# Opposition — Lincoln v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1149%3A2

## Record

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

## Text

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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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ISS RES ENS. SR OP 2
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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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BD Wii. FU: tensarisstsninincncrmmncanebinteinda »
Be Be GID GEE ccnsessncncsccidnnicenssccunptniccennetntinnis 2
Miscellaneous:
S. Rep. No. 1097, 90th Cong., 2d Sess.
SII ccsecnicssitiicinbdeheenthbblaniminedialimnicaibnidiabieticens 9

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1149%3A2. Public record. Not legal advice.