ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - CRIM. No. 74-58.
Van Dusen, Adams and Rosenn, Circuit Judges.
The wiretap provisions in Title III of the Omnibus Crime Control Act create a tension between the efficient pursuit of organized crime and the right of privacy. Title III obliges the courts to measure the permissible use of sophisticated electronic investigative tools against the specific restraints imposed by Congress to avoid undue intrusions upon privacy. This balancing process has engendered a growing literature on the law of electronic eavesdropping. Our decision represents another gloss on that text.
The prosecution of the defendants in this alleged conspiracy to distribute methamphetamine depended in large measure upon evidence from intercepted telephone conversations. Defendants claim that the gathering and use of such evidence against them was infested with error and that it was consequently inadmissible at the trial.*fn1
Besides protesting the use of evidence obtained by wire intercept, defendants also charge that the search of defendant DeLuca's car without a warrant was improper, and that the evidence obtained in that search was inadmissible against at least DeLuca and Vento. Two of the defendants urge that there was insufficient evidence to connect them to the general conspiracy and that, therefore, the intercepted statements of their alleged co-conspirators should not have been employed against them. All contend that their convictions were fatally marred because they were denied an opportunity to question jurors about possible prejudice as a result of the supposedly hostile connection between an alternate juror and defendant Vento. Finally, the indictment itself is claimed to be defective for describing methamphetamine as "a Schedule II controlled substance," pursuant to an amendment of the schedules by the Attorney General, whereas the statute as enacted by Congress placed methamphetamine in schedule III.
Although the Justice Department had some prior interest in the alleged narcotics activities of Steven Vento, the central figure in this litigation, a serendipitous discovery led to the convictions before us. On June 20, 1973, the Philadelphia Strike Force of the Department of Justice applied to Judge Hannum for an order authorizing the installation of a pen register*fn2 on the telephone line of Nicholas Gregorio and the interception of conversations over that line. The affidavit accompanying the application contained information that formed the basis for believing that Gregorio and "others yet unknown" were engaged in theft and possession of goods stolen from interstate shipment. The Gregorio wiretap was to further the investigation of these crimes. Judge Hannum authorized the pen register and the wiretap, both to continue for fifteen days or until the accomplishment of the objectives set forth in the application, whichever was earlier. The district court also ordered that reports be submitted on the fifth and tenth days of the surveillance. Tapping of the Gregorio telephone began on June 21, and ended on July 2, the twelfth day. Reports were submitted to Judge Hannum on June 25 and June 29.
The Gregorio wiretap furnished the Strike Force with information that led to the indictment of Gregorio for theft of interstate shipment, but it also resulted in the interception of conversations respecting dealings in controlled substances. The conversations regarding controlled substances were relayed by the F.B.I. to the Drug Enforcement Administration (DEA). At the conclusion of the Gregorio surveillance a warrant for the search of his premises was obtained. While this search did not produce any evidence of value to a prosecution for theft from interstate shipment, the searchers did discover six ounces of methamphetamine in Gregorio's house.
Employing intercepted conversations from the Gregorio wiretap, as well as information obtained from DEA agents and informants, the Strike Force then applied to Judge Newcomer for a wiretap on a telephone located in the home of, and allegedly used by, Vento. In connection with this application, the material from the Gregorio wiretap was utilized without first securing permission from Judge Hannum for its disclosure.
Judge Newcomer authorized a wiretap and the use of a pen register on Vento's telephone line on July 12, 1973, and the monitoring began the same day. A five-day report, though not required by the terms of the order, was submitted on July 20. The eavesdropping terminated on July 27, but on August 2, at the request of the Strike Force, Judge Newcomer permitted a continuation of the Vento surveillance. The Vento interception lasted from August 2 until August 10, with an undated five-day report submitted at some point.
On the last day of the continued surveillance of Vento's communications, DeLuca was observed entering the Vento home empty-handed and then reappearing with a small brown paper bag. Wiretapped conversations indicated that DeLuca had gone to Vento's house to consummate a transaction in methamphetamine. After he left Vento's house, DeLuca's car was stopped and both he and it were searched. DEA agents discovered in DeLuca's car a paper bag containing several ounces of methamphetamine, worth approximately $16,800 "on the street."
A four-count indictment of the eight defendants, based in part on the Gregorio wiretap, was returned on November 7, 1973. On January 28, 1974, the Strike Force obtained a disclosure order from Judge Hannum to permit the use of the Gregorio wiretap evidence at trial. Subsequently this wiretap evidence was submitted to the grand jury and a supplemental nine-count indictment was returned on January 30, 1974. The eight defendants were charged with conspiring knowingly and intentionally to distribute quantities of methamphetamine, and with knowingly and intentionally using a communications facility, a telephone, to expedite distribution of a controlled substance. In addition, Vento, DeLuca, and Gregorio were charged with distribution and possession of methamphetamine. The original indictment was later dismissed at the request of the government.
Motions to suppress with respect to the Gregorio wiretap, the search of Gregorio's house, the Vento wiretap, and the search of DeLuca's car were all denied.
Trial before a jury began on June 7, 1974, with Judge Green presiding. The prosecution sought to establish a conspiracy to distribute methamphetamine. To this end, testimony concerning more than fifty telephone conversations was introduced by the government. Agents familiar with the voices on the tapes identified the participants, then agents conversant with the language of the narcotics trade interpreted each communication for the jurors. The government also produced evidence of the physical surveillance of the defendants and evidence obtained by the searches and seizures. On June 28, the alternate jurors were dismissed and the case was submitted to the jury. The jury returned a verdict convicting each defendant on all applicable counts.
Weeks after the trial ended, Vento and his lawyer learned that an alternate juror, Mrs. Elizabeth Bewley, might have possessed injurious information about Vento: Vento had been accused, but acquitted, of the murder of Reginald Cullen, who was the brother-in-law of Mrs. Bewley's brother. The defendants suspected that Mrs. Bewley had prejudiced some of the other jurors by conveying this tainted information to them. On July 31 a hearing was held to question Mrs. Bewley and Mrs. Bewley's nephew, Richard Costello, who was identified as the original source of the tip about Mrs. Bewley. After hearing their testimony, Judge Green denied a request by counsel for leave to interrogate the other jurors.
Of the eight defendants, only Vento, DeLuca, Mengini, and Mastrangelo perfected appeals.*fn2a We affirm their convictions.
At the heart of this prosecution is wiretap evidence. There is little reason to believe that the government could have obtained convictions here if the recorded conversations had not been introduced. The defendants object strenuously to almost all steps in the interceptions as well as to the use of the wiretapped conversations. Consideration of these objections requires us to join the continuing review conducted by the federal courts of the procedures for authorization and use of wire interceptions.*fn3
A. Probable Cause for the Gregorio Interception
To obtain authorization for an interception of a wire communication, the government must show that:
(a) there is probable cause for belief that an individual is committing, has committed or is about to commit a particular offense enumerated in section 2516 [including theft from interstate shipment] . . .
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception . . ..*fn4
If the government's application did not present probable cause for the authorization of the interception, then the authorization and any surveillance pursuant to it were improper. And, if the surveillance was improper, the government could not use the fruits of that surveillance at trial or to further its investigation.*fn5 Thus, if the Gregorio tap was improvidently ordered, the government could not have obtained a proper authorization for the Vento interception - the source of the bulk of the evidence used at trial. The defendants, therefore, seek first to preclude the government's use of wiretap evidence by alleging the absence of probable cause in the application for the Gregorio interception.
The application relied on information from five unnamed persons and on the results of independent investigations that the government had made pursuant to two of the "tips." Insofar as the application rested upon informants to establish the central element of probable cause, it is to be tested by the standards enunciated in Aguilar v. Texas and Spinelli v. United States.*fn6 Affidavits accompanying the application must describe the circumstances which provide reason to believe that the unnamed informant is reliable and the basis for crediting the information about the particular criminal activity at issue.
Initial interest in Gregorio arose in connection with theft from interstate shipments, and all of the government's sources provided information about such activity. The first source related that Gregorio had received 200 cartons of stolen margarine. This information was confirmed by physical surveillance of Gregorio's premises and notice of the theft of a like amount of margarine from a railroad boxcar travelling in interstate commerce. Consequently, the Strike Force's reliance was not on the informant himself, but upon its own investigation. A second source, whose information had been corroborated on at least three occasions, associated Gregorio with the receipt of merchandise stolen from Hennis Motor Lines. This lead, too, was checked by investigation; when subjected to interrogation, a suspect named by the informant said that he had sold the stolen merchandise to Gregorio.
Another informant, who had furnished reports leading to the arrest of three persons and the conviction of one, linked Gregorio to a theft of silver bars from a metal refining company and to the receipt of antique guns stolen from a private residence. This third source was able to supply detailed data about each crime. The connection between Gregorio and the theft of the silver bars was supported by still another informant, who over the years had given information leading to the arrest and conviction of four persons. His representation identified some of the participants in the theft and tied Gregorio to the receipt of the silver bars. A final source implicated Gregorio in the planning of a hijacking of an interstate shipment. Reports from this informer had previously led to the recovery of stolen merchandise, and his account of the planned hijacking was detailed.
The government's affidavit furnished an adequate basis to demonstrate the reliability of each source, although not every informant had previously provided information leading to convictions. Three of the sources had proven their credibility by giving information that led to arrests, convictions, or the recovery of stolen property. The other two had proven their dependability by subsequent investigations that confirmed the details of the intelligence they offered. Defendants protest that some of the informants cited in the application are criminals. We cannot share their apprehension. Those with detailed information about the underworld are unlikely to be completely innocent, and the investigation of organized crime is rarely furthered by awaiting tips from respectable citizens.
There was also reason to credit the information that each informant furnished regarding Gregorio's hijacking activities. Either the information was confirmed by investigation or else the report itself was sufficiently detailed to appear creditable.*fn7 This is not a case where the police have relied upon rumor or innuendo. The government's application for authorization to intercept Gregorio's conversations met the Aguilar-Spinelli test and supplied "probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in Section 2516."*fn8
The government's application also satisfied section 2518(3)(b) by offering "probable cause for belief that particular communications concerning that offense will be obtained through such interception." Two of the unnamed informants and one named informant indicated that Gregorio used his telephone to conduct transactions in stolen goods. Two of these persons provided the F.B.I. with independent verification of the number of the telephone that the F.B.I. sought to monitor.
B. Exhaustion of Other Avenues of Investigation
In addition to showing probable cause to believe "(a) . . . that an individual is committing . . . a particular offense" and "(b) . . . that particular communications concerning that offense will be obtained through such interceptions,"*fn9 the government must also establish that "(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."*fn10
Congress has established this additional precondition to obtaining a section 2518 authorization in order "to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures [are] not to be routinely employed as the initial step in criminal investigation."*fn11 "Wiretapping is not [to be] resorted to in situations where traditional investigative techniques would suffice to expose the crime."*fn12
The government failed to establish, defendants maintain, that "normal investigative procedures" had been tried or appeared "unlikely to succeed." They suggest that the government should have subpoenaed the testimony of its informants and if necessary offered the informants immunity from prosecution. The defendants then propose that the government could have relied exclusively on the witnesses already available, that it could have conducted extensive physical surveillance, that Gregorio's co-conspirators were sufficiently known to establish a violation without further investigation, and that undercover agents should have been employed.
This argument, however, relies almost exclusively on the first clause of section 2518(3)(c) -- "normal investigative procedures have been tried and have failed" -- and ignores the disjunctive language of that provision -- "or reasonably appear to be unlikely to succeed if tried or to be too dangerous." To adopt the defendants' contention in this respect would be to misapprehend the purposes of Congress in enacting this precondition to authorization of a wiretap.
In United States v. Armocida,*fn13 this Court, in accord with the legislative history, adopted a "pragmatic" approach to subsection (c). We held that the government's showing is to be "tested in a practical and common sense fashion."*fn14 There is no requirement that every investigative methodology be exhausted prior to application for a section 2518 authorization.*fn15 Investigators are not obliged to try all theoretically possible approaches.*fn16 It is sufficient that the government show that other techniques are impractical under the circumstances and that it would be unreasonable to require pursuit of those avenues of investigation. The government must, however, fully explain to the authorizing judge the basis for such a conclusion.*fn17
Courts have declared that applications whose sole bases are general declarations and conclusory statements by the affiants will not support authorizations.*fn18 The use of "boiler plate" and the absence of particulars in requests for wiretap authorizations have not been permitted*fn19 lest wiretapping become established as a routine investigative recourse of law enforcement authorities, contrary to the restrictive intent of Congress. In granting motions to suppress, however, the courts have emphasized the government's failure to justify the applications; they have not insisted that the government exhaust all possible traditional investigative techniques prior to the applications.*fn20
Here, the government made an adequate showing that other methods were unlikely to succeed. The anonymous informants categorically indicated that they would not testify against Gregorio. Prolonged physical surveillance of Gregorio's premises appeared impossible because Gregorio was reputed to be suspicious and had warned his neighbors to be on the alert for panel trucks and strangers in parked cars.
That the government's application did not mention the use of undercover agents, as defendants stress, is not controlling. In this situation an undercover agent would be incapable of providing the Strike Force with information about the full extent of the criminal operations unless placed in constant touch with Gregorio and his closest confederates: Undercover agents are not readily insinuated into a conspiracy, and may be exposed to unusual danger. The circumstances here do not require that the government justify its failure to plant a spy in the midst of Gregorio's enterprise. The application of the wiretap in this case comports with the directions of Title III.
Defendants, moreover, take an unreasonably narrow view of the scope of this investigation. Although normal investigative techniques might have been sufficient to implicate Gregorio in thefts from interstate shipment, such approaches could not show the scope of the conspiracy or the nature of Gregorio's on-going criminal activity. Investigations are not restricted to crimes which can be probed satisfactorily by normal methods. In the proper circumstances, the instrumentalities of Title III may be employed to discover the full extent of crimes and conspiracies.*fn21 The government sought to know the full nature of Gregorio's schemes for theft from interstate shipment. That could be discovered only by learning from whom Gregorio was then purchasing stolen goods, and to whom he was then selling them, and the times and methods of those transactions. Witnesses who had past experience with Gregorio were necessarily of limited utility; prolonged physical surveillance was not possible; and search warrants would provide only a portion of the necessary information.
We conclude that the government's affidavit was sufficient to meet the preconditions for authorization of wire interception established in section 2518.
C. Minimization In The Gregorio Order
The command of section 2518 that agents reduce intrusion on the communications of those subject to surveillance to the minimum level consistent with the authorization to investigate by wiretap is derived from the decision of the Supreme Court in Berger v. New York.*fn22 There the state wiretap statute was found deficient for failure to conform to the fourth amendment requirement that a warrant "particularly describ[e] the place to be searched, and the . . . things to be seized." This "particularization" was regarded as necessary in view of the broad invasion of privacy inherent in wiretapping, in order to avoid giving officers "a roving commission to 'seize' any and all conversations."
Judge Hannum's authorization for the Gregorio wiretap directed that it "shall be conducted in such a way as to minimize the interception under Chapter 119 of Title 18, United States Code, and must terminate upon attainment of the authorized objective or in any event, at the end of fifteen (15) days from the date of this order."*fn23 It also directed that the Strike Force report to the court "on or about the fifth and tenth days following the date of this order, or as often as the court may require, showing what progress has been made toward achievement of the authorized objective and the need for continued interception."*fn24
Vento, Mengini, and DeLuca attack Judge Hannum's authorization as too broad, because it does not confine the interception to gathering evidence of culpability with respect to the crimes specified in the authorization, "the hijacking of interstate shipments, and the purchase and sale of goods stolen from an interstate shipment . . . ." The order stipulated that:
such interception shall not automatically terminate when the type of communications described above . . . has first been obtained, but shall continue until communications are intercepted which reveal the manner in which Nicholas Gregorio and others as yet unknown, participate in the conducting of the above-listed offenses, and which reveal the identity of their confederates, their places and manner of operation and the nature of the conspiracy involved therein, or for a period of fifteen (15) days from the date of this Order, whichever is earlier.
Because the directive does not offer the investigators detailed instructions on minimization of the interception of Gregorio's conversations, the defendants claim it permits a general search, condemned by Berger v. New York, and allows unbridled discretion in the agents.*fn25
Once again, the defendants' argument rests upon a misconstruction of the purpose of the criminal investigation undertaken here. The minimization mandated by section 2518 does not compel agents to conclude their interceptions upon finding the minimum evidence necessary to show culpability. In addition, to the minimization requirement, section 2518 requires that
if the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has first been obtained, a particular description of the facts establishing probable cause to believe that additional communications of the same type would occur thereafter [shall be included in the application]"*fn26
Section 2518 also permits the authorizing judge to include in his order "a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained."*fn27 It has already been established that a wiretap may be used in investigating the scope and nature of a conspiracy and is not confined by section 2518(5) to the collection of minimal evidence of guilt of the party subject to the interception.
Whether a particular order has made provision for appropriate minimization depends on an analysis of the circumstances of each case.*fn28 There is no doubt that Judge Hannum's order described the crime with particularity. To allow investigation of the entire pattern of the hijacking conspiracy was necessary to efficient law enforcement and was congruent with terms of the Act. Although the better practice may be to give detailed instructions in each order whenever practicable for minimization of unnecessary interceptions, it is not mandatory to give detailed instructions.*fn29 Accordingly, the order here is not insufficient because of the absence of such guidelines.
By enjoining termination of the interception upon attainment of its objective -- the discovery of the nature and extent of the Gregorio hijacking conspiracy -- Judge Hannum's authorization complied with the dictates of United States v. Cafero. Its terms were clear. "Executing officers [were] not free to intercept beyond attainment of their objective . . . ."*fn30
There is no reason to hold that the authorization order for the Gregorio intercept was invalid as not ...