Petition — Lincoln v. United States
Supreme Court brief1978
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= Supreme Court, U. Ss
| FILED
mR. CLERK
IN THE
Supreme Court of the United States
OcToBER TERM, 1977
No. 77-1766
JAMES A. LINCOLN, ALBERT LINCOLN, AND
Rosa L. Sumpter, Petitioners,
V.
Unirep States or AMerIca, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Rocer E. ZUCKERMAN
1800 M Street, N.W.
Washington, D.C. 20036
Epwarp O’CONNELL
900 17th Street, N.W.
Washington, D.C. 20006
JACK SINCLAIR
3623 Eastern Avenue
Mt. Rainier, Maryland 20822
June 11, 1978
Pemes or Breox 8. Apams Puintine, Inc.. Wasumeoron, D. C.
TABLE OF CONTENTS
Page
ST ND Sicus cdsctunedadgenscekeeesienedes 1
DR ncececudadetkadsnnentee ten béestadeceus 2
ee I os a uicdneceuneéebeesunne 2
Statutory Provisions INVOLVED .................4:. 2
ey GT ED ccadocdcccceddccacccccstoce 4
A. The Investigation of Petitioners .............. 6
B. Petitioners’ Suppression Contentions .......... 7
1. The Allegation of Taint: Nine Unlawful Gam-
bling Interceptions, 1970-1973 ............. 8
2. The Exhaustion of Normal Investigative
BE A badul xb0dd0cdedsbadbnkes cdsieseces 14
C. Suppression Proceedings .................055: 14
D. The Trial Court’s Rulings ................... 17
Reasons rok Geantinec THE WRiT .................. 18
I. The decision of the United States Court of Ap-
peals for the District of Columbia Circuit that
titioners failed to establish standing to benefit
— nine a illegal wire interceptions errone-
ously resolves an important question of federal
law that has not been ane should be decided by
Ge SE. pececoneseeens6bdd dn 0600 b0eesasee 18
II. The Decision of the Court of Appeals for the
District of Columbia Circuit that the Government
o£ with 18 U.S.C. § 2518(1)(c) erroneously
resolves an important question of federal law
— we not been - should be decided by this -
DE <deducsbdudd Ms Wicbebasentectecenetd’ éne
ii
Table of Contents Continued
Page
A. The Function and Importance of Section 2518
DEED jcccdeedsendneedeeendedsestadeudsuets es 27
B. The 7th Street and Landover Applications ..... 32
DET sc cunekwinenenedeedcduansadeadaseiaes 37
En ee ee la
TABLE OF AUTHORITIES
CasEs:
Alderman v. United States, 394 U.S. 165 (1969) . .20, 21, 23
Benanti v. United States, 355 U.S. 96 (1957) ....... 28
Berger v. New York, 388 U.S. 41 (1967) ............ 28, 29
In re Buscaglia, 518 F.2d 77 (2d Cir. 1975) .......... 22
In re Dellinger, 502 F.2d 813 (7th Cir. 1974), cert.
denied, 420 U.S. 990 (1975) .............eeeeee 22
In re Hodges, 524 F.2d 568 (1st Cir. 1975) ......... 22
Katz v. United States, 389 U.S. 347 (1967) ........ 28, 29
Korman v. United States, 486 F.2d 926 (7th Cir.
ST withdteneanees <4 dcdaethdenedinadansye tes 22, 26
Olmstead v. United States, 277 U.S. 438 (1928) ...... 28
People v. Brown, 364 N.Y.S.2d 364 (1975) ......... 26, 27
People v. Koutnik, 353 N.Y.S.2d 197 (1974) ......... 26, 27
United States v. Bobo, 477 F.2d 974 (4th Cir. 1973),
cert. denied, sub nom. Gray v. Umited States, 421
R. *. 2. BERR 32
United States v. Curreri, 388 F.Supp. 607 (D.Md. 1974) 31
—. 8 v. D’Andrea, 495 Fad 1170 (3rd Cir.
United States v. Fannon, 435 F.2d 364 (7th Cir.
GREED. sccadcoccecscascsscedcenessuesas 21, 23, 25, 26
United States v. Feldman, 535 F.2d 1175 (9th Cir. 1976) 32
United States v. Focarile, 340 F.Supp. 1033 (D.Md.)
affirmed sub nom. United States v. Giordano, 469
F.2d 522 (4th Cir. 1972), affirmed, 416 U.S. 505
ET xds bine bi-v 0401 bh ebndkan) vide skneeeebes 34, 35
United States v. Gibson, 500 F.2d 854 (4th Cir.), cert.
_denied, 419 U.S. 1106 (1974) ......... atead 26, 27
United States v. Giordano, 416 U.S. 505 (1974) ...... 31
United States v. James, 494 F.2d 1007 (D.C. Cir.), cert.
denied, sub nom. Jackson v. United States, 419
— $C oetE se ur etae: 34, 35
ili
Table of Authorities Continued
Page
United States v. Kahn, 415 U.S. 143 (1974) ......... 31
United States v. Kalustian, 529 F.2d 585 (9th Cir.
i i.4e ocecbuudnd penddeehuneeneeen sas uaes 31, 34
United States v. Kerrigan, 514 F.2d 35 (9th Cir.), cert.
denied, sub nom. Kerrigan v. United States, 423
EEE dukcanslwwnssds (eee dhesussaasees 31
United States v. King, 335 F.Supp. 523 (S.D.Calif.
1971), modified, 478 F.2d 494 (9th Cir.), cert.
denied, sub nom. Light v. United States, 414 U.S.
i Mn écotcttedthusiddbéheheenseuensésas 31, 35
United States v. O’Neill, 497 F.2d 1020 (6th Cir.
DE win (ieuiel cendednsdiieiebedbies catnnees 32, 35
United States v. Schaefer, 510 F.2d 1307 (8th Cir.),
cert. denied, 421 U.S. 978 (1975) ...............
United States v. Van Drunen, 501 F.2d 1393 (7th Cir.),
cert. denied, 419 U.S. 1091 (1974) ............. 2
United States v. Vento, 533 F.2d 838 (3d Cir. 1976) ... 31
Zwetbon v. Mitchell, 516 F.2d 594 (1975 D.C. Cir.) (en
banc), cert. denied, 425 U.S. 944 (1976) ......... 21
STaTUTEs:
a eeesbecudes 2, 20, 26
ey ee oc oc cucocccevesvcesssaned passim
I os nn oa acenenee cine 3, 20, 26
Otrner AUTHORITIES:
ABA Proposed Standards Relating to Electronic Sur-
CE MEE cn ducvesccdvensecusedstcestete 30
Dash, Knowlton and Schwartz, The Eavesdroppers
SEE pcevececdodecdnbessusdeasoceescecdecees 28
Federal Communications Act of 1934, 48 Stat. 1103
SE segddun pivkecduecntees coasenbinounieeee 28
Omnibus Crime Control and Safe Streets Act of 1968
P.L. 90-351, 82 Stat. 211-225 (June 19, 1968) . .29, 30, 31
Senate Report 1097, April 29, 1968, accompanyi
Omnibus Crime Control and Safe Streets Act of
1968, 90th Cong., 2nd Session .............. 20, 30, 31
Westin, Privacy and Freedom (1967) .............. 28
Seve 50e RSENS ees ee
ee ee en
IN THE
Supreme Court of the United States
OcTroBeR TERM, 1977
No.
JaMEs A. LINCOLN, ALBERT LINCOLN, AND
Rosa L. Sumpter, Petitioners,
Vv.
Unrrep States or America, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
Petitioners James A. Lincoln, Albert Lincoln, and
Rosa L. Sumpter respectfully pray that a writ of cer-
tiorari issue to review the judgment and opinion of
the United States Court of Appeals for the District
of Columbia Circuit entered in this proceeding on
April 12, 1978.
OPINICN BELOW
The opinion of the Court of Appeals, not yet re-
ported, appears as an appendix hereto. Memorandum
opinions and orders of the District Court, were entered
July 25, 1975 and September 23, 1975. The judgment
of the Court of Appeals for the District of Columbia
was entered April 12, 1978. It appears in the appendix.
2
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
The Court of Appeals for the District of Columbia
Circuit has held that court-authorized wire intercep-
tions of petitioners, upon which their gambling con-
victions are based, were undertaken in full conform-
ance with 18 U.S.C. § 2510 et seq. The questions pre-
sented are:
1. Where petitioners identified nine prior gambling
interceptions that were judicially declared unlawful
and on which there was a ‘‘substantial possibility’’ that
they were overheard and that may have tainted the in-
terceptions upon which their own convictions were
based, was the trial court correct in ruling that peti-
tioners had demonstrated no standing to raise the ille-
gality of the nine unlawful taps and in refusing to
allow examination of materials from these unlawful
interceptions on the issue of standing?
2. Was the Government’s perfunctory boilerplate
statement on investigative need at the conclusion of its
wire interception applications sufficient compliance
with 18 U.S.C, § 2518(1)(c).
STATUTORY PROVISIONS INVOLVED
18 U.S.C. § 2510(11) provides:
(11) ‘‘aggrieved person’’ means a person who
was a party to any intercepted wire or oral com-
as or a person against whom the intercep-
on was
ae
18 U.S.C. § 2518(1)(¢) provides:
(1) Each application for an order authorizing or
approving the interception of a wire or oral com-
munication shall be made in writing upon oath or
affirmation to a judge of competent jurisdiction
and shall state the applicant’s authority te make
such application. Each application shall include
the following information...
(ec) a full and complete statement as to
whether or not other investigative procedures
have been tried and failed or why they rea-
sonably ap to be unlikely to succeed if
tried or to be too dangerous;
18 U.S.C. §2518(10)(a) provides:
(10)(a) Any ieved person in any trial,
hearing, or ing in or before any court, de-
partment, officer, agency, regulatory body, or other
authority of the United States, a State, or a politi-
cal subdivision thereof, may move to suppress the
contents of any intercepted wire or oral communi-
cation, or evidence derived therefrom, on the
grounds that—
(i) the communication was unlawfully in-
tercepted ;
(ii) the order of authorization or approval
under which it was intercepted is i cient
on its face; or
(iii) the interception was not made in con-
formity with the order of authorization or
approval.
Such motion shall be made before the trial, hear-
ing, or proceeding unless there was no opportunity
to make such motion or the person was not aware
of the grounds of the motion. If the motion is
granted, the contents of the intercepted wire or
4
oral communication, or evidence derived there-
from, shall be treated as having been obtained in
. violation of this chapter. The judge, upon the fil-
ing of such motion by the aggrieved person, may
in his discretion make available to the aggrieved
person or his counsel for inspection such portions
of the intercepted communication or evidence de-
rived therefrom as the judge determines to be in
the interests of justice.
STATEMENT OF THE CASE
By indictment filed January 31, 1975, petitioner Rosa
L. Sumpter was charged along with other persons with
various District of Columbia and federal gambling of-
fenses.* By a second indictment filed April 4, 1975, pe-
titioners James A. Lincoln and Albert Lincoln, and
other persons, were charged with similar gambling of-
fenses.’ Both cases arose from the same series of court-
ordered wire interceptions conducted during the sum-
mer of 1974 and both were assigned to United States
District Court Judge Thomas A. Flannery.
A joint suppression hearing was held on June 19
and 20, 1975. On July 25, 1975, the trial court entered
a memorandum opinion and order covering both cases
in which all motions to suppress the wire interceptions
* Her indictment, in United States v. Sumpter, et al., Criminal
No. 75-82, charged the typical array of lottery offenses; viola-
tions of 18 U.S.C. §§ 1952 and 1955 (interstate transportation in
aid of unlawful activity and conducting an illegal gambling busi-
ness); and violations of 22 D.C. Code §§ 1501, 1502 and 1505
(operating a lottery, possession of !ottery slips and maintaining a
gambling premises).
* This indictment, in United States v. Lincoln, et al., Criminal
No. 75-227, was akin in its allegations to the Sumpter indictment
except that it charged no vioiation of 22 D.C. Code §§ 1502 or 1505,
the loca] statute’s gambling misdemeanors.
5
were denied, with the exception of those motions that
alleged that 1974 interceptions were been unlawfully
tainted by earlier illegal taps. On September 5, 1975,
Judge Flannery held a hearing on this aspect of peti-
tioners’ challenge to the legality of the interceptions.
On September 23, 1975, again by memorandum opin-
ion and order entered in both cases, the trial court de-
nied petitioners’ motion for suppression and for other
relief.
Each petitioner was thereafter convicted upon trial
on stipulated facts, the Sumpter proceeding occurring
January 26, 1976 and the Lincoln proceedings occur-
ring March 12, 1976. Each petitioner noted a timely
appeal. The cases were consolidated by the Court of
Appeals on August 26, 1976.
By their appeal, petitioners sought to raise various
issues relating to the manner by which evidence su
porting their convictions was obtained. That evidence
was essentially wire interception evidence. It was os-
tensibly secured without reliance on prior illegal gam-
bling interceptions and in conformance with the pro-
visions of 18 U.S.C. § 2510 et seq. The degree of that
conformance and the extent to which there may have
inhered tainted evidence in the interception applica-
tions underlying the tap from which petitioners were
convicted formed the core of their appellate challenge.
On April 12, 1978, a panel of the United States Court
of Appeals for the District of Columbia Circuit re-
jected that challenge and upheld the manner by which
the Government secured the interceptions in this case.
6
A. The Investigation of Petitioners
Petitioners and their colleagues were said to have
been investigative targets of federal authorities for a
number of years.’ In 1971 and 1972, the authorities
were able to obtain the cooperation of four informants
who, together with other previously cooperating
sources, provided information about the outlines of an
alleged lottery in which petitioners and others partici-
pated.‘ Authorities then began surveillance of an ad-
dress at 5314 7th Street, N.W., in November 1973, and
continued it sporadically through May 1974. The sur-
veillances seemed to corroborate informant allegations
that the 7th Street address was the locus of lottery
activity.’
On this basis, the Government on June 5, 1974, ob-
tained authorization from United States District Court
Judge George L. Hart to install a pen register device
upon telephones 291-4831 and 882-4296, located at 5314
7th Street, N.W.° These pen register devices operated
at certain specitied times during several days in June
and early July.
Based on the results of these pen registers in combi-
nation with informant allegations and surveillances, the
* Affidavit for wire interception of 7234 Landover Road, Land-
over, Maryland, August 17, 1974, at 60. (This affidavit and all other
relevant affidavits may be found in thegoint appendix filed with
the Court of Appeals.) The affidavit nde that the investiga-
tion had been going on for five years, although it is unclear the
degree to which petitioners were direct targets.
* Landover Affidavit at 17-22.
° Id. at 23-31.
* Hereafter the 7th Street pen register.
7
Government on July 26, 1974, obtained authorization
from Judge Hart to install a court-ordered wire inter-
ception on the 7th Street telephones.’ That intercep-
tion operated on four days during the first half of
August.
On August 17, 1974, the Government obtained from
United States District Court Judge Joseph H. Young
of the District of Maryland a court-ordered wire inter-
ception of communications over telephones 322-7404
and 322-7416, both located at 7234 Landover Road,
Apartment E, Landover, Maryland.* This tap operated
for six days during August 1974.
On September 11, 1974, and on the days that followed,
search warrants were issued in the District of Columbia
and Maryland for premises revealed by the intercep-
tions to be involved in lottery activities. Various physi-
cal seizures were made from petitioners and other per-
sons. These seizures, in combination with the intercep-
ted communications, formed the core of the Govern-
ment’s evidence on which subsequent indictments were
based.
B. Petitioners’ Suppression Contentions
By extensively briefed and documented pleadings,
petitioners raised a variety of suppression issues with
the trial court. They pressed two contentions in partic-
ular : the information on which the 1974 pen register and
taps were based was the taint of one or more of several
earlier unlawful wire inte: *eptions; and the Govern-
ment’s wire-interception applications were deficient be-
cause they failed adequately to set forth a full and com-
* Hereafter the 7th Street tap.
* Hereafter the Landover tap.
8
plete statement as to why normal investigative tech-
niques were insufficient.
1. THe ALLEGATION oF TAINT: NINE UNLAWFUL
GAMBLING INTERCEPTIONS, 1970-1973
Petitioners contended that the process by which the
Government accumulated the information on which its
1974 pen registers and taps were based included reli-
ance on one or more of nine unlawful wire interceptions
occurring between October 1970, and March 1973. It
was petitioners’ thesis that these unlawful intercep-
tions provided the Government with information about
the 7th Street address and with the identity and coop-
eration of the four informants whose information con-
stituted a significant portion of the original pen register
basis. Petitioners identified the unlawful gambling in-
terceptions that gave rise to this taint with great par-
ticularity.” They were:
a. The Illegal N Street Interceptions:
October and November 1970
Address: 1425 N Street, N.W., Washington, D.C.
Telephone Numbers: 332-4297 and 234-9598
Date of Authorization: October 29, 1970, extended No-
vember 13, 1970
Authorizing Court: United States District Court for
the District of Columbia
Investigative Agency: FBI
Investigative Purpose: Alleged local gambling activity
Duration of Tap: October and November 1970
Court Action: Wire Se yey declared illegal. All
communications, physical evidence and other fruits
9
suppressed by the United States District Court for
the District of Columbia and affirmed by the
United States Court of Appeals for the District of
Columbia Circuit on March 30, 1973.
b. The Illegal Wisconsin Avenue
Interceptions: November 1970
Address : 8200 Wisconsin Avenue, Bethesda, Maryland
Telephone Numbers : 652-1277 and 652-1278
Date of Authorization: November 25, 1970
Authorizing Court: United States District Court for ~
the District of Maryland
Investigative Agency: FBI
Investigative Purpose: Alleged local gambling activity
Duration of Tap: November and December 1970
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed by the United States District Court for
the District of Columbia on March 29, 1972 and
affirmed by the United States Court of Appeals for
the District of Columbia Circuit on March 30, 1973.
c. The Illegal Devonshire Place
Interceptions: December 1970
Address: 2737 Devonshire Place, N.W., Washington,
D.C.
Telephone Number: 387-2633
Date of Authorization: December 10, 1970
Authorizing Court: United States District Court for
the District of Columbia
Investigative Agency: FBI
10
Investige *‘ve Purpose: Alleged local gambling activity
Duration of Tap: December 1970
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed by the United States District Court for
the District of Columbia on March 29, 1972 and
affirmed by the United States Court of a for
the District of Columbia Circuit on March 30, 1973.
d. The Illegal Good Hope Road
Interceptions: May 1970
Address: 2330 Good Hope Road, S.E., Washington,
D.C., Apartment 712
Telephone numbers : 583-9489 and 583-9499
Date of Authorization: April 30, 1971
Authorizing Court: United States District Court for
the District of Columbia
Investigative Agency: FBI
Investigative Purpose: Alleged local gambling activity
Duration of Tap: May 1, 1971 through May 15, 1971;
May 19, 1971 through May 27, 1971
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed.
e. The Illegal Prince Georges County
Interceptions: Summer 1971
Address: 5211 25th Avenue, Hillcrest Heights,
Maryland
Telephone Numbers: (?) (Albert Lincoln subscriber)
Date of Authorization: Summer 1971
11
Authorizing Court: Prince Georges County District
Court
Investigative Agency: Prince Georges County Police
Department
Investigative Purpose: Alleged local gambling activity
Duration of Tap: At least several days
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed by Judge James F. Couch, District
Court, Fifth Judicial District of Maryland, on De-
cember 17, 1971.
f. The Ilegal Second Street Interceptions:
November and December 1972
Address: 220 Second Street, S.E., Washington, D.C.
Apartment 102
Telephone Number: 544-3653
Date of Authorization: November 15, 1972, extended on
December 7, 1972
Authorizing Court: Superior Court of the District of
Columbia
Investigative Agency: FBI
Investigative Purpose: Alleged local gambling activity
Duration of Tap: A maximum of thirty-two days (For
a — of up to twenty days following November
15, 1972 and for a period of up to twelve days fol-
lowing December 7, 1972.)
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed by United States District Court Judge
June L. Green on September 12, 1973. Suppression
12
affirmed by United States Court of Appeals for the
District of Columbia Circuit on June 28, 1974.
g. The Illegal 12th Street Interceptions:
November and December 1972
Address: 3725 12th Street, S.E., Washington, D.C.
Apartment 208A
Telephone: 635-2487
Date of Authorization: November 29, 1972
Authorizing Court: Superior Court of the District of
Columbia
Investigative Agency: FBI
Investigative Purpose: Alleged local gambling activity
Duration of Tap: A maximum of twenty days
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed by United States District Court Judge
June L. Green on September 12, 1973. Suppression
affirmed by United States Court of Appeals for the
District of Columbia Circuit on June 28, 1974.
h. The Illegal 42nd Street Interceptions:
January 1973
Address: 17 42nd Street, N.E., Washington, D.C.
Apartment 3
Telephone : 397-7996
Date of Authorization : January 24, 1973
Authorizing Court: United States District Court for
the District of Columbia
Investigative Agency: FBI
13
Investigative Purpose: Alleged local gambling activity
Duration of Tap: Approximately seven days
Court Action: Wire interception declared illegal. All
communications, physical evidence and other fruits
suppressed by United States District Court Judge
June L. Green on September 12, 1973. Suppression
affirmed by United States Court of Appeals for the
District of Columbia Circuit on June 28, 1974.
i. The Illegal 16th Street Interceptions:
March 1973
Address : 1232 16th Street, N.E., Washington, D.C.
Telephone Number: ( ?)
Date of Authorization: March 27, 1973
Authorizing Court: Superior Court of the District of
Columbia
Investigative Agency: FBI
Investigative Purpose: Alleged local gambling activity
Duration of Tap: Approximately twenty days
Court Action: Wire interception declared illegal as to
defendant Aaron Moore. All communications, phy-
sical evidence and other fruits suppressed by the
United States Court of Appeals for the District of
Columbia Circuit on May 27, 1975.
Petitioners sought a full evidentiary hearing on the
scope of taint created by these prior illegal investiga-
tive activities.
14
2. Tue EXHAUSTION OF NORMAL INVESTIGATIVE
MEANS
It was petitioners’ second major contention that the
wire-interception applications filed by the Government
failed to offer any full and complete statement as to
whether or not other investigative procedures had been
tried and found wanting. The 7th Street tap applica-
tion contained a three-sentence conclusory assertion at
pages 73 and 74 under the heading ‘‘Summary and
Prayer.’’ The Landover application contained virtu-
ally the same brief assertions at page 60, also under
the heading ‘‘Summary and Prayer.’’ Petitioners con-
tended to the trial court that these brief conclusions
did not constitute ‘‘(a) full and complete statement as
to whether or not other investigative procedures have
been tried and failed or why they appear to be unlikely
to succeed if tried or to be too dangerous,”’ as required
by 18 U.S.C, 2518(1) (c).
C. Suppression Proceedings
On June 19 and June 20, 1975, the trial court con-
ducted hearings on petitioners’ suppression conten-
tions. Following argument on those of petitioners’ con-
tentions that were of a purely legal character,’ peti-
tioners sought to present evidence in support of their
claims of taint caused by the prior illegal interceptions.
After argument on the matter (Tr. 49-70), the trial
court ruled that evidence might be taken on the taint
nexus and that the burden would be petitioners (Tr.
* Those arguments concerned the absence of probable cause for
the pen register application, the absence of investigative need for
the two wiretaps, and the achievement of investigative objectives
— to w installation of the Landover tap. They may be found
at Tr. 11-48.
15
77). As a precautionary measure, over defense objec-
tion (Tr. 66,) the trial court excluded all individual
defendants from the courtroom and allowed the sup-
pression hearing to go forward only in the presence of
counsel for both sides and court personnel (Tr. 77).
The Government called Agent Thomas E. Marsh of
the Federal Bureau of Investigation, apparently the
principal author of the various applications (Tr. 79).
Agent Marsh testified that he had talked with various
other agents responsible for the development of key
informants and informant information and had been
told by them how this materia] had been uncovered.
Agent Marsh testified that he was satisfied it had not
been the result of an unlawful wire interception (Tr.
81, 82).
On cross-examination, a somewhat different picture
developed. Agent Marsh testified that he had never dis-
cussed with any fellow agent the nine unlawful gam-
bling interceptions focused on by the defense (Tr. 96)
and that he had no idea what contract, if any, his fel-
low agents had had with these interceptions (Tr. 91).
Agent Marsh had not participated in the investigation
of petitioners during 1971 and 1972 and had no per-
sonal knowledge of the sources from which informa-
tion in that investigation had come (Tr. 88, 89). Agent
Marsh’s responsibilities at that time involved security
work (Tr. 90). Agent Marsh had no knowledge of the
contact that agents working on petitioners’ investiga-
tion had had with the unlawful 1970 and 1971 intercep-
tions nor of the extent to which those interceptions af-
fected the course of the investigation (Tr. 95, 96).
When Agent Marsh spoke to his fellow agents con-
cerning the possibility of taint, he did not know of the
16
specific interceptions denominated by petitioners and
ruled unlawful by the courts, nor did Agent Marsh
have any knowledge as to the use made by other agents
of the fruits of these taps in the development of inform-
ants or investigative leads. (Tr. 96-100.)
Agent Marsh testified that, as a general Bureau prac-
tice, information from unlawful wire interceptions
would not be excised from Bureau files. The informa-
tion, including names and addresses, would remain in
various files and indexes prepared from the results of a
tap; moreover, the transcriptions themselves would also
be kept, even where the tap had been held to be un-
lawful. (Tr. 85-88.)
The trial court precluded counsel from any more pre-
cise inquiry into the means by which informants were
developed and their nexus to the nine unlawful taps di-
rected at petitioners and their colleagues (Tr. 101). The
trial court also refused inspection in camera of Bureau
records pertaining to these taps (Tr. 103).
Counsel for petitioners specifically objected to these
limitations upon their factual inquiry and urged, with-
out success, that they had been unable effectively to con-
front Agent Marsh and that they were forced improp-
erly to accept the agent’s conclusory hearsay judg-
ments (Tr. 110-111).
Following argument and the taking of evidence on
specific and limited motions involving individual peti-
tioners (Tr. 114-173), the hearings were adjourned.
On July 3, 1975, petitioners filed a formal request
with the trial court to obtain access to the records of all
of the illegal wire interceptions that were the subject
of the June 19 suppression hearing. The trial court
17
heard their request and the Government’s opposition
on September 5, 1976. Following the hearing, petition-
ers James A. Lincoln and Ms. Sumpter submitted affi-
davits in which they specifically averred that there ex-
isted a ‘‘substantial” possibility that they had spoken
with individuals over several of the unlawful tapped
telephones. Both petitioners stated that they were un-
able to aver such facts with absolute certainty because
of the lengthy passage of time involved; however, they
believed on the basis of memory that a substantial like-
lihood of such conversations indeed existed.
D. The Trial Court's Rulings
In its first opinion, on July 25, 1975, the trial court
ruled that probable cause existed for the 7th Street pen
register; that ‘‘(w)hile the affidavit of the FBI agent
might have been more complete’’ on the matter of in-
vestigative need, a sufficient statement was made to
comply with 18 U.S.C. 2518(1) (c) ; that the investiga-
tive objectives had not been achieved by the time of the
Landover tap; and that the other contentions raised by
appellants were also without merit.
Petitioners’ request to obtain the records of the nine
unlawful taps was denied on September 23, 1975. In
denying that request, the court found that petitioners
were engaging in “‘speculation and conjecture’’ that
they had been overheard since none could state ‘‘with
certainty’’ that his voice was intercepted. The court also
held that petitioners had failed to make “any showing
of taint” at their evidentiary hearing. On that basis, the
trial court refused to allow petitioners to examine any
records pertaining to the unlawful taps or to make any
further inquiry into the connection between those un-
lawful taps and the 1974 interceptions.
18
Following the resolution of the trial as earlier des-
cribed, petitioners filed notices of appeal in order fully
to present these issues for appellate resolution. Peti-
tioners’ appeal to the Court of Appeals having been un-
successful, petitioners seek the issuance of a writ of
certiorari.
This case presents two important federal questions
concerning procedures by which court-authorized wire
interception under the federal statute are carried out.
First, it presents the question of the proper procedures
to be followed by the trial court in determining ques-
tions of standing to attack prior unlawful interceptions
and the proper substantive showing required of a de-
fendant asserting such standing. Second, it presents the
recurring question of the proper force and application
of § 2518(1)(¢c) of Title 18, requiring of the Govern-
ment in its wire-interception application full and com-
plete statements as to the utility of prior investigative
efforts. It is petitioners’ contention that each of these
two important federal questions has been resolved er-
roneously by the United States Court of Appeals for
the District of Columbia Circuit.
L. The Decision of the United States Court of Appeals for the
District of Columbia Circuit That Petitioners Failed to Establish
Standing to Benefit From Nine Prior Illegal Wire Interceptions
Erroneously Resolves ar. Important Question of Federal Law
That Has Not Been and Should Be Decided by This Court.
This case poses a problem of recurring frequency
in wire-interception litigation and a problem that has
particularly reared its head as the bank of unusuable
information seized by the Government through judici-
ally declared unlawful wire interceptions has grown.
19
The problem is this: where a defendant in a wire-inter-
ception prosecution identifies with particularity an ar-
ray of evidence unlawfully seized by wire interception
in the past and where there exists a reasonable possi-
bility that such illegal seizures have tainted trial evi-
dence, what showing is required of the litigant to
demonstrate standing to benefit from the prior illegali-
ties. There exists also the corollary problem of the pro-
per procedures to be utilized by the trial court in de-
termining threshhold standing questions. The problem
has become acute as the fund of illegally seized evidence
has grown. That evidence, as in fact was the case here,
is often integrated fully into the data base of investi-
gative agencies and used aggressively to develop new
sources of information and leads. This case poses im-
portant substantive and procedural questions surround-
ing the ability of a litigant to challenge that kind of
governmental conduct.
Petitioners identified for the trial court no fewer
than nine wire interceptions occurring within four
years of the 7th Street and Landover taps that were
later judicially declared illegal as violative of basic sta-
tutory and constitutional guarantees. Each involved the
FBI or local gambling investigators and each occurred
in Washington, D.C. or its close environs. Petitioners
went so far as to identify the particular court which
had declared the gambling interception unlawful as
well as the approximate date on which the decision had
been rendered. Many of the unlawful taps involved pe-
titioners directly, some as targets and some directed
toward persons said to have preceded petitioners as
leaders of their alleged gambling enterprises. The ille-
gality of these nine interceptions is not apparently dis-
puted, nor is their gambling orientation. Petitioners
20
were precluded access to the unlawful taps on questions
of taint and standing, however, because it was held that
no petitioner was clearly shown to have been a party to
any of the seized conversations, an asserted require-
ment of the standing doctrine.
Section 2518(10)(a) of Title 18 permits any “ag-
grieved person” to move to suppress evidence derived
from electronic surveillance. Section 2510(11) defines
an “aggrieved person’’ as one “who was a party to any
intercepted wire or oral communication or a person
against whom the interception was directed.” These re-
quirements, intended to reflect existing law at the time
they were enacted, were reaffirmed by the Supreme
Court in Alderman v. United States, 394 U.S. 165, 171-
174 (1969).
In the context of the present litigation, compliance
with § 2510(11) and Alderman was less than easy be-
cause of the passage of time. The latest of the illegal
interceptions occurred in 1973. Petitioners were in-
dicted in 1975 and the matter litigated through 1976.
The essence of wire interception is secrecy. It is unlike
physical searches, which are knowable events at the
time of their occurrence to all of those who are affected
by them. Thus, in the present case, each petitioner was
required to demonstrate that he was overheard in tele-
phone communications intercepted unbeknownst to him
over various telephones years previous. Petitioners
James A. Lincoln and Rosa L. Sumpter both averred
that there existed a “substantial possibility” that they
were speakers over particular tapped telephones, which
they identified. The Government responded with a bare
letter denial that it could find no evidence of petition-
ers’ voices on the earlier illegal interceptions. Petition-
ers were granted no access to the unlawful intercep-
21
tions of 1970 through 1973 nor did the trial court con-
duct any tn camera inquiries. We respectfully submit
that these events were procedurally and substantively
defective for the following reasons.
First, averments that a “substantial possibility’’ of
interception exists are sufficient to establish standing
or at least to toll additional inspection obligations by
the trial court. Cf. United States v. Fannon, 435 F.2d
364 (7th Cir. 1970). In the circumstances of this case,
we believe these renditions of ‘‘substantial possibility’’
as opposed to absolute certainty are manifestly suffi-
cient to create standing sufficient to obtain access to
the interceptions in question pursuant to Alderman
and to Zweibon v. Mitchell, 516 F.2d 594, 606 n.14
(1975) (en banc), cert. denied, 425 U.S. 944 (1976).
Second, the bare unsworn letter denial of the Govern-
ment that it could find no indication that petitioners
had been overheard is not enough to overcome these
sworn assertions by petitioners, particularly petitioner
Sumpter. Ms. Sumpter testified under oath that she was
the victim of unlawful interceptions at her residence
that occurred shortly before the 1974 taps and that gave
to FBI agents intimate knowledge of her personal af-
fairs, with which they thereafter confronted her. (Tr.
116-134.) During a hearing before the court, Ms.
Sumpter alleged two occurrences which seemed to point
to an illegal wiretap on her telephone on the part of
Agent Teasley. Under oath, Agent Teasley denied mak-
ing an illegal wiretap of Ms. Sumpter’s telephone. The
court’s memorandum of July 25, 1975 stated ‘‘Sump-
ter’s testimony at the hearing was insufficient to show
that the government had engaged in such interception,”
and the motion was denied.
22
The trial court’s holding does not reflect the current
status of the law. Korman v. United States, 486 F.2d
926, 931 (7th Cir. 1973), holds that a letter of denial
of electronic surveillance by the Department of Jus-
tice is not sufficient and that ‘‘an official government
denial of electronic surveillance must at the very
least be submitted in the form of an affidavit by a re-
sponsible government official.” In a footnote (n.10),
the court stated it would accept as sufficient a denial
under oath by ‘‘a United States Attorney iu charge of
the probe or an agency head in charge of the investi-
gation.”
Korman was followed by In re Dellinger, 502 F.2d
813, 818 (7th Cir. 1974), cert. denied, 420, U.S. 990
(1975), United States v. Van Drunen, 501 F.2d 1393,
1399 (7th Cir.), cert. denied, 419 U.S. 1091 (1974), and
In re Buscaglia, 518 F.2d 77, 79 (2d Cir. 1975). In
United States v. D’Andrea, 495 F.2d 1170, 1174 n.12
(3rd Cir. 1974), Korman was distinguished, not with-
out misgivings (the court held the Korman rule pre-
ferable but not required), because only a ‘‘bald accusa-
tion of illegality’’ had been made. But in Rosa Sump-
ter’s case, much more than a “bald accusation’’ has
been made.
In re Hodges, 524 F.2d 568 (1st Cir. 1975), accepts
oral government testimony as a sufficient denial of elec-
tronic surveillance, and cites several other cases in
agreement. But Hodges and the cases it cites (except
D’Andrea considered above) deal with grand jury
witnesses seeking to be excused from answering gov-
ernment questions, and not with defendants in crimi-
nal cases. Recent cases of the latter type—and of course
Rosa Sumpter falls in this class—consistently demand
more than an oral denial or a written conclusory state-
ment by a government official.
23
Third, in many instances standing itself requires an
analysis of the contents of the intercepted communica-
tions. In the present case, petitioners were not fishing
wildly for prior illegality. They identified nine specific
unlawful taps which had occurred during the very
years that the FBI claimed to have been investigating
them. None of the petitioners would foreclose the pos-
sibility that his voice had been intercepted. Most simply
could not remember the daily pattern of their telephone
calls years previous with concrete specificity. Rather
than misrepresent their recollections, it was requested
that access be provided to the interceptions in order
that the “chicken-and-egg” standing dilemma might be
resolved. Such access was clearly required as was a
more detailed examination by the trial court of docu-
ments and materials relating to the nine illegal taps.
United States v. Fannon, supra at 366-367.
In Fannon, a co-defendant was the subject of elec-
tronic surveillance. The Government stated that there
was no eavesdropping upon defendant Fannon, no in-
terception of his conversations and no eavesdropping
or interceptions of any persons upon the defendant’s
premises. Fannon then moved for inspection of various
documents and records relating to the electronic moni-
toring of the co-defendant. “The motion was aimed at
establishing Fannon’s standing to show the evidence
used against him at his trial arose from the govern-
ment’s illegal conduct.’’ Jd. at 366. The trial court de-
nied him that opportunity, citing Alderman and the as-
serted absence of any right to an adversary hearing on
the standing issue, and relying further upon an un-
sworn negative answer from a government attorney on
the question of eavesdropping of Fannon.
24
The Seventh Circuit reversed, in language that is di-
rectly apposite here:
The issue before us is whether Fannon is entitled
to the discovery sought by his motion as a means
of establishing his standing to show that evidence
introduced at his trial arose from the illegal moni-
toring by the government. We think that Alderman
v. United States, 394 U.S. 165, 89 S.Ct. 961 (1968),
implicitly requires that Fannon’s motion for dis-
covery be granted.
Alderman expressly requires an adversary hear-
ing for one with standing to prove that his convic-
tion was tainted by use of evidence which arose
from illegal monitoring of conversations, either of
his or of others upon his premises, whether or not
he was present or participated in the latter. Where
illegal monitoring is conceded, a petitioner must
have an opportunity to prove that a substantial
part of the case against him was the fruit of the
oer ’s illegal conduct. Alderman, supra, 394
S. at 183, 89 S.Ct. 961.
While Alderman does not expressly deal with
the issue of standing, we think that without a fair
opportunity to prove standing, the right to the op-
portunity to show a tainted trial—announced in
Alderman—is a right without value. The govern-
ment concedes here that it has conducted illegal
eavesdropping upon conversations of a Fannon co-
defendant. For that reason we think, to establish
standing, he has the right to go forward with proof
that his conversations, or those of others on his
premises, whether or not he was present or partici-
ted, was overheard. This proof is needed as a
sis for availing himself of the opportunity which
Alderman holds he has the right to with respect
to the main issue whether his trial was tainted.
Neither the district court’s in camera inspection
nor the unsworn answers of the prosecutor to the
25
court’s questions, nor both, adequately respond to
the implicit requirement in Alderman, and in the
Supreme Court’s remand of this case, of a fair op-
portunity to establish standing.
The geome conducts surveillance pay
through federal agents, and the fruits of the sur-
veillance are either turned over by the agents to the
a prosecutors or retained by the agents.
ere a co-defendant’s conversations have been
monitored, as here, a defendant has available, to
establish standing, only his fear that it is likely
that the fruits of the government’s illegal eaves-
dropping contain evidence which aided the prose-
cution in its case against him. Only the government
knows the facts. Fannon’s discovery motion is a
prudent effort to learn the facts.
We hold therefore that the district court erred
in 7. a motion for additional discov-
ery. The district court’s judgment is reversed and
the cause is remanded for further proceedings con-
sistent with the views expressed in this opinion.
Id. at 366-367. (Footnote omitted.) We believe that the
rationale of the Seventh Circuit in Fannon is abso-
lutely correct and that the decision in that case conflicts —
directly with that here.” These petitioners deserved
some access to the unlawful interceptions these identi-
fied in order to establish their standing. And they re-
ceived none.
Fourth, without belaboring the point, we note that
the peculiar nature of wire interception has caused a
number of courts to find standing for all attacks upon
defects in a particular interception even where a de-
1° Fannon is particularly apposite because the original conviction
of the defendant was vacated by the Supreme Court precisely be-
cause of the electronic eavesdropping problem. Id. at 365.
26
fendant may not have been overheard on preexisting in-
terceptions. See, e.g., United States v. Gibson, 500 F.2d
854, 855 (4th Cir.), cert. denied, 419 U.S. 1106 (1974) ;
People v. Brown, 364 N.Y.8.2d 364 (1975) ; People v.
Koutnik, 353 N.Y.S.2d 197 (1974). Each petitioner here
was intercepted on the 1974 taps and has clear standing
to object to all of the defects of those interceptions pur-
suant to 18 U.S.C. § 2518(10) (a) and § 2510(11). Par-
ticularly where there is alleged to have been a pattern
of illegality and an intertwining of several intercep-
tions, as here, these broadened notions of standing seem
appropriate.
We respectfully submit that the Court of Appeals re-
sponse to each of these matters is not compelling. As to
petitioners’ averment that a “substantial possibility”
existed that they were overheard, the court concedes
that “few accused of crime will be honestly able to be
more specific as to discussions allegedly held several
years earlier.’”’ (Slip op. at 17.) The court then simply
asserts that to compel any disclosure would place the
Government under a burden that was ‘‘both unprece-
dented and dangerous.” Jd. We believe that is simply
wrong, as the Fannon court held. Moreover, it was here
the case that the interceptions in question had been ju-
dicially determined to have been unlawful. They had
already been disclosed in other forums and litigated.
The disclosure argument thus loses virtually all of its
force. As to the letter denial, the court simply declines
to adopt the Seventh Circuit’s position in Korman.
(Slip op. at 14, £n.38.) As to the need for a more active
inquiry by the trial court on the question of standing,
the court conclusorily determines that it was not neces-
sary here and leaves open the question of when it may
be required in the future. Fannon is not dealt with.
27
(Slip op. at 16-17.) Finally, the court declines to adopt
the more expansive notions of standing discussed above
and adverted to in Gisbon, Brown, and Koutnik. (Slip
op. at 9-10, fn.21.)
These are important and recurring issues of federal
jurisprudence. For the reasons set forth above, we re-
spectfully believe that they have been decided errone-
ously by the Court of Appeals for the District of Co-
lumbia and that a writ of certiorari should thus issue.
Il. The Decision of the Court of Appeals for the District of
Columbia Circuit That the Government Complied with 18
U.S.C. § 2518(1c) Erroneously Resolves an Important Question
of Federal Law That Has Not Been and Should Be Decided by
This Court.
The wire-interception applications utilized by the
Government in this case fail to set forth fully and com-
pletely the requisite information on the use of other in-
vestigative techniques as required by 18 U.S.C. 2518
(1)(¢). The 7th Street application and the Landover
application both contain what is essentially a general
and conclusory boilerplate recitation, three or four sen-
tences long, that is neither ‘‘full’’ nor ‘“‘complete.’’ ™
Such pleading techniques are in direct violation of the
commands of 18 U.S.C. 2518(1) (c).
A. THE FuNcTION AND IMPORTANCE OF SECTION
2518(1) (c)
Wire interception is an extra-ordinary investigative
technique. Its difficulty of administration, potential for
constitutional abuse, and chilling effect on the normal
** Indeed, both recitations appear in the ‘‘Summary and Prayer’’
section of the applications, Seventh Street application at 73-74.
Landover application at 60.
28
candor of the community have carved for it a special
place in the law." For a great while, it was proscribed
by federal statute.” Such proscriptions applied across
the board in federal courts and included evidence se-
cured by state law enforcement officials as well as
federal.”
In 1967, the Supreme Court put its imprimatur upon
a limited and highly controlled system of court-author-
ized and court-supervised wire interception.” It found
no constitutional infirmity in the use of such an investi-
gative technique, provided a wide variety of constraints
designed to render wire interception consistent with the
demands of the Fourth Amendment were imposed.
Among these requirements were those of antecedent
justification of the proposed interception to a neutral
and detached magistrate upon oath and supported by
probable cause; a particularized description of the com-
munications to be seized; an interception limited in
scope and duration to the specific purpose of establish-
ing the contents of the particular communications to be
12 The potential constitutional and practical difficulties involved
in the use of wire interception devices are detailed in Dash, Knowl-
ton & Schwartz, The Eavesdroppers 1959), pp. 303-379; see also
Westin, Privacy and Freedom (1967), pp. 73-78.
18 Section 605 of the Federal Communications Act of 1934 pro-
hibited the interception and divulgence of the contents of any wire
communication by either law enforcement officials or private per-
sons. 48 Stat. 1103 (1934). These provisions were passed six years
after and in response to the Supreme Court’s decision in Olmstead
v. United States, 277 U.S. 438 (1928), that wiretapping did not
constitute a search within the mesning of the Fourth Amendment.
* See, ¢.g., Benats v. United States, 355 U.S. 96 (1957).
1 Berger v. New York, 388 U.S. 41 (1967); Kate v. United
States, 389 U.S. 347 (1967).
seized ; and termination of the interception immediately
upon seizure of these conversations.”
Standing alongside these constitutional precondi-
tions was another. The Fourth Amendment normally
demands that notice be given by the Government to the
suspect at the place and time that searches for tangible
items occur. The usefulness of electronic surveillance,
however, ‘‘depends on the lack of notice to the sus-
pect.” Indeed, the giving of notice would likely cause
a situation analogous to that where announcement of a
search for tangible items provoked destruction of the
very items o be seized : foreknowledge of electronic sur-
veillance would cause the words to be seized likely to go
unuttered.” As a result of this line of analysis, the Su-
preme Court concluded that prior or contemporaneous
notice of the interception of communications by court
authorization is not constitutionally required. To jus-
tify constitutionally such an omission to give notice,
the court imposed the precondition that there be some
“showing of exigency, in order to avoid notice.” ”
Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 * endeavors to satisfy each of the
constitutional requirements for wire interception set
forth in Kate and Berger. As regards the required
* Berger v. New York, supra, at 55, 59-60; Katz v. United States,
at 354-355, 359.
" Kate v. United States, at 358, fn. 22.
* Kate v. United States, at 255-256, fn. 16.
*” Berger v. New York, at 50.
oon” 90-351, 82 Stat. 211-225 (June 19, 1968), 18 U.S.C. 2510
seq.
showing of exigency, Section 2518(1)(c) of Title Tit
specifies that as a prerequisite to any wire interception
whatever, the application must contain:
A full and complete statement as to whether or not
other investigative procedures have been tried and
failed or why they appear to be unlikely to succeed
if tried or to be too dangerous.
Section 2518(3)(¢) imposes the duty upon the review-
ing court to determine before issuing any wire-inter-
ception authorization that:
Normal investigative procedures have been tried
and have failed or reasonably appear to be unlikely
to succeed if tried or to be too rous.
The American Bar Association “Standards Relating to
Electronic Surveillance,’ which parallel Title III
closely, make clear that these provisions are intended
to insure the requisite exigency.
The Senate Committee on Title III speaks forcefully
to the need for these kinds of findings. It notes that the
required showing of exigency is “patterned after tra-
ditional search warrant practice and present English
procedure in the issuance of warrants to wiretap by the
Home Secretary.” Thereafter, the Senate Committee
describes the kinds of normal investigative procedures
that must be found wanting before wire interception
can begin:
Normal investigative procedures would include,
for example, standard visual or aural surveillance
techniques by law enforcement officers, general
questioning or interrogation under an immunity
grant, use of regular search warrants, and the in-
" ABA Proposed Standards Relating to Electronic Surveillance
(1968) at 140-141.
31
filtration of conspiratorial groups by undercover
agents or informants.”
The Department of Justice itself in its Manual for
Conduct of Electronic Surveillance under Title III
states: “interception under Title III is to be considered
an investigative tool of last resort.” See, United States
v. King, 335 F. Supp. 523, 541-542 (S.D. Calif. 1971),
modified, 478 F.2d 494 (9th Cir.), cert. denied, sub nom.
Light v. United States, 414 U. 8. 846 (1973).
The central importance and rigor of application of
Section 2518(1)(c) has found wide judicial expression.
The Supreme Court in reviewing the provisions of Title
III affirmed that “wiretapping is not (to be) resorted
to in situations where traditional investigative tech-
niques would suffice to expose the crime.” United States
v. Kahn, 415 U.S. 143, 153 n. 12 (1974). See also,
United States v. Giordano, 416 U.S. 505, 515 (1974).
Various circuits have been unremitting in their eom-
mand that a “full and complete” statement describing
the insufficiency of “traditional investigative tech-
niques,” as mandated by Section 2518(1)(c), is an ab-
solutely essential element of a valid interception appli-
cation. See, e.g., United States v. Vento, 533 F.2d 838
(3d Cir. 1976): United States v. Kalustian, 529 F.2d
585, 590 (9th Cir. 1975).* General declarations of in-
vestigative difficulty will not suffice. United States v.
Vento, supra at 849. Nor will conclusory statements or
** Senate Report No. 1097, April 29, 1968, accompanying Omni-
bus Crime Control and Safe Streets Act of 1968, at 101.
* See also, United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.),
cert. denied, sub nom. Kerrigan v. United States, 423 U.S. 924
ah United States v. Curreri, 388 F. Supp. 607, 608 (D. Md.
32
boilerplate recitations, ‘‘lest wiretapping become estab-
lished as a routine investigative recourse of law en-
forcement authorities, contrary to the restrictive intent
of Congress.’’ Id. at 849-850. With regard to gambling,
it has been said that ‘‘law enforcement agencies may
not rely upon the general difficulty of apprehending
and convicting bookmakers to justify the use of wire-
tapping.” United States v. Feldman, 535 F.2d 1175,
1178 (9th Cir. 1976). Rather, the affidavit must contain
a description of specific alternative procedures relating
to the particular case at hand. While these procedures
need not have been exhausted, the application must con-
tain a ‘‘full and complete statement” as to why they are
unworkable within the framework of the particular in-
vestigation. Conclusory assertions, boilerplate and ap-
peals to ‘“‘genera] investigative experience”’ are not con-
sistent with the section’s commands nor are they con-
sistent with the important constitutional purpose it
serves.”
B. Tue 7tH STREET AND LANDOVER APPLICATIONS
The 7th Street and Landover applications are virtual
models of statutory insufficiency and commit the very
vices of generality, conclusiveness and boilerplate that
all courts have found objectionable.
™* Those cases in which the Government has surmounted Section
2518(1)(¢) attacks generally involve applications with significantly
more than statements of general investigative experience or conclu-
sory boilerplate. Specific examples of surveillance inability, unsuc-
cessful agent penetration, inability to execute search warrants and
the like are fully described. See, e.g., United States v. Schaefer, 510
F.2d 1307, 1310 (8th Cir.), cert. denied, 421 U.S. 978 (1975);
United States v. O'Neill, 497 F.2d 1020, 1025 (6th Cir. 1974);
United States v. Bobo, 477 F.2d 974, 982 (4th Cir. 1973). cert.
denied, sub nom. Gray v. United States, 421 U.S. 909 (1975).
33
Both applications contain, at best, four sentences
that purport to constitute the “full and complete state-
ment.” * The first sentence of each relates, with some
ambiguity, that an investigation, using surveillance, in-
formants and traditional investigative techniques, of
“a large scale racketeerng activity’’ has been occurring
for over five years. The affiant fails to describe the re-
lationship between this investigation and the current
case. Further, he fails to state even whether the investi-
gation involved gambling activity or any of these target
appellants. The second sentence merely asserts that no
conclusive evidence for prosecution has been developed
from “(t)his investigation.” The third sentence makes
the bald assertion that informants refuse to testify
about gambling activity and have advised their contact-
ing agents to that effect. The final sentence is a conclu-
sory summarization of the preceding three: “it is rea-
sonably concluded the continued use of normal investi-
gative techniques would not bring this matter to a suc-
cessful conclusion.”’
By no stretch of the imagination can the semantic ex-
ercise contained in these four sentences be considered a
“full and complete statement as to whether or not other
investigative procedures have been tried.” It is in fact
four disjointed sentences, three of which are axiomatic
investigative banalities that say virtually nothing, and
a fourth which is merely repetitious and baldly conclu-
sory. Moreover, the entire ‘‘statement’’ is contained not
in a separate section of the application reserved for
compliance with the critically important requirements
of Section 2518(1)(c). Rather, it appears as the intro-
duction to the boilerplate ‘‘summary and prayer’’ that
* 7th Street application at 73-74; Landover application at 60.
34
concludes the application, a further indication of the
cavalier treatment given the matter by the Government.
Indeed, the four-sentence piece is far shorter and less
specific than the Kalustian submission, which the Ninth
Circuit found insufficiently full and complete.
The matter is even more troublesome when viewed in
light of the preceding pages in the Government’s appli-
cations. Far from showing a complete absence of suc-
cess by the use of traditional investigative techniques,
the Government’s applications show physical surveil-
lance and informant cooperation of a significant level.
Fifty surveillances over some fifteen pages of the 7th
Street application are recited (7th Street application
at 40-55). These sightings are made of the putative tar-
gets of the tap at central locations thought to be head-
quarters for the gambling operation. These sightings
occurred continuously for a period of almost one year
without having been discovered. In addition, informa-
tion obtained by the Government by means of the pen
register was deemed to be equally significant (Id. 55-
56), and informants were said to have provided specific
details about the manner of operation of the alleged en-
terprise (Jd. at 19-34).
The state of this pre-tap investigation knowledge
should be compared to that in United States v. James,
494 F.2d 1007, 1016, cert. denied, sub nom. Jackson v.
United States, 419 U.S. 1020 (1974), a case in which
surveillance was minimal, informations limited to one
(and that not clearly reliable), and all other avenues of
information either scanty or foreclosed. Similar inves-
tigative difficulties regarding informants or surveil-
lance problems may be found in a host of other cases in
which wiretapping was ultimately approved. In United
States v. Focarile, 340 F. Supp. 1033 (D. Md.), affirmed
35
sub nom. United States v. Giordano, 469 F.2d 522 (4th
Cir. 1972), affirmed, 416 U.S. 505 (1974), surveillance
of the location of the lawful activity was described as
largely impossible, since the apartment was located in
a high-rise building. Wire interception was also justi-
fied in United States v. King, supra., because surveil-
lance of the defendants’ activities was impossible with-
out easy detection (the defendants operated a boat far
from shore. In the present case, the Government con-
ducted more than fifty successful and undetected sur-
veillances over a period of at least six months. In Foca-
rile, there was but one informant who had had dealings
with the target defendants and he was unable to infil-
trate their organization without arousing suspicion. In
United States v. O’Neill, supra., informants were
equally unable to furnish meaningful information
about the alleged unlawful gambling enterprise. This
was also the case in James. Here, the twelve informants
described by the Government were well integrated into
the gambling organization, well-acquainted with and
trusted by its alleged principals, and able to do what-
ever they pleased to gather the information needed to
build a prosecutable case.
The foregoing is not meant only to suggest that wire
interception may not have been justified in this case.
The highly detailed recitation of the apparently suc-
cessful investigation by traditional means underscores
the need for the ‘‘full and complete” statement sup-
porting resort to wire interception and the utter inade-
quacy of the four-sentence offering supplied by the
Government.. The heart of the Government’s applica-
tion simply raises questicas of investigative need that
the Government failed completely to answer.
36
The failure of the Government to meet this critical
requirement in the present case is monumental. The
trial court itself was sufficiently troubled by the brevity
and generality of the statement of investigative need to
observe that ‘‘the affidavit of the FBI agent might have
been more complete on this point.’ In finding that the
lack of completeness cid not constitute a violation of
Section 2518(1)(c), the trial court held that, “the bur-
den on the Government under this provision is not a
great one.” From that postulate, the court concluded
that the insubstantial four-sentence presentation con-
tained in the application sufficed. Petitioners respect-
fully submit that the trial court’s undervaluation of
Section 2518(1)(c) is contrary to the provisions of the
statute itself, to its legislative history and to the mean-
ing that the Supreme Court and other Circuit Courts
of Appeal have given to this very central provision.
The Court of Appeals itself concluded that the sum-
mary and prayer portions of the affidavit dealing with
investigative need “are framed in conclusory terminol-
ogy.’’ (Slip op. at 22.) The court then held that when
read in conjunction with the body of the affidavit, the
conclusory terminology carried sufficient particularity.
As we have suggested earlier, however, the body of the
affidavit relates a history of investigative action that is
essentially successful, unimpeded and not of the frus-
trated character normally associated with electronic
surveillance.
Questions relating to the proper application and
force to be given § 2518(1) (c) and to the rigor by which
it must be applied abound. They are daily faced by fed-
eral tribunals. It is our submission that that issue as
* Opinion of July 25, 1975.
37
here posed was wrongly decided by the Courts of Ap-
peals, which undervalued drastically the protections of
§ 2518(1)(¢c) and gave improper weight to a perfunc-
tory boilerplate statement at the conclusion of the
lengthy wiretap application. For this reason as well, we
respectfully request that the writ of certiorari issue.
CONCLUSION
Wherefore, petitioners respectfully ask that the writ
of certiorari issue.
Respectfully submitted,
Roacer E. ZucKERMAN
1800 M Street, N.W.
Washington, D.C. 20036
Epwarp O’CoNNELL
900 17th Street, N.W.
Washington, D.C. 20006
JACK SINCLAIR
3623 Eastern Avenue
Mt. Rainier, Maryland 20822
June 11, 1978
APPENDIX
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S.App.D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Cmuot of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 76-1169
UNITED STATES OF AMERICA ‘
Vv.
GEORGE WILLIAMS, JR., APPELLANT
No. 76-1355
*s UNITED STATES OF AMERICA
\
‘ v.
Rosa L. SUMPTER, APPELLANT
No. 76-1356
UNITED STATES OF AMERICA
Vv.
Rosa L. SUMPTER, APPELLANT
Bills of costs must be filed within 14 days after entry of judgment. The
court looks with disfavor upon motions to file bills of costs out of time.
2a
2
No. 76-1406
UNITED STATES OF AMERICA
V.
LUSSIA REIN, APPELLANT
No. 76-1635
UNITED STATES OF AMERICA
Vv.
JAMES A. LINCOLN, APPELLANT
No. 76-1636
UNITED STATES OF AMERICA
Vv.
Mary L. LINCOLN, APPELLANT
No. 76-1637
UNITED STATES OF AMERICA
v.
MICHELE E. LINCOLN, APPELLANT
3a
3
No. 76-1638
UNITED STATES OF AMERICA
Vv.
ALBERT LINCOLN, APPELLANT
No. 76-1639
UNITED STATES OF AMERICA
Vv.
NORRIS DUBOSE, APPELLANT
No. 76-1640
UNITED STATES OF AMERICA
Vv.
THELMA DUBOSE, APPELLANT
Appeals from the United States District Court
for the District of Columbia
(D.C. Crim. Action Nos. 75-82, 76-33 and 75-227)
Argued March 23, 1977
Decided April 12, 1978
Judgment eutered |
this date
4a
4
Fred Warren Bennett (appointed by this court) for
appellant in No. 76-1169.
Roger E. Zuckerman, with whom James L. Lyons, Jack
Sinclair, Fred Bennett and Edward O’Connell were on
the brief, for appellants in Nos. 76-1355, 76-1356, 76-1406,
76-1635, 76-1636, 76-1637, 76-1638, 76-1639 and 76-1640.
Larry C. Willey, Assistant United States Attorney, with
whom Earl J. Silbert, United States Attorney, John A.
Terry and Robert Richard Chapman, Assistant United
States Attorneys, were on the brief, for appellee.
Before MCGOWAN, ROBINSON and WILKEY, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROBINSON.
ROBINSON, Circuit Judge: Appellants were indicted on
an assortment of charges stemming from their alleged
participation in a gambling operation. After they sought
unsuccessfully to suppress conversations monitored by
judicially authorized wiretaps,’ they waived jury trials
and were variously convicted on the basis of stipulated
facts, thus preserving for appellate consideration their
1 In thirteen counts appellants Rosa L. Sumpter, Lussia Rein
and George Williams, Jr., together with five other persons,
were charged under 18 U.S.C. § 1955 (1970) with conducting
an illegal gambling business, under D.C. Code § 22-1501
(1973) with operating a lottery, under D.C. Code § 22-1502
(1973) with possession of numbers slips, and under D.C. Code
§ 22-1605 (1973) with maintaining gambling premises. Ap-
pellant Sumpter was also charged under 18 U.S.C. § 1952
(1970) with use of a telephone in interstate commerce in aid
of unlawful activity. A separate three-count indictment simi-
larly charged appellants James A. Lincoln, Mary L. Lincoln,
Michele E. Lincoln, Albert Lincoln, Norris DuBose and Thelma
DuBose with violations of §§ 1955 and 22-1501 and James and
Albert Lincoln with a violation of § 1952.
* See Omnibus Crime Control and Safe Streets Act of 1969,
Pub. L. No. 90-351, tit. III, § 802, 82 Stat. 216, 18 U.S.C.
§ 2515 (1970). Hereinafter, citations will be to the Act as
codified.
5a
suppression claims. Finding no error in the District
Court’s ruling thereon, we affirm.
I
For about five years prior to 1974,’ appellants’ gambling
business was the target of federal scrutiny through the
use of informants and surveillance by agents of the Fed-
eral Bureau of Investigation.‘ Intelligence thus derived
fostered the belief that a house on Seventh Street, North-
west, in the District of Columbia was the locus of a num-
bers operation,’ and the FBI, by the District Court’s au-
thorization, installed pen registers on two telephones
therein.* About two months later, on information gleaned
* Appellants’ Appendix (App.) 128.
* App. 82-112.
5 App. 82-98.
*App. 118. “A pen register is a mechanical device that
records the numbers dialed on a telephone by monitoring
the electrical impulses caused when the dial on the telephone
is released. It does not overhear oral communications and
does not indicate whether calls are actually completed.” United
States v. New York Tel. Co., —— USS. n.1, 98
S.Ct. 864, 366 n.1, 54 L.Ed.2d 376, 382 nl (1977). The
standards governing orders authorizing the installation of
are to be found in the Fourth Amendment and
Fed. R. Crim. P. 41. Jd. at ——, 98 S.Ct. at 370-871, 54 L.Ed.
2d at 387-388.
Appellants claim that the District Court erred in finding
probable cause for resort to the pen registers. We think
the affidavit supporting the application therefor contains ade-
quate validating data. The affidavit, after summarizing ma-
terial connoting the reliability of numerous confidential in-
formants, App. 12-15, sets forth information from those
sources comfortably establishing probable cause to believe
that appellant Sumpter was engaging in telephone conver-
sations thereat which furthered a numbers business. App.
16-21. The affidavit also describes surveillance of the Seventh
6a
6
to that point, authority to intercept communications over
one of these lines was conferred.’ After cessation of that
wiretap, approval for electronic surveillance of two tele-
phones at a house on Landover Road, in Maryland, was
obtained.* Search warrants were subsequently executed at
District and Maryland locations where the FBI believed
the operation was progressing.”
Indictments followed,’ and appellants soon filed pre-
trial suppression motions. After two days of hearings, the
District Court deferred consideration of one motion and
denied the remainder,” and after a further hearing re-
Street house, which disclosed that Sumpter was frequently
there at times when numbers activity was reasonably thought
to be occurring. App. 24-33. aes
Pursuant to a subpoena duces tecum, Chesapeake ()
Telephone Company supplied the numbers of the two tele-
phones at the Seventh Street address. App. 22. Appellants
argue that the affidavit and application do not say that they
were the only telephones there. The District Court found
that
{[w]hen read in a commonsense fashion, the affidavit
shows that in response to a subpoena duces tecum, Chesa-
peake & Potomac Telephone Company provided the num-
bers of all phones which its records showed at [Seventh
Street]. The court, therefore, finds that the affidavit
demonstrated probable cause for the authorization of pen
registers on the numbers shown in the affidavit.
App. 414. We find no error in this respect.
* App. 50-132; see 18 U.S.C. § 2518(3) (1970).
* App. 183-136.
* App. 145-275.
1° App. 422-425.
11 See note 1 supra.
% App. 409-427. No appeal was taken from the District
Court’s decisions on several of the pretrial motions.
7a
7
jected the deferred motion.“ In this court, appellants
contend that access to the conversations overheard in 1974
on the Seventh Street and Landover telephone lines was
tainted. by nine concededly illegal wiretappings conducted
between 1970 and 1973. They also argue that the appli-
cations for the Seventh Street and Landover interceptions
were defective under Title III of the Omnibus Crime Con-
trol and Safe Streets Act of 1969.* Thus they challenge
on both grounds the court’s refusal to ban the use of evi-
dence derived by electronic surveillance at the Seventh
Street and Landover locations. We now examine, in turn,
these assertions of error."
II
The illegality of the nine 1970-73 wiretaps is not in
dispute, for each has already been the subject of a judi-
cial declaration to that effect.* The disagreement is over
8 App. 428-430.
“18 U.S.C. §§ 2510 et seg. (1970 and Supp. V 1975).
‘* Appellant George Williams, Jr., urges additionally that
the District Court stumbled in ruling that the failure to
serve him with an inventory notice, as directed by 18 U.S.C.
§ 2518(8)(d) (1970), did not warrant suppression of the
wiretap evidence. After the court had ruled, however, the
Supreme Court handed down its decision in United States v.
Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977),
in which it held that nonobservance of this statutory specifi-
cation, at least when not in bad faith, does not require sup-
pression of intercepted communications. Jd. at 435-437
& n.23, 97 S.Ct. at 672-673 & n.23, 50 L.Ed.2d at 672-674 &
n.23. Since Williams has nowhere contended that bad faith
was an element of the Government’s omission to provide the
authorizing judge with his name so that an inventory notice
could be sent to him, Donovan dictates that the suppression
remedy may not be invoked.
‘* The relevant events are recounted in Brief for Appellants’
at 9-14. The Government has not disputed the accuracy of
that description of the nine wiretaps.
8a
§
whether the Seventh Street and Landover wiretaps were
similarly unlawful by reason of linkage to those transpir-
ing before." We need not reach this dispute, however,
because we ultimately hold that the District Court prop-
erly concluded that appellants failed to establish their
standing to benefit from any error inhering in the earlier
monitoring.
Before an accused may be heard to complain that prose-
cution evidence should be suppressed because it was come
by illegitimately, he must first make out his standing,
which generally entails a demonstration that his own
interests were affected by the challenged search or seiz-
ure.* With particular regard to electronic eavesdropping,
the accused must show that it was directed at him, that
the Government intercepted his conversations or that the
wiretapped communications occurred at least partly on
his premises.** Unless he can establish one of these events,
1" Specifically, appellants contend that material derived from
some of the 1970-73 wiretaps may have been used to develop
four of the confidential sources of information instrumental
in obtaining judicial leave to install the Seventh Street and
Landover wiretaps.
18 Alderman V. United States, 394 U.S. 165, 171-174, 89 S.Ct.
961, 965-967, 22 L.Ed.2d 176, 185-187 (1969).
1* See id. at 176, 89 S.Ct. at 968, 22 L.Ed.2d at 188 (accused
has standing to challenge electronic surveillance “if the United
States unlawfully overheard conversations of [accused] him-
self or conversations appearing on his premises”); United
States v. (Frank) Scott, 164 U.S. App. D.C. 125, 128, 504
F.2d 194, 197 (1974), appeal following remand, 170 U.S. App.
D.C. 158, 516 F.2d 751 (1975), cert. denied, 425 U.S. 917,
96 S.Ct. 1519, 47 L.Ed.2d 768 (1976); United States v. Bellosi,
163 U.S. App. D.C. 278, 282, 501 F.2d 833, 841-842 (1974);
Light v. United States, 529 F.2d 94, 96 (9th Cir. 1976); 18
U.S.C. § 2518(10) (a) (1970) (“aggrieved person .. . may
move to suppress the contents of any intercepted wire or
oral communication, or evidence derived therefrom”); id.
§ 2510(11) (“ ‘aggrieved person’ means a person who is a
9a
it is legally irrelevant that the surveillance was unlawful.
And this rule remains true even if acquisition of the ques-
tioned evidence was not the direct result of unlawful
conduct but instead was the fruit of the proverbial poison-
ous tree.” Thus, it was incumbent upon each appellant
seeking to contend that the earlier unlawful wiretaps
tainted the later ones at Seventh Street and Landover and
See ee to show that the prior misconduct
possibile an interception of his conversati
breach of the privacy of his premises.” —
party to any intercepted wire or oral communicati
person against whom the interception was directed. "See
generally Decker & Handler, Electronic Surveillance: Stand-
(1 tee — a 12 Cal. West. L. Rev. 60, 97
ngress n to adopt F
pan a by pt Fourth Amendment
*° Alderman V. United States upra note 18, 394 U.S
, 2° ’ ». at
oe. 89 S.Ct. at 965-966, 22 L.Ed.2d at 186, quoting
ong Sun V. United States, 371 U.S. 471, 492, 83 S.Ct. 407,
419, 9 L.Ed.2d 441, 458 (1963) and Jones v. United States, 862
(1960); United States v. Magaddino, 496 F.2d 455, 460 (2d
" United States v. Plotkin, 550 F.2d 698, 695 (ist Cir
cert. denied, — U.S. —, 98 S.Ct. 61, 54 L.Ed.2d 76 (1977);
United States v. Scasino, 618 F.2d 47, 50-61 (5th Cir. 1975);
nited States vV. Abramson, 558 F.2d 1164, 1170 (8th Cir.),
cert. denied, 488 U.S. 911, 97 S.Ct. 2979, 58 L.Ed.2d 1096
(1977); Nolan v. United States, 423 F.2d 1081, 1042 (10th
Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 47, 27'L.Ed.2d 802
(1970). ‘See also United States v. Gibson, 500 F.2d 854, 855
. 1974), cert. denied, 419 U.S.
(4th Clr. 1974), 1106, 95 S.Ct. 777, 42
As we have stated, each appellant has standi j
to any defect in the Seventh Street and par md pe
on which he or she was concededly overheard. Appellants
contend more extensively that any use of information from
the unlawful 1970-73 wiretaps in obtaining the Seventh Street
and Landover authorizations produced a flaw in the ensuing
10a
10
It is clear, however, that to facilitate an accused’s effort
to demonstrate that evidence employable against him is
contaminated by illegal surveillance previously conducted,
the Government, upon request, must “affirm or deny the
occurrence of the alleged unlawful act.” ** And where, as
here, it is unquestioned that there has been electronic
eavesdropping and that it was unlawful, the pertinent
response is one indicating whether the accused himself
was victimized thereby. If the Government answers in
the affirmative, the accused is entitled to examine the
records incorporating the contents of any monitored con-
versation that he has standing to attack.”
wiretaps, and that they therefore may complain of infirmities
of that sort even if their own voices were not overheard or
their own premises were not involved during the earlier illegal
eavesdropping. That argument has been rejected by numer-
ous courts. We agree that an accused is unable to attack in
this indirect fashion those wiretaps that he could not chal-
lenge directly. See, e.g., United States v. Fury, 554 F.2d 522,
525-526 (2d Cir.), cert. denied, 483 U.S. 910, 97 S.Ct. 2978,
58 L.Ed.2d 1095 (1977); United States v. Wright, 524 F.2d
1100, 1102 (2d Cir. 1975); United States v. Scasino, supra,
5138 F.2d at 51.
= Act of Oct. 15, 1970, Pub. L. No. 91-452, tit. VII,
§ 702(a), 84 Stat. 935, 18 U.S.C. §3504(a) (1) (1970); see
In re Evans, 146 U.S. App. D.C. 310, 313, 318, 452 F.2d 1239,
1242, 1247 (1971), cert. denied, 408 U.S. 930, 92 S.Ct. 2479,
83 L.Ed.2d 342 (1972).
8 Alderman V. United States, supra note 18, 394 U.S. at
184, 89 S.Ct. at 972, 22 L.Ed.2d at 1938; Taglianetti v. United
States, 394 U.S. 316, 317, 89 S.Ct. 1099, 1100-1101, 22 L.Ed.2d
802, 304-805 (1969). Even if no appellant was the target of
the surveillance as a whole, appellants maintain that once
one of them has established his standing to claim taint from
any conversation on his premises or to which he was a party,
he is entitled to the tapes or transcripts of all conversations
intercepted on that wiretap. Appellants thus contend that
they can resist the use of any evidence obtained regardless,
for instance, whether it was derived from a conversation of
lla
11
Appellants sought records of eight of the 1970-73 wire-
taps,** asserting that one or more appellants had been
overheard on them. The District Court directed each ap-
pellant whose conversations allegedly had been intercepted
to file an affidavit delineating the circumstances sup-
porting the claim,** and only two undertook to do so.”
Appellant James Lincoln averred:
I have searched my recollection to the best of my
ability and can state the following. Certain persons
said to be targets of wire interceptions listed as
numbers 4 and 8 above were known to me during the
period in which the illegal taps were operative. I
spoke with them during this period and spoke with
them by telephone. Because of the lapse of time, I
cannot now recollect the telephone numbers that were
involved, and accordingly I am unable in good con-
science to aver with certainty that I spoke to the in-
dividuals in question over the illegally tapped tele-
phone numbers. On the basis of my memory, how-
an appellant or from that of an unrelated speaker. Alderman
and Taglianetti, however, clearly indicate that an accused
is entitled only to the transcripts involving conversations
which he has standing to attack and that he has standing to
challenge only evidence obtained through his own conversa-
tions or those intercepted on his premises.
** Although appellants insist that the Landover and Seventh
Street wiretaps were tainted by intelligence gained through
the nine 1970-73 wiretaps, they sought tapes and transcripts
only from eight, omitting a wiretap on the telephone of one of
appellants, Albert Lincoln, presumably because information
concerning it had already been made available to at least one
appellant at the time that wiretap was declared unlawful.
> App. 428-429.
** The other appellants sought to rely solely upon the general
nature of the 1970-73 wiretaps: “Each involved the FBI or
local gambling investigators and each occurred in Washington,
D.C. or its close environs.” Brief for Appellants at 88.
12a
12
ever, I have set forth above, I believe that possi-
bility is a substantial one.”
Appellant Rosa L. Sumpter filed an almost identical
affidavit, differing essentially only in its allegation that
she might have spoken over wiretapped lines 1; 2, 3, 5,
6 and 7—those which Lincoln had not mentioned.” The
Government, in turn, submitted letters from a responsible
official of the Department of Justice stating that neither
Lincoln nor Sumpter had been “monitored by any elec-
tronic device of the Federal Bureau of Investigation,” ™
or of either of six other federal agencies.”
In light of the Government’s positive denial, appellants
failed to carry their threshold burden of demonstrating
that any of their conversations were intercepted,” and
they urge neither of the other two traditional grounds of
entitlement to records of wiretapped communications for
use at a taint hearing.” Rather, they insist that the tapes
and transcripts of the 1970-73 electronic surveillance
** App. 285. He also stated, “I am aware that by firmly
claiming to have spoken over the illegally tapped telephones,
I can obtain access to their contents, which may materially
benefit our contention that the current taps are unlawful. I
understand the importance of such a claim, but in honesty
can make it only as qualified above.” App. 285-286.
#8 App. 287-290.
* App. 294-295; Transcript of June 19, 1975 Hearing (Tr.)
116; Brief for Appellee at 59.
*” App. 295; Tr. 116; Brief for Appellee at 59.
* See In re Evans, supra note 22, 452 F.2d at 1247; United
States v. Covello, 410 F.2d 586, 550 (2d Cir.), cert. denied, 396
U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 186 (1969); United States
v. D’Andrea, 495 F.2d 1170, 1173 (8d Cir.), cert. denied,
419 U.S. 855, 95 S.Ct. 101, 42 L.Ed.2d 88 (1974); United
States v. Van Drunen, 501 F.2d 18938, 1895 (7th Cir.), cert.
denied, 419 U.S. 1091, 95 S.Ct. 684, 42 L.Ed.2d 88 (1974).
*2 See text supra at note 19.
13a
13
must be provided to enable them to traverse the Gov-
ernment’s denial. We disagree.
When the Government responds in the affirmative, the
accused, as we have seen, may demand records only of
monitoring of his own conversations, implicating his own
premises or aimed at him. Because the Government
states flatly that none of the eight wiretaps in question
here involved monitoring of conversations of those types,
appellants necessarily are seeking an audit of all of the
intercepted conversations, which according to their own
count number in the thousands and cover a period of
several years.“ By that technique, individuals whose
rights, according to the Government, have not been in-
fringed would gain far greater access to evidence in the
Government’s possession than would an accused whose
rights concededly were violated. Indeed, the curious logic
of appellants’ stance would require the Government, after
the most unequivocal denial of an interception, routinely
to bare the content of any wiretapped conversation to any
— who can claim that he just might have been over-
eard.
Appellants have pointed to no case wherein, despite a
Government denial that electronic eavesdropping has af-
sisted of those whose voices had been illegally intercepted
state officials. Jd. The court held that both of these groups hed
standing. Those in the third group, however, had not shown
that telephone conversations of their own had been inter-
cepted, and the court held that they had failed to establish
standing. At no time did it indicate that they were entitled
to records of any conversations to aid their proof thereof.
*“ Brief for Appellants at 45.
l4a
14
fected an accused’s protected interests, a court has
ordered that records thereof be turned over to the ac-
cused to facilitate his proof of standing. On the con-
trary, it is well settled that an accused has “no right to
rummage in Government files,” * and that to “elicit[]
what is in the Government’s possession before its sub-
mission to the jury” he “must satisfy the trial court
with [the] solidity” of his claim.” Put another way,
“tenuous claims [are not] sufficient to justify the trial
court’s indulgence of inquiry into the legitimacy of evi-
dence in the Government’s possession.” *” We have, then,
Lewed to the view that the Government’s denial must
generally be accepted as conclusive,** and we do so again
today.
% Taglianetti v. United States, supra note 23, 394 U.S. at
317, 89 S.Ct. at 1100-1101, 22 L.Ed.2d at 304-305.
* Nardone V. United States, 308 U.S. 338, 342, 60 S.Ct. 266,
268, 84 L.Ed. 807, 812 (19389).
"Id.
*% In re Evans, supra note 22, 146 U.S. App. D.C. at 318,
452 F.2d at 1247. Appellants argue that an electronic-
surveillance denial by the Government not in affidavit form
is insufficient to satisfy 18 U.S.C. § 3504 (1970). That pro-
vision, however, does not itself require an affidavit, although
one is normally desirable. See Note, Claiming [Illegal
Electronic Surveillance: An Examination of 18 U.S.C.
§ $504(a)(1), 11 Harv. C.R. C.L. L. Rev. 632, 660 (1976).
Only the Seventh Circuit has refused to accept letter-denials
from the Assistant Attorney General in charge of the Justice
Department’s Criminal Division. See United States v. Van
Drunen, supra note 81, 501 F.2d at 1399; Korman v. United
States, 486 F.2d 926, 981 (7th Cir. 1978). We are not con-
strained, absent further enlightenment from Congress, to
depart from the position taken by other circuits that have
accepted letter-denials. See, e.g., United States v. Aloi, 511
F.2d 585, 602 (2d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct.
447, 46 L.Ed.2d 886 (1975); United States v. D’ Andrea, supra
lia
15
Alderman v. United States,** does not, as appellants
Suggest, support their claim of access to the 1970-73
records. There the Supreme Court taught no more than
that an accused is entitled to transcripts of his own
conversations or those occurring on his own premises to
assist the proof of his taint allegations.“ Standing had
been admitted in that case. Alderman in no way inti-
mates that when the Government has unqualifiedly denied
monitoring an accused it must then open up wiretapped
conversations of various species to aid an individual in
substantiating his standing. Alderman provided an ad-
versary examination of unlawfully gathered tapes be-
cause determining “those items that might have made a
substantial contribution to the [prosecution’s] case” is a
complex matter requiring judgment and knowledge that
only the accused would have.** The factual determination
note 31, 495 F.2d at 1174 n.12; United States v. Stevens, 510
F.2d 1101, 1104-1106 (5th Cir. 1975).
During the hearing, appellant Sumpter testified to several
occurrences that in her mind pointed to an illegal wiretap on
her telephone by an FBI agent at some earlier time. Tr.
114-125. The agent, however, testified to the contrary. Tr.
125-133. Since the agent’s disavowal was under oath and he
was available for cross-examination, we are not persuaded
by appellant’s complaint that the agent’s denial was insuffi-
cient. In re Maury Santiago, 588 F.2d 727, 729-730 (1st Cir.
1976) (sworn testimony); In re Berry, 521 F.2d 179, 185
(10th Cir.), cert. denied, 428 U.S. 928, 96 S.Ct. 276, 46
L.Ed.2d 256 (1975) (unsworn oral denial). Nor can we
characterize the court’s finding that “Sumpter’s testimony at
the hearing was insufficient to show that the government
had engaged in such interception” as clearly erroneous. App.
413 n.3.
** Supra note 18.
* 394 U.S. at 184, 89 S.Ct. 972, 22 L.Ed.2d at 193.
“Id. at 182, 89 S.Ct. at 971, 22 L.Ed.2d at 192:
An apparently innocent phrase, a chance remark, a ref-
erence to what appears to be a neutral person or event,
16a
16
summoned here, however, was neither subtle nor compli-
cated, and thus ordinarily could be entrusted to the Gov-
ernment. Furthermore, the Court in Alderman recognized
that required disclosure of tapped conversations might
lead the Government to forgo prosecution in cases impli-
cating third-party or national security interests,“ and
took pains to note that this prospect would be minimized
because “disclosure [would] be limited to the transcripts
of a defendant’s own conversations and of those which took
place on his own premises,” and accordingly that “[i]t
[could] safely be assumed that much of this he will al-
ready know.” @ In the instant case, however, disclosure
could not be so limited and the problems avoided in
Alderman would reappear full force.“
We leave open now, as we have done before, the ques-
tion whether “under some circumstances [an individual]
should be permitted to traverse the government’s [de-
nial], or whether [an individual] should be able to shift
the burden of going forward back to the government by
making some showing to contradict the government’s
assertions... .” ** Appellants have made no such show-
ing here. Only two of them even proffered particular
the identity of a caller or the individual on the other end
of a telephone, or even the manner of speaking or using
words may have special significance to one who knows
the more intimate facts of an accused’s life. And yet
that information may be wholly colorless and devoid of
meaning to one less acquainted with all relevant circum-
stances.
* Id. at 184, 89 S.Ct. at 972, 22 L.Ed.2d at 193.
“Id. at 184-185, 89 S.Ct. at 972-973, 22 L.Ed.2d at 193.
** See text at note 33 supra.
*“In re Evans, supra note 22, 146 U.S. App. D.C. at 318,
452 F.2d at 1247. We similarly leave open the question of in
camera inspection where a substantial showing undercutting
the Government’s denial has been made.
17a
17
allegations, and those—devoid of either dates, times or
subject matter of the relevant conversations—fell far
short of germinating a substantial suspicion that the
Government’s denial was untrustworthy.“* We realize
that few accused of crime will be honestly able to be
more specific as to discussions allegedly held several years
earlier. But the alternative of compelling the Govern-
ment to disclose the contents of any wiretapped conversa-
tion in which an accused asserts that he just might have
been overheard would place a burden on law enforce-
ment that is both unprecedented and dangerous.*’ Since
appellants are not entitled to the assistance they seek
in establishing their standing, and since they have not
otherwise demonstrated their standing to challenge any
conjectured taint emanating from the 1970-73 inter-
cepts, the District Court’s determination in that regard
must be sustained.“
** See text at notes 27-28 supra. See also note 26 supra.
At the close of oral argument before this court, counsel for
appellants suggested for the first time that appellants needed
access to the contents of the intercepted conversations to find
out whether unidentified voices thereon included those of
appellants. Compare (Robert) Baker v. United States, 131
U.S. App. D.C. 7, 38, 401 F.2d 958, 984 (1968), on remand,
301 F. Supp. 973 (D.D.C. 1969), aff'd, 189 U.S. App. D.C.
126, 430 F.2d 499, cert. denied, 400 U.S. 965, 91 S.Ct. 367,
27 L.Ed.2d 384 (1970) with United States v. Covello, supra
note 31, 410 F.2d at 550 and United States v. Kane, 450 F.2d
77, 81 (5th Cir. 1971), cert. denied, 405 U.S. 920, 92 S.Ct.
367, 27 L.Ed.2d 384 (1972) and Nolan v. United States, supra
note 21, 423 F.2d at 1042. This possibility was not urged in
the District Court, and the record is devoid of any indication
of the existence of unidentified voices on those wiretaps. Since
the issue was not raised in the District Court nor briefed or
argued to this court, we do not consider it.
*" See text at notes 39-44 supra.
* Even assuming arguendo that all appellants have standing
to challenge the wiretap of appellant Albert Lincoln’s tele
phone—the transcripts of which were already in their posses-
18a
18
Il
Appellants further maintain that the applications for
the Seventh Street and Landover wire interceptions failed
to set forth adequately information called for by 18
U.S.C. § 2518(1) (c), which specifies that each such re-
quest include
a full and complete statement as to whether or not
other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely
to succeed if tried or to be too dangerous.”
That section also imposes a corresponding duty on the
authorizing judge to find, as a condition to granting
an application, that “normal investigative procedures
have been tried and have failed or reasonably appear to
sion, see note 24 swpra—they have not pointed to any taint
from that wiretap. Unlike the records of the eight wiretaps
to which the District Court denied them access, appellants
could have used the Albert Lincoln transcripts to trace any
possible taint to the Seventh Street and Landover wiretaps.
Instead, aside from the general assertion that some infor-
mation sources may have been developed through the use of
the prior illegal wiretaps, appellants have based no argument
specifically on the transcripts in their possession. No one
would deny that “the trial judge must give opportunity, how-
ever closely confined, to the accused to prove that a substantial
portion of the case against him was the fruit of the poisonous
tree.” Nardone Vv. United States, supra note 36, 308 U.S. at
341, 60 S.Ct. at 268, 84 L.Ed. at 312. But where, as here,
parties come forward with no showing whatsoever that the
Government has used intelligence derived from the earlier
illegal wiretap, and where the FBI agent in charge of the in-
vestigation declares under oath that, to his knowledge, the
FBI never had any contact with that wiretap, App. 379-381,
all the opportunity that Nardone and Alderman provide has
been afforded. See also United States v. Sapere, 531 F.2d 63,
66-67 (2d Cir. 1976).
“18 U.S.C. §2518(1)(c) (1970).
— =<
19a
19
be unlikely to succeed if tried or too dangerous” before
permitting any electronic surveillance.”
The purpose of these critical requirements is to insure
that “wiretapping is not resorted to in situations where
traditional investigative techniques would suffice to ex-
pose the crime,” ™ and that it is utilized only “where the
circumstances warrant the serruptitious interception of
wire and oral communications.” * Because necessity is a
keystone of congressional regulation of electronic eaves-
dropping,” courts have given close scrutiny to applica-
tions challenged for noncompliance and have rejected
generalized and conclusory statements that other investi-
gative procedures would prove unsuccessful.“ Nonethe-
#18 U.S.C. § 2518(8) (c) (1970).
* United States v. Kahn, 415 U.S. 148, 153 n.12, 94 S.Ct.
977, 988 n.12, 89 L.Ed.2d 225, 286 n.12 (1974).
** United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct.
1820, 1826-1827, 40 L.Ed. 341, 373 (1974).
** Note, Electronic Surveillance, Title III, and the Require-
ment of Necessity, 2 Hast. Const. L. Q. 571, 617 (1975).
* United States v. (Leon) James, 161 U.S.App.D.C. 88, 95-
97, 494 F.2d 1007, 1014-1016, cert. denied, 419 U.S. 1020, 95
S.Ct. 495, 42 L.Ed.2d 294 (1974); United States v. Scibelli,
549 F.2d 222, 227 (1st Cir. 1976), cert. denied, 431 U.S. 960,
97 S.Ct. 2687, 58 L.Ed.2d 278 (1977); United States v. Di-
Muro, 540 F.2d 508, 510-511 (1st Cir. 1976), cert. denied,
429 U.S. 1088, 97 S.Ct. 788, 50 L.Ed.2d 749 (1977); United
States v. Vento, 588 F.2d 888, 849-850 (3d Cir. 1976); United
States v. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974), cert.
denied, 421 U.S. 909, 95 S.Ct. 1558, 48 L.Ed.2d 774 (1975);
United States v. Kalustian, 529 F.2d 585, 589-590 (9th Cir.
1975). Compare United States v. Anderson, 542 F.2d 428, 431
(7th Cir. 1976).
% United States v. Scibelli, supra note 54, 549 F.2d at 227-
228; United States v. DiMuro, supra note 54, 540 F.2d at 510-
511; United States v. Vento, supra note 54, 583 F.2d at 849-
850; United States v. Feldman, 535 F.2d 1175, 1178-1179 (9th
20a
less, the statutory command was not designed to “fore-
close electronic surveillance until every other imaginable
method of investigation has been unsuccessfully at-
tempted.” Rather, “(i]t is sufficient that the govern-
ment show that other techniques are impractical under
the circumstances and that it would be unreasonable to
require pursuit of those avenues of investigation”; and,
consistently with the congressional intent, that “showing
[must] be tested in a practical and commonsense fash-
ion.” * Consequently, in practice “[c]ourts have inter-
preted this requirement flexibly, recognizing that wire-
taps are neither a routine initial step nor an absolute
last resort.” *
Measured in this manner, the applications for the elec-
tronic interceptions at Seventh Street and Landover clear-
Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 354, 50 L.Ed.2d 309
(1976); United States v. Kalustian, supra note 54, 529 F.2d
at 589-590.
* United States Vv. Robertson, 504 F.2d 289, 293 (5th Cir.
1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1568, 43 L.Ed.2d
778 (1975); accord, United States v. Vento, supra note 54,
538 F.2d at 849; United States v. Pacheco, supra note 54, 489
F.2d at 565; United States v. Kerrigan, 514 F.2d 35, 38 (9th
Cir.), cert. denied, 428 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d
249 (1975).
* United States Vv. Vento, supra note 54, 533 F.2d at 849;
accord, United States v. James, supra note 54, 161 U.S.App.
D.C. at 98-99, 494 F.2d at 1015-1016; United States v. Pacheco,
supra note 54, 489 F.2d at 565.
* S. Rep. No. 1097, 90th Cong., 2d Sess. 101 (1968); accord,
United States v. James, supra note 54, 161 U.S.App.D.C. at
98-99, 494 F.2d at 1015-1016; United States v. de la Fuente,
548 F.2d 528, 587-588 (5th Cir.), cert. denied, 481 U.S. 982,
97 S.Ct. 2640, 58 L.Ed.2d 249 (1977).
* Note, The United States Courts of Appeals: 1975-1976
Term Criminal Law and Procedure, 65 Geo. L.J. 208, 247
(1976).
2la
21
ly comply with the statute. The Seventh Street applica-
tion and its accompanying affidavit describe the five
year investigation preceding the request.” The affidavit
explains that while the FBI had received information
from twelve reliable confidential sources—many of whom
had obtained their information from appellants “—none
of the informants was willing to testify because of fear
for his safety.“ The affidavit further states that the
FBI had attempted to build its case by conducting over
thirty visual surveillances of some appellants, and by
installing a pen register on a telephone used by one
appellant.** Although these techniques had uncovered a
suspicious pattern of behavior suggesting that the Seventh
Street house was a focal point of numbers activity, they
did not produce evidence that could be used to prosecute
many of the principals involved.* And the affidavit, in
its summary, averred that
* App. 50-132.
* See text at note 4 supra.
* App. 130; see United States v. Agrusa, 541 F.2d 690, 694
(8th Cir. 1976), cert. denied, 429 U.S. 1045, 97 S.Ct. 751, 50
L.Ed.2d 759 (1977). Neither the authorizing court nor the
trial court was presented with any reason to disbelieve this
representation. It has been suggested that “[f]ederal agents
.. . routinely tell the courts that their confidential informants
refuse to testify for fear of their lives, but in many cases
where the informant is disclosed, he admits he had no such
fear.” Schwartz, Taps, Bugs, and Fooling the People, reprinted
in Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal
Procedure 103 (1978 Supp.).
Should we encounter in future cases this or any other abuse
of the confidence entrusted to officials making applications
under Title III, we will not hesitate to attempt to craft a
remedy.
** See note 5 supra and accompanying text.
* App. 130.
22a
22
[d]ue to the considerable length of time covered by
this investigation using all possible normal investi-
gative techniques, and through the experience of af-
fiant and other Special Agents of the Federal Bu-
reau of Investigation familiar with the investiga-
tion of numbers gambling operations, it is reason-
ably concluded [that] the continued use of normal
investigative techniques would not bring this matter
to a successful conclusion.”
The Landover application, which was made after com-
pletion of the Seventh Street interceptions, incorporates
the earlier affidavit and similarly details reasons for
the Government’s belief that the target telephones were
being used in a gambling operation.” The Landover
affidavit also includes transcripte of calls intercepted on
the Seventh Street line from the target telephones,” and
a concluding section similar to that in the Seventh Street
affidavit.”
Appellants argue that the summary and prayer por-
tions of the affidavits contain mere boilerplate assertions,
in derogation of the statutory command. To be sure, these
sections of the affidavits are framed in conclusory ter-
minology, but they cannot rationally be separated from
the preceding detailed descriptions of the investigative
events. Applications are not to be read in a piecemeal
fashion, and viewed as a whole the requests here de-
lineated the reasons—which we deem ample—why other
investigative techniques either had failed or would: not
* App. 130-131.
*¢ App. 145-270.
** App. 210-235.
** App. 237-239.
* United States v. Feldman, supra note 55, 535 F.2d at
1179; United States v. Robertson, supra note 56, 504 F.2d at
293.
23a
23
be feasible. The Government had conducted a multi-
faceted five-year investigation and still was unable to
secure the evidence necessary to prosecute many of the
principals of the gambling operation.” This, then, is not
a situation in which the Government sought to employ
wiretapping as a routine investigative tool;" neither
is it a case in which the Government relied simply on
“the insufficiency of alternative procedures in gambling
prosecutions in general... .”™ Instead, after scrutiniz-
ing the numbers activity over a long period of time by
conventional techniques, the Government not unreason-
ably believed it needed to utilize electronic surveillance to
gain enough intelligence about the “nature and the scope”
of the operation.” In short, “exposure of [the] entire
7 See United States v. Abramson, supra note 21, 553 F.2d
at 1171 (after seven months other techniques had failed to pro-
duce evidence sufficient for prosecution); United States v.
Spagnulo, 549 F.2d 705, 710-711 (9th Cir. 1977) (affidavit
properly included facts from which “a district judge [could]
independently determine that ordinary investigative tech-
niques employing a normal amount of resources have failed
to make a case within a reasonable amount of time”); Note,
supra note 58, 2 Hast. Const. L.Q. at 606-616 (discussing
normal investigative techniques that must have failed or been
too dangerous or ineffective).
mo United States v. Kalustian, supra note 54, 529 F.2d at
ts United States v. Feldman, supra note 55, 585 F.2d at 1178
(emphasis in original). Compare United States v. McCoy, 539
F.2d 1050, 1055-1056 (5th Cir. 1976), cert. denied, 481 U.S.
919, 97 S.Ct. 2185, 58 L.Ed.2d 230 (1977).
* The applications for the wire interceptions stated that
violations of 18 U.S.C. § 1955 (1970) were among the crimes
to be investigated. That offense requires proof that a gam-
bling business “involves five or more persons who conduct,
finance, manage, supervise, direct, or own all or part of such
business,” and that it “has been or remains in substantially
continuous operation for a period in excess of thirty days or
has a gross revenue of $2,000 in any single day.” 18 U.S.C.
24a
24
operation required different and more sophisticated tech-
niques.” "* The applications adequately set forth the
basis for concluding that normal investigative procedures
had been exhausted or would be unlikely to produce es-
sential evidence, and the District Court correctly held that
the statutory requirement had been satisfied.
IV
Having found that appellants failed to establish their
standing to challenge any taint in the Seventh Street
and Landover intercepts stemming from the prior unlaw-
ful wiretaps, and that the Seventh Street and Landover
applications complied with governing law, appellants’
convictions are hereby
Affirmed.
§ 1955 (b) (1) (ii) & (iii) (1970). When the Government is
duly authorized to resort to electronic surveillance in a crim-
inal investigation, it may do so—to the limit of its authority—
to ascertain the full extent of the crime. United States v.
Vento, supra note 54, 588 F.2d at 850; United States vy. Rob-
ertson, supra note 56, 504 F.2d at 298; United States v. Pa-
checo, supra note 54, 489 F.2d at 565; United States v. Armo-
cida, 515 F.2d 29, 88 (8d Cir.), cert. denied, 423 U.S. 858, 96
S.Ct. 111, 46 L.Ed.2d 84 (1975). These considerations combine
to make apparent why, despite the five-year investigation,
wiretapping was necessary to any effort to ascertain whether
appellants were in violation of § 1955.
™ United States v. James, supra note 54, 161 U.S.App.D.C.
at 97, 494 F.2d at 1016; see United States v. Sandoval, 550
F.2d 427, 430-481 (9th Cir. 1976).
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