# Petition — London v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2058%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 436 U.S. 930 ## Text Supreme Court, US, mm FILED | JUN 22 1977 IN THE MICHAEL RODAK, JR., CLERK SUPREME COURT OF THE UNITED STA! aS OCTOBER TERM, 1976 NO, 76- 182 6 ROBERT R. LONDON, RUFUS JONES, JULIUS COTTMAN Petitioners Vv. UNITED STATES OF AMERICA Respondent PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Harold I, Glaser Richard M. Karceski Attorneys for Petitioners INDEX TABLE OF CONTENTS I pens cs cca ccneneusssnesedéetsies 2 POE ocd civccconcccessdeccccescestesocaes © SQROGRIGND PROSUMOS ..cccccccccccccccccocccccces 4 Constitutional Provision Involved,,...,........... 2 Statutory Provisions Involved ,,.........cccccceee & Statement of the Case 5 Statement of Facts iicheesnianndéddakendeeamene Introduction eeeeeeeeeespeeeeeeeeeveeeeeeeeeeeneeeeees 8 Reasons for Granting the Writ .......cccccccccsces DB ES Ca es a ee a ee ee 32 Appendix A Opinion of the United States Court of Appeals for the Fourth Circuit ,,........ A.l Appendix B Facts and Circumstances of Special Agent John D. Huntley, Jr., excised SHGER CHO GEIGAVE .ccccccccccccccccccces ASS Appendix C Excerpt taken from the Honorable C, Stanley Blair's memorandum and order denying Petitioners' Motion for Judgment of Acquittal or in the alternative Motion for New Trial........... A.38 ii Appendix D Excerpt taken from the Government's Answer to Petitioners' Motion for Judgment of Acquittal or in the alternative Motion for New Trial .......+++- A.39 iii TABLE OF CITATIONS Cases Page Berger v. New York, 388 U.S, 41 (1067) occcccccccccccccccccccccccccccccccce Jackson v. United States, 419 U.S. 1020 (1974) eeeeeneeeeeneeneeneeeeeeeeeeneeeeeeneeeneee 12 Katz v. United States, 389 U.S. 347 (1967) eeneeeneeeeeeneeeeeeeeeneeeeneeeeeneeeneeee 10 Lankford v. Gelston, 364 F, 2d 197 (4th Cir. 1966) peeeeeesesooceocooeeccoooces OO Scott v. United States, 96S. Ct. 1519 jj) ieee eee he eeeeeeeeocooceecces 9,10, 15, 21 ; United States v. Bernstein, 509 F.2d 996, PTT rTTrrereerererrerrerresrrrere 29 United States v. Bynum, 360 F. Supp. 400, PP PrTTTrTTrrrrsrrrrrsn) 4 oe United States v. Ceraso, 467 F.2d 647 (3rd Cir. jj) 1 eine te ewes ceeecoeeeee HD United States v. Donovan, 17 Crim.L. Rptr. 2029 e*e@eee United States v. Bernstein, 509 F, 2d 996, 1001-02 (4th Cir, 1975); and where the Title III application had not been authorized by a proper party, see United States v. Giordano, 416 U.S. 505, 508 (1974). Of course, not every violation of Title III results in an unlawful interception sufficient to mandate total suppression. As Judge Butzner noted in the recent case of United States v. Bern- stein, 509 F.2d 996 (4th Cir. 1975): A violation is material only if Congress intended the statutory provision that was not followed to be a "precondition to ob- taining . . . intercept authority." Statu- _tory preconditions, teaches the court, "directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling-for the em- ployment of this extraordinary inves- tigative device." In contrast, violation of a statutory provision that does not "affect the fulfillment of any of the reviewing Or approval functions re- quired by Congress, " does not render 30 an interception unlawful within the meaning of 8 2518 (10) (a) (i). Whether a statutory provision is a precondition to a valid order depends, then, on its role in the Act's system of restraints on electronic surveillance. 509 F, 2d at 999 The determination of whether there has been proper minimization as required by Title III is clearly within the purview of the court's reviewing function. In fact, since minimization procedures need not be set out in the interception order, see Note, 26 Stan. L.R. 14ll, 1432 n. 107 and cases there cited (1974), minimization standards are more often reviewed by the court after the fact than they are approved or dis- approved in advance. In evaluating minimization the totality of the interceptions must be examined and, of course, recordings of all the interceptions or transcriptions made therefrom form the proper point of inquiry, see United States v. Bynum, 475 F.2d 832, 837 (2d Cir. 1973). A failure to record any significant segment of the interceptions thus seriously and materially affects the fulfillment of the court's reviewing function. And a failure to record eighty percent of interceptions so frag- mentizes the court's inquiry as to transform its assessment of the minimization question into a highly artificial exercise. In Bynum, supra, 475 F, 2d 832, the court remanded the case to the district court for evidentiary hearings on the issue of minimization. 31 The circuit court was itself unable to determine if the Government had complied with Title III minimization requirements since"... all conversations were recorded but only those presumably inculpatory were ever transcribed, The mischief lies in the interception obviously and what was not transcribed remains unknown. " 475 F, 2d at 832 (emphasis added). This court also finds its review hampered by an incomplete record, but, unlike the Bynum case, the record here must remain incomplete. Furthermore, a record that is deliberately and selectively left incomplete is an edited record. 18 U.S.C, 8 2518 (8) (a) (1970) requires, inter alia, that the recording "shall be done in such a way as will protect the recording from editing or other alteration. ' (emphasis added), Not only are recordings composed of bits and pieces of .aterceptions easier to edit than recordings of entire interceptions, see Bynum, supra, but selective recordation is itself tantamount to editing. To "edit" is to modify by excisions, curtailments or the like. Merriam-Webster New International Dictionary (2d Ed. 1948), Since to "curtail" is to reduce, Merriam-Webster New International Dictionary (2d Ed. 1948), the Government has in effect edited the tapes by reducing the number of interceptions recorded to twenty percent rather than one hundred percent as required by the statute. Here, the Government's willful and deliberate nonrecordation of eighty percent of the total inter- ceptions is a violation of the statute that has not only affected the court's reviewing function but 32 A. 1 has made proper review nearly impossible. APPENDIX A Petitioners submit that the blatant illegality of the Government's action in carrying out OPINION OF THE UNITED STATES COURT OF the interception order has rendered the entire APPEALS FOR THE FOURTH CIRCUIT interception procedure unlawful, and mandates total suppression of the evidence. No. 76-1664 CONCLUSION United States of America Appellee, In concluding, Petitioners herein respect- _— fully request that this Honorable Court grant their requested Writ of Certiorari for the reasons Julius Cottman Appellant. contained herein, It is also requested by Petitioners that this Honorable Court grant them leave to adopt herein and include as a basis for their request ; the Petition of Richard Genco, a co-petitioner to No, 76-1665 this cause. Mr. Genco and his attorney have 4. agreed to allow Petitioners herein to adopt their Petition and Petitioners herein likewise have no United States of America Appellee, objection to allowing Mr. Genco to adopt the basis r of their request. -y- Respectfully submitted, Rufus Jones Appellant. Harold I, Glaser No. 76-16666 Richard M, Karceski , : Aan. Attorneys for Petitioners United States of America ppellee -Vo= Robert R. London Appellant. a/k/a Fifi London A, 2 Appeals from the United States District Court for the District of Maryland, at Baltimore. C. Stanley Blair, District Judge. Argued January 10, 1977 Decided May 25, 1977 Before WINTER, CRAVEN* and BUTZNER, Circuit Judges. *Judge Craven died before preparation of this opinion. However, following argument, he ex- pressed agreement with this result. WINTER, Circuit Judge: Defendants, together with others, were indicted by a federal grand jury on a charge of violating 18 U.S.C. 8 1955 (conducting an illegal gambling business). Defendants London, Jones and Cottman were tried before a jury and found guilty of violating the statute. Defendants Genco, Himes, Shade and Clerkley were tried without a jury and also found guilty as charged. These appeals ensued, At trial, the various defendants moved to suppress all incriminating evidence secured TI > A. 3 by wiretap. The district judge denied this motion, holding that the government fully com- plied with the terms of the federal wiretap statute. The correctness of this ruling is the principal issue On appeal. We affirm. I, The one-count indictment alleged that four- teen named defendants (including the seven who now appeal), one Albert Isella, and others known and unknown to the grand jury, were engaged in an illegal numbers lottery business. The govern- ment's evidence established that the operation was a major "gambling lay off'' business. A "lay off" operatim enables professional bookmakers to diminish risk by re-betting or "laying off" large bets with other gamblers. United States v. Box, 530 F. 2d 1258, 1261 (5 Cir. 1976); United States v. Bernstein, 509 F.2d 996, 1002 n.14 (4Cir. 1975), vacated, 45 U.S.L.W. 3583 (U.S, Feb. 28, 1977) (No. 74-1486); United States v. Bobo, 477 F.2d 974 (4Cir. 1973), cert. denied sub nom,, Gray v. United States, 421 U.S. 909 (1975). The proof showed that London, Genco and Isella were partners in overall control of the operation, with London as the senior partner and Genco and Isella having lesser, though substantial, interests. Himes was the clerk and record keeper for the operation. Shade, Clerkley, Cottman and Jones all owned substantial books and regularly "laid off'’ heavily bet numbers to the London enterprise through Himes, who performed his duties by telephone at his home. A. 4 At trial, the government relied heavily upon evidence secured through electronic sur- veillance, Pursuant to orders signed by Judges Harvey and Young of the district court, FBI agents installed a microphone at London's place of business and "pen register" and in- tercepting devices at the Himes residence, 1 A "pen register" device is used to trace telephone calls. A detailed ex- planation of its use is found in United States v. Caplan, 255 F.S. 805, 807 (E.D, Mich, 1966), After a substantial number of calls were traced to premises where it was reasonably knwon that numbers gambling was being conducted, the pen register was augmented by an interception device. The affidavits supporting the appli- cations for orders establish that London's place of business was an office where much of the business was transacted in person but that Himes apparently trans- acted his business from his home by telephone. Undoubtedly, this is why the agents sought and were granted authority to install a microphone in London's office so that all conversations couls be monitored while they sought only surveillance of telephone calls at the Himes' residence. A. 5 FBI agents monitored all conversations at London's office whenever any of three partners were present. Recordings were made of those conversations dealing with gambling activities. Logbooks were also maintained, indicating in almost minute-by-minute fashion the identities of persons known to be present, the nature of the conversation then occuring, and the use of recording apparatus (if any). This monitoring lasted from August 24, 1974 until September 12, 1974, FBI agents also monitored the use of a telephorie at the Himes residence. A tape recorder was activated each time an incoming or outgoing call was initiated. Agents "spot checked" each call to determine its nature. If the call dealt with gambling, monitoring con- tinued and the call would be taped in its entirety. If the call dealt with personal matters, all monitoring and recording would cease. A second set of logbooks was maintained, indicating the time, content, and recording (or non-recording) of every call. This activity continued from September 6, 1974 until September 24, 1974. Il, At trial, defendants moved the district court to exclude all evidence secured by wiretap. The motion was denied, Defendants contend that the evidence should have been suppressed, asserting allegedly fatal variances between govern- ment conduct and the terms of the wiretap statute. A. 6 A. Electronic eavesdropping by law enforce- ment personnel is governed by the federal wire- tap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. 8 2510, et seq. The wiretap statute was intended to make an accommodation between competing goals of crime control and protection of the right to privacy, 2 2. Congress noted that wiretaps were needed to combat the rise of organized crime. Victims, complainants, or witnesses are unwilling to testify because of apathy, fear, or self-interest, and the top figures in the rackets are protected by layers of insulation and direct participation in criminal acts. Information received from paid informants is often unreliable, and a stern code of discipline inhibits the devel- opment of informants against organized criminals. In short, intercepting the communications of organized criminals is the only effective method of learning about their activities. (1968 }U.S. Code, Cong, & Ad, News, 2112, -2159. At the same time, Congress realized that unrestricted wiretapping would com- pletely undermine traditional notions of privacy. The tremendous scientific and tech- nological developments that have taken A. 7 place in the last century have made possible today the widespread use and abuse of electronic surveillance tech- niques... . No longer is it possible, in short, for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commer- cial concerns can be intercepted by an unseen auditor and turned against the speaker to the auditor's advantage. Id, at 2154, A variety of controls are imposed on police action, intended to "delineat [e] on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." [1968 JU.S. Code, Cong. & Ad. News 2112, 2153. Defendants' initial contention is that the wiretap orders, signed by Judges Harvey and Young, were predicated upon an insufficient showing of need. Under the wiretap statute, intercepted wire or oral communication is rendered inadmissible in evidence unless it was intercepted in compliance with the statute. 18 U.S.C. 8 @ 2515, 2518 (10 (a). The statute requires that the government apply for a judicial order before electronic surveillance may begin. 18 U.S.C. 8 2516. In addition, the government is required to show, and the authorizing judge must find, a compelling need for this type of activity. 18 U.S.C. @ 6 2518 (1) (c), (3) (c). Specifically, there must be a showing that ''other A. 8 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. 8 2518 (1) (c). | To meet the requirement of the statute, the government, in the instant case, produced two affidavits by FBI Special Agent John Huntley. Each affidavit began by detailing the information already known to the government, primarily through the use of informers, and the reasons why the informers were thought io be reliable. The FBI was apparently well aware of the roles played by London, Genco, Isella and Himes, In addition, the FBI knew that certain premises (London's office and Himes' residence) were being used to conduct the gambling business. However, the identities of many other participants, including most bookmakers who regularly "laid off'' bets, were not known. The affidavits concluded with the following recitation: NEED FOR INTERCEPTION l. The confidential informants described herein have categorically refused to testify in open court for fear of their personal safety and that of their families. . 2. Normal investigative techniques are unlikely to succeed: (a) Without the testimony of the above- mentioned informants it would be exceedingly difficult to prove the complete nature of the current gambling operation of Robert "Fifi" A. 9 London, Albert Carmen Isella, Richard "Dick" Genco, Robert Leroy Himes, Susan Himes, Robert John Thibou, Melvin Eugene Brzostek, Orva Elerson "Lucky" Robinson, Ambrose Robinson and others as yet unknown. (b) It is doubtful that a search warrant, if obtained and executed, would result in obtaining gambling records sufficient to show the complete nature of this gambling operation. From my experience and the experience of other Agents, I know that gambling raids and searches of gamblers and their gambling establishments have not in the past resulted in the gathering of physical or other evidence to prove all elements of the offenses. This is particularly true in regards to evidence relating tothe “lay-Off" part of a gambling operation. I have found through my experience and the experience of other Special Agents who have worked on other gambling cases that gamblers frequently do not keep incriminating records. If such records have been maintained, usually gamblers, immediately prior to or during the physical search, destroy these records. Additionally, records that have been seized in past gambling cases have generally not been sufficient to establish all of the elements of said offenses because such records are difficult to interpret and many times are of no significance without more complete knowledge of the gamblers activities. (c) There are no known witresses who could be relied upon to truthfully ««stify to the violation in question. A. 10 (d) Infiltration of the gambling operation by an undercover Agent does not appear to be possible in this case but even if such infiltration were possible, it would only be at the lowest level of the operation which would not result in evidence being obtained regarding involvement of the backers and the lay-off part of the operation. Nor would such infiltration, even if possible, ever be expected to discover the full scope and extent of the operation, (e) Calling witnesses before the Grand Jury would not result in the gathering of sufficient evidence to uncover the full scope and extent of the operation. Only those individuals integrally involved in the operation at a high level have the requisite knowledge regarding the full scope and extent of the operation. Witnesses, even if immunized, are reluctant to incriminate them- selves and their close working associates, To- gether their testimony would require immunization and non-prosecution of those who are the principals of the operation. But, even if obtained, their testimony is not corroborated. 3. Due tothe manner in which the violations are carried out, the interception of these commu- nications is the only available method of investigation which has a reasonable likelihood of securing the evidence necessary to prove the commission of this violation. Defendants suggest that the affidavits fall short of establishing the degree of need specified in the statute. We disagree. Cheol so ~~. A ul The showing of need made pursuant to 8 2518 (1) (c) is "to be tested in a practical and commonsense fashion." [1968 JU.S. Code, Cong. & Ad. News 2112, 2190. See United States v. Armocida, 515 F.2d 29, 37-38 (3 Cir. ), cert. denied, 423 U.S. 858 (1975); United States v. James, 494 F, 2d 1007, 1015-16 (D.C. Cir.), cert. denied, 419 U.S. 1020 (1974). Applying ee this test, we find that the affidavits constitute a sufficient basis from which the district court could, and did, conclude that wiretaps were essential to the success of the investigation. Defendants urge that the affidavits are flawed in that they clearly identify four principals (i.e., London,‘ Genco, Isella and Himes). While ample evidence may have been available to arrest and convict this foursome, the government is not precluded from carrying the investigation further. In particular, the government has a valid interest in uncovering the names and locations of various "backers", bookmakers, who regularly "lay off" bets and thereby supply the organization with capital. The situation is directly analogous to that considered by the district court in United States v. Staino, 358 F.S. 852 (E.D. Pa. 1973). In Staino, the court considered atelephone "tap which led to the arrest and prosecution of two individuals dealing in counterfeit currency. The telephone tap was authorized by the district judge after review of an FBI affidavit. The affidavit clearly established government knowledge of defendants‘ role as conduits for the bogus currency. Defendants ultimately sought to suppress all wire- tap evidence, alleging that the affidavits set forth A. 12 sufficient facts which could have led to their conviction. The district court rejected this argument. Defendants argue that according to statements in the affidavit, sufficient evidence existed prior to the wiretap to convict them ]both. . . if that evidence was shown to be true. But, although it is likely that probable cause existed for these arrests, it cannot be supposed that there was the faintest reason to think that the trail ended there. By its very nature, the illegal possession of and dealing in counterfeit notes involves, in most instances, many individuals who would be liable as co-conspirators. And even though the investiga- tive agents were able to uncover the first layer of the operation, a substantial likelihood existed that other persons were involved in the same en- terprise. Plainly, normal investigative techniques had ceased to be effective once the visible members of the hierarchy, if one existed, were discovered. To suppose that the investigation should have terminated at this point is unrealistic. The men were merely the tip of the fceberg; they could always be replaced. In order to root out the offense, those who were ultimately responsible -- individuals who were the source of the counterfeit notes and who placed them into circulation - - had tobe found... Id. at 857. Here, it was vital for the government to uncover the source of the "lay off" bets them- selves, professional bookmakers who "fueled" the operation and who would simply find replace- ments once the four principals were swept away. 7 bess edie at. * A. 13 Defendants attempt to distinguish Staino by arguing that the four principals could have led FBI agents to other participants, In parti- cular, they point to a list of names kept by Genco and apparently known to police. They suggest that normal search and seizure or infiltration would have produced the list, which in turn would have revealed the names of all co-conspirators. This issue is directly addressed in the affidavits and the averments made therein are uncontradicted by any facts of record. The government, not unreasonably, concluded that searches in this type of case are unproductive because gambling records are habitually hidden, destroyed in police raids, or written in special code. Infiltra- tion was also rejected as impractical, The government asserted that it sought information concerning the highest levels of the conspiracy; in- filtration would be possible only with regard to the lowest levels and would be ineffective to uncover the full scope and extent of the operation. Similar declarations were accepted by this court in dealing with another "lay off" business. United States v. Bobo, 477 F.2d 974, 983 (4 Cir. 1973), cert. denied sub nom., Gray v. United States, 421 U.S. 909 (1975). In Bobo, we concluded that statements of the kind set forth in the government's affidavits, untainted by any showing of inaccuracy or exagger- ation, were sufficient to establish that searches and infiltration {among the many techniques considered) were poor substitutes for electronic surveillance. Finally, defendants contend that the affidavits are deficient in failing to discuss and eliminate all possible alternatives to wiretapping. Defendants A. 14 specifically note that Agent Huntley fails to mention physical surveillance and observation . of the four known principals. We reject this argument. Section 2518 (1) (c) offers two alternatives to the government. It may show that traditional investigative techniques have been tried and have failed, or it may show that they are unlikely to succeed. In cases construing the first alterna- tive, the courts have made it clear that police need not exhaust every conceivable technique before making application for a wiretap. See, e.g., United States v. Feldman, 535 F.2d 1175, 1178-79 (9 Cir.), cert. denied, 45 U.S. L.W. 3345 (U.S. November 8, 1976) (No. 76-113); United States vy. Vento, 533 F.2d 838, 849 &nn, 15-16 (3 Cir. 1976); United States v. Robertson, 504 F. 2d 289, 293 (5 Cir. 1974), rehearing denied, 506 F, 2d 1056, cert. denied, 421 U.S. 913 (1975). We think the same logic is applicable to the second alternative; and when applied, we think that the affidavit is sufficient to demonstrate a need for the wiretap. B. Defendants next contend that the govern- ment violated the wiretap statute by monitoring all conversations at London's office whenever any of the three partners were present. Defendants argue that such wholesale monitoring violates the "minimization" requirement contained in the statute. We find this contention to be without merit. A. 15 The statute mandates that law enforcement _ personnel refrain from intercepting communications having little or no relation to the suspected offense: Every order authorizing a wiretap .. . shall be executed as soon as practicable and shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, .. . 18 U.S.C, § 2518 (5). This provision is intended [ t] 0 prevent impriper invasion of the right of privacy and to curtail the indiscriminate seizure of communications, . . . .'' United States v. Focarile, 340 F.S. 1033, 1044 (D. Md.), aff'd sub nom., United States v. Giordano, 469 F.2d 522 (4 Cir, 1972), aff'd, 416 U.S. 505 (1974). 3 We believe that the requirement has been met in the instant case. 3. The minimization requirement, along with the rest of Title III, was drafted in response to Supreme Court deciaions in Berger v. New York, 388 U.S. 41 (1967) a as b. United States, 389 U.S, 347 1968 J]U.S. Code, Cong. ° 2112, 2153, 2163, tr ocala In Berger, the Supreme Court invalidated a New York eavesdropping statute as uncon- stitutional under the Fourth and Fourteenth Amendments. Among the statute's infir- mities, the Court noted a complete failure to prevent indiscriminate wiretapping. A. 16 The wiretap statute does not require that all innocent communications be left untouched. Congress recognized that legitimate investigations 3. (Continued) (The New York statute ] authorizes the "indiscriminate use" of electronic devices specifically condemned in Osborn [v. United States, 385 U.S. 323 (1966) ]. "The proceeding by search warrant is a drastic one," Sgro v. United States, 287 U.S. 206, 210, 77 L ed 260, 262, 53S. Ct. 138, 85 ALR 108 (1932), and must be carefully circumscribed so as to prevent unauthorized invasions of "the sanctity of a man's home and the privacies of life." Boyd v. United States, supra, 116 US 616 at 630, 29 L ed 746, at 751, 6S Ct 524. New York's broadside authorization rather than being "carefully circumscribed" so as to prevent unauthorized invasions of privacy actually permits general searches by electronic devices, .. > 388 U.S. at 58. Minimization and its companion safeguards were designed to assure that the order [ authorizing a wiretap} will link up ’ specific person, specific offense, and specific place. Together {the provisions of Title III Jare intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most pre- A. 17 cise and discriminate circum tances which fully comply with th " ’ e ‘ of particularity. me rane ; Rep No. 1097, 90th Cong., 2d Sess., 102 (1968) ynum v. United States, cert denied, 423 U.S 952 (1975) (Brennan, J., dissenting). would often uncover harmless conduct within the eae of its unlawful counterpart. Accordingly meres eres: merely provides that unnecessary ; S be minimized, or reduced to the smallest egree possible. In testing compliance with this nian or the courts have proceeded on a case- y-case basis, invoking a standard of reasonablenes See [1968] U.S. Code, Cong. & Ad. News, 2112 4 2192; United States v. Daly, 535 F.2d 434 441. pa Cir. 1976); United States v. Armocida, 515 F, 2d ss , 42 (3 Cir.), cert. denied, 423 U.S, 858 (1975): nited States v. Quintana, 508 F.2d 867, 873-74 (7 -_ 1975); United States v. James, 494 F, 2d 1007 18 (D.C, Cir. ), cert. denied, 419 U.S. 1020 (1974) The statute is deemed to be satisfied if "on the whole the agents have shown a high regard for the right of privacy and have done all they reasonabl could to avoid unnecessary intrusion. " United States v. Armocida, 515 F.2d 29, 42 (3 Cir.) cert. denied, 423 U.S. 858 (1975), quoting from = the gare v. Tortorello, 480 F.2d 764, 784 r.), cert. denied, 414 U.S. 866 (19 ) - phasis in the original). orate In analyzing a given case, the federal courts A. 18 have considered three principal factors: (1) the | nature and scope of the alleged criminal enterprise; (2) the government's reasonable expectation as to the content of, and parties to, the conversations; and (3) the degree of judicial supervision while the wiretap order is being executed. See United States v. Daly, 535 F.2d 434, 441-42 (8 Cir. 1976); United States v. Vento, 533 F.2d 838, 852-53 (3 Cir, 1976); United States v. Scott, 96 F.2d 751, 758-59 (D.C. Cir.), rehearing denied, 522 F. 2d 1333 (1975), cert. denied, 425 U.S. 917 (1976); United States v. Armocida, 515 F.2d 29, 44-45 (3 Cir.), cert. denied, 423 U.S, 858 (1975); United States v. Quintana, 508 F.2d 867, 874-75 (7 Cir. 1975). When we consider each factor, we cannot conclude that the government's conduct violated the statute. When law enforcement officials are confronted with large, far-flung and on-going criminal activity involving multiple parties, they are afforded greater latitude in conducting wiretaps. The Seventh Circuit, in considering a drug conspiracy, held that [ 1 Jarge and sophisticated narcotics con- spiracies may justify considerably more interception than would a single criminal episode. This is especially so where, as here, the judicially approved purpose of the wiretap is not so much to incriminate the known person whose phone is tapped as to learn the identity of far-flung con- spirators and to delineate the contours of the conspiracy. A. 19 United States v. Quintana, 508 F.2d 867, 874 (7 Cir. 1975). In fact, the legitimate investigation of conspiracies may necessitate the interception of all or almost all communications over a given period of time. See United States v. Chavez, 533 F.2d 491, 493-94 (9 Cir.), cert. denied, 44 U.S. L.W. 3685 (U.S, June 1, 1976) (No. 75-6685); United States v. Manfredi, 488 F,2d 588, 600 (2 Cir. 1973), cert. denied, 417 U.S, 936 (1974); United States v. Bynum, 485 F,2d 490, 500-02 (2 Cir. 1973), vacated on other grounds, 417 U.S. 903 (1974), on remand, 386 F.S. 449 (S.D. N.Y. 1974), aff'd, 513 F.2d 533 (2 Cir.), cert. denied, 423 U.S. 952 (1975); United States v. Cox, 462 F.2d 1293, 1300-01 (8 Cir. 1972), cert. denied, 417 U.S. 918, rehearing denied, 419 U.S. 885 (1974). Although defendants were charged with the substantive crime of illegal gambling rather than a narcotics or other type of conspiracy, the reasoning advanced in Quintana applies with equal force. The government's proof established a far-flung, continuous criminal operation involving many persons, known and unknown. The purpose of the wiretap was not to ensnare the known principals. The government was p marily (and justifiably) interested in detecting the hidden members of the "lay off" operation -- those who supported it and who could be expected to support another ff only the principals were success- fully prosecuted. As such, continual monitoring over a three week period did not offend the statute. By analyzing the government's expectations, courts attempt to determine whether sufficient ad- vance knowledge was available to tailor the A. 20 minimization efforts. Did the government know the identities of all suspects? Were police familiar with the timing or patterns of certain conversation, so as to distinguish between innocent and incriminating speech? See United States v. James, 494 F.2d 1007, 1020 (D.C. Cir.), cert. denied, 419 U.S. 1020 (1974). In the instant case, FBI personnel did not know the identities of all participants inthe "lay off" system. There- fore the monitoring agents could not assume that certain conversations with certain individuals would clearly be irrelevant. Additionally, the govern- ment chose to utilize electronic eavesdropping rather than a telephone tap. Telephone taps enable police to divide communications into dis- crete units, which can then be assessed on an individual basis. If a call is personal in nature, interception may cease, subject to resumption when another call is initiated. 4 Electronic eavesdropping does not allow this degree of selectivity. Conversation may range over many subjects, shifting instantaneously and without warning. Because of this uncertainty, we cannot say that anything less than continuous monitoring would suffice, 5 4, In fact, this procedure was utilized in monitoring calls at the Himes residence. As noted, supra, agents "spot checked” each call to determine its essential character. All monitoring and recording would cease if the call dealt with personal matters. 5. We also note that many of the conver sations at London's office were in code. A. 21 A third and final consideration is the degree of judicial supervision while the wiretap order is (continued) Special codes have continually caused problems for law enforcement personnel, especially when dealing with narcotics conspiracies. See, e.g., United States v. James, 494 F.2d 1007, 1019 (D.C. Cir. ) cert. denied, 419 490, 501 (2 Cir. 1973), vacated on other grounds, 417 U.S. 903 (1974), on remand, 386 F.S, 449 (S. D. N.Y. 1974), aff'd, 513 F.2d 533 (2 Cir.), cert. denied, 423 U.S. 952 (1975); United States v. Cox, 462 F.2d 1293, 1300-01 (8 Cir. 1972), cert. denied, 417 U.S. 918, rehearing denied, 419 U.S. 885 (1974); United States v. Sisca, 361 F.S. 735, 744 (S.D.N. Y. 1973), aff'd, 503 F.2d 1337 (2 Cir.), cert. denied, 419 U.S. 1008 (1974). Federal courts have traditionally allowed a greater degree of monitoring when suspects use specialized codes or jargon. See United States v. Armocida, 515 F.2d 29, 44 (3 Cir.), cert. denied, 423 U.S. 858 (1975); United States v. James, 494 F., 2d 1007, 1019 (D.C. Cir.), cert. denied, 419 U.S. 1020 (1974). But see Note, Minimization of Wire Interception: Presearch Guidelines and Postsearch Remedies, 26 Stan. L. Rev. 1411, 1419 n.: 42 (1974) (suggesting that the use of codes or jargon should not be invoked to justify departure from the minimization require- ment. Defendants! third and final contention deals with the use of recording equipment. Defendants argue that the government was required to record all conversations at London's office, rather than a portion dealing with alleged gambling activities. We agree, but we do not »elieve that in this case reversal of the convictiv “ is warranted. The wiretap statute provides that [ft Ihe 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 con- tents of any wire or oral communi- cation under this subsection shall be done in such way as will pro- tect the recording from editing or other alterations. 18 U.S.C. 8 2518 (8) (a). The statute does not contain discretionary language; it is an absolute command, Interceptions "shall" be recorded, if "possible. "6 As another federal court has noted, "the wiretap statute requires the recordation of intercepted communications by any means author- ized by the chapter, ...'' United States v. 6. S. Rep. 90-1097; [1968]U.S. Code, Cong. & Ad. News 2112, 2193 states that § 2518 (8) (a) requires recording if "prac- ticable. See text infra. A, 23 Buckhanon, 374 F.S. 6ll, 615 (D. Minn. 1973) (emphasis in the original),7 Here, the govern- ment has made no attempt to justify its failure. It has not demonstrated that recordation was impossible. We turn then to consideration of whether this omission required the suppression of all wiretap evidence and consequent reversal of the convictions. We hold that it does not. The statute expressly prohibits the use at trial, and at certain other proceedings, of the contents of any intercepted wire communi- cation or evidence derived therefrom "if the disclosure of that information would be in vio- lation of this chapter. "’ 18 U.S.C. 6 2515. The circumstances which require suppression under 7. In Buckhanon, defendants, charged with possession of heroin with intent to distribute and with conspiracy to possess and distribute heroin moved to suppress certain evidence procured by electronic surveillance, One of the arguments con- cerned recordation of the communications intercepted. Defendants complained that the judicial order, authorizing the wire- taps, did not provide for recordation. The district court countered by noting that recordation was required under the statute and not by virtue of court order. A. 24 8 2515 are, inturn, set out in 8 2518 (10) (a): (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is in- sufficient on its face; or (iii) the in- terception was not made in conformity with the order of authorization or — approval. Only the first category is relevant to this case, since there is no contention that the orders were insuffi- cient and it is manifest that the duty to record is imposed by the statute itself and not by judicial . order. We must decide whether the communications introduced at trial, constituting the recorded con- versations at London's office, were “unlawfully intercepted" because of the failure to record other dialogue between the co-conspirators. Resolution of that issue depends upon three Supreme Court decisions: United States v. Donovan, 45 U.S. L.W. 4115 (U.S. January 18, 1977); United States v. Chavez, 416 U.S. 562 (1974); and United States v. Giordano, 416 U.S. 505 (1974). These decisions hold that " not] every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful.' " United States v. Chavez, 416 U.S. 562, 574-75 (1974). Rather, suppression is required only for a "failure to satisfy any of those statutory requirements that directly and substantially implement the congress- ional intention to limit the use of intercept pro- cedures to those situations clearly calling for A. 25 the employment of this extraordinary investigative device.’ United States v. Giordano, 416 U.S. at 527. In other words, the violation must substan- tially impinge upon Fourth Amendment values sought to be protected by Congress in restricting and rendering uniform the use of wiretaps. The recording provision, contained in 8 2518 (8) (a), was enacted to serve an evidentiary function. Congress apparently realized that testimony by monitoring agents of what they heard would be open to attack on grounds of hearsay, failure of recollec- tion and bias. Tape recordings, on the other hand, would be the best evidence and would be almost irrefutable if their authenticity and physical integ- rity were guaranteed. Accordingly, intercepted communications were to be recorded, if at all possible, and introduced in their recorded form. The legislative history of 8 2518 (8) (a), though sparse, supports this view of the statute. Paragraph (8){ of 8 2518 ] sets out safe- guards to insure that accurate records will be kept of intercepted communica- tions. Subparagraph (a) requires, if practicable, that the communication be recorded on tape, wire or other comparable device. The recording must be made in such a way as will protect it insofar as possible from editing or alteration. Appropriate procedures should be developed to safe- guard the identity, physical integrity, and contents of the recordings to insure their admissibility in evidence. A, 26 [1968 ]}U.S. Code, Cong. & Ad, News 2112, 2193. In United States v. Daly, 535 F. 2d 434, 442 (8 Cir. 1976), the Eighth Circuit has indicated that its view of the purpose of the statute is to ensure the admissibility of intercepted communications at trial. In sum, we do not think that the recording provision was intended to limit the use of wire- tapping so as to preserve rights of privacy. Recordation is required to insure that the product of surveillance will be received under traditional rules of evidence. There is no indication that 8 2518 (8) (a) was intended to or could fulfill the same function as exhaustion of investigatory procedures, judicial authorization and review, and minimization in protecting an individual's right to privacy.8 It follows that a failure to record, though admittedly a violation of the statute, does not lead to suppression and rever- cal of the convictions. This result is dictated by the decisions in Donovan, Chavez, and Giordano, 8. In a proper case, we can visualize that, aside from protection of rights of privacy, complete recording could benefit an accused, as for example where an accused asserts that a recording of an incriminating statement was offered in evidence out of context so as to mag- nify its incriminating effect by omitting related mitigating statements. But, in the instant case, defendants do not allege or demonstrate that any of the recerded communications were distorted or taken out of context. While recordings A, 27 IV. London, Jones and Cottm additional contention regarding pai = structions given by the district court. We think that the charge, read as a whole, was unexceptionable and the contention warrants no extended discussion on our part. AFFIRMED, 8. (continued) might be useful also to buttress a claim that minimization was not followed, such an argument is unavailing here. Because of (1) the conspiratorial nature of the offense charged; (2) the inability of monitoring agents to predict the nature of the conversations intercepted; and (3) the degree of judicial supervision involved, we have held that continual surveillance of London's office was proper. The same reasoning applies to wiretapping efforts at the Himes‘ residence, the only other use of electronic surveillance before us. A. 28 APPENDIX B FACTS AND CIRCUMSTANCES OF SPECIAL AGENT JOHN D. HUNTLEY, JR., EXCISED FROM THE AFFIDAVIT On May 25, 1974, informant number one advised Special Agent David E. Faulkner of the Baltimore, Maryland Field Office of the Federal Bureau of Investigation, who advised your affiant that as of May 25, 1974, Robert "Fifi" London, Richard "Dick" Genco, and Albert Isella are in partnership in the major numbers lay-off opera- tion for the Baltimore area. Informant number one also advised that London has a 75 percent interest in this operation while Genco and Isella share a 25 percent interest. Informant number one learned this information through his direct conversations with Albert Isella during the prior week, Informant number one advised your affiant on June 24, 1974, that as of that date Isella makes at least one "lay-off" call daily between 3:00 and 3:30 p.m. Isella makes this call toa numbers backer who lays-off to Isella. Informant number one also stated that as of June 24, 1974, the backers of the illegal numbers operation settle up their accounts with the lay-off people between Monday and Wednesday of each week foi the pre- vious week's work. Some of the backers appear personally at London's office in the basement of A. 29 1202 North Charles Street for the purpose of discussing the financial status of their accounts. Informant number one obtained this information from a backer involved in this operation. Informant number one advised that on Wed- nesday morning, May 22, 1974, Richard Genco was observed by him in Robert London's office in the basement of 1202 North Charles Street and that he had learned from one of the partners involved in the illegal gambling business that Genco and London had a conversation in the office regarding settling up the previous week's "lay-off" Informant number one advised that Albert Isella advised him that as of May 22, 1974, he personally goes to London's office on Charles Street in the mornings during the first of the week to discuss with London matters that arise in relation to the lay-off", On July 17, 1974, informant number one advised your affiant that on July 13, 1974, the lay-off operation headed by: London, Isella and Genco had incurred a substantial loss as a result of heavy wagering on the number "121" which was the winning number for the day, Informant number one further advised that he learned from a backer who lays off to London's operation that on Monday, July 15, 1974, certain numbers backers appeared personally at London's office in the basement of 1202 North Charles Street, Baltimore, Maryland, and collected money directly from London to cover winning wagers on the number 121. Albert Isella also went to London's office at A. 30 1202 North Charles Street, Baltimore, Maryland on the morning of July 15, 1974, in order to ob- | tain cash from London to pay other backers who do not have access to London directly. This source advised that London keeps a tally slip on his person and when one of the backers appears to settle up London takes the backer into his office in the basement of 1202 North Charles Street to discuss the lay-off. On June 19, 1974, Special Agent Arthur 5. Hamilton advised your affiant that on that date informant number two had advised that Albert Isella is currently involved in a major lay-off business for the Baltimore area with Robert "Fifi'’ London. Informant number two also advised that as of June 19, 1974, Isella settles up with London for the lay-off every Monday morning between approximately 10:30 a.m. and 12 noon at London's office at 1202 North Charles Street, Baltimore, Maryland. Informant number two is able to furnish this information as a result of his association with principals of this particular gambling op- eration and from having been present during one such meeting between Isella and London at 1202 North Charles Street. Informant number three advised your affiant on May7, 1974, that Richard Genco and Robert 'rifi'’ London are currently conducting the major gambling "lay-off" operation for the Baltimore area. Informant number three has learned this information A. 31 through conversations with Genco during the past week regarding the "lay-off" business. Informant number three advised that as of this date an unknown male will call the individual numbers backers on a daily basis between the hours of 1:00 and 3:30 p.m. in order to accept lay-off bets. Informart number three stated that Genco will settle up with certain individual backers on Monday, Tuesday and Wednesday evenings for the previous week's lay-off bets. The settling up involves an ex- change of money only and the backer is gen- erally advised in advance what he owes or what is owed to him for the previous week's work. Informant number three further advised on May 23; 1974, that during the past week he has observed that Genco keeps a list of numbers accounts in his automobile in the event the backers question what is owed. Informant number three also advised that from his per- sonal observations this list contained code names for at least one dozen numbers backers and that the total tally for the previous week's lay-off for that particular list was approximately $20, 000. 00. Informant number three advised on June 3, 1974, that he had learned through con- versations with Melvin Eugene Brzostek which occurred during May, 1974, that Brzostek is the backer of a large numbers operation handling approximately twelve writers. Informant number three advised that he had learned from Richard Genco during the same period that Brzostek is laying off to Genco, A, 32 Informant number three further stated that he knew through personal contact with Genco that Genco would contact London in order to change the track from which the winning number for the day would be deter- mined for the day would be determined for the Baltimore area. Informant number three ad- vised that it is the custom in the gambling community in Baltimore for this type of change to be made by the principal figure in the "lay-off" business. Informant number three also advised that he has learned through conversations during the last month with numbers backers who lay-off to Albert Isella that Isella is also a partner in the lay-off operation with London and Genco. Informant number three advised your affiant on July 18, 1974, that Richard Genco had settled up with various backers during the first half of this month, This source further advised that he has learned from Genco that Genco, London and Isella are currently partners in the lay-off operation. This source advised that through his conversation with Genco during the past week and observations made by infor- mant number three in London's office in the basement of 1202 North Charles Street during the past month that certain backers settle up at London's office with London personally while other backers settle up either with Genco or Isella at other locations. The source further advised that 121 had been the winning number for Saturday, July 13. 1974, and that London, Genco and Isella had taken a substantial loss on "lay-off" A, 33 from individual backers. As a result of this it had been necessary for London, Genco and Isella to get money to various backers who had laid-off" this number to them. The source further advised that he had also been told by Genco that Melvin Eugene Brzostek continues as of this date to "lay-off" heavily bet numbers from his operation to Genco, Informant number four advised your affiant on June ll, 1974, that he had learned through conversations with Orva Elerson " Lucky" Robinson during the past week that Robinson's numbers operation, which through personal observation of Robinson's operation he estimated to be in excess of $16, 000.00 a week, was laying off to Robert "Fifi" London. This source further advised that he had learned during the past week _ through individuals involved in Robinson's numbers operation that "Lucky" Robinson's brother, Ambrose Robinson, is also presently involved as a backer in an illegal numbers lottery and is possibly connected with his brother "Lucky's" operation, Special Agent John C. Bonner advi affiant that on June 20, 1974, informant rane bm : five had advised him that Ambrose Robinson was currently the backer of a major numbers lottery operation which lays-off between $10, 000.00 and $12,000.00 a week to Robert "Fifi" London. This source learned this information through conversation with one of the principals in this A. 34 operation. Informant number five advised that he had learned that on June 19, 1974, the number 210 had been the winning number and that certain backers who had laid this number off to "Fifi" had gone to London's office at 1202 North Charles Street to collect the money in order to pay off the winners. Informant number six advised Special Agent David E. Faulkner on May 31, 1974, who advised your affiant, that through personal con- tact with Robert John Thibou, that Thibou is presently backing a large scale numbers oper- ation handling between $80, 000. 00 and $90, 000.00 in weekly wagers. Informant number six advised that Thibou is either a partner of Robert "Fifi" London or lays off to London, Informant number six advised that Bobby Himes is presently making the lay-off telephone calls for London. Informant number six has learned this through conversations with a principal in this lay-off operation. This prin- cipal in the operation indicated to informant number six that London's lay-off business will total between $70, 000. 00 and $90, 000. 00 weekly in lay-off bets. Informant number six advised that Bobby Himes handles the lay-off work from a telephone in his home in the Pasadena, Mary- land area, and is paid approximately $300. 00 a week for this. Informant number six advised Special Agent Jerry W. Bastin on June 5, 1974, that Himes is presently making the lay-off calls from his home in the Pasadena area. Informant A, 35 number six stated that when Himes was out of town his wife, Susan, would handle the lay- off calls. Informant number three advised your affiant on June ll, 1974, that during the last week in May, 1974, the incoming calls to the backers from the lay-off office had been made by a female caller usually between the hours of 1:00 and 3:30 p.m. Informant number three advised that after this week the calls continued to be made by the male caller as before during the same time period. Informant number three stated he had overheard from Genco that the reason that the woman had been calling-during the last week in May was because her husband, who usually handled the lay- off office, had been out of town during that week and she had been entrusted with handling the lay-off calls. On June 28, 1974, informant number six advised Special Agent Jerry W. Bastin who advised your affiant that Bob Himes and his wife Susan had moved from his residence in Pasadena, Maryland to Jopps, Maryland. This move had occurred during the last week of June, 1974, Informant number six further advised that during the past week he had overheard Himes state that he was still handling the lay-off office for "Fifi'' London at his new residence in Joppa, and that London had called him at this location on at least one occasion to take care of matters that related to the "lay-off" business. Himes A. 36 was overheard to state that he used the same telephone set up in Joppa as he had used in Pasadena and that the phones were still in the name of his wife Susan and that they uti- lized the auxiliary phone to make the daily lay-off calls to the different backers. Informant number three advised your affiant on July 3, 1974, that he had been told by an individual who was receiving a lay- off call from Robert "Fifi" London's lay-off office that the lay-off call was currently being made by the same individual who had been making this incoming call in May. This source advised that this call continued to be made between 1:00 and 3:30 p.m. each day. Informant number three advised your affiant on July 18, 1974, that as of this date one of the individual backers is continuing to receive the daily incoming telephone call between 1:00 and 3:30 p.m. from the lay-off office maintained by London, The individual taking the lay-off from this backer is the same caller as previously noted. The source knows of this through direct contact with the individual receiving this call. On July 19, 1974, Special Agent John Bonner advised Special Agent Thomas A. Kelly that on this date he contacted informant number five who stated that as of July 19, 1974, conversa- tions between Robert "Fifi’’ London, Richard Genco, Albert Isella and others involved in the lay-off operation occur in the basement office A, 37 of 1202 North Charles Street. He described the office space as consisting of a large room con- taining a counter and two desks, one usually occupied by London and the other by a secre- tary. The informant further advised that there is a small cubicle off to the north side of this large room containing a desk. Additionally he advised that on the far west side of the office there is a rear room generally used as a stor- age and toilet area. The informant advised that he has observed within the past week London conduct business with numbers backers in the large room and take individuals to the rear room when the front room is occupied by other people. Informant number six advised Special Agent Jerry W. Bastin on July 22, 1974, who advised your affiant that while present at Robert "Fifi" London's office at 1202 North Charles Street, Baltimore, Maryland, during the past week that he had observed two Negro males come into this office and discuss lay-off with Robert London. This source further advised that from the conversation between Robert "Fifi" London and these two Negro males he was able to determine that they were either numbers backers or representatives of numbers backers and that their conversation with London in- volved the gambling business. eRe oe A. 38 APPENDIX C EXCERPT TAKEN FROM THE HONORABLE C, STANLEY BLAIR'S MEMORANDUM AND ORDER DENYING PETITIONERS' MOTION FOR JUDGMENT OF ACQUITTAL OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL As the court has indicated, eavesdropping is a breed apart from the usual telephone inter- caption. There was no way the agents in this case could have fulfilled the mandate of the warrant without fairly continuous monitoring. Necessarily they were privy to innocent con- versations. To have indiscriminately recorded all of these would have been an unwarranted in- vasion of the defendants lawful activity. Another relevant factor is the government's reasonable expectation about the contents of the intercepted communications. In this case, it should first be recalled that electronic eaves- dropping rather than a telephone tap is involved, With a telephone tap, communications are divided into discrete units which government agents can appraise individually and if believed to be innocent, can cease intercepting. They then can resume their interception activities with the activation of their equipment by the next telephone cail. This segregation of communications does not exist with electronic eavesdropping. At one point in a con- versation one of the conspirators may be discussing an innocent matter with a nonconspirator and shift without warning to the government agents to dis- cussing illicit operations with a co-conspirator. In this context government agents must be given a broader scope for interception. A. 39 APPENDIX D EXCERPT TAKEN FROM THE GOVERNMENT'S ANSWER TO PETITIONERS' MOTION FOR JUDG- MENT OF ACQUITTAL OR IN THE ALTERNATIVE MOTiON FOR NEW TRIAL In this case, as in United States v. Quin- tana, supra, at page 874, the purpose of the eavesdropping was not so much to incriminate the known person whose place of business was tapped as to learn the identity of the co-con- spirators and to delineate both the contours and the interior workings of the conspiracy. In an attempt to minimize the invasion of privacy upon the defendant, London, the Government did not record those conversations between Mr. London and others which were deemed to be not connected with the gambling enterprise. The defendants have contended that this practice also violated the provisions of the statute and has therefore, placed the Government on the horns of a dilemma. On one hand, they complain that minimization was not done, and on the other that the minimization technique that was utilized was improper. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2058%3A1. Public record. Not legal advice.