Reply Brief — Scott v. United States

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER, TERM a *

NO. 76-6767

FRANK R. SCOTT AND BERNIS L. THURMON,

Petitioners,

ve.

UNITED STATES OF AMERICA,

Respondent,

cherry BRIEF OF PETITIONERS TO RESPONDENT'S BRIEF IN OPPOSITION

—

TO PETITION FOR A WRIT OF CERTIORARI

Michael E. Geltner

Attorney for Petitioner Thurmon

Georgetown University Law Center

Appellate Litigation Clinic

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

Tele: (202) 624-8297

John A. Shorter, Esq.

Attorney for Petitioner Scott

508 Fifth Street, N. u.

Washington, D.C. 20001

Tele: (202) 638-4040

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United States vs. Armocida, 515 F.2nd

29,42 (3rd Cir.), cert denied 423 U.S.

858 KK 66000006064660000000 6066 0660060000 00008

United States vs. Bellosi, 163 U.S.

App. D.C. 273, 501 F. and 833 TEP 66066 6060066060608608

United States vs. Clerkley, 556 F.2nd

709 (4th Cir. DTT. ~ «560660660 00606860606000066060R60R0R

United States vs. Giordano, 469 F.2nd

522 (4th Cir. 1973), affirmed 94 S.Ct.

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United States vs. King, 474 F. and 494

(9th Cir. 1973), cert denied sub nom

Light vs. United States, 414 U.S. 846 (157) 3

United States vs. Quintana, 508 F.2nd

867, 874 (7th Cir. , rere, eee ee ee eee TTT

United States vs. Tortorello, 480 F. and

764, 784 (2nd Cir.), cert denied 414 U.S.

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11

INTRODUCTION

The Government's opposition brief sets forth several argu-

ments against issuing the writ of certiorari which, we believe,

do not stand the test of comparison with the record.

ARGUMENTS

I. THE MERITS - MINIMIZATION

The Government contends the court of appeals’ analysis of

the minimization issue is "entirely consistent with the ana-

lysis of the other courts of appeals that have considered the

issue." Opposition brief, p.8. That claimed consistency is

hard to find. Moreover, it does not take extensive examina-

tion of the wiretap records or evidentiary hearing transcripts

to demonstrate the point.

Recognizing, as we do, that even total interception can

sometimes be reconciled with the minimizacion requirement,

other circuits have articulated as the key to sustaining such

wiretaps the efforts of the monitoring agents to avoid un-

necessary interception. Judge Winter, for the Fourth Circuit,

recently wrote that “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 reasonable could to avoid

unnecessary intrusion.” United States vs. Clerkley, 556 F.2nd

709 (4th Cir. 1977), quoting United States vs. Armocida, 515

F.2nd 29, 42 (3rd Cir.), cert. denied 423 U.S. 858 (1975),

quoting, in turn, United States vs. Tortorello, 480 F.2nd

764, 784 (2nd Cir.), cert. denied 414 U.S. 866 (1973). See

also United States vs. Quintana, 508 F.2nd 867, 874 (7th Cir.

1975). This case cannot be reconciled with that standard.

The supervising agent testified that, with one irrelevant

1/

exception, no effort was made to minimize interception. His

testimony, excerpted in the petition in Appendix C, was the

basis for Judge Waddy's finding, after the first remand, that,

despite their admitted knowledge of the minimization require-

ment, the monitoring agents made no attempt to comply with

the minimization order

Portions of the court of appeals’ opinion reversing the

second suppression order pay lip service to the standard

quoted above from Clerkley, but its path to decision proceeds

on the objective theory that an after the fact analysis show-

ed a substantial number of crime related calls and no appar-

ent category of calls which could be easily identified as

unrelated.

Even on a purely objective analysis, this case does not

match up to those of other circuits. United States vs.

Quintana, 508 F.2nd 867 (7th Cir. 1975), for example, suggests

three criteria - the size of the criminal enterprise, the rea-

sonable expectation of the content of the conversations and

the extent of judicial supervision. This case fares very

badly on the first and third criteria. On the second, Judge

Waddy's first opinion (Appendix A) summarizes several cate-

gories of calls which could not have related to drugs. A

fourth factor, mentioned in Clerkley, is the need to identify

unknown participants in the conspiracy. 350 FT. and at 717.

The Government has not claimed any such justification in this

case. Even if the court of appeals is correct in suggesting

that objective criteria can sometimes validete a bad faith

refusal to undertake minimization, its opinion in this case

authorizes total incorporation on facts inconsistent with

those articulated in other circuits.

_l/ The wrong line had been tapped.

11. STANDING

-

Although conceding that Thurmen, whose non-crime related

conversations were overheard, has standing to complain of the

9 violation, the Government argues that Scott does

not. In its first opinion, the court of appeals correctly

rejected the claim. Judge McGowan's opinion for the court

pointed out that 18 U.S.C. §2510(11) defines an "aggrieved

person“ as any person “who was a party to any intercepted

wire. . .communication." Section 2518, in turn, gives any

"aggrieved person” the right to "move to suppress the contents

of any intercepted wire. . .communication. . .on the grounds

that. . .(iii) the interception was not made in conformity

with the order of authorization. . ." Scott falls within the

statutory definition.

Judge McGowan's reading of the statute is consistent with

the case law in the District of Columbia Circuit, see, e. 9.

United States vs. Bellosi, 163 U.S. App. D.C. 273, 501 F.2nd

833 (1974) and in other circuits. See, e.g., United States

vs. Giordano, 469 F.2nd 522 (4th Cir. 1972), affirmed 94 8.

Ct. 1820 (1974). Although the non-literal reading of the

statute proposed by the Government has been adopted elsewhere,

see, e.g., United States vs. King, 474 F.2nd 494 (9th Cir.

1973), cert denied sub nom Light vs. United States, 414 U.S.

846 (1974), that conflict is hardly reason to refuse review

here. If the Government is serious about its reading of the

statute, it should be urging the Court to consider it as one

of the questions presented.

2/ This brief is filed on behalf of Scott and Thurmon. It

s not argue for Daviage, who is separately represented.

CONCLUSION

The writ should be granted for all petitioners.

Respectfully Submitted,

N

Attorney for Petitioner Thurmon

Georgetown University Law Center

Appellate Litigation Clinic

600 New Jersey Avenue, N.W.

Washington, D.C. 20001

Tele: (202) 624-8297

Nele, A. Sante

A. Shorter, le D

2 orney for Petitioner scott

508 Fifth Street, N. W.

Washington, D.C. 20001

Tele: (202) 638-4040