Petition — Scibelli v. United States

Supreme Court, U. &

-e FILED |

MAR 2 1977

ge CLERK

In the . —

Supreme Court of the United States

Octoser Term, 1976

No. 26°1212

FRANCESCO SCIBELLI,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JoszePH J. Bauiiro

Joan C. Scpmmt

One Center Plaza,

Boston, Massachusetts 02108

(617) 227-5822

Attorneys for the Petitioner

| $$$ _______—_

Blanchard Press, Inc., Boston, Mass. — Law Printers

nO

TABLE OF CONTENTS

Page

od oo ae de ie eae 1

EEE ae RE evar Ce nT ee 2

Question Presented for Review ..................... 2

I Ss ns fs Ssh barns oes bes ee 2

ee a. ew ak bu ewe uwaceee ce 2

Reasons for Granting the Writ,

A. The Opinion of the Court of Appeals for the

First Circuit Is Contrary to the Intent of Con-

gress in Passing 18 U.S.C. § 2518(1)(c) and

Eg ea oot ce nahh awk Ge ee ree Gees 4

B. There Appears To Be a Wide Divergence of

Opinion Among the Several Circuit Courts of

Appeal Concerning the Extent to Which the

Government Must Aver Its Exhaustion of Nor-

mal Investigative Techniques and the Extent

to Which It Actually Must Pursue Alternative

Means to Electronic Surveillance... ..s—s—s«i«w‘iw“ an 7

IS gti t ot i ee as ko Ne 8

Appendix A: Opinion of the United States Court of

Appeals for the First Cireuit........ 9

Appendix B: United States Code, Title 18, Sections 2,

i OF Ee 24

TaBLE or AUTHORITIES

Cases

United States v. Armosida, 515 F.2d 29 (3rd Cir. 1975),

cert. denied, 423 U.S. 858 (1976) ................. 8

United States v. Giordano, 416 U.S. 505 (1974) 6

United States v. Kahn, 415 U.S. 143 (1974) ........ 4,

6

United States v. Kalustian, 519 F.2d 585 (9th Cir. 1976) 7

United States v. Verto, 533 F.2d 838 (3rd Cir. 1976) .. 8

ii Table of Contents

Statutory Provisions

United States Code, Title 18,

a va ew tea Mad

Chapter 19, Section S71 .........................

ts SI Ves Nodes ducueeedews

Chapter 119, Section 2518 ............. 2, 3, 4, 5, 7, 8

Miscellaneous

S. Rep. No. 1097, 90th Cong., 2d Sess., U.S. Code Cong.

es, Se EE 5s. c's oss Sabo s ceed ead ences

In the

Supreme Court of the United States

Octoser Term, 1976

No.

FRANCESCO SCIBELLI,

PETITIONER,

Vv.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

- FOR THE FIRST CIRCUIT

Petitioner Francesco Scibelli respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the First Circuit

entered on January 31, 1977.

Opinion Below

The opinion of the Court of Appeals for the First Cireuit

has not yet been published in the official reports. A copy of

the opinion is attached hereto as Appendix A. (App. 9).

2

Jurisdiction

_ The judgment sought to be reviewed was entered by the

United States Court of Appeals for the First Circuit on

January 31, 1977. No petition for rehearing was filed

because of the limitation of such petitions to new matters

under Local Rule 15 of the First Circuit.

Jurisdiction is conferred upon this Court by 28 U.S.C.

§ 1254(1) to review the judgment of the Court of Appeals

by writ of certiorari.

Question Presented for Review

1. Whether or not the Government failed to comply with

the relevant provisions of 18 U.S.C. § 2518(1)(¢), requiring

that the affidavits, applications and orders used to secure

permission for electronic surveillances set forth with suffi-

cient particularity that investigative procedure, other than

electronic surveillances, were tried and failed or reason-

ably appeared unlikely to succeed?

Statutes Involved

18 U.S.C. §§ 2, 371, 1955 and 2518 are involved. The text of

those sections is attached hereto as Appendix B. (App. 24).

Statement of the Case

The petitioner was charged and convicted with others of

operating an illegal gambling business and with conspiracy

to commit the substantive offense in violation of 18 U.S.C.

§§ 1955, 2, and 371. In the course of a six-month investi-

gation into gambling operations in western Massachusetts,

the F.B.I. derived evidence against the petitioner (and the

other co-defendants) from three periods of electronic sur-

3

veillance. The petitioner’s pre-trial motion to suppress this

evidence was denied after an evidentiary hearing. All

defendants, including the petitioner, waived trial by jury

and agreed to be tried by the Court on the basis of stipu-

lated facts and opinions. The petitioner, as well as the other

defendants, specifically reserved ‘‘their challenge to the

validity of the court orders herein discussed, their challenge

to the manner in which the said court orders were imple-

mented, or any other matter heretofore raised on motion.’’

(App. 11).

The three affidavits in support of the Government’s ap-

plications for wiretap orders contained the following con-

clusionary language:

‘‘normal investigative procedures have failed to gather

evidence necessary to sustain prosecution for viola-

tions of these offenses and appear unlikely to succeed

if tried further.’’ (App. 12)

However, during cross-examination, F.B.I. Special Agent

Ringgold, who was in charge of the investigation, admitted

that contrary to the allegations contained in the affidavits,

he did not consider discussing with his informants the

possibility of their being given immunity, of their being

placed in protective custody, or of their being relocated

with a new identity in return for testifying. (App. 18)

The petitioner’s appeal to the United States Court of

Appeals for the First Circuit concerned itself with the sole

issue of whether the Trial Court erred in denying the

petitioner’s motion to suppress the evidence acquired dur-

ing the three electronic surveillances for the reason that the

Government failed to comply with 18 U.S.C. § 2518(1)(c),

which requires that an application for a wiretap order

include ‘‘a full and complete statement as to whether or

4

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.’’

Reasons for Granting the Writ

A. Tue Opryion or THe Court or AppEALs For THE Fist

Crrcurt Is Contrary To THE INTENT or CONGRESS IN

Passtne 18 U.S.C. § 2518(1)(c) anv (3)(c).

18 U.S.C. § 2518(1)(c) and 2518(3)(c) require an appli-

cation for authority to make any wire interception to state,

and the judge authorizing any such wire interception to find,

thet ‘‘normal investigative procedures’’ have either failed

or appeal unlikely to succeed. In United States v. Kahn,

415 U.S. 143 (1974) the Court makes reference at page 151

to Sena.e Report No. 1097 of the 90th Congress, which

contains the legislative history of the aforesaid provisions

and explains the Congressional intent behind them.

With respect to § 2518(1)(c) the Senate Report indicated

that

‘*{s]ubparagraph (c) requires a full and complete

statement as to whether or not normal investigative

procedures have been tried and have failed or why

these are unlikely to succeed if tried, or to be too

dangerous. This requirement is patterned after tra-

ditional search warrant practice and present English

procedure in the issuance of warrants to wiretap by

the Home Secretary. Compare Report of the Commit-

tee of Councillors Appointed to Inquire into the Inter-

ception of Communication, par. 64 (1957); Read v.

Case, 4 Conn. 166 (1822). The judgment would involve

a consideration of all the facts and circumstances.

Normal investigative procedure would include, for ex-

ample, standard visual or aural surveillance techniques

5

by law enforcement officers, general questioning or in-

terrogation under an immunity grant, use of regular

search warrants, and the infiltration or conspiratorial

groups by undercover agents or informants. Merely

because a normal investigative technique is theoreti-

cally possible, it does not follow that it is likely. See

Giancana v. United States, 353 F.2d 921 (7th) certio-

rari denied, 86 S. Ct. 437, 382 U.S. 959 (1965); New

York v. Saperstewm, 2 N.Y. 2d 210, 140 N.E. 2d 252

(1957). What the provision envisions is that the

showing be tested in a practical and common-sense

fashion. Compare United States v. Ventresca, 85 S. Ct.

741, 380 U.S. 102 (1965).’’

S. Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.

Code Cong. & Admin. News, 2190.

Section 2518(3) (c) authorizes a Federal judge to enter

an ex parte order authorizing or approving the intercep-

tion of wire or oral communications. What the judge must

determine before he can issue an order, based on the facts

submitted to him, is specified in subparagraphs (a) through

(d). The legislative history then makes the following obser-

vation with respect to these requirements:

‘‘Together they are intended to meet the test of the

Constitution that electronic surveillance techniques be

used only under the most precise and discriminate cir-

cumstances, which fully comply with the requirement

of particularity (Berger v. New York, 87 S. Ct. 1873,

388 U.S. 41, 58-60 (1967); Katz v. United States, 88 S.

Ct. 507, 389 U.S. 347, 355-356 (1967).’’

S. Rep. No. 1079, 90th Cong., 2d Sess., 101, U.S. Code

Cong. & Admin. News, 1968, p. 2112 at 2191.

It is plain that Title III of the Omnibus Crime Control and

Safe Streets Act of 1968 was the studied reaction of Con-

6

gress to an awakening realization that our form of govern-

ment will not permit an intrusion by electronic devices into

the privacy of our citizens without the most careful judicial

scrutiny and supervision. Although recognizing that the

sophistication of modern-day crime and the employment

by those who seek to break the law of telephonic communica-

tion requires that law enforcement be given an equally ef-

fective tool, with which to uncover such crime, Congress

nonetheless displayed its concern with potential abuse by

insisting that every application for electronic surveillance

contain :

‘*A full and complete statement 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) (ce) (1968),

and that a Court order permitting electronic surveillance

may be authorized only if a United States District Court

Judge or a United States Court of Appeals Judge finds

that

‘*‘Normal investigative procedures have been tried and

have failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous.”’

18 U.S.C. 2518(3) (ce) (1968).

In the opinion below, the Court of Appeals, quoting

United States v. Kahn, supra and United States v. Giordano,

416 U.S. 506 (1974), observed that ‘‘ ‘ the purpose of the

statutory language is simply designed to assure that wire-

tapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime’,’’

.. *fand that the Section safeguards against wiretapping

‘procedures [being] routinely employed as the initial step

in the criminal investigation’.’’

(App. 16)

7

In footnote 5 of its opinion the Court below dismissed

the petitioner’s contention that Agent Ringgold’s affidavits

were insufficient because he had failed to discuss immunity,

failed to discuss the possibility of protective custody, and

failed to discuss relocation with his informants, stating that

‘*to limit the Government’s investigation by requiring it to

use every available incentive to induce informants to testify

prior to seeking a wiretap order would constitute unwarrant-

ed Court interference with legitimate investigative discre-

tion, and would effectively foreclose electronic surveillance

until every other imaginable method of investigation has

been successfully attempted.’’ (App. 18).

Contrary to the opinion of the Court of Appeals, what

Sections 2518(1) (c) and (3) (c) require is not an actual at-

tempt at every other possible investigative technique, but

rather a detailed statement as to why certain normal inves-

tigative techniques are inappropriate and impossible for the

particular matter under investigation. Only then can the

judge before whom the application is brought make an

independent and considered judgment that a wiretap is

necessary, and not merely the path of least resistance for

the Government.

B. Tuere Appears TO Be a Wive Divercence or Opinion

AMoNG THE SEvERAL Circuits oF ApPpEAL CONCERNING

THE Extent To WHICH THE GovERNMENT Must AvVER

ExHavustTion or NorMAu INVESTIGATIVE TECHNIQUES AND

tHE Extent to Wuicu Ir Acruatty Must Pursve

ALTERNATIVE Means To ELEctTRONIC SURVEILLANCE.

In United States v. Kalustian, 529 F.2d 585 (9th Cir.

1976), the Court of Appeals for the Ninth Circuit estab-

lished what probably represents the most rigid standards

that must be followed in order that an affidavit pass mus-

ter, requiring that

8

‘*the Government must (1) inform him of every tech-

nique which is customarily used in police work in inves-

tigating the type of crime involved, and (2) explain

why each of them has either been unsuccessful or is

too dengerous or unlikely to succeed because of the

particular circumstances of that case.’’

At the opposite end of the spectrum is the more ‘‘prag-

matic’’ approach represented by the decisions of the Third

Circuit in United States v. Armosida, 515 F.2d 29 (3rd

Cir. 1975) cert. denied 423 U.S. 858 (1976); and more

recently in United States v. Vento, 533 F.2d 838 (3rd Cir.

1976.)

To secure the right of the individual citizen to be free

from unwarranted and unjustified wiretap intrusions is the

obvious purpose of 18 U.S.C. 2518. A determination by this

Court as to what particulars must be presented to a judge

before a wiretap order is made is necessary to ensure

uniformity in the application of 18 U.S.C. 2518(1) (c) and

(3) (c) among the several Circuits.

Conclusion

For the foregoing reasons, the petition for writ of

certiorari should be granted: to determine whether the

opinion of the Court of Appeals for the First Circuit failed

to take into account the intent of Congress in passing 18

U.S.C. 2518(1) (ce) and (3) (c); and to resolve inconsis-

tencies between the several Circuit Courts of Appeals.

Respectfully submitted,

JosEPH J. BaLLrro

Joan C, Scomipt

One Center Plaza,

Boston, Massachusetts 02108

Attorneys for the Petitioner

(617) 227-5822

9

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 76-1214

UNITED STATES OF AMERICA,

APPELLEE,

Vv.

FRANCESCO SCIBELLI,

DEFENDANT, APPELLANT.

No. 76-1215

UNITED STATES OF AMERICA,

APPELLEE,

v.

ANDREW TORINO,

DEFENDANT, APPELLANT,

No. 76-1216

UNITED STATES OF AMERICA,

APPELLEE,

v.

DANIEL SACCO,

DEFENDANT, APPELLANT.

No. 76-1217

UNITED STATES OF AMERICA,

APPELLEE,

v.

ADOLFO BRUNO,

DEFENDANT, APPELLANT,

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Franx H. Freepman, U.S. District Judge]

10

Befcere Corrin, Chief Judge,

McEnter anp CaMPBELL, Circuit Judges.

Joseph J. Balliro for Francesco Scibelli, appellant.

Jay M. Forgotson for Andrew Torino, appellant.

James M. Pool, by appointment of the Court, for Daniel Sacco,

appellant.

John E. Barrett, with whom Jerry E. Benezra was on brief, for

Adolfo Bruno, appellant.

Edward L. Donnellan, with whom Keyes, Donnellan and Dana-

her was on brief, for Lawrence Stone, appellant.

Robert H. Abrams, by appointment of the Court, for Joseph

Albano, appellant.

Michael O. Jennings, by appointment of the Court, for Rocco

Albano, appellant in case no. 76-1221, and for Anthony Maloni in

ease no. 76-1220.

George F. Kelly, Attorney, United States Department of Justice,

with whom James N. Gabriel, United States Attorney, and Gerald

E. McDowell, Attorney, United States Department of Justice,

were on brief, for appellee.

January 31, 1977

CaMPBELL, Circuit Judge. The two-count indictment in

this case charged appellants, eight in number, and two

others, with operating an illegal gambling business and

with conspiracy to commit the substantive offense in vio-

lation of 18 U.S.C. §§ 1955! and 2.2 The indictment arose

out of a six-month investigation by the FBI and the Massa-

chusetts State Police in 1974 into gambling operations in

western Massachusetts. After denial of pre-trial defense

motions to suppress evidence derived from three periods

——————

1 Section 1955 provides in pertinent part:

‘* Whoever conducts, finances, manages, supervises, 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.”’

2 Section 2, entitled ‘‘Principals’’, provides:

‘*(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or procures

its commission, is punishable as a principal.

‘“(b) Whoever willfully causes an act to be done which if

directly performed by him or another would be an offense

against the United States, is punishable as a principal.’’

11

of electronic surveillance, defendants waived jury trial,

and the Government, counsel for the defendants and the

defendants themselves agreed to a ‘‘Stipulation’’ of ‘‘facts

and opinions’’ which ‘‘together with such physical and

testimonial evidence as may be offered and admitted into

evidence shall constitute the evidence upon which the issues

of fact and law in this case are to be determined, subject

however, to those objections as are enumerated herein.’’

Defendants specifically reserved ‘‘their challenge to the

validity of the court orders herein discussed, their chal-

lenge to the manner in which the said court orders were

implemented, or any other matter heretofore raised on

motion.’’ Based on the Stipulation, the district court found

all appellants guilty as charged on both counts. Apart

from the Stipulation, the record in this case contains the

Government’s three applications for wiretap orders, the

defense motions to suppress, and the transcript of the

pre-trial hearing on those motions.

The arguments upon appeal may be conveniently divided

into two groups. Six® of the eight appellants argue that

the district court erred in denying defense motions to sup-

press the evidence derived from the Government’s elec-

tronic surveillance. This argument is based on the conten-

tion that the Government failed to comply with 18 U.S.C.

§ 2518(1)(¢c), which requires the Government in making

application for a wiretap order to include ‘‘a full and com-

plete statement as to whether or not other investigative

procedures have been tried and failed or why they reason-

ably appear to be unlikely to succeed if tried or to be too

dangerous.’’ The remaining two appellants* argue solely

that the evidence in the Stipulation implicating them was

insufficient to convict.

3 Francesco Scibelli, Andrew Torino, Daniel Sacco, Joseph Al-

bano, Anthony Maloni, and Rocco Albano.

* Adolfo Bruno and Lawrence Stone.

12

I

A brief review of the facts surrounding the three orders

of the district court approving electronic surveillance will

help to clarify our discussions of appellants’ argument that

the Government did not comply with 18 U.S.C. § 2518

(1)(c). FBI Special Agent Ringgold testified at the hear-

ing on the motions to suppress that he began investigating

gambling operations in western Massachusetts in June,

1974. He said that he first suggested to his supervisors

the need for electronic surveillance four to six weeks later.

On October 15, 1974, the district court issued an order,

E.B.D. 74-224, on application from the Government, direct-

ing interception of wire communications on two telephone

numbers in western Massachusetts for a period of twenty-

one days. The Government’s application was supported by

a 78-page affidavit of Agent Ringgold. In pertinent part,

the affidavit stated in conclusory terms that ‘‘Normal in-

vestigative procedures have failed to gather evidence neces-

sary to sustain prosecution for violations of these offenses

and appear unlikely to succeed if tried further.’’ Agent

Ringgold stated later in the affidavit more specifically

why normal investigative procedures appeared unlikely to

succeed.

‘*While execution of search warrants involving indi-

viduals and locations relevant to this investigation

may well produce gambling related paraphernalia, it

is my experience that gambling records are often

sketchy in nature, often contain code names, and rarely

establish a provable connection between all the par-

ticipants in the illegal gambling business. None of

the informants cited above is willing to testify as to

information they have imparted for fear of their per-

sonal safety. ... [W]ith respect to [A], immunity

has been tried before the Grand Jury currently in-

vestigating organized gambling in the Western Massa-

13

chusetts area[,| ... [and his] testimony is not likely

to result in the indictment of any other gamblers... .

[I]t is apparent from the conduct of the subjects

that meaningful admissions or evidence of criminal

associations and the roles played by the various mem-

bers of this organized gambling business are not likely

to be secured by a continuation of this form of in-

vestigation. In addition, the repeated presence of...

undercover individuals may well reveal the fact that

the subjects are under law enforcement scrutiny. For

example, it is apparent that the subjects continually

utilize the table in the right rear area of the lounge

on a consistent basis in order to hold subdued con-

versation. ...[T] oll record information, while valu-

able in providing circumstantial proof that certain

known bookmakers and bettors are in regular tele-

phone contact, they do [sic] not establish the actual

identify of the participants[,] ... provide any evi-

dence whatsoever as to the contents of the conversa-

tion[,| ... for] reveal contact ... among bookmakers

and bettors residing within the same dialing area.’’

The district court issued a second wiretap order, E.B.D.

74-275, on November 14, 1974, directing interception of

wiretap communications on four new numbers in western

Massachusetts for a twenty-one day period. The support-

ing affidavit, which incorporated by reference the first

affidavit, again represented that ‘‘Normal investigative

procedures have failed to gather evidence svfficient to

sustain prosecution against all of the individuals believed

to be committing these offenses’’, and went on to detail

the need for electronic surveillance. Agent Ringgold ex-

plained that surveillance by means of a listening device

planted in one location was ‘‘complicated by extraneous

noise[,] . . . caused by a rather loud band... .’’; he

alleged facts tending to show ‘‘that the subjects of this

14

investigation are extremely sensitive to what they con-

sider to be law enforcement scrutiny’’; and he stated that

‘‘(t}he informants cited in connection with this investi-

gation continue to be unwilling to testify.’’

The third order for electronic surveillance, E.B.D. 74-

295, directed interception of wire communications on two

new numbers and was issued by the district court on

December 10, 1974, for a period of twenty days. The

supporting affidavit repeated that ‘‘Normal investigatory

procedures have failed to gather evidence sufficient to

sustain prosecution against all of the individuals believed

to be committing these offenses.’’ Agent Ringgold came

to this conclusion though he was ‘‘familiar with all the

contents of all the tape recordings and contemporaneous

log entries resulting from [the prior] interceptions ... .”’

and had been informed by the other state and federal

investigators ‘‘as to any record checks, physical surveil-

lances or other information which they have acquired from

their direct participation in this investigation.’’ The affi-

davit also stated again that ‘‘{i]nformants knowledgeable

of this operation continue to be unwilling to testify for

fear of their personal safety.’’

Appellants claim that each of the Government’s appli-

cations failed to satisfy the requirement of 18 U.S.C.

§ 2518(1)(c). That section requires that all applications

include

‘*a full and complete statement 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’’.

Section 2518(3)(c) of Title 18 attempts to assure that

this requirement will be satisfied by imposing upon the

district judge reviewing the application an independent

obligation to

15

‘‘determin[e] on the basis of the facts submitted by

the applicant that ... normal investigative procedures

have been tried and have failed or reasonably appear

to be unlikely to succeed if tried or to be too

dangerous’’.

The judge’s determination is, of course, reviewable on

appeal, by which time the wiretap will normally have

been authorized, the evidence gathered, and a conviction

obtained. An appeals court’s role is not to make a de

novo determination of sufficieney as if it were a district

judge, but to decide if the facts set forth in the appli-

cation were minimally adequate to support the determi-

nation that was made. United States v. DiMuro, 540 F.2d

503, 510-11 (1st Cir. 1976) cert. denied, 45 U.S.L.W. 3463

(U.S., Jan. 10, 1977). In re Dunn, 507 F.2d 195, 197

(1st Cir. 1974); accord, United States v. Kalustian, 529

F.2d 585, 589 (9th Cir. 1975); United States v. Kahn,

471 F.2d 191, 200-01 (7th Cir. 1972) (Stevens, J., con-

curring in part and dissenting in part), rev’d on other

grounds, 415 U.S. 143 (1974). As in reviewing the validity

of a search warrant, the inquiry is whether the affidavit

provided a sufficient basis for a finding of probable cause.

See United States v. Falcone, 505 F.2d 478, 481 (3d Cir.

1974), cert. denied, 420 U.S. 955 (1975).

And in determining the sufficiency of the application a

reviewing court must test it in a practical and common-

sense manner. The legislative history makes clear that

section 2518(1)(c) is not designed to force the Govern-

ment to have exhausted all ‘‘other investigative proce-

dures’’.

‘‘The judgment [of the district judge] would involve

a consideration of all the facts and circumstances.

Normal investigative procedure would include, for ex-

ample, standard visual or aural surveillance techniques

by law enforcement officers, general questioning or in-

we

16

terrogation under an immunity grant, use of regular

search warrants, and the infiltration of conspiratorial

groups by undercover agents or informants. Merely

because a normal investigative technique is theoreti-

cally possible, it does not follow that it is likely.

What the provision envisioris is that the showing be

tested in a practical and commonsense fashion.’’

S. Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S. Code

Cong. & Admin. News 2190 (citations omitted). The Su-

preme Court has observed that the purpose of the statu-

tory language ‘‘is simply designed to assure that wire-

tapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime’’,

United States v. Kahn, 415 U.S. 143, 153 n. 12 (1974),

and that the section safeguards against wiretapping ‘‘pro-

cedures [being] routinely employed as the initial step in

criminal investigation.’’? United States v. Giordano, 416

U.S. 505, 515 (1974). The fifth circuit has said,

‘‘(T]he purpose of the requirement in section 2518

(1)(e) is not to foreclose electronic surveillance until

every other imaginable method of investigation has

been unsuccessfully attempted, but simply to inform

the issuing judge of the difficulties involved in the use

of conventional techniques. ”’

United States v. Pacheco, 489 F.2d 554, 565 (1974), cert.

denied, 421 U.S. 909 (1975). Acccrd, United States v. Vento,

533 F.2d 838, 849 (3d Cir. 1976); United States v. Smith,

519 F.2d 516, 518 (9th Cir. 1975); United States v. Robert-

son, 504 F.2d 289, 293 (5th Cir. 1974), cert. denied, 421

U.S. 913 (1975).

Viewing the applications in light of these considerations,

we find no error in the district court’s refusal to suppress

the wiretap evidence. Appellants contend that the affidavits

of Agent Ringgold supporting the applications for the wire-

tap orders failed to give the necessary ‘‘full and complete

17

statement’’ as they contain only bare, conclusory statements

based on the affiant’s experience. See United States v.

DiMuro, supra. It is true that in his initial affidavit Agent

Ringgold referred to his investigatory experience, stating

that execution of a search warrant would likely be unavail-

ing, that toll record information would not provide the

hard information necessary to the Government’s case, and

that immunized gamblers ‘‘are extremely reluctant and

unwilling to implicate other bookmaking associates ... .’’

If this were all the affidavit had to offer in support of

its conclusion that ‘‘normal investigative procedures .. .

reasonably appear to be unlikely to succeed if tried... .’’,

the question whether the affidavit met the statutory require-

ment would be closer; in DiMuro we expressed some un-

easiness with such statements alone, fearing they might

amount to little more than ‘‘mere conclusions based solely

on past experience that gambling conspiracies are ‘tough

to crack’... .’’ Jd. On the other hand, we earlier said,

and we adhere to this view, that in deciding whether an

application for a wiretap satisfied the statutory require-

ment, the court may ‘‘consider the nature of the alleged

crimes.’’? In re Dunn, supra, 507 F.2d at 197. A large-scale

gambling conspiracy may by its structure and modus

operandi give rise to a reasonable inference that ‘‘other

investigative procedures ... reasonably appear to be un-

likely to sueceed if tried.’’

But we need not decide whether Agent Ringgold’s sur-

mises based on investigatory experience would have been

enough, since Agent Ringgold’s affidavit in E.B.D. 74-224

did not stop there; the agent went on to specify the prob-

lems with using normal investigative procedures in that

investigation. Ringgold stated that none of the several

informants was willing to testify and observed that the

one informant who had testified with immunity was unable

or unwilling to give information to the grand jury that

18

would lead to the indictment of other individuals. The

affidavit also explained why continued physical surveillance

would provide only cumulative evidence. The ‘‘conduct”’

of the subjects under investigation, according to Ringgold,

led him to believe that normal surveillance techniques

would not produce ‘‘meaningful admissions or evidence

of criminal associations and the roles played by various

members of this organized gambling business ....’’ This

conclusion was tied specifically to the physical layout of

the premises where most of the personal transactions

between the subjects took place. Testing the affidavit ‘‘in

a practical and commonsense fashion’’, we have no doubt

that it was adequately specific in explaining why continued

physical surveillance would not lead to substantial new

evidence. Under the first application, therefore, the district

court was fully justified in concluding that ‘‘normal inves-

tigative procedures . . . reasonably appear to be unlikely

to succeed... .’’®

° Appellant Scibelli argues that Agent Ringgold’s testimony at

the suppression hearing to the effect that he did not consider dis-

cussing with his informants the possibility of being given immun-

ity, being placed in protective custody, or being related with a

new identity in return for testifying because of his experience

that all informants will resist testifying in gambling cases under-

scores the Government’s failure to consider other investigative

procedures prior to applying for the first wiretap order. We dis-

agree. Agent Ringgold stated at the hearing, as he swore in the

affidavit, that he had discussed with each informant, the possibility

of testifying, and each indicated an unwillingness to do so. From

their responses, Agent Ringgold was entitled to conclude that it

would be futile to pursue with them the possibility of immunity,

protective custody and relocation. To limit the Government’s

investigation by requiring it to use every available incentive to

induce informants to testify prior to seeking a wiretap order would

“‘constitute unwarranted court interference with legitimate investi-

gative diseretion’’, United States vy. Robertson, 504 F.2d 289, 293

(5th Cir. 1974), cert. denied, 421 U.S. 913 (1975), and would

effectively ‘‘foreclose electronic surveillance until every other

imaginable method of investigation has been successfully attempted

....'', United States vy. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974),

cert. denied, 421 U.S. 909 (1975). The Government, moreover,

19

The two subsequent applications had also, of course, to

meet the requirement of section 2518(1)(c), but incorpo-

ration of the affidavit in E.B.D. 74-224 in the latter two

applications went a long way towards meeting the require-

ment; and each of the two subsequent applications alleges

sufficient additional facts showing the continuing failure

of normal investigative procedures to satisfy the standard

of section 2518(1)(c). The affidavit in E.B.D. 74-275 re-

vealed the unsuccesful attempt to gather evidence by means

of a listening device, indicated that several targets of the

investigation were becoming suspicious of law enforcement

scrutiny, and reiterated that the informants remained un-

willing to testify. In the affidavit supporting the third

application, in addition to incorporating his previous two

affidavits and repeating that the informants were unwilling

to testify, Agent Ringgold stated that he was familiar with

the results of the two periods of surveillance and that he

had been informed of information acquired by other inves-

tigators, and he still concluded that electronic surveillance

was necessary. Considering together all factors mentioned

in each affidavit, each was sufficient for the district court

to find it met the requirement of section 2518(1)(c).°

would have been justified in concluding that the forced testimony

of informants or individual bettors might not have been sufficient

to reveal the scope of this ‘‘large-scale’’ betting operation. See

United States v. Vento, 533 F.2d 838, 849-50 (3d Cir. 1976). Agent

Ringgold’s statement in the first affidavit that according to the

United States Attorney directing the grand jury’s investigation

into the gambling operation, the testimony of one informant before

the grand jury was ‘‘not likely to result in the indictment of any

other gamblers in the Western Massachusetts area’’ supports the

Government’s decision not to rely solely on such testimony to fur-

ther its investigation.

6 Appellants Scibelli and Torino included in their statements of

the issues two additional challenges to the sufficiency of the wiretap

applications, but did not develop these issues in_ their briefs.

Neither has merit. Their claim that by failing to disclose in his

affidavit a payment of $50 to an informer, Agent Ringgold mis-

represented an essential fact plaintiff falls short of affording a

ground for overturning the wiretap order: the fact of the payment

20

Il

Appellants Bruno and Stone attack their convictions

solely on the ground that the evidence against them con-

tained in the Stipulation was insufficient to convict.

The evidence against Bruno contained in the Stipulation

included the following:

‘* Adolfo Bruno — Interceptions over [one of the num-

bers wiretapped] show defendant Adolfo Bruno dis-

cussing the sports line with defendant Daniel Sacco

and indicated that he was formerly ‘using’ a particu-

lar game at ‘121/2’ but was now using it at ‘13’.

Defendant Daniel Sacco also requested that defendant

Bruno provide him with ten sports line sheets that

had been filled in with line information.’’

There was also evidence from phone toll records of 51

phone calls over a three-month period made from two

phones to which Bruno had access, 29 of which calls were

placed from his residence phone, to the J.K. Sports Jour-

nal, which ‘‘provided a recording of up-to-date sports

results.’’? The Stipulation included an ‘‘Early Analysis’’

by FBI Agent Harker, who the parties agreed was ‘‘quali-

fied to render an opinion concerning bookmaking based

upon the physical evidence, tape recordings, and stipu-

lations ....’’ He deseribed the term ‘‘line’’ as a ‘‘figure

which is picked [by a bookmaker] which, it is believed,

will get people to bet on both sides of the game. ... [A]s

the betting starts out at the beginning of the week gener-

ally all bookmakers in all parts of the country start with

the same line information. Then the bookmaker is free

to alter that line as he sees fit.’’ Agent Harker coneluded

had little obvious bearing on the statutory requirements for obtain-

ing a wiretap, and Agent Ringgold plausibly testified that he did

not volunteer the information in his affidavit because he thought

it to be irrelevant. Compare United States vy. Belculfine, 508 F.2d

58 (1st Cir. 1974). Their second claim, that the application did not

adequately state the particular offenses under investigation, is

simply incorrect.

21

that Bruno functioned as a ‘‘bookmake[r] who utilized

the office as a source of line information and as an actual

or potential outlet for lay-off wagers.’’ He also gave his

opinion that Bruno ‘‘provided a valuable service to the

gambling business of Daniel Sacco by providing him with

copies of line sheets which were apparently being used by

him and other bookmakers.’’

Considered ‘‘in the light most favorable to the govern-

ment, together with all legitimate inferences to be drawn

therefrom’’, United States v. Doran, 483 F.2d 369, 372

(1st Cir. 1973), cert. denied, 416 U.S. 906 (1974), the evi-

dence against Bruno was sufficient to convict. Evidence

of the discussion between Bruno and Sacco indicating that

Bruno had decided to ‘‘use’’ a higher ‘‘line’’ on ‘‘a par-

ticular game’’ is convincing proof that Bruno was a book-

maker, and this sharing of ‘‘line’’ information suggests

his connection with the larger gambling operation. The

request from Sacco for sports line sheets is additional

evidence of Bruno’s participation in the overall operation.

The evidence in the Stipulation, therefore, is adequate to

prove the Government’s case. ‘‘The exchange of line and

other gambling information are necessary and useful func-

tions in a gambling enterprise and persons who carry out

such functions have been held to be engaged in ‘an illegal

gambling business.’ ’’ United States v. DiMuro, supra, 540

F.2d at 508, and cases cited.’

7 Bruno argues that Agent Harker’s opinion that Bruno ‘‘uti-

lized the office as a source of line information and as an actual

or potential outlet for lay-off wagers’’ and his conclusion that

Bruno “‘provided a valuable service to the gambling business of

Daniel Sacco by providing him with copies of line sheets which

were apparently being used by him and other bookmakers’’ were

unsupported by the evidence in the Stipulation and therefore

inadmissible. See Gray v. Shell Oil Co., 469 F.2d 742, 750 (9th

Cir. 1972), cert. denied, 412 U.S. 943 (1973). Bruno seems correct

that the evidence does not afford a factual basis for the expert’s

opinion that he ‘‘ utilized the office’’ in his bookmaking transactions.

On the other hand, Agent Harker’s conclusion that Bruno aided

22

The evidence against appellant Stone is as follows:

‘*Lawrence Stone—On one interception dated October

22, 1974 . . . defendant Stone was revealed placing

horse wagers with defendant Daniel Sacco. On this

one occasion, defendant Stone and defendant Sacco

were discussing defendant Francesco Scibelli and the

betting habits of an individual referred to as ‘Carm

Mazbo’ (PH). On one interception . . . defendant Stone

was revealed calling co-conspirator Andrew Pradella

and informing Pradella as to the betting preferences

of someone referred to as ‘that guy’ on two particular

pre. - . +l football games on this one occasion. In-

tercepr.... ... revealed a conversation between de-

fendant Maloni and co-conspirator Florian referring

to defendant Stone as someone who had accepted

horse wagers from a betting customer of Florian and

Maloni.’’

There was also evidence that Stone was present at the

‘‘office’’ on two occasions. With respect to Stone, the

expert stated that he ‘‘operated as a bookmaker associated

with defendant Francesco Scibelli and acted on behalf of

defendant Scibelli as a conduit of sports wagering infor-

mation to Pradella for the purpose of influencing Pradella’s

Sacco’s gambling business by providing him with copies of line

sheets is a fair inference from the stipulated evidence. The evidence

would be adequate, in any event, without reference to Agent

Harker’s opinion on these matters.

® Included in the Stipulation is Stone’s statement that he does

‘not agree that he was a participant in this conversation ... .’’

Countering this assertion is Agent Ringgold’s statement in the

Stipulation that ‘‘based upon all his familiarity with Stone’s voice

and from listening to the [voice] exemplar [given by Stone]

Ringgold identifies Stone as a participant in the telephone conver-

sation with Defendant Sacco occurring on October 22, 1974... .”’

Considering the evidence most favorably to the Government, we

must conclude that the district court credited Agent. Ringgold’s

identification of Stone’s voice and found that Stone participated

in this conversation.

23

operation of the ‘office’.’”” Commenting specifically on the

phone call between Stone and Pradella, Agent Harker

stated his opinion that Stone placed this call ‘at the request

of defendant Scibelli, . . . and informed [Pradella] as to

two teams which someone referred to as ‘the guy’ chose

as most likely to beat a certain point spread... . This

information was utilized by Pradella when he adjusted the

line in a discussion with Torino at 11:39 a.m. on the same

day ... .’’ The expert’s opinions regarding Stone’s

involvement in the larger gambling operation do not suffer

from the alleged weaknesses in his opinions with respect

to appellant Bruno’s participation, see note 7, supra; for

the most part they are clearly based on facts apparent in

the Stipulation.® Evidence of the October 22, 1974, dis-

cussion between Stone and Sacco supports the conclusion

that Stone was a bookmaker and was associated with

Seibelli. The ‘‘Expert Analysis’’ of the conversation be-

tween Stone and Pradella indicates that Stone was passing

Pradella important line information, and evidence pre-

sented elsewhere in the Stipulation provides a basis for

Agent Harker’s conclusion that Pradella used this informa-

tion to adjust the line at the office. This evidence was

sufficient to convict Stone of the substantive offense of

conducting ‘‘an illegal gambling business’’ and of con-

spiracy to conduct such a business, See United States v.

1iMuro, supra, 540 F.2d at 508.

Affirmed.

® Only the expert’s conclusion that Stone called Pradella ‘‘at the

request of Scibelli’’ and acted ‘‘as the conduit of sports wagering

information to Pradella’’ is arguably unsupported by evidence in

the Stipulation, and we therefore do not rely on this part of the

expert’s opinion in considering whether sufficient evidence exists

connecting Stone to the larger operation. See note 7, supra,

24

APPENDIX B

TITLE 18

CRIMES AND CRIMINAL PROCEDURE

Chapter1 General Provisions

SEcTION 2. PRINCIPALS

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or pro-

cures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an offense

against the United States, is punishable as a principal.

June 25, 1948, ¢. 645, 62 Stat. 684; Oct. 31, 1951, e. 655,

§ 17b, 65 Stat. 717.

Chapter 19. Conspiracy

Section 371. Conspiracy To CoMMIT OFFENSE OR TO

Derraup UNITED STATES

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or imprisoned not more than five years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punish-

ment for such conspiracy shall not exceed the maximum

punishment for such misdemeanor.

June 25, 1948, ce. 645, 62 Stat. 701.

ee A cena

25

Chapter 95. Racketeering

Section 1955. Proxisition or ILLEGAL GAMBLING BUSINESSES

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

directs, 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 ased in this section —

(1) ‘‘illegal gambling business’’ means a gambling

business which —

(i) is a violation of the law of a State or politi-

eal subdivision in which it is conducted;

(ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own all

or part of such business ; and

(iii) has been or remains in substantially con-

tinuous 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, roulette

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 consecutive

days, then, for the purpose of obtaining warrants for

arrests, interceptions, and other searches and seizures,

probable cause that the business receives gross revenue in

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

been established.

26

(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 seiz-

ure, summary, and judicial forfeiture procedures, and con-

demnation of vessels, vehicles, merchandise, and baggage

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 forfei-

tures ; and the compromise of claims and the award of com-

pensation 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 collector of customs

or any other person in respect to the seizure and forfeiture

of vessels, vehicles, 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 At-

torney 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 (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 shareholder

member, or employee of such organization except as comp-

ensation for actual expenses incurred by him in the conduct

of such activity.

Added Pub.L. 91-452, Title VIII, § 802(a), Oct. 15, 1970, 84

Stat. 937.

A ee ahi PEE a ae

ie ate tte

27

Chapter 119. Wire Interception and Interception

of Oral Communications

SEcTION 2518. PRocepuRE For INTERCEPTIONS OF WIRE

oR ORAL COMMUNICATIONS

(1) Each application for an order authorizing or approv-

ing the interception of a wire or oral communication shall

be made in writing upon oath or affirmation to a judge of

competent jurisdiction and shall state the applicant’s auth-

ority to make such application. Each application shall in-

clude the following information:

(a) the identity of the investigative or law enforce-

ment officer making the application, and the officer

authorizing the application ;

(b) a full and complete statement of the facts and

circumstances relied upon by the applicant, to justify

his belief that an order should be issued, including (i)

details as to the particular offense that has been, is

being, or is about to be committed, (ii) a particular

description of the nature and location of the facilities

from which or the place where the communication is to

be intercepted, (iii) a particular description of the type

of communications sought to be intercepted, (iv) the

identity of the person, if known, committing the offense

and whose communications are to be intercepted;

(c) a full and complete statement 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 ;

(d) a statement of the period of time for which the

interception is required to be maintained. If the nature

of the investigation is such that the authorization for

interception should not automatically terminate when

the described type of communication has been first

obtained, a particular description of facts establishing

28

probable cause to believe that additional communica-

tions of the same type will occur thereafter;

(e) a full and complete statement of the facts con-

cerning all previous applications known to the individ-

ual authorizing and making the application, made to

any judge for authorization to intercept, or for ap-

proval of interceptions of, wire or oral communications

involving any of the same persons, facilities or places

specified in the application, and the action taken by

the judge on each such application; and

(f) where the application is for the extension of an

order, a statement setting forth the results thus far

obtained from the interception, or a reasonable expla-

nation of the failure to obtain such results.

(2) The judge may require the applicant to furnish

additional testimony or documentary evidence in support

of the application.

(3) Upon such application the judge may enter an ex

parte order, as requested or as modified, authorizing or

approving interception of wire or oral communications

within the territorial jurisdiction of the court in which the

judge is sitting, if the judge determines on the basis of the

facts submitted by the applicant that —

(a) there is probable cause for belief that an indi-

vidual is committing, has committed, or is about to

commit a particular offense enumerated in section 2516

of this chapter ;

(b) there is probable cause for belief that particular

communications concerning that offense will be ob-

tained through such interception ;

(c) normal investigative procedures have been tried

and have failed or reasonably appear to be unlikely

to succeed if tried or to be too dangerous ;

(d) there is probable cause for belief that the facil-

-itie from which, or the place where, the wire or oral

OO ea Rs OR Fe OE OH 0 es

29

communications are to be intercepted are being used,

or are about to be used, in connection with the commis-

sion of such offense, or are leased to, listed in the name

of, or commonly used by such person.

(4) Each order authorizing or approving the intercep-

tion of any wire or oral communication shall specify —

(a) the identity of the person, if known, whose

communications are to be intercepted;

(b) the nature and location of the communications

facilities as to which, or the place where, authority to

intercept is granted ;

(ec) a particular description of the type of communi-

cation sought to be intercepted, and a statement of the

particular offense to which it relates;

(d) the identity of the agency authorized to inter-

cept the communications, and of the person authorizing

the application ; and

(e) the period of time during which such interception

is authorized, including a statement as to whether or

not the interception shall automatically terminate when

the described communication has been first obtained.

An order authorizing the interception of a wire or oral

communication shall, upon request of the applicant, direct

that a communication common earrier, landlord, custodian

or other person shall furnish the applicant forthwith all

information, facilities, and technical assistance necessary

to accomplish the interception unobtrusively and with a

minimum of interference with the services that such carrier,

landlord, custodian, or person is according the person whose

communications are to be intercepted. Any communication

common carrier, landlord, custodian or other person furn-

ishing such facilities or technical assistance shall be comp-

ensated therefor by the applicant at the prevailing rates.

(5) No order entered under this section may authorize or

approve the interception of any wire or oral communication

30

for any period longer than is necessary to achieve the

objective of the authorization, nor in any event longer than

thirty days. Extensions of an order may be granted, but

only upon application for an extension made in accordance

with subsection (1) of this section and the court making

the findings required by subsection (3) of this section. The

period of extension shall be no longer than the authorizing

judge deems necessary to achieve the purpose for which

it was granted and in no event for longer than thirty days.

Every order and extension thereof shall contain a provision

that the authorization to intercept shall be executed as soon

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

imize the interception of communications not otherwise

subject to interception under this chapter, and must term-

inate upon attainment of the authorized objective, or in any

event in thirty days.

(6) Whenever an order authorizing interception is en-

tered pursuant to this chapter, the order may require re-

ports to be made to the judge who issued the order showing

what progress has been made toward achievement of the

authorized objective and the need for continued intercep-

tion. Such reports shall be made at such intervals as the

judge may require.

(7) Notwithstanding any other provision of this chapter,

any investigative or law enforcement officer, specially

designated by the Attorney General or by the principal

prosecuting attorney of any State or subdivision thereof

acting pursuant to a statute of that State, who reasonably

determines that —

(a) an emergency situation exists with respect to

conspiratorial activities threatening the national secur-

ity interest or to conspiratorial activities characteris-

tic of organized crime that requires a wire or oral com-

munication to be intercepted before an order authoriz-

AEA a Ne ly it a el ne el taal

31

ing such interception can with due diligence be ob-

tained, 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

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 terminated

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 in the application.

(8) (a) The contents of any wire or oral communication

intercepted by any means authorized by this chapter shall,

if possible, be recorded on tape or wire or other comparable

device. The recording of the contents of any wire or oral

communication under this subsection shall be done in such

way as will protect the recording from editing or other

alterations. Immediately upon the expiration of the period

of the order, or extensions thereof, such recordings shall be

made available to the judge issaing such order and sealed

under his directions. Custody of the recordings shall be

wherever the judge orders. They shall not be destroyed

except upon an order of the issuing or denying judge and in

any event shall be kept for ten years. Duplicate recordings

may be made for use or disclosure pursuant to the provi-

sions of subsections (1) and (2) of section 2517 of this chap-

ter for investigations. The presence of the seal provided for

32

by this subsection, or a satisfactory explanation for the

absence thereof, shall be a prerequisite for the use or dis-

closure of the contents of any wire or oral communication

or evidence derived therefrom under subsection (3) of

section 2517.

(b) Applications made and orders granted under this

chapter shall be sealed by the judge. Custody of the applica-

tions and orders shall be wherever the judge directs. Such

applications and orders shall be disclosed only upon a show-

ing of good cause before a judge of competent jurisdiction

and shall not be destroyed except on order of the issuing

or denying judge, and in any event shall be kept for ten

years.

(c) Any violation of the provisions of this subsection may

be punished as contempt of the issuing or denying judge.

(d) Within a reasonable time but not later than ninety

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

proval under section 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 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 autho-

rized, 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 dis-

cretion make availiable to such person or his counsel for

inspection such portions of the intercepted communications,

applications and orders as the judge determines to be in the

ee Sere ree ee ees

33

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.

(9) The contents of any intercepted wire or oral com-

munication or evidence derived therefrom shall not be re-

ceived in evidence or otherwise disclosed in any trial, hear-

ing, or other proceeding in a Federal or State court unless

each party, not less than ten days before the trial, hearing,

or proceeding, has been furnished with a copy of the court

order, and accompanying application, under which the inter-

ception was authorized or approved. This ten-day period

may be waived by the judge if he finds that it was not pos-

sible to furnish the party with the above information ten

days before the trial, hearing, or proceeding and that the

party will not be prejudiced by the delay in receiving such

information.

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

proceeding 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

communication, or evidence derived therefrom, on the

grounds that—

(i) the communication was unlawfully intercepted ;

(ii) the order cf 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 pro-

ceeding unless there was no opportunity to make such -mo-

tion 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 vio-

lation of this chapter. The judge, upon the filing of such

34

motion by the aggrieved person, may in his discretion make

available to the aggrieved person or his counsel for inspec-

tion such portions of the intercepted communication or

evidence derived therefrom as the judge determines to be in

the interests of justice.

(b) In addition to any other right to appeal, the United

States shall have the right to appeal from an order granting

a motion to suppress made under paragraph (a) of this

subsection, or the denial of an application for an order of

approval, if the United States attorney shall certify to the

judge or other official granting such motion or denying

such application that the appeal is not taken for purposes

of delay. Such appeal shall be taken within thirty days after

the date the order was entered and shall be diligently

prosecuted.

Added Pub.L. 90-351, Title III, § 802, June 19, 1968, 82 Stat.

218.