Petition — Valeriano v. United States

Supreme Court, U. §,

FILED

FEB 4 1977 |

MICHAEL RODAK, Jp |

' d "” CLERK

Supreme Court of the United States

> Ocroser Term, 1976

ne 76-1072

Petitioner.

Unirep States or AMErica,

Respondent,

PETITION FOR WRIT OF CERTIORARI

Davmw A. Reir

Remy, Peck, Rarrite anp LasaLa

33 Whitney Avenue, P.O. Box 1820

New Haven, Connecticut 06508

203-787-3517

Attorney of Record for Petitioner

TABLE OF CONTENTS

PAGE

I I ie il

EC ee soonssencsesnseenesene 1

i 2

I 2

SeaTUTES IWVOLVED ............c.ececccsccsesasecsese Coeiehatiaiadiies

I eel 7

ARGUMENT

1. The results of the aural interception should have

been suppressed, since the inventory was not

served within 90 days of the termination of the

Cy CID cccicienicsseticcsinttetinsscctecnescntilentinistninsitnii 9

A. Section 2518 imposes an absolute 90 day ceil-

ing on inventory SETVICE ......................cccceseeseeseeee 10

B. If the Government fails to provide a timely

inventory, there should be no requirement that

a person who is initially the target of a wire-

tap show prejudice to obtain suppression of

Cy Ny SIU cienicsintiininsensethicinnitecitibctinaiainsitenes 11

2. Placing a pen register on a telephone without

prior court order violated defendant’s due process

rights and requires suppression of the products

ET TE scchiciccnslacichiciehssstaittbeiitliiicsninntnittiaiaaaniaas 13

COMCEAIEBON nccccccscececees PTT Te ET EDT ET SE PORTE MT 15

li

TaBLE OF AUTHORITIES

PAGE

Cases

Berger v. New York, 388 U.S. 41 (1967) 15

Johnson v. United States, 333 U.S. 10 (1948) ................ 15

Katz v. United States, 389 U.S. 347 (1967) .. 14

Stone v. Powell, —— U.S. —, 96 S. Ct. 3037 (1976) ... 13

United States v. Caplan, 255 F. Supp. 805 (E.D. Mich.

1966) . 13

United States v. Chavez, 416 U.S. 560 (1974) ................ 15

United States v. Civella, 553 F. 2d 1395 (8th Cir. 1975),

petition for cert. filed, April 14, 1976 (Dkt. No. 75-

1813) 11

United States vy. Donovan, —— U.S. ——, 45 U.S.L.W.

4115 (January 18, 1977) 10, 12, 15

United States v. Falcone, 505 F. 2d 478 (3rd Cir. 1974),

cert. denied, 420 U.S. 955 (1975) 13, 14

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

aff'd sub nom. United States v. Giordano, 469 F. 2d

522 (4th Cir. 1972), aff'd 416 U.S. 505 (1974) ............ 14

United States v. Giordano, 416 U.S. 505 (1974) ............ 10, 15

United States v. John, 508 F. 2d 1134 (8th Cir.), cert.

denied, 421 U.S. 962 (1975) 15

United States v. Kahn, 415 U.S. 143 (1974) a“ am

United States v. Lanza, 341 F. Supp. 405 (M.D. Fla.

1972) . 13

Umited States v. Principie, 531 F. 2d 1132 (2nd Cir.),

petition for cert. filed, April 1, 1976 (Dkt. No. 75-

Sp me , 11

PAGE

Statutes

18 U.S.C. § 1955 ™ ” . ae

' 18 U.S.C. § 2510(4) .. ithabniisiahelibdiaadionicttt ile

18 U.S.C. § 2515 .......... CPL Ee es ee Pe Ep 3

CE a __ siiinesaiaciaiiniid passim

Rules of Court

United States Supreme Court, Rule 19(1)(b) ................ 16

United States Court of Appeals, Second Circuit, Rule

en 9

Supreme Court of the United States

Ocroper Term, 1976

ae

>

DanieL VALERIANO,

Petitioner.

—vV.—

Unitep States oF AMERICA,

Respondent,

—_—<—

PETITION FOR WRIT OF CERTIORARI

Opinions Below

Defendant was eonvicted, after a jury trial, of conducting

an illegal gambling business in violation of Title 18, U.S.

Code, Sec. 1955 and of conspiracy to violate Sec. 1955.

There was no written opinion in relation to defendant’s con-

viction. The District Court filed a written, but unpublished,

opinion, denying defendant’s pretrial motion to suppress,

for failure to file a timely inventory, evidence obtained

through use of a wiretap authorized under 18 U.S.C.§2518,

United States v. Valeriano, et al., —— F. Supp. —— (D.

Conn. February 18, 1976) Dkt. No. Crim. N-74-48), App.

p. la, et seq. An oral opinion was rendered by District

Judge Zampano on defendant’s motion, made during his

trial, to suppress results of a pen register placed on his

telephone. App. p. 16a, et seg. On appeal, the Court of Ap-

2

peal rendered an unrecorded oral opinion, United States v.

Valeriano, (2nd Cir. January 7, 1977) (Dkt. No. 76-1417).

Jurisdiction

This is a petition for a writ of certiorari directed to the

United States Court of Appeals for the Second Circuit,

seeking review of a judgment entered on January 7, 1977,

affirming defendant’s criminal conviction. Jurisdiction to

review the judgment by writ of certiorari is granted under

Title 28, U.S. Code, Section 1254 (1).

Questions Presented

i. Did the trial court err in refusing to suppress the

results of a pen register where the Government investi-

gators only obtained a court order authorizing a wire tap

and did not obtain a court order specifically authorizing

the installation of a pen register on defendant’s telephone?

2. Did the trial court err in refusing to suppress the

results of a wiretap, where the inventory, although served

on defendant within time extensions granted by the District

Judge, was not served within 90 days of the termination

of the surveillance?

Statutes Involved

“Intercept” means the aural acquisition of the contents

of any wire or oral communication through the use of any

electronic, mechanical, or other device.

18 U.S.C. See. 2510 (4).

™ ee

Whenever any wire or oral communication has been in-

tercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in evi-

dence in any trial, hearing, or other proceeding in or be-

fore any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority

of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in

violation of this chapter.

18 U.S.C. See. 2515.

Notwithstanding any other provision of this chapter,

any investigative or law enforcement officer, specially desig-

nated by the Attorney General or by the principal prose-

cuting attorney of any State or subdivision thereof acting

pursuant to a statute of that State, who reasonably deter-

mines that—

(a) an emergency situation exists with respect to

conspiratorial activities threatening the national se-

curity interest or to conspiratorial activities charac-

teristic of organized crime that requires a wire or oral

communication to be intercepted before an order au-

thorizing such interception can with due diligence be

obtained, and

(b) there are grounds upon which an order could be

entered under this chapter to authorize such intercep-

tion, .

may intercept such wire or oral communication if an ap-

plication for an order approving the interception is made

in accordance with this section within forty-eight hours

after the interception has occurred, or begins to occur. In

the absence of an order, such interception shall immediately

4

terminate when the communication sought is obtained or

when the application for the order is denied, whichever is

earlier. In the event such application for approval is

denied, or in any other case where the interception is termi-

nated without an order having been issued, the contents of

any wire or oral communication intercepted shall be treated

as having been obtained in violation of this chapter, and

an inventory shall be served as provided for in subsection

(d) of this section on the person named on the application.

18 U.S.C. See. 2518(7).

Within a reasonable time but not later than ninety days

after the filing of an application for an order of approval

undér section 2518(7) (b) which is denied or the termina-

tion of the period of an order or extensions thereof, the

issuing or denying judge shall cause to be served, on the

persons named in the order or the application, and such

other parties to intercepted communications as the judge

may determine in his discretion that is in the interest of

justice, an inventory which shall include notice of—

(1) the fact of the entry of the order or the applica-

tion ;

(2) the date of the entry and the period of author-

ized, approved or disapproved interception, or the

denial of the application; and

(3) the fact that during the period wire or oral com-

munications were or were not intercepted.

The judge, upon the filing of a motion, may in his discre-

tion make available to such person or his counsel for in-

spection such portions of the intercepted communications,

_ applications and orders as the judge determines to be in

the interest of justice. On an ex parte showing of good

cause to a judge of competent jurisdiction the serving of

the inventory required by this subsection may be postponed.

18 U.S.C. See. 2518(8)(d).

(a) Whoever conducts, finances, manages, supervises, di-

rects, or owns all or part of an illegal gambling business

shall be fined not more than $20,000 or imprisoned not more

than five years, or both.

(b) As used in this section—

(1) “illegal gambling business” means a gambling

business which—

(i) is a violation of the law of a State or political

subdivision in which it is conducted;

(ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own ali or part

of such business; and

(iii) has been or remains in substantially continu-

ous operation for a period in excess of thirty days

or has a gross revenue of $2,000 in any single day.

(2) “gambling” includes but is not limited to pool-

selling, bookmaking, maintaining slot machines, rou-

lette wheels or dice tables, and conducting lotteries,

policy, bolita or numbers games, or selling chances

therein.

(3) “State” means any State of the United States,

the District of Columbia, the Commonwealth of Puerto

Rico, and any territory or possession of the United

States.

(c) If five or more persons conduct, finance, manage,

supervise, direct, or own all or part of a gambling business

and such business operates for two or more successive

days, then, for the purpose of obtaining warrants for ar-

rests, interceptions, and other searches and seizures, prob-

able cause that the business receives gross revenues in

excess of $2,000 in any single day shall be deemed to have

been established. ,

(d) Any property, including money, used in violation of

the provisions of this section may be seized and forfeited

to the United States. All provisions of law relating to the

seizure, summary, and judicial forfeiture procedures, and

condemnation of vessels, vehicles, merchandise, and bag-

gage for violation of the customs laws; the disposition of

such vessels, vehicles, merchandise, and baggage or the

proceeds from such sale; the remission or mitigation of

such forfeitures; and the compromise of claims and the

award of compensation to informers in respect of such

forfeitures shall apply to seizures and forfeitures incurred

or alleged to have been incurred under the provisions of

this section, insofar as applicable and not inconsistent with

such provisions. Such duties as are imposed upon the col-

lector of customs or any other person in respect to the

seizure and forfeiture of vessels, merchandise, and baggage

under the customs laws shall be performed with respect to

seizures and forfeitures of property used or intended for

use in violation of this section by such officers, agents, or

other persons as may be designated for that purpose by

the Attorney General.

(e) This section shall not apply to any bingo game, lot-

tery, or similar game of chance conducted by an organiza-

tion exempt from tax.under paragraph (3) of subsection

7

(c) of section 501 of the Internal Revenue Code of 1954,

as amended, if no part of the gross receipts derived from

such activity inures to the benefit of any private share-

holder, member, or employee of such organization except

as compensation for actual expenses incurred by him in

the conduct of such activity.

18 U.S.C. §1955.

Statersent of Case

This is an appeal from the affirmance of defendant-peti-

tioner’s conviction for conducting an illegal gambling busi-

ness and for conspiracy to conduct such a business.

On January 15, 1973, prior to defendant’s indictment, ap-

plication was made by the United States to U.S. District

Judge Thomas F. Murphy, for an order authorizing the in-

terception of wire communications from the telephone

(624-8802) subscribed to by defendant and from a different

phone subscribed to by another individual. The application

relied for probable cause upon the affidavit of Special Agent

Raymond Connolly. Judge Murphy issued an order au-

thorizing the wiretapping of the two telephones for a pe-

riod of fifteen (15) days, for the purpose of determining the

manner in which Daniel Valeriano, Charles Furman, Frank

Gunn, Catherine Brown, an individual known only as

“ Alfie’, and unknown others, conducted an alleged “policy”

operation. The application did not seek the use of a pen

register on any telephone and the order did not provide

therefor.

The wiretaps were established on January 16, 1973 and

terminated on January 27, 1973. A pen register device was

also employed during that period. The original tape record-

8

ings were sealed by District Judge T. Emmet Clarie, on

January 29, 1973.

The initial 90 day time limit on the service of inventory

would have expired on April 30, 1973. On April 25, 1973,

however, the Government received a 30 day postponement

from District Judge Jon O. Newman (Judge Murphy was

in Mexico at the time). On May 22, 1973, Judge Murphy au-

thorized an additional 45 day postponement. Inventory was

served on five individuals, including defendant, on July 10,

1973.

Defendant was indicted on May 3, 1974 on two counts by

a federal grand jury sitting at Hartford and charged with

conducting an illegal gambling business in violation of 18

U.S.C. See. 1955 and with conspiracy to commit the substan-

tive offense. Jurisdiction rested in that Court by virtue of

18 U.S.C. Section 3231. The crucial evidence against defen-

dant resulted from Government wiretapping and use of a

pen register on defendant’s telephone line.

Prior to trial, defendant moved for suppression of the

aural wiretap evidence on the ground that he had not been

served with an inventory within 90 days of the ter~. ination

of the surveillance, as required by 18 U.s.C. Sue. 2518

(8)(d). The Motion was denied by District Judge Robert

C. Zampano, App. 9a-10a. At trial, defendant learned for

the first time of the existence of the pen register and moved

to suppress the results thereof. That motion was likewise

denied by Judge Zampano, App. 16a, et seq.

Aiter a jury trial, defendant was found guilty on both

counts and, on September 13, 1976, Judge Zampano sen-

tenced him to two years imprisonment on Count One, a two

9

year suspended sentence on Court Two, and four years

probation.

On September 16, 1976, defendant filed a notice of appeal.

On January 7, 1977, the United States Court of Appeals

for the Second Circuit affirmed his conviction in open court.’

This petition for a writ of certiorari followed.

ARGUMENT

1.

The results of the aural interception should have been

suppressed, since the inventory was not served within

90 days of the termination of the wiretap authorization.

This case raises an important question left unresolved in

this Court’s recent opinion in United States v. Donovan,

—_— U.S. — , 45 U.S.L.W. 4115 (January 18, 1977). In

that case, this Court held that the failure to provide an

inventory to persons whose conversations were overheard

during a tap, but who had not been initially been identified

as targets of that tap, does not require suppression of the

results of that surveillance. The Court reasoned that fail-

ure to meet the inventory provision did not violate any

statutory requirement “which directly and substantially

implement[s] the congressional intention to limit the use

of intercept procedures to those situations clearly calling

1 Pursuant to the Rules of the Court of Appeals for the Second

Cireuit, a judgment may be affirmed in open court whenever the

panel deciding the case is in unanimous accord as to that disposi-

tion and is of the opinion that the filing of an opinion would a

no jurisprudential purpose. Rules, U.S. Court of Appeals, Secon

Cireuit, See. 0.23.

10

for the employment of this extraordinary device.” United

States v. Donovan, —— U.S. at ——, 45 U.S.L.W. at 4121,

quoting United States v. Giordano, 416 U.S. 505 at 527

(1974). However, the majority opinion specifically recog-

nized that a different situation might exist where the gov-

ernment “knew before the interception that no inventory

would be served.” —— U.S. at —— n. 26, 45 U.S.L.W.

at 4122 n. 26. The instant case raises an aspect of that

reserved question, as well as requiring interpretation of

ambiguous language in Section 2518 (8) (d) regarding the

scope of the District Judge’s authority to grant extensions

for the filing of the inventory. |

A. Sec. 2518 imposes an absolute 90 day ceiling

on inventory service.

The relevant portion of Sec. 2518 provides

“Within a reasonable time but no later than ninety days

after the filing of an application for an order of ap-

proval under Sec. 2518 (7)(b) which is denied or the

termination of the period of an order or extensions

thereof, the issuing or denying judge shall cause to be

served, on the persons named in the order or the appli-

cation, ... an inventory. ... On an ex parte showing

of good cause to a judge of competent jurisdiction

the service of the inventory required by the subsection

may be postponed”. 18 U.S.C. 2518 (8)(d) (Emphasis

added).

The threshold issue requiring consideration by this

Court is whether the Court may extend the time for an

inventory beyond the 90 day period. The defendant submits

that the better reading of the statute requires that the 90

day provision represents a final cut-off date. Any other

reading would negate the meaning of that language. Had

Congress intended to allow the District J udge to direct ser-

11

vice of the inventory more than 90 days after the termina-

tion of surveillance, it would have written the statute

simply to read “within a reasonable time [an inventory

shall be served]”. If interpreted as the Government urges

and the Courts below held, the statute has just that effect,

since the District Judge may merely continue to grant ex-

tensions until he reaches what he considers a “reasonable

time,” which period exceeds 90 days.

Since it is a common practice for the Government to re-

quest, and for judges to grant, ex parte orders extending

the period fur service beyond 90 days, this issue deserves

definitive comment by this Court.

B. If the Government fails to provide a timely

inventory, there should be no requirement that

a person who is initially the target of a wiretap

show prejudice to obtain suppression of the

wiretap results,

If defendant prevails upon the issue discussed above, the

Court must consider whether prejudice must be shown by

the defendant in order to require suppression of the sur-

veillance results. The Court of Appeals for the Second and

Eighth circuits, in cases presently pending before this

Court, have held that prejudice must be demonstrated,

United States v. Principie, 531 F. 2d 1132 (2nd Cir.), pets

tion for cert. filed, April 1, 1976 (Dkt. No. 75-1393) ; United

States v. Civella, 533 F. 2d 1395 (8th Cir. 1975) petation

for cert. filed, April 14, 1976 (Dkt. No. 75-1813).’ This is

2 Defendant submits that prejudice in fact exists although no

formal proof was not made thereo!. The record shows that a

second wiretap was authorized on May 22, 1973, more than ninety

days after the termination of the first surveillance, ie. after the

time when an inventory originally would have been required

absent extensions, but before the inventory was actually served

on July 10, 1973. Defendant submits that had the inventory been

given within 90 days, the telephones which were tapped under the

12

an important unresolved issue in the context raised by this

case. United States v. Donovan, —— U.S. ——, 45 U.S.L.W.

4115 (January 18, 1977), in holding that the failure to file an

inventory does not invalidate the surveillance ab initio, re-

lies upon argument that the violation of the statute subse-

quent to the commencement of surveillance is irrelevant to

the legislative intent of minimizing the number of wiretaps,

since the tap would have been commenced regardless of the

error. Defendant submits that this case differs significantly

from Donovan in that the person here denied a timely inven-

tory was one of those named in the initial application, while

in Donovan, the failure occurred es to someone whose exis-

tence was unknown at the time the tap began. Thus, this

case is analogous to that suggested by the Government in

its brief in Donovan, where “the agents knew before the

inception that no inventory would be served.” —— U.S. at

—— n. 26, 45 U.S.L.W. at 4122 n. 26; here, as in that foot-

noted situation, the Government may well have already in-

tended to request extensions to file an inventory beyond 90

days. Since proof of such an intention would border on the

impossible, defendant submits that this Court should adopt

a prophylactic rule and require suppression where a timely

inventory is not given to one of the initial targets of the

wiretap.

second order clearly would not have been used for the transmission

of alleged gambling information subsequent to receipt of the in-

ventory and the evidence produced through th

not have been obtained. ; sata iar das

13

2.

Placing a pen register on a telephone without prior

court order violated defendant’s due process rights and

requires suppression of the products of the register.

Certain facts in this matter are uncontested. After the

Government obtained its wiretap authorization on January

15, 1973, it placed on the defendant’s telephone, in addition

to an aural recording device, a pen register, although the

order obtained made no reference to the use of the latter

device. This practice, which has been followed in other

investigations, see United States v. Falcone, 505 F. 2d 478

(8rd Cir. 1974), cert. denied, 420 U.S. 955 (1975); United

States v. Lanza, 341 F. Supp. 405 (M.D. Fla. 1972), clearly

raises an important question as to whether pen register

results so obtained must be suppressed in order to avoid

repetitions of such misconduct. Stone v. Powell, —— US.

—, 96 S. Ct. 3037, 3051 (1976).

In the courts below, the Government sought to justify

its actions on two grounds. First, it argued that the pen

* The following definition of a “pen register’ is found in Umited

States v. Caplan, 255 F. Supp. 805, 807 (E.D. Mich. 1966):

“The pen register is a device attached to a given telephone

line usually at a central telephone office. A pulsation of the

dial on the line to which the pen register is attached records

on a paper tape dashes equal in number to the number dialed.

The paper tape then becomes a permanent and complete record

of outgoing numbers called on the particular line. With refer-

ence to incoming calls, the pen register records only a dash

for each ring of the telephone but does not identify the num-

ber from which the incoming call originated. The pen register

cuts off after the number is dialed on outgoing calls and after

the ringing is conducted on incoming calls without deter-

mining whether the call is completed or the receiver is an-

swered. There is neither recording nor monitoring of the

conversation.”

14

register does nothing that could not also be done by an

expert user of an aural intercept. The Court of Appeals

for the Third Cireuit, United States v. Falcone, 505 F. 2d

478 (3rd Cir., 1974), cert. denied, 420 U.S. 955 (1975) and,

in this case, the Second Circuit have accepted the Govern-

ment’s view.

Defendant submits that an important question is raised

as to whether this technical assumption can be made with-

out the defendant being given an opportunity to challenge

its validity. A pen register is a very complicated mechani-

eal device which operates on the basis of increases and

decreases in electrical frequencies. See United States v.

Focarile, 340 F. Supp. 1033 (D. Md.), aff'd sub nom. United

States v. Giordano, 469 F. 2d 522 (4th Cir. 1972), aff’d, 416

U.S. 505 (1972), for a description of the operation of a pen

register. The Government, having elected to place a pen

register without specific Court approval, should not be

permitted to justify it merely by stating ex post facto that

it performs no new and different function.

The Government secondly justified the use of the pen

register by stating that the District Court judge, by grant-

ing permission for an aural interception under Sec. 2518,

had already fuund “probable cause” for its installation.

Since the Government never informed the District Judge of

its intention to use a pen register, its argument below

essentially is that it has a right to extend a court’s finding

of probable cause in one context to encompass any other

material which it considers somehow related. Defendant

submits that the decision must be made by the District

Judge, not the Government. Cf. Katze v. United States,

389 U.S. 347, 354-59 (1967).

15

There must be a showing of probable cause in order

to obtain a pen register. United States v. John, 508 F. 2¢

1134 (8th Cir.), cert. denied, 421 U.S. 962 (1975).* The

Government here did not give the Court an opportunity to

make that finding as to the propriety of specific device

involved. Since the Court order is intended to limit Gov-

ernment interference, the Government should not be per-

mitted to decide on its own the scope of that order. The

.Fourth Amendment requires that “a neutral and detached

authority be interposed between the policy and the public.”

Berger v. New York, 388 U.S. 41, 54 (1967) ; Accord, John-

son v. United States, 333 U.S. 10 (1948).

CONCLUSION

This Court has been called upon in the past to determine

major issues related to the interpretation of the wiretap

provisions of the Omnibus Crime Control and Safe Streets

Act. United States v. Donovan, —— US. , 45 US.LW.

4115 (January 18, 1977); United States v. Chavez, 416

U.S. 560 (1974); United States v. Giordano, 416 U.S. 505

(1974); United States v. Kahn, 415 U.S. 143 (1974). This

case provides an opportunity to resolve two of the remain-

ing important questions involved in application of that

major legislation—whether the District Court may extend

the time for service of the inventory beyond 90 days and

whether permission under Sec. 2518 for an aural intercep-

tion limits the Government’s activities to the terms of the

District Court order.

*The Government did not contest this issue in the Court of

Appeals.

16

In order to resolve these issues, defendant requests that

this Court issue a writ of certiorari to review the decision

of the United States Court of Appeals for the Second Cir-

cuit, United States Supreme Court, Rule 19(1)(b).

Respectfully submitted,

Defendant, Daniel Valeriano

By Davmw A. Rer

Remy, Peck, Rarrmz and Lasana

33 Whitney Avenue, P.O. Box 1820

New Haven, Connecticut 06508

203-787-3517

Attorney of Record for Petitioner

APPENDIX

I rn a

APPENDIX

Opinions Below

District or CONNECTICUT

Criminal No. N-7448

<>

Unitep States or AMERICA

Vv.

Dante, VaLeRIANO, CHarLes Furman, CATHERINE Brown,

a/k/a Catherine Jones, Currron Apams, ELLswortH

Be.xt, Frank Kinsirr, Frank AMENDOLA, a/k/a “Alfie”

-

MEMORANDUM OF DECISION

In this two-count indictment filed on May 3, 1974, the

seven defendants are charged with violating and with con-

spiring to violate the federal gambling statutes, 18 U.S.C.

§§ 1955 and 371. As is typical in § 1955 cases, the defendants

level broad constitutional and statutory attacks against the

indictment and wiretap evidence obtained under the provi-

sions of Title III of the Omnibus Crime Control and Safe

Streets Act, 18 U.S.C. $§ 2510-2520. In addition, defen-

dant Brown moves to suppress her grand jury testimony,

and defendant Bell challenges the search of his home by

agents in July, 1973. Finally, the defendants have filed

various motions for discovery.

I. The Motions To Dismiss

A. Most of the arguments advanced by the defendants

in support of their motions to dismiss are foreclosed by

Judge Blumenfeld’s reasoned opinion in United States v.

2a

Chiarizio, 388 F. Supp. 858 (D. Conn.), aff’d, —— F.2d

—— (2 Cir. November 11, 1975). Thus, § 1955 is constitu-

tional; the doctrine of pardon and abatement does not bar

the prosecution ; and, there is no infirmity in the conspiracy

count of the indictment based on an application of “Whar-

ton’s Rule.” Jd. at 862-863; see also United States v. Sacco,

491 F.2d 995 (9 Cir. 1974); United States v. Becker, 461

F.2d 230 (2 Cir. 1972), vacated on other grounds, 417 U.S.

903 (1974) ; State v. Genova, 141 Conn. 565 (1954). Further,

since the indictment alleges that the defendants committed

certain acts with respect to an illegal gambling business

“involving a numbers or policy operation” during a spe-

cific period, the use of the term “bookmaking” does not

render the indictment vague or legally insufficient. Cf.

United States vy. DeCesaro, 54 F.R.D. 596, 597 (E.D.Wis.

1972). The indictment contains the requisite specificity to

enable the defendants to prepare their defenses and to

avoid the danger of being prosecuted again for the same

conduct. United States v. Debrow, 346 U.S. 374 (1953).

B. As a further ground for dismissal, the defendant

Kinsler severely criticizes the role of a prosecutor in pre-

senting evidence to a grand jury and suggests that the

Magistrate’s duties be expanded to include that “of the

court’s attorney before the grand jury.” The defendant’s

arguments are conclusory in nature, have little or no rele-

vance to the case at bar, and are contrary to controlling

law. The government attorney is specifically authorized to

appear before a grand jury, Rule 6(d), F. R. Crim. P.,

and his presence is recognized as essential “to the fact pre-

sentation process by which the grand jury reaches its ulti-

mate decision.” United States v. Cooper, 464 F.2d 648, 653,

3a

(10 Cir. 1972). Moreover, “[a] grand jury proceeding is

not an adversary hearing in which the guilt or innocence

of the accused is adjudicated,” United States v. Calandra,

414 U.S. 338, 343 (1974) ; therefore, there is no requirement

that the prosecutor submit to the grand jury all of the

evidence in the government’s file. Loraine v. United States,

396 F.2d 335, 339 (9 Cir.), cert. denied, 393 U.S. 933 (1968) ;

Addonizio v. United States, 313 F. Supp. 486, 495 (D.N.J.

1970), aff’d 451 F.2d 49 (3 Cir.), cert. denied, 405 U.S.

936 (1972).

C. Defendants Brown, Adams, and Furman contend that

the indictment must be dismissed as against them because

there has been an alleged violation of a policy statement

issued by the Department of Justice in 1959 which states:

“After a state prosecution there should be no federal trial

for the same act or acts unless the reasons are compelling.”

The short answer to this contention is that there has been

no duplication of prosecution here. While it is true that

each of the defendants was prosecuted and convicted of

“policy playing” on a single day under Connecticut law,

Conn. Gen. Stat. § 53-298, the federal statute with which

we are concerned prohibits an illegal gambling business of

major proportions involving five or more persons, and

one in substantially continuous operation for at least 30

days or with a gross reserve of $2,000 in a any single day.

Cf. United States v. Ceraso, 467 F.2d 653, 658 (3 Cir. 1972).

Also, the penalties under state and federal law significantly

differ: the state statute provides for a maximum of six

months imprisonment or $100 fine, or both, while the fed-

eral enactment carries a maximum of five years incarcera-

tion or $20,000 fine, or both.

4a

In any event, even assuming there has been a breach

of a policy set some years ago by the Justice Department,

the defendants point to no statute, rule or regulation that

has been breached. As Justice Brennan noted in Petite v.

United States, 361 U.S. 529, 533, “the government has re-

served the right to apply or not to apply its ‘policy’ in its

discretion.”

II, The Motions To Suppress

A. All of the defendants move to suppress the wiretap

evidence secured by agents of the Federal Bureau of In-

vestigation. They first allege that the affidavit submitted

by Agent Connolly in support of the wiretap application

was deficient in that (1) the reliability of the informants

was not sufficiently established on the face of the affidavit,

and (2) the information set forth was “double hearsay”

because it was relayed to Agent Connolly through other law

enforcement officers.

It is well established that a magistrate cannot issue a

valid search warrant based an an affidavit which contains

information supplied to the police by an unidentified in-

formant unless the affidavit states “some of the underlying

circumstances from which the officer concluded that the in-

formant . . . was credible or his information reliable.’ ”

Aguilar vy. Texas, 378 U.S. 108, 114 (1964). See also Spi-

nelli v. United States, 393 US. 410 (1969); United States

v Canestri, 518 F.2d 269 (2 Cir. 1975). In the instant case,

the affidavit recites that the “information provided by In-

formant Number One has been substantiated and found on

each occasion to be accurate and reliable”, that Informant

Number Two “has provided reliable information in the

past to Sergeant DeRosa, which information has resulted

oe

5a

in three arrests and convictions in gambling matters”, and

that Informant Number Three “in the past has provided

reliable information which has been confirmed by indepen-

dent investigation consisting of surveillances, analysis of

telephone toll calls and other investigative techniques.”

These recitals are sufficient to show the trustworthiness of

the informants and to justify reliance on their statements.

United States v. Sultan, 463 F.2d 1066, 1068-1069 (2 Cir.

1972); United States v. Dunnings, 425 F.2d 836, 839 (2

Cir. 1969), cert. denied, 397 U.S. 1002 (1970).

It is true, as the defendants point out, that Agent Con-

nolly did not personally receive the information from the

informants. Rather, each informant relayed information

to a named police officer who, in turn, transmitted the in-

formation to Agent Connolly. While the use of double

hearsay in a wiretap application is not to be encouraged,

it does not automatically render the affidavit fatally defec-

tive. United States v. Fiorella, 468 F.2d 688, 691-692 (2

Cir. 1972). The test to be applied is whether the informa-

tion furnished by each informant, taken in the light of the

totality of the circumstances, can reasonably be said to be

reliable. Jd. Here, as stated, the informants had previ-

ously given accurate information to the police. In addition,

the informants with considerable detail related their per-

sonal observations of and contacts with the defendants and

extensively described admissions of criminal activity by

the defendants. The separate accounts of the three infor-

mants tend to corroborate each other and independent in-

vestigations by local police and federal agents confirmed

several material aspects of the informants’ reports. Under

these circumstances, the affidavit must be deemed sufficient

to support a finding of probable cause for the wiretap

6a

order. See United States v. Harris, 403 U.S. 573 (1971);

Aguilar v. Texas, supra; Jones v. United States, 362 U.S.

257 (1960); United States v. Welebir, 498 F.2d 346 (4 Cir.

1974); United States v. Fiorella, supra; United States v.

Steed, 465 F.2d 1310 (9 Cir.), cert. denied, 409 U.S. 1078

(1972); United States v. Sultan, supra; United States v.

Fantuzzi, 463 F.2d 683 (2 Cir. 1972); United States ex rel.

Cardaio v. Casseles, 446 F.2d 632 (2 Cir. 1971).

B. The defendants next argue that the wiretap applica-

tion did not include the requisite “full and complete state-

ment as to whether or not other investigative procedures

have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous.”

18 U.S.C. § 2518(1)(c). See also 18 U.S.C, § 2518(3)(e). |

In support of their position, the defendants cite the con-

clusory language contained in paragraph 3(d) of the affi-

davit which merely asserts that normal investigative tech-

niques such as physical surveillance and examination of

records have failed to uncover sufficient evidence to sus-

tain a prosecution; and, therefore, “the: interception of

these telephone communications is the only available

method of investigation which has a reasonable likelihood

of securing the evidence necessary to prove violations of

Title 18, United States Code, Sections 1955 and 371.”

This argument overlooks the factual explanation on

pages 11 and 12 of the affidavit concerning the difficulties

in employing conventional investigative techniques to the

present case. Paragraph 10 of the affidavit reads:

My experience and the experience of other agents of

the Federal Bureau of Investigation have shown that

even though gambling customers are identified they are

Ta

unwilling to furnish information to law enforcement

agents or officials inquiring into gambling activities.

This is even more true when the customer is a profes-

sional gambler himself. Moreover, interviews and/or

Grand Jury subpoenas would only serve to put these

individuals on notice of pending investigation and

severely reduce the potential success of the investiga-

tion. Experience has shown that raids and searches

of individuals operating a policy book have not in the

past resulted in gathering sufficient physical or other

evidence to prove all elements of the offenses particu-

larly when individuals involved in the operation do not

physically engage in the action of operating the policy

action but control and receive proceeds of the opera-

tion. Even when records are maintained these records

are frequently destroyed immediately prior to a phy-

sical search of the premises and usually records which

are obtained are coded in order to protect the names of

controllers and runners.

The informants mentioned in this affidavit have in-

formed agents of the Federal Bureau of Investigation

and officers of the New Haven Police Department that

they categorically refuse to testify in any court proceed-

ings because of possible retaliatory tactics which might

be taken against them.

A similar statement was found to be in substantial com-

pliance with the mandates of §§ 2518(1)(c) and (3)(¢) in

United States v. Askins, 351 F. Supp. 408, 414 (D.Md.

1972). Further, a comparison of the averments in the Con-

nolly affidavit with narratives upheld in other controlling

cases indicates that the defendants’ contentions must be re-

jected. See United States v. Stenberg, —— F.2d —— (2

8a

Cir. November 10, 1975); United States v. Falcone, 364 F.

Supp. 877, 889 (D.N.J. 1973), aff’d 505 F.2d 478 (3 Cir.

1974), cert. denied, 420 U.S. 955 (1975); United States v.

Staino, 358 F. Supp. 852, 856-857 (E.D.Pa. 1973); United

States v. Lanza, 356 F. Supp. 27, 30 (M.D. Fla. 1973);

United States v. Mainello, 345 F. Supp. 863, 873-874 (E.D.

N.Y. 1972).

C. In their third ground for suppression, the defendants

assail the government’s compliance with the requirements

for the submission of progress reports and the return and

sealing of the wiretaps. On January 15, 1973, Judge

Thomas F. Murphy issued the origina! wiretap order with

a termination date of January 30, 1973. Under the provi-

sions of 18 U.S.C. § 2518(8) (a), the government was obliged

to return the recordings and to submit a progress report to

Judge Murphy upon the expiration period of the order. On

January 29, 1973, the government attempted to comply with

the statute but Judge Murphy was not in his chambers.

Thereupon, the agents requested Chief Judge T. Emmct

Clarie to accept the progress report and the recordings for

sealing. Judge Clarie contacted Judge Murphy by telephone

and it was “agreed orally that the Court sitting here in

Hartford should receive this progress report as of today

and should also accept the return of the government as of

today and seal the original tapes as submitted to the Court.”

Transcript of Hearing, Janury 29, 1973, pp. 7-8. Two days

later, Judge Murphy entered an order ratifying the actions

taken by Judge Clarie.

Under these circumstances there is no merit to the de-

fendants’ claim that the wiretap evidence must be sup-

pressed because the return of the progress report and the

recordings was accepted by Judge Clarie rather than Judge

Murphy. Since Judge Murphy was unavailable, it was

9a

proper for the government to seek the assistance of Judge

Clarie in order to file a timely return under 2518(3)(a). Cf.

United States v. Poeta, 455 F.2d 117, 122 (2 Cir.), cert.

denied, 406 U.S. 948 (1972). In any event, even assuming

a procedural error, suppression would be inappropriate.

The integrity of the tapes is not questioned and the defen-

dants have failed to demonstrate any prejudice from the

purported violation of the statute. Cf. United States v.

Chavez, 416 U.S. 562, 574-575 (1974) ; United States v. Fal-

cone, supra; United States v. Ianelli, 477 F.2d 999, 1002 (3

Cir. 1973) ; United States v. Poeta, supra; United States v.

LaGorga, 336 F. Supp. 190, 194 (W.D. Pa. 1971).

D. The defendants further contend they were not served

with timely inventories in violation of 18 U.S.C. 42518

(8)(d). That statute requires that, within a reasonable

time but not later than 90 days after the termination of the

period of the wiretap order “or extension thereof”, the judge

who issued the warrant shall cause an inventory notice to be

served on cach person named in the order and, in the dis-

cretion of the judge, on any other person whose conversa-

tion was intercepted.

Here th. original wiretap order, naming defendants Val-

eriano, Brown and Furman, was issued by Judge Murphy

on January 15, 1973, with a termination date on or before

January 30, 1973. Thus, these defendants argue, the in-

ventories should have been served on or before April 30,

1973. However, on April 25, 1973, in Judge Murphy’s ab-

sence, Judge Newman authorized an extension of the origi-

nal order and the service of the inventories until May 25,

1973. Three days prior to the termination date, Judge

Murphy granted a further extension of the order and set

July 16, 1973 as the final date for the service of the inven-

10a

tories. The government served the notice inventories on

these defendants on July 10, 1973.

Despite defendant’s contentions, it seems clear that the

government complied with the provisions of § 2518(8)(d).

The statute specifically allows postponement of the service

of notice as a result of extensions of the original wiretap

order. Since the defendants received the notice inventories

prior to the deadline date of July 16, 1973, the government

_ was in full compliance with Judge Murphy’s May 22, 1973

order. Cf. United States v. Curreri, 363 F. Supp. 430, 435-

436 (D. Md. 1973). See also United States v. Valeriano,

Magistrate’s Docket No. 2 (D. Conn. November 20, 1973)

(Newman, J.).

E. Defendants Kinsler, Bell, Amendola, and Adams, who

were unnamed in the application and order but whose con-

versations were overheard during the interceptions, also

argue non-compliance with 4 2518(8)(d). The government

concedes that these defendants did not receive full dis-

closure of all relevant documents and materials until July

3, 1974, two months after the indictment in this case was

returned by a grand jury. However, it excuses the delay

in service on the ground that these defendants were “un-

known” at the time the wiretap application and order were

filed and that, as soon as their identities were confirmed by

investigative techniques, they received notice within a rea-

sonable time.

The record before the Court supports the government’s

position. No evidence has been presented to indicate that

defendants Kinsler, Bell, Amendola, and Adams were known

to the government, within the meaning of Title III of the

Act, so as to require disclosure of their names at the time

lla

the wiretap orders were issued and extended by judges of

this District during the first six months of 1973. In fact,

as late as February 27, 1974, Agent Connolly informed the

grand jury investigating this case that the government was

awaiting the results of voice exemplars to establish the

identities of certain persons suspected of being overheard,

and specifically included these defendants within that cate-

gory. Subsequently, Agent Connolly reported to the grand

jury that the voice tests had been concluded and identifica-

tions made. Thereupon an indictment was returned on

May 3, 1974. Under these circumstances, since probable

cause concerning these defendants may properly be found

to be lacking until the spring of 1974, the government was

not derelict in failing to reveal their uames to the judges

who issued and extended the wiretap orders and who estab-

lished dates for the service of rotice inventories. See

United States v. Kahn, 415 U.S. 143, 155 (1974); United

States v. Martinez, 498 F.2d 464, 468 (6 Cir. 1974) ; United

States v. Tortorello, 480 F.2d 764, 775 (2 Cir.), cert. denied,

414 U.S. 866 (1973) ; United States v. Frizzell, 400 F. Supp.

268, 271-272 (E.D. Tenn. 1975) ; United States v. Chiarizio,

supra, 388 F. Supp. at 867-872.

In any event, even assuming these defendants failed to

receive timely inventories, suppression of the evidence

would be unwarranted. Not every failure to comply fully

with the requirem uts of Title III renders the interception

unlawful. United States v. Chavez, supra. Unlike the statu-

tory requirement concerning authorization for a wiretap,

see United States v. Giordano, 416 U.S. 505 (1974), it does

not appear that a post-interception inventory is a central

or functional safeguard under Title III which, if tardily

furnished, mandates suppression. One of the main pur-

12a

poses of the inventory procedure is to provide notice to

those who have had their communications intercepted and

to afford any aggrieved person the opportunity to pursue

an appropriate remedy. Therefore, in the absence of a

showing of prejudice, a failure to serve a timely notice does

not require suppression. United States v. Rizzo, 492 F.2d

443, 447 (2 Cir.), cert. denied, 417 U.S. 944 (1974); United

States v. Wolk, 466 F.2d 1143 (8 Cir. 1972); United States

v. Forlano, 358 F. Supp. 56, 59 (S.D.N.Y. 1973). No preju-

dice has been demonstrated in the instant case. All relevant

information, including a complete transcript of the inter-

cepted conversations, has been made available to the defen-

dants for the purposes of pre-trial motions and defenses at

trial. Cf. United States v. Cirillo, 499 F.2d 872, 882-883

(2 Cir.), cert. denied, 419 U.S. 1056 (1974). Moreover,

there has been no showing that the government deliberately

ignored the notice requirements of the statute or that it

failed to file inventories in order to gain a tactical advan-

tage. Compare United States v. Eastman, 465 F.2d 1057

(3 Cir. 1972). To suppress the wiretap evidence under these

circumstances “would be to unnecessarily undermine and

subvert the legislation.” United States v. LaGorga, supra,

336 F. Supp. at 194. See also United States v. Doolittle, 518

F.2d 500, aff’g 507 F.2d 1368, 1371-1372 (5 Cir. 1975).

F. Defendant Bell moves to suppress items seized in a

search of his premises located at 23 West Street, New

London, Connecticut, on the ground that the warrant was

issued without probable eause for two reasons: (1) the

informant named in the affidavit was not demonstrated to

be “reliable”; and (2) the information obtained from the

informant was “stale.” The contentions are without merit.

The affidavit not only contained a statement that the in-

13a

formant had previously supplied accurate information but

also certified to independent corroboration of the inform-

ant’s story. These factors are sufficient to sustain the con-

stitutional propriety of the issuance of the warrant. Aguiar

v. Texas, supra, 378 U.S. at 114; United States v. Sultan,

supra, 463 F.2d at 1068-1069; United States v. Dunnings,

supra, 425 F.2d at 839. Moreover, the underlying circum-

stances set forth in the affidavit did not suffer from stale-

ness. The affidavit detailed the on-going, illegal business

relationship between defendant Bell and defendant Valeri-

ano, and described the doings of the criminal enterprise

just a few days before the search. While it is true that

probable cause dwindles with the passage of time when

the affidavit refers to an isolated violation, the time ele-

ment becomes less significant “where the affidavit properly

recites facts indicating activity of a protracted and con-

tinuous nature, a course of conduct. ...” United States

v. Johnson, 461 F.2d 285, 287 (10 Cir. 1972) ; see also United

States v. Harris, 482 F.2d 1115, 1119 (3 Cir. 1973); United

States v. Cantor, 328 F. Supp. 561, 568 (E.D. Pa. 1971),

aff’d, 470 F.2d 890 (3 Cir. 1972). Viewed in its entirety, the

affidavit was sufficient to support the issuance of the search

warrant.

C. Defendant Brown moves to suppress her testimony

before the grand jury on October 10, 1973, claiming that at

the time she was not fully apprised of her rights as required

by Miranda v. Arizona, 384 U.S. 436 (1965) and its progeny.

Since the government represents that none of the defen-

dants’ testimony before the grand jury will be used at

trial, the motion is denied, without prejudice.

l4a

Ill. The Discovery Motions

A. With the exception of defendant Valeriano, all the

defendants move for the disclosure of the minutes of the

grand jury. Since the defendants have demonstrated no

“particularized need”, the motions are denied. Rule 6(e),

F. R. Crim. P., United States v. Procter & Gamble Co.,

356 U.S. 677, 688 (1958); United States v. Budzanoski, 462

F.2d 443, 454 (3 Cir. 1972) ; ef. United States v. Youngblood,

379 F.2d 365 (2 Cir. 1967). In addition, the defendants’

request for an im camera inspection of the grand jury

minutes is denied, absent a showing that their Estepa claim

possesses any substance. United States v. Ramirez, 482

F.2d 807, 812 (2 Cir.), cert. denied, 414 U.S. 1070 (1973).

B. The defendants’ motions for bills of particulars are

denied, except that the government shall answer the follow-

ing requests:

Paragraph No. 7 under Count One;

Paragraphs Nos. 7 and 9 under Count Two;

Nos. 3 and 5 under Overt Acts.

C. The defendant Kinsler’s supplemental motion for

discovery and inspection is denied; the defendant’s argu-

ment concerning the authority of the special strike force

attorney to appear and present evidence in this case to the

grand jury is foreclosed by the ruling of the Second Circuit

in In re Supoena of Sersico, 522 F.2d 41 (2 Cir. 1975).

Accordingly, it is ordered as follows:

1. All motions to dismiss are denied.

2. All motions to suppress are denied.

15a

3. The motions for disclosure of grand jury minutes are

denied.

4. All motions for discovery and inspection are denied.

5. The motions for bill of particulars are denied, with

the exceptions noted hereinbefore.

Dated at New Haven, Connecticut, this 17th day of Feb-

ruary, 1976.

Rosert C. Zampano

United States District Judge

l6a

[334]

AFTERNOON SESSION

(In the absence of the jury.)

THE COURT: Are the parties ready to proceed?

MR. CASEY: Yes, your Honor, government is ready.

THE COURT: In the absence of the jury.

MR. CASEY: The government would like to draw to

the Court’s attention in line with the arguments given

earlier by the government the case of U.S. versus Falcone.

THE COURT: I am aware of it.

With respect to the two rulings, the Court will first

rule on the motions directed to the lack of court order for

the dial number recorder or pen register during the period

January 17, ’73 to January 27, ’73.

At the outset, the Court finds no authority for a dis-

missal, even assuming the validity of the defendants’ argu-

ments. Actually, what the procedure would be is a motion

to suppress either all the evidence taken as a result of the

alleged illicit dial number recorder being placed on the

phones, or I suppose it could be argued all the evidence

taken during the period January 17, 1973 to January 27.

1973. ;

Even assuming arguendo that the arguments were

valid, there would not be sufficient grounds to dismiss the

case or the indictment. The government, I suppose, could

attempt to put on a case without the evidence, if it wished,

so what we really have is a motion to suppress, and I so

interpret the motion presented

[335]

prior to the

luncheon hour.

The motion to suppress is denied for two basic reasons:

One, it’s certainly untimely. These materials were available

17a

to the defendants certainly for a period of months, and

maybe even years. Motions to suppress were presented to

this Court and I believe Judge Newman over a period of

two years, and they were ruled upon at great length, and

certainly this ground should have been presented at that

time. But even assuming for the sake of argument that the

motion is to be regarded as not untimely, the Court finds

there is authority to support the government’s position.

While the Second Circuit has not directly ruled on this

point, other courts have. Recently, the Second Circuit dis-

cussed the need of a court order for pen register, not in

combination with a request for a wiretap, but I find that

case is not applicable here. The cases that do support the

government are U.S. versus Falcone, 505 Fed. 2nd, 478 and

the discussion there in 481 through 483. That case seems

to be directly on point. With respect to the precise issue

before this Court. It’s a Third Circuit case in which cert.

was denied. Also, of course, Judge Blumenfeld’s opinion in

U.S. versus Barrone is somewhat close. I am not as famil-

iar with all the facts in that case as in the case before me,

or in the case of U.S. versus Falcone on this issue, but it

does lend weight to government’s position, and in the short

time I had available to me, I found

[336]

nothing to the contrary.

I take it, it goes without saying that it’s not a good

practice, that it is, of course, always more appropriate to

spell out to the issuing judge that a pen register may be

part of the electronic surveillance, but certainly it would

seem to me a fortiori that if a judge issues authority to the

monitoring agents to listen to a telephone conversation

during certain periods of time, the court would automati-

18a

cally grant a request to obtain the telephone numbers of

outgoing calls without more.

So, as the government says, it does seem to be a case

where the lesser is included in the greater, and I have to

agree with the caveat that the government should really

spell these matters out for the issuing judge so that if noth-

ing else, the court will avoid this type of motion.

MR. CASEY: Not that it is germane to this point, but

it is now the practice of the government to get both orders

for both—

THE COURT: I know. When I am the issuing judge

of late, I recall distinctly the government has asked for

both. This case does go back a few years, so your exceptions

are noted. The point is preserved for another forum, if

that should become necessary.

MR. LASALA: I would like to make one remark for

the record. Your Honor has ruled on that. Certainly, there

could be argument, but since your Honor has ruled, I

assume argument

[337]

would serve no purpose.

For the record, since 1973, I have been involved in this

case and I have paid attention to all the discovery and vir-

tually the piles and piles of motions and papers that have

been filed, and your Honor’s reference to an untimely

attack, I can state unequivocally that through all the mo-

tions and all the responses thereto, and all the disclosures,

the government has taken the position that there were two

separate orders: one for interception and one for pen regis-

ter, and I would state it was not until the events of yester-

day that I was aware that there was a pen register on my

19a

client’s phone from the 17th to the 27th, so consequently,

I don’t feel that it was an untimely motion on my part,

because I had no knowledge before that was the case, based

upon what the government put forth in its disclosure.

THE COURT: This has been practically an open file

case and I cannot and will not accept that explanation.

Judge Murphy’s order was certainly available. The logs,

the tapes and the various other materials were available to

counsel, and it’s up to counsel for the defendant to prepa:

its case—their case thoroughly and not rely on what migiii

have been assumed.

But, in any event, your comments are noted for the

record and will be available to another forum to weigh,

but I, as the trial judge, just cannot accept that explana-

tion.

MR. FRECHETTE: Would your Honor be kind

enough to note the same comment by me? The first time

I ever heard of this

[338]

was yesterday morning.

THE COURT: Yes. I hasten to add that I do not—I do

not wish my comments to reflect on credibility of counsel.

I believe perhaps the first time you heard about it was yes-

terday. All I am saying is that diligent investigation and

preparation would have brought these things to your at-

tention earlier over the past two years if you took ad-

vantage of the materials that were available to you during

that period of time.

Now, with respect to the transcripts, I am going to al-

low the government to use the transcripts, with cautionary

instructions to the jury, but at this point I am not goi)

to permit the transcripts into evidence. The government

may renew its request at a later time. The transcripts will

20a

be available to the jury. There has been no question about

their correctness as transcriptions of what was said, but |

think for the time being, since clearly the transcripts are

only an aid to the jury, that the Court will only permit the

transcripts to be used for that purpose and not as full ex-

hibits. However, that’s without prejudice.

Bring in the jury.