Opposition — Stone v. United States

("

Supreme Court, U.&-

FILED

Nos. 77-690, 77-724, and 77-5730]} fgg 8 1978

|

AEL RODAK, JR,, CLERK

Inu the Supreme Court of the United States

OCTOBER TERM, 1977

JoHN EL! STONE, RICHARD CARL BIGGs,

JoHN DAYTON RITTER and

JAMES WILLIAM WINNINGHAM, PETITIONERS

Vv.

UNITED STATES OF AMERICA

REUBEN GOLDSTEIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ANTHONY DAIDONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wape H. McCres, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

ANDREW GORDON,

Altorneys,

Department of Justice,

Washington, D.C. 20530.

INDE

Page

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ERR ae See ATRL OR Oe RTO 15

CITATIONS

Cases:

Berlin v. United States, No. 77-548, certiorari

I I Te I ietrnctecicecesnntsectacscnennns 8

Scott v. United States, No. 76-6767,

certiorari granted, October 11, 1977 .............. 12

United States v. Acon, 513

2 SPEER eo ee 5

United States v. Alfonso, 552 F. 2d 605......... 7, 8

United States v. Angelini, 565 F. 2d 469 .......... 13

United States v. Caruso, 415 F. Supp. 847,

CE, Tiree + Bee eterhcccticcnttiisttnnenctuitinsies 7, 13

United States v. De La Fuente, 548

Fo: MED TEED cidalinscatiaabiithiiaibiadatinpaidtattisaibabiiamentisines 7

United States v. Donovan, 429 U.S. 413 .......... 14

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

certiorari denied, 420 U.S. 955 ...................... 13

United States v. Feldman, 535 F. 2d 1175. ......... 7

Cases—( Continued): Statutes and rule:

United States v. George, 465 F. 2d 772 ............ 1] I ambos 3

United States vy. Gigante, 538 F. 2d 502 ........... 13 I es i 3

United States v. Giordano, 416 U.S. 505 ...... 5. 11 I a 5

United States v. Guzek, 527 F. 2d 5$$§2 ............... 5 RS kL ne 6

United States v. lannelli, 477 F. 2d 999, BD ie SOD BID ODD oncecvccccccccccccceccccccecoscs 9

affirmed on other grounds, 420 U.S. 770 ...... 12 | 18 U.S.C. 2518(8)(a) 13

United States v. Jackson, 549 F. 2d 517 «0.00.00... 7 | 18 U.S.C. 2518(8)(d) 14

United States v. Kalustian, 529 F. 2d 585 .......... & 28 USC. 505 5

United States vy. Lamonge, 458 F. 2d 197, |

tHvii—”’£[ An... 10 I ed ae 6

a ee ee 8 - U.S.C. ait TR ORT OY OL FT A SPOT N 5

United States v. Lawson, $45 F. 2d 557 ........... 13 a ey IE Ss. I eshecicscesssionnanetnenminentementuininiessies 10

Mi

United States v. McCoy, 539 F. 2d 1050 ........... 5 penn seenees

S. Rep. No. 1097, *

United States v. Pellicci, 504 F. 24 1106, | cin a ,

certiorari denied, 419 U.S. 1122 .......00cce. 5 Oe ee ere

United States v. Sklaroff, 506 F. 2d 837,

certiorari denied, 423 U.S. 874 ooo... 13

United States v. Spagnuolo, 549 F. 2d 705 ......... 8

United States v. Steinberg, 525 F. 2d 1126,

certiorari denied, 425 U.S. 971 ..................... 6-7

United States vy. Turner, 528 F. 2d 143.

certiorari denied sub nom. Grimes v.

United States, 423 U.S. 996 .........cccccccecececececees 6

ul il

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-690

JOHN ELI STONE, RICHARD CARL BIGGS,

JOHN DAYTON RITTER and

JAMES WILLIAM WINNINGHAM, PETITIONERS

Vv.

UNITED STATES OF AMERICA

No. 77-724

REUBEN GOLDSTEIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-5730

ANTHONY DAIDONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

| THE UNITED STATES COURT OF APPEALS FOR

| THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A-! to

A-14)' is reported at 558 F. 2d 775.

“Pet. App.” refers to the appendix to the petition in No. 77-690.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on

September |, 1977. A petition for rehearing filed by all

petitioners was denied on October 14, 1977. The petitions

in No. 77-690 and No. 77-5730 were filed on Monday,

November 14, 1977; the petition in No. 77-724 was filed

on November I1, 1977. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether an Acting Attorney General may designate

an Assistant Attorney General to authorize applications

for orders permitting electronic surveillance (Pet. No. 77-

690 only).

2. Whether the application for the intercept order in

this case sufficiently established that other investigative

methods were inadequate.

3. Whether the evidence derived from the electronic

interception must be suppressed because of the issuing

judge’s failure personally to date the intercept order at the

time the order was issued.

4. Whether the interception was conducted in confor-

mity with the order (Pets. No. 77-690 and 77-5730).

5. Whether the evidence derived from the interception

must be suppressed because of a brief delay in sealing the

tapes of the intercepted conversations (Pet. No. 77-690

only).

6. Whether the evidence against petitioner Goldstein

derived from the interception must be suppressed because

the court was not informed that his conversations had

been intercepted (Pet. No. 77-724 only).

ee

”

3

STATEMENT

Following a jury-waived trial in the United States

District Court for the Northern District of Texas,

petitioners Stone, Goldstein, Daidone, Ritter and Win-

ningham were convicted of using interstate communica-

tion facilities for the transmission of bets, wagers, and

inane eae sporting events, in violation of 18

U.S.C. 1084 (Count 5). Petitioners Stone and Biggs were

convicted of conducting an illegal gambling business, in

violation of 18 U.S.C. 1955 (Count 1).? Petitioners were

sentenced as follows. Stone: consecutive terms of three

years’ imprisonment for Count | and two years’

imprisonment for Count 5, and a fine of $10,000.

Goldstein: two years’ imprisonment (to run consecutively

to a sentence imposed in another case) and a $10,000 fine.

Daidone: 13 months’ imprisonment. Ritter: two years’

imprisonment and a $5,000 fine. Winningham: a $10,000

fine. Biggs: a $10,000 fine.

The case was submitted on the basis of stipulated

evidence, a large part of which consisted of .elephone

conversations intercepted pursuant to a court order. The

sufficiency of the evidence is not in dispute, and

petitioners’ convictions stand or fall with the propriety of

the district court’s refusal to grant their motions to

suppress the evidence derived from the interception.

On November 20, 1973, Judge Taylor of the United

States District Court for the Northern District of Texas

authorized the interception by the government of calls to

and from petitioner Stone’s private telephone and two

public pay telephones located in Stone's restaurant (Pet.

>The remaining counts were dismissed at the request of the

prosecutor.

4

App. A-17 to A-21).3 The order authorized interception

for 15 days from its date (id. at A-21). Although Judge

Taylor did not date the order, Assistant United States

Attorney Harold Jacquet testified that immediately after

the order was signed he took it to the clerk’s office, where

it was date-stamped and filed (C.A. App. 123-125).4

In order to protect the privacy of innocent persons who

might use the two public telephones, the order provided

that conversations on those telephones could be

monitored only when it was determined by surveillance

that Stone was in the restaurant, and that conversations

could be intercepted only when Stone was identified as a

party (Pet. App. A-20). Conversations were intercepted

from November 20, 1973, through December-4, +973 (Pet.

No. 77-690, p. 5).

During the course of the interception, three five-day

reports summarizing the results of the interception and

describing unauthorized interceptions were submitted to

Judge Taylor (Pet. App. A-52 to A-55). The original tape

recordings of the intercepted conversations were presented

to Judge Taylor for sealing on December 17, 1973 (Pet.

No. 77-690, p. 6), thirteen days after the termination of

the interceptions.

‘The United States Attorney was authorized to apply for the

interception order by Henry E. Petersen, the Assistant Attorney

General in charge of the Criminal Division of the Department of

Justice (Pet. App. A-18 to A-19). Acting Attorney General Robert H.

Bork had designated Mr. Petersen to authorize applications for the

interception of wire communications (Pet. App. A-56).

*“C.A. App.” refers to petitioners’ consolidated appendix in the

court of appeals

ARGUMENT

|. Petitioners in No. 77-690 contend that the intercept

order was invalid because the Assistant Attorney General

who authorized the application was designated by Acting

Attorney General Bork instead of the Attorney General,

as provided in 18 U.S.C. 2516(1).° This claim is insubstan-

tial.

The courts of appeals that have addressed this question

have uniformly held that Acting Attorney General Bork

had all the powers of the Attorney General, including the

authority to designate an Assistant Attorney General to

authorize applications for intercept orders. United States

v. McCoy, 539 F. 2d 1050 (C.A. 5); United Stctes v.

Guzek, §27 F. 2d 552 (C.A. 8); United States v. Pellicci,

504 F. 2d 1106 (C.A. 1), certiorari denied, 419 U.S. 1122.

These decisions recognize that the congressional require-

ment that the officer ultimately responsible for authoriz-

ing electronic surveillance be politically responsive ( United

States v. Giordano, 416 U.S. 505, 520 n. 9) is satisfied

here because Acting Attorney General Bork, who was

Solicitor General prior to becoming Acting Attorney

General, was nominated by the President and confirmed

by the Senate (28 U.S.C. 505).6 28 U.S.C. 508(b)

‘18 U.S.C. 25161) provides in pertinent part:

The Attorney General, or any Assistant Attorney General

specially designated by the Attorney General, may authorize an

application to a Federal judge of competent jurisdiction for, and

such judge may grant in conformity with section 2518 of this

chapter an order authorizing or approving the interception of

wire or oral communications * * *.

‘United States vy. Acon, $13 F. 2d 513 (C.A. 3), on which

petitioners rely, suggested that the Attorney General could not

designate an Acting Assistant Attorney General to pass on

applications for intercept authorizations because an Acting Assistant

6

authorized Solicitor General Bork to assume all of the

duties of the Attorney General while that office was

vacant, and there is no reason to conclude that he lacked

the authority to designate an Assistant Attorney General

to authorize intercept applications.

2. Petitioners contend that the application for the

intercept order did not sufficiently explain why other

investigative techniques were inadequate.’

18 U.S.C. 2518(1Xc) requires the application and

accompanying affidavit to contain a “full and complete

statement” why other investigative techniques are inade-

quate. The requirements of Section 2518 (1)(c) are satisfied

when an affidavit, read in a practical and common sense

fashion (see S. Rep. No. 1097, 90th Cong., 2d Sess. 101

(1968)), shows a sufficient factual basis from which the

issuing authority can reasonably conclude that electronic

surveillance is necessary to obtain evidence for the

successful prosecution of persons known to be involved in

the activities under investigation, or is necessary to

ascertain the full scope of their activities and identify the

participants. See, e.g., United States v. Turner, 528 F. 2d

143, 152 (C.A. 9), certiorari denied sub nom. Grimes v.

United States, 423 U.S. 996; United States v. Steinberg,

525 F. 2d 1126, 1129-1131 (C.A. 2), certiorari denied, 425

Attorney General. not having been nominated and confirmed, did not

meet the test of political responsiveness (513 F. 2d at 516). In

contrast, here both the Acting Attorney General and the Assistant

Attorney General who approved the government's application had

been nominated by the President and confirmed by the Senate (28

U.S.C. 506). Thus both officials met the “political responsiveness”

test.

“18 U.S.C. 2SIR(I Mc) provides that every application for an

interception order shall include “a full and complete statement as to

whether or not other investigative procedures have been tried and

failed or why they reasonably appear to be unlikely to succeed if tried

or to be too dangerous.”

7

U.S. 971: United States v. De La Fuerte, 548 F. 2d 528,

537-538 (C.A. 5): United States v. Jackson, 549 F. 2d 517,

536-537 (C.A. 8).

The court of appeals correctly concluded that the

affidavit here (see Pet. App. A-29 to A-51) provided such

a factual basis (id. at A-4 to A-6). The affidavit of Agent

Bryant accompanying the application clearly indicates

that the informants, who were familiar with the gambling

operation and who had provided useful information, were

afraid to testify. This factor strongly indicates the

propriety of interceptions (see United States v. Alfonso,

552 F. 2d 605 (C.A. 5); United States v. Feldman, 535 F.

2d 1175 (C.A. 9)).

The affidavit also detailed the results of several months

of physical surveillance, which disclosed that petitioner

Stone, the experienced gambler who was in charge of the

operation (Pet. App. A-47, A-48), was careful to conceal

his operations, evidently using various public telephones

in the Dallas area to conduct his gambling business (id. at

A-33, A-35). One of the public telephones at the restaurant

was in the kitchen, making physical surveillance imprac-

tical (id. at A-31). Moreover, physical surveillance at the

restaurant during the time it was open had been tried and

found ineffective (id. at A-45). Although a search of

telephone company toll records confirmed that many calls

from the target phones had been placed to petitioner

Daidone’s number in Las Vegas (id. at A-46), this was

insufficient to establish violations of Sections 1084 and

1955.

In addition to the facts outlined above, the affidavit

detailed the conclusions of Agent Bryant that, based on

his familiarity with how gambling operations are

conducted. further use of conventional investigative

techniques would prove unavailing (Pet. App. A-48 to A-

51). As he pointed out. a physical search of the premises,

8

although possibly yielding some of the records of the

organization, would not produce sufficient evidence to

convict, because gambling records are often cryptic and

incomplete. Physical surveillance is generally unproduc-

tive where, as here, most of the gambling business is

conducted over the telephone. Moreover, because of the

location of the telephones, the agents at the restaurant

could not overhear significant conversations without

disclosing their interest.

The affidavit in this case thus contained more than the

conclusory allegations found insufficient in United States

v. Kalustian, 529 F. 2d 585 (C.A. 9), relied on by

petitioners.* The mere fact that an affidavit contains

conclusions by the affiant based on his experience with

the type of criminal activity under investigation is not

fatal, so long as the conclusions are supplemented with

facts sufficient to indicate that electronic surveillance is

not being used as the first step in the investigation. United

States v. Landmesser, 553 F. 2d 17 (C.A. 6); United

States v. Alfonso, 552 F. 2d 605 (C.A. 5). Agent Bryant's

lengthy affidavit meticulously described the efforts to

establish petitioners’ criminal activity without the use of

electronic surveillance, and, accordingly, the affidavit was

sufficient to establish the need for the interception.

*As we have noted in our brief in opposition to certiorari in Berlin

v. United States, No. 77-548, certiorari denied, January 9, 1978, the

Kalustian panel appears to have required greater specificity in

supporting affidavits than has been required by other courts, even in

the Ninth Circuit. See United States v. Spagnuolo, 549 F. 2d 705

(C.A. 9). For the reasons stated in our brief in Berlin, we have not

suggested that this inconsistency merits review by this Court, and

nothing has happened recently to justify any change in this Court's

refusal to review decisions alleged to be inconsistent with Ka/ustian.

We are sending petitioners copies of our brief in Berlin.

——— eee

9

3. Petitioners contend that the issuing judge’s failure

personally to date the order rendered it invalid, because,

they argue, the absence of a date made the order

unlimited in duration, in violation of 18 U.S.C.

2518(4)(e) and (5).° The facts belie this contention.

The order specified that the surveillance “must

terminate” not later than “fifteen (15) days from the date

of this Order” (Pet. App. A-21), and it is undisputed that

the electronic surveillance of Stone’s telephones lasted just

1S days—from November 20, 1973, until December 4,

1973 (Pet. 77-690, p. 5). The testimony of Harold Jacquet,

the Assistant United States Attorney who applied for the

order, and Agent Bryant, the agent in charge of the

investigation who was present in Judge Taylor’s chambers

when the order was signed, established that the order was

signed and issued on November 20, 1973 (C.A. App. 51,

79-80). It is uncontested that, after the order was signed, it

was taken to the court clerk’s office for filing, where it

was date-stamped “November 20, 1973” (C.A. App. 123-

125). On application of the government, Judge Taylor

amended the order munc pro tunc to include the date of

issuance (C.A. App. 194-196).

*18 U.S.C. 2518(4\(e) provides that:

Each order authorizing or approving the interception of any

wire or oral communication shall specify—

(ce) the period of time during which such interception is

authorized, including a statement as to whether or not the

interception shall automatically terminate when the described

communication has been first obtained.

18 U.S.C. 2518(5) provides in pertinent part:

No order entered under this section may authorize or approve

the interception of any wire or oral communication for any

period longer than is necessary to achieve the objective of the

authorization, nor in any event longer than thirty days.

10

Relying on United States v. Lamonge, 458 F. 2d 197

(C.A. 6), certiorari denied, 409 U.S. 863, petitioners argue

that the order was invalid simply because Judge Taylor

did not date it in his chambers when he signed it.

Although the court in Lamonge suggested that an

undated order would be invalid because it would be

impossible to tell from its face when the authorized period

of interception began,'° there was no such difficulty here.

This order was date-stamped by the clerk on the same day

it was signed; Agent Bryant, who was in charge of the FBI

interception operation, had personal knowledge of when

the order was issued. Under these circumstances the

agents conducting the interception were fully informed of

the permissible duration of the surveillance and, in fact,

the interception was conducted in strict conformity with

the limitations of the order. There was no error and, if

there were, it would be well within the scope of correction

permissible under Fed. R. Crim. P. 36.!!

4. The intercept order provided that the public

telephones could be monitored only when it was

determined by physical surveillance that Stone was on the

premises and could be intercepted only when Stone was

identified as a party to the conversation (Pet. App. A-20).

Petitioners in Nos. 77-690 and 77-5730 argue that all the

The conviction in Lamonge was affirmed because the court

concluded that the evidence derived from the interception was

irrelevant in light of the defendant's reliance on an entrapment

defense. The court's discussion of the sufficiency of the order

therefore was dictum.

‘'Rule 36 provides:

Clerical mistakes in judgments, orders or other parts of the

record and errors in the record arising from oversight or

omission may be corrected by the court at any time and after

such notice. if any, as the court orders.

intercepted conversations should have been suppressed

because the agents occasionally failed to comply with

these terms.!?

A copy of the order was given to Agent Bryant to post

in the Federal Bureau of Investigation’s “wire room”

(C.A. App. 125). Assistant United States Attorney Jacquet

gave the agents conducting the interception instructions

regarding the restrictive requirements in the order (C.A.

App. 130-131, 139-140). The testimony of Jacquet, taken

together with the reports submitted to Judge Taylor (Pet.

App. A-52 to A-55), shows that a good faith effort was

made to conform to these requirements and to avoid the

unauthorized interception of calls between third parties.

This investigation was not conducted in disregard of the

court-ordered restrictions, as was the interception in

United States v. George, 465 F. 2d 772 (C.A. 6), on which

petitioner Daidone relies (Pet. No. 77-5730, p. 6). On the

contrary, as the court below held, the agents did all that

was reasonably possible to comply with the court's order,

although they were sometimes unable to determine when

'?Petitioners in No. 77-690 also argue (Pet. 11-13) that this failure

affected one of the “statutory requirements that directly and

substantially implement the congressional intention to limit the use of

intercept procedures” (United States vy. Giordano, 416 U.S. 505,

527), and thus warranted suppression regardless of any good faith

efforts to minimize unnecessary interceptions. But no statutory

requirement dictated the limitations on the interception of conver-

sations on the restaurant telephones; these limitations were contained

only in the order, and thus reflect no “congressional intention” at all.

Moreover. petitioners’ interpretation of the order as absolutely

precluding even inadvertent interceptions not within the terms of the

order is contrary to that of the author of the order: when Judge

Taylor was informed of the inadvertent interceptions, he agreed with

Jacquet’s suggestion that serving inventories on all identifiable

people whose conversations had been overheard would cure any error

(C.A. App. 144-145).

| +

Stone left the restaurant and occasionally intercepted calls

to which he was not a party because of difficulties in voice

identification (Pet. App. A-7 to A-8).'?

In a related argument, petitioners contend that

suppression is required because the five-day reports

submitted to Judge Taylor (Pet. App. A-52 to A-55) did

not detail the agent's difficulties in identifying Stone's

voice. In fact, the five-day reports did inform the judge of

the difficulty in identifying Stone's voice (Pet. App. A-52),

and, as Jacquet testified, most of the misidentifications

were discovered after the conclusion of the interception

(C.A. App. 146-147). What is more, even this was

unnecessary, because the order required only that the

reports include a statement of the progress being made

and the need for continued interception (Pet. App. A-21).

Under these circumstances the government adequately

complied with the reporting requirement outlined in the

order.'*

‘This Court need not hold this petition pending a decision in Scott

v. United States, No. 76-6767. certiorari granted, October 11, 1977.

The issue in Scost is whether the alleged subjective intent of the

monitoring agents to intercept every call constituted a violation of the

statutory minimization requirement. although the interception of

every call was objectively reasonable. Here there is no claim that the

monitoring agents had any improper subjective intent: there was, in

fact. very substantial minimization of the calls overheard, and the

particular minimization rule in the intercept order exceeded the

statutory minimization requirement.

“Of course. if the supervising judge should believe that the

progress reports are insufficient he could require further information;

no such request was made here, and there is no indication that any

information was intentionally concealed from the judge. Because

progress reports are not required by statute. the determination of

their adequacy is peculiarly a matter for the supervising judge. United

States v. lannelli, 477 F. 2d 999 (C.A. 3). affirmed on other grounds.

420 U.S. 770.

13

5. The interception was concluded on December 4 and

the tapes were sealed on December |7 (Pet. No. 77-690, p.

19). Petitioners in No. 77-690 argue that the interception

evidence should have been suppressed because the tapes

of intercepted conversations were not immediately sealed,

as 18 U.S.C. 2518(8a) requires.'s

The purpose of the sealing requirement is to preserve

the integrity of the tapes by assuring that tampering or

editing will not take place and, in the absence of a

showing that a brief delay in sealing was prejudicial,

suppression is not required. United States v. Angelini, 565

F. 2d 469 (C.A. 7) (38 day delay adequately justified);'*

United States v. Lawson, 545 F. 2d 557 (C.A. 7); United

States v. Sklaroff, 506 F. 2d 837, 840-841 (C.A. 5),

certiorari denied, 423 U.S. 874 (14 day delay constitutes

“substantial compliance” with Section 2518(8)(a)); United

States v. Falcone, 505 F. 2d 478 (C.A. 3), certiorari

denied, 420 U.S. 955.'’ Accurdingly, the court of appeals

properly concluded that “[t]he defendants have not shown

that they were prejudiced by the delay or that the integrity

'S18 U.S.C. 2518(8a) provides in pertinent part:

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. * * *

'* Angelini cites the court of appeals’ opinion in the present case as

persuasive authority.

“The rule may be different where substantial delays are involved.

Compare United States v. Gigante, 538 F. 2d 502 (C.A. 2) (delays of

from 8 months 12 days to 12 months 25 days). with United States v.

Caruso, 415 F. Supp. 847, 850-851 (S.D. N.Y.), affirmed, 553 F. 2d

94 (C.A. 2) (24 and 42 day delays).

I4

of the interceptions was in any way disturbed. There was

no error in refusing to suppress the evidence on this basis”

(Pet. App. A-9).'§

6. Petitioner Goldstein argues (Pet. No. 77-724, pp. I1-

12) that the evidence concerning his recorded conver-

sations must be suppressed because the government failed

to notify Judge Taylor that these conversations had been

intercepted, so that the judge could determine whether to

require the service of an inventory notice on Goldstein.

The statute requires that the supervising judge shall,

within 90 days of the termination of the interception,

require the service of inventories “on the persons named

in the order or the application, and such other parties to

intercepted communications as the judge may determine

in his discretion that is in the interest of justice” (18

U.S.C. 2518(8\(d)). Goldstein was not identified in the

application or order, and he does not contend that he

should have been. Indeed, his voice was not identified

until well after the period for service of inventories had

passed. His attorney was notified in August 1974 that

Goldstein had been overheard, and the hearing on

defendants’ motion to suppress was held in June 1975. In

these circumstances, the failure to ir ‘orm Judge Taylor

that Goldstein had been overheard ¥ 1s inadvertent and

caused petitioner no prejudice. The court of appeals

correctly concluded that suppression was not required

(Pet. App. A-9 to A-10). See United States v. Donovan,

429 U.S. 413, 439 n. 26.

<The interception here terminated more than a year before the

institution of the particularized procedures to remind officials of the

various steps necessary upon discontinuation of an interception, which

we described to this Court in our brief in opposition in Falcone v.

United States, Nos. 74-5500 and 74-5619.

15

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

WapDE H. McCree, Jr..

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Felt,

ANDREW GORDON,

Attorneys.

FEBRUARY 1978.

DOJ-1978-02