Opposition — Vigorito v. United States

Nos. 77-1002, 77-1003, 77-1004, 77-6026, 77-6035 and 77-6165

le

Iu the Supreme Court of the Teer, 0

Octoser TERM, 1977 ILED ©

APR 28 1978

SABATO VIGORITO, PETITIONES

0% 4)

UNITED STATES OF AMERIC

HAEL RODAK, JR., CLERK

JAMES V. NAPOLI, SR., and JAMES NAPOLI, JR., PETITIONERS

Vv.

UNITED STATES OF AMERICA

MICHAEL DELUCA, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ANTHONY DIMATTEO, PETITIONER

/ | v.

UNITED STATES OF AMERICA

BARRIO MASCITTI, PETITIONER

{ Vv.

_ UNITED STATES OF AMERICA

EUGENE SCAFIDI, PETITIONER

; V.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

die

Wave H. McCree, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. Fert,

Paut J. Brysn, -

Attorneys, |

Department of Justice,

‘Washington, D.C. 20530.

_ INDEX

Page

I a ts 2 I

I seuctsovoome 2

I conence 2

ETS AD EES ee a 3

IEE Netllicechenctuhathacdddbsgudsdlstleerteteses scseedscseceovees 10

eA Re EE AGUS: Ve ee Oe oe 24

CITATIONS

Cases:

Application of United States, 563

De caletaahlliiiiinkerteaasicecseesonees 13, 16-17, 18

Berger v. New York, 338 U.S. 41 ..............0000. 11

Brown v. United States, 411 U.S. 223 .00...0....... 14

Combs v. United States, 408 U.S. 224 .............. 15

Lopez v. United States, 373 U.S. 427 ..cccccccccess. 11

McDonald v. United States, 335 U.S. 451 ........ 14

Osborn v. United States, 385 U.S. 323 ............. 14

Payne v. United States, 508 F. 2d 1391,

certiorari denied, 423 U.S. 933 ooo... cece 13

Schaffer v. United States, 362 U.S. 511 ............ 23

Silverman v. United States, 365 U.S. 505 ......... 11

United States v. Agrusa, 541 F. 2d 690,

certiorari denied, 429 U.S. 1045 .000..0000..00000.... 17

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

certiorari denied, No. 77-938,

ye RENEE ST See Oe a 21

Page

Cases—continued:

United States v. Cohen, 530 F. 2d 43,

certiorari denied, 429 U.S. 855 ...................... 21

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

certiorari denied, 420 U.S. 955 .............. eeeges 21

United States v. Ford, 553

Se § lr aes 15, 16, 17, 18, 19

United States v. Galante, 547 F. 2d 733,

certiorari denied, 431 U.S. 969 ..................... 15

United States v. Gervato, 474 F. 2d 40, .

certiorari denied, 414 U.S. 864 ................. 13-14

United States v. Gigante, 538 F. aS 21

United States v. Lisk, 522 F. 2d 228,

certiorari denied, 423 U.S. 1078 ..................... 15

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

certiorari denied, 423 U.S. 874 ...................... 21

United States v. United States District

Court, 407 U.S. 297 oigsdtaprirevieerniieressenedaamenes 11

Constitution and statutes:

United States Constitution, Fourth

POTTED. cvvceeitecstessoniniinisiiiaics 2, 7, 10, 13, 14

Omnibus Crime Control and Safe Streets

Act of 1968, Title III, 18 U.S.C. 2510

OF BE Ds” vietesctietigpbenciscinsssbbihecenioisienepietiasis tus 8, 10

OS DS, TINO wshedctvirerctcereiecticcenmni 22

OF iis MED lncevierteniccibitanitananninanae 10

edhe, RR REE Siig 10

SS UBC. SESRIIMBIIID .dcciccceticcsckatiietes... II

li

Page

Constitution and Statute-continued:

| I I a i 12

a ee ei 11

Fe Bg, MII . ncentsentcnneetatecedecssis 2, 19, 20

Be Was UU Wincnibeliieisiusiicstiiieesmibimiianstonamecit 3, 4, 22

Os, 3

N.Y. Penal Law § 225.05 (McKinney

GOPOTD. inchscibsincidtealtudidaielnbestidiiianiinartiiliaitincusscensisniamnus 23

Miscellaneous:

ABA Standards for Criminal Justice,

Electronic Surveillance:

(Tentative Draft, 1968) ........ ccc cccccceeceeee 12

(Approved Draft, 1971) ................cccccooo.o.0-ce 12

114 Cong. Rec. (1968):

hie iibdliiadadinnteshiiteihtaciainitisehaceiicmihitesiieineta Mniniinas il

i SIT icant irate hiti ti iat inet iI

is SI i ca il

SRR E NON Pee 11

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

GUNTER ScnesnpeccnnasSichesiianiiaiaa sini te 11

ili

In the Supreme Court of the United States

OcToBer TERM, 1977

No. 77-1002

SABATO ViGoRITO, PETITIONER

Vv. .

UNITED STATES OF AMERICA

No. 77-1003

JAMES V.: NAPOLI, SR., and JAMES NAPOLI, Jr.,

PETITIONERS

, ae

UNITED STATES OF AMERICA

No. 77-1004

MICHAEL DELUCA, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

No. 77-6026

ANTHONY DIMATTEO, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-6035

BARRIO MASCITTI, PETITIONER

V.

UNITED STATES OF AMERICA

No. 77-6165

EUGENE SCAFIDI, PETITIONER

Vv

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A)! is

reporied at 564 F. 2d 633. The opinion of the district

court (Pet. App. C) is not reported.

Pet. App.” refers to the appendix in No. 77-1002.

— ee

RT

2

JURISDICTION

The judgment of the court of appeals was entered on

October 13, 1977. A petition for rehearing, with a

Suggestion for rehearing en banc, was denied on

December 15, 1977 (Pet. App. B). The petition for a writ

of certiorari in No. 77-6026 was filed on January 12, 1978,

the petition in No. 77-6035 was filed on January 13, 1978,

and the petitions in Nos. 77-1002, 77-1003, and 77-1004

were filed on January 14, 1978. In No. 77-6165, Mr.

Justice Marshall extended the time for filing a petition for

a writ of certiorari to February 13, 1978, and the

petition was filed on that date. The jurisdiction of this

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

QUESTIONS PRESENTED

|. Whether, in executing a valid court order authoriz-

ing the seizure of oral communications at a specified

location, law enforcement officers are required by statute

or the Fourth Amendment to obtain additional explicit

judicial approval to enter that location for the purpose of

installing and thersafter maintaining the electronic

listening device.

2. Whether the district court should have suppressed

evidence of intercepted oral communications on the

ground that the government failed to comply with the

sealing requirements of 18 U.S.C. 2518(8)(a).

3. Whether the district court should have suppressed

evidence of intercepted oral communications involving

petitioner DiMatteo because he was referred to as

“Pasquale Joseph Rossetti” in the electronic surveillance

application and that name had not been listed in the

Attorney General’s authorization for the application.

4. Whether the evidence is sufficient to sustain the

conviction of petitioner Scafidi.

5. Whether the district court abused its discretion in

denying petitioner Scafidi’s motion for a severance.

TE ee

3

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of New York, petitioners

were convicted of conducting an illegal gambling business,

in violation of 18 U.S.C. 1955.2 The court of appeals

affirmed, one judge dissenting (Pet. App. A).

1. As the court of appeals observed (Pet. App. 3a),

“[t]he evidence at trial showed a large-scale numbers

lottery operating in Brooklyn during three discrete time

periods: Spring, 1972 (the 967 East Second Street Count);

Winter, 1972-73 (the Apartment 309 Count); and Spring,

1973 (the Hiway Lounge Count).” Petitioners Voulo and

Scafidi were convicted on the 967 East Second Street

Count. The evidence on that count showed that petitioner

Voulo participated in the operation of a policy “bank,” a

place where money and bets were collected, winning

numbers were determined, and daily profits were

calculated (Tr. 4408-4429).3 Petitioner Scafidi visited 967

East Second Street on a regular basis while “banking”

activities were taking place, strongly suggesting that he

was a link between the bank and “controllers,” those who

collected bets in the field (Tr. 529-530, 1161-1165, 1841-

1844, 1871, 1975-1982).

?Petitioner Vigorito was sentenced to six months’ imprisonment

pursuant to the parole eligibility provisions of 18 U.S.C. 4205(b\(2)

and 30 months’ probation and was fined $20,000. Petitioner James

Napoli, Sr., was sentenced to five years’ imprisonment and was fined

$20,000. Petitioner James Napoli, Jr., was sentenced to three years’

imprisonment pursuant to 18 U.S.C. 4205(b\(2) and was fined

$20,000. Petitioner DeLuca was sentenced to six months’ imprison-

ment and 30 months’ probation and was fined $10,000. Petitioner

Carrara was scatenced to four months’ imprisonment and 32 months’

probation and was fined $5,000. Petitioners Voulo, Mascitti, and

Scafidi were each sentenced to two months’ imprisonment and 34

months’ probation. Imposition of sentence on petitioner DiMatteo

was suspended in favor of three years’ probation.

“Tr.” refers to the trial transcript. “H. Tr.” refers to the transcript

of the hearings on petitioners’ pre-trial motions.

4

The other petitioners were convicted on the Hiway

Lounge Count.‘ Petitioner James V. Napoli, Sr., was the

central figure in this gambling operation, directing the

activities of the “runners” (who collected bets from

customers), the “controllers” (who accepted the bets from

pickup men and transferred them to policy “banks”), the

policy “bank” workers (who determined the winning

numbers and calculated daily profits), and the “account-

ants” (who collated the records of daily betting activity

from the “banks”) (Tr. 5286-5316). Petitioner James

Napoli, Jr., also participated in the management of the

lottery and acted as a “controller” (ibid.). Petitioner

DeLuca worked in the accounting office (Gov't Ex.

273A; Tr. 5485-5487, 5502-5517), petitioners Vigorito and

Carrara were “controllers” (Gov't Ex. 275A; Tr. 3936-

3944, 5302), and petitioners DiMatteo and Mascitti were

“bankers” (Gov’t Ex. 273A; Tr. 5463-5464, 5479-5517,

5276-5278). Petitioner Carrara also was involved in

making payments to local police for “protection” (Gov't

Exs. 100A, 101A, 224A; Tr. 3785-3786, 3988-3990, 4802,

4804-4806, 4825-4835).5

‘Petitioner Voulo also was charged in the Hiway Lounge Count,

but he was acquitted.

‘Petitioners Voulo, DiMatteo, Mascitti, and Scafidi were found

guilty on the Apartment 309 Count, but that count was thereafter

dismissed by the district court on the ground that, because co-

defendant Rocco Riccardi was acquitted, the jury had not found that

five or more persons had been involved in the gambling operation, as

required by Section 1955.

Petitioners and their co-defendants were also tried on a

conspiracy count, which was dismissed at the close of the

government's case on the ground that the evidence showed the

existence of at least two conspiracies, instead of the single conspiracy

charged.

=) —_—________+,

5

2. The government’s. evidence on the Hiway Lounge .

Count consisted primarily of conversations in the Lounge

intercepted pursuant to three court orders. The first order

(Joint App. 274-276),6 issued on April 12, 1973,

authorized the interception of oral communications for 15

days, excluding Sundays. The named targets were the

Napolis, DeLuca, DiMatteo, and several co-defendants.

The second order (Gov't App. 25-27) was issued on May

3, 1973, and authorized continuation of the initial Lounge

interception for an additional 15 days, again excluding

Sundays. The named targets were the Napolis, DeLuca,

Voulo, and several co-defendants. The third order was

issued on May 24, 1973; no evidence derived from this

interception was introduced at trial.

The eavesdropping orders specifically identified the

premises on which the oral interceptions were to occur

but contained no explicit authorization for agents to enter

the Hiway Lounge either to install or to repair the

listening devices. During the night of April 12-13, 1973,

F.B.1. agents entered the Lounge with a passkey and

installed two listening devices, one at the bar and one in a

back room (H. Tr. 89-90). Agents thereafter re-entered the

Lounge once while the first order was in effect to move

into the back room the device that had initially been

placed at the bar (H. Tr. 186).

During the three-day hiatus between the expiration of

the first order and the issuance of the second, the

government obtained an order (Joint App. 303) authoriz-

ing agents to enter the Lounge during the night of May 2-

3, 1973, to restore the batteries in the listening devices so

“Joint App.” refers to the joint appendix in the court of

appeals. “Supp. App.” refers to the supplemental appendix filed in

the court of appeals by petitioner DiMatteo. “Gov't App.” refers to

the government's appendix in the court of appeals.

6

that interceptions could resume promptly upon issuance

of the second order on May 3.’ During the interceptions

conducted pursuant to either the second or third court

orders, agents entered the Lounge once more to

rejuvenate the batteries in the listening devices (H. Tr. 70-

71).

3. Prior to trial, petitioners moved to suppress evidence

derived from the Hiway Lounge and the Apartment 309

surveillances on a variety of grounds, including the

government's allegedly improper failure to obtain explicit

judicial authorizations for the surreptitious entries into

the Lounge and the Apartment. In denying the motion,

the district court found that petitioner James Napoli, Sr.,

alone had standing to challenge the Hiway Lounge entries

"During the period when no order was in effect the listening devices

remained in the Lounge, but no conversations were monitored (H.

Tr. 92). The May 2-3 nighttime entry was necessary because the

Department of Justice authorization for the second order could not

be received in New York until the morning of May 3, and, based

upon conversations intercepted pursuant to the first order, agents

believed that an important meeting would be held in the Hiway

Lounge on the afternoon of May 3. Thus, if the agents were to restore

the batteries prior to the meeting, it was necessary for them to do so

before the second surveillance order was in effect (Gov't App. 71-72).

*No electronic surveillance was conducted in connection with the

967 East Second Street Count, but much of the government's

evidence on the Apartment 309 Count, which was eventually

dismissed (see note 5, Supra), was gathered by means of interceptions

of oral communications authorized by three court orders, none of

which explicitly authorized entry into the apartment.

The orders, each of which authorized the interception of oral

communications for 15 days, were obtained on December 8, 1972,

January 15, 1973, and February 20, 1973. Using a key furnished by

the building superintendent, the agents entered Apartment 309 on the

evening of December 8, 1972, and placed two listening devices inside

the Apartment (H. Tr. 319-326). The agents re-entered the Apartment

once to reposition one of the devices, which had not been productive,

and once to remove the devices (H. Tr. 332-333).

— —— ——— ——

7

by virtue of his status as “sole tenant in possession of the

premises” (Pet. App. 28a).? On the merits, the court held

that the Fourth Amendment did not require the

government to obtain a separate entry warrant in addition

to an electronic eavesdropping warrant, since “once

probable cause is shown to support the issuance of a court

order authorizing electronic surveillance{,] thereby sanc-

tioning the serious intrusion caused by interception, there

is implicit in the court’s order, concomitant authorization

for agents to covertly enter the premises and install the

necessary equipment” (id. at 30a). The court also upheld

the agents’ May 2-3 nighttime entry to replace the

batteries, concluding that the entry had been conducted

pursuant to a warrant issued on probable cause and that

the additional statutory requirements for electronic

surveillance were inapplicable because no such sur-

veillance had been authorized or conducted.

The court of appeals affirmed. Judge Moore, writing

for the court, found it unnecessary to decide the question

of standing, inasmuch as “whether standing is accorded in

this appeal to only one or any number of the [petitioners]

will not affect our holding that the [surveillance orders}

and the agents’ activities were entirely proper” (Pet. App.

8a). The court then rejected petitioners’ challenge to the

constitutionality of the surveillance-related surreptitious

entries (id. at 10a-1 1a):

There can be no doubt that the warrants were

based upon adequate factual affidavits. The alleged

defect in the warrant is not the underlying factual

*With respect to the surveillance of Apartment 309, the court held

that petitioners Mascitti and DiMatteo, the only petitioners whose

conversations had been overheard at the Apartment, lacked standing

to challenge the surveillance-related entries (Pet. App. 27a).

8

basis therefor, but its lack of specific “breaking-in”

authorization and a statement of the manner in

which such “breaking-in” was to be conducted.

But the most reasonable interpretation of the

orders in this case, granting authorization to bug

private premises, is that they implied approval for

secret entry. Indeed, any order approving electronic

surveillance of conversations to be overheard at a

particular private place, must, to be effective, carry

its own authority to make such reasonable entry as

may be necessary to effect the “seizure” of the

conversations.

. & 8..0-8

Once a judicial officer is convinced by the facts

presented to him that electronic surveillance will aid

in the detection of crime, his authorization that it be

used should then transfer to the appropriate police

agency the decision as to the precise mechanical

means whereby the order is to be carried out. If the

instrumentality to be used is a “bug”, the placing of

such a bug must of necessity be in the hands of the

persons so authorized. And such placing will have to

be surreptitious, for no self-respecting police officer

would openly seek permission from the person to be

surveilled to install a “bug” to intercept his conver-

sations.

Judge Gurfein concurred. He observed that Congress

was aware that successful electronic eavesdropping

“would require covert installation” but that Title II] of

the Omnibus Crime Control and Safe Streets Act of 1968,

18 U.S.C. 2510 et seqg., nevertheless required not a

“specification by the judge of the method for placing the

‘bug’ but simply ‘a particular description of the place

where the communication is to be intercepted’ ” (Pet.

9

App. 18a). Judge Gurfein also agreed with the court that

-“[t]he orders here do conform precisely to the require-

ments of the Fourth Amendment * * *” (id. at 19a-20a;

emphasis in original):

They particularly describe the premises to be

“searched.” They state that there is probable cause to

believe that particular oral conversations of named

persons and others concerning the specified offenses

will be obtained through the interception at the

named premises which, there is probable cause to

believe, are being used for commission of the named

offenses. “Prompt” execution of the authorization is

ordered, and the interception is limited not only in

time but to occasions when at least one of the named

subjects is present. 3

Since the right of the named persons to privacy has

already been subjected to the “probable cause” test at

the hands of an independent judicial officer and since

the order is detailed enough to defeat any realistic

claim that it is a “general warrant,” I believe that the

basic requirements of the Fourth Amendment have

been met.

Judge Smith dissented. In his view, “a magistrate

[must] pass upon the necessity for and the manner of

surreptitious entries into private premises, either business

or residential, in light of the obvious dangers of injury

and death to occupants and officers in the course of such

gross invasions of privacy. The dangers may vary greatly

between such methods as the planting of a bug by a

restaurant patron, and a forcible breaking and entry when

the premises are assumed to be unoccupied” (Pet. App.

2la-22a).

10

ARGUMENT

1. The court of appeals concluded that a court order

authorizing the electronic interception of oral conver-

Sations at specifically designated private premises, in

accord with the requirements of 18 U.S.C. 2518, impliedly

includes judicial approval for the government surrep-

titiously to enter those premises “as may be necessary to

effect the ‘seizure’ of the conversations” (Pet. App. 10a).

This decision is fully consistent with the congressional

intent in enacting Title III of the Omnibus Crime Control

and Safe Streets Act of 1968 as well as with the dictates of

the Fourth Amendment. We recognize, however, that two

other circuits have announced divergent views on this

issue, which involves an interesting and unresolved aspect

of search and seizure law, and that the Court accordingly

may wish eventually to consider the issue. We believe

nonetheless that further review of this case should be

denied: none of the petitioners (with the exception of

petitioner Napoli, Sr., on the Hiway Lounge Count) has

standing to challenge the covert entries onto premises they

neither owned nor occupied; there is no true conflict

among the courts of appeals on the issue decided below;

and the federal government has adopted a policy of

seeking express judicial approval prior to undertaking any

entry to plant a court-authorized electronic listening

device.

a. There is, to begin with, nothing to petitioners’

contention that Title II] does not empower courts to

authorize covert entries, on probable cause, for the

purpose of installing electronic surveillance equipment or

that the statute requires such authorization to be explicit

in the interception order. Title III is specifically directed

at the interception of both “oral” and “wire” com-

munications (18 U.S.C. 2518(1)). In enacting this statute,

Congress unquestionably was aware that, while the

+

interception of wire communications is typically ac-

complished by means of an outside connection with a

telephone line (see Berger v. New York, 388 U.S. 41, 46),

electronic eavesdropping has traditionally required the

secret placement of a transmitting device (commonly

known as a “bug”) inside the area where the conversations

are expected to occur (id. at 47). See S. Rep. No. 1097,

90th Cong., 2d Sess. 67-68, 102-103 (1968); 114 Cong.

Rec. 11598, 12989, 14709-14710, 14732-14734 (1968).

See also United States v. United States District Court,

407 U.S. 297, 307; Silverman v. United States, 365

U.S. 505, 510; Lopez v. United States, 373 US. 427,

467 n. 15 (Brennan, J., dissenting). Indeed, many of the

electronic eavesdropping provisions of Title Ill were

drafted in direct response to this Court’s decision in

Berger v. New York, supra, which involved a secret

entry onto business premises for the purpose of planting

a “bug” (388 U.S. at 45). See United States v. United

States District Court, supra, 407 U.S. at 302. Yet no-

where in these detailed provisions is there any require-

ment that the entries essential for the installation and

maintenance of stening devices be explicitly author-

ized by court order.

This silence can hardly be attributed to a studied

legislative determination to bar the use of such listening

devices. As noted above, both the language and the

legislative history of Title III plainly indicate that

Congress acted with the purpose of providing authoriza-

tion, subject to significant safeguards, for both wire inter-

ceptions and electronic eavesdropping, and the statute

expressly requires that the interception application and

order contain a “full and complete statement * * *

including * * * a particular description of the nature and

location of the facilities from which or the place where the

communication is to be intercepted * * *.” 18 U.S.C.

2518(1\(b){ii); see also 18 U.S.C. 2518(4)(b) (emphasis

12

added).'° Thus, the absence’ of a specific provision in Title

III governing entries to install or maintain listening

devices reflects the reasonable assumption that the

successful interception of oral communications under the

statute would necessarily entail a surreptitious entry and

that, at least in the absence of any contrary provision in

the surveillance order, judicial authorization for such

entries would be implicit in any court order approving the

use of electronic eavesdropping.'!

Here, for example, the judges who approved the

electronic surveillance at Apartment 309 and the Hiway

Lounge obviously anticipated the need for surreptitious

entries to plant the listening devices. The orders author-

ized the interception of “oral communications,” which, as

indicated above, virtually without exception requires the

placement of a “bug” on the premises. Nothing in the

applications for the orders suggested that the government

had infiltrated petitioners’ gambling operations and

intended to have informants install the devices. To the

contrary, as the court of appeals found (Pet. App. 10a),

the information presented in the applications and

See also 18 U.S.C. 2518(4), which authorizes a court to direct

private citizens, including a “/andlord, custodian or other person,” to

“furnish [law enforcement authorities] all information, facilities, and

technical assistance necessary to accomplish the interception

unobtrusively” (emphasis added).

''Although the American Bar Association also has recognized that

surreptitious entry must accompany the installation of most bugging

devices (ABA Standards for Criminal Justice, Electronic Sur-

veillance, General Commentary, pp. 45, 65 n. 175, 91-92; Commen-

tary on Specific Standards, pp. 139-140, 149; Appendix D, p. 209

(Approved Draft, 1971)), it too has not adopted a specific

surreptitious entry provision in either the Tentative Draft of 1968 or

the Approved Draft of 1971. Compare §§ 5.7-5.8, p. 8 in the

Standards of the Tentative Draft with §§ 5.7-5.8, pp. 18-19 of the

Proposed Final Draft of Standards.

13

supporting affidavits can only be read as notifying the

issuing judges that the government planned to undertake

secret entries into the Lounge. “It would be highly naive,”

the court observed, “to impute to a district judge a belief

that the device required to effect his bugging authoriza-

tion did not require installation” (id. at Ila). See

Application of United States, 563 F. 2d 637, 643 (C.A. 4).

Moreover, despite the district court’s awareness of the

necessity for covert entries, the surveillance orders

contained no provisions prohibiting or limiting that

conduct. !2

b. Nor, in light of this judicial authorization, were the

entries to install and maintain the listening devices in this

case in violation of the Fourth Amendment.!3 Entries into

unoccupied premises to undertake an otherwise permissi-

ble search are of course constitutional (see Payne v.

United States, 508 F. 2d 1391, 1393-1394 (C.A. 5),

certiorari denied, 423 U.S. 933; United States v. Gervato,

'2Both issuing judges received actual notice of the entries. Special

Attorney Fred Barlow testified (4. Tr. 498-500; Joint App. 227-229),

and the district court found (Joint App. 132-133), that Barlow had

orally informed Judge Bartels ot the government’s intention to enter

the Hiway Lounge surreptitiously. If Judge Bartels had not intended

to authorize such an entry, he surely would not have issued the order.

Judge Judd was told that “{iJnstallation of monitoring equipment for

Apartment 309 occurred at 8:05 p.m. on December 3, 1972.” That

information was relayed to him in an interception progress report

filed by Special Attorney Barlow dated December 18, 1972 (Supp.

App. 3a-4a). If Judge Judd believed that the agents had abused the

authority conferred by his order when they installed monitoring

equipment at Apartment 309, he presumably would have revoked the

order and commanded that the interceptions cease. He did not take

such action, and the interceptions continued at Apartment 309 until

the order expired on December 25, 1972.

''The entries, it should be noted, did not result in the seizure of any

evidence other than the conversations intercepted pursuant to the

court-authorized electronic surveillance (Pet. App. 12a).

14

474 F. 2d 40 (C.A. 3), certiorari denied, 414 U.S. 864), and

the entries here were integral components of a concededly

valid electronic surveillance, which had been authorized in

advance by a neutral magistrate. Each entry took place

pursuant to a court order that was issued upon a strong

showing of probable cause and that “particularly de-

scrib[ed] the place to be searched, and the persons or

things to be seized,” thereby satisfying the Amendment’s

central goal of interposing “a magistrate between the citi-

zen and the police.” McDonald v. United States, 335 U.S.

451, 455. See also Osborn v. United States, 385 U.S. 323,

330.'* There is no reason why the judge, in approving the

search and seizure of petitioners’ conversations, was

obliged explicitly to authorize an entry into the premises

where the conversations were to occur, when such entry

‘was understood by everyone as essential to the execution

of the surveillance order.

‘In any event, as the district court found (Pet. App. 27a-28a),

petitioner James Napoli, Sr., alone has standing to challenge the

admission of the conversations intercepted from the Hiway Lounge,

and none of the petitioners has standing to challenge the admission of

the conversations intercepted from Apartment 309. If the conver-

sations introduced at trial were illegally obtained, the illegality related

not to the seizure of the conversations themselves, which was

judicially authorized in full conformity with Title Il] and the Fourth

Amendment, but to the surreptitious entries to plant the listening

devices. There is no evidence that any of the petitioners was present

when the entries at either location occurred, and the district court

properly concluded that the evidence was insufficient to show that

any of the petitioners, with the exception of petitioner Napoli, Sr.,

had a possessory or proprietary interest in either the Lounge or the

Apartment sufficient to allow them to contest intrusions made in

their absence. See Brown v. United States, 411 U.S. 223, 229. No

petitioner, other than petitioner Napoli, Sr., with respect to the

Hiway Lounge, had any expectation of privacy in either location

15

c. As petitioners note, two courts of appeals, faced with

issues similar to those presented in this case, have

expressed views at variance with the decision of the

Second Circuit. In United States v. Ford, 553 F. 2d 146

(C.A. D.C.), a court order authorizing the interception of

oral communications at a shoe store that served as the

center of a narcotics distribution operation expressly

permitted the government “to enter and reenter” the store

“for the purpose of installing, maintaining and removing

the electronic eavesdropping devices” and to accomplish

the entry “in any manner, including, but not limited to,

breaking and entering or other surreptitious entry, or

entry and re-entry by ruse and stratagem” (id. at 149-150;

emphasis in original). Police officers, posing as members

of a bomb squad responding to a bomb scare, entered the

store and planted three listening devices. The devices did

not function properly, however, requiring the police to re-

enter the store, again through a bomb scare ruse, to

correct the malfunction. The second entry was not

explicitly authorized by a fresh court order, although the

judge who had issued the eavesdropping warrant was

informally advised of the re-entry in advance and voiced

no objection to it.

when he was not present. See United States v. Galante, 547 F. 2d 733,

739-740 and n. 11 (C.A. 2), certiorari denied, 431 U.S. 969; United

States v. Lisk, 522 F. 2d 228, 230-231 (C.A. 7), certiorari denied, 423

U.S. 1078.

The court of appeals did not reach the standing issue, explaining

that “whether standing is accorded in this appeal to only one or any

number of the [petitioners] will not affect our holding that the Orders

and the agents’ activities were entirely proper” (Pet. App. 8a). This

Court also need not consider the matter, cf. Combs v. United States,

408 U.S. 224, 227 n. 4, unless it is otherwise disposed to grant review

on this issue. In that event, it should grant only No. 77-1003, filed by

petitioner Napoli, Sr., and should deny the other petitions.

16

The District of Columbia Circuit affirmed an order

suppressing the evidence gathered in the course of the

ensuing electronic surveillance. The court accepted “the

premise that entries to plant ‘bugs’ are themselves

invasions of privacy distinct from the actual eavesdrop,

and therefore require separate consideration in the

warrant procedure” and concluded that, “given the

showing to the District Judge in this case, the failure of

the order to limit time, manner, or number of entries over

a 40-day period made the authorization far too sweeping”

(553 F. 2d at 170; footnotes omitted).

Although the court of appeals suggested that entries to

install listening devices must be authorized by a “warrant

narrowly tailored to the demonstrated demands of the

situation” (553 F. 2d at 170), thus arguably imposing

stringent specificity requirements with respect to such

entries that go far beyond the demands of the Warrant

Clause in regard to other types of searches and seizures,

the holding in Ford may be viewed as quite limited in

light of the fact that the second entry into the shoe store

never received formal judicial authorization except to

the extent that authorization might be found in the broad

entry provision contained in the original surveillance

order. Indeed, the court explained its decision as holding

“only that the warrant in this case was defective for

expressly authorizing any number and manner of entries

when there had been no showing of necessity for such

broad authorization” (ibid.).

While Ford can thus be read as covering narrow

ground, there can be no doubt that, to the extent that the

court of appeals indicated that some form of explicit

judicial authorization is required for each entry to place a

listening device, including the initial one, the opinion in

Ford is inconsistent with the decision below. The same

may be said for Application of United States, 563 F. 2d

17

637 (C.A. 4). There, the court, in reversing an order

denying the government’s application for authorization to

install listening devices by means of surreptitious entries,

rejected the notion that “once the district court found the

interception of the conversations to be allowable under

Title III, the decision to secretly enter the premises

became a subsidiary tactical matter committed solely to

the judgment of the executing officers” (id. at 642).

Rather, the court stated that “[pJermission to surrep-

titiously enter private premises cannot * * * be implied

from a valid Title II] order sanctioning only the

interception of oral communications” (id. at 644).'5

Despite this apparent conflict among the circuits, there

is no necessity for this Court to grant review, especially at

the behest of petitioners who lack standing to challenge

the law enforcement agents’ conduct. See note 14, supra.

Only three courts of appeals have thus far been

confronted with the issue decided by the Second Circuit,

and Ford and Application of United States each involved

distinguishable factual situations. In Ford, not only had

the initial entry to plant the listening device been

expressly authorized by the surveillance order, but also it

had not led to the discovery of any evidence. Hence, the

'SSee also United States v. Agrusa, 541 F. 2d 690 (C.A. 8),

certiorari denied, 429 U.S. 1045, where the government obtained an

order authorizing secret entry into the defendant’s place of business

to install a court-authorized eavesdropping device. The court held (id.

at 701) that “law enforcement officials may, pursuant to express court

authorization to do so, forcibly and without knock or announcement

break and enter business premises which are vacant at the time of

entry in order to install an electronic surveillance device, provided the

surveillance activity is itself pursuant to court authorization, based on

probable cause and otherwise in compliance with Title Ill.” it

reserved comment on “what result obtains if the officers act without

express court authorization to break and enter (although with court

authorization to intercept)” (id. at 696 n. 13).

18

District of Columbia Circuit had no need to consider the

difficult issue resolved by the court below, i.e., whether a

warrant authorizing electronic eavesdropping in a par-

ticular location implicitly sanctions a surreptitious entry

into that area to place the “bug.”

Application of United States, on the other hand, arose

prior to any interceptions‘and involved the validity. of the

district court’s insistence that the government establish a

“paramount” or “compelling” interest to justify judicial

authorization of the surreptitious entry needed to install a

listening device before it would issue a Title Ill

eavesdropping order. Since the government had in fact

sought a separate entry provision in the surveillance

warrant, the Fourth Circuit’s discussion of the necessity

for such a provision is dictum, albeit perhaps a considered

one.!¢

There is an additional reason why the Court need not

consider this issue at the present time. Since the decision

in Ford, the Department of Justice has instructed

attorneys supervising the interception of oral com-

munications to seek explicit judicial approval for each

surveillance-related entry.'? Electronic surveillance

‘Indeed, the district court’s unwillingness to grant an electronic

surveillance order unless the government were able to justify a covert

entry in that particular case suggests the correctness of the Second

Circuit’s conclusion that a court’s issuance of an eavesdropping

warrant without requiring such a showing or imposing any conditions

on the method of placing the “bug” implicitly contemplates and

sanctions a surreptitious entry.

The following language is presently included in Departmental

authorizations of applications for interceptions of oral com-

munications:

The application should include a request that the order

providing for the interception specifically authorize surreptitious

entry for the purpose of installing and removing any electronic

19

authorizations must be approved personally by the

Attorney General or his designated Assistant Attorney

General, and approval will be withheld from any

application not requesting a specific entry authorization,

so there is substantial assurance that this policy will be

scrupulously followed. In these circumstances, the

lawfulness of surreptitious entries without judicial

authorization other than as implied in the surveillance

order is unlikely to be a recurring issue.'®

2. Petitioners Vigorito (Pet. 11-16) and DiMatteo (Pet.

33-38) contend that evidence derived from the electronic

surveillance at the Hiway Lounge and Apartment 309

should have been suppressed on the ground that the tape

recordings of the intercepted conversations were not

sealed “[{iJmmediately upon the expiration of the period

of the order{s], or extensions thereof,” as required by 18

U.S.C. 2518(8)(a). This claim is without foundation.

The tape recordings of the conversations intercepted

pursuant to the first order authorizing surveillance at the

Hiway Lounge were sealed on May 3, 1973, three days

after the expiration of the initial order on April 30 and

during the period of surveillance authorized by the second

Hiway Lounge order. The recordings obtained as a result

of the second Hiway Lounge interception order were

sealed on May 24, 1973, three days after expiration of

that order and during the period of surveillance

authorized by the third Hiway Lounge order.'? The tape

interception devices to be utilized in accomplishing the oral

interception. Further, an order should be obtained for each

additional entry to replace or maintain any oral interception

devices.

'8]t is largely for this reason that the government determined not to

seek further review in Ford.

'9As previously noted, no evidence derived from conversations

intercepted during the period of the third Hiway Lounge order was

used at trial.

20

recordings from the first Apartment 309 surveillance or-

der were sealed on January 16, 1973, 22 days after the

period of the order had expired and during the period of

surveillance authorized by the second Apartment 309

order. The tape recordings produced pursuant to the

second Apartment 309 order were sealed on February 5,

1973, four days after the expiration of that order and

during the period of surveillance authorized by the third

Apartment 309 order. The last set of tapes was sealed on

March 16, 1973, seven days after expiration of the third

and final order authorizing surveillance at Apartment 309

(Joint App. 116).

The district court (Joint App. 119-121) and the court of

appeals (Pet. App. 13a) correctly found that the second

and third Hiway Lounge orders and the second and third

Apartment 309 orders were extensions of the original

electronic surveillance authorization at each location. As

the district court observed (Joint App. 120), “{tJhe

applications are replete with language evincing an attempt

to secure authorization for continued interceptions;

reference is made to crimes the subjects ‘are continuing to

commit’ and further conversations they sought to

intercept by ‘continued surveillance.” More important is

the fact that the orders sought were not to include new

subjects, and the affidavit recited in detail the conver-

sations seized under each previous order.”

Since the second and third Hiway Lounge orders were

but extensions of the first, 18 U.S.C. 2518(8)(a) did not

require sealing of any of the Hiway Lounge tapes until the

period of the third order had expired. That requirement

was satisfied. The same conclusion follows with respect to

the tape recordings produced pursuant to the first and

second Apartment 309 surveillance orders, since those

tapes were sealed during the pendency of the third order.

Hence, the only sealing hiatus was the seven-day delay in

21

sealing the tape recordings for the third Apartment 309

order. In view of the absence of any evidence of bad faith

on the part of the surveilling agents and the fact that prior

to sealing the tapes had been kept in marked boxes in a

locked filing cabinet to which only one agent had the key

(H. Tr. 100-104, 113-114, 120), the court of appeals rightly

concluded (Pet. App. 14a) that this short delay had been

satisfactorily explained by the government and was “fully

in accord with the” statutory objective of preserving the

integrity of the intercepted conversations.2° Suppression

of the evidence derived from the surveillance therefore

would not have been warranted.?!

3. Petitioner DiMatteo contends (Pet. 39-41) that the

reference to him as “Pasquale Joseph Rossetti” in the

application for the first Apartment 309 surveiuance order

20The courts of appeals are in agreement that reasonable delays in

sealing, attributable to use of the tape recordings in connection with

preparations for trial or with continued investigation, do not require

suppression, y where there is evidence that the tapes were

kept securely. See United States v. Angelini, 565 F. 2d 469 (C.A. 7),

certiorari denied, No. 77-938, March 20, 1978; United States v.

Cohen, 530 F. 2d 43 (C.A. 5), certiorari denied, 429 U.S. 855; United

States v. Sklaroff, 506 F. 2d 837 (C.A. 5), certiorari denied, 423 U.S.

874. See also United States v. Falcone, 505 F. 2d 478 (C.A. 3),

certiorari denied, 420 U.S. 955.

The court of appeals properly distinguished its own decision in

United States v. Gigante, 538 F. 24 502 (C.A. 2). There the delays in

sealing ranged from eight months to more than a year, the

government offered “no explanation whatsoever” for the delays (id. at

504) and “haphazard procedures” were followed in handling the tapes

(id. at 505).

21We note, in addition, that this issue is not likely to be of

continuing importance. As we informed the Court in our brief in

opposition in Falcone v. United States, Nos. 74-5500 and 74-5619, in

February 1975, long after the surveillances involved in this case, the

Department of Justice instituted procedures to remind officials

responsible for electronic surveillance of their obligation to pews

tanes promptly for sealing.

22

rendered that order invalid, since that name had not

been included in the Attorney General’s authorization for

the application (Supp. App. la, 2a). But 18 U.S.C.

2516(1), which requires the Attorney General or a

designated Assistant Attorney General to approve every

application for a Title III surveillance order, contains no

naming requirement. Moreover, the Attorney General’s

authorization in this case did not purport to limit the

persons whose communications were sought to be

intercepted to the few names mentioned; to the contrary,

it expressly referred to the investigation into violations of

18 U.S.C. 1955 by certain named suspects and by “others

as yet unknown.” Accordingly, the authorization was

broad enough to permit the inclusion of the name

“Rossetti” (the person who petitioner DiMatteo was

believed to be at the time) in the application.

4. Petitioner Scafidi claims (Pet. 15-23) that the evi-

dence is insufficient to support his conviction on the 967

East Second Street Count, but the court of appeals

properly found this argument to be insubstantial (Pet.

App. 15a). Petitioner Scafidi was observed entering and

leaving the 967 Mast Second Street residence numerous

times in April 1972, usually late in the evening when

petitioner Voulo and co-conspirators Joseph Mustacchio

and “Buddy” Griffin were there (Tr. 529-530, 1161-1164,

1841-1844, 1871, 1975-1982).22 On May 1, 1972, when

F.B.I. agents arrived at the residence to conduct a search,

22Petitioner Scafidi’s assertion that his visits to the residence were

wholly innocent is belied by the evidence of his prior and subsequent

involvement in lottery activities. During a June 1971 search of the

premises at 405 Elders Lane in Brooklyn, police officers found

petitioners Scafidi and Voulo standing by a table holding betting

slips, lottery records, and more than $2,000 in cash (Tr. 4410-4413).

In January and February 1973, a number of petitioner Scafidi’s

gambling-related telephone conversations were intercepted on his

home telephone (Pet. App. 15a).

23

they found petitioner Voulo, Mustacchio and Griffin in a

basement room operating what appeared to be a policy

“bank.” While the search was in progress, petitioner

Scafidi arrived on the seene (Tr. 534). The frequency and

regularity of petitioner Scafidi’s visits was strong evidence

from which the jury could have concluded that he

participated in the lottery business as a link between the

policy “bank” and the “controllers” in the field and that

he therefore “advanced” gambling activity in yiolation of

New York law. See N.Y. Penal Law § 225.05 (McKinney

1976).

5. Petitioner Scafidi contends (Pet. 25-27) that he

should have been tried separately from his co-defendants.

The determination whether to grant a severance of

defendants properly joined is committed to the sound

judgment of the district court, whose decision may be

disturbed on appeal only for clear abuse of that

discretion. Schaffer v. United States, 362 U.S. Sll.

Petitioner Scafidi has failed to make a persuasive showing

that the trial judge abused his discretion in denying him a

separate trial. |

Petitioner was not, as he suggests, a peripheral

participant in a few of the illegal activities charged. He

was a defendant in three of the four counts,” and, as

indicated above, his participation in illegal gambling

activities was substantial and continuing. Furthermore,

the bulk of the government’s evidence was clearly

connected to one of the three discrete substantive counts,

23Although the conspiracy count tying the three substantive counts

together was dismissed by the district court because there was

insufficient evidence of a single conspiracy (see note 5, supra), the

court of appeals found that “the conspiracy count was not frivolous”

and that “[t}here is no evidence here of bad faith on the part of

the Government * * *” (Pet. App. 16a).

24

and there is no reason to believe that the jurors were

unable to separate the evidence in their minds. Indeed, as

the court of appeals observed, “(t]he trial court gave the

jury a lengthy cautionary instruction to disregard the

conspiracy evidence and to judge each defendant on his

own words and deeds. The jury showed its understanding

of the instruction by acquitting several defendants” (Pet.

App. 16a).

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

Wapve H. McCreg, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

PauL J. Brysn,

Attorneys.

AprRIL 1978.

DOJ-1978-04