The opinion of the court was delivered by: LACEY
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 . . . ."
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 ...