Appendix — ELVIN LEE LEE BYNUM, et al. v. UNITED STATES (No. 74-1445)

— “

| Supreme Court, U. S.

FILED |

“WAY Te 1975 |

IN THE | 2s

Supreme Court of the United States

October Term, 1974

No. 741445

ELVIN LEE BYNUM, JOSEPH CORDOVANO, ABRAHAM WRIGHT, LANCE

SMALL, NEWBRY MITCHELL, FANNIE MAE GARNETT, JACQUELINE

FULLER DysoN, JOHN CONIGLIO, ANGELO MELI, VINCENT ALTA-

MURA, IRVING BIRNBAUM, CHARLES TUZZOLINO, and LEVIS NEDD,

Petitioners,

andi gun

UNITED STATES OF AMERICA,

Respondent.

— . — —————

JOINT PETITIONERS’ APPENDIX

—ñ

H. ELLIoT WALES

Attorney for Petitioners

Coniglio & Tuzzolino

747 Third Avenue

New York, New York 10017

FRANK A. LOPEZ

Attorney for Petitioner

Altamura

33 Smith Street

HENRY J. BOITEL

Attorney for Petitioner Bynum

233 Broadway

New York, New York 10007

(212) RE 2-8104

PATRICK M. WALL

Attorney for Petitioners

Cordovano, Wright, Small,

Mitchell, Garnett, Dyson & Nedd

36 West 44th Street Brooklyn, New York 11201

(212) 986 - 6688 (212) 237 - 9500

Morrow D. MUSHKIN

Attorney for Petitioner Birnbaum

600 Old Country Road

Garden City, New York 11530

INDEX TO APPENDIX

PAGE

Appendix A—First Opinion , he Court of Appeals,

United States v. Bynum, 475 F.2d 832

eee eee esse see la

Appendix B—Opinion of the District Court, United

States v. Bynum, 360 F. Supp. 400

Gr., . 12a

Appendix C- Second Opinion of the Court of Appeals,

United States v. Bynum, 485 F.2d 490

(3B Cle., e ůh 6 50a

Appendix D— Order of the Court of Appeals Denying

DSi 76a

Appendix E— Order of the Court of Appeals Denying

Rehearing in banane 7 Ru

Appendix F—Statute Involved—18 United States Code,

Chapter 119, $$ 2510252000 80a

§ 2510. Definitioaas ee cece eees Sla

§ 2511. Interception and disclosure of wire or

oral communications prohibited ........ 83a

§ 2512. Manufacture, distribution, possession, and

advertising of wire or oral communication

intercepting devices prohibited ......... Sa

§ 2513. Confiscation of wire or oral communica-

tion intercepting devices 89a

§ 2514. Immunity of witness es 90a

$2515. Prohibition of use as evidence of inter-

cepted wire or oral communications .... 9la

ii

PAGE

§ 2516. Authorization for interception of wire or

oral communicatiohn.ssssssss . 9la

§ 2517. Authorization for disclosure and use of

intercepted wire or oral communications 94a

§ 2518. Procedure for interception of wire or oral

communicatiosss eee ee eeee 96a

§ 2519. Reports concerning intercepted wire or

oral communications? 104a

§ 2520. Recovery of civil damages authorized ...107a

Appendix G—Memorandum Decision of the Supreme

Court of the United States, Bynum, et

al. v. United States, 416 U.S.—(May 28,

BOTE) ccccccscvcccccccccccsccsosccess 108a

Appendix H—Order of Court of Appeals (June 18,

OTE) nw ccccccccccccccccccssccsscccses 109a

Appendix I—Opinion and findings of District Court,

— Supp — (December 5, 197) 110a

Appendix J—Third Opinion of the Court of Appeals,

Bynum, et al. v. United States,

— F.2d — (March 26, 19750))))) 136a

Appendix K—Amended Order of the Court of Appeals

Denying Rehearing (April 25, 1975) ...142a

APPENDIX A

First Opinion of the Court of Appeals

United States Court of Appeals

For THE SECOND CIRCUIT

Nos, 376, 397, 398, 399, 400, 401—September Term, 1972.

(Argued November 17, 1972 Decided March 14, 1973.)

Docket Nos. 72-1857, 72-1884, 72-2101, 72-1763, 72-2142

and 72-2143

— nnn oe ——ä2ĩ—I— —

UNITED STATES OF AMERICA,

Appellee,

—against—

ELVIN LEE BYNUM, JOSEPH CoRDOVANO, ABRAHAM WRIGHT,

LANCE SMALL, NEWBRY MITCHELL, FANNIE MAE GARNETT,

JACQUELINE FULLER Dyson, JOHN CONIGLIO, ANGELO

MELB, VINCENT ALTAMURA, IRVING BIRNBAUM, JOHN

FEROLDI, CHARLES TUZZOLINO and Levis Nobo,

Appellants.

> 4 ee

Before:

SMITH, KAUFMAN and MULLIGAN,

Circuit Judges.

— ee (—„V—

Appeal from judgments of conviction entered after a

jury trial in the United States District Court for the

Southern District of New York, Milton Pollack, Judge, con-

2a

Appendiæ A — First Opinion of the Court of Appeals

victing all appellants of conspiracy to violate 21 U.S. C.

§§ 173 and 174 (repealed 1970) and 26 U.S.C. §§ 4705 (a)

and 7237(b) (repealed 1970), and convicting appellant

Nedd of carrying a firearm during the course of that con-

spiracy. 18 U.S.C. § 924.

Remanded for an evidentiary hearing.

— — 2 —

HENRY J. Borrxt., New York, N. V., for Appellant,

Elvin Lee Bynum.

PATRICK M. WALL, New York, N.Y., for Appellant,

Joseph Cordovano.

AARON J. JAFFE, New York, N. v., for Appellants,

Abraham Wright, Lance Small, Newbry

Mitchell and Irving Birnbaum.

FREDERICK T. STANT, Norfolk, Va., for Appellants,

Fannie Mae Garnett, Jacqueline Fuller Dyson,

John Feroldi and Levis Nedd.

THEODORE ROSPNBERG, Brooklyn, N.Y. (Frank A.

Lopez, Brooklyn, N.Y., of Counsel) for Appel-

lant, Vincent Altamura.

H. ELLior WALES, New York, N.Y. (Michael P.

DiRenzon, New York, N.Y., on the brief) for

Appellants, John Coniglio and Charles Tuzzo-

lino.

JEROME LEwis, New York, N.Y., for Appellant,

Angelo Mele.

3a

Appendia A — First Opinion of the Court of Appeals

W. CULLEN MACDONALD, Assistant United States

Attorney, Southern District of New York,

New York, N.Y. (Whitney North Seymour,

Jr., United States Attorney, Southern District

of New York, New York, N.Y. and John W.

Nields, Jr., and John M. Bush, Assistant

United States Attorneys, Southern District of

New York, New York, N.Y., of Counsel) for

Appellee.

oo ů—ů—

MULLIGAN, Circuit Judge:

These are appeals by Elvin Lee Bynum, Joseph Cordo-

vano, Abraham Wright, Lance Small, Newbry Mitchell,

Irving Birnbaum, Vincent Altamura, Angelo Mele, John

Coniglio, Charles Tuzzolino, John Feroldi, Levis Nedd,

Fannie Mae Garnett and Jacqueline Fuller Dyson from

judgments of conviction entered on June 27, 28 and July 7,

1972, in the United States District Court for the Southern

District of New York, after a trial before Hon. Milton

Pollack, United States District Court Judge, and a jury.

The Indictment (71 Cr. 1169) containing three counts

wus filed on October 13, 1971. All of the appellants were

charged with conspiring to obtain and sell narcotics in

violation of Title 21, United States Code, §§ 173 and 174

(repealed 1970) and Title 26, United States Code, §§ 4705

(u) and 7237 (b) (repealed 1970). All of the defendants

were found guilty... Counts Two and Three separately

On June 27, 1972, Judge Pollack sentenced Bynum to a thirty

year term of imprisonment and Cordovano to a sixteen year term

of imprisonment. Each was fined $20,000.

On June 28, 1972, Judge Pollack pronounced the following

sentences: Mele, to a twenty year term of imprisonment and a

[Footnote continued on following page)

4a

Appendia A — First Opinion of the Court of Appeals

charged Levis Nedd and Michael Lebbers (Malachy Libbers)

with unlawfully carrying a firearm in the commission of

the felony charged in Count One, in violation of 18 U.S.C.

§ 924. Appellant Nedd was found guilty under Count Two.’

In view of the disposition we make here, we need not

recite in detail the facts in this drug conspiracy, nor need

we discuss the numerous points raised on appeal. Suffice

it to say that in addition to the usual sordid operation of

purchasing, cutting and packaging large quantities of co-

caine and heroin, the conspiracy charged here included

criminal assault, planned robberies for the purpose of

procuring drugs and the planning of the murder of a

suspected informant to insure the continuance of the con-

spiracy. The Government’s case was in the main provided

by an informant Stewart, who while acting as a trusted key

member of the conspiracy, was simultaneously supplying

the Government with detailed information about the crim-

$5,000 fine; Coniglio, to a twelve year term of imprisonment and a

$5,000 fine; Feroldi, to a ten year term of imprisonment; Wright,

Small, Tuzzolino and Mitchell to seven year terms of imprison-

ment; Garnett to a six year term of imprisonment; and Altamura,

Dyson and Birnbaum to five year terms of imprisonment.

On July 7, 1972, Judge Pollack sentenced Nedd to concurrent

terms of imprisonment of fifteen years on Count One and five

years on Count Two. Finding that defendants Bynum, Cordovano,

Mele, Feroldi and Coniglio each presented a danger to the com-

munity, Judge Pollack denied bail and each is now imprisoned.

The remaining defendants are enlarged on bail.

2 Libbers and another defendant, Stanley Sherman, had their

motions to dismiss granted. Lillian Bynum, another defendant,

had her trial severed on the motion of the Government. Defendant

Charles Moody testified for the Government and later pleaded

guilty to an Information charging him with participation in the

conspiracy in question. Robert Wallock, George Stewart, Robert

Nesbitt, Edna Collings and Morty Molin were named as co-con-

spirators but not as defendants.

5a

Appendiæ A — First Opinion of the Court of Appeals

inal activities of his associates. Despite the wealth of in-

formation provided by Stewart, which in several instances

wax corroborated by physical surveillance, the Government

also introduced into evidence written transcripts and

played recorded telephone conversations of defendants

Uynum and Cordovano for the purpose of further sup-

porting Stewart’s testimony. For the reasons discussed

helow, the admission of the evidence has, in our view,

raised serious questions of statutory construction and, pos-

sibly, of constitutional interpretation, which we are loathe

to decide on the basis of the sparse record before us.

The defendant Bynum the principal figure in the con-

spirucy, used as his headquarters, a residence on Linden

Roulevurd in Brooklyn which was occupied by his par-

amour, the defendant Garnett. On the basis of information

from independent informants and the personal knowledge

of agents who had worked with Bynum when he was acting

ux a Government informant, an application was made pur-

sunnt to the wiretap authorization provision of 18 U.S.C.

$2516 to tap the telephone of Garnett at her residence

which was believed to be the focal point of Bynum’s drug

dealing operation. Other means of investigation were

deemed to be inadequate. Cf. 18 U.S.C. §2518(1)(c) &

(3) e).

On January 29, 1971, Judge Anthony Travia, United

Stute District Court, Eastern District of New York, en-

‘ered an order authorizing the Government to intercept

and record telephone communications to and from the

Garnett telephone at Linden Boulevard. On January 28,

1971, a second telephone wes installed at the Linden

Boulevard address. The Government learned of this second

telephone through the interception of messages on the

first telephone. Judge Travia entered an order on February

12, 1971 authorizing the interception and recordation of

6a

Appendig A — First Opinion of the Court of Appeals

messages on the second telephone ut Linden Boulevard.

Finally on February 18, 1971, an order was entered au-

thorizing the continuance of the first telephone intercept

for 14 days so that both taps terminated on March 3,

1971.

The major concern we have in this appeal is whether or

not the electronic surveillance of the two telephones in

question was conducted in such a fashion as to minimize

the interception of communications not otherwise subject

to interception. The statute, § 2518 (5), requires that an

order authorizing such interception contain such a provi-

sion. The extension order of February 18, 1971 failed to

contain the limitation; however, since it is a continuation

or extension of the initial order, we consider that it in-

corporates by reference the minimization language of the

first order. Appellants maintain, and a reading of the rec-

ord would indicate, that every single conversation on these

telephones from the time of the installation of the taps

until March 3, 1971 was intercepted and recorded by Gov-

ernment agents. Appellants argue that there was no

minimization effort here at all and therefore there was a

violation of both the statute and the orders authorizing

the taps. The Government urges in rebuttal that the ap-

pellants made no objection to the introduction of the

recordings on this ground before trial, but did so only

after the trial was over. At that point, counsel who had

made the motion failed to appear on the return date and

18 U.S.C. 12518 (8) provides in pertinent part:

Every order and extension thereof shal! contain a provision

that the authorization to intercept shall be executed as soon

as practicable, shall be conducted in such a way as to

minimize the interception of communications not otherwise

subject to interception under this chapter, and must termi-

nate upon attainment of the authorized objective, or in any

event in thirty days.

7a

Appendiæ A — First Opinion of the Court of Appeals

therefore the motion was dismissed. The Government’s

argument is inaccurate. On April 13, 1971, Mr. Hochheiser,

uttorney for Garnett, explicitly moved for the suppression

of all the tapped conversations because of the failure of

the Government to minimize the interceptions. While no

motion for an evidentiary hearing was made, there was a

clear argument that since every conversation no matter

what its nature was recorded, there could not have been

any effort to minimize. Judge Pollack made no decision

on the motion at this point. The motion was renewed on

trial at the conclusion of the testimony of Inspector Bitzer,

Bureau of Narcotics and Dangerous Drugs, who supervised

the wiretap. The motion was denied after trial and dis-

missed when counsel failed to appear. In view of these

facts we find that the minimization issue was raised in

timely fashion both before and during the trial and is

properly raised on appeal. The Government further urges

that neither Bynum nor Cordovano has standing to raise

the minimization question. Since the phone was in Garnett’s

home and listed in the name of one Fred Garnett, we

have no doubt that she has properly raised the issue.

Moreover, Bynum was clearly an “aggrieved person” as

defined in 18 U.S. C. 5 2510(11)* and therefore is given

leave to raise the question of the legitimacy of the surveil-

lance under 18 U.S.C. § 2518 (10).“ Since Bynum was the

*“aggrieved person” means a person who was a party to any

intercepted wire or oral communication or a person against whom

the interception was directed.

18 U.S.C. 52518 (10) provides in pertinent part:

(a) Any aggrieved person in any trial, hearing, or pro-

ceeding in or before any court, department, officer, agency,

regulatory body, or other authority of the United States,

a State, or a political subdivision thereof, may move to

suppress the contents of any intercepted wire or oral com-

munication, or evidence derived therefrom, on the grounds

that—

[Footnote continued on following page]

8a

Appendiæ A — First Opinion of the Court of Appeals

central figure in the conspiracy, a reversal as to him might

well render the convictions of the lesser figures in the

scheme vulnerable and entitle them all to new trials. See

United States v. Weiss, 103 F.2d 348, 352 (2d Cir.), rev'd

on other grounds, 308 U.S. 321 (1939).

The issue of minimization has never been considered by

this Court. Appellants rely on United States v. King, 335

F. Supp. 523 (S. D. Cal. 1971) and United States v. Scott,

331 F. Supp. 233 (D. D.C. 1971), where as in this case, all

conversations were monitored and since a high percentage

of irrelevant or innocent conversations were intercepted,

violations of the statute were found to exist. In United

States v. Focarile, 340 F. Supp. 1033 (D. Md. 1972), the

court made the comment that if no attempt at all is made

to minimize the interception of innocent calls, there would

not only be a blatant violation of the statute but probably

a violation of Fourth Amendment Constitutional rights

(340 F. Supp. at 1046).

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under

‘which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or

proceeding unless there was no opportunity to make such

motion or the person was not aware of the grounds of the

motion. If the motion is granted, the contents of the inter-

cepted wire or oral communication, or evidence derived

therefrom, shall be treated as having been obtained in

violation of this chapter. The judge, upon the filing of

such motion by the aggrieved person, may in his discretion

make available to the aggrieved person or his counsel for

inspection such portions of the intercepted communication

or evidence derived therefrom as the judge determines to

be in the interests of justice.

9a

Appendia A — First Opinion of the Court of Appeals

A different approach supporting the position of the

Government although not cited by the United States, is

found in United States v. Cow, 462 F.2d 1293 (8th Cir.

1972). In that case again there was 100% interception of

telephone conversations with a substantial number of the

calls being unrelated to the drug conspiracy charged.

Chief Judge Matthes found the minimization issue to be

purely statutory and not of constitutional dimension. That

court found that the minimization question was to be

determined on a case by case basis with the practical

observation that the determination of whether or not a

conversation was innocent or irrelevant often could not

be made until the conversation was over and the inter-

ception terminated. The court further questioned whether

suppression of all intercepted conversations was in any

event the proper remedy for a violation of the statute

in view of the civil remedy for damages against the in-

vestigating officers provided by 18 U.S.C. 5 2520.“ The

court, however, emphasized that the District Court judge

who authorized the wiretap order closely supervised the

interceptions, requiring reports from the United States

Attorney ut five day intervals. The transcripts of these

reports were made available to the Circuit Court on appeal.

It seems evident that we are faced here with weighty

issues of first impression in this Court which may well

* See, contra, United States v. George, 465 F.2d 772 (6th Cir.

1972), where there was a violation of the wiretap order authorizing

surveillance only when particular individuals were using the tele-

phone. The electronic interception was conducted without regard

to the terms of the order. The court finding that the protective

limitations of the order were defeated, found the wiretap evidence

inadmissible and ordered a new trial which would exclude any

wiretap evidence procured in violation of the order. The court

found not only a violation of the statute but constitutional in-

firmity under Desist v. United States, 394 U.S. 244, 246 (1969).

10a

Appendia A — First Opinion of the Court of Appeals

be rah d again in other trial and appellate litigation.

Unlike the district court cases which have considered the

minimization problem in other Circuits, we have here no

breakdown or analysis of the intercepted conversations.

We do know that 198 reels of tape containing more than

3000 conversations were made available to appellants be-

fore trial. What percentage of these are irrelevant or

innocuous we do not know. The record only indicates

that on one phone between January 30, 1971 until Feb-

ruary 13, 1971 some 770 completed telephone calls were

intercepted. Of these, 108 allegedly relate to illegal drug

traffic and 21 refer to other criminal activity. This in-

formation is provided in the affidavit of an Inspector of

the Bureau of Narcotics and Dangerous Drugs in support

of the extension of the initial wiretap order of J udge Travia.

A reading of the testimony of the agent who supervised

the surveillance would indicate that all conversations were

recorded but only those presumably inculpatory were ever

transcribed. The mischief lies in the interception ob-

viously and what was not transcribed remains unknown.

Although there is an allegation that the conversations

were coded and guarded, which may account for the total

interception, we are provided with no explanation of why

some minimization was not possible to achieve. We know

nothing of the nature or tenor of those calls which might

be deemed innocent. The orders of Judge Travia required

the United States Attorney to make reports at five day in-

tervals indicating the progress of the investigation and

the need for continuing interception. The record does not

indicate whether the reports were made, and none have

heen made available to us. In short we do not know how

closely the wiretap was supervised under the terms of

the orders.

lla

Appendia A — First Opinion of the Court of Appeals

In view of the importance of the issues here involved

we believe the best course to follow now is to remand to

Judge Pollack for an evidentiary hearing to develop a

record which will clarify the points we have discussed so

that a proper determination can be made by this Court.

This panel will retain jurisdiction of this matter. After

findings are made below, ihis Court will require supple-

mental briefs of the parties on the minimization question,

including the issue of the appropriate remedy in the event

it is ultimately determined that either the minimization

order issued by Judge Travia, or the minimization pro-

vision of the statute, was violated in this case. The parties

will also brief the question whether such violations, if such

be found, are, or are not, under the circumstances of this

cause, to be deemed violative of the Fourth Amendment.

Remanded.

12a

APPENDIX B

Findings and Opinion of the D.strict Court

UNITED STATES DISTRICT COURT |

SOUTHERN DISTRICT OF NEW YORK

71 Cr. 1169(MP)

— 1 — f —

UNITED STATES OF AMERICA,

Plaintiff,

—v.—

ELVIN LEP BYNUM, et al.,

Defendants.

ee 18 —

FINDINGS AND OPINION

PoLLack, District Judge.

This case is presently on appeal from the conviction ly

a jury of 14 defendants of conspiracy to violate the narcotic

laws and the conviction of appellant Nedd of carrying a

firearm during the course of that conspiracy.

The government presented evidence at the trial of seven

brief conversations which were electronically intercepted

by an authorized telephone tap of phones located in the

headquarters of the narcotics enterprise. The defendants

are contending on their appeal that the management of the

wiretap violated the standards for interception of oral con-

versations over a telephone and that the government con-

sequently overheard conversations unrelated to the author-

ized purposes of the wiretap, albeit not used on the trial.

After hearing ergument, the Court of Appeals remanded

the case to the District Court for an evidentiary hearing

13a

Appendiæ B — Findings and Opinion of the District Court

and findings on the issue whether the electronic surveillance

was conducted so as to minimize interception of communi-

cations not subject to interception under the statute.’ Mean-

while, jurisdiction of the matter was retained by the appel-

late panel.

The required hearings on the inquiry by the Court of

Appeals have been duly held in the District Court. The

Judge who authorized and supervised the wiretaps (Hon.

Anthony J. Travia), the Assistant United States Attorney

in charge (Charles B. Updike), a monitoring agent and a

unrcoties agent who had analyzed the tapped data, as an

aid to the Court, were examined and cross-examined. (One

of the inspectors in charge, Bitzer, had already been ex-

xmined and cross-examined on the wiretap at the trial.)

The documentary evidence adduced included the wiretap

orders, the regular reports to the supervising Judge from

the United States Attorney in compliance with the orders,

and the logs kept by the monitoring agents.* The reports

io Washington as required by statute as well as the in-

ventory and sealing orders and a copy of guidelines issued

by the Department of Justice to its attorneys were also in-

troduced. The parties also presented data which really

umounted to briefs, ie., such items as the defense analysis

of the taps, statistics compiled by the defense, summaries

by the defense of selected calls; and contentions of the

prosecution, and the analyses made by the prosecution of

the evidence.

Omnibus Crime Control and Safe Streets Act of 1968, 18

U.S.C. § 2510, et seg. (hereinafter the “Act” or “statute’’).

The transcripts of the respective conversations of the de-

fendants which were overheard had been furnished to them by

the government before the trial; no other transcriptions were

made by the government. Only a few out of all the defendants

were overheard. Transcripts of the remaining calls were not

provided to the Court with the exception that defendants fur-

nished, with their post-hearing brief, transcripts of selected calls

recorded said to im lve attorneys and allegedly privileged.

lia

Appendiæ B — Findings and Opinion of the District Court

One fact stands out from the paper weight of all of the

foregoing and that is, that the supervising Judge, the

government attorney in charge and the agents showed a

proper awareness of, sensitivity to and reasonable regard

for the right of privacy. They did what under the circum-

stances was reasonable and understandable in the investi-

gation of this far flung and widely ranging narcotics con-

spiracy case to ferret out and identify the violators ani

their part in the crime and the involvement with them of

corrupt law enforcement officers. The statutory mandates

for the authorization and conduct of wiretaps were legally

observed. There was compliance in fact under the circum-

stances of this case with the statute and the directives from

the Judge included in his written orders and verbal in-

structions to minimize to the extent reasonable the over-

hearing of unrelated and privileged matter.“

It should be noted that none of the calls introduced into

evidence on the trial of this case were either improperly inter-

cepted or privileged communications. The taps introduced in

evidence were calls numbered Q335 (recorded 2/20/71); W1880

(2/22); W2312 (2/28); Q664 (2/28); W2463 (3/1); W2485

(3/1); Q761 (8/1). Moreover, no criticism can validly be levelled

at any of the intercepted conversations which were transcribed by

the government—the inculpatory nature of these with picayune

exceptions is patent. The challenge here is that a number of

other calls intercepted were unrelated to the investigation and

consequently were overheard in violation of the statutory require-

ment of minimization. Apart from the possibility of criminal and

civil liabilities provided in the Act for listening to unrelated

matter, 18 U.S.C. §§ 2511, 2520, it has been held that suppression

of improperly seized calls is the relief to be afforded for excessive

surveillance. United States v. Cor, 462 F.2d 1293 (8th Cir.

1972); United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa.

1971); but cf. United States v. Scott, 331 F. Supp. 233 (D.C. D.C.

1971). That was accomplished herein without a formal suppres-

sion order through the omission of the government to make any

use thereof.

15a

Appendia B — Findings and Opinion of the District Court

I.

A review of the validity of an electronic surveillance

must include a determination of the perspective with which

the investigating agents proceeded. The legitimacy of a

search and seizure is neither established nor negated by a

post-investigation analysis of what was produced by the

search and seizure. Ker v. California, 374 U.S. 23 (1963).

The focus, rather is on the reasonableness of the procedures

employed by the investigators, supra. Essential to a con-

stitutionally permissible intrusion into an individual's pro-

tected privacy is the presence of facts and circumstances

which provide the investigators with probable cause to be-

lieve that individual is implicated in a criminal enterprise.

Probable cause must exist as of the time of the intrusion,

and the results of the investigation—which naturally in-

forms the hindsight analysis of judges and lawyers—are

not to be considered. With wiretaps, however, the degree

of probable cause existing during the course of an inves-

tigation may fluctuate, since the growing amalgam of in-

formation received during the tap more sharply defines the

skeletal data, inferences and sophisticated suspicions with

which the investigation began.

Sometime in January 1971, Inspector Thomas P. Taylor

of the Bureau of Narcotics and Dangerous Drugs (BNDD)

came to Assistant United States Attorney Charles B. Up-

dike who was then in charge of the Narcotic Unit in the

office of the United States Attorney for the Southern Dis-

trict, with information suggesting that Elvin Lee Bynum

was successfully operating a far flung narcotics trade,

buying from and selling to numerous unknown co-conspira-

tors, with the affirmative aid, counsel and protection of

local and federal law enforcement officers, agents and their

supervisors. Bynum' corruption of law enforcement officers

us part of his narcotics empire had apparently reached such

16a

Appendiæ B — Findings and Opinion of the District Court

proportions that BNDD’s internal investigations unit, the

Office of Inspection, was galvanized to undertake a broad

scale inquiry, involving interviews with numerous witnesses

and examination of extensive documentary materials.

Moreover, prior investigations had obtained a taped re-

cord tending to implicate certain attorneys as potential

co-conspirators in Bynum’s venture, and tending to show

that they were serving to advise Bynum, and those asso-

ciated with him, how the conspiracy might best be con-

ducted to serve their joint ends.“

Bynum's illicit activities reportedly centered in Brook-

lyn, New York and ranged outward to Boston, Baltimore,

Washington, areas of Virginia and Atlanta.

The criminality believed to be included as adjuncts to

the acquisition and distribution of narcotics, allegedly in-

volved numerous murders, robberies (“takeoff of other

drug dealers), thefts, possession of stolen property, the use

of lethal weapons, bribery and the obstruction of justice.

Bynum’s past record included a federal narcotics offense.

He was well schooled in narcotic law enforcement tech-

niques including the use of electronic eavesdropping equip-

ment. Latterly he had served as a government narcotics

informer through which he had cultivated the acquaintance

of narcotics agents, local law enforcement officials, telephone

company employees and others. Conversely, the agents

‘The transcripts of such a tape recording involving certain

attorneys and certain of the co-conspirators in this case was made

a public record in a trial before Chief Judge Edelstein. The

conviction in that case was affirmed from the bench, U. S. v.

Wollack, — F.2d — (2d Cir. 1/5/72) (without opinion), cert.

denied, 41 U.S.L.W. 3502 (Mar. 9, 1973).

17a

Appendia B — Findings and Opinion of the District Court

= aware of Bynum and how he operated. He was so-

phisticated in the field and presented a uniquely difficult

and subtle law enforcement problem.

“ > ae requested the procurement of authority to

ug” Bynum’s Linden Boulevard, Brooklyn premises to-

gether with a simultaneous wiretap installation on what

was believed to be the only telephone located there. The

— eavesdropping was to be able to decode oth wise

urgely indecipherable telephone conversations far sooner

and more effectively than was possible by the clumsy and

slower traditional methods of analyzing superficially in-

nocent and coded conversation conducted in an argot and

of dissecti

pate ng these with surveillance and follow-up investi-

3 these discussions with BNDD inspectors, Up-

e began to formulate a program for oral and wire sur-

Updike’s decisions concerning the manner in which the

surveillance, if authorized, should be executed were reason-

ably postulated on his perception of th

fol

assuinptions : 7 e following additional

The premises at 855 Linden Boulevard, where the phones

xubwequently tapped were located, had been identified by

government agents as the nerve center of a maxsive crim-

inal operation. All contemporaneous indications were that

nearly everyone who came and went to those premises was

criminally involved in the illicit activities. In furtherance

of the operation of the enterprise, its members predictably

would enden vor to use a telephone for business (communi—

cation). While Mae Garnett was known to live in the

premises with Bynum’s infant son, her use of the telephone

Idu

Appendiæ B — Findings and Opinion of the District Court

was not thought to deviate to any practical extent from the

policy of restricting social usage of the telephone.

Updike reasonably predicted certain problems, prospects,

and requirements inherent in electronic surveillance and in

equipment used therefor. Such postulates affected the plans

he devised for the interceptions. The listening post needed

to be located near the target premises due to range limita-

tions of the radios available for communication with visual

surveillance teams in the field. Use of pen register devices

required time to decode the symbols for the number called,

and this would impede the listening endeavor whenever sim—

ultaneously attempted.

In monitoring telephone communications the foreseeable

problems included at the beginning of any call, speaker

or voice identification and simple word identification aris-

ing out of dialectical habits; these would require an initial

listening of a few minutes to achieve necessary orientation.

It was believed that all telephone conversations overheard

through the “tap”, would be, no matter how illicit the

actual message conveyed, innocent superficially. Many

illicit telephone communications could be decoded if fol-

lowed by discussions of the true contents of such calls which

would be electronically intercepted. The remainder would

prove either decipherable by the agents, with or without

informant consultation, or simply forever undecipherable.

The character of calls as innocent or as illicit would be

similarly determined as best as possible.

In planning for the conduct of the upcoming electronic

surveillance, Updike carefully considered, among other

things, the statutory minimization provision, 18 C..

2518 (5). In evaluating the effect of this provision, in

addition to talking with his colleagues in the United States

Attorney’s office, he studied the handbook issued in 1969

19a

Appendig B — Findings and Opinion of the District Court

by the Department of Justice on their notions at that time

for the conduct of electronic surveillance. To the extent

that this publication contained instructions, it could be

expected that government attorneys would be guided there-

by. However, these guidelines were not in any sense “regn-

lations”, as the defendants presently assert.“ and clearly

their directives would have to give way to the instructions

and order of the supervising J udge.

Aside from quoting the statutory language, the guide-

lines on minimization contained in the handbook consist

of no more than a discussion of the applicability to public

telephones of the minimization requirement. This allusion

undoubtedly stemmed from the circumstance that one case

which brought on the statute, Katz v. United States, 2389

U.S. 347 (1967), involved a telephone booth surveillance.

That situation is patently distinct from the situation pre-

sented herein. The discussion in the guideline reads:

If interception of the subject’s telephone calls from

a public booth is authorized, the device must be

turned off when the subject is not using the booth.

Violation of this section [18 U.S.C. § 2518(5)] will

subject the agents conducting the interception to civil

suit by the parties whose conversations were inter-

cepted when the subject was not present (§ 2520).

(Manual for conduct of electronic surveillance under

Title III of Public Law 90-351, f 10.4, p. 47 (Dept.

of Justice, Washington, D.C. 1969) ).

*On the hearng, Mr. Wall acknowledged that the guidelines

were not “regulations” of the Department.

The copy of the 1969 guidelines made part of the record

herein reveals no amendments reflecting development in the case

law; if the guidelines were to have the operative significance sug-

gested by defendants, such changes and other updating might be

expected.

20a

Appendiz B — Findings and Opinion of the District Court

Updike concluded even before the orders so stated, that

the statutory requirements, including minimization, were

applicable to the proposed surveillance and that a reason-

able and practical compliance plan was necessary.

Accordingly, Updike adopted the following plan ax ade-

quately safeguarding all rights of the persons involved ax

best us possible in the context of the investigation neces-

sarily defined by the scope of the criminal enterprise: (1

No listening to or recording of privileged communications

would be allowable, even though authorized under the Act

and the contemplated warrants (See 18 U.S.C. 251704).

and any such calls were to be brought to Updike's attention

on a forthwith basis; (2) officers would record all intercep-

tions; (3) the monitoring agents would be free to use

their best judgment in deciding if a given call need not

be listened to, except on a spot monitoring basis to see that

the party and topics remained unchanged ; (4) the officers

would make a record or log of all conversations and tran-

scribe only those having a high probability of being drug:

related; (5) the logs and transcripts so made would be

(a) delivered to Updike for his use in determining if there

developed any pattern of innocent calls, objectively identi-

flable as such, and (b) used by the investigating team to

isolate, by decoding and otherwise. the evidentiary value of

the surveillances: (6) access to the logs, transcripts and

the tape recordings would be rigidly controlled on a need-

to-know basis so as to minimize the possibility of untoward

usage, i.e., “virtually no publication of them of any kind“.

and (7) comprehensive, full and complete periodic reports

would be made to the Court throughout the execution of

the warrant to insure the continued actual control of a nen-

tral magistrate.

After consultation with the United States Attorney,

Updike gathered the relevant data and sought the required

approval from the Attorney General. 18 U.S.C. § 2516.

21a

Appendiæ B — Findings and Opinion of the District Court

Upon receipt of the Attorney General’s approval, Up-

dike presented the government’s application to Circuit

Judge Leonard P. Moore. Judge Moore indicated that he

would sign the warrants; however, during a discussion of

the extent of judicial control necessary to the execution

of the warrant, he concluded that his being away part of

the contemplated period would impair satisfactory super-

vision. Thus, he suggested that the Honorable Anthony J.

Travia, United States J udge for the Eastern District of

New York, where the target house was located, might be

preferable for the assignment. Finding that Judge Travia

would be available throughout the period, the application

was referred to him. ;

On January 29, 1971, Updike and Inspectors Taylor

and Bitzer met with Judge Travia to submit the applica-

tion. Judge Travia testified at the hearing that he was

thoroughly briefed concerning the background of the in-

vestigation, the planned surveillance, its purpose and its

projected problems. His decision to authorize a wire and

an oral interception was based not just on the papers sub-

mitted to him, but more fundamentally resulted from his

close questioning of the government representatives who

came before him. The discussion included a consideration

of the likelihood that certain attorneys would probably be

surveilled, and Judge Travia made particular efforts to

satisfy himself that privileged communications likely would

not be intercepted; the suspected role of attorneys in the

Uynum operation and the character of anticipated conver-

sations were carefully reviewed. The earlier tape record-

ing mentioned above confirmed the probabililty that lawyers

were co-conspirators in “that there was no instance in

which they were giving what could properly be deemed

legal advice” to Bynum.

9

Appendiæ B — Findings and Opinion of the District Court

The orders issued by Judge Travia responded to the

breadth of the conspiracy under investigation, but were

designed to limit the invasion of privacy which necessarily

would result from the surveillance authorizations. While

making an express provision in the order requiring minimi-

zation, he also insisted on the need to minimize the inter-

ception of unrelated calls in his supplemental oral instruc-

tions; he ordered the agents to use their best judgment

and discretion in the endeavor to fulfill the minimization

requirement. This grant of discretion subject to his super-

vision reflected J udge Travia’s recognition of the scope of

the criminal enterprise involved herein, of the use made

of the premises surveilled, and of the experience and relia-

bility of the personnel assigned to this surveillance. Judge

Travia specifically concluded that this investigation did not

involve an ordinary situation, but rather represented a

broad attack on an exceptionally extensive criminal opera-

tion. |

I find that the oral directives of the Judge and the oral

communications to the Judge were appropriate and be-

curred as recounted in the testimony of the witnesses.

Their testimony was credible and corroborated by other

testimony, documents, inferences and circumstances, There

required and expected ; sufficiency and prolix detail are not

to be equated as standards for satisfying wiretap obliga-

The January 29 order, which was implemented on Jan-

uary 30 with the installation of the first wiretap herein

authorized oral surveillance of the premises by an elec.

tronic listening device (“bug”) and the interception of

A 8a

a

—

Appendia B < Findings and Opinion of the District Court

telephone calls made and received over phone 212-342-6203

(hereinafter “phone one”), located at 855 Linden Boule-

vard in Brooklyn, for a period of 20 days. By order

dated February 18, 1971, Judge Travia extended this au-

thorization for wire interception for a further period of

fourteen days. The wiretap on this phone was shut down

for a period of some 17 hours on February 17-18, between

the expiration of the original authorization and the effective

implementation of the extension order.

Before the first tap was installed, Bynum learned of the

planned surveillance, and he had another telephone in-

stalled inside the premises. When the tap on phone one

commenced, the agents overheard many calls being referred

to a different number. This impeded achievement of the

objective of the surveillance and led the government to

upply for authorization for a second tap. Judge Travia

entered a third order dated February 12, 1971, which au-

thorized the interception of phone conversations over line

212-346-5992 (hereinafter “phone two“), located at the

same premises, for 20 days; this order replaced the au-

thorization for the oral surveillance.“

The tap on phone two commenced February 13, 1971.

The authorization to intercept wire communications on

each phone expired March 3, 1971, on which date the taps

were ended. The interception on phone one lasted 34 days,

aud on phone two 20 days.

Kuch order made by Judge Travia authorized the in-

ferception of calls which would reveal the details of the

While the government believed electronic surveillance of the

premises would facilitate this investigation and Judge Travia

determined probable cause existed to authorize a bug, the agents

found it impossible to “plant the bug”; the risks to the safety

of personnel led to a decision to forego this aspect of the in-

vestigation.

24a

Appendiæ B — Findings and Opinion of the District Court

scheme which had been and was being used by Elvin Lee

Bynum and others then unknown, to receive, conceal, buy,

and sell illegal narcotic drugs, and to engage in tue bribery

of public officials, and which would reveal the identity of

his confederates, their places of operation, and the nature

of the conspiracy involved therein.

The terms of these orders, and the circumstances under-

lying their issuance, appear on this record to be, in all

respects, proper and in conformity with 18 U.S.C. §§ 2516

and 2518.

II.

Before considering the operation of the wiretap and

the results it achieved in order to find the facts relevant

thereto, it is necessary to view the minimization require-

ment in its proper perspective.

An order issned pursuant to 18 U.S.C. §§ 2516 and

2518 authorizing the interception of telephonic communica-

tions does not warrant an indiscriminate monitoring of

each and every call transmitted over the line under wire

surveillance. United States v. King, 335 F. Supp. 523

(8. D. Cal. 1971), rev’d — F.2d —, Docket No. 72-1593

(9th Cir. 1973) (on other grounds); United States v. Scott,

331 F. Supp. 233 (D. C. D.C. 1971) ; cf., Berger v. New York,

388 U.S 41 (1967). The Act specifically provides that:

Every order and extension thereof 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 sub-

ject to interception under this chapter. § 2518(5).

(Emphasis supplied ).

“'ntercept” is a term defined by the Act as “the aural

ucquisition of the contents of any wire or oral communica-

25a

Appendig B — Findings and Opinion of the District Court

tion through the use of any electronic, mechanical, or

other device” 5 2510 (4). This definition clearly equates

“interception” with the listening to, monitoring, or hearing

of described communications, either at the time such com-

munications occur or at a subsequent time through the use

of electronic means, such as a playback tape recorder.

Recording u communication which has not been heard by

government agents and storing that recording so that it

will not be heard, unless demanded by the parties involved

in the conversation, does not constitute an interception un-

der the terms of the Act.“ Section 2518 (8) (a) confirms this

distinction between intercepting and recording a communi-

cation, stating:

The contents of any wire or oral communication in-

tercepted by any means authorized by this chapter

shall, if possible, be recorded on tape or wire or

other comparable device. (Emphasis supplied).

In fact, this section encourages the recording of calls—with

specific procedures for sealing and storing the tapes pro-

duced—for the protection of the individuals whose conver-

sations are subject to interception and recording and for

guarding against editing and later claims of distortion of

seginents of the tap.

Accordingly, the minimization requirement of § 2518(5)

must be read as requiring the authorization to intercept

to be conducted in such a way as to minimize the monitor-

Apropos recording of conversations, Cf. Berger v. New York,

388 U.S. 41, 988 (1967) (Harlan, J., dissenting: IIln my view,

conversations are not ‘seized’. . . by their recording so that they

may later be heard at the eavesdropper’s convenience.”) ; 388 U.S.

at 108, n.1 (White, J., dissenting: “Recording an innocent con-

versation is no more a ‘seizure’ than occurs when the policeman

personally overhears conversation while conducting a search with

a warrant.”) (Emphasis supplied).

260

Appendiæ B — Findings and Opinion of the District Court

ing or the heariny of communications not subject to inter-

ception under the Act.“ The “evil” to be limited by this re-

quirement is the listening to innocent calls.

The Act does not mandate means to be used in each

case to achieve minimization, nor should it be read to set

absolute standards for every search. The Court, guided by

existing case law,’ must determine from the structure and

purposes of the Act, the scope of this statutory requirement

for the particular case at hand.

Minimization does not insure that no protected com-

munication will be intercepted. The statute is not neces-

sarily violated when some unrelated or innocent calls are

intercepted. In enacting this provision, Congress clearly

anticipated that a number of such calls would be overheard.

United States v. La Gorga, 336 F. Supp. 190, 196 (W. D.

* Such calls not covered by the Act are referred to herein as

innocent or unrelated calls. For a particular case, the order

authorizing the interception provides the boundaries for relevant

calls; the scope of the order accordingly is a factor to be con-

sidered in ruling on minimization.

o The requirement of minimization has been considered by

the following Courts: United States v. Fino, — F.2d — Docket

No. 72-2017 (2d Cir. May 1, 1973); United States v. Tortorello,

— F.2d —, Docket No. 72-1957 (2d Cir. Apr. 5, 1973), aff’g 342

F. Supp. 1029 (S.D.N.Y. 1972) (Pollack, J.); United States v.

Coz, 462 F.2d 1293 (8th Cir. 1972); United States v. Lanza, 349

F. Supp. 929 (M.D. Fla. 1972); United States v. Mainello, 345

F. Supp. 863 (E.D.N.Y. 1972) (Travia, J.); United States v.

Focarile, 340 F. Supp. 1033 (D. Md.), af d, sub nom. United States

v. Giordano, 469 F.2d 522 (4th Cir. 1972); United States v.

LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971); United States v.

King, 335 F. Supp. 523 (S.D. Cal. 1971), rev’d, — F.2d —,

Docket No. 72-1593 (9th Cir. Feb. 28, 1973) (on other grounds) ;

United States v. Leta, 332 F. Supp. 1357 (M.D. Pa. 1971); United

States v. Scott, 331 F. Supp. 233 (D.C. D.C. 1971); United States

v. Sklaroff, 323 F. Supp. 296 (S.D. Fla. 1971).

27a

Appendia B — Findings and Opinion of the District Court

Du. 1971). Nor is the statute violated if some intrusion

into an individual’s privacy can be observed; any inter-

ception—no matter how proper and restrained—represents

an intrusion.

The minimization provision should be seen as requiring

u limiting process. Law enforcement officials, under super-

vision of x Court, must exercise their authority to intercept

communications in a manner which will reduce unneces-

sury monitoring of innocent calls. Procedures must be

udopted and followed which will result in a conservation,

ws best as is possible, of the right of privacy within the

context of authorized investigatory activities. See Berger

v. New York, 388 U.S. 41, 53 (1967). The requirement is

xutisfied if the Court on review of the government’s pro-

cedures concludes, in the light of all facts and circumstances

of the cuse, that “on the whole the agents have shown a

high regard for the right of privacy and have done all they

reasonably could to avoid unnecessary intrusion.” United

Nlatex v. Tortorello, — F.2d —, Docket No. 72-1957 (2d

(r., Apr. 5, 1973) (Emphasis added).

This focus on reasonableness necessarily forces a case-by-

cuse analysis, United States v. Cor, 462 F.2d 1293, 1300

(Sth Cir. 1972); United States v. Focarile, 340 F. Supp.

1033, 1047 (D. Md. 1972), af d sub nom. United States v.

(iiordano, 469 F.2d 522 (4th Cir. 1972); United States v.

Leta, 332 F. Supp. 1357, 1360 (M.D. Pa. 1971). A review

of reasonableness primarily involves a careful appraisal of

circumstances and not merely a mechanical deference to

the suggestive weight of statistics. Even the fact that 100%

of the calls made or received during the limited period of

surveillance were intercepted, if this were established,

thongh significant, should not be overestimated. The

determination of whether minimization was achieved in

u particular case requires close scrutiny of, inter alia, the

284

Appendia B — Findings and Opinion of the District Court

type of criminal enterprise being investigated; the scope

of that enterprise and the number of participants, known

and unknown, involved therein; the number of days for

which electronic surveillance is conducted; the scope of

the authorizing order; the activity on the phone(s) being

monitored; the number of calls; the number of monitored

calls; the location of the phone(s); the length of calis;

the participants in those calls; the content of calls as

reasonably perceived at the time of the tap; the experi-

ence of the agents deployed for the investigation; the vari-

ous pressures on the agents executing the investigation; the

procedures planned and/or followed to monitor calls; the

equipment employed in the surveillance; and, most of all,

the supervision of the interception by the investigating

agency, the supervising attorney, and by the authorizing

Court.

A vital aspect of the minimization requirement—perhaps

the most vital—is the degree of supervision over the sur-

veillance provided by an impartial judicial officer. Close

scrutiny by a federal or state judge during all phases of

the intercept, from the authorization through reporting and

inventory, enhances the protection of individual rights

within the context of an extreme, yet essential law enforce-

ment activity. Such scrutiny is basic to the structure and

the constitutionality of the Act. United States v. Tortorello,

— F.2d —. Docket No. 72-1957 (2d Cir. April 5, 1973).

The scope of surveillance is likely confined to reasonable

bounds where the agents must systematically and con-

tinually explain their conduct to a judge, seek his approval

for further interceptions, and conform their actions to his

detailed interceptions. See United States v. Cor, 462 F.2d

1293 (Sth Cir. 1972). Indeed, even if the judge does not pro-

vide particularized guidelines beyond the terms of his order,

the need to answer to an independent official sets the tone

29a

Appendia B — Findings and Opinion of the District Court

of the surveillance. Where the judge carefully studies the

reports submitted to him, reviews all details told to him,

and provides an active supervision of the interception, the

rights of affected individuals are most likely to be safe-

guarded.

Moreover, it must be remembered that minimization

ix only one element of the composite group of statutory

safeguards included in the Act. §§ 2516-2518.

In trying to frame a statute which would avoid the de-

fects specified in Berger v. New York, 388 U.S. 41 (1967),

where the Supreme Court struck as unconstitutional the

New York wiretapping statute, Congress required, in addi-

tion to minimization, particularized procedures for obtain-

ing authorization, for supervising the tap, and for report-

ing to individuals the use of a tap. See Senate Rep. 1097,

1968 U.S. Code & Adm. News, 2112. The whole package

was aimed at limiting improper intrusions into privacy, id.,

and all the provisions must be followed. The totality of

circumstances, from which the determination of reasonable-

ness is to be drawn, includes the degree of compliance with

the package of the statutory terms as a whole as well as

the problems and the objects of the investigation.

III.

The entire investigation of Bynum and his co-conspira-

tors, including the wire surveillance authorized by Judge

Travia, was directed by Inspector Taylor, who was assisted

by Inspector John Bitzer. Assistant United States Attor-

ney Updike was the supervising attorney for the wiretap,

with genere] responsibility over the conduct of that surveil-

lance. Taylor and Bitzer maintained close day-to-day super-

vision over the tap, directing the work of the monitoring

agents, acting as intermediaries between these agents and

30a

Appendia B — Findings and Opinion of the District Court

Updike and Judge Travia, and keeping custody over the

tapes and line sheets. Updike, Taylor and Bitzer were all

“investigative or law enforcement officers,” 18 U 8.C.

§2510(7). Judge Travia, as further discussed infra, was

supervising judge and kept un active and constant watch

on the progress of the tap.

As indicated above, the government was certain that

others than Bynum might also use the telephone but the

government did not know any categories of persons who

would have occasion to be in that house and use the phone,

who would not be somehow related to the illegal activities.

Accordingly, when the surveillance commenced, Updike

—through Taylor and Bitzer directed the agents to record

all calls, except privileged communications. At the outset

of the tap, no other categories of excludible calls had been

devised. The reason for this was stated by Updike at the

hearing:

We were concerned that there should be a full record

with respect to all calls for two fundamental reasons.

One was the protection of any innocent parties in-

volved in the interception and the other was a pre-

servation of the calls themselves so that there could

be no accusation at a later time that the government

had made selective recordings in the conduct of this

investigation, and that was the original basis of the

decision, coupled with the fact that as of that time,

from what we know about the premises and use of the

phone and the persons who occupied the premises,

that there was no ascertainable pattern in advance

of persons who would be using the telephone who, in

essence, had nothing to do with this investigation

We felt that the rights with respect to privacy

of any of the persons would be protected by the pro-

3la

Appendig B — Findings and Opinion of the District Court

cedure of taking these recordings and sealing them

and having virtually no publication of them of any

kind, except insofar as they bore upon the investiga-

tion so that there were a great deal of calls which,

as you know, were never transcribed.

The wiretap was actually manned by six inspectors of

the BNDD. Due to the sensitive nature of this investiga-

tion, which involved not only a massive drug couspiracy

but also possible internal security problems in the BNDD

and in other law enforcement departments, it was decided

to uxe Only personnel of inspector rank to conduct this sur-

veillance. Inspectors were brought in from regional offices

outside of New York for this purpose.

Before starting to monitor calls, the inspectors were

informed of the nature of the investigation, including the

possible internal security matter and including the name

isynum, and were told to record all but privileged calls.

At the hearing, Francis J. Pryal, who was one of the

KNDD inspectors manning the tap, and Updike described

the procedures actually followed pursuant to Updike’s in-

structions,

The wiretap wax operated from a “listening post” es-

tablished approximately three miles from Bynum’s nar-

cotics factory at 855 Linden Boulevard. The post was

equipped with a two-way car radio, to enable the monitor-

ing agents to relay information to other personnel engaged

in a contemporaneous visual surveillance operation. Two

telephonen were installed, so that the inspectors could be

in constant touch with Taylor, Bitzer and Updike. To

conduct the wire surveillance, two tape recorders were de-

ployed for each tap, and two additional recorders were pro-

vided to enable preparation of one copy of each tape. To

32a

Appendia B — Findings and Opinion of the District Court

allow actual interception of calls, two sets of headphones

were connected to each tap. Additionally, there was a

pen register attached to each tap, which recorded the num-

bers dialed on outgoing calls; digital clocks were placed

in the view of the agents. The agents worked twelve hour

shifts; Pryal worked 60 hours each week. While on duty,

the agent sat in front of the recording equipment, with a

note pad nearby and with the headphones resting on his

shoulders. The tape recorders were connected to the taps

and the pen registers operated automatically. Whenever

the telephone line was opened on a tap—that is, the re-

ceiver was picked up or an incoming signal was received

—a tape recorder was activated and a red light went on;

the machine would remain in operation until the line was

closed (receiver placed in cradle or ringing stopped). When

a tape was filled, the agent would switch on the second

recorder for the tap, and recording continued. Except

for periods when equipment malfunctioned, all calls were

recorded. The machines could be turned off and were de-

activated by the agent if a phone was left off the hook for

a prolonged period.

When the red light went on and the recorders activated,

each agent of the two man team would put his headphones

in place and begin intercepting the call. During the call,

he would make some notations about the call. After the

call was completed, one agent would make an entry on a

line sheet for this call. The time of the call and its com-

pletion, the position on the tape, and remarks about the

content of the call would be entered. A mark might be

entered next to the report of especially relevant calls; “N”

would designate a narcotics related call, “IS” an internal

security related call; transcripts were prepared for some of

these calls.

33a

Appendia B — Findings and Opinion of the District Court

Logs were maintained for every call and were prepared

in duplicate. A book of cumulative original logs was

maintained at the post, and a book of the copies kept at

BNDD headquarters. A photocopy of the logs was pre-

pared for Judge Travia.

When a tape was filled, and an agent had switched the

system over to a second recorder, one copy of the completed

tape would be made. The same team that manned the

recording also produced the copy. The original of the tape

was marked with the names of the agents making the tape

and its copy and with the date and was sealed; the copy

was similarly marked. Taylor and Bitzer had custody of

these tapes, until they were delivered to and sealed by Judge

Travia.

At the outset of his monitoring, Pryal found it to be

difficult for him to understand all the argot used in the

conversations and to recognize the participants of the calls.

Even when particular calls were transcribed, it was often

necessary to replay the tape several times to decipher words.

The process of voice identification often required multiple

calls involving a party, and occasionally some parties could

not be identified. References to locations were troublesome,

especially to inspectors from other geographical regions who

were unfamiliar with the Brooklyn area; a wall map was

hung to aid in this connection.

More basic, the inspectors detected that word codes and

guarded language were employed by speakers to hide the

% The guarded language is reflected in the following:

Bynum: Hey'd you ever hear anymore from them people?

Stan [Sherman]: Which ones Al?

Bynum: That you were talking about.

Stan: You mean what I saw you about?

Bynum: Yeah. (Call W1889)

[Footnote continued on following page

dla

Appendiz B — Findings and Opinion of the District Court

true meaning of conversations. It was suspected that the

codes adopted related to items sold in Bynum’s other busi-

ness enterprises, for example, his clothing store, although

other codes were sensed as well. Calls that may on their

face have appeared innocent were accordingly monitored ;

and as the investigation preceeded, the intended meaning

of earlier calls dawned on the agents.

Certain types of calls could be recognized after the moni-

toring progressed. Specifically, a number of calls involved

one who turned out to be a teenager named Donna, who

was frequently present in the house. Some of her calls were

highly relevant, as she often served as a nessage service for

co-conspirators; these calls were intercepted. However,

there were a number of calls between Donna and her teen-

age friends, often long calls, involving unrelated subjects

and containing no investigatory leads. Pryal testified that,

after a time, he would drop his headphones during such

calls, thereby not intercepting them. Sce 18 U.S.C. § 2810

(4). The red light and the activated tape recorder enabled

him to know if a call was still in progress. Occasionally,

as the call continued, he would spot check by putting the

headphone over one ear to listen and to determine if the

parties to the call had changed.

The monitoring agents determined while a call was in

progress whether to intercept it. Aside from the non-in-

tercepted “Donna calls,” Pryal stated that he dropped his

Cordovano: Yeah. That other fellow didn’t call over, huh?

Bynum: Yeah he came past here.

Cordovano: Yeah.

Bynum: Yeah.

Cordovano: Did he give you anything?

Bynum: No. I'n tell you when I see ya.

Cordovano: Oh. All right well I'm still waiting, eh.

Bynum: All right.

Cordovano: The boy is out.

Bynum: I'll tell you. (Call Q707)

35a

Appendis B — Findings and Opinion of the District Court

headphone at other times, citing when called on for an

example a call between Mae Garnett, a co-conspirator con-

victed herein, and a friend of hers, which appeared to be

un innocent call.

During the course of the surveillance about 10% of the

conversations that took place during Pryal’s shifts were

not intercepted; he did listen briefly to some of each call,

in order to identify the parties, to recognize the nature

of the conversation, and to spot check if the parties changed

but did not intercept beyond this. He could not recall if

hix partner stopped intercepting a call at the same time

Pryal did.

Although when a copy was made of a tape, an agent

could potentially listen with an earphone to a previously

unmonitored innocent call, this did not occur. The agents

who originally manned the recording of a tape made the

copy and at this point could therefore avoid and did avoid

intercepting the unrelated calls.

It was stipulated that, if called as witnesses, each of the

other inspectors monitoring calls would have testified to the

sume effect us Pryal. The percentage of the actual conver-

xutions that were intercepted was thus approximately 90%.

During the course of surveillance, primary and con-

tinnous direction was properly provided by Inspectors Tay-

lor und Bitzer. Updike was kept informed on all develop-

ments and remained in close touch with the inspectors. De-

pending on the week and on the activity at the post, Updike

received five to twenty calls per week from the inspectors

and made five to six calls to them. On occasion, Updike

would visit the listening post, to glean a first hand impres-

sion of the conduct of the interception. Updike received

um! read the logs prepared by the monitoring agents, be-

36a

Appendia B — Findings and Opinion of the District Court

fore these were routed to Judge Travia, along with the

required reports which he prepared and signed. He looked

at every page of the logs and examined particularly those

entries which the inspectors had indicated were significant.

He looked to see who was calling whom, at what numbers,

how often and what was being said, what was in the con-

versations and what was not in the conversations and how

well the tap was serving the purpose of the investigation.

He became aware of the frequent users of the phones (e.g.,

Donna) and of the degree to which the calls of such per-

sons would be intercepted. When further information was

required, he would consult the inspectors.

The Court finds that Updike satisfactorily fulfilled the

function of a supervising attorney; he designed the plan

for the wiretap and determined that his plan and Judge

Travia’s orders were being followed.

Updike prepared and submitted written reports to Judge

Travia dated February 4, 8, 16, 18, 24 and March 1 and 8,

1971, which summarized the progress of the interception.

The letters, accompanied by detailed line sheets of the

calls (logs), were hand delivered to Judge Travia by Up-

dike, Taylor, and/or Bitzer on or about the respective date

of the particular report. Whenever preparation of a writ-

ten report was delayed, Updike reported to the Judge by

phone and subsequently provided the written report. Each

report analyzed an approximate four-day period,” stating

the days covered, the times in which equipment was in-

The reports covered the following periods: Feb. 4 (Jan. 30-

Feb. 2); Feb. 8 (Feb. 3-Feb. 7); Feb. 16 (Feb. 8-Feb. 12); Feb.

18 (Feb. 13-16, for phone two); Feb. 24 (Feb. 12-Feb. 22, for

phone one; Feb. 17-Feb. 22, for phone two); March 1 (Feb. 23-

Feb. 27, for phone one and two); and, Mar. 8 (Feb. 28-Mar. 3 for

phone one and two). Additionally, written information was con-

tained in the applications for the orders of February 12 and 18.

37a

Appendia B — Findings and Opinion of the District Court

uperative, the number of calls intercepted, the number of

calls apparently related to criminal activity, the number of

intercepted privileged calls, and specific information learned

from certain calls. The logs gave more particularized

information, itemizing the time and length of each call, the

parties involved, if identified, and the nature of its content.

These reports more than adequately fulfilled the five day

reporting requirement of Judge Travia’s orders, and pro-

vided sufficient information from which the judge could

determine compliance with his orders and the Act.

Equally significant to these written reports were the

supplemental oral discussions and meetings between Judge

Travia and the agents which explored the matters in de-

tail and in their full perspective. Judge Travia, who was

culled by defendants as a witness, stated that having care-

fully reviewed all reports submitted to him, he asked ques-

tions to be certain he fully understood what was transpir-

ing. In supervising the investigation, he was aware of the

minimization requirement but recognized the problems in-

herent in this particular case. He testified that the con-

xpirators “were so far-flung and it involved so many that

it wax very difficult to say that ‘You can’t listen to certain

purties.” You have to give them [the agents] some latitude

Imam here J am dealing with not the ordinary type of

agent. ... | was talking to agents who knew what it was

all about, and in discussing this with them I wanted to

make sure that they were aware of the minimization rule,

and all the other things that might come up, such as the

attorney-client relationship.” He perceived this as an ex-

(ruordinary investigation, permitting greater latitude and

dixcretion, once he was confident that this was required and

that hix orders were being followed.

During the course of these closely-timed frequent dis-

cussions, the problem of calls involving attorneys was

38a

Appendia B — Findings and Opinion of the District Court

raised. The extent of attorney-client confidentiality was

considered, as was the possible involvement of certain at-

torneys in illicit activity. Judge Travia was very particular

in reviewing whether privileged communications were being

overheard.

The record conclusively establishes that Judge Travia

carefully and actively supervised the surveillance authorized

by his orders and that he was especially concerned about

assuring compliance with the minimization rule and about

protecting privileged communications, when they could be

xo regarded. His testimony, as well as his order extending

the initial tap, make clear that he found the minimization

effort reasonably satisfied in the context of this case.

Such a determination by the supervising Judge, who

faced the problems of the interception contemporaneously

with its execution, must be afforded great weight when

called into question on a taint hearing. (J. United States

v. Becker, 334 F. Supp. 546, 549 (S. D. N. V. 1971) (Wein—

feld, J.), aff'd 461 F.2d 230 (2d Cir. 1972). The supervis-

ing Judge had the most intimate knowledge of the facts anid

circumstances of the surveillance. Where as here it can

be found that the Judge carefully and actively supervised

the surveillance, his determination that minimization was

achieved „is itself a substantial factor tending to uphold

the validity” of that decision. Id.

IV.

In analyzing the investigation conducted herein, the par-

ties have prepared various statistical analyses relating to

the content of intercepted calls. Such analyses must be re-

ceived 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

33a

Appendig B — Findings and Opinion of the District Court

v. King, 335 F. Supp. 523, 542 (8.D. Cal. 1971), rev'd, —

I’.2d —, Docket No. 72-1593 (9th Cir. Feb. 28, 1973) (on

other grounds). While statistical correlations may pro-

vide guidance on the question of minimization, such calcula-

tions can be misleading and, if so, should not be accepted

ax conclusive on that question. Id. Mathematical manipu-

lations 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 bene

fits of time and hindsight. The emphasis in deciding mini-

mization 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.

From the evidence before the Court including the logs

and reports made contemporaneously with the operation

of the wiretap and on analysis of the computations sub-

mitted, the Court finds the following:

During the operation of the wire surveillance, which

dont inned for 34 days on phone one and 14 days on phone

two, a total of 2,604 calls were made or received on phone

one, and 832 on phone two. All of these calls, 3,436, were

automatically recorded. Of these 3,436 calls, 1,378 were not

completed due to busy signals, wrong numbers and the

like, and some 84 calls were made to information, weather

and similar services. The number of completed conversa-

tions which were recorded from both phones was 2,058 (or

1.974 if the service calls are omitted) and of these only

90% were “intercepted.” 18 U.8.C. § 2510(4).

Of the 2,058 completed calls, 1,557 were finished in two

minutes or less; 1,277 of these—or more than half the total

40u

Appendig B — Findings and Opinion of the District Court

vf all completed calls—lasted one minute or less. A call

of such brief duration ordinarily does not lend itself to

minimization; such a brief call is completed before the

agents can confidently even determine the nature of ‘the

call and identify the parties to it.

Only 501—or approximately 25% of the completed calls

—lasted three minutes or more. Of these, approximately

71 involved Donna talking with a party not a defendant

herein. Some of these were intercepted, since Donna some-

times served as a message center for the conspirators and

took important messages during her handling of the tele-

phone traffic in these premises. However, most of the calls

which involved Donna and a friend were not intercepted ex-

cept in the early stages of the tap before her position was

identified.“

Approximately 79“ of the balance of the calls lasting

three minutes or more involved at least one known co.

conspirator, and other calls involved persons seemingly im-

plicated. In the context of this investigation of a large

scale narcotics conspiracy which had overtones of internal

security problems, self-evidently such calls should be gen-

erally intercepted in the early stages of the surveillance.

At that stage many parties are unknown to the agents and

a call involving a known conspirator quite possibly is with

„ co-conspirator previously not identified as such. As the

search progresses and the names of callers are learned, in-

terception ‘of calls made by the known conspirators allows

the agents to effect the necessary screening of persons some-

how related to these known conspirators. Through listen-

A surveillance report of February 4, 1971 indicates a con-

temporaneous suspicion that Donna was involved in the drug

processing activities.

This figure is derived from defendants’ tables which identify

participants in, and the time of, each call.

4la

Appendia B — Findings and Opinion of the District Court

ing to calls, it can be determined whether a particular in-

dividual who had been seen by visual surveillance teams

meeting with the conspirators is actually not involved with

the criminal activities.“ Realization that a call is inno-

cent, after several calls involving the same individual are

reviewed, has relevance to the investigation. Judge Travia’s

orders specifically made relevant, calls tending to identify

the participants in the conspiracy.

If the unknown party turns out to be a co-conspirator,

of course his calls are properly intercepted; calls between

known co-conspirators should be monitored, for relevant

information may emerge at any point in a call. A study

of the logs herein reveals that the agents were making on-

going identifications of callers and of the character of their

involvement.

In determining how many of the calls might have been

unrelated to the investigation, one should not lose sight of

the great amount of highly relevant material which was

contained in the majority of the calls. Early in the sur-

veillance, for example, the agents monitored a call between

ynum and one Vernon Thomas, perceived to be a Bynum

lieutenant, concerning a prospective meeting between

Thomas and “Sergeant,” who was apparently a New York

(‘ity policeman. Due to this call, the meeting was visually

surveilled.

The agents heard a series of calls during the first week

of the tap, in which Bynum spoke to parties then identified

as “Yolanda,” “Herman,” “Brooks,” Cordovano, and an un-

known party which apparently related to narcotics traffick-

Even where one party to the call is not a known conspirator,

the content of the call might prove relevant. For example, in

call W118, Mae Garnett spoke with an unidentified female. During

the conversation, use of drugs and sales of drugs were discussed.

42u

Aypendiæ B — Findings and Opinion of the District Court

ing. They also learned of important ramifications through

a series of unanswered calls made to a number later identi-

fied us that of a former federal narcotics agent. Addition-

ally, calls involving attorneys of a seemingly incriminating

nature were being received. Clearly related calls were con-

tinuous throughout the period of surveillance. In fact, the

calls actually introduced into evidence at the trial were

intercepted during the last 10 days of the tap.

These continuous conversations helped the agents to

identify the parties actually involved in Bynum’s criminal

activities, to clarify their understanding of those activities,

and to coordinate parallel investigatory efforts being under-

taken at the time.

A retrospective analysis of the calls was prepared by

the government, purporting to demonstrate the relevance

of the calls to the investigation. This study concludes that

85% of the completed calls contained information useful

to the investigation.” This figure, as a product of hinid-

sight knowledge and review, is of course not conclusive.

The implications which defendants seek to draw from

the mathematical collations proffered by them are factually

unsupported and unsupportable. They are result oriented

and do not portray an accurate or fair reflection of the

proper perspective of the seemingly endless conversations

The reports submitted to Judge Travia indicated the number

of calis perceived at the time as relating to illicit activity; that

number set against the total number of calls produces a somewhat

lower percentage of relevant calls. However, the number of drug

related or corruption related calls provide only one aspect of

relevant calls. The present estimate reflects a broader concept of

relevance, including calls helping to identify parties and calls

allowing placement of persons at particular places during the

investigation.

43a

Appendia B — Findings and Opinion of the District Court

even if considered on a retrospective basis of a wisdom

born of hindsight.”

The Court, after its own review of the materials sub-

mitted herein, finds that the percentage of intercepted con-

versations that were not relevant or which fell outside the

broad scope of the authorization orders was de minimis.

The defendants have called special attention to the con-

versations which they say were with attorneys, sometimes

identified, sometimes not. They label these as “privileged.”

The facts do not so demonstrate.

In the beginning stage of the tap, the callers who were

in fact attorneys had not conclusively been identified as

such. Name and voice identification usually required mul-

tiple culls. On incoming calls, the attorney often did not

state his name and was not called by his name and did not

unnonnce his profession. Even after names were learned,

those names at first did not connote “attorneys” to the

monitoring ageuts. Some lead time was necessary before

discriminating patterns of interception could be established.

Moreover, even if the agents had been provided with a

lixt of attorneys derived from visual surveillance of visitors

to the premises, there was no assurance that such callers

would converse on privileged matter.

A call from a lawyer to a person is not automatically

privileged. It is basie that the privilege only inures to a

client and that discussions of illegal activities are not

Defendants have submitted summaries of selected calls; the

basis used for selecting the calls has not been provided, although

the Court requested this information. The Court has read these

summaries and finds nothing in them which contradicts the findings

stated herein.

dda

Appendiæ B — Findings and Opinion of the District Court

masked by testimonial privilege. Clark v. United States,

289 U.S. 1, 15 (1933); United States v. Kahn, 366 F.2d

259, 265 (2d Cir.), cert. denied, 385 U.S. 948 (1966).

Thus, it is not a privileged communication to be told

by or to discuss with a lawyer that some third party has

committed or has been picked up for murder or for viola-

tion of parole, or that he needs money (ostensibly for crim-

inal enterprise), ete. The attorney-client privilege exists

where the purpose of the communication is to obtain pro-

fessional legal advice, United States v. Kovel, 296 F.2d 918.

922 (2d Cir. 1961), not news of others, gossip or crim-

inality.

*

From the very first attorney call (although not so recog-

nized at the time) through the duration of the tap, refer-

ences in the calls made the content of these conversations

highly relevant to the investigation and, even more, sug-

vested that the lawyers were involved in facilitating illicit

activities of some aspect of Bynum’s enterprise. The calls

were replete with references to co-conspirators, possible in.

fInence peddling and official corruption, and to other illegal

ucts.

More particularly, the alleged conversations with callers

now portrayed by defendants as lawyers, reveal the fol-

lowing:

(all W168, made on February 1, 1971, discussed the

arrest of Dickie Diamond on charge of murder and his

subsequent parole; Bynum suspiciously thought “something

is fishy.” Further, the caller stated: “take care of Wright.

Ken just told me about that. I'Il speak to him.” Abraham

Wright was a narcotics distributor convicted herein. This

call, which is obviously relevant to an investigation of secu-

45a

Appendia B — Findings and Opinion of the District Court

rity leaks, bribery, and Bynum’s colleagues, contai

’ us

privileged communication. N

Joey Cordovano, another principal convicted herein, was

dixcussed on February 1 and 7 by the aileged attorneys.

On February 10, the caller reported “a friend of Donald

Jones got arrested for killing a girl—not for killing her,

for acting in concert in killing her,” to which Bynum later

uys “he's talking about Donnie.” On February 13 Bynum

tells the caller to “go down to the Seventy-first Precinct.

Vernon Thomas.” Someone, possibly Thomas, was found

with pistols, and Bynum significantly adds “the eergeant’s

in there now.” Another arrest for another murder is re-

ported by the caller on February 13, when Donald King

wis arrested. The caller states “we told him to go to New

Jersey till we could speak to the DA,” and he tells Bynum

how the murder charge should have been beaten.

The caller on February 18 reports to Bynum a list of

achievements obtained on behalf of Bynum. He indicates

he “got Donald Jones dismissed, the murder”; “Charles

lloward’s stuff dismissed”; “I got a gun charge dismissed.

| yot a drug charge dismissed. I got a [sic] auto larceny

(linmisned”; “Joyce Dickerson was dismissed”. The caller

further stated “I spoke, I was with the cops all day... .

Uh, O'Neil. Justice. (e ) Butler, I forget the rest of the

names. There [sic] not bad guys, you know, they, they

helped out where they could, but you know, it’s u bad cane.”

The import of this call was not lost on the agents, who

transcribed it and who made this log entry:

Attorney to Bynum (Fingers)—discussed his day’s

efforts to get hijackers off—from conversation—ap-

pears hijackers worked for Bynum—also named

police officers who “did what they could but they had

an identification.”

46a

Appendia B — Findings and Opinion of the District Court

Money, the lubricant of the narcotics trade, provided

another series of suspect calls. For example, in call W186.

made February 1, Bynum tells an unidentified male that

he wants $30,000. On February 4, Bynum’s call indicated

that Wright, a conspirator herein, would bring the lawyer

$2,000. On February 9, Bynum is seeking a loan of $25,000

and on February 10 he talks of “$18,000 worth of mer-

chandise.”

A considerable number of the alleged “attorney calls”

involved only messages to or from Bynum for call backs;

the defendants do not mention this. Such calls are not

even arguably privileged; they were however relevant at

the time to the agents who were tracking Bynum’s where-

abouts and movements.

Most of the calls from and to lawyers ended quickly—

in a minute or less—creating difficult problems in screen-

ing such calls; of the conversations compiled by defendants,

only 10 or 67 lasted more than three minutes. The de-

fendants correctly say that “a privileged communication

may unavoidably be intercepted due to its brevity or due

to the failure of the monitoring agents to realize that the

communication was privileged.”

Furthermore, in the calls of longer duration, at least

spot monitoring was necessary to make certain the parties

to the calls did not change. In the two longest calls in-

cluded in defendants’ compilation and claimed as privileged,

Kynum started out talking to a lawyer, but then talked with

Joey (likely Cordovano). Conversations between co-con-

spirators were highly relevant and properly intercepted; the

defendants’ index does not reflect this.

A number of the calls in defendants’ listing involved

attorneys calling their families or associates from Bynum's

47a

Appendia B — Findings and Opinion of the District Court

narcotics factory. Obviously, no professional privilege inur-

ing to any of the defendants attaches to this type of call.

The Court has carefully reviewed each of the calls re-

produced and indexed by defendants, and finds in these

calls little that is privileged and much that is prima facie

criminally suspect. Interception of these calls, against the

background of this case, was an exercise of reasonable judg-

ment and authorized.

18 U.S.C. § 2517(4), cited by defendants, provides:

No otherwise privileged wire or oral communication

intercepted in accordance with, or in violation of, the

provisions of this chapter shall lose its privileged

character. (Emphasis supplied).

This section only applies to conversations which are “other-

wise privileged,” and this Court has found the vast majority

of calls compiled by defendant not to be privileged. More-

over, the statute cited deals with authorization for dis-

closure of calls. Aside from possible internal use, the

government did not disclose any that were even arguably

privileged; none was used on the trial.

we

V.

In sum, the Court finds that the agents conducting the

instant interception, as well as the officials supervising

them, made a good faith effort to achieve the requisite mini-

mization, and “on the whole the agents have shown a high

regard for the right of privacy and have done al! they rea-

sonably could to avoid unnecessary intrusion.” (ite

States v. Tortorello, — F.2d —, Docket No. 72-1957 (2d

Cir. April 5, 1973). The procedure by which the agents

suspended interception of seemingly innocent calls repre-

sented in the given circumstances a substantial and sum

cient effort to limit the interception of unrelated calls.

4a

Appendia B — Findings and Opinion of the District Court

The number of days for which the interception con-

tinued was far smaller than that approved of in United

States v. Tortorello, — F.2d —, Docket No. 72-1957 (2d

Cir., April 5, 1973). The number of days authorized by

Judge Travia in each of his three orders was less than the

maximum period allowed by the Act; a limitation of days,

like a limitation of monitoring hours, represents a cogniz-

able minimization of the intrusion into privacy.

Most impressive on this record is the attentive and

dedicated supervision provided by Judge Travia over the

broad authorization he gave the agents. This distinguishes

the instant case from the decision in United States v. Kiny,

335 F. Supp. 523 (S. D. Cal. 1971), rev’d. —F.2d —, Docket

No. 72-1593 (9th Cir., Feb. 28, 1973) (on other grounds).

This Court finds that there was herein an ongoing and in-

formed review of the interception as it was in progress,

which represented a clear safeguard for the rights of the

defendants.

Defense counsel have conjured up procedures which

might have been followed at the time of the surveillance to

uchieve a greater percentage of minimization. Some of

these suggestions are logical, and might well have been

adopted by the agents if the agents, as counsel, had the

henefit of later learned knowledge when the plans for the

interception were drawn. The agents, however, were limited

by the practical situation they faced and had to act ac-

cordingly.

As with a criminal trial, a defendant is not entitled to

perfection in the censorship of what is available to be over-

heard on the tap; he is entitled to a fair effort from the

government agents at not overhearing what is irrelevant to

the search. This invokes a judgment quotient on the part

of the surveillance agents and requires a determination

whether they unfairly abused their authority to listen in.

49u

Appendia B — Findings and Opinion of the District Court

The important law-enforcement tool provided by Con-

gress und carefully tailored to meeting exacting constitu-

lional standards should not be dulled by uncompromising

wilminisxtration to a point of practical ineffectiveness. The

Court must guard, as Mr. Justice Harlan warned in United

Nlatex v. Blue, against “increase to an intolerable degree

interference with the public interest in having the guilty

brought to book.” 384 U.S. 251, 255 (1966).

1 conclude that the obligation to minimize was properly

ordered and complied with in this case.

The foregoing shall constitute the Court’s findings and

conclusions to be submitted pursuant to the remand by the

(‘ourt of Appeals.

So ORDERED.

June 6th, 1973

MILTON POLLACK

United States District Judge

50u

APPENDIX C

Second Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

For THE SPCOND CIRCUIT

— — Ä — ͤ—L—

Nos. 1137-1142—September Term, 1972.

(On Submission to the Court July 2, 1973

Decided September 24, 1973.)

Docket Nos. 72-1857, 72-1884, 72-2101

72-1763, 72-2142, 72-2143

— — 4 —

UNITED STATES OF AMERICA,

Appellee,

—against—

ELviIn Lee BYNUM, JoserH COO KO, ABRAIIAM WRIGHT,

LANCE SMALL, Newsry Miro, FANNIE MAK GARNETT,

JACQUELINE FULLER Dyson, JOHN CONIGLIO, ANGELO

MELE, VINCENT ALTAMURA, IRVING BIRNBAUM, JOHN

FeroLp!, CHARLES TUZZOLINO and Levis Nb,

Appellants.

— — oe

Before:

KAUFMAN, Chicf Judge,

Surrn and Manga, Circuit Judges.

— — lS — ͤ—

Appeals from judgments entered after a jury trial in the

United States District Court for the Southern District of

Ila

Appendia C — Second Opinion of the Court of Appeals

New York, Milton Pollack, Judge, convicting all appellants

of conspiracy to violate 21 U.S.C. §§ 173 and 174 (repealed

1970) and 26 U.S.C. §§4705(a) and 7237 (b (repealed

1970), and convicting appellant Nedd of carrying a fire-

arm during the course of that conspiracy. 18 U.S.C. § 924.

The panel previously remanded the case for an evidentiary

hearing to determine whether certain wiretap evidence

used at trial, had been legally obtained. 475 F.2d 832 (2d

Cir. 1973).

Convictions affirmed.

> or —ͤ—

W. CULLEN MACDONALD, Assistant United States

Attorney, New York, New York (Paul J.

Curran, United States Attorney, Southern

District of New York, John W. Nields, Jr.,

Assistant United States Attorney, of Coun-

sel), for Appellee.

lenny J. BorreL, New York, New York, for

Appellant Bynum.

PaTrick M. WALL, New York, New York,

for Appellants Cordovano, Wright, Small,

Mitchell, Garnett, Dyson, Birnbaum, Feroldi

and Nedd.

II. Kiaor WALES, New York, New York, for

Appellants Mele, Coniglio and Tuzzolino.

Frank A. Lovez, Brooklyn, New York, for Ap-

pellant Altamura,

MULLIGAN, Circuit Judge:

zu

Appendix C — Second Opinion of the Court of Appeals

On a previous appeul to this court we remanded this

case to the trial judge, Hon. Milton Pollack, United States

District Judge, Southern District of New York, for a hear-

ing to determine whether certain wiretap evidence used ut

trial had been legally obtained. (United States v. Bynum,

475 F.2d 832 (2d Cir. 1973). After the hearing, Judge Pol-

lack issued his findings of fact and conclusions of law, up-

holding the validity of the wiretaps. 360 F. Supp. 400

(S.D.N.Y. 1973). We now affirm the convictions in all

respects.

I. THe Facts

On October 13, 1971 an indictment was filed, charging

appellants Bynum, Cordovano, Wright, Small, Mitchell,

Garnett, Dyson, Coniglio, Mele, Feroldi, Altamura, Birn-

baum, Tuzzolino and Nedd with conspiracy to deal unlaw-

fully in narcotic drugs in violation of 21 U.S.C. S8 173, 174

(repealed 1970) and 26 U.S.C. S5 4705 (a), T237(b) (re-

pealed 1970). All appellants were found guilty on this

charge. The second count of the indictment separately

charged appellant Nedd with carrying a firearm during

this conspiracy in violation of 18 U.S.C. § 924. Nedd was

found guilty on this charge.’

The primary purpose of the conspiracy, which was al-

leged to exist chiefly in New York City, from January 1,

1970 until April 30, 1971, was to obtain, process and dis

tribute large amounts of narcotic drugs which had been

unlawfully imported into the United States. The further-

ance of the common scheme involved one unsuccessful rob-

The disposition of the charges against other defendants as

well as a list of those who were named as co-conspirators but not

as co-defendants, are set out in our prior opinion. United States

v. Bynum, 475 F.2d 832, 834 n.2 (2d Cir. 1973).

Sua

Appendig C — Second Opinion of the Court of Appeals

bery, together with the near fatal shooting of the victim,

another aborted robbery and an elaborate plan to murder a

corrupt New York City patrolman, who was thought to be

cooperating with the authorities. The Government's case

rested principally upon the evidence of George Stewart, a

veteran and former college student, whose record was re-

spectable until he invested in a Manhattan restaurant which

eventually stripped him of his resources and indebted him

to appellant Cordovano, a customer. At Cordovano’s sug-

gestion Stewart embarked on a career of selling cocaine in

order to repay his debts. Cordovano and Bynum were the

key figures in the drug conspiracy here revealed. Bynum

was the banker for the group, supplying large sums of

money for the purchase of heroin and cocaine. He and

Cordovano supplied the drugs and supervised their mixing,

cutting, packaging and distribution through Herlem. The

distributors there were Wright, Small, Mitchell, Garnett

and Dyson. The suppliers of the ring were Altamura, Mele,

Coniglio, Tuzzolino, Birnbaum and Feroldi who normally

operated through Cordovano.

From May 1970 on, Stewart sold heroin and cocaine for

Cordovano on a consignment basis, sharing the profits.

Stewart was eventually introduced to Bynum, Coniglio and

Mele by Cordovano, and Stewart’s role in the group became

increasingly important. In September 1970, Cordovano pur-

chased 5 kilos of heroin from Coniglio and Mele for $72,500

in cash which had been supplied by Bynum. Stewart picked

up the heroin. Some of the drugs were delivered to Bynum

thiuugh Cordovano and the remainder were stored in

Stewart’s girlfriend’s apartment. At Cordovano’s instruc-

tion, Stewart delivered 2 kilos on October 29th to a cus-

tomer, Shaw, who paid him $38,000. Shaw in turn unwit-

tingly resold to an undercover agent. Stewart was arrested

at this sale and was found to possess % of a kilo of heroin

Sta

Appendia C — Second Opinion of the Court of Appeals

as well as a gun. Bynum supplied the collateral for

Stewart’s bail bond.? In December 1970, Stewart was re-

arrested since a prior sale had also resulted in another

resale to an undercover agent. It was at this juncture that

Stewart was approached by the Government and agreed to

become an informant.

On January 10, 1971, Stewart, at Cordovano’s request,

proceeded to Bynum’s residence with a device for sealing

plastic bags. Wright, who was expected to arrive with 2

kilos of heroin to be cut, appeared without the drugs since

he was apprehensive of police detection. Bynum, Wright

and Garnett left Stewart for another location. Later in the

evening they returned to Bynum’s apartment complaining

of nausea resulting from the inhalation of heroin dust dur-

ing the cutting operation. Cordovano subsequently brought

to Bynum's apartment 5 kilos of cocaine which he stated

he had purchased from Altamura. Bynum cut ½ kilo of

this cocaine with an adulterant. Stewart took a sample of

this and the balance was given to Wright. The 4!% kilos

of uncut cocaine were stored at the apartment of Stewart’s

girlfriend and at Cordovano’s mother’s apartment. Later

in January, Stewart met Cordovano, Altamura, Coniglio

und Mele at a wake. It was at this point that their con-

versations indicated that there was a serious shortage of

drugs for the local market. Altamura stated that he had

u source but the promised sale eventually fell through when

his seller demanded $36,000 for 2 kilos of heroin on Feb-

ruary 19, 1971.

* Bynum testified that he posted collateral for Small’s,

Wright’s and Mitchell’s bail bonds after their arrests on the

present charges. Defendant Garnett pledged her house as col-

lateral for Cordovano’s bond.

55a

Appendia C — Second Opinion of the Court of Appeals

At this point, desperate to obtain heroin, the core group

udopted less orthodox but predictable means of assuring

their continuing business. Cordovano and Bynum discussed

with Stewart the possibility of robbing one Marty Carlin,

a drug dealer who they believed had large quantities of

hervin and cash stored in his safe. The plan was that Nedd

und one Michael Libbers (an original co-defendant whose

motion to dismiss was granted below) would take Carlin

to an apartment selected by Stewart where Carlin would be

“persuaded” to reveal his safe combination. Eventually,

in March 1971, Bynum, Nedd, Cordovano and Stewart made

the final plan to rob Carlin. Nedd located Carlin at a west-

side hotel, but Carlin resisted and was shot by Nedd. Al-

though he was seriously wounded, Carlin was able to iden-

tify Nedd as his assailant. When Nedd was subsequently

urrested in New Jersey, he had jewelry belonging to Carlin

us well as identification papers belonging to another victim

of the attempted robbery.

In the meantime, other efforts were made to secure

heroin. On February 25, 1971, Stewart was given $65,000 in

cush ut Bynum's direction to pay to Altamura for heroin to

le turned over for cutting and sale to Garnett and Dyson.

Altamura only had cocaine and no heroin. It was then

decided to purchase 2 kilos of heroin from Birnbaum

whose source was Feroldi. After giving a kilo of plaster

in order to cautiously test the delivery plans, Feroldi finally

delivered a kilo of heroin on March 13, 1971 to Stewart and

Cordovano. Cordovano brought it to Bynum at Dyson’s

home for cutting. It proved to be impure in quality and

somewhat less in quantity than represented.

Ou March 29, 1971, after meetings with Cordovany, Alta-

mura delivered 2 kilos of heroin to Cordovano and Stewart

who brought it to Bynum at Dyson’s house. Bynum, Dyson,

Garnett, Mitchell, Wright, Cordovano and Stewart, all par-

ticipated in the cutting and packaging of the drug.

36

Appendie C — Second Opinion of the Court of Appeals

Early in April, 1971, Cordovano and Stewart held sepa-

rate meetings with Tuzzolino and ith Coniglio and Mele

for a 5 kilo purchase of heroin. A 2 kilo purchase of hervin

was made from Tuzzolino using Feroldi’s car to make de-

livery to Stewart who in turn delivered it to Cordovano.

After a variety of furtive maneuvering, this was followed

by the usual cutting and repackaging operation at Dyson's

residence with Bynum, Cordovano, Stewart, Garnett, Dyson

and Small participating.

Cordovano and Bynum also proceeded to plan with

Moody (a prosecution witness) to steal heroin and money

from two drug dealers in Washington, D.C. Feroldi was

un added starter, participating in the planning in mid-

April, 1971. The theft was never consummated despite a

trip to Washington by Feroldi and Moody who were tele-

phoning Cordovano for advice. They left behind them in

Washington police uniforms, chloroform, tape, a sledge

hammer and a trunk with a .38 caliber pistol in it. Bynum

paid some of their expenses for this aborted scheme.

On April 29, 1971, the partnership business came to an

abrupt termination. Bynum and Garnett advised Stewart

that an informant had betrayed them. He was identified

us corrupt New York City patrolman Wollack who was

believed to be talking to federal authorities. Cordovane

und Bynum planned that Garnett was to have Wollack

visit her home on a pretext. Cordovano and Stewart were

to follow him from Garnett’s home to the meat market

operated by Bynum and Cordovano where he was to be

knocked out, searched for bugging equipment, shot to

death and placed in a plastic bag. Stewart, who at this

point was fully accepted as a member of the core group,

even purchased surgical gloves at Bynum’s suggestion

that the gloves would foil any paraffin test indicating that

the apprehended person had recently fired a gun. Stewart

BEST copy nt

57a

Appendia C — Second Opinion of the Court of Appeals

fortunately alerted the authorities. Cordovano and Stewart

were apprehended en route to the scene, and each was

found to possess a loaded hand gun. Two other loaded guns

were found in the car.

While the furtive and devious movements of drug con-

spiracies such as this are unfortunately routinely encoun-

tered in the federal courts of this circuit, the detailed

tacts which amply document and support the Govern-

ment's case here, are uniquely provided by the informant

witness Stewart, whose regular reports to Government

ugents enabled them to independently make surveillance

and confirm the conspiracy and the overt acts charged in

the indictment. Thus Stewart’s “sample” of cut cocaine

received from Bynum on January 10, 1971 was turned over

to agents on January 19, 1971. The $65,000 in cash de-

livered to Stewurt on February 25, 1971 at Bynum’s re-

quest wan later photographed by agents. Birnbaum's

uttempted delivery on March 2, 1971 was subjected to

surveillance by agents. The Altamura sale on March 29,

1971 and the subsequent cutting operation were observed

by agents. The April 9, 1971 Tuzzolino sale and cutting

operation were also under surveillance, with Stewart man-

aging to discard packages which were recovered by agents

who were able to determine that pure heroin traces still

adhered to the original containers.

ll. A SINGLE CONSPIRACY

Defendants Birnbaum, Altamura, Tuzzolino, Coniglio,

Mele, Wright, Small, Mitchell, Garnett and Dyson, seek

reversal of their convictions on the ground that the Gov-

ernment did not prove one conspiracy but rather multiple

individual conspiracies. Kotteakos v. United States, 328

U.S. 750 (1946). The Government established beyond a

reasonuble doubt a large scale drug sale conspiracy in

58a

Appendia C — Second Opinion of the Court of Appeals

this cause between January 1970 and April 1971. The pat-

tern is now familiar. Raw drugs in large quantities have

io be imported and supplied. In this case the core op—

erators Bynum and Cordovano, respectively, supplied the

cupital and the contact with the suppliers who provided

the raw material. The raw drugs then had to be adul-

terated or cut, packaged and then resold to purchasers

who eventually made them available to the victims. In

more normal business ventures this would be described as

u vertically integrated loose-knit combination. The point

vf course is that each level of the operation depends upon

the existence of the other, and the mutual interdependence

of each is fully understood and appreciated by the other.

This knowledge on the part of Bynum and Cordovano

operating in the middle layer is obvious. The supplier de-

fendants Birnbaum, Altamura, Feroldi, Tuzzolino, Coniglio

und Mele could not reasonably suppose that the large

umounts of raw cocaine and heroin received by Bynum

and Cordovano were not to be resold at the tremendous

profits this business produces. The defendants Wright,

Small, Mitchell, Garnett and Dyson who participated in

the cutting, repackaging and distribution of the drugs un-

derstood fully the roles of Bynum and Cordovano and

that suppliers of the raw drugs had to be involved. This

is the usual chain conspiracy encountered in drug cases.

“Thus the conspirators, at one end of the chain knew that

the unlawful business would not, and could not, stop with

their buyers; and those at the other end knew that it

had not begun with their sellers. That being true, a jury

might have found that all the accused were embarked upon

„ venture, in all parts of which each was a participant.

und an abettor in the sense that the success of that part

with which he was immediately concerned, was dependent

upon the success of the whole.” United States v. Tramag-

lino, 197 F.2d 928, 930 (2d Cir.), cert. denied, 344 U.S.

864 (1952), quoting United States v. Bruno, 105 F.2d

59a

Appendia C — Second Opinion of the Court of Appeals

921, 922 (2d Cir.), rev’d on other grounds, 308 U.S. 287

(1939). See also Blumenthal v. United States, 332 U.S.

539 (1947); United States v. Vega, 458 F.2d 1234 (2d

Cir. 1972); United States v. Agueci, 310 F.2d 817 (2d

(ir. 1962), cert. denied, 372 U.S. 959 (1963). The fact

that not all of the defendants may have known and worked

directly with all of the others is not significant since it is

clearly established that each knew from the scope of the

operation that others were involved in the performance of

functions vital to the success of the business. United

States v. Calabro, 467 F.2d 973, 982-83 (2d Cir. 1972),

cert. denied, 410 U.S. 926 (1973).

The on-going nature of the partnership here and the

roles assigned to the cast were established clearly in the

record. The period of the conspiracy here, moreover, is

comparatively short (16 months compared to 9 years in

United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert.

denied, 379 U.S. 960 (1965)), so that the participation of

the defendants in the Bynum-Cordovano Harlem operation

is more easily established.

With respect to the individual defendants who claim

dixcrete conspiracies, we find ample proof of participation

in the single conspiracy charged within the principles

enunciated in the prior cases. Wright, Small, Garnett and

Dyson were closely allied with Bynum and Cordovano in

the cutting and packaging operation. Garnett and Dyson

were girlfriends of Bynum, and Wright had worked for

him for many years. They were obviously trusted asso-

ciates. Wright’s presence at cutting operations on the

evening of January 10, 1971 was established. Moreover,

Wright warned of police activity which resulted in a chang-

ing of plans as to the place of cutting. He was present

luter thut evening at Garnett’s home where Cordovano

und produced 5 kilos of heroin und received ½ kilo from

60a

Appendia C — Second Opinion of the Court of Appeals

Bynum. On March 29 he was also present at the cutting

operation and departed with one of the three bundles of

adulterated heroin. Small, a friend and part-time em-

ployee, and Mitchell, also a friend of Bynum, were present

at the March 29 cutting party and were assigned the two

other bundles. Small was also present at the cutting opera-

tion on April 9, 1971. It is clear that the relationship

here among the cutters and distributors was continuing.

intimate and pursuant to common scheme or plan.

The connections of the suppliers with the operation were

broad and extensive. Coniglio and Mele made the $72,500

sale to Cordovano in September, 1970. In January, 1971,

they advised Stewart of the lack of heroin on the market

and offered to sell 5 kilos to Cordovano in April, 1971,

for $100,000. Their continuing willingness to participate

is patent. Altamura supplied Cordovano with the 5 kilos

of cocaine cut on January 11, 1971; he drove Cordovano

to meet Bynum in February, 1971; he attempted to pur-

chase 10 kilos of heroin at the same time; he spoke to

Cordovano and Stewart numerous times in February and

March, and finally delivered 2 kilos of heroin on March

29, 1971. He was entrusted with $49,000 in cash tu make

n purchase for the partnership. Birnbaum, who initially

introduced a buyer to Cordovano and Stewart in the

summer of 1970, appeared as a seller in February, 1971.

offering Cordovano and Bynum 5 kilos of heroin for

$90,000. He and his source, Feroldi, continued to promise

delivery and on March 13 a kilo sale of heroin resulted

after Feroldi had been given $15,000 and a gun by Cor-

dovano. Feroldi promised to continue to search for a

source. On March 2, 1971, Birnbaum had been entrusted

with $38,000 to make a heroin purchase which was never

consummated and the money was returned. Tuzzolino ap-

pears in April, 1971, as a prospective supplier of 5 kilos

of heroin for $105,000 and was entrusted with $15,000 in

cash. After several meetings, a 2 kilo sale was transacted.

6la

Appendia C Second Opinion of the Court of Appeals

While some of the suppliers may not have known the

identity of other sellers, the inference was justified that

cach knew his supplies were only a small part of the raw

drugs which the extensive Bynum-Cordovano operation

processed and sold. See Blumenthal v. United States, supra,

332 U.S. at 554-55 n.14. In view of the large amounts of

hard drugs involved and the large amounts of money ad-

vanced to suppliers, there is no question but that the

ynum-Cordovano partnership was conducting a regular

business on a steady basis with numerous suppliers who

intentionally and knowingly were either looking to or main-

tuining « close relationship with a solvent, on-going ap-

paratus.

III. SEVERANCE

A. The Courts Charge

In view of this evidence of one conspiracy, the refusal

to grant severances was proper. Some of the appellants,

notably Mele and Coniglio, argue that there was prejudice

in failing to sever since the court below charged: “if you

find that the Government has failed to prove the existence

of only one conspiracy you must find the defendants not

guilty.” This is urged to be a prejudicial “all or nothing

charge” condemned by this court in United States v. Bor.

eli, supra, and in United States v. Kelly, 349 F.2d 720 (2d

Cir. 1965), cert. denied, 384 U.S. 947 (1966). The argu

ment in essence is that no jury would acquit all of the

defendants since Bynum and Cordovano were clearly ac-

tive in all of the ventures undertaken by the group. Hence

the jury would convict all rather than let the principal

malefactors go free. We cannot accept the argument since

it feils to consider other portions of the trial court's charge

which made it perfectly clear to the jury that if each of

the defendants was not a knowing participant in the single

62a

Appendix C — Second Opinion of the Court of Appeals

conspiracy he must be acquitted. In short it was not an

“all or nothing charge.” The court carefully charged:

In determining whether any defendant was a

party, each is entitled to individual consideration of

the proof respecting him or her, including any evi-

dence of his or her knowledge or lack of knowledge,

his or her status as a partner, manager or supervisor,

his or her participation in key conversations, his or

her participation in the plan, scheme or agreements

alleged.

If you decide that the charged conspiracy existed

between any of the defendants, you must then decide

as to each defendant individually whether he or she

joined the conspiracy with knowledge of either one

or both of its purposes as alleged in the indictment.

Judge Pollack meticulously charged the elements and

characteristics of the single conspiracy and summarized

the Government’s evidence as to each defendant and the

evidence, if any, of each defendant who presented testi-

mony. This alone takes up eighteen pages of the record.

The contention therefore that the charge was prejudicial!

and in violation of Borelli and Kelly, is unsupportable.

The principal thrust of appellants’ argument that mul-

tiple conspiracies existed rather than the single conspiracy

charged in the indictment, lies not in the drug supply pro-

cess and sales activity of the defendants but rather in the

evidence presented to the jury of the attempted robbery

and shooting of Martin Carlin, the planned robbery of the

drug dealers in Washington, and the plan to murder the

New York City policeman, Wollack. Those defendants, pri-

63

Appendia C — Second Opinion of the Court of Appeals

marily Bynum and Cordovano, who participated in the

crimes, claim that they were prejudiced by the evidence

of “other crimes” and those conspirators who were not

directly implicated cleim prejudice by the “spill over“ effect

on the jury which would prejudice their right to a fair trial.

Kotteakos v. United States, supra.

The actual participants in the crimes rely on the line of

cases presented by United States v. Byrd, 352 F.2d 570

(2d Cir. 1965), and United States v. Deaton, 381 F.2d 114

(2d Cir. 1967), which hold that evidence of other crimex

is admissible except when offered solely to prove criminal

character. The other defendants maintain they were not

responsible for the violent acts since these crimes were not

within the fair import of the conspiracy as they understood

it (United States v. Peoni, 100 F.2d 401, 403 (2d Cir.

1938)), and thus the trial court erred in not granting

them a severance.

In this case the planned robberies and murder were not

“other crimes” at all; they were part and parcel of the

single drug conspiracy charged in the indictment. —

l'nited States v. Leftwich, 461 F.2d 586, 589 (3d Cir. 1972) ;

United States v. Pe. zico, 425 F.2d 1375, 1384 (2d Cir.).

cert. denied, 400 U.S. 869 (1970) ; Ignacio V. Territory of

(inam, 413 F.2d 513, 519-20 (9th Cir. 1969), cert. Gentes,

397 U.S. 943 (1970); Rodriguez v. United States, 284 F.2d

863, 867 (Sth Cir. 1960), cert. denied, 368 U.S. 1001 (1962).

Moreover, as to the other defendants, these were not extra-

mural frolics of wanton criminals introduced by the Gov-

ernment to establish to the jury that wicked men were in

the dock. The Bynum-Cordovano group which was conduct-

ing an enormously profitable business, was faced early

1971 with a shortage of heroin and cocaine. They discuss

this with their suppliers and were desperately seeking new

bia

Appendia C — Second Opinion of the Court of Appeals

sources of hard drugs. The planned theft from Carlin, a

drug dealer, was to supply heroin for the purpose of the

conspiracy. His shooting was in furtherance of that pur-

pose. The aborted Washington burglary was conceived by

Cordovano and Bynum for the purpose of obtaiuing heroin

and money. The planned killing of Wollack was to silence

a suspected informant and thus to preserve the viability of

the conspiracy.’ The suppliers here were acutely aware of

the shortage; that the “core group” would resort to vio-

lence to secure hard drugs or to protect the venture, could

hardly be unanticipated or unexpected. See Rodriguez v.

United States, supra.

We fail in any event to appreciate the defendants’ argu-

ment that evidence of these crimes was so prejudicial ax

to arouse the “irrational passions of the jury“ (United

States v. Kaufman, 453 F.2d 306, 311 (2d Cir. 1971)), or

to create in the jury “overmastering hostility.” C. MeCor-

mick, Evidence §190, at 453 (2d ed. E. Cleary 1972).

Whether or not a jury will be so inflamed by allegedly

extraneous criminal activity will of course depend upon

what crime they have been accused of committing. ite

States v. Williams, 470 F.2d 915, 918 (2d Cir. 1972). The

appellants here were engaged for profit in u major hard

drugs venture in Harlem which not only dehumanized its

ultimate customers but unquestionably spawned myriad

crimes in a community already misery-ridden. No jury in

New York can be unaware of the dimensions and conse-

quences of the major operation which was graphically por-

trayed here. The revulsion of the average citizen to this

traffic need not be documented. How evidence of the con-

comitant robbery, assault or even planned murder here

See C. McCormick, Evidence § 190, at 451 & n.48 (2d ed.

E. Cleary 1972).

65a

Appendia C Second Opinion of the Court of Appeals

could be so exacerbating as to render the jury’s judgment

irrational, we are unable to understand. We are not dealing

with minor league addicted street pushers but with well-

financed brazen professionals engaged in a large-scale crim-

inal undertaking in which corruption and violence ure

endemic, The euphemistic description of these activities a»

transactions in “contraband” does not disguise the true

nutnure of the wicked alliance here established. Moreover,

the trial judge’s careful marshaling of the evidence, as we

have pointed out, made it clear that the participation of

each defendant must be determined by his own actions and

not the acts of the others. The jury therefore was capable

of determining which defendants had participated in the

violence.

IV. THe Wire Tars

The Government was authorized by District Judge

Anthony J. Travia, Eastern District of New York, on

January 29, 1971 to overhear and electronically record

telephone conversations at the home of the defendant

Garnett, Bynum’s girfriend; her home was the site of

xubsequent meetings and cutting operations of the defen-

dants. The order was based on an af ‘avit stating that

four reliable informants had indicated that Bynum ae

engaged in a large drug distribution business and use

Garnett’s phone in this business. The affidavit further

recited that Bynum had corrupted state and federal officers,

that he had a previous narcotics conviction, and that he

wax reputed to have caused the killing of some 18 people.

The order authorized the wiretap for 20 days and contained

the statutory directive (18 U.S. C. § 2518(5)) that the

interception of communications be conducted in such a

way as to minimize the interception of communications not

otherwixe subject to interception. On February 12, 197 1.

a second wiretap was authorized on another phone in the

66a

Appendia C — Second Opinion of the Court of Appeals

Garnett residence for 20 days duration.“ The tap ou the

first phone was extended by Judge Travia on February

18, 1971 until March 3, 1971 so that it expired on the

same day as the second tap. For five weeks these phones

were monitored and conversations were recorded, eight

of which were introduced at the trial and played for the

jury. The issuance of the authorization for the wiretap

and the recordation of the conversations of some of the

defendants has given rise to a number of arguments on

appeal.

A. Authorization and Necessity

Appellants claim that the application for the wiretap

order was improperly authorized since the application was

not approved by the Attorney General or a specially desig-

nated Assistant Attorney General as required by statute

(18 U.S.C. § 2516(1)) but rather by an Executive Assistant

to the then Attorney General. The precise question has

been before this court on several occasions and has been

decided adversely to appellants’ position, and we are now

bound by these precedents. United States v. Becker, 461

F.2d 230, 235-36 (2d Cir. 1972); United States v. Pisacano,

459 F.2d 259 (2d Cir. 1972).°

It is further urged that the applications for the wire-

taps were defective in failing to establish that resort to

this means of surveillance was necessary as required by

* Bynum learned of the first proposed wiretap before Judge

Travia signed the authorization. He had the second phone in-

stalled and the agents learned of this through their tap on the

first phone.

We note that the federal courts are divided on this question.

See United States v. Roberts, 477 F.2d 57 (7th Cir. 1973); United

States v. Giordano, 469 F.2d 522 (4th Cir. 1972), cert. granted,

411 U.S. 905 (1973).

67a

Appendia C — Second Opinion of the Court of Appeals

18 U.S.C. § 2518(1)(c). A reading of the detailed affidavits

which were submitted in support of the wiretap and which

form part of this record, indicating reason to believe that

Bynum had engaged in the corruption of officials and

violence against informants, and that he was a long time

narcotics violator, amply supports the issuance of the

orders here made.

B. Minimization

The remand for an evidentiary hearing here was

prompted by the argument on the initial appeal in this

case that there was a failure by the Government to mini-

mize the interception of innocent conversation on the two

telephones tapped at 855 Linden Boulevard, in violation

of 18 U.S. C. 5 2518(5) which mandates the inclusion of

a “minimization” provision in the order authorizing the

electronic surveillance. District Judge Pollack held such

evidentiary hearings on April 9. May 10, 11 and 14, 1973.

On June 6, 1973 he filed a 20 page opinion containing

findings of fact and conclusions of law, in which he made

an exhaustive analysis of the calls which were intercepted,

the identity of the conversants, the length of the calls,

the actual conduct of the surveillance by the Assistant

United States Attorney and the inspectors of the Bureau

of Narcotics and Dangerous Drugs (BNDD) and the con-

tinuing supervision of Judge Travia, to whom the Govern-

ment was reporting regularly pursuant to his order. Judge

Travian also appeared as a witness in the hearing before

Judge Pollack. In view of the extensive opinion below,

we see no point in repeating the minutiae necessarily

developed in the record analyzing the surveillance.

We commence with the observation that the mere fact

that every conversation is monitored does not necessarily

render the surveillance violative of the minimization re-

BEST COPY AVAILABLE

65a

Appendia C — Second Opinion of the Court of Appeals

quirement of the statute. See United States v. Cor, 462

F.2d 1293, 1301 (8th Cir. 1972); United States v. Leta, 332

F. Supp. 1357, 1360 n.4 (M.D. Pa. 1971). It is also obvious

that no electronic surveillance can be so conducted that

innocent conversation can be totally eliminated. Before a

determination of innocence can be made there must be some

degree of eavesdropping. The record here discloses that

out of 2058 completed phone calls, 1277 of them (more than

half) were completed in less than 2 minutes. Since, in a

case of such wide-ranging criminal activity as this, it would

be too brief a period for an eavesdropper even with ex-

perience to identify the caller and characterize the conver-

sation as merely social or possibly tainted, we eliminate

these calls from consideration. See United States v. Sisca,

72 Cr. 1159, at 22.23 (S. D. N. V. June 25, 1973); United

States v. Focarile, 340 F. Supp. 1033, 1050 (D. Md.) atfd

sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir.

1972), cert. granted, 411 U.S. 905 (1973) ; United States v.

La Gorga, 336 F. Supp. 190, 196 (W.D. Pa. 1971). Our

concern is with the 781 conversations which lasted 2 or

more minutes.

In determining whether or not these calls were suscep-

tible to minimization, there is patently no mechanical, hard

and fast formula applicable. We look first to determine

whether or not the Government could anticipate or, during

the course of the surveillance, detect some pattern of inno-

cent conversation which could be eliminated from scrutiny.

The facts and events detailed earlier in this opinion sup-

ported the Government’s expectation at the time of the ini-

tiation of the taps, that Bynum was operating a massive

drug business headquartered at 855 Linden Boulevard. We

cannot accept appellants’ suggestion that this was just an-

other large drug operation. The conspiracy here unveiled

was not limited to drug peddling, but included larceny, rob-

bery and murder among its ingredients. The taps were fur-

69a

Appendia C — Second Opinion of the Court of Appeals

ther authorized because Bynum was suspected of corrupting

local police as well as federal agents to assure the continu-

ing success of the venture. Bynum, as we have indicated,

was no pedestrian punk or common hoodlum. He had acted

ax an informant for the Government in previous drug cases

and was.well versed in narcotic investigative techniques.

His contacts included not only law enforcement agents but

alxo corrupt attorneys who were suspected of being impli-

cutel in the drug operation. He arrived in New York

in modest circumstances at best and within several years,

according to his own testimony, had attained a net worth

of more than a million dollars and a taxable income in 1971

of $120,000 allegedly on income from “legitimate” busi-

nesses, including a clothing store, record shop and the

“Kosher” wholesale meat market which he operated with

Cordovano (and which, had it not been for the intervention

of the authorities, would have been the situs for the murder

of Patrolman Wollack).

Even more grotesque is the fact that Bynum testified that

through a contact in the Telephone Company, whom he

named, he was made aware almost immediately of the

existence of both of the taps made on the phones at 855

Linden Boulevard. It is incongruous therefore to advert

to un expectation of privacy (United States v. Katz, 389

U.S. 347, 351-53 (1967) ) under circumstances such as these.

Ree (/nited States v. Pui Kan Lam, slip op. 4991, 4997-99

(2d Cir. Aug. 21, 1973). Although Bynum did reside at this

address with one of his mistresses (Garnett) and his child,

it can hardly be characterized as such a normal domestic

menage, that the Government could have anticipated some

pattern of orthodox socia calls. On the contrary, the rea-

sonable anticipation on the part of the Government, as the

court below recognized, was that surreptitious, illegal activ-

ity would be conducted on the premises and over the tele-

70a

Appendiæ C Second Opinion of the Court of Appeals

phone. Furthermore, while natural caution dictates that

drug related conversations will be disguised and cryptic,

in view of Bynum’s awareness of the surveillance, the

efforts to obfuscate and confuse the eavesdropper would

have been more pronounced than usual.

In view of all of these factors we cannot conceive that

either the Assistant United States Attorney or Judge

Travia could formulate any detailed screening instructions

which could effectively minimize licit telephone intercep-

tion. The record below establishes that on January 29,

1971, the Assistant United States Attorney and two in-

spectors of the BNDD submitted to Judge Travia the ap-

plication for surveillance and personally discussed the

breadth of the conspiracy and the difficulties embraced

in the surveillance. The record makes it apparent that all

were fully aware of the statutory requirements, including

the minimization provision and the need to screen out

innocent calls. Since it was known that lawyers were sus-

pected of involvement, monitoring agents were specifically

instructed not to intercept privileged conversations. The

calls were in fact received and monitored but no serious

argument is made here that privileged calls were inter-

cepted. For the first time in New York apparently, in

view of the charge of corruption, out-of-town BNDD

agents, all of the rank of Inspector, were imported to

conduct the surveillance and, in order to cope with the

jargon anticipated, 2 were assigned in tandem to each tap

on a 24 hour basis. Judge Travia moreover insisted upon

written reports on a regular basis covering short periods

of the tap. In addition to written summaries and detailed

logs which were submitted to him on February 4, 8, 16, 18,

24 and March 1 and 8, 1971, there were supplemental meet-

ings and conversations throughout the period of the sur-

veillance. In our view, the degree of judicial supervision

—

7 Iu

Appendiæ C Second Opinion of the Court of Appeals

is an important factor in determining whether a good faith

effort to minimize was attempted. See United States v.

Cor, supra, 462 F.2d at 1301. We agree with the finding

of the court below that the taps were closely and con-

scientiously supervised by Judge Travia.

The Government maintains that in fact 85% of the con-

versations recorded were relevant to the authorized inves-

tigation. We are, however, unable to determine whether

the estimate is accurate. Statistics in this area are prop-

erly suspect. What is significant in our view is that appel-

lants’ principal contention on appeal on this issue is that

some 73 calls of 3 minutes or more duration involved

conversations between Bynum's infant’s babysitter, Donna,

and her friends and classmates which were clearly inno-

cent. The argument is made that in view of the length of

the investigation and the pattern of innoccace emerging

from these calls, they should not have been intercepted.

The Government's contention in response, that although

all conversations were recorded only 90% of them were in

fact monitored by the agents, is not persuasive. We need

not determine, however, whether the interception prohib-

ited by the s* tute is aural intrusion or mechanical recorda-

tion.“ The fference here between what was monitored

® The court below held, and the Government argues here, that

the statutory provision requiring that interceptions of communica-

tions be minimized (18 U.S.C. 5 2518 (5)) was intended to limit

only the hearing and not the recordation of conversations. Au-

thority for this view is said to be found in the words of the

statute itself. The statute defines “intercept” as “the aural ac-

quisition of the contents of any wire or oral communication

through the use of any electronic, mechanical, or other device.”

18 U.S.C. § 2510 (4). The statute also draws a distinction between

interception and recordation in § 2518(8) (a), which requires that

the “contents of any . communication intercepted by any means

{Footnote continued on following page

79

72a

Appendig C — Second Opinion of the Court of Appeals

and what was recorded is insignificant and in fact not

measurable (having been based on one agent’s estimate).

Assuming arguendo that there was a total interception of

all of Donna’s calls, we do not find a violation of the

statute or any constitutional infirmity in their interception.

Our own examination of the logs supports the conten-

tion that Donna’s conversations with friends were banal

and for the most part devoid of content which would as-

sist the investigation at issue. Of course, in making this

retrospective judgment that the Donna calls were innocent,

we enjoy the acuity of hindsight. United States v. La Gorga,

supra, 336 F. Supp. at 196. While such conversations might

well commence with teenage trivia, the eavesdropper, un-

less possessed of the prescience of a clairvoyant, could

hardly predict when they might become relevant or when

they might be interrupted by an adult with more pressing

problems. Id. The record in fact reveals that Donna’s

innocence did not immediately become apparent. Even

authorized by this chapter shall, if possible, be recorded on tape

or wire or other comparable device.” Any recording made under

this subsection is to be “done in such a way as will protect the

recording from editing or other alterations.” See United States v.

Huss, slip op. 4439, 4457-59 (2d Cir. June 26, 1973).

Appellants respond that the statute was never intended to

permit recordation of all conversations. Such a construction would,

in their view, allow the Government or anyone else to legally

create a tape library of the conversations of any citizen. If such

reasoning were applied to the situation of a warrant covering

tangible items, seizure of the contents of a whole house would be

permissible, in their view, on the ground that to do so would

prevent any destruction or disappearance of exculpatory evidence.

Appellants contend that this question has been resolved in their

favor by earlier cases (United States v. King, 335 F. Supp. 523

(S.D. Cal. 1971), rev’d on other grounds, 478 F.2d 494 (9th Cir.

1973) ; United States v. Leta, 332 F. Supp. 1357, 1360 n.4 (M.D.

Pa. 1971).

73a

Appendia C — Second Opinion of the Court of Appeals

when it became obvious, Donna was also used to transmit

messages and on occasion did reveal the whereabouts of

Bynum and the company he was keeping.

Considering all of the circumstances set forth—the broad

range of alleged criminality, Rynum's awareness of the

taps, the supervision by Judge Travia—we agree with the

court below that there was no violation of the minimiza-

tion requirement of the statute.

V. OTHER ARGUMENTS

Appellant Bynum argues that he was denied the effec-

tive assistance of trial counsel because his trial counsel

had at one time represented the Government witness Stew-

urt. Appellant relies on a recent decision of this court,

United States v. Alberti, 470 F.2d 878 (2d Cir. 1972),

cert. denied, 411 U.S. 919 (1973) for the proposition that

the trial judge should have conducted a hearing to deter-

mine whether or not a conflict exists. Contrary to his

present position, the record contains an affidavit by Bynum

indicating that he knew of his counsel’s representation of

Stewart at the beginning of the trial. Although Bynum

wax represented by two attorneys throughout th trial,

no request for a hearing on this question was even made

until after the trial, and then on the basis of newly dis-

covered evidence. It was properly denied by the trial

judge. The representation of Stewart by Bynum's trial

counsel was in a totally unrelated matter, an assault

charge in a state court. There is no prejudice in any

event since Stewart was acquitted and any avenue of

cross-examination on this point would be fruitless. More-

over, the court below found that trial counsel had repre-

xented Bynum in an extremely competent manner. Under

these circumstances we find no possible conflict of interest.

Olshen v. McMann, 378 F.2d 993, 994 (2d Cir.), cert.

denied, 389 U.S. 874 (1967).

74a

Appendia C Second Opinion of the Court of Appeals

Appellant Birnbaum claims that there was reversible

error committed because Stewart referred to the fact that

Birnbaum was in jail for several months. The record

discloses that the trial judge promptly admonished the

jury to disregard and completely erase the remark from

their minds. There is no basis for reversal. United States

v. Strombery, 268 F.2d 256, 269 (2d Cir.), cert. denied,

361 U.S. 863 (1959).

In his “Reply and Supplemental Brief” appellant

Altamura urges that the trial judge committed “plain

error” in failing to charge the jury on the law and facts

in regard to his alibi defense. Having failed to either

request such a charge or to make a timely objection in

accord with Fed. R. Crim. P. 30, Altamura cannot com-

plain now. Goldsby v. United States, 160 U.S. 70, 77

(1895); Lewis v. United States, 373 F.2d 576, 579 (9th

Cir.), cert. denied, 389 U.S. 880 (1967); United States v.

Tramaglino, supra, 197 F.2d at 932.

Appellants Mele and Coniglio complain that unique cir-

cumstances prevented the latter from testifying at the

trial. In June 1971 Coniglio was convicted after a jury

trial in the Eastern District of New York, of violating

the narcotics laws. On June 15, 1972, this court reversed

that conviction because the prosecution had suppressed

certain relevant evidence. /'nited States v. Mele, 462 F.2d

918 (2d Cir. 1972). Thus the argument is that had

Coniglio testified in the instant April-May, 1972 trial, he

would have been subjected to damaging cross-examination

about his prior narcotics conviction, a conviction even-

tually overturned because of prosecutorial misconduct.

The fallacy lies in the fact that Coniglio possessed, and

fuiled to exercise, the right to request a prior ruling from

the trial judge on whether the earlier conviction could

be used on cross-examination. See, e.g., United States v.

Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied, 394

75a

Appendia C Second Opinion of the Court of Appeals

U.S. 947 (1969). Having neglected to make such an ap-

plication below, the appellants are now in no position to

urge that Coniglio was unfairly prevented from testifying.

Levis Nedd, along with some of the other defendants,

complains that his in-court identification by Martin Carlin,

the victim of the robbery, was the product of an im-

permissibly suggestive photographic display. Of course,

“our inquiry must be whether under all circumstances

{the allegedly improper photographic display] gave rise

to a very substantial likelihood of irreparable misidentifica-

tion. . . . Moreover, in determining whether or not the

suggestive photographic identification procedure resulted

in misidentification, we may properly consider the other

factors which were before tae jury and were properly

admissible which tend to establish that there was not

substantial likelihood of misidentification.” United States

ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801, 803-04 (2d

Cir. 1973). Even assuming that the photographic display

was impermissibly suggestive, the other evidence against

Nedd was so overwhelming that the possibility he was

the victim of misidentification is remote in the extreme.

Stewart not only testified that Nedd was in on the planning

of the robbery, but also related a subsequent conversation

in which Nedd graphically described the circumstances sur-

rounding his shooting of Carlin. In addition, when arrested

in New Jersey, Nedd possessed jewelry and rings stolen

from Carlin as well as an identification taken from another

victim of the attempted robbery. See United States ea rel.

Npringle v. Follette, 435 F.2d 1380 (2d Cir. 1970), cert.

denied, 401 U.S. 980 (1971). There was no constitutional

infirmity here.

We have considered all arguments urged on us by ap-

pellants and find them to be without merit.

Affirmed.

76a *

APPENDIX D

Order of the Court of Appeals Denying Rehearing

UNITED STASES COURT OF AIPEALS

SECOND CIRCUIT

At a stated term of the United States Court

of Appeals, in and for the Second Circuit,

held at the United States Court Ions.

in the City of New York, on the thirty-

first day of October, one thousand nine

hundred and seventy-three.

Present: Hox. Irving R. KAUFMAN,

Chief Judge,

Hon. J. JOSEPH SMITH,

Hon. WILLJAM H. TIMBERS,

Circuit Judges.

72-1857, 72-1884, 72-2101.

72-1763, 72-2142-3

— — . —

UNITED STATES OF AMERICA,

Plaintiff- Appellee.

El vix Lee BynuM, a/k/a Al, a/k/a Big Al, Josern Conpo-

VANO, a/k/a Joey, Joe Carr, Joe the Butcher, ABRAHAM

Wricut, LANCE SMALL, Newsry MiTcnet., LIAN

Everett BynuM, a/k/a “Chink”, FANNIE MAF Gan-

NETT, a/k/a Mae, JACQUELINE Fri.er Dyson, a/k/a

Jackie, JoHN CONIGLIO, a/k/a Giggsy, ANGEIO MEL,

VINCENT ALTAMURA, a/k/a Vinnie, V“, STANLEY Sun

MAN, IRVING BIRNBAUM, CHARLES MoOopy, JOHN

FEROLDI, CHARLES TUZZ011NO, a/k/a Mr. Brooks, Levis

Nepp, Mint. Lesspers, a/k/a Mike the Irishman,

Defendants,

774

Appendiæ D

Order of the Court of Appeals Denying Rehearing

El vix Lex BYNuM, a/k/a Al, a/k/a Big Al, Joseru Corpo-

VANO, ABRAHAM WRIGHT, LANCE SMALL, Newsry Mir-

EIA, FANNIE MAE GARNETT, a/k/a Mae, J AcQueLINE

Fils Dyson, a/k/a Jackie, Joun CONIGLIO, a/k/a

Giggsy, ANGELO Mau, VINCENT ALTAMURA, a/k/a

Vinnie V“, Invinc BuNnAUM, JOHN FeROLDI, CHARLES

TUZZOLINO, a/k/a Mr. Brooks, Levis NEDp,

Defendants-A ppellants.

— — 2 —ů— ͤ —v—v—

A petition for a rehearing having been filed herein by

counsel for the appellants,

Upon consideration thereof, it is

ORDERED that said petition be and it hereby is DENxIBb.

A. DANIEL FusARO

Clerk

780 79a

7

Appendia E

APPENDIX E Order of the Court of Appeals Denying Rehearing in Banc

Order of the Court of Appeals Denying Rehearing In Banc A petition for rehearing containing a suggestion that

UNITED STATES COURT OF APPEALS the action be reheard in bane having been filed herein by

counsel for the appellants, and no active judge or judge

SECOND Cincurr who was un member of the panel having requested that a

vote be taken on said suggestion,

At a stated term of the United Staten Court ‘ ns

of Appeals, in and for the Second Circuit, Upon consideration thereof, it is

held at the United States Court House,

( j ; .

in the City of New York, on the thirty- JRDERED that said petition be and it hereby is Deniep.

first day of October, one thousand nine

In .

hundred and seventy-three. VING R. KavFMAN

Chief Judge

— — —— '

UNITED STATES OF AMERICA,

Plaintiff-Appellec,

ELvin Lew BYNUM, a/k/a Al, a/k/a Big Al, Josern Corpo-

VANO, a/k/a Joey, Joe Carr, Joe the Butcher, ABRAHAM

Wucht, LANCE SMALL, Newsry MITCHELL, LALLIAN

Everett BYNUM, a/k/a “Chink”, FANNIE MAr Gan-

NeTT, a/k/a Mae, JACQUELINE FULLER Dyson, a/k/a

Jackie, JOHN CONIGLIO, a/k/a Giggsy, ANGEIA MELA,

VINCENT ALTAMURA, a/k/a Vinnie, V“, STANLEY SHER-

MAN, IRvING BirnpauM, CHARLES Moopy, JOHN.

FEROLDI, CHARLES TUZZOLINO, a/k/a Mr. Brooks, Levis

Nepp, MICHAEL LEAunEkRnS, a/k/a Mike the Irishman,

Defendants,

ELVIN LEH BYNUM, a/k/a Al, a/k/a Big Al, Josern Corpo-

VANO, ABRAHAM WRIGHT, LANCE SMALL, Newsry MITt-

CHELL, FANNIE MAE GARNETT, a/k/a Mae, JACQUELINE

FULLER DySON, a/k/a Jackie, JOHN CONIGLIO, a/k/a

Giggsy, ANGEIO MELI, VINCENT ALTAMURA, a/k/a

Vinnie “V", IRVING BIRNBAUM, JOHN FEeROLDI, CHARLES

TUZZOLINO, a/k/a Mr. Brooks, Levis Nepp,

Defendants-A ppellants.

— — . —— —xꝑ'

S0

APPENDIX F

Statute Involved — 18 United States Code,

Chapter 119, ¢§ 2510-2520

WIRE INTERCEPTION AND INTERCEPTION

Sec.

2510.

2511.

2517.

2518.

2519.

2520.

OF ORAL COMMUNICATIONS

Definitions.

Interception and disclosure of wire or oral communi-

cations prohibited.

Manufacture, distribution, possession, and advertis-

ing of wire or oral communication intercepting de-

vices prohibited.

Confiscation of wire or oral communication inter.

cepting devices.

Immunity of witnesses.

Prohibition of use as evidence of intercepted wire

or oral communications.

Authorization for interception of wire or oral com-

munications.

Authorization for disclosure and use of intercepted

wire or oral communications.

Procedure for interception of wire or oral communi-

cations.

Reports concerning intercepted wire or oral com-

munications.

Recovery of civil damages authorized.

Sla

Appendiæ F

Statute Involved — 18 United States Code,

Chapter 119, §§ 2510-2520

§ 2510. Definitions

As used in this chapter—

(1) “wire communication” means any communi-

cation made in whole or in part through the use of

facilities for the transmission of communications by

the aid of wire, cable, or other like connection be-

tween the point of origin and the point of reception

furnished or operated by any person engayed as a

common carrier in providing or operating such facili-

ties for the transmission of interstate or foreign

communications;

(2) “oral communication” means any oral com-

munication uttered by a person exhibiting an expec-

tation that such communication is not subject to

interception under circumstances justifying such

expectation ;

(3) “State” means any State of the United

States, the District of Columbia, the Commonwealth

of Puerto Rico, and any territory or possession of

the United States;

(4) “intercept” means the aural acquisition of

the contents of any wire or oral communication

through the use of any electronic, mechanical, or

other device.

(5) “electronic, mechanical, or other device”

means any device or ap, atus which can be used

to intercept ‘a wire or oral communication other

than—

(a) any telephone or telegraph instrument,

equipment or facility, or any component thereof,

82a

Appendiæ F

Statute Involved — 18 United States Code,

Chapter 119, §§ 2510-2520

(i) furnished to the subscriber or user by a com-

munications common carrier in the ordinary course

of its business and being used by the subscriber or

user in the ordinary course of its business; or (ii)

being used by a communications common carrier

in the ordinary course of its business, or by an

investigative or law enforcement officer in the or-

dinary course of his duties;

(b) a hearing aid or similar device being used

to correct subnorma! hearing to not better than

normal;

(6) “person” means any employee, or agent of

the United States or any State or political subdivi-

sion thereof, and any individual, partnership, asso-

ciation, joint stock company, trust, or corporation ;

(7) “Investigative or law enforcement officer”

means any officer of the United States or of a State

or political subdivision thereof, who is empowered

by law to conduct investigations of or to make

arrests for offenses enumerated in this chapter, and

any attorney authorized by law to prosecute or par-

ticipate in the prosecution of such offenses;

(8) “contents”, when used with respect to any

wire or oral communication, includes any informa-

tion concerning the identity of the parties to such

communication or the existence, substance, purport,

or meaning of that communication ;

(9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court

or a United States court of appeals; and

S3a

Appendia F

Statute Involved — 18 United Statex ( ‘ode,

Chapter 119, §§ 2510-2520

(b) a judge of any court of general criminal!

jurisdiction of a State who is authorized by a

statute of that State to enter orders authorizing

interceptions of wire or oral communications ;

(10) “communication common carrier” shal! have

the same meaning which is given the term “common

carrier” by section 153(h) of title 47 of the United

States Code; and

(11) “aggrieved person” means a person who wax

a party to any intercepted wire or oral communica-

tion or a person against whom the interception wax

directed.

Added Pub. L. 90-351, Title III, § 802, June 19, 1968, 82

Stat. 212.

$2511. Interception and disclosure of wire or oral com-

munications prohibited.

(1) Except as otherwise specifically provided in this

chapter any person who—

(a) willfully intercepts, endeavors to intercept.

vr procures any other person to intercept or endeavor

to intercept, any wire or oral communication:

(h) willfully uses, endeavors to use, or procures

any other person to use or endeavor to use any

electronic, mechanical, or other device to intercept

any oral communication when—

(i) such device is affixed to, or otherwise trans.

mits a signal through, a wire, cable, or other like

connection used in wire communication; or

Sia

Appendiæ F

Statute Involved — 18 United States Code,

Chapter 119, §§ 2510-2520

(ii) such device transmits communications by

radio, or interferes with the transmission of such

communication; or

(iii) such person knows, or has reason to know,

that such device or any component thereof hax

been sent through the mail or transported in inter-

state or foreign commerce; or

(iv) such use or endeavor to use (A) takes

place on the premises of any business or other

commercial establishment the operations of which

affect interstate or foreign commerce; or (B) ob-

tains or is for the purpose of obtaining informa-

tion relating to the operations, of any business or

other commercial establishment the operations of

which affect interstate or foreign commerce; or

(v) such person acts in the District of Colum

bia, the Commonwealth of Puerto Rico, or any

territory or possession of the United States;

(c) willfully discloses, or endeavors to discloxe, to

any other person the contents of any wire or oral

communication, knowing or having reason to know

that the information was obtained through the inter-

ception of a wire or oral communication in violation

of this subsection; or

(d) willfully uses, or endeavors to use, the con-

tents of any wire or oral communication, knowing

or having reason to know that the information was

obtained through the interception of a wire or oral

communication in violation of this subsection;

shall be fined not more than $10,000 or imprisoned not

more than five years, or both.

Su

Appendia F

Statute Involved — 18 United States Code,

Chapter 119, §§ 2510-2520

(2)(a)(i) It shall not be unlawful under this chap-

ter for an operator of a switchboard, or an officer, employee

or agent of any communication common carrier, whone

facilities are used in the transmission of a wire <ommuni-

cation, to intercept, disclose, or use that communication

in the normal course of his employment while engaged

in any activity which is a necessary incident to the rendi-

tion of his service or to the protection of the rights or

property of the carrer of such communication: Provided.

That said communication common carriers shall not utilize

service observing or random monitoring except for mechani-

cal or service quality control checks. |

(ii) It shall not be unlawful under this chapter for

un officer, employee, or agent of any communication com-

mon carrier to provide information, facilities, or technical

assistance to an investigative or law enforcement officer

who, pursuant to this chapter, is authorized to intercept

a wire or oral communication.

(b) It shall not be unlawful under this chapter for an

officer, employee, or agent of the Federal Communications

Commission, in the normal course of his employment and

in discharge of the monitoring responsibilities exercixed by

the Commission in the enforcement of chapter 5 of title 47

of the United States Code, to intercept a wire communica-

tion, or oral communication transmitted by radio, or to dis-

close or use the information thereby obtained.

(e) It shall not be unlawful under this chapter for a

person acting under color of law to intercept a wire or oral

communication, where such person ix a party to the com-

munication or one of the parties to the communication has

given prior consent to such interception.

S6a

Appendiæ F

Statute Involved — 18 United States Code,

Chapter 119, 58 2510-2520

(d) It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a wire

or oral communication where such person is a party to the

communication or where one of the parties to the com-

munication has given prior consent to such interception

unless such communication is intercepted for the purpose

of committing any criminal or tortious act in violation of

the Constitution or laws of the United States or of any

State or for the purpose of committing any other injurious

act.

(3) Nothing contained in this chapter or in section

605 of the Communications Act of 1934 (48 Stat. 1143; 47

U.S. C. 605) shall limit the constitutional power of the

President to take such measures as he deems necessary to

protect the Nation against actual or potential attack or

other hostile acts of a foreign power, to obtain foreign

intelligence information deemed essential to the security

of the United States, or to protect national security infor-

mation against foreign intelligence activities. Nor shall

anything contained in this chapter be deemed to limit the

constitutional power of the President to take such measures

as he deems ne sar to protect the United States against

the overthrow of the Government by force or other unlawful

means, or against any other clear and present danger to

the structure or existence of the Government. The contents

of any wire or oral communication intercepted by authority

of the President in the exercise of the foregoing powers may

be received in evidence in uny trial hearing, or other pro-

ceeding only where such interception was reasonable, and

shall not be otherwise used or disclosed except as is neces-

sary to implement that power.

Su

Appendia F

Statute Involved — 18 United States Code.

Chapter 119, $§ 2510-2520

Added Pub. L. 90-351, Title III, § 802, June 19, 1968, 82

Stat. 213, and amended Pub. L. 91-358, Title II, § 211( a),

July 29, 1970, 84 Stat. 654.

§ 2512. Munufacture, distribution, possession, and advertis-

ing of wire or oral communication intercepting de-

vices prohibited

(1) Except us otherwise specifically provided in this

chapter, any person who willfully—

(a) sends through the mail, or sends or carries

in interstate or foreign commerce, any electronic,

mechanical, or other device, knowing or having rea-

son to know that the design of such device renders it

primarily useful for the purpose of the surreptitious

interception of wire or oral communications;

(b) manufactures, assembles, possesses, or sells

any electronic, mechanical, or other device, knowing

or having reason to know that the design of such

device renders it primarily useful for the purpose of

the surreptitious interception of wire or oral com-

munications, and that such device or any component

thereof has been or will be sent through the mail or

transported in interstate or foreign commerce; or

(c) places in any newspaper, magazine, handbill,

or other publication any advertisement of—

(i) any electronic, mechanical, or other de-

vice knowing or having reason to know that the

design of such device renders it primarily useful

for the purpose of the surreptitious interception of

wire or oral communications; or

(ii) any other electronic, mechanical, or other

device, where such advertisement promotes the use

SSa

Appendiæ F

Statute Involved — 18 United States Code,

Chapter 119, §§ 2510-2520

of such device for the purpose of the surreptitious

interception of wire or oral communications,

knowing or having reason to know that such ad-

vertisement will be sent through the mail or trans-

ported in interstate or foreign commerce.

shall be fined not more than $10,000 or imprisoned not more

than five years, or both.

(2) It shall not be unlawful under this section for—

(a) a communications common carrier or an offi-

cer, agent, or employee of, or a person under contract

with, a communications common carrier, in the nor-

mal course of the communications common carrier’s

business, or

(b) an officer, agent, or employee of, or un person

under contract with, the United States, a State, or

a political subdivision thereof, in the normal course

of the activities of the United States, a State, or a

political subdivision thereof, to send through the

mail, send or carry in interstate or foreign commerce,

or manufacture, assemble, possess, or sell any cles.

tronic, mechanical, or other device knowing or hav-

ing reason to know that the design of such device

renders it primarily useful for the purpose of the

surreptitious interception of wire or oral communi-

cations.

Added Pub. L 90-351, Title II. § 802, June 19, 1968, 82 Stat.

214.

Appendiæ F

Statute Involved — 18 United States Code.

Chapter 119, §§ 2510-2520

$2513. Confiscation of wire or oral communication inter-

cepting devices

Any electronic, mechanical, or other device used, sent,

curried, manufactured, assembled, possessed, sold, or ad-

vertixed in violation of section 2511 or section 2512 of this

chapter may be seized and forfeited to the United States.

All provisions of law relating to (1) the seizure, summary

and judicial forfeiture, and condemnation of vessels, ve-

hicles, merchandise, and baggage for violations of the cus-

toms laws contained in title 19 of the United States Code.

(2) the disposition of such vessels, vehicles, merchandlise,

and baggage or the proceeds from the sale thereof, (3) the

remission or mitigation of such forfeiture, (4) the com-

promiae of claims, and (5) the award of compensation to

informers in respect of such forfeitures, shall apply to

seizuren and forfeitures incurred, or alleged to have been

incurred, under the provisions of this section, insofar as

applicable and not inconsistent with the provisions of this

nection; except that such duties as are imposed upon the

collector of customs or any other person with respect to the

izure and forfeiture of vessels, vehicles, merchandise, and

baggage under the provisions of the customs laws contained

in title 19 of the United States Code shall be performed

with respect to seizure and forfeiture of electronic, mechan-

ien. or other intercepting devices under this section by such

officers, agents, or other persons as may be authorized or

dexignated for that purpose by the Attorney General.

Added lub. L. 90-351, Title IIT, § 802, June 19, 1968, 82

Stat. 215. |

90a

App

This text is long and has been trimmed here. Open the source document for the complete record.