth Amendment and due process arguments meritless. Chavez does not unconstitutionally restrict states' powers to adopt more restrictive rules for the recording of communications to be used in state proceedings. United States v. Testa, 548 F.2d 847, 856 (9th Cir. 1977). Further, there is no due process right to expect that a federal court will not tolerate state officers' abuse of state law. See Elkins v. United States, 364 U.S. 206, 224 (1960). The admissibility of evidence in federal court is controlled by federal law. Elkins does not support a federal due process right in having state evidence law apply to a criminal trial in federal court. See United States v. Aiudi, 835 F.2d 943, 946 (1st Cir. 1987), cert. denied, 485 U.S. 978 (1988).

Equally unavailing is Nyberg's reliance on Justice Brandeis' dissent in Olmstead v. United States, 277 U.S. 438 (1927). Olmstead held that evidence obtained by federal officials in violation of state law was admissible. Id. at 469.

We reject Nyberg's constitutional arguments and AFFIRM the district court's denial of her motion to suppress.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


The Washington code was amended, effective May 7, 1989, to make one-party consent permissible if a chief law enforcement official determines there is probable cause to believe the communication involves drug activity. Wash.Rev.Code Sec. 9.73.230 (1989)