# Petition — Lincoln v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 832

## Text

|

= 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 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.

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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.

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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.

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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

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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,

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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.

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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-

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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).

— =<

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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

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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).

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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.

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[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.

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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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1149%3A1. Public record. Not legal advice.