Brief for the United States — Volpe v. United States

7 Supremes Court, U.S,

EILED

No. 78-385 NOV 15 1978

‘MIGHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

ANTHONY D. VOLPE, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SIDNEY M. GLAZER

ELLIOTT SCHULDER

Attorneys

Department of Justice

Washington, D.C. 20530

Page

peti til Aad Rel Cll Sk aabaiaae ane

FUTMRICRION, wioeescineccscesdeceessosi- bh aipiahdaitiiaatacanehacliaininas

RIE IIIS ocSoiteth cre ccc cece cncsencesccevenctcosens

SS SS On. eo Seer 2

| RES, See 10

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CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165.. 12

Application of United States, 563 F.2d

MR Ur eer Re BRR EE 17

Brown v. United States, 411 U.S. 228 ....... 13

Franks vy. Delaware, No. 77-5176 (June

| EES hE ee 16

United States v. Abramson, 553 F.2d

1164, cert. denied, 483 U.S. 911 ............ 16

United States v. Agrusa, 541 F.2d 690,

cert. denied, 429 U.S. 1046 .................... 9

United States v. Altese, No. 75-CR-341

(E.D. N.Y. Oct. 14, 1976), aff’d sub

nom. United States v. Scafidi, 564 F.2d

633, cert. denied, sub nom. Vigorito v.

United States, 486 U.S. 908 ................ 9,10, 16

United States v. Anderson, 542 F.2d 428.. 17

United States v. Armocida, 515 F.2d 29,

cert. denied, 423 U.S. 858 -..................... 12

United States v. Bellosi, 501 F.2d 838 ...... 17

United States v. Bernstein, 509 F.2d 996,

vacated, 430 U.S. 902, rev’d on remand,

BBG PPB BAG nnn ccat. ccccccccsecetcce 17

I

Cases—Continued Page

United States v. Bynum, 513 F.2d 533,

cert. denied, 423 U.S. 952 12

United States v. Chavez, 416 U.S. 562 ...... 16

United States v. Dalia, 426 F. Supp. 862,

aff'd, 575 F.2d 1344, cert. granted, No.

77-1722 (Oct. 2, 1978) ... 9, 10, 11

United States v. Donovan, 429 U.S. 418... 14, 15,

16,17

United States v. Finazzo, No. 77-5186 (6th

Cir. Aug. 28, 1978) 10

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

denied, 483 U.S. 910 ..... 12

United States v. Giordano, 416 U.S. 505.... 15

United States v. Hinton, 543 F.2d 1002,

cert. denied, 429 U.S. 980 12

United States v. Poeta, 455 F.2d 117, cert.

denied, 406 U.S. 948 ..... 12

United States v. Ramsey, 503 F.2d 524,

cert. denied, 420 U.S. 982 ...................... 12

United States v. Santora, No. 76-3440

(9th Cir. Oct. 6, 1978) .. 10

United States v. Scully, 546 F.2d 255,

cert. denied, 480 U.S. 970 0000... 12

Constitution and statutes:

United States Constitution,

Fourth Amendment 13

18 U.S.C. 371 ; 3

RG ATs OG pareictecnnssice 3

18 U.S.C. 1688 .................. 4

18 U.S.C. 1955 8,4

18 U.S.C. 1962(c) .................. rast : 3

18 U.S.C. 1962 (d) ................. 3

18 U.S.C. 2618 .................... 10

18 U.S.C. 2518(1) (e) 9,13

Miscellaneous:

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

(1968)

Page

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-385

ANTHONY D. VOLPE, ET AL., PETITIONERS

v~.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The judgment order of the court of appeals (Pet.

App. la-2a) is not reported. The opinion of the

district court is reported at 430 F.Supp. 931.

JURISDICTION

The judgment of the court of appeals was entered

on June 13, 1978. A petition for rehearing was

denied on August 7, 1978 (Pet. App. 3a-4a). The

(1)

2

petition for a writ of certiorari was filed on Septem-

ber 6, 1978. The jurisdiction of this Court is in-

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

QUESTIONS PRESENTED

1. Whether, in executing a valid court order auth-

orizing the interception of oral communications at

specified premises, law enforcement agents may law-

fully enter those premises, without separate express

judicial authorization, to install and repair the device

used to make the interceptions.

2. Whether a district court is empowered by stat-

ute to authorize surreptitious entries necessary to

effectuate an oral interception order.

3. Whether petitioners have standing to challenge

the admissibility of evidence of intercepted communi-

cations on the ground that government agents made

surreptitious entries into premises that were not

named in the intercept order.

4, Whether the government’s unintentional failure

to disclose the existence of a previous state wiretap

required suppression of intercepted communications.

5. Whether the government’s application provided

information sufficient to support an order authorizing

the interception of oral communications.

STATEMENT

Following a jury trial in the United States District

Court for the District of Connecticut, petitioners

Volpe and O’Brien were convicted (Indictment Cr.

EE NS

H-76-37) of engaging in an illegal gambling enter-

prise through a pattern of racketeering activity and

the collection of unlawful debts, in violation of 18

U.S.C. 1962(c) (Count 1), conspiracy to commit that

offense, in violation of 18 U.S.C. 1962(d) (Count 2),

conducting an illegal gambling business, in violation

of 18 U.S.C. 1955 (Count 3), and conspiracy to com-

mit that crime, in violation of 18 U.S.C. 371 (Count

4). Petitioners Volpe and DiBenedetto were con-

victed of conspiracy to use extortionate means to

collect an extension of credit, in violation of 18 U.S.C.

894 (Count 5). Petitioner O’Brien was convicted of

using extortionate means to collect an extension of

credit (Count 6) and of a separate conspiracy to

commit that offense (Count 7), both in violation of

18 U.S.C. 894.

In addition, petitioners Volpe and Byrne were con-

victed, following their pleas of nolo contendere, of

conspiracy to steal a truck carrying an interstate

shipment of meat, in violation of 18 U.S.C. 371 (In-

dictment Cr. H-76-41). Petitioner Stephanou was

convicted, following her plea of nolo contendere, on

three counts of making false statements to a grand

1 On Indictment Cr. H-76-37, petitioner Volpe was sentenced

to concurrent terms of three to ten years’ imprisonment and a

$20,000 fine on Counts 1 and 5 and concurrent terms of

three years’ imprisonment on Counts 2 through 4. Petitioner

O’Brien was sentenced to concurrent terms of three to ten

years’ imprisonment and a $20,000 fine on Counts 1, 6 and 7,

and concurrent terms of three years’ imprisonment on Counts

2 through 4. Petitioner DiBenedetto was sentenced to 18

months’ imprisonment and a $5,000 fine on Count 5.

4

jury, in violation of 18 U.S.C. 1623, with respect to

petitioner Volpe’s involvement in the sale or receipt

of stolen goods (Indictment Cr. H-76-39). The re-

maining petitioners were convicted, upon their pleas

of guilty, of conducting an illegal gambling business,

in violation of 18 U.S.C. 1955. (Indictment Cr.

H-76-37, Count 3). Each of the above pleas was

entered with the understanding that the district

court’s ruling on the suppression motion (see pages

8-9, infra) could be challenged on appeal. The court

of appeals affirmed (Pet. App. la-2a).

1. The evidence, which is not in dispute, showed

that from June 1974 through early April 1976, peti-

tioners Volpe and O’Brien, with the assistance of the

On Indictment Cr. H-76-41, petitioners Volpe and Byrne

were each sentenced to a term of one year’s imprisonment,

execution of which was suspended, and one year’s probation.

On Indictment Cr. H-76-39, petitioner Stephanou was sen-

tenced to concurrent terms of two years’ imprisonment, all

but 80 days of which was suspended, two years’ probation,

and a $500 fine. The remaining petitioners were sentenced on

Count 8 of Indictment Cr. H-76-37 as follows:

Imprison- Execution

Name ment Suspended Probation Fine

Dellaferra 18months’ after6months 2years’ $3,000

Boornazian 18months’ after4months 2years’ $2,500

Bovino 18 months’ after 90 days 2years’ $2,500

Cecchini 18 months’ after 90 days 2 years’ $38,000

Speziale 18 months’ after90 days 2years’ $1,000

Lepito 18 months’ after 30 days 2years’ $2,500

Poulin 18 months’ in entirety 2years’ $ 600

Jacomini 18 months’ after4months 2years’ $2,500

Morris 18 months’ in entirety 2years’ $1,000

5

other petitioners charged in Indictment Cr. H-76-37,

conducted a large-scale illegal gambling business out

of a storefront office located at 103 New Britain

Avenue in Hartford, Connecticut. As an adjunct to

their gambling business, petitioners Volpe and

O’Brien loaned money at usurious interest rates and

collected repayments of these loans and of gambling

debts through the use of threats of force and violence.

Much of the government’s evidence was derived

from oral and wire communications that were inter-

cepted pursuant to orders entered by the district

court on December 16, 1974, and January 16, 1975.

As part of its proof in the trial of petitioners Volpe,

O’Brien, and DiBenedetto, the government introduced

recordings of intercepted wire and oral conversations,

testimony of two individuals who were involved in

petitioners’ illegal activities and who came to the

government’s attention through the electronic sur-

veillance, and testimony of several victims of peti-

tioners’ extortionate credit practices, who (with one

exception) were discovered by means of the inter-

cepted conversations.

The interception orders specifically identified the

premises—103 New Britain Avenue—on which the

oral and wire communications were to occur. Al-

though the storefront office located at that address

was held out to the public as the O’Brien-Sullivan

Home Improvement Company, the known facts at the

time the orders were issued established that the

premises were not being used for legitimate business

purposes but instead were “unquestionably a sham

6

and a ‘criminal blind’ designed and maintained solely

for the conduct of criminal activities” (430 F.Supp.

at 936).

2. The district court’s opinion contains a schematic

representation depicting the basement area of the

building where FBI agents completed installation of

the eavesdropping equipment (430 F.Supp. at 938).

As the diagram shows, petitioners’ storefront office

at 103 New Britain Avenue was situated on the

ground floor of an L-shaped structure located at the

intersection of New Britain Avenue and Julius Street.

The upper two stories contained residential apart-

ments. Located on the ground floor, in addition to

petitioners’ office, was John’s Deli, at 99 New Britain

Avenue. The building’s side entrance, at 11 Julius

Street, led to a common basement area containing

laundry facilities for use by the building’s tenants

(id. at 987). The basement had two wire-mesh en-

closures, one underneath the storefront office and

one underneath John’s Deli. One telephone terminal

box was located inside the enclosure underneath

John’s Deli and another telephone box was situated

in the common area of the basement (ibid.).

After issuance of the first interception order, FBI

agents, in the early morning of December 17, 1974,

entered 103 New Britain Avenue with a pass-key to

survey the premises. The agents re-entered the

premises the following morning and installed a listen-

ing device (430 F.Supp. at 938-939). Wires from

the device were run into the basement, where other

agents (who had gained access to the basement by

7

using a skeleton key to the basement door that fronted

on Julius Street) entered the wire-mesh enclosure

underneath 103 New Britain Avenue, retrieved the

microphone wires, and made connections for the oral

and wire interceptions in the common area telephone

box. The equipment, however, did not function (id.

at 939).

On the evening of December 18, the agents re-

entered the basement area to determine the source of

the problem and observed that there ‘were other tele-

phone wires leading into another telephone box inside

tae wire-mesh enclosure underneath John’s Deli at 99

New Britain Avenue (430 F.Supp. at 939). The

following day the government reported its problem to

the district court and proposed a nighttime entry

into neighboring John’s Deli in order to connect the

wires to the telephone box underneath that store

(ibid.). The court rejected this proposal, however,

citing the possibility of an encounter between the

agents and the proprietor of the business establish-

ment (C.A. App. 248-250).’

The district court’s concern was conveyed to the

telephone company, which proposed sending a repair-

man to John’s Deli during business hours and trans-

ferring the service to the other telephone box in the

basement. On the afternoon of December 19, a gov-

ernment agent accompanied a telephone repairman

into the delicatessen (430 F.Supp. at 939). The re-

pairman stated that he was from the telephone com-

*“C.A. App.” refers to the joint appendix in the court of

appeals.

8

pany and that he wanted to work on the telephone

equipment in the basement; the agent did not identify

himself. After receiving permission to enter the base-

ment, the agent and repairman connected several

wires from the telephone box below the delicatessen

to the box in the common basement area (id. at 939-

940).

That night, the agents again entered the common

basement area through the side door on Julius Street

and made the final connections (430 F.Supp. at 940).

The agents returned to the common basement on the

night of December 20 to replace certain wires that

had not been functioning. On December 30, they

again returned to disconnect the equipment, both

times using the Julius Street door (ibid.).

On January 16, 1975, the district court signed a

new order authorizing the further interception of

oral and wire communications from 103 New Britain

Avenue (430 F.Supp. at 940). Unlike the original

order, this order included a specific reference to the

Julius Street address. That evening, an agent entered

the basement and made the necessary reconnections.

A final entry of the basement was made on January

29, 1975, for the purpose of retrieving the microphone

and disconnecting the equipment (ibid.).

8. After indictment, petitioners moved to suppress

evidence derived from the electronic surveillance.

Following an evidentiary hearing, the district court

denied the motion, finding that the interception

“orders and their subsequent execution were reason-

able and lawful” (430 F.Supp. at 985) and that, at

9

the time the initial order was granted, the court had

been-aware that it would be necessary for the agents

covertly to enter and install a listening device within

the premises (id. at 936, 942). Relying primarily

on United States v. Agrusa, 541 F.2d 690 (8th Cir.

1976), cert. denied, 429 U.S. 1045 (1977), United

States v. Dalia, 426 F.Supp. 862 (D. N.J. 1977),

aff’d, 575 F.2d 1844 (8d Cir. 1978), cert. granted,

No. 77-1722 (Oct. 2, 1978), and United States v.

Altese, No. 75-CR-841 (E.D. N.Y. Oct. 14, 1976),

aff’d sub nom. United States v. Scafidi, 564 F.2d 633

(2d. Cir. 1977), cert. denied sub nom. Vigorito v.

United States, 486 U.S. 908 (1978), the court con-

cluded that its eavesdropping orders implicitly au-

thorized the agents to enter the premises and install

the necessary equipment to accomplish the intercep-

tions (430 F.Supp. at 942-943) .*

The court of appeals affirmed the denial of the

suppression motion for the reasons set forth in the

district court’s opinion (Pet. App. 2a).

*In addition, the district court held, inter alia, that peti-

tioners lacked standing to challenge the covert entries into the

basement areas of the building (480 F.Supp. at 945-946), that

the government’s failure to disclose a previous state wiretap

involving petitioner O’Brien and the premises at 103 New

Britain Avenue was an unintentional omission, and that the

government had sought in good faith to comply with the pro-

visions of 18 U.S.C. 2518(1) (e) (id. at 947-950). Finally, the

court concluded that, since the target premises were “known

to be using ‘total telephone service,’ in which incoming calls

were being transferred and re-transferred to unknown re-

ceivers, oral interception appeared essential to the accomplish-

ment of an effective surveillance” (id. at 947).

10

DISCUSSION

1. Petitioners contend (Pet. 28-30) that the dis-

trict court’s orders issued pursuant to 18 U.S.C. 2518,

authorizing the interception of oral communications

at 103 New Britain Avenue, did not impliedly include

judicial approval for the government to enter those

premises to install listening devices. Relying on

United States v. Finazzo, No. 77-5186 (6th Cir. Aug.

28, 1978),° petitioners further contend (Pet. 30-31) .~

that Title III of the Omnibus Crime Control and Safe

Streets Act of 1968 does not empower a district judge

to authorize government agents to make covert entries

for the purpose of implementing an interception order.

On October 2, 1978, this Court granted certiorari

in Dalia v. United States, No. 77-1722, to review the

question whether, in executing a valid court order

authorizing the interception of oral communications

in the defendant’s office, lav enforcement agents may

lawfully enter the office, without separate express

judicial authorization, to install the device used to

make the interceptions.’ If the Court affirms the de-

5 See also United States v. Santora, No. 76-8440 (9th Cir.

Oct. 6, 1978). The Department of Justice is currently consid-

ering what further action to take in the Santora case, which

differs from the instant case and from Dalia and Finazzo

because the interception order expressly authorized the entry

to place the equipment.

* We are sending petitioners copies of our briefs in opposi-

tion in Dalia and in Vigorito v. United States, cert. denied,

436 U.S. 908 (1978).

11

cision of the Third Circuit in Dalia and holds that

the statute empowers district courts to authorize sur-

reptitious entries to install electronic eavesdropping

devices and that such authorization may be implied

from an eavesdropping order (at least, as here and in

Dalia, when the court is fully aware that a covert

entry will be necessary to execute its order), it will

dispose of petitioners’ foregoing contentions. Accord-

ingly, we suggest that the Court defer decision on the

instant petition pending its decision in Dalia.

2. Petitioners’ remaining contentions are without

merit and do not warrant review by this Court.

a. Petitioners contend (Pet. 27-30) that, even as-

suming that the entries into 103 New Britain Avenue

were properly authorized by the initial interception

order (which specifically referred to that address)

and were thus lawful, the covert entries into the base-

ment through the door at 11 Julius Street and the

entry by ruse through John’s Deli (at 99 New Britain

Avenue) were outside the scope of the interception

order (which did not mention those addresses) and

required suppression of the fruits of the intercep-

tions. The district court correctly concluded (430

F.Supp. at 945), however, that “the [petitioners]

lack the requisite standing, both under Title III and

under the fourth amendment,” to challenge the base-

ment entries.

In enacting Title III, Congress did not intend to

grant broader standing to challenge allegedly illegal

governmental intrusions than is conferred by the law

of search and seizure generally. See S. Rep. No. 1097,

12

90th Cong., 2d Sess. 91, 106 (1968); Alderman v.

United States, 394 U.S. 165, 175-176 n.9 (1969);

United States v. Scully, 546 F.2d 255, 268 (9th Cir.

1976), cert. denied, 480 U.S. 970 (1977); United

States v. Armocida, 515 F.2d 29, 35 n.1 (8d Cir.),

cert. denied, 423 U.S. 858 (1975); United States v.

Bynum, 513 F.2d 533, 584-535 (2d Cir.), cert. denied,

423 U.S. 952 (1975). Thus, since “Fourth Amend-

ment rights are personal rights which * * * may not

be vicariously asserted” (Alderman v. United States,

supra, 394 U.S. at 174), petitioners may not urge

suppression on account of alleged misconduct that did

not violate their rights. See United States v. Fury,

554 F.2d 522, 526 (2d Cir.), cert. denied, 433 U.S.

910 (1977); United States v. Hinton, 543 F.2d 1002,

1011-1012 n.13 (2d Cir.), cert. denied, 429 U.S. 980

(1976) ; United States v. Ramsey, 503 F.2d 524, 532

(7th Cir. 1974), cert. denied, 420 U.S. 932 (1975);

United States v. Poeta, 455 F.2d 117, 122 (2d Cir.),

cert. denied, 406 U.S. 948 (1972).

Here, the illegality petitioners allege relates not to

the seizure of their conversations, which was judic-

ially authorized in full conformity with statutory

and constitutional requirements, but rather to the

basement entries necessary to complete installation

of the interception equipment. There is no evidence

that any of the petitioners were physically present

in the basement when the entries occurred. Moreover,

as the district court observed (430 F.Supp. at 945):

None of the [petitioners] * * * have [sic]

asserted any inherent possessory rights under

13

their lease in the basement area, or in 11 Julius

Street, 101 New Britain Avenue or even the

basement area underneath 103 New Britain

Avenue. No covert entry was made into the

caged-in storage area of 99 New Britain Avenue.

Absent any showing of a proprietary or posses-

sory interest in the premises entered, a defendant

has no standing to object to the ultimate fruits

of such an entry. Since no such interest has

been asserted here, the Court concludes that none

existed.

Hence, since the basement entries were not into an

area in which petitioners had a reasonable expecta-

tion of privacy, petitioners lack standing to assert

that the entries violated Title III or the Fourth

Amendment. Brown v. United States, 411 U.S. 228,

229 (1973).

b. Petitioners argue (Pet. 25) that the govern-

ment’s unintentional failure to disclose the existence

of a state wiretap conducted more than two years

earlier violated 18 U.S.C. 2518(1)(e) and required

suppression of the evidence derived from the inter-

ception orders. This argument was correctly rejected

by the courts below.

The government’s application for authorization to

make the interceptions in this case incorporated by

reference an affidavit by FBI Agent Dewey San-

tacroce that described previous applications for wire

interceptions. The affidavit stated that in 1973, in

the course of a previous federal wiretap, the govern-

ment had intercepted petitioner O’Brien’s conver-

sations relating to an illegal gambling business (430

14

F.Supp. at 948). Evidence adduced at the suppres-

sio. hearing showed that in September 1972 peti-

tioner O’Brien and the premises at 103 New Britain

Avenue had been the subject of a state wiretap. State

officials testified, however, that no information con-

cerning that wiretap had ever been given to the

federal government (ibid.). Agent Santacroce also

testified that, at the time he prepared his affidavit,

he was unaware of the state wiretap, but he added

that he would have referred to that wiretap if he had

known of its existence (id. at 949). After reviewing

the evidence, the district court concluded (ibid.) :

Agent Santacroce’s testimony was open, truth-

ful, and made with a good faith belief that the

prior wire interceptions revealed in his affidavit

were the only ones of which he was aware, re-

lating to the named subjects or the location 103

New Britain Avenue. The Court finds that un-

der all the circumstances there was no knowing

or reckless misstatement made to the Court by

him and that he had made a good faith

compliance with the provisions of 18 U.S.C.

§ 2518(1) (e).

In light of this fact finding, the court properly de-

termined not to exclude the evidence.

In United States v. Donovan, 429 U.S. 418, 432-

433 n.22 (1977), this Court stated that the provisions

of Title III, rather than the judicially fashioned

exclusionary rule, govern in determining whether

evidence should be suppressed for statutory, as op-

posed to constitutional, violations. Here, as in Dono-

15

van, suppression is appropriate only if there has been

a “ ‘failure to satisfy any of those statutory require-

ments that directly and substantially implement the

congressional intention to limit the use of intercept

procedures to those situations clearly calling for the

employment of this extraordinary investigative de-

vice.” Id. at 433-434, quoting from United States v.

Giordano, 416 U.S. 505, 527 (1974). Under Title III,

the issuing judge may approve an intercept ap-

plication if he determines that normal investi-

gative techniques have failed or are unlikely to

succeed and there is probable cause to believe

that: (i) an individual is engaged in criminal

activity; (ii) particular communications con-

cerning the offense will be obtained through in-

terception; and (iii) the target facilities are

being used in connection with the specified crimi-

nal activity. §§ 2518(3)(a-d). That determi-

nation is based on the “full and complete state-

ment” of relevant facts supplied by law enforce-

ment authorities.

United States v. Donovan, supra, 429 U.S. at 435.

The Court in Donovan concluded that “the failure

to comply fully” with the identification requirement

of Section 2518(1)(b) (iv) and the notice require-

ment of Section 2518(8)(d) did not “render[] un-

lawful an intercept order that in all other respects

satisfies the statutory requirements.” Id. at 434. In

this case as well, the failure to disclose the 1972 state

wiretap did not detract from the government’s com-

pliance with all of the essential statutory prerequisites

16

that are central to the authorization process. See

United States v. Chavez, 416 U.S. 562, 578 (1974);

United States v. Abramson, 553 F.2d 1164, 1169-1170

(8th Cir.), cert. denied, 483 U.S. 911 (1977).

Moreover, this is not a case in which the govern-

ment agents “knowingly failed” to inform the issuing

judge of the earlier state wiretap “for the purpose of

keeping relevant information from the District Court

that might have prompted the court to conclude that

probable cause was lacking.” United States v. Dono-

van, supra, 429 U.S. at 436 n.23." Nor is this a case

where an affidavit has been deliberately falsified or

where statements in the affidavit manifest a reckless

disregard for the truth. Cf. Franks v. Delaware,

No. 77-5176 (June 26, 1978), slip op. 17. Absent any

allegation that the omission was intentional or reck-

less, or at the very least that inclusion of the omitted

information would have been material to the issuance

of the interception order, there is no basis for order-

ing suppression of the evidence derived from the in-

terceptions because of a violation of Section 2518

(1) (e). See, e.g., United States v. Scafidi, 564 F.2d

633, 642 (2d Cir. 1977), cert. denied sub nom.

Vigorito v. United States, 486 U.S. 903 (1978);

* Indeed, the district court observed (480 F.Supp. at 950)

that the information concerning the state wiretap that was

omitted from the government’s application “would not have

affected the Court’s decision to grant the wire and oral inter-

cepts. If anything, it would in all probability have provided

supplemental reasons for granting the Court’s ultimate

action.”

17

United States v. Anderson, 542 F.2d 428, 433 (7th

Cir. 1976).°

ce. Finally, petitioners contend (Pet. 26) that Title

III does not authorize a joint application for both

oral and wire interceptions unless both procedures

are shown to be necessary and that the government

in this case failed to present specific information

establishing the need for interception of oral, in addi-

tion to wire, communications. Although we doubt

that petitioners’ construction of Title III is correct

(see, e.g., Application of United States, 563 F.2d 687,

644-645 (4th Cir. 1977)), the short answer to their

claim is that the district court expressly found that

the government did provide such additional infor-

mation supporting the interception of oral communi-

cations (430 F.Supp. at 936) :

A significant factor in this Court’s authori-

zation of oral interceptions by installing a “bug-

microphone” within the premises was the verified

information that “total telephone service,” a new

and devious adjunct to criminal operations, was

in use at the 103 New Britain Avenue premises.

Through the use of “total telephone service,” a

telephone call received at that address could be

automatically switched to another telephone or

‘The cases on which petitioners rely (Pet. 25) are not in

point. United States v. Bellosi, 501 F.2d 838 (D.C. Cir. 1974),

involved a knowing and intentional decision by police not to

disclose a prior wiretap. United States v. Bernstein, 509 F.2d

996 (4th Cir. 1975), was vacated by this Court for reconsid-

eration in light of Donovan (480 U.S. 902), and the court of

appeals reversed the suppression order on remand (556 F.2d

244 (4th Cir. 1977) ).

18

telephones, by simply pushing a transfer button,

and the call could subsequently be switched to

still another number (In-chambers Tr., Dec. 16,

1974, at 22), thus making it impossible to inter-

cept and monitor the call, or to trace it to its

ultimate receiver. This\ circumstance indicated

that a telephone wire intercept alone would be

likely to prove fruitless.

The court therefore concluded that “oral interception

appeared essential to the accomplishment of an effec-

tive surveillance” (430 F.Supp. at 947). Petitioners

offer no basis for questioning that conclusion or the

court’s underlying factual finding.

CONCLUSION

The petition for a writ of certiorari should be dis-

posed of as appropriate in light of this Court’s deci-

sion in Dalia v. United States, swpra.

Respectfully submitted.

Wane H. McCree, Jr.

. Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

SIDNEY M. GLAZER

ELLIOTT SCHULDER

Attorneys

NOVEMBER 1978

To. 8. OVERNMENT PRINTING OFrice, 1970 277806 193