# Appendix — ELVIN LEE LEE BYNUM, et al. v. UNITED STATES (No. 74-1445) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0429%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 ## Text — “ | 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0429%3A2. Public record. Not legal advice.