The opinion of the court was delivered by: BIUNNO
The matter came before the court on motions to compel discovery and for sanctions for failure to provide discovery. The eventual disposition was an order imposing sanctions against plaintiff by dismissing his complaint, and entering judgment for the United States on the counterclaim. Plaintiff appealed.
While the appeal was pending, the United States applied for an order remanding the case to the district court for the conduct of a hearing of the kind described in Matter of Grand Jury (Markowitz), 603 F.2d 469 (3d Cir. 1979), and the motion was granted. Further proceedings were conducted at the trial level.
The period involved is from June 1, 1971 to September 30, 1971, or four months. Although the best evidence, namely certified copies of State court documents, are not in the record, it is said in briefs that a search and arrest were made August 12, 1971 by the Union City Police Department. The search was pursuant to a warrant for premises at 410 Palisade Ave., Union City, N.J. The search produced various records for a lottery operation and plaintiff was arrested. At some later date, an indictment was returned charging violation of some applicable New Jersey law on illegal numbers or lottery operations. At some later date, it is said that a State court granted a motion to suppress the evidence obtained on the State search, and eventually the indictment was dismissed. None of the papers in this connection have been made part of the record here, and these facts are temporarily assumed for present purposes.
On September 30, 1971, another search was conducted of the same premises, this time by federal officers on a federal warrant. An indictment followed in this court, Crim. No. 296-72. Since that file is part of the official records of this court, it has been called for out of storage and inspected by the court.
The indictment was filed April 26, 1972, and named the plaintiff, his wife Maria Elena, and 26 other persons as defendants. The indictment was in three counts. Count 1 charged a conspiracy under 18 USC § 371 to violate 18 USC §§ 1952 and 1955 (use of interstate travel or facilities to promote an illegal activity, which includes gambling; and conduct of an illegal gambling operation by 5 or more persons). Count 2 charged substantive violation of § 1952 and § 2. Count 3 charged substantive violation of § 1955 and § 2.
On June 9, 1972, Michael A. Querques, Esq. of 521 Central Avenue, Orange, New Jersey, filed a notice of appearance for both plaintiff and his wife. No later substitution of attorney or appearance by a different attorney appears on the docket or in the file.
On October 4, 1974 orders for dismissal were signed, one for each defendant, on application for leave signed by the U.S. Attorney. All of them recited, as the reason, that "electronic surveillance which comprises a substantial portion of the proof in this case is unlawful under the doctrine stated in U.S. v. Giordano" and that permission to dismiss the indictment was granted by the Department of Justice on August 27, 1974.
After entry of the dismissals, nothing further appears in the file except an order, consented to by James M. Deichert, Esq., Special Attorney, Department of Justice. The order recites that it was on the application of plaintiff for the return of one Model EL-81 Sharp calculator with adapter, owned by him, which had been seized by agents of the FBI acting under a search warrant (copy of which was attached) on September 30, 1971 at 410 Palisade Avenue, Apt. 8-A, Union City, N.J. It recites that the indictment was dismissed October 4, 1971. It then reads that: "Since no grounds exist for the continued possession by the Plaintiff [sic] of the property of the Defendant", the "property above mentioned" (i.e., calculator) was ordered returned forthwith to the defendant (plaintiff here). The consent order bears the backer of Herbert L. Zuckerman, P.A., 60 Park Place, Newark, New Jersey. There is no formal motion of record, no minute entry of any hearing. As noted above, no substitution appears replacing Mr. Querques with Mr. Zuckerman.
The copy of the search warrant attached to the order includes the return. It discloses that the inventory of property taken pursuant to the warrant was:
1. Twelve bundles of U.S. Currency consisting of 10 bundles of $1,000 each, one bundle with $1,496, and one bundle of $100 (total, $11,596.00).
2. Model EL-81 Sharp mathematical calculator with adapter.
3. One envelope dated 3/3/71 with gambling notations.
4. One bus fare ticket with numbers bets listed.
5. One business card for La Guardia Bakery.
Maria E. Garcia signed a certification that these items were taken on a search at the location indicated on 9/30/71 at 5:45 PM by FBI agents and were the only items taken. Agents Calvin C. Clegg and Robert J. Vonterich witnessed her certification.
The case file in Crim. No. 296-72 discloses no hearing or any order declaring that the search warrant was in any way defective, or suppressing the evidence seized. Several defendants, other than plaintiff and his wife, had filed omnibus motions which included claims of standing to apply for the suppression of evidence and claiming standing to do so, but no entry disclosing that any hearing had been held, and no order of any kind on the subject appears of record before the orders of dismissal.
U.S. v. Giordano, 416 US 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974), of course, was the decision ruling that court orders for electronic surveillance under 18 USC § 2518 procedures were invalid when the authorization to apply, specified by 18 USC § 2516, had been given not by the Attorney General or by an Assistant Attorney General specially designated by him, but by another official in the Department.
This review of the criminal file discloses that the recitals in briefs or at argument, to the effect that the federal search was ruled to be illegal and the evidence obtained suppressed, are simply not the case. There was no such ruling. The only order was the order to return the calculator, and that on the ground that the indictment had been dismissed and the United States had no need for it. No application was made for the return ...