Petition — Schepici v. United States

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Supieme Court, U. &

1977

AK, JR., oi

Octoser Term, 1976

Nn. 77-1668

ANDREW SCHEPICI,

JOSEPH MASTRULLO,

JOHN BRADANESE, and

CHARLES PALAZZOLO,

PETITIONERS,

UNITED STATES OF AMERICA, “~

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JoserH J. BaLuimo

Rr«xr J. Kumman

Joan C. Scummt

One Center Plaza,

Boston, Massachusetts 02108

( =) 227-5822 f

ttorneys for Andrew Schepict

Martin G. WEINBERG

Orert & WEINBERG

10 Post Office Square

Boston, Massachusetts 02109

) 227-3700

ttorney for Joseph Mastrullo

and John Bradanese

GeraLtp ALCH

Wruum J. Crytoio

One Center Plaza

Boston, Massachusetts 02108

(617) 742-5566

Attorneys for Charles Palazzolo

|§ $$$ eee?

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

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TABLE OF CONTENTS

Page

i Be ee ee a eae oe 2

bia ote ie 2

Question Presented for Review... .__.. PO CRIS A: 2

I ioe PRM so aan od acne bo Oe CER 2

Oe a ee ae 3

Reasons for Granting the Writ..................... 5

A. The Opinion of the Court of Appeals for the

First Cireuit Is Contrary to the Intent of

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

RO I ios. cs 3s os we cle 5

B. A Wide Divergence of Opinion Exists Among

the Several Circuit Courts of Appeals Concern-

ing the Extent To Which the Government Must

Aver Its Exhaustion of Normal Investigative

Techniques and the Extent To Which It Must

Actually Pursue Alternative Means to Elec-

CS ein er ae 10

5 el tii 5 bie ee es he es Be be 12

Appendix A: Opinion of the United States Court of

Appeals for the First Circuit ..... a =

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

2 ~ Testis) aris 26

TABLE OF AUTHORITIES

Cases

Gelbard v. United States, 408 U.S. 41 (1972) ......... 5

United States v. Anderson, 542 F.2d 428 (7th Cir. 1976) 10

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

cert, denied, 423 U.S. 858 (1976) ...............4. 10

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

li Table of Contents

United States v. Kahn, 415 U.S. 148 (1974) ......... 6, 8

United States v. Kalustian, 519 F.2d 585 (9th Cir. 1976) 11

United States v. Scibelli, 549 F.2d 222 (1st Cir. 1977),

cert, denied, 45 U.S.L.W. 3787 (June 7, 1977) .... 8, 10

United States v. Spagnuolo, 549 F.2d 705 (9th Cir. 1977)

11, 12

United States v. Vento, 533 F.2d 838 (3rd Cir. 1976) .. 10

Statutory Provisions

United States Code, Title 18,

Chapter1,Section2......... Sea ay et Cer tae 2,3

gp rr 2,3

Chapter 95, Section 1955 ........................ 2, 3

Chapter 119, Section 2518 .............. 2, 5, 6, 7, 9, 12

Miscellaneous

S. Rep. No. 1097, 90th Cong., 2d Sess. 101, U.S. Code

Cong. & Admin. News 1968, pp. 2112, 2190 ......... 7

Tn the

Supreme Court of the United States

Octoser Term, 1976

No.

ANDREW SCHEPICI,

JOSEPH MASTRULLO,

JOHN BRADANESE, and

CHARLES PALAZZOLO,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioners, Andrew Schepici, Joseph Mastrullo, John

Bradanese and Charles Palazzolo, respectfully pray that a

writ of certiorari issue to review the judgment and opinion

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

cuit entered on June 30, 1977.

Opinion Below

The Opinion of the Court of Appeals for the First Cir-

cuit has not yet been published in the official reports.

A copy of the Opinion is attached hereto as Appendix A.

(App. 13-25).

Jurisdiction

The judgment sought to be reviewed was entered by the

United States Court of Appeals for the First Circuit on

June 30, 1977. No petition for rehearing was filed because

of the limitation of such petitions to new matters under

Local Rule 15 of the Firs. Circuit.

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

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

by writ of certiorari.

Question Presented for Review

I Wueruer or Nor tHe GoveRNMENT Fartep To Com-

pLy Wirth THE Retevant Provisions or 18 U.S.C. §2518

(1)(¢), Reqummc Tat Arriavits, APPLICATIONS, AND

Orpers Usep To Secure Permission For Exvectronic Sur-

VEILLANcE Ser Fortn Wirn Svurricrent ParTIcULARITY

Tat INVESTIGATIVE ProcepurEs, OrHER THAN ELECTRON *:

Survertance, Were Trirep AND FarLep or REASONABLY

AppgEaRED UNLIKELY To Svucceep 1F Triep on Were Too

DaNncEROovs?

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.

26-36).

Statement of the Case

Petitioners Schepici, Mastrullo, Palazzolo, and others

were charged with operating an illegal gambling business

and with conspiracy to commit the substantive offense in

violation of 18 U.S.C. §§2, 371 and 1955. Petitioner Brada-

nese was charged with a substantive violation only. After

a non-jury trial on stipulated facts, each petitioner was

convicted of one count of conducting, managing, supervis-

ing, owning and directing a bookmaking business, in vio-

lation of 18 U.S.C. §1955.

The convictions arose in the context of four indictments

returned together on June 27, 1975. The indictments were

based on evidence derived from a series of wiretaps con-

ducted pursuant to three court authorizations. The three

wiretap orders, issued on December 4, 1974, December 17,

1974, and January 17, 1975, were based on affidavits sub-

mitted by F.B.I. Agent Thomas J. Daly.

Various defendants named in the four indictments

brought pre-trial motions to suppress the direct and deriva-

tive fruits of the three sets of wiretaps. The motions were

denied after an evidentiary hearing.

The gravamen of the suppression motions was that the

affidavits in support of the Government’s applications for

wiretap orders coniained the following boilerplate alle-

gations:

‘‘Normal investigative procedures have failed to gather

evidence necessary to sustain prosecution for viola-

tions of these offenses and appears unlikely to suc-

ceed if tried further.’’

Special Agent Daly also alleged in each of the three

affidavits: A

‘‘While informant information and physical surveil-

lances have established a reasonably consistent pat-

tern of conduct and associations which point to the

conducting of an illegal gambling business, these ob-

servations do not amount to sufficient proof of a

violation of Title 18, United States Code, Section 1955.

While execution of search warrants involving the 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

personal safety.’’

Agent Daly’s affidavits contain nothing further on the

subject of normal investigative procedures beyond the fol-

lowing statement in the first affidavit:

‘‘TInasmuch as the telephone facilities set forth in

this affidavit are all situated in private premises lo-

eated at 170 Linden Street, Everett, 29 Sagamore

Avenue, West Medford, and 15 Brookford Street,

Cambridge, Massachusetts, respectively, it is impos-

sible for law enforcement officers to observe the gam-

bling activities at these locations.’’

At the hearing on the motion to suppress, Agent Daly

stated that ‘‘a great number of,’’ if not most, gambling

operations are carried out in private residences.

He further admitted that contrary to the allegations in

his affidavits, the following investigative procedures were

not employed: (a) Prior to electronic surveillance, no war-

rants were sought for persons or places involved; (b) Pay-

ment of monies to informants to testify was not offered;

(d) Protective custody for informants was not offered;

(e) No telephone conversation between an informant and

a target of the investigation was monitored; (f) Informants

were not summoned before the grand jury then in session;

(g) Other persons to whom telephone services were listed

were neither interviewed, summoned before a grand jury,

offered immunity, protective custody, or money for testi-

mony; (h) Persons whose names came up as connected to

the investigation were neither interviewed, summoned

before a grand jury, offered immunity, protective custody

or money for testimony; (i) Local authorities were not

sought to ascertain whether surveillances were conducted

as to the persons or places involved in the investigation.

The petitioners’ appeal to the United States Court of

Appeals for the First Circuit concerned itself with various

issues, among them being whether the trial court erred in

denying petitioners’ motions to suppress the evidence

acquired during the three electronic surveillances for the

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

§2518(1)(¢), which requires that an application for a wire-

tap order include ‘‘a full and complete statement as to

whether or not 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 Oprntion or tHe Court or Appgeats For THE

First Circuit Is Contrary To THE INTENT or CoNGRESS IN

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

Title III of the Omnibus Crime Control and Safe Streets

Act of 1968 provides that judicial approval for wiretapping

‘‘may not be given except upon compliance with stringent

conditions.’’ Gelbard v. United States, 408 U.S. 41, 46

(1972). In enacting Title III, Congress ‘‘evinced the clear

intent to make doubly sure that the statutory authority be

used with restraint and only where the circumstances war-

rant the surreptitious interception of wire and oral com-

munications. These procedures were not to be routinely

employed as the initial step in criminal investigation.’’

United States v. Giordano, 416 U.S. 505, 515 (1974).

Specifically, 18 U.S.C. §§2518(1)(c) and (3)(e) requiré

an application for authority to make any wire interception

to state, and the judge authorizing any such wire intercep-

tion to find, that normal investigative procedures have

either failed or appear unlikely to succeed. In United States

v. Kahn, 415 U.S. 143, 151 (1974), this Court refers to the

legislative history and Congressional intent behind these

provisions.

With respect to §2518(1)(c), the Senate Report indi-

cated:

‘‘Subparagraph (c) requires a full and complete state-

ment as to whether or not normal investigative pro-

cedures 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 traditional search

warrant practice and present English procedure in

the issuance of warrants to wiretap by the Home

Secretary. ... The judgment would involve a consider-

ation of all the facts and circumstances. Normal

investigative procedure would include, for example,

standard visual or aural surveillance techniques by

law enforcement officers, general questioning or inter-

rogation under an immunity grant, use of regular

search wararnts, 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. See

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

rari denied, 86 S. Ct. 487, 382 U.S. 959 (1965); New

York v. Saperstein, 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., 101, U.S.

Code Cong. & Admin. News, 1968, p. 2112, at 2190.

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

an ex parte order authorizing or approving the interception

of wire or oral communications. What the judge must

determin@™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

circumstances, which fully comply with the require-

ment of particularity (Berger v. New York, 87 8S. 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. 1097, 90th Cong., 2d Sess., 101, U.S.

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

It is clear that Title ITI of the Omnibus Crime Control

and Safe Streets Act of 1968 was the reaction of Congress

to an awakening realization that our form of government

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 communi-

cation requires that law enforcement be given an equally

effective 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)(c).

Further, 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).

In the opinion below, the Court of Appeals, quoting

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

United States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977),

cert. denied, 45 U.S.L.W. 3787 (June 7, 1977), observed

that Section 2518(1)(c) was not designed to force the

Government to exhaust all other procedures before resort-

ing to wiretapping, but was designed ‘‘ ‘to assure that wire-

tapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime.’ ”’

(App. 12).

However, rejecting petitioners’ contention that the aff-

davits were insufficient, the Court of Appeals merely noted

that the applications were preceded by a three month

investigation which included the gathering of information

from informants who were unwilling to testify. (App. 19).

In the affidavits, Agent Daly stated that the informants

were unwilling to testify for fear of their personal safety.

Daly later testified that one informant was unwilling, but

he did not know precisely why. The Court of Appeals, in

footnote 4, dismissed the argument that in such a situ-

ation, at the very least, immunity or protective custody

should have been considered. (App. 20-21).

The Government’s unqualified statement that normal in-

vestigative procedures ‘‘have failed’’ left the issuing court

with no choice but to conclude that the Government had

at least attempted to use normal techniques before seeking

wiretap authorizations. See 18 U.S.C. §2518(1)(c). The

affidavits create the impression that such other efforts were

made, but with little success. Agent Daly’s testimony at

the hearing on the motion to suppress demonstrated that

this impression was, in fact, false. (See Statement of the

Case, supra, at 4-5).

What is revealed in the opinions below is that token

compliance with statutory norms can be substituted for the

rigorous prerequisites which Congress promulgated. The

picture is hardly that of law enforcement officials using

wiretap authority ‘‘with restraint’? and under ‘‘stringent

conditions’’.

Petitioners agree with the Court of Appeals that the

‘*statute does not require that the Government try every

possible technique before resorting to wiretapping’’. (App.

21). However, contrary to the opinion of the Court of

Appeals, in order to comply with Congressional intent,

what is required is a detailed statement as to why certain

normal investigative techniques are inappropriate for the

particular matter under investigation. Only then can the

judge before whom the application is brought make an

independent judgment that a wiretap is necessary, and is

not merely the path of least resistance for the Government.

B. A Wwe Divercence or Opinion Exists AMONG THE

SeveraL Crrevir Courts or APPEALS CONCERNING THE Ex-

TENT To WuHiIcH THE GOVERNMENT Must Aver Its ExnHavs-

TION oF NoRMAL INVESTIGATIVE TECHNIQUES AND THE EXxTENT

To Wuicu Ir Actuatty Must Pursue ALTERNATIVE MEANS

To Evectronic SuRVEILLANCE.

In the opinion below, the Court of Appeals devoted little

attention to petitioners’ argument that more than a con-

clusionary affidavit is necessary for compliance with 18

U.S.C. §2518(1)(c). Rather a citation to a prior opinion,

United States v. Scibelli, 549 F.2d 222 (1st Cir. 1977),

cert. denied, 45 U.S.L.W. 3787 (June 7, 1977) seemed to

suffice.

The position of the First Circuit now appears to be one

of permissive deference to generalizations offered by the

Government. In United States v. Scibelli, supra, the Cireuit

Judges stated that mere conclusions alone would cause

them some ‘‘uneasiness’’ and the question of the sufficiency

of the affidavit ‘‘would be closer’’. 549 F.2d at 227. How-

ever, the cursory treatment of the issue in petitioners’ case

reveals that mere conclusions may suffice.

This places the First Circuit in close alliance with the

‘‘pragmatic’’ approach adopted by the Third Circuit in

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

cert. denied, 423 U.S. 858 (1976), and United States v.

Vento, 533 F.2d 838 (3rd Cir. 1976). It could also be seen

to be in agreement with the Seventh Circuit which believes

that ‘‘the government’s burden of establishing its compli-

ance with [subsection 2518(1)(c)] is not great.’’ United

States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976).

This position raises a serious question with regard to

Congressional intent.

At the time of application for certiorari in United States

v. Scibelli, supra, at the opposite end of the spectrum was

the position of the Court of Appeals for the Ninth Circuit,

as enunciated in United States v. Kalustian, 529 F.2d 585

(9th Cir. 1976). The Ninth Circuit stated that an appli-

cation must demonstrate why traditional investigative tech-

niques were insufficient in a particular case so a judge

‘‘ean determine whether other alternative investigative

procedures exist as a viable alternative.’’ 529 F.2d at 590.

Today, the position of the Ninth Circuit is even stronger

which makes the treatment of defendants in the various

circuits even more disparate. In United States v. Spag-

nuolo, 549 F.2d 705 (9th Cir. 1977), the Court mandated

that an affidavit reveal which normal investigative tech-

niques have been employed in a good faith effort. Or, if

such techniques are not employed, a factual showing must

be made, independent of the agent’s assertions of experi-

ence, revealing ‘‘that under the particular circumstances

of the case the employment of such techniques ‘reasonably

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

549 F.2d at 710.

Where the First Circuit permits an issuing judge to take

shorteuts and consider that the crime is ‘‘essentially a

telephone crime’’ (App. 19), the Ninth Circuit demands

time and consideration:

It is no doubt true that experienced agents at the

outset of an investigation can anticipate with a fair

degree of accuracy whether ordinary techniques will

fail or prove to be ‘too dangerous.’ To delay the wire-

tap order while ordinary techniques are employed or

to undertake to educate a district judge to enable him

to appreciate their level of experience no doubt ap-

pears to such agents as a waste of time and resources.

Their perception may be accurate, but Congress has

deprived it of decisive influence. The particularized

showing here described is necessary. The district

judge, not the agents, must determine whether the

command of Congress has been obeyed.

549 F.2d at 710-711.

The obvious purpose of 18 U.S.C. §2518 is to secure the

right of an individual citizen to be free of unwarranted

and unjustified intrusion by wiretapping. A determination

by this Court as to the particulars which must be presented

to a judge before a wiretap order can issue is necessary

to protect citizens by ensuring uniformity in the applica-

tion 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 certio-

rari should be granted: to determine whether the opinion

of the Court of Appeals for the First Circuit is contrary

to the intent of Congress in passing 18 U.S.C. §§2518(1) (e)

and (3)(c); and to resolve the inconsistent opinions of the

several Circuit Courts of Appeals.

Respectfully submitted,

JosEPH J. BAaLLiRo

Rrxxi J. KuremMan

Joan C, Scomipt

One Center Plaza,

Boston, Massachusetts 02108

(617) 227-5822 if

Attorneys for Andrew Schepict

Martin G. WEINBERG

Orert & WEINBERG

10 Post Office Square

Boston, Massachusetts 02109

(617) 227-3700

Attorney for Joseph Mastrullo

and John Bradanese

GERALD ALCH

Wituum J. Crxtoio

One Center Plaza

Boston, Massachusetts 02108

(617) 742-5566

Attorneys for Charles Palazzolo

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 76-1178

UNITED STATES OF AMERICA,

APPELLEE,

VICTOR SANTARPIO, a/k/a ‘‘Lerry’’,

DEFENDANT, APPELLANT.

No. 76-1179

UNITED STATES OF AMERICA,

APPELLEE,

JOSEPH S. MASTRULLO,

DEFENDANT, APPELLANT.

No. 76-1180

UNITED STATES OF AMERICA,

APPELLEE,

THOMAS HURLEY,

DEFENDANT, APPELLANT.

No. 76-1181

UNITED STATES OF AMERICA,

APPELLEE,

Vv.

CHARLES PALAZZOLO,

DEFENDANT, APPELLANT.

No. 76-1182

UNITED STATES OF AMERICA,

APPELLEE,

PHILIP CALI,

DEFENDANT, APPELLANT.

No. 76-1183

UNITED STATES OF AMERICA,

APPELLEE,

ANDREW SCHEPICI,

DEFENDANT, APPELLANT.

No. 76-1198

UNITED STATES OF AMERICA,

APPELLEE,

RICHARD SMITH,

DEFENDANT, APPELLANT.

No. 76-1199

UNITED STATES OF AMERICA,

APPELLEE,

HARRY F. HAMPERIAN,

DEFENDANT, APPELLANT.

No. 76-1200

UNITED STATES OF AMERICA,

APPELLEE,

ALBERT F. BRUUN,

DEFENDANT, APPELLANT.

No. 76-1201

UNITED STATES OF AMERICA,

APPELLEE,

JOHN BRADANESE,

DEFENDANT, APPELLANT.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Water Jay Sxinner, U.S. District Judge]

Before Corrin, Chief Judge,

AupricH and CampBELL, Circuit Judges.

Martin G. Weinberg, Joseph J. Balliro, and Gerald Alch, with

whom William J. Cintolo, Oteri & Weinberg, Joan C. Schmidt,

Jeanne Baker, David Fine, and Rosenberg, Baker & Fine were on

brief for appellants in case numbers 76-1179, 76-1181, 76-1183

and 76-1201.

John J. Sylvester, by appointment of the Court, for appellant in

case number 76-1182.

Alan R. Hoffman, by appointment of the Court, with whom

ay and Flannery, was on brief, for appellant in case number

-1178.

Francis J. O’Rourke, by appointment of the Court, and Maloney,

Williams & Baer appearing for appellant in case number 76-1200.

William J. Carr appearing for appellant in case number 76-1199.

gy K. Giroux appearing for appellant in case number

-1198.

Robert Y. Murray, by appointment of the Court, and Moulton

& Looney appearing for appellant in case number 76-1180.

Frederick Eisenbud, Attorney, Department of Justice, with

whom James N. Gabriel, United States Attorney, and William G.

Otis, Attorney, Department of Justice, were on brief, for appellee.

June 30, 1977.

CampBELL, Circuit Judge. The ten appellants were named

in four indictments! which charged them, and others, with

1The indictments charged appellants with having ‘‘conducted,

managed, supervised, owned, and directed an illegal gambling busi-

operating an illegal gambling business and with conspiracy

to commit that offense in violation of 18 U.S.C. §¢ 1955

and 2. Following a jury-waived trial, all were convicted

on one count of conducting an illegal gambling business.

The Government’s primary evidence consisted of stipu-

lations of fact including transcripts of court authorized

wire interceptions of telephone conversations conducted

between December 19, 1974 and February 3, 1975. An

FBI bookmaking expert through stipulation and testimony

explained how a bookmaking business works and gave his

opinion based on the other evidence that each of the

defendants was part of one gambling enterprise. The Gov-

ernment also introduced gambling paraphernalia seized in

warrant-authorized searches of several locations used in

defendants’ bookmaking operations. Seen in the light most

favorable to the Government, this evidence revealed a gam-

bling business unified by the exchange of line and other

gambling information and layoff bets between bookmakers.

Briefly the stipulated facts were as follows.

Thomas Hurley owned a bookmaking business the cen-

tral office of which was managed by Victor Santarpio

ness ... (1) having a gross revenue of two thousand dollars

($2,000) on a single day, (2) remaining in substantially continuous

operation in excess of thirty (30) days, (3) involving five persons

in its conduct, financing, management, supervision, direction, and

ownership, and (4) being in violation of Massachusetts General

Laws, Chapter 271, Sections 7, 17 and 17(a)’’, all in violation

of 18 U.S.C. § 2255 and 2. Four appellants, Cali, Hamperian,

Smith and Santarpio, argue that the indictments are duplicitous

and should have been dismissed because each of the cited sections

of Mass. Gen. Laws, ec. 271 ineludes numerous separate state

erimes and appellants were thus deprived of notice of what

allegations they had to prepare to meet. The argument is without

merit. The indictments adequately set out the elements of the

federal crime; appellants were not misled nor prejudiced. Fed. R.

Crim. P. 7(c)(3). See United States v. Morrison, 531 F.2d 1089,

1094 (lst Cir. 1976). We need not decide whether it would have

been enough to state only that the operation was being carried out

‘‘in violation of state law’’. Cf. Babb v. United States, 218 F.2d

538, 540 (5th Cir. 1955).

assisted by an office worker, Albert Brunn. Santarpio

received and accepted layoff wagers on sports from Andrew

Schepici, Joseph Mastrullo, Philip Cali, Richard Smith

and Harry Hamperian. He also received and accepted lay-

off wagers on horses from Schepici. Santarpio exchanged

line information on sporting events with Schepici and

Mastrullo and received from Schepici line information

which had been received from Charles Palazzolo. John

Bradanese was an office worker for Mastrullo.

Appellants, either in combination or individually, make

numerous assignments of error. They challenge the indict-

ments, the legality of the wiretaps, the sufficiency of the

evidence, and, in one case, a condition of probation that

was imposed. Because all challenge the legality of the

three wiretap orders, we address that question first.

The wiretap orders were issued on December 4, 1974,

December 19, 1974 and January 17, 1975, each on the basis

of an application by Special Attorney Jeremiah T. O’Sulli-

van? and an affidavit by FBI Agent Thomas J. Daly. The

telephone company was unable to effect the first taps and

no evidence was obtained from the December 4 order. The

information gained from the other wiretaps led to search

warrants and the seizure of bookmaking paraphernalia.

The district court denied appellants’ motions to suppress

the intercepted communications and derivative evidence.

Appellants assert that the applications were defective

because they failed to demonstrate the inadequacy of nor-

2 There is no merit in appellants’ argument that the indictments

should have been dismissed because they were not signed by the

United States Attorney. Mr. O’Sullivan is ‘‘an attorney for the

government’’ as required by Fed. R. Crim. P. 7(c). See United

States v. Morrison, 531 F.2d 1089 (1st Cir. 1976). Insofar as his

sole signature may have failed to comply with the Attorney Gen-

eral’s Guidelines Governing Interrelationships Between Strike

Forees and U.S. Attorney’s Offices (reproduced in In Re Persico,

522 F.2d 41, 70 (2d Cir. 1975) ) it is only of concern, if at all, to

the Justice Department ; appellants may not raise the issue.

mal investigative procedures, 18 U.S.C. § 2518(1)(c) and

failed to establish probable cause that five or more persons

were involved in an illegal gambling business, 18 U.S.C.

§ 2518(3)(a).* Appellants further argue that the identity

of three anonymous informants should have been revealed

to the defendants or, alternatively, to the court in camera.

In United States v. Schibelli, 549 F.2d 222, 226 (1st

Cir. 1977), cert. denied __ U.S. — (June 6, 1977), we said

that our role on review was ‘‘not to make a de novo

determination of sufficiency . . . but to decide if the facts

set forth in the application were minimally adequate to

support the determination nade.’’ We further observed

that section 2518(1)(c) was not designed to force the

Government to exhaust all other investigative procedures

before resorting to wiretapping but rather serves ‘‘to as-

sure that wiretapping is not resorted to in situations where

traditional investigative techniques would suffice to expose

the crime.’’ Id. quoting United States v. Kahn, 415 U.S.

143, 153 n.12 (1974). We have reviewed the applications

and affidavits which led to the wiretaps in this case and,

reading them in ‘‘a practical and commonsense manner’’,

United States v. Scibelli, supra, 549 F.2d at 226, we cannot

say that the district court erred in finding them to comply

with the requirement of ‘‘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

3 Another argument made by Santarpio and adopted by Bruun,

Hamperian and Smith, is quickly disposed of. Since oral argument

was heard in this case the Supreme Court has stated that the

‘*provisions for manda and discretionary inventory notice

fin 18 U.S.C. § 2518(d)] . . . satisfy constitutional require-

ments. See Katz v. United States, 389 U.S. 347, 355-56 and

n.16 (1967); Berger v. New York, 388 U.S. 41, 60 (1967).’’

United States v. Donovan, _. U.S. __, __ n. 18 (January 18,

1977). See generally United States v. Harrigan, _ F.2d __

(1st Cir., June 20, 1977). :

U.S.C. § 2518(1)(c). The applications show that they

were preceded by a three month investigation which in-

cluded surveillance and the gathering of information from

informants. None of the informants was willing to testify

for the Government. Agent Daly explained that although

a pattern of conduct which reasonably suggested an illegal

gambling business had been established, this would not be

sufficient to convict under 18 U.S.C. 4 1955. In deciding if

other techniques were or were not promising, the court

was entitled to take account of the fact that the alleged

crime was essentially a telephone crime. See United States

v. Schibelli, supra, 549 F.2d at 227; United States v. Stein-

berg, 525 F.2d 1126, 1130 (2d Cir. 1975), cert. denied, 425

U.S. 971 (1976); Im re Dunn, 507 F.2d 195, 197 (1st Cir.

1974).

Appellants laboriously analyze the contents of the first

affidavit suspect by suspect and conclude that there was

insufficient probable cause established with respect to four

of the seven named suspects. Because the federal crime

of conducting a gambling business requires that five or

more individuals be involved, this insufficiency is said to

be fatal to the affidavit. The second application is similarly

- dissected and is additionally attacked as insufficient because,

it is argued, the requirements of 18 U.S.C. § 2518(1)(e)

should have been, but were not met, and the demonstration

of probable cause was not fresh. No direct attack is made

on the third application which was largely based on evi-

dence derived from implementation of the second wiretap

order. It is argued, however, that if the second application

violated the statute, information therefrom must be sup-

pressed, including the derivative evidence resulting from

the third tap. e.

The short answer to much of the foregoing is that it

calls for reading the affidavits in a hypertechnical manner.

They should not be so read. See United States v. Ventresca,

380 U.S. 102, 108-09 (1965). A commonsense interpretation

reveals that there was probable cause as to each of the

persons named in each of the wiretap applications. Indeed,

one reaches the same conclusion even if the affidavits are

read in the refined manner urged. We find, moreover, no

fatal absence of reliability in the statements made by

gamblers to the informants. These admissions against

penal interest by confessed bookmakers concerning gam-

bling operations of which they were a part were certainly

entitled to weight. See United States v. Harris, 403 U.S.

573, 583-84 (1971) (plurality opinion); United States v.

Bowser, 532 F.2d 1318, 1321 (9th Cir. 1976) ; United States

v. Carmichael, 489 F.2d 983, 986-87 (7th Cir. 1973) (en

banc); Fed. R. Evid. 804(b)(3). Reasonably viewed, we

find none of the statements to be ‘‘hopelessly vague’’, as

alleged, nor insufficiently fresh. We reject the contention

that collecting debts from delinquent accounts and settling

with bettors does not show one to be an integral part of

the conducting of business within section 1955. See, e.g.,

United States v. Sacco, 491 F.2d 995, 1002-03 (9th Cir.

1974); United States v. Smaldone, 485 F.2d 1333, 1351

(10th Cir. 1973), cert. denied, 416 U.S. 936 (1974). Finally,

the second application was not an extension of the first

but a new request covering phones different from those

sought to be tapped pursuant to the first order. As such

it complied with the requirements of 18 U.S.C. § 2518(1)(e).

See United States v. Florea, 541 F.2d 568, 576 (6th Cir.

1976), cert. denied, __ U.S. —— (March 28, 1977).

The district court had no reason to require that the

informants be identified. There was probable cause to

issue the wiretap orders and there were no material mis-

representations in the affidavits;* moreover, the district

* We find no merit in appellants’ contention that Agent Daly’s

affidavits were infected by serious misrepresentations. Assuming

that Agent Daly knew that informant number three was unwilling

a >

court heard the testimony of Agent Daly at the hearing on

the motions to suppress and apparently was satisfied that

the information received from the informers was reliable

and the informants credible. See McCray v. Illinois, 386

U.S. 300, 304 (1967) quoting Aguilar v. Texas, 378 U.S. 108,

114 (1964). Not only was there no requirement that the

informants’ identities be revealed to appellants, see McCray

v. Illinois, supra, 386 U.S. at 311-12 & n.11, but the court

had no reason based either on Agent Daly’s testimony or

on the affidavits themselves to question the reliability of

the informants. In camera identification was thus not

required and the cases cited by appellants, United States

v. Freund, 525 F.2d 873 (5th Cir. 1976); United States v.

Anderson, 509 F.2d 724 (9th Cir. 1974), cert. denied, 420

U.S. 910 (1975); United States v. Hurse, 453 F.2d 128 (8th

Cir. 1972), cert. denied, 414 U.S. 908 (1973), are simply

inapposite.

Appellants’ remaining arguments that the wiretap evi-

dence should have been suppressed are similarly without

merit.

Palazzolo, Cali and Hamperian argue that the Govern-

ment’s evidence was insufficient to establish that each of

them conducted an illegal gambling business in violation

of 18 U.S.C. § 1955. In reviewing these assertions, we con-

to testify but not precisely why, and that to this extent he mis-

spoke when he said that none of the informants was willing to

testify ‘‘for fear of his personal safety’’ the error did not compel

a finding of bad faith, nor was it of major materality. As the

Government was not obliged to pursue with its informants the

possibility of protective custody, United States v. Schibelli, 549

F.2d 222, 228 n.5, cert. denied, _. U.S. __. (June 6, 1977), its

failure to do so did not undermine the representations in the

affidavit.

Similarly there is no merit in the claim that the affidavits were

fatally undermined because alternative investigative measures were

not exhaustive enough. The statute does not require that the

Government try every possible technique before resorting to wir-

tapping. See infra.

sider evidence in a light most favorable to the Government,

United States v. Doran, 483 F.2d 369, 372 (1st Cir. 1973),

cert, denied, 416 U.S. 906 (1974).

We start with Palazzolo. Intercepted during the third

wiret p, he contends that his laying off of bets with Shepici

was not enough to establish that he was a participant in

the larger Santarpio operation.* He argues that the evi-

dence shows that Palazzolo disseminated line information

to Schepici only twice, and that the amount of business

Schepici laid off to Palazzolo was ‘‘miniscule’’. In fact,

Palazzolo furnished to, and accepted from, Schepici layoff

wagers on numbers and horses, and, on at least one

occasion, Schepici then laid off to Santarpio bets he had

received from Palazzolo. Schepici discussed with Palazzolo

settlement of his account and, on a number of occasions,

furnished line information on sports to Schepici who, on

one occasion, in turn furnished the line to Santarpio.

It was not necessary to show that Palazzolo knew that he

was aiding Santarpio and others beside Shepici. See United

5 During the second set of wiretaps mention was made in the

course of an intercepted conversation of ‘‘Freestone’’. Agent Daly,

in his affidavit in support of the third set of taps, stated that he

knew ‘‘Freestone’’ to be Palazzolo’s nickname. Palazzollo was,

however, not named as one the Government had probable cause

to believe to be committing ihe offenses for which the second tap

was sought, see 18 U.S.C. ,» 2518(1)(b) (iv), although he was

subsequently intercepted during the third set of wiretaps. While

not arguing that the failure to identify him was an effort to

mislead the district court as to whether there was probable cause

to tap, Palazzollo urges that the Government’s purported failure

to comply with section 2518(1)(b)(iv) should lead to the sup-

pression of the evidence against him.

It is true ‘‘that a wiretap application must name an individual

if the Government has probable cause to believe that the individual

is engaged in the criminal activity under investigation and expects

to intercept the individual’s conversations over the target phone.’’

United States v. Donovan, __ U.S. __, (January 18, 1977), but,

where, as here, ‘‘the application provided sufficient information

to the issuing judge to determine that the statutory preconditions

were satisfied’’, id. at __, the interceptions are not unlawful and

the evidence will not be suppressed. Jd. at __.

States v. DiMuro, 540 F.2d 503, 508 n.5 (1st Cir. 1976),

cert. denied, __ U.S. —— (1977) citing United States v.

Brick, 502 F.2d 219, 224 (8th Cir. 1974).

The stipulated evidence against Cali was that he re-

ceived line information on sporting events from, furnished

layoff wagers on sports and horses to, and discussed the

settlement of his account with, Santarpio. Furthermore,

Cali discussed With Mastrullo the fact that his, Cali’s,

‘make-up’ on sports to Santarpio (that is, the amount

owed) was $25,000. Cali contends that the evidence simply

does not show a sufficiently regular and consistent type of

connection with Santarpio to fuse Cali into the overall

operation. The fact, however, that Cali gave line informa-

tion to, and accepted layoff bets from Santarpio, is basis

enough for the conviction; it could be determined that

Cali’s participation was necessary and useful to Santarpio’s

gambling enterprise. See United States v. DiMuro, supra,

540 F.2d at 508.

The stipulated evidence against Hamperian was that he

furnished layoff wagers on numbers to Santarpio and

Bruun and discussed the settlement of his account on

numbers, horses and sports with Santarpio. He also dis-

cussed with Santarpio his ‘‘commission and his pay-off of

‘hits’ on numbers to customers of the business’’-and his

reimbursement by Thomas Hurley of monies paid out.

The Government’s expert concluded from this that Ham-

perian was part of the unified gambling business involving

the other defendants. To be sure, he did not describe and

explain the relevancy of the factors upon which he rested

his opinion; on the other hand, Hamperian chose not to

cross-examine the expert, although offered the opportunity.

On cross-examination, Hamperian could have discovered

the basis for the ultimate opinion, and attempted to show

its inadequacy. Except for reserving an objection to the

characterization of his bets as layoff wagers rather than

personal bets, Hamperian did nothing to cast doubt on the

validity of the opinion, see Fed. R. Evid. 705.6 Under the

circumstances, the court was entitled to credit the expert’s

eenclusion. Hamperian’s contention that he did not know

the identity of Santarpio and the others does not bear on

the sufficicney of the evidence necessary to convict Ham-

perian under section 1955. See United States v. DiMuro,

supra, 540 F.2d at 508 n.5.

Ill

Hamperian was sentenced to six months probation ‘‘with

special conditions of probation that defendant pay a fine

of $1500 and pay attorney fees during the probationary

period at a rate to be determined by the probation depart-

ment.’? Hamperian’s trial counsel was court appointed,

and he contends that the special condition requiring repay-

ment of attorney’s fees exceeded the court’s powers.

The district court was entitled to place Hamperian on

probation ‘‘upon such terms and conditions as the court

deems best’’ and it could condition probation on ‘‘a fine

in one of several sums.’’ 18 U.S.C. § 3651. That authority

was sufficient to embrace this sort of condition which,

if Hamperian is not indigent, might be thought to bear

‘*a reasonable relationship to the treatment of the accused

and the protection of the public’’, see, e.g., United States

v. Pastore, 537 F.2d 675, 681 (2d Cir. 1976), quoting United

States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971). How-

ever, the condition cannot be enforced so as to conflict

with Hamperian’s sixth amendment rights; if Hamperian

is unable to pay the fees, revocation of probation for

nonpayment would be patently unconstitutional. See Tate

v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S.

235 (1970).

® Rule 705 adopts the recent trend away from use of the hypo-

thetical question. Notes of Advisory Committee on Proposed Rules,

28 U.S.C. Rule 705; see MeCormick’s Handbook of the Law of

Evidence § 14 at 31 and § 16 at 37 (2d ed. 1972). Rule 705 was in

force at the time of appellants’ trial in March 1976.

In Fuller v. Oregon, 417 U.S. 40 (1974) the Supreme

Court upheld a state sentence in which the defendant was

placed on probation conditioned, inter alia, on his payment

of legal fees. The Supreme Court found that under Oregon’s

recoupment statute there would be adequate safeguards

for indigents. Recoupment was necessary only when a

party was able to pay or where payment would not consti-

tute manifest hardship. Jd. at 53. Revocation of probation

for failure to pay would conform to these standards, the

Court reasoned, and thus would not impermissibly discrimi-

nate on the basis of wealth, there being no constitutional

prohibition against imprisonment for nonpayment of a fine

by one who has the necessary financial means. /d. at 53 n.12

quoting Tate v. Short, supra, 401 U.S. at 400.

The federal recoupment statute, 18 U.S.C. § 3006A(c)

and (f) provides that whenever a magistrate or court finds

that funds are available for payment from or on behalf

of a person furnished representation, it may, ‘‘as the

interests of justice may dictate’’, direct payment to the

appropriate parties. Payment, however, may not be di-

rected without a finding that the funds are available. See

United States v. Bursey, 515 F.2d 1228, 1236 (5th Cir.

1975). See generally United States v. Kelly, 467 F.2d 262,

266 (7th Cir. 1972), cert. denied, 411 U.S. 933, rehearing

denied, 412 U.S. 923 (1973). So long as it is understood

that the special condition of probation may only be en-

forced with proper regard to the question of Hamperian’s

ability to pay, and not otherwise, we see no difficulty.

Cf. Fuller v. Oregon, supra, 417 U.S. at 53 n.12; Tate v.

Short, supra. See also ABA Standards Relating to Proba-

tion § 3.2(d) (Approved Draft 1970). Hamperian makes

no claim on appeal that he is unable to pay; if that is the

ease he should address himself in the first instance to the

district court. See generally United States v. Gerena, —

F.2d —, —— n.10 (1st Cir. April 29, 1977).

Affirmed.

APPENDIX B

TITLE 18

CRIMES AND CRIMINAL PROCEDURE

Chapter 1 General Provisions

Section 2. PriNcripa.s

(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, c. 645, 62 Stat. 684; Oct. 31, 1951, ¢. 655,

§ 17b, 65 Stat. 717.

Chapter 19. Conspiracy

Section 371. Conspiracy To Commit OFFENSE OR TO

Derraup Unttep 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, c. 645, 62 Stat. 701.

Chapter 95. Racketeering

Section 1955. Prowrsitrion oF 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 used in this section —

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

business which —

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

eal subdivision in which it is conducted;

(ii) involves five or more persons who con-

duct, 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.

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.

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

the provisions of this section may be seized and forfeited to

the United States. All provisions of law relating to the

seizure, summary, and judicial forfeiture procedures, and

condemnation of vessels, vehicles, merchandise, and bag-

gage for violation of the customs laws; the disposition of

such vessels, vehicles, merchandise, and baggage or the

proceeds from such sale; the remission or mitigation of

such forfeitures; and the compromise of claims and the

award of compensation to informers in respect of such

forfeitures shall apply to seizures and forfeitures incurred

or alleged to have been incurred under the provisions of

this section, insofar as applicable and not inconsistent with

such provisions. Such duties as are imposed upon the

collector of customs or any other person in respect to the

seizure or forfeiture of vessels, vehicles, merchandise, and

baggage under the customs laws shall be performed with

respect to seizures and forfeitures of property used or in-

tended for use in violation of this section by such officers,

agents, or other persons as may be designated for that

purpose by the Attorney General.

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

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

tion exempt from tax under paragraph (3) of subsection (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 com-

pensation for actual expenses incurred by him in the

conduct of such activity.

Added Pub.L. 91-452, Title VIII, ¢ 803(a), Oct. 15, 1970,

84 Stat. 937.

Chapter 119. Wire Interception and Interception

of Oral Communications

Section 2518. Procepure ror INTERCEPTIONS OF WIRE

on Ora CoMMUNICATIONS

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

proving 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

authority to make such application. Each application shall

include 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 inter-

cepted ;

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 authoriza-

tion for interception should not automatically termi-

nate when the described type of communication has

been first obtained, a particular description of facts

establishing probable cause to believe that additional

communications of the same type will occur thereafter ;

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

cerning all previous applications known to the indi-

vidual 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

explanation 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 particu-

lar communications concerning that offense will be

obtained through such interception ;

(ec) 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

facilities from which, or the place where, the wire or

oral communications are to be intercepted are being

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

commission 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;

munication 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 authoriz-

ing the application; and

(e) the period of time during which such intercep-

tion 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 carrier, landlord, custodian

or other person shall furnish the applicant forthwith all

information, facilities, and technica] «ssistance 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 fur-

nishing such facilities or technical assistance shall be com-

pensated 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 communi-

cation for any period longer than is »ecessary 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 accord-

ance 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 pur-

pose 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 minimize the interception of communica-

tions not otherwise subject to interception under this chap-

ter, and must terminate upon attainment of the authorized

objective, or in any event in thirty days.

(6) Whenever an order authorizing interception is

entered pursuant to this chapter, the order may require

reports to be made to the judge who issued the order show-

ing what progress has been made toward achievement of

the authorized objective and the need for continued inter-

ception. Such reports shall be made at such intervals as

the judge may require.

(7) Notwithstanding any other provision of this chap-

ter, 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

security interest or to conspiratorial activities charac-

teristic of organized crime that requires a wire or oral

eee ~-

communication to be intercepted before an order

authorizing such interception can with due diligence

be obtained, and

(b) there are grounds upon which an order could

be entered under this chapter to authorize such inter-

ception,

may intercept such wire or oral communication if an appli-

cation 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 termi-

nated without an order having been issued, the contents

of any wire or oral communication intercepted shall be

treated as having been obtained in violation of this chapter,

and an inventory shall be served as provided for in sub-

section (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 issuing such order and sealed

under his directions. Custody of the reeordings 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 vears. Duplicate record-

ings may be made for use or disclosure pursuant to the

provisions of subsections (1) and (2) of section 2517 of

this chapter for investigations. The presence of the seal

provided for by this subsection, or a satisfactory expla-

nation for the absence thereof, shall be a prerequisite for

the use of disclosure of the contents of any wire or oral

communication or evidence derived therefrom under sub-

section (3) of section 2517.

(b) Applications made and orders granted under

this chapter shall be sealed by the judge. Custody of the

applications and orders shall be wherever the judge directs.

Such applications and orders shall be disclosed only upon a

showing of good cause before a judge of competent juris-

diction and shall not be destroyed except on order of the

issuing or denying judge, and in any event shall be kept

for ten years.

tion 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 approval 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 appli-

cation, and such other parties to intercepted communica-

tions 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 authorized,

approved or disapproved interception, or the de-

nial of the application; and

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

munications were or were not intercepted.

ee 6 omer ne eens eee

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

tion make available 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

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 in-

terception 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 of authorization or approval under

which it was intercepted is insufficient on its

face; or

(iii) the interception was not made in conformity with

the order of authorization or approval.

Such motion shall be made before the trial, hearing, or

proceeding unless there was no opportunity to make such

motion or the person was not aware of the grounds of the

motion. If the motion is granted, the contents of the inter-

cepted wire or oral communication, or evidence derived

therefrom, shall be treated as having been obtained in vio-

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

motion by the aggrieved person, may in his discretion make

available to the aggrieved person or his counsel for 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 cer-

tify to the judge or other official granting such motion or

denying such application that the appeal is not taken for

purpeses 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 TII, § 802, June 19, 1968, 82

Stat. 218.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.