Petition — Ricco v. United States

#" Supreme Court, U. &*

1 FILED

MAR 17 1978

Supreme Court of the Ruited States

no. 97-1310

OCTOBER TERM, 1977

ANTHONY RICCO,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. JEFFREY WEISENFELD

Attorney for Petitioner

401 Broadway

New York, N.Y. 10013

J. JEFFREY WEISENFELD

STEVEN M. JAEGER

On The Petition

———S——————eeE———eeeEE———ee——eeeEE———S——ee—————eeee

Dick Bailey Printers, 290 Richmond Ave., Staten Island, N.Y. 10302

Tel.: (212) 447-5358

TABLE OF CONTENTS

Page

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Coneetben PURINE Foo 5 on oss cv cel ecccnsasdatands 2

Cees 55 i 4iids 3 crite saan 3 2

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Reason for Granting the Writ.................045 ae

The Decision Below Raises Important and Substantial

Problems of Federal Law Concerning The Proper

Interpretation of 18 U.S.C. §§2517 and 2518@Ma) = 4

CN is incinkid cd dik .cecunigaeaetel 17

Rpm igs Bip te Li vce BUR ihn beatin

A - Orders of the Court of Appeals...............++ la

pe ID Sho os wd ub ded adsevekesa boeken 13a

CASES CITED

Page

Berger v. New York, 388 U.S. 41 (1967)..... erent: 13

Gelbard v. United States, 408 U.S. 41 (1971) ........ b

Katz v. United States, 389 U.S. 347 (1967) .......... 14

Monroe v. United States, 234 F. 2d 49 (D.C. 1956),

cert. denied, 355 U.S. 875 (1957) .............4.: 13

On Lee v. United Staves, 343 U.S. 747 (1952) ........ 14

People v. Hughes, 203 Cal. App. 2d 598, 21 Cal. pete

GOB (IGG)... cc ecccicccccceceeceusens esa 14

People v. Saperstein, 2 N.Y. 210, 140 N.E. 2d 252

cds dh cundknscsk tn déseeesaaes 18

United States v. Calandra, 414 U.S. 338 (1974)....... 15

United States v. Caruso, 415 F. Supp. 847 (S.D.N.Y,

ROU bie kc dade ccs tebe cess SN 12

United States v. Crouch, 528 F. 2d 625 (7th Cir. 1976). = g

United States v. Donovan, 429 U.S. 413 (1977) ....... 1

United States v. Fury, 554 F. 2d 522 (2d Cir.) cert.

denied, 97 S. Ct. 2978 (1977) .......0ceeeeeeees os

United States v. Gigante, 538 F. 2d S02 (2d Cir.1976). 5

United States v. Huss, 482 F. 2d 38 (2d Cir. 1973) .... 3

United States v. Maricn, 535 F. 2d 697 (2d Cir. 1976) .

United States v. Ricco, 421 F. Supp 401 (S.D.N.Y.

SUPER cc cccczcedadwdasdedace ewok setae. c 3

United States v. Walker, 320 F. 2d 472 (6th Cir. 1963). 44

STATUTES AND OTHER AUTHORITIES CITED

New York Criminal Procedure Law § 700.65(3)

2 (1968) U.S. Code Cong. and Adm. News

IN THE :

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

ANTHONY RICCO,

Petitioner,

Vv.

UNITED STATES OF AMERICA -

Respondent.

PETITION FOR A WRIT OF CERTIORARI: °

Anthony Ricco, the petitioner herein, prays that a writ

of certiorari issue to review the judgement of the United

States Court of Appeals for the Second Circuit entered in

the above entitled case on November 30, 1977.

OPINIONS BELOW

The United States Court of Appeals for the Second

Circuit affirmed the judgement of conviction in an opinion

reported at 566 F..2d 433 and set out in the

infra, at pp la-12a.The orders of the Court of Appeals

denying the petition for rehearing and for rehearing en

banc appear in the Appendix, infra.

JURISDICTION

The judgement of the Court of Appeals for the Second

Circuit was entered on November 3), 1977. A timely

petition for rehearing or rehearing en banc was denied on

February 15, 1978. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether the decision below raises important and

substantial problems of Federal law concerning the proper

interpretation of 18 U.S.C. §§2517 and 2518@)(a)?

STATUTES INVOLVED

This case involves 18 U.S.C. §§ 2510(8), 25160), 2547,

and 2518(8)a) and New York Criminal Procedure Law

§ 700.65(3). The pertinent text of each is set forth in the

Appendix, infra.

STATEMENT OF THE CASE .

On June 17, 1977, petitioner was convicted in the

United States District Court for the Southern District of

New York of conspiracy to violate the narcotics laws, in

violation of 21 U.S.C. § 846, and two counts of possession

with intent to distribute narcotics in violation of 21 U.S.C.

§ 841, after a trial by jury before the Hon. Morris E. Lasker,

U.S.DJ. ;

Judge Lasker sentenced petitioner to seven years

imprisonment on the conspiracy count and on one of the

substantive violations, the sentences to be served con-

currently, to be followed by six years special parole. Judge

Lasker suspended sentence on the remaining count and a

term of five years probation was imposed. The testimony

presented by the government to establish the

and substantive offenses consisted chiefly of the testimony

of two co-conspirators, Albert Rossi and Peter Mengrone.

Prior to trial Mengrone listened to tape recordings and

read transcript. of conversations recorded during the

course of a New York State court-authorized

of wire communications on Mengrone’s ‘telephone,

evidence of which was suppressed by Judge Lasker because

of the state’s improper delay in having the tape recordings

sealed. United States v. Ricco, 421 F. Supp. 401 (S.D.N-Y.

1976). The trial court refused to exelude.“Mengrone's

testimony as an improper use or disclosure of ‘the sup-

pressed communications or evidence derived therefrom.

On appeal, the judgement of conviction was affirmed

by the United States Court of Appeals for the Second

Circuit in an opinion dated November 30, 1977. 566 F. 2d

433 (Qd Cit: '1977).

Pursuant to Federal Rules of Appellate Procedure 40

and 35, petitioner timely moved for a tehearing and’ a

rehearing en banc, due to a misapprehension by the Court

of Appeals of the ‘meaning and purpose of the statutes

involved. The motions were denied on February 15, 1978.

REASON FOR GRANTING THE WRIT

THE DECISION BELOW RAISES IMPORTANT

AND SUBSTANTIAL PROBLEMS OF

FEDERAL LAW CONCERNING THE PROPER

INTERPRETATION OF 18 U.S.C. §§2517 and

2518(8)(a)

This is a case uniquely suited for review by this Court.

It is the first case-to petitioner’s knowledge—under Title

III of the Omnibus Crime Control and Safe Streets Act of

1968 (18 U.S.C. §§ 2510-2520) to decide whether refreshing

the recollection of a trial witness with unsealed wiretap

tapes and evidence derived therefrom prior to trial is an

improper use or disclosure under §§ 2517(3) and 2518(8)a),

requiring suppression of that witness’ testimony, .; , ;,

The significance of the statutory scheme to the ad-

ministration of criminal justice and the importance and

impact of a ruling on this substantial issue suggest the

appropriateness of the gtanting of a writ of certiorari

herein.

A. Background

On August 17, 1973, Westchester County Court Judge

John C. Cousins, pursuant to New York law, signed an

order permitting interception of wire communications on

Mengrone’s telephone through September 18, 1973. On

September 18th, Judge Cousins signed a thirty day ex-

tension order. On October 18, a second extension order was

signed to permit the state to continue its interceptions

through November 17, 1973.

Mengrone was arrested on October 24, 1973 on a

narcotics charge and the tap was terminated. Twelve days

later, on November 5, 1973, Judge Cousins sealed all the

Following the decision of the Second Circuit in United

States v, Gigante, 538 F. 2d 502 (2d Cir. 1976), petitioner

moved to suppress the tape recordings-on the ground that

they were improperly sealed. On September 28, 1976, Judge

Lasker ruled that the wiretap recordings and their tran-

scriptions were inadmissible against petitioner due to an

inexcusable delay in sealing the tapes. United States v.

Ricco, 421 F. Supp. 401 (S:D.N.Y. 1976), However, the

coutt détiied a motion to ns ore nite ve Bm

Menigrone as an improper use or isclosure of the wiretap

recordings and-transcripts. This motion was renewed at

trial without effect (Tr. 2).*

“Prior to (petitioner’s) trial, Mengrone listened to the

tape recordings and read the transcripts of his con-

versations with his co-conspirators.’”** This was done to

assist Mcngrone in his preparation for testifying against

petitioner. Such a use, petitioner contends, is an

use or disclosure under 18 U.S.C. §§ 2518(@)(a) and 2517(3).

B. The Law

In Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 (18 U.S.C. §§2510-252u), Congress

enacted a comprehensive scheme for the regulation of

willl and choctraie anrveetionee. Gelbard v. United

States, 408 U.S. 41, 46 (1971).

The relevant statute, 18 U.S.C. §2518(6)a), provides,

in pertinent part:

The presence of the seal provided for by this

subsection, or a satisfactory explanation for the

absence therecf, shall be a prerequisite for the use

*Numbers preceded by “Tr” refer to the typewritten trial transcript.

**Brief for the U.S.A., United States v. Ricca, 0. 77-1290 (Second Cir-

cuit), p. 11. See also, Tr 4-5.

or disclosure of the contents of any wire or oral

communication or evidence derived therefrom

under subsection (3) of section 2517.

Subdivision (3) of §2517 states:

Any person who has received, by any means

authorized by this chapter, any information

concerning a wire or oral communication,’ or

evidence derived therefrom intercepted in ac-

cordance with the provisions of this chapter may

disclose the contents of that communication or

such derivative evidence while giving testimony

under oath or affirmation in any proceeding held

under the authority of the United States or of ~ ae

State or political subdivision thereof.

2112,..2193 (1968). Clearly all.of the carefully

planned strictures on the conduct of electronic

surveillance, e.g., the “‘minimization”’ ent

of §2518(S), would be unavailing if no reliable

records existed of the conversations which were, in

fact, overheard. Maintenance of the integrity of

such .eyidence is part and parcel of the

Congressional plan to ‘limit the use of intercept

procedure to those situations clearly calling for the

employment of this extraordinary investigative

device.” United States v. Giordano, 416'U.S. SOS,

$27, SOS, 527, 94 S. Ct. 1820, 1832, 40 L. Ed. 2d

341 (1974). Moreover, it plays a “central role in the

statutory scheme”’. Id. at 528, 94 S. Ct. at 1832. See

also, United States v. Chavez, 416 U.S. 562, 94 S.

Ct. 1849, 40 L. Ed 2d 380 (1974).

An untimely sealing has been held equivalent to the Gigante; supra, at 50S.

“absence’”’ of the seal required by §2518(8)(a). United “ . |

States v. Gigante, 538 F. 2d 502, 506-07 (2d Cir. 1976). Thus, § 2518(8)(a) must be viewed in pertinent part, as

a mandatory, minimum custodial requirement rather than

The Second Circuit has cogently described the role of |

sealing in the Title III scheme: | an exclusionary device. Evidence which violates ‘this

Congress in enacting Title III’s sharply detailed’ '~

restrictions on electronic surveillance, intended 'to’ de

“ensure careful judicial scrutiny throughout” the

process of intercepting and utilization of such

evidence. United States v. Marion, 535 F. 2d 697,

698 No. 75-1408 (2d Cir. May 7, 1976).

The immediate sealing and storage of recordings of

intercepted conversations, under the supervision of

a judge, is an integral part of this statutory scheme.

Section 251&(8)a) was intended “to insure that

accurate records will be kept of intercepted

communications”. S. Rep. 1097, 90th Cong. 2d

Sess., quoted in 2 U.S. Code Cong. and Ad. News,

statutory safeguard:‘cannot be used as it is legally

unreliable,.l/nited) States v. Donovan, 429 U.S. 413, 97 S.

Ct. G58, @11:{1977); Seo: lao, Unised Seates- v. Gigante, -

satisfactory explanation for the lack thereof), no “use of

disclosure of the contents . . . or evidence derived therefrom

” may be made as part of a witness’ testimony under

oath i in any criminal proceeding. See, 18 U.S.C. §§2517(3);

2518(8)(a).*

The prohibition against use and disclosure as set forth

in §2518(8)(a) required the courts below to prohibit the

government from presenting Mengrone’s testimony as it

was the result of his refreshed recollection, refreshed by use

of the inadmissible tapes and transcripts years after. the

events in issue at petitioner’s trial. (Such refreshing of

recollection should be a prohibited use of tapes’ contents or

evidence derived therefrom, as being in direct con-

travention of the rigid prohibition contained in

§ 2518(8)(a).) There can be little doubt that the opportunity

to hear and: read this material aided the witness in, his

testimony almost 4 years after the events, if not providing

data to adopt in his testimony where he had no in-

dependent recollection prior to this “‘use’’.

18 U.S.C. §2510(8) defines “contents” in respect to

any wire or oral communication as including “any in-

formation concerning the identity of the parties to such

communication or the existence, substance, purport, or

meaning of that communication.” This includes all aspects

of the communication. “‘The privacy of the communication

to be protected is intended to be comprehensive.” 2 U.S.

Code Cong. and Adm. News, supra. at 2179.

To implement this broad intent of the Congress, it

must follow that when the statute prohibits any testimonial

use, no use, in any fashion, shall be made of the suppressed

communications in a criminal proceeding.** Surely,

*Once improper use of unsealed tapes is shown, the >urden is on the

government to show freedom from any taint. United States v. Huss, 482

F. 2d 38 (2d Cir. 1973); United States v. Crouch, 528 F. 2d 625, 629 (7th

‘Dir. 1976).

**'Where there has been no order of suppression in a case, the govern-

ment could argue that there could be a chilling effect on their use of in-

employing a tape or transcript to refresh one’s recollection

is a use within the ordinary meaning of that word. It would

strain one’s credibility to maintain that the witness needed

his recollection refreshed, yet gained no information on the

identities of other parties or the existence, substance,

purport; or meaning of the communications from the use of

the tapes and transcripts that had been found legally

inadmissible. Moreover, the phrase “‘any evidence derived

therefrom |. .” isfurther support for petitioner’s position.

If Mengrone’s recollection needed to be refreshed, then

there must have been either gaps in his independent

recollection or events that made him unsure of his |

recollection. By hearing th¢ tapes and reading the tran-

scripts, the witness could resolve these doubts and clarify

his ‘testimony without adopting the communications

themselves. Yet, this also clearly violates the statute, in that

his testimony was thus derived, at least in part, from the

inadmissible, unreliable communications.

C. The Court of Appeals’ Decision Misinte:prets the

emer and Purpose of §2517 and 2518(6)a)

The Court of Appeals forthe Second Circuit held that

there wa a statutory “use” cai Geaaenins aioe dine

allowing the witness to refresh his recollection, but, since

the use was prior to trial, §2517(3) was inappliable. Rather,

the court held that this use was within the terms of §2517(2)

tercepted communication for trial preparation since it could not oe

known before judicial determination if ach use was proper or not. Here,

tien eapieat eutonslitees speiitaetion nebihiaun anata ieandhen the

government's preparation. Further, the District Court's opinion only

refused to suppress Mengrone’s testimony, it did not permit this use.

Judge Lasker held that the claim of ‘‘taint’’ by this use was an issue for

cross-examination. 421 F. Supp. at 411. The government compounded

any talus, bu: peeing Memantes ts satantay eaeneemn Haut e "

District Court's ruling and prior to petitioner's trial.

10

and hence not subject to the strictures of §2518(8)(a). The

court held § 2518(8)(a) applicable only after the trial begins.

Petitioner contends that the finding that since the use

occurred prior to trial, it was nontestimonial within the

purview of §2517(2) seriously misinterprets the meaning

and purpose of §§ 2517 and 2518(8)(a). This Court should

grant a writ of certiorari to correct this error of in-

terpretation of federal law, especially where the statute

involved plays a central role in the statutory scheme and

was designed to protect substantial rights.

The bases for the Court of Appeal’s holding are the

language of §2517(3) and the legislative history, especially

comments and citation appearing in the Senate Report

accompanying Title II1. While the language of the statute

could superficially support the Second Circuit’s holding,

closer analysis shows that the statute should not be so

attificalty and mechanically construed. The result of the

Second Circuit’s interpretation is in conflict with the

purposes of the sealing requirement and the thrust of Title

III. Such a result leads to anomalies when applied.

Further, the Senate Report does not support the court’s

holding. In fact, the Report itself indicates the correctness

of a conclusion contrary to that of the Second Circuit.

The language of §2517(3), in its strictest terms, ap-

pears to limit the effect of a failure to seal tapes to a

testimonial or “‘at trial’’ use. Seizing upon this language the

Second Circuit has drawn an artificial line between all pre-

trial and trial uses. Basing this distinction on whether or

not the tria] has actually begun is too artificial to be the

appropriate dividing point. The ‘issue is not the timing of

the refreshing, but the purpose or function it serves.. When

information gained by the use of unsealed tapes to refresh

recollection is to be used or disclosed at trial it is of no

matter when such tapes were shown to the witness. The

ultimate harm remains the same—judicially unreliable

tapes are used to effect the evidence presented at trial.

11

It has mot been denied by the courts below.or the

government ‘that some enhancement or addition to: the

witness’ recollection resulted from this use. The only

purpose and effect of refreshing recollection is to enable a

witness, unable to remember at the time of refreshing, to

use the material to aid or stimulate his recollection. While

the witness then testified based on his own recollection, it is

beyond dispute that without the refreshing. of his

recollection, his testimony would either not be the same or

unavailable at trial.

The true function of refreshing recollection is 1 ot to

assist the prosecutor in the preparation of his. case, but: to

enable the witness to:have a present recollection-of the facts

in question so he may testify at trial. According to the.

Second, Circuit, thekey is whether the use is part of the

investigative phase of a case or the trial phase. The error in.

this analysis is that the court is too restrictive in defining

the “‘trial’” phase. The rationale behind § 2517(1) and: (2), as

reflected by the Second Circuit’s opinion in United: States v. _.

Fury, 554 F. 2d 522 (2d Cir.), cert. denied, 97 S. Ct. 2978. .

(1977), is to allow.use.and disclosure of unsealed tapes for

advancing a pending investigation without rendering the

fruits of the, further- investigation inadmissible. Fury

permits the.use of unsealed wiretaps to establish probable

cause for further surveillance or searches. Any other in-

terpretation would deny the use of available, but unsealed.

information to law enforcement officials until the ter-

mination and sealing of those tapes.

However, the situation in Fury is far different from a

rationale accepted in Fury drops from sight.* | Triab»

eneayer, the .Gebind: Clrenls conssdih the tens in Psy onedied: pe

not free from doubt. 554 F. 2d at 532. In fact, prior to Fury, a.

distinguished jurist in the Southern District of New York noted that

establishing probable cause was a use which would violate §2518(8(a) if

12

preparation may occur a day, a month, or several months

before trial, but the purpose remains the same. No in-

vestigative or other law enforcement purposes are being

pursued, only the need to prepare witnesses for the time

they are to give direct testimony from the witness stand.*

Thus, petitioner contends the Second Circuit’s opinion has

incorrectly labeled this use as ‘“‘non-testimonial’’, elevating

form over substance. Clearly, the functional interpretation

should be that information and facts gained’ from

refreshing his recollection were incorporated into the

witness’ direct testimony and, thus, a use or disclosure of

the unsealed tapes or evidence derived therefrom in

violation of §2518(8)(a) occurred.

In light of the fact that the sealing requirements goes

to the integrity and reliability of evidence, it is hard to

believe that Congress intended to permit the use of-

unreliable evidence to refresh recollection one mitiute

before trial while banning such a use one minute after

commencement of trial.** The result of such an in-

terpretation would frequently appear foolish. Further, the

court’s opinion would lead to several anomalous results.

While unsealed tapes could not be used during 4 grand jury

proceeding, 1s soon as'a witness left the grand jury room he

could use the same tapes for the purpose of” trial

preparation. And while the tapes could not be used during

‘evidence derived therefrom” were to be used at trial. United States v.

Caruso, 415 F. Supp 847, 850 n.2 (S.D.N.Y. 1976). Moreover, since seal-

ing goes to the reliability of the tapes (Gigante, supra) and given the time

lapse between interception and use, which greatly heightens the sug-

gestive impact of a tape recording or transcript, the :ase here is far more

offensive to the statutory scheme than the use of \apes.to obtain pro-

beble cause, which secures clearly_independent, probative and reliable

evidence.

*Petitioner's case is a clear example of non-investigative, trial prepara-

tion. Several co-defendants had already been tried. No investigation was

under way. The only purpose was to prepare for trial.

**This is virtu‘lly the situation presented by this case.

13

evidentiary hearings on pre-trial motions, the witness-could

leave the stand and use the tapes to refresh his recollection

ane the commencement of the trial: itself.

second essential ingredient in the: z

Second Circuit was its of rnc nto

Senate Report analyzing § 2517(3) as it applies to this case.

The court's opinion states that the reference to Monroe y.

United States, 234 F. 2d 49 (D.C. 1956), cert: denied,355

U.S. 875 (1957), in the Senate Report No. 1097, 90th Cong.

2d Sess. (1968), quoted in 2 (1968) U.S. Code Cong. Ad.

News at 2188-89, was.an “approving” toa use to.

refresh the recollection of a witness. Petitioner's position:

is that this is a misapprehension and misinterpretation of

the nature and purpose of the Senate Report for several

grant a). writ, of certiorari to correct this error since the

that further analysis of the Senate R and the |

cited therein leads to:the opposite “tons soar eine sie:

First, examination of the cases cited in the Senate

Report reveals that reference to these cases could not have

been for approval of the cases themselves, but only as

examples of the uses permitted by §2517(3) once the

requirements of that section and the sealing provision in

§2518(6)a) are met. People v. Saperstein, 2 N.Y. 24-210,

140 N.E. 2d 252 (1957), held that evidence procured under

the existing New York wiretapping statute was admissible

at trial, but this statute was the same one subsequently.

found unconstitutional by this Court in Berger vy. New

York, 388 U.S. 41 (1967). And, of course, Berger was one of -

the prime reasons for the development of the legislation

accompanying the Senate Report. It is hardly likely that the

14

Senate Report referred “approvingly” to a case whose

rationale was overruled by this Court in Berger, when Title

III was drafted in response to the ruling in Berger and Katz

v. United States, 389 U.S. 347 (1967).*

People v. Hughes, 203 Cal. App. 2d 598, 21 Cal. Rptr.

668 (1962), permitted impeachment by conversations

recorded by a device secreted in a room where all parties to

the conversation, other than the accused, were aware of and

consented to the recording. The court held that this rule

was not so offensive as to render the tape unreliable: “The

deception itself does not render the statement inadmissible

for it is not of a type reasonably likely to procure an untrue

statement.” 21 Cal. Rptr. at 670. This analysis would not

be necessary under then, as now, existing federal case law

analysis of intercepted communications, which holds that

such a recording is consensual and admissible for: all

purposes. On Lee v. United States, 343 U.S. 747: 41952).

Consensual recordings were also involved in United States

v. Walker, 320 F. 2d 472 th Cir. 1963), thus not raising

any issue of interception of telephone communications.

Secondly, reference to Monroe itself under § 25173)

undercuts any notion of an approving reference. The

Report lists acceptable uses of evidence “‘at trial”. Monroe

does not hold that such evidence can be used at trialrather

it holds that use of a tape of a conversation recorded by the

witness (who was a participant in the conversation to

refresh his recollection prior to testifying was not a

violation of §695 of the Communications Act.

The statutory scheme in existence when Monroe was

decided differs‘from Title III in several areas, but for the

purposes of this petition it is crucial to note that neither the

Communications Act nor case law at that time required

judicial sealing. §605 operated as an exclusionary device

and exclusion under Fourth Amendment principles is

*See, 2 (1968) U.S. Code Cong. & Adm. News at pp. 2113, 2153.

15

designed to deter unlawful police conduct in obtaining

evidence. It is the manner of interception that is at issue,

not the reliability of the evidence obtained. Thus, for

example, should a search violate the Fourth Amendmeni,

evidence thus obtained may still be used: before a grand

jury since the deterrence effect of exclusion. would be

minimal.-United States v. Calandra; 414 U.S. 338 (1974).

; Very different interests are at stake where sealing is

to insure the reHability of the evidence obtained, Pursuant

to §2518(6)fa), that evidence cannot be used for trial

purposes without a seal* or a satisfactory explanation.

minimum custodial requirements for the safeguarding of

recordings of:intercepted communications: Evidence which

does not: meet this minimum cannot be used because it is

Senate Report merely makes it clear that use at anytime to

refresh: recollection: is a permissible trial. use under

§ 2517); as:ate-the- uses recognized in the other cited cases.

But thisis independent of, and does not effect the necessity

for, proper sealing as a prerequisite to any such use in a

criminal proceeding. §2518(6)(a); 2 (1968) U.S. Code Cong.

and Adm. News, supra. at 2188-89.

Finally, the Second Circuit's opinion itself can be read

as a disapproval of the rationale of Monroe (i.e., the-witness.

only repeated: what he himself heard at the time of the.

The court’s opinion holds that such refreshing of

*An untimely sealing is the same as the absence of seal. United

States y. Gigante, supra. at 50607. ~ . !

16

recollection is a ‘‘use’”’ under §2517, albeit nontestimonial

and under §2517(2). Further, the court holds that if such a

use occurred during trial the prohibition of §2518(8)(a)

would apply. This leads to the inference, contrary to the

rationale in Monroe, that “use or disclosure”’ does occur

when a witness’ recollection is refreshed. If Monroe-type

use does fall within §2517(2), as the Second Cicuit holds,

then mention of it as acceptable under §2517(3) makes

little sense. The framers of the Report could only have

regarded any use of wiretap evidence to refresh recollection

as being permitted under §2517(3), and therefore requiring

compliance with §2518(8)(a).

Petitioner respectfully requests that the Court issue a

writ of certiorari to the Court of Appeals for the Second

Circuit as that court erred in its interpretation of 18 U.S.C.

§§2517 and 2518(8)fa) and the accompanying Senate

Report. This misinterpretation has important and sub-

stantial consequences for both federal and state criminal

justice systems as it involves a central part of the Title III

statutory scheme which is binding on both.* This case is

to petitioner’s knowledge an issue of first impression under

the present statute and it is appropriate that the Court

grant the writ to correct the Second Circuit’s misin-

terpretation of the proper function of §2518(8)a) and

§2517(3). Petitioner urges that for purposes of trial use

(including preparation for trial), unlike investigative uses

such as now recognized in Fury, supra., the necessity for

sealing should remain. The division between trial and

investigation should be drawn according to function, not

time. Further, the proper interpretation of the Senat>

Report should be that us: of tapes to refresh recollection

for testimonial use is permissible only when the sealing

requirement is satisfied. ©

*18 U.S.C. §2516(2); United States v. Marion, 536 F.2d 697 (2d Cir.

1976).

17

ines o's CONCLUSION,

FOR THE ABOVE REASON THE PETITION FOR A

WRIT OF CERTIORARI SHOULD BE GRANTED.

Respectfully submitted,

aid J. JEFFREY WEISENFELD

SAN Oe Attorney for Petitioner

t.1

$a

J. JEFFREY WEISENFELD

STEVEN M. JAEGER

On The Petition

la

UNITED STATES of America, Appellee,

v.

Anthony RICCO, a/k/a “Tony Bragiole”

Defendant-Appellant..

No, 226, Docket 77-1290;".

United States Court of Appeals,

Second Circuit. .

Argued Oct. 5, 1977.

Decided Nov. 30, 1977.

Defendant..was..charged with conspiracy and

possasion At aaptcne. eS arvana sneha crenrne

After denying defendant’s motion to suppress.

prosecution witness’ testimony, 421 F. Supp. ‘01,the

United States District Court for the Southern District of

New York, Morris E. Lasker, J., entered a ju

convistian 00 ©. Suaesiamen’ Sees

Court

had been a party by listening to tapes of the conversations —

which had been suppressed ‘vecause of undue delay in

2a

Before trial, accomplice witness could properly refresh

his recollection of various telephone conversations to which

he had been party by listening to tapes of conversations

which had been suppressed because of undue delay in

sealiug. 18 U.S.C.A. §§2517(3), 2518(@6)(a).

J. Jeffrey Weisenfeld, New York City, for appellant.

Dominic F. Amorosa, Asst. U. S. Atty., New York City

(Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Audrey

Strauss, and Robert J. Jossen, Asst. U. S. Attys., New York

City, of counsel), for appellee.

Before FRIENDLY, GURFEIN and MESKILL,

Circuit Judges.

FRIENDLY, Circuit Judge

Anthony Ricco, also known as Tony Bragiole and

hereafter referred to as such, appeals from a judgment of -

the District Court for the Southern District of New York,

convicting him on three counts of an indictment. One count ”

charged Bragiole and others with conspiracy to violate the

federal narcotics laws, 21 U.S.C. §846; the two other

counts charged possession of cocaine in May or June, 1973,

and of heroin in October, 1973, with intent to distribute, in

violation of 21.U.S.C. §841. Bragiole, one of twelve

defendants named in the indictment, had obtained a

severance on the ground that another defendant, his

nephew Angelo Ricco, would testify on his behalf if

Bragiole were to receive a separate trial.

The convictions of Angelo Ricco and two other

defendants were affirmed by this court on February 7, 1977,

see United States v. Ricco, SA9 F. 2d 264, cert. denied, 43

3a .

U.S. 905,.97-$, Ct.1697, 52 L.Ed. :2d-389,01977).» a

The.;,Goyernment’s evidence... ‘overmbelmiogiy

established that Bragiole entered into a large scale nar-

cotics conspiracy early in 1971 and remained in it. until

October, 1973, when Peter Mengrone, who had:entered the

conspiracy earlier in 1973, was arrested by New York State

authorities while endeavoring to sell an undercover agent

three kilos of heroin supplied by Bragiole and Angelo

Ricco. The gale. ground of appeal is this: Although the trial

judge had suppressed tapes which were the.preduct of New

York State authorized wiretaps of Mengrone’s telephone

on the ground of inexcusable delay in the sealing required

by N.Y. Crim. Proc. L. § 700.50, United. States v. Ricco, 421

F. Supp. 401 (1976), he refused to exclude Mengrone’s

testimony ;despite the fact that, as the judge’s ruling’

permitted, 421 F. Supp. at 411, the Government had shown

Mengrone a transcript of his telephone conversations of

October, 1973, a short time before he, testified at Bragiole’s —

trial in May, 1977. |

The acne federal statute, 18 US.C. — :

AY i ee

8)ia), Ehe. contents sof, any-swiee or. oral: com

munication, intercepted by any means authorized.

by this,chapter shall, if possible, be recorded.an |

tape or.vire 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, ne i

i Me te

oe i nate cme the tal tap

another two pleaded guilty. The

pera tiey aick. gating mp peng apiyanews ewseg

As wel

4a

the judge issuing such order and sealed under ‘his

directions. Custody of the recordings 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

years. Duplicate recordings may be made for use or

disclosure pursuant to the provisions of subsections

(1) and (2) of section 2517 of this chapter for in-

vestigations. The presence of the seal provided for

by this subsection, or a satisfactory explanation for

the absence thereof, shall be a prerequisite for the

use or disclosure of the contents of any wire or oral

communication or evidence derived therefrom

under subsection (3) of Section 2517, =.

added)

Subdivision (3) of § 2517 says:

(3) Any person who has received, by any means

authorized by this chapter, any information

concerning a wire or oral communication, or

evidence derived therefrom intercepted in ac-

cordance with the provisions of this chapter may ~

disclose the contents of that communication ‘or —

such derivative evidence while giving testinidtiy =:

under oath or affirmation in any proceeding held '

under the authority of the United States or of any

State or political subdivision thereof.2

An untimely. sealing has been held equivalent’ to the

“absence” ‘of the seal reouired by § 2518(@)a). United

States v. Gigante, 538 F. 2d 502, 506-07 (2 Cir. 1976). .

Mengrone’s direct testimony, in which he gave his.own

recollection of two conversation: that had been intercepted,

did not constitute any “Disclcsure’’ of the tapes or*the

transcripts ,or of “evidence derived therefrom.” While

Mengrone was asked twice by defendant’s counsel on:cross-

examination: to read transcriptions of ‘suppressed: tape

recordings to refresh his recollection::and: impeach’ his

credibility, the defendant cannot complain of that. The

defendant’s case must therefore rest’on the: point that: §

2518(8)a) not only prohibits disclosure. of.

sealed tapes but also prohibits their ‘‘use.” But the “use”

prohibited by § 2518(8)(a) is use “under subsection (3) of

section 2517,” which refers only to disclosure-“‘while giving

testimony under oath or affirmation in any proceeding held

under the authority of the United States or of any State or

subdivision thereof.” (emphasis added). It does not; by its

terms, apply to nontestimonial uses. See United States v.

Fury, SS4 F. 24 522, 531-32 (2 Cir.), cert. denied.—U.S.—,

97 S. Ct,.2978, 53 L.Ed. 2d 1095 (1977). Refreshing a

witness’ .repollection® before trial, then, falls not within §

2517(3) |-but father within § -2517@Q)~use' by ..an

investigative.or law enforcement officer “‘to the extent such

use is appropriate to the proper performance of his-official

duties.”” Here the Assistant United States Attorney ased the

tapes to refresh the recollection necro acinniearnuatatens

evidence derived therefrom intrepid in eccordanee withthe

2. The New York statute is similar. CPL §700.50 subd. 2 directs that:

il

;

§

i

¢

available to the issuing justice and sealed under his directions.

Section 700.65 subd. 3 states:

3. Any person who has received, by any means authorized by

this article, any information concerning a communication, or

6a

Use permitted by § 2517(2) is not subject to the strictures of

§ 2518(8){a). It is only after the trial begins that refreshing a

witness’ recollection falls within § 2517(3) and therefore

within the § 2518(8)a) prohibition. See S. Rep. No. 1097,

90th Cong., 2d Sess. (1968), quoted in 2 [1968] U.S. Code

Cong. & Admin. News at pp. 2188-89 and discussed infra.

Monroe v. United States, 98 U.S. App. D.C. 228, 23S,

236, 234, F. 2d 49, 56, 57, cert. denied, 352 U.S. 873, 77

S.Ct. 94, 1 L. Ed. 2d 76 (1956), dealt with a similar issue

under § 605 of the Communications Act. That statute

provided that “no person not being authorized by the

sender shall intercept any communication and divulge or

publish the existence, contents, substance, purport, effect,

or meaning of such intercepted communication to any

person.” In the second Nardone case, Nardone v. United

States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939), the

Supreme Court construed this language as prohibiting “use

of the proscribed evidence” to obtain otherwise competent

testimony. In Monroe a police officer had installed a

recording device on his own telephone. Declining to decide

“the much discussed question whether this constituted an

interception within the meaning of the statue,” the court

held that the Communications Act was not violated in any

event since the recordings had not been offered in evidence

but had been used by the officer only to refresh his

recollection before taking the stand. The officer’s

testimony, the court said, ‘‘was not itself the product of an

illegal interception; he repeated on the stand what he

himself had heard.” 234 F. 2d at S57.

‘The framers of the interception chapter of Title 18

were aware of the Monroe decision. The analysis of §

2517(3) in the Senate Report, S. Rep. No. 1097, ip

2d Sess. (1968), quoted in 2 [1968] U.S. Code Cong., &

Admin. News at pp. 2188-89, had this to say:

Paragraph (3) authorizes any person who vere

received, by aay messes enthqrtns ty Se

Although the reference was made in the

of permitted, not ed,

Ta

» anyuinformation concerning a wire or oral com-,

© gmanicationor evidence derived therefrom. in- _

| teeeepted. in accordance with the provisions of the

‘proposed. chapter to disclose the contents of that

communication or evidence derived therefrom

while giving testimony. It envisions, of course, the

. tse-and disclosure of such evidence.at trial, to

- establish guilt directly (New York v.. Saperstein, 2

os Ns Xe. 210, [159 N.Y.S. 2d 160,] 140 N.E. 24252.

»1(1957),.or to corroborate (United States. v. Walker,

-320:Fi:2d-472 (6th 1963), or to impeach (People vy,

Hughes, 203 Cal. App. 2d 598, 21 Cal. Rptr..668

(1962), a witness’ testimony or to refresh his

_- fecollection (Monroe v. United States, (98 U.S.

vvapp..D.C. 228,] 234 F. 2d 49 (1956), certiorari _

-:isdemded) 355 U.S. 875, 78 S.Ct. MAB Ed. adie ,

SOM) Se am ons ra

‘Whe:.veference gives rise to

dnemauimanener eranad amet Tiss

report as meaning that when the procedures of the

though Monroe didnot ile sch ue: we do not do not think

Congress meant to overrule Monroe holding that

illegal wiretaps could be used, before trial, aeperr ig

Ne ce tence ene

Eyals agi ocd

8a

Appellant has made no claim that violation of the

statutory requirement for prompt sealing operates

retroactively to make an otherwise proper interception of

Mengrone’s own conversation an illegal search under the

Fourth Amendment.; No such claim would be sustainable.

See United States v. Burke, 517 F. 2d 377, 385-86 (2 Cir.

1975S) (failure of warrant to require search within 10 days

and to direct execution by federal agent and return to

federal magistrate held insufficient to require exclusion of

seized evidence); United States v. Amendola, 558 F. 2d

1043 (2 Cir. 1977) (failure to provide defendant with post-

interception notice of placement of pen register on

telephone line). See also United States v. Cafero, 473 F. 2d

489, 499-500 (3 Cir. 1973), cert. denied 417 U.S. 918, 92 S.

Ct. 1769, 32 L. Ed. 2d 117 (1974) (‘‘a failure to comply with

certain procedural requirements of F.R. Cr. P. 41 has been

held not to amount to deprivation of Fourth Amendment

rights necessitating suppression”). Cf. United States v.

Donovan, 429 U.S. 413, 434-435, 97 S. Ct. 658, 671, 50 L.

Ed. 2c 652 (1977) (government’s inadvertent failure to

comply with ‘‘discretionary” notice provision of

wiretapping statute does not justify suppression of evidence

derived from authorized interception); United States v.

Fury, supra, SSA F. 2d at 529 (failure to comply with

statute’s ““mandatory”’ notice requirement does not justify

suppression of wiretap evidence unless prejudice is shown).

The judgment is affirmed.

oa

- ‘UNITED STATES: COURT OF APPEALS

a SECOND CIRCUIT

At'a Stated Term of the United States Court of Appeals,

in and ‘for the Second Circuit, held at the United States

Court House, in the City of New York, on the fifteenth day

of February, one thousand nine hundred and seventy-eight.

Present! HON. HENRY J. FRIENDLY

HON. MURRAY I. GURFEIN

HON. THOMAS J. MESKILL

:

‘'s

i —-«

Pes

>

a it Judges.

a 25 ips?

Ah vies a

Tisetst jor ,

“viaeithony Ricco, a/k/a “Tony Bragiole’’, Angelo ‘

Ricco, Charles Indiviglia, a/k/a “Charlie Poops,

10a

Anthony Ricco, |

Defendant-Appellant.

A petition for a rehearing having been filed herein by

counsel for the defendant-appellant, Anthony Ricco, .

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. Daniel Fusaro, Clerk

lla

UNITED STATES COURT::OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the fif-

teenth day of February, one thousand nine hundred and

seventy-eight. ;

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

Anthony Ricco, a/k/a “Tony Bragiole,”’ Angelo

Ricco, Charles Indiviglia, a/k/a “Charlie~Poops”’,

James Rizzieri, Michael Puglisi, a/k/a ‘Mike

Siciliano”, John DiSalvo, a/k/a “Johnny Babear’’,

Anthony Zinzi, Williard Williams, a/k/a “‘Trees”,

Saint Julian»Harrison, a/k/a ‘“‘Harry”, George

Corrado, Anthony Spitalieri, a/k/a “Tony Sp'ts,”

a/k/a Tony from Cleveland, Freddie Biase,

12a

counsel for the defendant-appellant, Anthony Ricco, and

no active judge or judge who was a member of the panel

having requested that a vote be taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is

DENIED.

Irving R. Kaufman, Chief Judge

a ees ae

| 4a ' 15a

Jrettcnecepenertonat interception of “wite’ oF ‘oral’

more than one year, designated in any applicable |

State statute authorizing such interception, or any.

conspiracy to commit any of the foregoing offenses.

§ 2517. Authorization for disclosure and use of in-

tercepted wire or oral communications

(1) Any investigative or law enforcement officer

who, by any means authorized by this chapter, has

obtained knowledge of the contents of any wire or

oral communication, or evidence derived

therefrom, may disclose such contents to another

investigative or law enforcement officer to the

extent that such disclosure is appropriate to the

proper performance of the official duties of the

officer making or receiving the disclosure.

(2) Any investigative or law enforcement officer , f |

who, by any means authorized by this chapter, has

obtained knowledge of the contents of any wire or

oral communication or evidence derived therefrom

may use such contents to the extent such use is

appropriate to the proper performance of his,

official duties.

(3) Any person who has received, by any means...

authorized by this chapter, any information:

concerning a wire or oral communication, or.

evidence derived therefrom intercepted in ac-

cordance with the provisions of this chapter may

disclose the contents of that communication or

such derivative evidence while giving owes

under oath or affirmation in any

wader dee batboliip of tad Guiles Guaeaara ae

State or politica] subdivision thereof.

mind teas taannesat wep ieeeniaibnanin

munication intercepted by any means’authorized —

by this chapter shall, if possible, be recorded’on™

tape or wire or other comparable device. The

recorditig’ of the «contents of ‘ any” wite’*or ‘oral.

communtti¢ation under this subsection shall be done ~

in such: way as ‘will protect: the tecording 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

directionéi Custody of the recordings shall be

wherever the judge orders. ‘They shall not ‘be

destroyéd ¢xcept upon an order of the issuirig or

- denying§idige and'in any event shall be kept $6 teas

years. Prarie naseechonnet iy eapem nen tn il

(1) and C2) of vedtoa 2517 of thi chapeee $0 tn

0) owt dita olieunans ot Go teary:

by this subsectid#i; ora satisfactory explanation for —

the absenve thereof; shall be‘a prerequisite for the-

use or disélésure of the contents of any wire or oral

communrii¢ation- or evidence derived therefrom.

under subsection: (3) of section 2517.

New York Criminal: Procedure Law

{70065 Eardrpping maran: dcr ad we

of information; order of amendment. en

.*

2: aap penance Seis ianined teak aiiean

authorized by this article, any information con-

cerning a communication, or evidence derived

;

"A

16a

therefrom, intercepted in accordance with the

provisions of this article, may disclose the contents

of that communication or such derivative evidence

while giving testimony under oath in any criminal

proceeding in any court or in any grand jury

proceeding; provided, however, that the presence

of the seal provided for by subdivision two of

section 700.50, or a satisfactory explanation of the

absence thereof, shall be a prerequisite for the use

or disclosure of the contents of any communication

or evidence derived therefrom.

ant

o7ts