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UNITED STATES v. FALCONE

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


September 28, 1973

UNITED STATES of America
v.
Pasquale FALCONE et al., Defendants

Lacey, District Judge.

The opinion of the court was delivered by: LACEY

LACEY, District Judge:

This proceeding and the facts adduced therein underscore the problems inherent in both administrative attainment and judicial determination of compliance with the "minimization" provision of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1970).

 On August 28, 1972, this Court, under the authority of 18 U.S.C. § 2518 (1970), signed an order authorizing Special Agents of the Bureau of Narcotics and Dangerous Drugs (BNDD) to conduct electronic surveillance on the telephone subscribed to in the name of Pasquale Falcone, located at 201 Cross Street, Apartment 9H, Fort Lee, New Jersey. The purpose of the surveillance, as stated in the above Order, was the revelation of the manner in which the subject and others, then unknown:

 

[participated] in the distribution, dispensing, and possessing with intent to distribute and dispense, a controlled substance, to wit, heroin, in violation of Title 21, United States Code, Sections 841(a)(1) and 812 and a conspiracy in violation of Title 21, United States Code, Section 846, and which reveal the identities of their confederates, their places of operation, and the nature of the conspiracy involved therein, or for a period of twenty (20) days from the date of this Order, whichever is earlier.

 By the above Order, this Court required said agents to submit detailed reports of the surveillance activities on the fifth, tenth, and fifteenth days thereafter. In lieu of a final report, the Government submitted an application for extension of the initial Order [ 18 U.S.C. § 2518(5)] for an additional 20 days and attached thereto affidavits outlining the development of its surveillance to that point, and the reasons in support of the application for further surveillance. This extension, and, thereafter, one other similar extension, were granted, each followed by the usual five-day reports. Both the original Order and the two extensions, dated respectively September 15, 1972, and October 4, 1972, expressly required minimization pursuant to the requirement of 18 U.S.C. § 2518(5) that "[every] order . . . shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." *fn1"

 Defendants were indicted and subsequently moved to suppress evidence obtained during the surveillance on the ground that the Government failed to comply with the Order to minimize conversations intercepted. This Court held an extensive hearing on the motion, covering some 2,000 pages of transcript, over twelve days.

 During the pre-trial period the Government advised defendants it intended to offer at trial certain intercepted telephone conversations recorded under a Title III Order obtained in another district in another proceeding. In this connection it appears that on November 30, 1972, the Honorable John Morgan Davis, United States District Judge for the Eastern District of Pennsylvania, signed a Title III Order authorizing an electronic surveillance on the telephone subscribed to in the name of Michael De Vito located at 904 Christian Street, Philadelphia, Pennsylvania, bearing telephone number (215) 923-3162. Judge Davis subsequently signed on December 15, 1972, an Order for a continuation of this electronic surveillance. Pursuant to Judge Davis' Orders, Special Attorney Stephen Stein of the Justice Department Strike Force in the Philadelphia office, filed written five-day reports on the progress of the electronic surveillance on the fifth and tenth day of each 15-day electronic surveillance period. The electronic surveillance terminated on December 16, 1972 (12 days before the end of the second 15-day surveillance period), and the actual listening and recording devices were shut off permanently on December 18, 1972.

 Defendants' motions are directed to the Philadelphia electronic surveillance procedures and materials as well as the surveillance authorized by my Orders.

 Testifying in the proceedings before me were Special Attorney Richard Gregorie (Gregorie) of the Justice Department Strike Force in Newark; Special Agent Michael Campbell (Campbell) of what was formerly the Bureau of Narcotics and Dangerous Drugs (BNDD) and is now the Drug Enforcement Administration (DEA), who was the agent in charge of the monitoring conducted pursuant to my Orders and whose affidavits provided the bases for the Government's Title III applications; the aforesaid Special Attorney Stein (Stein); Special Agent Vincent Di Stefano (Di Stefano), who performed as did Campbell, but on the monitoring conducted pursuant to Judge Davis' Orders; James P. Hunt (Hunt), Assistant Regional Administrator in New York of BNDD in 1972, who today bears the same title in DEA; Special Agent In Charge Marion Hambrick (Hambrick), Campbell's immediate superior, who in turn reported to Hunt; and Special Agent Joseph Feaser (Feaser), who was a monitoring agent under Campbell.

 My findings of fact and conclusions of law are hereinafter set forth.

 As to the New Jersey surveillance:

 During the period of the electronic surveillance, August 28, 1972, to October 16, 1972 (50 days), two agents were present at all times and monitored telephone conversations to and from (201) 461-9164 pursuant to my Orders. They would record the conversation on two Uher recorders and obtain the time of the calls, the duration of the calls and the telephone number dialed from a pen register, reflecting such data in log sheets, one sheet per call. The recorders, the pen register and the listening device would be shut off from time to time, as will hereinafter be discussed, in response to my directive to minimize the interceptions, as the monitoring agents recognized calls to be privileged or not pertinent to the investigation as framed in my Orders. The electronic surveillance was terminated on October 16, 1972, nine days before the end of the twenty-day period set out in the second wiretap extension Order.

 On August 30 or September 1, 1972, Campbell was at the monitoring site. He placed a card on the recorder with instructions to the monitoring agents not to intercept "Tony's wife Helen" or "Pat's wife Edith" and, on September 3, 1972, placed two large charts on the wall of the intercept site instructing the monitoring agents how to conduct the intercept, on what were considered privileged conversations, and who was not to be intercepted. Campbell thereafter on September 12, 1972, made, or instructed a senior agent to make, an addition to both the card placed on the recorder and the charts on the wall adding the name of Janice Mende to the list of people not to be intercepted. Campbell kept a file of the numbers called from the intercepted telephone in order to make a determination from time to time as to whether an individual called from the Falcone telephone was or was not involved in the conspiracy, the better to evaluate whether, or to what extent, a call should be intercepted. Campbell visited the intercept site at least twice a day, covering at least two of the shifts, and gave oral instructions to the monitoring agents which those agents were to pass on to the next shift of agents. Campbell's instructions would be modified according to the status of the investigation. Thus, from time to time he revised his instructions as to calls between Del Vecchio (Tony) and Janice Mende (Janice). At various times during the intercept, Agent Campbell made the determination that certain people, once identified, should not be intercepted. Instructions as to these people were modified from time to time as the investigation continued, and Gregorie daily discussed the investigation, the surveillance, and the instructions concerning the monitoring. The agents were instructed how to use the equipment and, I find with only a few understandable lapses, faithfully noted each call, when the call initiated, how long it lasted and how many feet of tape were recorded.

 Campbell, during his eight days of testimony, detailed his efforts and the efforts of the other monitoring agents, to comply with minimization provisions of the statute and of my Orders. He earnestly and candidly addressed himself to the rare mechanical failures of the equipment, and the lapses of the men who monitored the attempted 2,100 calls for fifty consecutive days. Under skilled and severe cross examination, confronted by defense counsel with carefully selected conversations, he readily conceded that on occasion monitoring agents had not properly minimized a call. Overall, his testimony reflects a good faith effort on the part of the agents to minimize non-pertinent and privileged conversations.

 I turn next to an analysis of the calls. Both the Government and defense counsel have submitted in either exhibit form, or as schedules to their post-hearing briefs, their self-serving concepts of how the hundreds of calls should be reviewed in order to decide if minimization was achieved. Before addressing myself to this aspect, I note the wise caution of Judge Pollock in United States v. Bynum, 360 F. Supp. 400, 415 (S.D.N.Y.1973): *fn2"

 

In analyzing the investigation conducted herein, the parties have prepared various statistical analyses relating to the content of intercepted calls. Such analyses must be received with caution. See United States v. Focarile, 340 F. Supp. 1033, 1049 (D.Md.), aff'd sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir. 1972); United States v. King, 335 F. Supp. 523, 542 (S.D.Cal.1971), rev'd., 478 F.2d 494 (9th Cir. 1973) (on other grounds). While statistical correlations may provide guidance on the question of minimization, such calculations can be misleading and, if so, should not be accepted as conclusive on that question. Id. Mathematical manipulations prepared for the purpose of the instant review are necessarily grounded on retrospective and self-interested analysis by lawyers or agents, who have utilized the benefits of time and hindsight. The emphasis in deciding minimization must be on the perspective of the inspectors as of the time of the surveillance. Informed second guessing of the inspectors, even bolstered by percentages, should not cloud that perspective. The inquiry should not be reduced to a game of numbers, played out in a vacuum, and sealed off from its real consequences.

 A total of approximately 2,100 attempted telephone calls were intercepted on Falcone's telephone during the fifty days under my Orders. Of these, approximately 900 were busy, misdialed, not answered or were otherwise not completed. Of the approximate 1,200 calls which were completed, the Government concedes that 145 or 12.2 percent were between people not known to be co-conspirators. The Government also concedes that 75 calls or 6.3 percent were to the New Jersey Bell Telephone Company. *fn3" I find that these calls were pertinent to the investigation in that they permitted the monitoring agents to find out if telephone service might be discontinued, thereby ending the electronic surveillance without the agents' knowledge. Nine calls were made to travel agencies and airlines. This information was essential to determine where, how, and when the alleged co-conspirators might be traveling in what the Government's investigation indicated might well be an international heroin smuggling ring. Seven calls were made to the State Bank of Fort Lee. Money was needed to purchase narcotics and therefore conversations relating to obtaining money would be pertinent to the investigation. One hundred and sixty-three calls or 13.5 percent of the total completed calls were to or from individuals who were not identified. Since one of the purposes of the interception was to identify any co-conspirators of Falcone, Dasti, et al., these interceptions were necessary. One hundred and thirty-three calls or 12 percent of the total completed calls were made to or from individuals who were, I find, suspected of being co-conspirators.

 Of the remaining calls, there were 73 calls made to or from Donna Frystock, a female friend or associate of Pasquale Falcone, who lived in an apartment rented by Falcone, used a telephone subscribed to by Falcone, and was reasonably thought to be a possible co-conspirator or unwitting tool in this narcotics conspiracy. Of those 73 some were from Donna, others to her, with the other party to the conversation either Del Vecchio or Falcone, both, of course, co-conspirators. Having concluded, not without basis, there was a very close relationship between Donna and Falcone, the agents had a right to intercept at least a portion of such conversations until, from the content, they could ascertain that in that particular conversation no pertinent information would pass. The Government analysis of these calls, which the defendants do not seriously challenge, indicated that of the 73 calls, 36, or about 50 percent, were minimized to a greater or lesser degree. It is obvious that certain of the conversations could be, as the Government claims, drug related. Moreover, several of the calls which were not minimized were of very brief duration, e.g., September 5, September 7 (2), September 10, September 11 (3 of 6 calls), September 19, September 20, October 2, October 9, October 10, October 11 (2). Given the fact that the Government had a solid basis for believing that the conspirators were using one or more women, the fact that she conversed both with Del Vecchio and Falcone, and, finally, because of the nature of several of the calls, I could perhaps even sustain recording of all of the conversations in their entirety. Certainly the agents acted reasonably in minimizing as many -- and as much -- of the calls as they did. Carrying my analysis further, there were approximately 230 calls between Del Vecchio and Janice Mende. The defendants concentrated much of their ammunition on these during the minimization hearing, playing the recordings of many of such calls. I must reject the conclusion that defendants would have me draw respecting these calls, that the Government violated the minimization requirement with respect thereto. Deferring for a moment a statistical study of these calls, I note once again Del Vecchio's status as an alleged conspirator close to Falcone; that Mende, alleged by defendants to be Del Vecchio's paramour, knew Falcone as well; that both Falcone and Del Vecchio were aware that she knew the other; that she knew of an association of some kind between Del Vecchio and Falcone; that Mende placed calls to Del Vecchio from Falcone's apartment; that on several occasions Falcone called Mende looking for Del Vecchio; that the nature of the relationship between Del Vecchio and Mende was obviously so intimate that the agents could reasonably believe that Del Vecchio would freely convey information to her about his activities and that, at the very least, Del Vecchio would be obliged to disclose certain details of his activities to her when they interfered with his seeing her. Indeed, the agents were able to match up certain statements made in such conversations which aided in the investigation, e.g., that he would be or had been driving for several hours (at a time when the agents could relate this to an auto trip to Montreal) and that he was involved in "dangerous" work. The agents could reasonably have believed that at any time Del Vecchio or Falcone might make further disclosures to Mende; introduce her to others in the alleged conspiracy; invite her on a trip to Montreal, etc.

 Notwithstanding the foregoing bases for listening to all of the telephone conversations between Falcone and Del Vecchio on the one hand, and Mende on the other, the agents, in my view, conducted themselves with admirable restraint and, in the perspective framed by the facts as they were gathering as the investigation proceeded, did not violate my minimization directive.

 On or about September 12, 1972, Campbell placed Mende's name on the charts of instructions -- and on the card attached to the recording machine -- and indicated that calls involving Mende should not be intercepted. Yet it is also clear that, by oral instructions, Campbell changed this direction as the investigation took one turn and then another.

 It is appropriate to note at this juncture that Campbell believed that a call between a conspirator and a clearly established non-conspirator was not as a rule to be recorded. I do not regard minimization under the statute or my Order as requiring this limited view. Conversations of this nature may often be highly significant to an investigation of a far flung and sophisticated conspiracy such as this is alleged to be. The non-conspirator may, in fact, become a conspirator in the near future or even during the very call being monitored. The non-conspirator may, however innocently, aid the other party in furtherance of an illegal objective by, for example, making travel arrangements, or arranging financial assistance for the illegal enterprise. Also, as I have indicated, the conspirator may either volunteer information or respond to innocent questions with highly incriminating answers.

 It is my view that Title III of Public Law 90-351 contemplates that conversations between conspirators and non-conspirators may be intercepted by authorized electronic surveillance. The crimes for which the statute is designed require that some conversations between conspirators and non-conspirators will be overheard. 18 U.S.C. § 2516 (1970). For example, in order to establish a violation of 18 U.S.C. §§ 892, 893, or 894 (extortionate credit transactions), it is essential that conversations between the victim and the wrongdoer be intercepted. To establish violation of 18 U.S.C. § 1955 (prohibition of gambling enterprises), it is necessary to overhear the bettors placing bets with the members of the illegal gambling business. In both these examples, the contemplated interceptions would reveal conversations between non-conspirators and conspirators. The Senate Committee which recommended passage of Title III stated in their report to the Congress:

 

[The] President's Crime Commission found in their report "The Challenge of Crime in a Free Society" (1967), that under "present procedures too few witnesses have been produced to prove the link between criminal group members and the illicit activities that they sponsor." Victims do not normally testify for they are already in bodily fear or they are compliant, that is, the narcotics addict in desperate need of a "fix" does not usually turn in his "pusher". What victim of extortion will unsolicitedly risk his body by cooperation with law enforcement? Insiders are kept quiet by an ideology of silence underwritten by a fear, quite realistic, that death comes to him who talks.

 S.Rep.No.1097, 90th Cong.2d Sess. (1968) in 1968 U.S.Code Congressional and Administrative News, p. 2160.

 With these realities in mind, it becomes clear that a blanket prohibition of these types of interceptions, that is, calls between conspirators and non-conspirators, is not required or, for that matter, reasonable. Rather, the monitoring agent and thereafter the reviewing court must consider many factors, including the precise relationship of the parties, the length of the relationship, the number of calls between the parties, the state of the investigation, activities, at the time, of the alleged conspirator who is a party to the conversation, and the content of the conversations to determine the appropriate degree of minimization. Of the approximate 230 calls between Del Vecchio and Mende, and Falcone and Mende, 178 were minimized to a greater or lesser degree, and the non-minimized calls were to a considerable degree of very brief duration, one minute or less. Not uncharacteristic of the monitoring was what occurred on August 31, 1972, and September 2, 1972. On the first day the agents recorded only 30 seconds of a 6 minute conversation. On September 2, the agents recorded only 25 seconds of a 17 minute conversation. Also, on September 5, the agents recorded only 1 minute of a 17 minute conversation. On September 9, only 10 seconds of a 13 minute call were recorded. On September 11, only 40 seconds of an 11 minute conversation were recorded. On September 13, 1972, the following calls, by length and by recordation, occurred and were monitored: 8 min. 25 sec. 5 min. 30 sec. 7 min. 36 sec. 6 min. 20 sec.

19730928

© 1992-2004 VersusLaw Inc.



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