Opposition — Lincoln v. United States

prems Count, U. $1)

FILED

AUG 19 1978

No. 77-1766 | wesuer roi CLER

a ol

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

JAMES A. LINCOLN, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WapDE H. McCreE, JR.,

Solicitor General,

PHILIP B. HEYMANN,

Assistant Attorney General,

JEROME M. Feit,

ANDREW S. GORDON,

Attorneys,

Deparimeni of Justice,

Washingion, D.C. 20530.

INDEX

Page

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CITATIONS

Cases: |

Alderman vy. United States, 394 U.S. i656 ........... 5

rc mE UCU CS 8. eee 8

DS GS ON BR ee 8

Korman v. United States, 486 F. 2d 926 ....... 7,8

Taglianetti v. United States, 394 U.S. 316 .......... 6

United States v. Alfonso, 552 F. 2d 605 ...... 9, 10

United States v. Aloi, 511 F. 2d 585,

certiorari denied, 423 U.S. 1015 «0.0.0.0... 7

United States v. D'Andrea, 495 F. 2d 1170,

certiorari denied, 419 U.S. 855. ........... Rasttidhsees 7

United States v. De La Fuente, 548

Fo MED tevcescctaiiiaancnacanerpetdinabencstereninitibicieisades 9

United States v. Fannon, 435 F. 2d 3664 ............. 7

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

certiorari denied, 429 U.S. 940 oo... eee 9

United States v. Jackson, 549 F. 2d 517 ............ 9

Cases—continued:

United States v. Kahn, 415 U.S. 143 .........:.0000 . 9

United States v. Kalustian, 529 F. 2d 585 ........ 10

United States v. Landmesser, 553 F. 2d 17 ...... 10.

United States v. See, SOS F. 2d 845 .......ccceeceeeees 8

United States v. Steinberg, 525 F. 2d

1126, certiorari denied, 425 U.S. 971. .............+. 4

United States v. Stevens, 510 F. 2d 1101 ........... 7

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

certiorari denied sub nom. Grimes v.

United States, 423 U.S. 996 ...cccsccseeseeseseeeeeeeees 9

Womack, In re, 466 F. 2d S55 .......ccccccccceeeeseeeeees 6

Statutes:

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Be Be GID GEE ccnsessncncsccidnnicenssccunptniccennetntinnis 2

Miscellaneous:

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

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In the Supreme Court of the United States

OcTOBER TERM, 1978

No. 77-1766

JAMES A. LINCOLN, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. la-24a) is not

yet reported.

JURISDICTION

The judgment of the court of appeals was entered on

April 12, 1978. The Chief Justice extended the time for

filing a petition for a writ of certiorari to and including

June 11, 1978 (a Sunday), and the petition was filed on

June 12, 1978. The jurisdiction of this Court is invoked

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

(1)

QUESTIONS PRESENTED

1. Whether petitioners had standing to challenge the

legality of, or were entitled to examine the logs of,

government wiretap interceptions of conversations on

third party telephones, where the government certified

that no conversations of petitioners had been overheard

during the course of the interceptions.

2. Whether the applications for wiretap authorizations

in this case sufficiently established that other investigative

methods had been found inadequate.

STATEMENT

Following a‘trial in the United States District Court for

the District of Columbia, petitioners James and Albert

Lincoln were convicted of conducting an illegal gambling

business, in violation of 18 U.S.C. 1955. Petitioner

Sumpter was convicted of operating a lottery and making

an unlawful communication, in violation of 22 D.C. Code

1501 and 18 U.S.C. 1084. James and Albert Lincolg were

each sentenced to three years’ imprisonment and*$5000

fine. Sumpter was sentenced to one to three years

imprisonment, six months of which was to be served and

the remainder suspended. |

The case was submitted on the basis of stipulated

evidence, a large part of which consisted of telephone

conversations intercepted pursuant to court order. The

sole issue at trial and on appeal was whether the evidence

derived from the interceptions should be suppressed.

1. On July 26, 1974, Chief Judge Hart of the United

States District Court for the District of Columbia

authorized the interception of communications to and

from a telephone in a house on Seventh Street, N.W., in

the District of Columbia. The government's affidavit in

support of the Seventh Street interception detailed

evidence from confidential informants, physical

surveillance of the premises, and a court-approved pen

3

register (J.A. 89-93, 106-123).' The affidavit described a

number of interceptions previously conducted by the FBI

and local police and disclaimed that any information

derived from those interceptions had been used to support

the request for court authorization for the wiretap.

On August 17, 1974, Judge Young of the United States

District Court for the District of Maryland authorized the

interception of communications to and from two

telephones in an apartment in Landover, Maryland. The

government's affidavit in support of the Landover order

incorporated the Seventh Street affidavit and included

information derivcu irom the Seventh Street interception

(J.A. 211-235).

2. Petitioners were indicted on the evidence derived

from the two wiretaps. Prior to trial, they filed motions to

suppress all the evidence obtained by n ans of electronic

surveillance. They alleged, inter alia, that the evidence was

tainted because the informants whose disclosures had

supported the Seventh Street and Landover interceptions

had been discovered through exploitation of certain

earlier wiretaps that had previously been held unlawful.

The basis for this claim was that the earlier wiretaps had

involved the investigation of illegal gambling and had

occurred during the same general time period in which

four of the informants involved in this case had first

begun to provide information to the FBI (J.A. 345-367).

Petitioners also sought discovery of the tapes and

transcripts of the communications intercepted in the

course of eight of the previous wiretaps, so that they

could determine whether any of their conversations were

intercepted at that time. None of the eight previous

wiretaps had been on telephones in residences owned or

occupied by petitioners.

J.A.” refers to the appellants’ joint appendix in the court of

appeals. “Gov. App.” refers to the government's appendix in that

court.

At the first of two hearings on petitioners’ suppression

motion, the FBI agent who assembled the information

that went into the government's affidavits testified that

none of the informants used in the present investigation

were developed as a result of any of the illegal

interceptions (J.A. 371-372, 382).

At the second suppression hearing, petitioners

requested all the tapes and transcripts of eight of the

previous illegal interceptions, asserting that it was possible

that their conversations had been intercepted in the course

of those wiretaps (Tr. Il 5, 8, 21, 34). The prosecutor

responded that the government's records contained no

indication that any of petitioners’ conversations had been

intercepted (Tr. Il 19-21). The district court then directed

petitioners to submit affidavits concerning their claims

(Tr. Il 34-35). Only petitioners Sumpter and James

Lincoln submitted affidavits. Both affidavits alleged

merely that petitioners were acquainted with targets of

the prior interceptions and that there was a substantial

possibility that they had called the targets on the

telephones that were tapped (J.A. 283-286, 287-290).

In response to these affidavits, the government

submitted letters from a responsible official of the

Department of Justice stating that neither Lincoln nor

Sumpter had been subjected to interception on any of the

lines in question (Pet. App. 12a).

The district court found that petitioners had failed to

make any showing of taint with respect to the

development of the informants in this case. The court also

found that in light of the government's denial that any of

their conversations had been intercepted, petitioners were

“engaging in mere conjecture and speculation that they

were possibly overheard during the prior illegal wiretaps”

(J.A. 430). The court therefore denied them access to the

records of the prior interceptions. The court of appeals

affirmed in a thorough opinion (Pet. App. la-24a), on

which we rely.

ARGUMENT

1. Petitioners contend (Pet. 21) that their allegation

that there was a “substantial possibility” that their

conversations were intercepted in the course of prior

illegal interceptions was sufficient to establish their

standing to assert the illegality of the prior interceptions

or at least to permit them to obtain the records of those

interceptions. As the court of appeals properly concluded,

however, petitioners’ allegations were insufficient to

justify the extensive discovery they sought. Because the

government had denied that petitioners’ conversations

had been overheard in the course of the earlier

interceptions they sought to challenge and because

petitioners had “not otherwise demonstrated their

standing to challenge any conjectured taint emanating

from the 1970-73 intercepts” (Pet. App. 17a), the court of

appeals held that petitioners were not entitled to the

suppression of the wiretap evidence against them.

In order to challenge the introduction of evidence

obtained by way of an illegal wiretap, a defendant must

show that he has standing to object to the interceptions in

question; that is, he must prove that he was “a party to

any intercepted wire or oral communication or a person

against whom the interception was directed.” 18 U.S.C.

2510{11); Alderman v. United States, 394 U.S. 165,

171-176.

To assist the defendant in challenging any unlawful

interception directed against him, the government is

required to affirm or deny whether the defendant has in

fact been subjected to electronic surveillance, as he

alleges. 18 U.S.C. 3504. If the answer is in the affirmative,

the defendant is entitled to examine the records relating to

the intercepted communications that he has standing to

challenge. If the answer is in the negative, however, that is

the end of the matter. Jn re Womack, 466 F. 2d 555, 558

(C.A. 7).

In this case, the government stated unequivocally that

petitioners’ communications were not intercepted in the

course of any of the eight wiretaps at issue. To contest

this denial, petitioners are seeking access to the records of

several thousand intercepted conversations over a period

of several years (Pet. App. 13a). As the court of appeals

observed (ibid.):

By that technique, individuals whose rights, ac-

cording 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 accused who can

claim that he just might have been overheard.

Since a defendant is not ordinarily permitted to rummage

in the government's files in the hope of discovering some

basis for challenging evidence against him (Taglianetti v.

United States, 394 U.S. 316, 317), the court of appeals

properly treated the government's denial as conclusive.

The court of appeals left open the question whether

under some circumstances an individual should be |

permitted to challenge the government's denial and should

be able to shift the burden of going forward back to the

government to demonstrate more conclusively that none

of the defendant's conversations had been overheard. In

this case, however, the court found that petitioners’

affidavits “fell far short of germinating a substantial

Suspicion that the Government's denial was un-

trustworthy” (Pet. App. 17a). While petitioners take

issue with this characterization of their allegations, we

submit that the court’s characterization was accurate and

that, in any event, there is no reason for this Court to

review that factual determination.”

2. Petitioners make the related contention that the

government's denial was not sufficient to preclude

further inquiry into the question of standing, and that

other courts—particularly the Seventh Circuit—have

required more than a letter denial from the Department of

Justice to constitute an adequate denial of interceptions

under 18 U.S.C. 3504.

The courts of appeals vary in what they consider an

acceptable denial of electronic surveillance for purposes of

Section 3504.3 As petitioner points out, the Seventh

Circuit requires more than a letter denial by government

officials. Korman v. United States, 486 F. 2d 926, 931. In

Petitioners’ reliance on United States v. Fannon, 435 F. 2d 364

(C.A. 7), in support of this claim for discovery of the tapes and

transcripts of the eight prior interceptions is unjustified. In Fannon,

the court of appeals found that because Fannon's co-defendant had

been subjected to illegal wiretaps, there was a strong possibility that

Fannon’s conversations also had been overheard. Yet even under

those circumstances the court did not permit Fannon to examine the

logs of the intercepted conversations or review the government's

investigative file regarding those interceptions. 435 F. 2d at 367.

en Fannon provides no support for a claim for such relief

re.

3Compare United States v. Aloi, 511 F. 2d 585, 602 (C.A. 2),

certiorari denied, 423 U.S. 1015; United Siates v. Stevens, 510 F. 2d

1101, 1104-1106 (C.A. 5); United States v. D'Andrea, 495 F. 2d 1170,

1174 n. 12(C.A. 3), certiorari denied, 419 U.S. 855 (letter denials held

sufficient), with Korman v. United States, 486 F. 2d 926 (C.A. 7)

(letter denial insufficient). Each of these courts, however, has sug-

gested that the procedure required of the government depends on the

strength of the defendant's showing that his conversations may have

8

this case, however, in addition to the letter denials from

the Department of Justice, sworn statements and

testimony were also presented, denying prior interception

of petitioners’ conversations. The affidavits in support of

the intercept applications stated that none of the

information regarding petitioners was derived from prior

interceptions, and in the course of the suppression

hearings, the government introduced sworn statements or

testimony denying previous electronic surveillance of

either petitioner James Lincoln or Rosa Sumpter, the

only two petitioners who submitted affidavits supporting

their claims that they might have been subjected to illegal

surveillance.* These sworn statements were sufficient to

meet the Seventh Circuit’s requirement of “a more formal

and binding denial.” Korman v. United States, supra, 486

F. 2d at 931. Accordingly, the denials in this case would

have met even the most demanding standard.

3. Petitioners also contend (Pet. 27-37) that the

applications for the intercept orders did not sufficiently

explain why other investigative techniques were in-

adequate.°

been intercepted. See also In re Hodges, 524 F. 2d 568, 570 (C.A. 1);

In re Buscaglia, 518 F. 2d 77, 79 (C.A. 2); United States v. See, 505

F. 2d 845 (C.A. 9). Accordingly, it appears that the variations in

the requirements imposed by different courts of appeals may turn

more on the strength of each particular claim of unlawful intercep-

tion than on any firm differences in the requirements imposed on the

government in similar settings.

‘These denials were in the form of an affidavit by an FBI agent

stating that FBI records revealed no interception of petitioner James

Lincoln on the two wiretaps specified in his affidavit (J.A. 291), and

testimony by another FBI agent that in the course of his investigation

of petitioner Rosa Sumpter he had not acquired any information

from any illegal wiretap, nor was he aware of any illegal wire

interception of her (1 Tr. 131-132).

518 U.S.C. 2518(1)(c) provides that every application for an

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

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

accompanying affidavit to contain a “full and complete

Statement” why other investigative techniques are

inadequate. The requirements of Section 2518(1)(c) are

satisfied when an affidavit, read in a practical and

common sense fashion (S. Rep. No. 1097, 90th Cong., 2d

Sess. 101 (1968)), provides a sufficient factual basis from

which the issuing authority can reasonably conclude that

electronic surveillance is necessary to obtain evidence for

the successful prosecution of persons known to be

involved in the activities under investigation, or is

necessary to ascertain the full scope of their activities and

to identify the participants. See, e.g., United States v.

Kahn, 415 U.S. 143, 153 n. 12; United States v. Turner,

528 F. 2d 143, 152 (C.A. 9), certiorari denied sub nom.

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

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

denied, 425 U.S. 971; United States v. De La Fuente, 548

F. 2d 528, 537-538 (C.A. 5); United States v. Jackson, 549

F. 2d 517, 536-537 (C.A. 8).

The court of appeals properly concluded that the

affidavits here provided such a factual basis (Pet. App.

18a-24a), The affidavits accompanying the applications

clearly indicated that the informants who were familiar

with the gambling operation and who had provided useful

information were afraid to testify. This factor strongly

indicates the propriety of the interceptions. See United

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

Feldman, 535 F. 2d 1175 (C.A. 9), certiorari denied, 429

U.S. 940. The affidavits also detailed the results of years

of investigation that included the use of confidential

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.”

10

informants (J.A. 76-93), physical surveillance (J.A. 97-

112), agency checks (J.A. 67, 94-96), and a pen register

(J.A. 113-123). Although those efforts had supplied ample

probable cause to believe petitioners were conducting

illegal gambling operations, they had provided insufficient

evidence to prosecute petitioners. Finally, the affidavits

expressed the affiant’s view that on the basis of his

experience in gambling investigations, further pursuit of

the methods previously utilized would not yield sufficient

evidence (J.A. 130, 237).

The affidavits in this case thus contained more than the

conclusory allegations found insufficient in United States

v. Kalustian, 529 F. 2d 585 (C.A. 9), on which petitioners

rely. The affiant’s conclusions, based on his experience

with the type of criminal activity under investigation, were

properly supplemented with facts sufficient to indicate

that electronic surveillance was not being used as the first

step in the investigation. United States v. Landmesser, 553

F. 2d 17 (C.A. 6); United States v. Alfonso, 552 F. 2d 605

(C.A. 5). The affidavits in this case meticulously described

the efforts to obtain the evidence of petitioners’ criminal

activity without the use of electronic surveillance.

Accordingly, they were sufficient to establish the need for

the interception and thus to satisfy the requirements of 18

U.S.C. 2518(1)(c).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapDeE H. McCret, Jr..,

Solicitor General.

PHILIP B. HEYMANN,

Assistant Attorney General.

JEROME M. Feit,

ANDREW S. GorbDon,

Altorneys.

AuGusT 1978.

DOJ-1978-08