Petition — Moenckmeier v. United States

me ary

Supreme Court, y. &

In The FILED |

Supreme Court pf the” —

Uni ted S ty : MICHAEL RODAK, JR., CLERK

October Term, 1978

No @8-1210

ERNST O. MOENCKMEIER and

JEANENE MOENCKMEIER,

Petitioners

V e

UNITED STATES OF AMERICA and

J. RICHARD HOOKS, Special Agent,

Internal Revenue Service

and

LANDMARK BANK OF ORLANDO,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN JOSEPH MATONIS

225 Broadway, Suite 1800

San Diego, Calif. 92101

Phone: 213/967-7060

Counsel for Petitioners

January 30, 1979

In The

Supreme Court of the

United States

October Term, 1978

No.

ERNST O. MOENCKMEIER and

JEANENE MOENCKMEIER,

Petitioners

Vv.

UNITED STATES OF AMERICA and

J. RICHARD HOOKS, Special Agent,

Internal Revenue Service

and

LANDMARK BANK OF ORLANDO,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JOHN JOSEPH MATONIS

225 Broadway, Suite 1800

San Diego, Calif. 92101

Phone: 213/967-7060

Counsel for Petitioners

January 30, 1979

INDEX

Table of Authorities .

Opinions Below... .

Jurisdiction ... ..

Questions Presented .

Primary Constitutional

Provisions

and Statutes Involved... .

Statement of the Case

Reasons for Granting the Writ ..

I * ° . 7 . oa *

III o - i . 7. . o 7

CUOmMGLeGsee «6 tke &ls

Certificate of Service

Appendix . + «+ 6 « »

Recall of Mandate

dated 12/14/78

o . a . . e.

& ee

Judgment of 11/13/78 ,

issued as mandate 12/14/78

Denial of Petition for

Rehearing,12/7/78 ... .

Decision of 11/13/78 ..

Order Denying Motion 4/5/78

Order of March 22,

1978 ..

Affidavit - Richard Friedman

Affidavit - Nelson Patnaude .

Affidavit - John L. Rennish .

A-10

A-l1l

TABLE OF AUTHORITIES

CASES

Alderman v. U.S.,

206 B.8. BGS CASS) «vse ee 0 8 8

Beverly v. U.S.

468 F.2d 732 (5th Cir. 1972) . .11,13,20

Bufalino v. Immigration and

Naturalization Service,

473. 7.28 7a@: (3e0 Cir. i973). = s+ »

Gelbard v. U.S.,

408 U.S. 41 (1972) . . «© « « 22,23,24,25

In re Evans, 452 F.2d 1239

(D. Cc. Cir. 1971) . 7 ” 7 7 ° . . 15

In re Millow, 529 F.2d 770.

(24 Cir. 1976) .. «ew Sea eae

In re Quinn, 525 F.2d 222

(lst Cir. 1975)... . - 9,11,12,15,17,18

In re Tierney, 465 F.2d 806

(Sth Cir. 1972). . . «» «- 11,13,15,17,19,20

In re Vigil, 524 F.2d 209

(LOth Cig. 2982S). «.-« «© 0 6 2 » © « 23,55

Mullane v. Central Hanover Bank

and Trust Co., 339 U.S. 306 (1956) .

U.S. v. Alter, 482 F.2d 1016

10

(9th Cir. 1973). . . - - 10,12,15,17,18,20

U.S. v. Rubin, 559 F.2d 975

(5th Cir 1977) * . . . ° . . ° o 15,20

U.S. v. See, 505 F.2d 845

(9th Cir. 1974). « * e . . e 14,16

U.S. v. Stevens, 510 F.2d 1101.

(Sth Car. 29 fahe 3s 8 ic SO - «14,16,20

U.S. v. Toscanino, 500 F.2d 267

(28 Cig. AB7eP «ss Simipowt .«

U.S. v. Tucker, 526 F. 24 279

(Sth Cir. 2976) 2/2 ‘ Sieh

U.S. v. Weiner, 418 F. Supp. 941

(M. D. Pa. 1975) ° ° 7 7 . +

U.S. v. Yangita, 552 F. 24 940

(2d Cir; 1977) - -- . . = — - . . .

ii

13

20

16

CONSTITUTIONAL PROVISIONS

Constitution of the U.S., Amend. V. . 4,10

STATUTES

De ee DEROR ASE. 64 6 6 «6 et ee ec el US

18 USC §3504 . . 3,4,6,7,10,11,12,13,14,16,17,

18,19,20,21,23,24,25

18 USC §3504(a)(1). . . 3,6,14,15,16,17,19,

21,22,23,24,25

18 UsC §3504 (a) (2) - . ” 7 - © ~ + ° . 22

aS Uew woweeums (3) «© «+ we wo we te we tt ee

26 USC §7604 - ” : . iS © ~ . ° . -

26 USC §7609 ... 2 6 6 6 6 0 & Dome

26 USC $7609 (a) (3) (A) ee ee ay ee ee ae

oe wee Shee tas Se oe We st ew 8 et 8

FEDERAL RULES

Federal Rules of Civil Procedure

Rule 59 (e) ‘ 7 . . . - - - . - ° - - 7

LEGISLATIVE HISTORY

"Organized Crime Control Act of 1969,"

S.REP.NO. 91-617, 91st Cong.,

lst Sess io *. . + 7 7 . 7 * - * 7 ° 7 23

Organized Crimine Control Hearings

before Subcommittee No. 5 of the

Judiciary, H.R., 9lst Cong., 2d

Pas AADTP? © © 6 ee @ 6 6 ee se whee

iii

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1978

No.

ERNST O. MOENCKMEIER and

JEANENE MOENCKMETIER,

Petitioners

Vv.

UNITED STATES OF AMERICA and

J. RICHARD HOOKS, Special Agent,

Internal Revenue Service

and

LANDMARK BANK OF ORLANDO,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners ERNST 0. MOENCKMEIER

and JEANENE MOENCKMEIER, pray that a writ

of certiorari issue to review the judgment

of the United States Court of Appeals for

the Fifth Circuit, rendered November 13,

1978, which affirms the March 22, 1978 order

of the United States District Court for

the Middle District of Florida, Orlando

Division.

OPINIONS BELOW

Circuit. There was no formal opinion

Sereda by the U.S. Court of Appeals for

the Fifth Circuit. The Judgment of Novem-

ber 13, 1978 affirming the order of the x

district court is set forth in the appendix.

Also set forth in the appendix are the

denial of the petition for rehearing filed

December 7, 1978 and the recall and stay of

the mandate until February 1, 1979 pending ,

petition for a writ of certiorari in the

Supreme Court, filed December 28, 1978.

District Court. There was no formal opinion

in the district court below. The order

with Findings of Facts and Conclusions of

Law rendered on March 22, 1978 and the

order denying the motion to vacate or to

alter and amend, filed April 5, 1978 are

set forth in the appendix.

JURISDICTION

The judgment of the U.S. Court of

Appeals Pe the Fifth Circuit was entered

on November 13, 1978. A timely petition

for rehearing was denied on December 7,

1978. The judgment and denial of rehearing

are set forth in the appendix. The juris-

diction of this Court is invoked under 28

U. S.Ge §1254 (i> 3

QUESTIONS PRESENTED

I. AN INTERVENOR UNDER 26 U.S.C. §7609 WHO

RAISES A CLAIM OF UNLAWFUL ELECTRONIC SUR-

VEILLANCE UNDER 18 U.S.C. §3504 IN A PROCEED-

ING TO JUDICIALLY ENFORCE AN I.R.S.

ADMINISTRATIVE SUMMONS ISSUED AND SERVED

UPON A THIRD-PARTY RECORDKEEPER UNDER 26

U.S.C.§7604 HAS SHOWN CAUSE IN THE RETURN

HEARING BY MAKING THE 18 U.S.C.§3504 CLAIM.

DUE PROCESS GUARANTEES OF THE FIFTH AMEND-

MENT REQUIRE THAT THE GOVERNMENT PRODUCE

ALL AFFIANTS WHO FILED RESPONSIVE AFFIDAVITS

UNDER 18 U.S.C.§3504 SO THAT SAID AFFIANTS

ARE AVAILABLE FOR CROSS-EXAMINATION ON THEIR

AFFIDAVITS IN AN ADVERSARY HEARING SEPARATE

FROM THE SHOW CAUSE HEARING.

II. THE UNITED STATES COURTS OF APPEALS

ARE SPLIT ON THE DEGREE AND NATURE OF A

SUFFICIENT RESPONSE TO A SUBSTANTIAL CLAIM

OF ILLEGAL ELECTRONIC SURVEILLANCE UNDER

TITLE 18, UNITED STATES CODE, SECTION

3504 (a) (1).

III. IN ORDER TO EFFECTUATE THE INTENT OF

CONGRESS AND THE DEPARTMENT OF JUSTICE IN

ENACTING TITLE 18, UNITED STATES CODE,

SECTION 3504(a) (1), THE COURT MUST REQUIRE

THE GOVERNMENT TO MEET ITS BURDEN UNDER

18 U.S.C.§3504(a) (1) TO "AFFIRM OR DENY"

UNLAWFUL ELECTRONIC SURVEILLANCE WITH A

MEANINGFUL AND UNEQUIVOCAL RESPONSE AFTER

MAKING A THOROUGH SEARCH OF ITS FILES,

WHEN A SUBSTANTIAL CLAIM OF UNLAWFUL

ELECTRONIC SURVEILLANCE IS MADE.

PRIMARY CONSTITUTIONAL PROVISIONS

& STATUTES INVOLVED

Constitution of the United States,

Amendment V:

"No person shall... . nor shall

be deprived of life, liberty, or

property, without due process of

Se o/b

Title 18, United States Code, Section 3504:

Litigation concerning sources of

evidence

(a) In any trial, hearing, or other

proceeding in or before any court,

grand jury, department, officer,

agency, regulatory body, or other

authority of the United States--

(1) upon a claim by a party

aggrieved that evidence is inadmissi-

ble because it is the primary product

of an unlawful act or because it was

obtained by the exploitation of an

unlawful act, the opponent of the

claim shall affirm or deny the occur-

rence of the alleged unlawful act;

(2) disclosure of information for a

determination if evidence is inadmis-

sible because it is the primary

product of an unlawful act occurring

prior to June 19, 1968, or because it

was obtained by the exploitation of

an unlawful act occurring prior to

June 19, 1968, shall not be required

unless such information may be relevant

to a pending claim of such inadmissi-

bility; and

tS

(3) no claim shall be considered

that evidence of an event is inadmis-

sible on the ground that such evidence

was obtained by the exploitation of

an unlawful act occurring prior to

June 19, 1968, if such event occurred

more than five years after such alleg-

edly unlawful act.

(b) As used in this section "unlawful

act" means any act the use of any

electronic, mechanical, or other

device (as defined in section 2510(5)

of this title) in violation of the

Constitution or laws of the United

States or any regulation or standard

promulgated pursuant thereto.

STATEMENT OF THE CASE

On November 7, 1977, respondent,

J. Richard Hooks, a special agent of the

Internal Revenue Service, Intelligence

Division, ~ssued and served upon respondent

Landmark Bank of Orlando, a third-party

recordkeeper under Title 26, United States

Code, Section 7609(a) (3) (A) in Orlando,

Florida, two I.R.S. summonses. The summonses

requested bank records relating to peti-

tioners Ernst 0. Moenckmeier and Jeanene

Moenckmeier. December 1, 1977 was tie

specified return date in the summonses.

Special Agent Hooks was then assisting the

I.R.S. District Intelligence Division in

Newark, New Jersey in their investigation

of petitioners, intervenors below.

Pursuant to 26 USC §7609, the targets

of the investigation, Ernst 0. Moenckmeier

and Jeanene Moenckmeier, instructed the

respondent bank to refuse to comply with

5

the administrative summonses. The bank

complied with the instructions of petitioners,

intervenors below, and refused to turn over

the records relating to the accounts of

petitioners.

The United States filed a civil action

in the United States District Court for

the Middle District of Florida, Orlando

Division to enforce the summonses. Petition-

ers, intervenors below, filed a claim under

Title 18, United States Code, Section 3504

(a) (1) for assurances that their phones were

not tapped or a statement that they were.

Under 18 USC §3504 when a claim of unlawful

electronic surveillance is made at a hearing,

the government is required to "affirm or

deny" the unlawful electronic surveillance.

The respondents, the United States, filed

three affidavits (A-9-11) on the day of

the show cause hearing in response to

petitioners 18 USC §3504 claim, stating

they had "no knowledge" of any wiretapping.

All three affidavits were executed by

government officers who were not present at

the show cause hearing on March 21, 1978,

and therefore not available for cross-exami-

nation. The two I.R.S. special agents who

testified at the hearing, stated that they

knew of no electronic surveillance; however

they also stated that they were not familiar

with the investigatiion in Newark, except that

the Orlando office had been requested by

Newark to issue the administrative summonses

in Orlando.

The short "to my knowledge" affidavits

submitted by the government did not set

forth any facts showing the methods used

nor the records searched in determining

that there was no electronic surveillance.

In fact, it was apparent from the affidavits

that no files were searched nor any officers

6

ae ee ae a ge

canvassed. The affidavits were con

and ambiguous. Judge John A. Reed vsener ad

that the 18 USC §3504 claim of petitioners

intervenors below, was substantial but

also found the government's response to

be adequate. The district court ordered

the enforcement of the I.R.S. summonses

(A-6 ), but stayed the enforcement of the

summonses pending the outcome of the appeal.

On March 24, 1978, petitioner

Motion to Vacate or to alter and eri :

pursuant to Rule 59(e) of the Federal

Rules of Civil Procedure. Petitioners

requested that the enforcement order be

stayed until petitioners could cross-

examine the affiants who were not produced

at the March 21, 1978. Petitioners,

intervenors below, submitted affidavits of

additional telephone irregularities,

including those of their counsel, in support

of their Motion to Vacate or Alter and

Amend. Judge Reed denied the motion on

April 5, 1978 (A=5.).

A timely notice of appeal was filed

on April 10, 1978. The U.S. Court of Appeals

for the Fifth Circuit heard the oral

argument on the appeal on November 8, 1978.

On November 13, 1978 the Fifth Circuit

affirmed the decision of the district court

on the basis of the Findings of Fact and

Conclusions of Law of District Judge John

A. Reed, Jr. dated March 22, 1978". (A=-4 )

Petitioners filed a timely petition for

rehearing in the Fifth Circuit and this

petition was denied on December 7, 1978.

The mandate to the U.S. District Court for

the Middle District of Florida, Orlando

Division was issued on December 14, 1978 (A-2)

Upon the motion of petitioners' counsel

7

the mandate was recaliec on December 28,

1978 and stayed until February 1, 1979

(A- 1) pending the filing of a petition

for a writ of certiorari with the Supreme

Court by February 1, 1979.

Petitioners have been the target of

several criminal investigations in the past

which lends support to petitioners’ claim

that their phones have been wiretapped.

Petitioners are under investigation by the

federal grand jury in Brooklyn, N.Y. for

alleged customs' violations. In 1976

petitioners were indicted by a federal

grand jury in Newark, New Jersey for crimi-

nal contempt for allegedly violating an

injunction against the sale of amygdalin

("laetrile").

Petitioners, their friends and their

counsel had been experiencing telephone

irregularities during the year prior to

the show cause hearing on March 21, 1978

and also are experience telephone irregulari-~

ties up to and including today's date.

Affidavits dexribing those irregularities

were submitted to the district court in

support of petitioners’ 18 USC 3504 (a) (1)

claim and their Motion to Vacate or Alter

and Amend.

REASONS FOR GRANTING THE WRIT

I. AN INTERVENOR UNDER 26 U.S.C.§7609 WHO

RAISES A CLAIM OF UNLAWFUL ELECTRONIC SUR-

VEILLANCE UNDER 18 U.S.C.§3504 IN A PROCEED-

ING TO JUDICIALLY ENFORCE AN I.R.S

ADMINISTRATIVE SUMMONS ISSUED AND SERVED

UPON A THIRD-PARTY RECORDKEEPER UNDER 26

U.S.C.§7604 HAS SHOWN CAUSE IN THE RETURN

HEARING BY MAKING THE 18 U.S.C.§3504 CLAIM.

DUE PROCESS GUARANTEES OF THE FIFTH AMEND-

MENT REQUIRE THAT THE GOVERNMENT PRODUCE

ALL AFFIANTS WHO FILED RESPONSIVE AFFIDAVITS

UNDER 18 U.S.C.§3504 SO THAT SAID AFFIANTS

ARE AVAILABLE FOR CROSS-EXAMINATION ON THEIR

AFFIDAVITS IN AN ADVERSARY HEARING SEPARATE

FROM THE SHOW CAUSE HEARING.

The district court hearing of March 21,

1978 was cheduled for the sole purpose of

providing petitioners/intervenors, Ernst 0.

Moenckmeier and Jeanene Moenckmeier,

Claimants under 18 USC §3504, with the

Opportunity to show cause why the I.R.S.

third-party recordkeeper administrative

summonses should not be enforced. Petition-

ers/intervenors showed cause at that hearing

by making a substantial 18 USC §3504 claim

of unlawful electronic surveillance. At

that time that was all that was required of

petitioners/intervenors. This claim trig-

gered the government's obligation under

18 USC §3504 to either "affirm or deny"

unlawful electronic surveillance.

The responsive affidavits filed by the

government at the show cause hearing of

March 21, 1978 (A- 9-11)were ambiguous and

did not reflect a scrupulous canvass of

agency records, as required under the test

in In re Quinn, 525 F.2d 222 (lst Cir. 1975)

and failed to meet the test for factual

9

sufficiency in U.S. v. Alter, 482 F.2d 1016

(9th Cir. 1973).

Petitioners/intervenors were denied

due process guaranteed by the Fifth Amend-

ment to the Constitution of the United States

when they were not given notice nor the

opportunity to prepare for cross-examination

of government witnesses who appeared with-

out notice and testified at the Show Cause

hearing of March 21, 1978, but were not the

affiants in the government's responsive

affidavits. "An elementary and fundamental

requirement of due process in any proceed-

ing which is to be accorded finality is

notice reasonably calculated, under all

circumstances, to apprise interested

parties of the pendency of the action and

afford them an opportunity to present their

objection." Mullane v. Central Hanover Bank

and Trust Co., 339 U.S. 306 (1956). A fair

hearing requires notice and opportunity to

be heard. In order to effectively cross-

examine a witness it is necessary to puruse

first a statement of the witnesses. This

is particularly true when, as under the

Alter test, details of the canvass of the

agency records plus details relating to

the background of affiants is proper subject

made for cross-examination.

The ambiguous "to my knowledge" affi-

davits submitted by the government in

response to petitioners/intervenors §3504

claim, were not subject to cross-examination

at the Show Cause hearing because the

government did not make the affiants avail-

able. The affiants remained in New Jersey

and New York during the hearing on March

21, 1978. Because the government submitted

only ambiguous, conclusory affidavits in

response to the §3504 claim, cross-examina-

tion of the affiants is necessary in order

10

a

to give the government's denial an -

ing at all. Sie te

Petitioners, as intervenors, have not

had an adversary hearing where they were

given notice and opportunity to cross-

examine government officers knowledgeable

about the investigations of intervenors.

A hearing with a right to cross-examine

government officers knowledgeable about

the investigation of an 18 USC §3504

proponent was allowed by the U.S. District

Court for the Northern District of Texas

pst ped i er Py the U.S. Court of Appeals

or e Fi Circuit in In re Tiern

465 F.2a 806, 812-813 (Sth Cir 1975)~

The Fifth Circuit has stated that "the

comprehensive procedure followed in

Tierney 1s preferable when circumstances

permit’, Beverly v. U.S., 468 F.2d 732,

744 (5th Cir. - In Tierney the Court

said it was preferable to require cross-

examination of a Justice Department officer

who conducted a Quinn-type canvass of the

Secret Service, Customs Service, Internal

Revenue Service, Alcohol, Tobacco and

Firearms Division, Bureau of Narcotics and

Dangerous Drugs, the Federal Bureau of

Investigation, and presumably the Depart-

ment of Justice.

Petitioners argue that each agency

should canvass its own investigation records

on a §3504 proponent and the one who con-

ducts the canvass should be knowledgeable

of that investigation and submit an affi-

davit that meets the Quinn standards. It

is this affiant, petitioners insist, who

should be made available for cross-exami-

nation after petitioners, as intervenors,

have sufficient time to prepare for cross-

examination of each of those affiants.

1l

Petitioners submit the following test

as an alternative to the Quinn canvass and

cross-examination testimony of each agency

officer involved in an investigation of a

§3504 proponent:

If an affidavit is submitted in

response to a §3504 claim, the

affiant must be available for cross-

examination; however, it is not

necessary that each agency or

office conduct a separate Quinn-

type canvass that produces a re~

sponsive affidavit. Nor is it

necessary for the government to

produce for cross-examination

officers who have knowledge of

the investigation but Lave not

submitted an affidavit. The

requirement is simply that 1) a

person with the proper background

who is knowledgeable about the

investigation of the §3504 propo-

nent conduct a Quinn-type canvass

and 2) submit an affidavit and 3)

be available for cross-examination.

This could be a Justice Department

officer with coordinating respon-

sibilities or an officer of the

various agencies involved.

In the case at bar, general, conclusory,

inadequate, incomplete token affidavits

(A- 9-11) were submitted in response to a

§3504 claim by affiants who were not avail-

able for cross-examination, even on their

vague, generalized and meaningless sworn

statements. As Alter, supra, points out,

an affidavit so general that it allows an

affiant to escape a perjury charge is an

inadequate affidavit. Id. at 1026-1027. If

courts require affidavits, it is a truism

to say that these affidavits should say some~

thing.

12

wane, Remade htaainias Haste

~ S We ae a ne oe

In Bufalino v. Immigration and

Naturalization Service, 4 F. 8

(3rd Cir. 1973), which was neither a

criminal trial nor a grand jury proceeding,

the administrative agency involved allowed

the cross-examination of government officers

at an adversary hearing. The U.S. Court of

Appeals for the Second Circuit, U.S. v. Toscan-

_ ino, 500 F.2d 267,281(2d.1974)remanded the case

to the district court for an evidentiary

hearing. In a case decided before 18 USC

§3504 became law, the Supreme Court in

Alderman v. U.S., 394 U.S. 165 at 187

(1969), remanded the case to the district

court for an evidentiary hearing on the

peo aa ae unlawful electronic surveil-

ance. n In re Vigil, 524 F.2d 209,

Cir.1975) the U.S; Coutt of Appeals for neler

Circuit expressed its preference for an

adversary proceeding: "In our view, testi-

money in court carries more weight than

conclusory statements in affidavits for

the manifest reason that it can be sub-

jected to cross-examination." The U.S.

Court of Appeals for the Fifth Circuit

stated in y. , Supra at 744

that "the comprehensive procedure followed

in Tierney is preferable when circumstances

permit,” referring to the adversary hearing

in Tierney, supra.

Petitioners, as intervenors, have made

allegations of unlawful electronic surveil-

lance which are substantial. There is no

way to find out whether or not the govern-

ment's denial, if there be one, is true,

and there is no way. to determine whether

or not the electronic surveillance is legal

unless this Court orders (1) specific

verified denials by knowledgeable govern-

ment officers, and (2) an evidentiary

hearing with the opportunity to cross-

examine those officers.

13

Here, petitioners, as intervenors, in

their motion to amend the district court's

order (A-6 ) asked for the opportunity to

cross-examine the actual affiants who

checked their respective agency records

regarding the wiretapping of petitioners’

phones as well as those of their counsel,

but said motion was denied (A-5 ). The

officers who checked the records were

unavailable for cross-examination. Two

I.R.S. special agents testified but they

said they knew nothing of the Newark, N.J.

investigation which petitioners, as

inte:xvenors, say involved unlawful elec-

tronic surveillance.

Petitioners/intervenors were denied

the notice and opportunity to prepare for

cross~examination and were denied a hearing

to cross-examine the affiants, which is a

denial of due process guaranteed by the

Fifth Amendment to the Constitution of the

United States. Petitioners request that

they now be given the notice and opportuni-

ty to be heard on their 18 USC §3504 claim

at an adversary hearing.

II. THE UNITED STATES COURTS OF APPEAL

ARE SPLIT ON THE DEGREE AND NATURE OF A

SUFFICIENT RESPONSE TO A SUBSTANTIAL CLAIM

OF ILLEGAL ELECTRONIC SURVEILLANCE UNDER

TITLE 18, UNITED STATES CODE, SECTION

3504 (a) (1).

The responses to an 18 USC §3504(a) (1)

claim which have keen held to be sufficient

by the U.S. Courts of Appeals range from a

general denial in response to an unsubstan-

tiated claim, U.S. v. See, 505 F.2d 845,

856 (9th Cir. 1974), U.S. v. Stevens, 510

14

F.2d 1101, 1105-1106 (5th Cir.

affidavits which reflect a TER es ha

agencies by person(s) in a position to

know about the existence of electronic

surveillance, In re Quinn, supra, U.S. v.

Alter, supra, U.S. v. Weiner, 418 F.Supp

M.D.Pa. 1 , In re Tierney, supra,

to affidavits reflecting canvasses with

the opportunity to cross-examine the

affiants, In re Tierne supr

Weiner, supra. a Pras O:8:_v:

The U.S. Courts of Appeals

Circuits have frowned eon Maes

to my knowledge" affidavits by persons

not in a position to have complete know-

ledge regarding the existence of electronic

Surveillance, U.S. v. Alter, Supra at 1027

In re Quinn, supra at 225 n.5, U.S. v. Rubin,

559 F.2d 975, 989 (5th Cir. 1977)

required that denials "should a wtees ae

absolute terms and by an authoritative

officer of the Department, one who speaks

with knowledge of the facts and circum-

stances. This is no place for ambivalent

Statements or loopholes." In re Vigil,

Supra at 216. See also U.S. v. Alter,

Supra at 1027.

In many Circuits, a mere asserti

of unlawful electronic Susvert alee tritcers

18 USC §3504(a) (1), In re Evans, 452 F.2d

1239, 1247 (D.C.Cir. 1971); however, in

the Second Circuit the claim must be at

least "colorable" before it will trigger

@ §3504(a) (1) denial. In re Millow, 529

F.2d 770, 774 (2d Cir. 1976).

Although there is some agreement

between the Circuits that the specificity

of the response depends on the specificity

of the claim, "the fluid test," especially

with regard to general §3504 (a) (1) claims,

15

U.S. v. See, supra at 856, U.S. v. Stevens,

Supra at 1105-1106, U.S. v. Yangita, 552

F.2d 940, 944 (2d Cir. 1977), there is a

conflict between the Circuits as to the

nature and degree of response required

when a substantial §3504(a) (1) claim is

made. Applying the "fluid test" mentioned

above, a substantial claim should require

a substantial response.

Petitioners/intervenors in the case

herein made a substantial claim of illegal

electronic surveillance under 18 USC §3504

(a) (1) and this fact is not in dispute.

The district court below found that the

Moenckmeiers (petitioners/intervenors)

"have made a substantial claim of unlawful

electronic surveillance pursuant to Title

18, United States Code, Section 3504"

(emphasis added). See Findings of Fact No.

2 in the Order of March 22, 1978 (A-6 ).

This finding was adopted by the United

States Court of Appeals for the Fifth

Circuit in its decision of November 13,

1978 (A-4). Rehearing denied, December 7,

1978 (A-3). .

The district court below found that

the government's general and ambiguous

affidavits and the testimony of government

agents who were not the affiants were an

adequate response to petitioners/intervenors

claim. The authority upon which the

district court relied in determining the

adequacy of the response was In re Millow,

supra (A-8 ), which requires that "Once

a substantial claim is made under the

Statute, those government agencies closest

to the investigation must scrupulously

search their files and submit affidavits

affirming or denying the validity of the

aggrieved party's claim and indicating

which agencies have been checked." Id. at

774.

16

There was no scrupulous search of agency

files in the case herein. Although the

Court indicated in its Findings that it

relied on In re Millow, supra, its Findings

were contrary to the standard for a response

to a substantial claim given in In re Millow,

Supra, at 774. Had the district court

followed In re Millow it would have held

that the response Of the government was

inadequate and that petitioners/intervenors

were entitled to a substantial response in

the form of additional affidavits reflect-

ing a scrupulous search of agency files.

Although most of the decisions which

have discussed the sufficiency of a

government response to an 18 USC §3504(a)

(1) claim have discussed the sufficiency of

a response to an unsubstantiated and general

claim, the following decisions have discussed

substantial responses and petitioners/

intervenors suggest that the Court look to

these decisions as a basis to determine the

proper government response to a substantial

§3504(a) (1) claim in the case herein.

U.S. v. Alter, supra, In re Quinn, supra,

In re Millow, supra, In re Tierney, supra.

In U.S. v. Alter, supra at 1026-1027

the U.S. Court of Appeals for the Ninth

Circuit held that in order for an 18 USC

§3504 affidavit to be sufficient as a

response, the affidavit:

1) must not be conclusory;

2) must supply information on the

identity of other government

employees canvassed;

3) must set forth "the substance of

the inquiries, or the substance

of the replies";

17

4) must contain "facts from which

the court could conclude that

- « « agencies he lists are

the only governmental agencies

that could have been involved

in electronic surveillance."

5) must contain "the dates of

claimed surveillance to which

the inquiries were addressed";

6) must contain enough non-conclu-

sory, specific facts so that it

could be established that the

affidavit was perjured.

In addition to the Alter test on

adequacy of a governmental response to a

§3504 claim, there is the Quinn test of the

adequacy of the canvass to acquire the

data necessary to make a meaningful §3504

response. In re Quinn, supra at 225.

The government agencies involved in the

investigation of the §3504 proponent must

scrupulously search its files to have

sufficient knowledge either to affirm or

to deny the §3504 claim.

The U.S. Court of Appeals for the

First Circuit described the governmental

duty to search federal agency files as a

"canvass". In re Quinn, supra. In Quinn,

supra, the court required the government

to produce affidavits denying illegal

electronic surveillance and to include in

those affidavits an explicit assurance that

all agencies involved were canvassed as to.

whether there was any unlawful electronic

surveillance of the §3504 proponent.

Quinn, supra, summarizes the government's

responsive requirements by holding that the

governmental denial is based upon sufficient

knowledge to be meaningful. In other words,

even though Quinn does not require "perfect"

18

affidavits from the government i

to a §3504 claim, is Ghee oe poe _

affidavit by a responsible officer in the

position to know about the particular agen-

cies" eavesdropping, wiretapping and bugging.

In In re Millow, supra, the U.S.

of Appeals for the Becca Circuit sell one

the standard for the government's response

when a substantial claim is made: "Once

a substantial claim is made under the

Statute, those government agencies closest

to the investigation, must scrupulously

search their files and submit affidavits

affirming or denying the validity of the

aggrieved party's claim and indicating

a agencies have been checked." Id. at

_ The Fifth Circuit has not yet

defined the adequacy of a government

response when there is a substantial 18 usc

§3504(a) (1) claim, a claim as in the

instant case; but the Court has hinted at

it in In re Tierney, supra.

In Tierney we approved the pro-

cedure atti ed by the district \

judge of requiring testimony

under oath and subject to cross-

examination from the Department

of Justice attorney who made the

responsive affidavit denying

electronic surveillance on the

party of the United States. That’

testimony included a statement

that a check had been made with

every government agency having

any connection with the investi-

gation, including, in addition

to the F.B.I. and the Bureau of

Narcotics and Dangerous Drugs,

the Department of the Treasury,

19

which encompasses the Secret Ser- lance techniques and who has

rnal Revenue Scrupulously canvassed officers

pipet: ara te pele Tobacco and personnel in that agency on

Service, Savariv ¥..0.8., the possibility of the use of

and eae y electronic surveillance in the

supra at ‘ investigation of appellants; or

erly did not n the alternative; b) to submit

po ogg a pa the owes tomprehen- responsive affidavits under 18

read Tierney € used by the district court USC 3504 from an officer in the

sive proc ae did state that "the compre- Department of Justice who has

in rene: ce tuce followed in Tierney is knowledge of the investigations

hensive : en elxoumacances serait” cf appellants and who is able to

preferable w S., supra at 744. The failure canvass each agency involved on

Bevery tF' subsequent cases to require the possibility of the use of

° e ae sive procedure utilized in electronic surveillance in the

wiauie aa ba due to the fact that the investigation of appellants; and

Court did not determine the claims in 2. To produce said affiant

ubsequent cases to be substantial. . P

s S., supra, U.S. v. Stevens, or affiants, as the case may be,

Bevery gg Mee ts 536 F.2d 279 (5th to be available fro cross-

supra, Sets ag ES supra. ' examination by appellants/

Cir. 1976), U.S. v. intervenors of the respective

The Court in U.S. v. Alter, supra at 1027 affidavit or affidavits; and

supra, as a

n.19 looked eee ae will 3. To produce officers of the

possible e meaningful opportunity to Department of Justice, including,

be given the titled to test its legal but not limited to, the Federal

which he is en > pc paral Bureau of Investigation and the

and factual sufficiency. Internal Revenue Service for a

the procedure | continued hearing on a 3504 claim

Pet errr se Sangh lente’ Brief" in expanded to cover electronic

requested in t of Appeals for the Fifth | Surveillance of appellants'

Se ie cin ke Teakeriahie response to a counsel and electronic surveillance

erga Apa gery cee since March 21, 1978, the date of

subs .

the district court I.R.Ss. summons

enforcement hearing.

1. Either: a) to submit re-

: 8 USC Petitioners also request that after

mo gg ie Nee nae dn icaeed in the Court has defined a substantial response

aoe bauodee sceion aa’ Sepekinete to a substantial 18 USC §3504(a) (1) claim,

the geen who has knowledge that it reverse the order of the district

pe Gr < aed ation of intervenors court enforcing the Internal Revenue

wa the uke’ ae otaceieaic surveil- Service administrative summonses compelling

20 21

tion of titioners/intervenors'

Sack Saeal (A-6 tT; or in the alternative,

grant a reversal and remand of the district

court's order with instructions to order

the government to produce a substantial

response to petitioners/intervenors’ 18

USC §3504(a) (1) claim, as defined by me

Court, giving petitioners the opportunity

to cross-examine affiants.

. IN ORDER TO EFFECTUATE THE INTENT OF

CONGRESS AND THE DEPARTMENT OF JUSTICE IN

ENACTING TITLE 18, UNITED STATES CODE,

SECTION 3504 (a) (1), THE COURT MUST REQUIRE

THE GOVERNMENT TO MEET ITS BURDEN UNDER

18 USC §3504 (a) (1) TO "AFFIRM OR DENY

UNLAWFUL ELECTRONIC SURVEILLANCE WITH A

MEANINGFUL AND UNEQUIVOCAL RESPONSE

AFTER MAKING A THOROUGH SEARCH OF ITS FILES,

WHEN A SUBSTANTIAL CLAIM OF UNLAWFUL

ELECTRONIC SURVEILLANCE IS MADE.

In citing the Senate Report on 18

USC §3504, this Court in Gelbard V. U.S.,

408 US 41 (1972) pointed out that 18

usc §3504 (a) (1) was added to sections

3504 (a) (2) and (a) (3) at the suggestion

of the Department of Justice to codify the

then current policy of the Department of

Justice of searching Government files for.

information about wiretaps and eavesdropping

even in cases where no motion had been

filed.

Subsection (a) (1) was added at the

suggestion of the Department of

Justice. At that time the Department

followed a practice of searching

Government files for information

about wiretaps and eavesdropping.

22

The Department advised the Senate

Judiciary Committee that while it

had been "conduct (ing) such examinations

as a matter of policy even in cases

where no motion ha(d) been filed...

defendants should be assured such

an examination by a specific

requirement of law rather than

hav(ing) to rely upon the continued

viability of a current policy."

Id., at 553. The Senate report on

§3504 explained that "since [subsection

(a) (1)] requires a pending claim as

a predicate to disclosure, it sets

aside the present wasteful practice

of the Department of Justice in

searching files without a motion

from a defendant." S.Rep.No. 91-617,

Pp. 154 (1969) Gelbard, Supra at 56.

Existing Department of Justice policy

was codified in §3504 (a)(1) in order to

insure victims of wiretapping of a

continuing Department of Justice policy

and at the same time to set aside the

current wasteful practice of searching

files without a motion from a defendant.

The Department of Justice stated that

“defendants should be assured such an

examination by a specific requirement of

law". S.Rep. No. 91-617, p. 154 (1969).

Enacting §3504 (a) (1) in place of current

Department of Justice policy was not done

to reduce the significance of the practice

nor to provide less protection by the

Statute than available by the Department

of Justice policy. ‘It was enacted to

ensure more protection for victims of

wiretapping by requiring the search be

made pursuant to statute.

23

If § 3504 (a) (1) was intended by the

Department of Justice and the Senate to

be a codification of a current practice,

then it follows that the government's

denial in response to a §3504 (a) (1)

claim should at least be as inclusive

as the search which the government performed

under its earlier practice.

The government searched its files

before the enactment of §3504 (a) (1) and

should be required to search its files

now in response to all §3504 (a) (1) claims.

This is not a hardship on the Department of

Justice-- in fact, as a result of the

enactment of §3504(a)(1) the Department of

Justice has less of a workload now because

it no longer searches its files for

wiretapping and eavesdropping in the

absence of a motion. It now has more

time to make thorough searches than under

its previous policy because it has fewer

searches to make.

The Department of Justice should not

be permitted to render §3504(a) (1)

meaningless by its ambiguous general

denials when this statute was enacted at

its suggestion, so that "defendants should

be assured such examination by a specific

requirement of law." Ibid.

Also, Gelbard v. U.S., supra at 56

cites the Hearings before the Subcommittee

No. 5 of the House Committee on the

Judiciary on S.30 et al., 9lst Cong.,

2d Sess. 84, 104 (1970) to illustrate that ,

§3504 (a) (1) was also supported by the House

"on the ground that it would be beneficial

to the victims of illegal interceptions."

24

Senator Mc Clellan, for example, w

testified before the House ik coiatetae.

indicated that subsection (a) (1)

places upon the Government an

affirmative duty to answer a claim

that evidence is inadmissible because

of unlawful investigative conduct."

The first requirement (of §3504),

that the Government admit or deny the

occurrence of the alleged invasion

of the defendant's rights, actually

places or codifies a burden upon the

Government, rather than the defendant."

Hearings before Subcommittee No. 5

of the House Committee on the Judiciary

on S.30 et al., 91st Cong., 2d

Sess. 84,104 (1970) Gelbard, supra at 56.

The Hearings before the House

Subcommittee indicate that §3504 (a) (1) Y

codifies the burden of the government to

admit or deny the occurrence of the alleged

invasion of the defendant's rights". Ibid.

In order to give 18 USC §3504 (a) (1)

meaning this Court must insist that the

Department of Justice meet its burden to

affirm or deny" unlawful electronic

Surveillance by just as effective a search

of its files as it made before th

Sf Shae RTA. e enactment

25

ry) ee

CONCLUSION

It is respectfully submit:ted that

this petition for certiorari should be

granted in order to resolve the conflict

between the U.S. Courts of Appeals on

the nature and the degree of response

required to be made by the government

following a substantial 18 USC § 3504 claim

of unlawful electronic surveillance.

Also, the Supreme Court should grant

this petition in the interest of according

petitioners the due process which they were

denied at their Show Cause hearing on

March 21, 1978. When an 18 USC §3504

proponent makes a substantial claim the

proponent should be allowed to cross-

examine the officers who submit responsive

affidavits, after notice and sufficient

time to prepare for a hearing.

Granting petitioners a hearing on

their 18 USC §3504 claim will not place

a heavy burden on the government and will

not prejudice their investigation. The

records which the government is seeking

will remain in the hands of the third-

party recordkeeper and there is no danger

of their being destroyed. Had the govern-

ment responded adequately at the time that

the 18 USC §3504 claim was made, there

would have been no delay, no appeal and

this petition for writ of certiorari would

not have been necessary. The government

should not be permitted to violate petition-

ers right to due process, especially since

it was at their request that Congress

enacted 18 USC §3504.

26

Respectfully submitted,

John Joseph Matonis

Counsel for the Petitioners

225 Broadway, Suite 1800

San Diego, Calif. 92101

Telephone: 213/967-7060

January 30, 1979

CERTIFICATE OF SERVICE

I certify that on the 30th day of

January, 1979, I served by U.S. Mail,

postage prepaid, three copies of the

foregoing petition upon the Solicitor

General, Department of Justice, Washington,

D.C., 20530, three copies on Gilbert E.

Andrews, Esq., Chief, Appellate Section,

Tax Division, United States Department of

Justice, Washington, D.C. 20530, counsel

for respondent, and 3 copy of the fore-

going petition to F. Hartselle Baker, Esq.,

Hillcrest Plaza, Suite 202, 1516 East

Hillcrest, Orlando, Florida 32803, counsel

for respondent Landmark Bank of Orlando.

John Joseph Matonis

27

APPENDIX

United States Court af Appeals

FIFTH CIRCUIT

ARD W. WADSWORTH OFFICE OF THE CLERK 000 Camp STREET

camer NEW ORLEANS. LA. 701380

December 28, 1978

2D ALL COUNSEL AND THE DISTRICT CLERE:

So. 78-1838 - U.S.A. & J. RICHARD HOOKS, ETC. v. LANDMARK BANK

OF ORLANDO, ET AL.

MANDATE RECALLED AND STAYED TO AND INCLUDING February 1, 1979

(SEE ORDER ENCLOSED)

Dear Counsel:

The court has this day granted the recall and stay of the mandate

to the date shown above. If during the period of the stay there

is filed with the clerk of this court a notice from the clerk of

the Sayeed Court Shatciapanrts aieckee aeaeloes Moker ten

filed a petitions for the wett in that court, the stay shall con-

tinue umtil final disposition by the Supreme Court. Upon the fil-

ing of a copy of an order of the Supreme Court denying the petitioa

po we = th ea as the mandate shall issue immediately under

5] e

Under revised Rule 21(1) of the Supreme Court effective July 1,

1970, a record is no longer required in connection with an appli-

cation for writ of certiorari, and therefore will not be routinely

prepared by this office (385i *35802).

A copy of the opinioa, judgment and denial of rehearing are still

required by the Supreme Court to be incorporated as an appendix to

your petition. Enclosed are copies of the said documents which

have bees entered in this cause.

By copy of this letter to the clerk of the District Court, ve

request that he return the opinion and judgment issued as mandate

om December 14, 1978

Very truly yours,

EDWARD W. WADSWORTH, Clerk

aaa a

John Joseph misents

M. Carr Ferguson

F. Hartsell Baker

George L. Hastings, Jr.

Wesley R. Thies, Clerk

United States Court of Appeals

FOR THE FIFTH CIRCUIT

No. 78-1838

D. C. Docket No. CA78-74-Orl-Civ-R

UNITED STATES OF AMERICA and J. RICHARD HOOKS,

Special Ageny, Internal Revenue Service,

Petitioners-Appellees,

versus

LANDMARK BANK OF ORLANDO,

Respondent,

ERNST O. MOENCKMEIER and JEANENE MOENCKMEIER,

Intervenors~-Appellants.

Appeal from the United States District Court for the

Middle District of Florida

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Middle District

of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered and adjudged

by this Court that the judgment of the said District Court in this

cause be, and the same is hereby, affirmed;

It is further ordered that appellants pay to appellees the

costs on appeal to be taxed by the Clerk of this Court.

November 13, 1978

Issued As Mandate: EI; 14 19/1:

Atited States Court of Appeals

FIFTH CIRCUIT

TEL 804-689-4514

EDWARD W. WADSWORTH OFFICE OF THE CLERK 600 CAMP STREET

Lane NEW ORLEANS, LA. 70136

December 7, 1978

TO ALL PARTIES LISTED BELOW:

NO. 78-1838 - U.S.A. & J, RICHARD HOOKS v.

LANDMARK BANK OF ORLANDO, ERNEST O.

MOENCKMEIER & JEANNE MOENCKMEIER

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing, and

no member of the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition( ) for rehearing

en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate,

Very truly yours,

EDWARD W. WADSWORTH, Clerk

cc: Mr. John Joseph Matonis

Messrs. Kendell W. Wherry

M,. Carr Ferguson

Gilbert E, Andrews

Mr. F, Hartselle Baker

Ms. Ann Belanger Durney

Mr. George L. Hastings, Jr.

a

.

‘

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT 00 NOT

No. 78-1838

PUBLISH

UNITED STATES OF AMERICA and

J. RICHARD HOOKS, Special Agent,

Internal Revenue Service,

versus

LANDMARK BANK OF ORLANDO,

ERNST O. MOENCKMEIER and

JEANENE MOENCKMEIER,

Petitioners-Appellees,

Respondent,

Intervenors~-Appellants.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

' QRLANDO DIVISION

UNITED STATES OF AMERICA

and J. RICHARD HOOKS,

Special Agent, Internal

Revenue Service,

Petitioners,

vs. No. 78-74-0rl-Civ-R

Appeal from the United States District Court for the

Middle District of Florida

(NOVEMBER 13, 1978)

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

Affirmed on the basis of the Findings of Fact and

Conclusions of Law of District Judge John A. Reed, Jr. dated

March 22, 1978.

AFFIRMED.

Respondent. F | ,ED

ERNST ©. MOENCKMEIER and ORLANDO, FLA. WW

JEAMENE MOENCKMETER ; nea wre te

~shepeaitadl WESLEY R. THIES

CLERK

ORDER

This cause came on for consideration without

oral argument on the following motion filed by Intervenors

and thereon, it is

Motion to Vacate or to Alter and Amend Order etc.

Filing Date: 24 March 1978. ;

Disposition: Denied. Neither the Motion to Vacate

nor the affidavits filed in support thereof present the

court with any additional evidence that the telephones

of the Intervenors are in anywise interfered with by an

agency of the federal government. The affidavits, there-

fore, present no new evidence requiring a reconsideration

of the government ' s petition to enforce the Internal Revenue

Service summons.

DONE AND ORDERED ‘in Chambers at Orlando, Florida,

: len G Heed. h-

A- 5 (FOR. Gees. £. 76-1608 ERE

this Sth day of April, 1978.

UNITED STATES DISTRICT CouRT

MIDDLE DISTRICT CF FLORIDA

ORLANDO DIVISION

Petitioners,

vs. | Ne. 78=74-081-Civ-R

LANDMARK BANK OF ORLANDO,

| Respondent,

ae FILED

ERNST ©.

pannel erat and — 0

* tat a MAR 221978

/ WESLEY R. THIES

CLERK

ORDER

This cause having come on for hearing and all

parties naving adduced evidence and the questions presented

having been fully argued to the court, the court makes the

following findings and conclusions:

Findings of Pact

1. The court finds as a fact that the documents

summoned from the Landmark Bank of Orlando are relevant to

the investigation of the income tax liabilities of Ernst 0.

Moenckmeier and Jeanene Moenckmaier for the tax years 1974,

1975 and 1976.

2. The court further finds that the Moenckzeiers

have made a substantial claim of unlawful electronic sur-

veillance pursuant to Title 18, United States Code, Section

3804.

FPA. womens. &. 7 0-15 CU- 8800

ee cael

P-O34-8

3. The court finds that the United States has

made an adequate response in the form of affidavits sub-

mitted as Govermment Exhibits 1, 2 and 3, which affidavits

specifically deny that any wiretaps were conducted by the

Internal Revenue Service or by the Customs Service and

this. information was specifically supported by the testi-

mony of J. Richard Hooks, Special Agent of the Internal

Revenue Service, denying the use of any electronic surveil-

lance. That Government Exhibits 1, 2 and 3 cover the

relevant sovermmaent agencies is shown by the testimony of

the Intervenors as well as their Exhibits 4 and 5. The

evidence reveals no agency of government except the Internal

Revenue Service and the U.S. Customs Service to be inves-

tigating the Intervenors.

4. The court further finds that the government

learned of the possible existence of the records at the

Landmark Bank of Orlande through visual rather than elec-

tronic surveillance.

5S. The court finds that the Internal Revenue

Service does not have the documents for which the summonses

were issued.

Conclusions of Law

lL. The court concludes as a matter of law that

the summonses issued to the Landmark Bank of Orlando were

issued for a proper purpose and the required administrative

steps were followed.

e2-

A-7

774. deme. 8-7 4-1909- $008

‘

—

2. Jeanene Moenckmeier and Ernst 0. Moenckmeier

are entitled to intervene in these proceedings.

§ 7609.

26 U.S.C.A.

3. The summonses in dispute are hereby ordered

enforced with compliance to be completed within twenty days

from the entry of this order, unless a notice of appeal is

filed herein within that time, in which event this order

will be stayed during the pendency of the appeal. Ouring

that time the Respondent Sank shall preserve all records

described in the summonses.

4. The court specifically reserves ruling on

the allowance of costs to the Respondent Bank for the

reproduction of the summoned records until after full ccm-

pliance, at which time the Bank shall make application for

the allowance of casts and the United States shall have

ten days to respond thereto.

Ss. Precedent relied on by the court includes

United States v. Greenleaf, CAS, 1977, 546 F.2d 123, 126

and In re Millow, CA2, 1975, $29 #¥.2d 770.

DONE AND ORDERED in Chambers at Orlando, Flicrida,

this 22nd day of March, 1978.

OCPeec/ L-

‘STATS OF NEW JERSEY :

APFIODAVIT

COUNTY OF ESSzx t

. RICHARD L. PRIEDCMAN, of full age, being duly sworn

according to law upon his cath, deposes and says:

Le rt am an Assistant Unitad States attomey for the

District of New Jersey.

2. As part of ay duties I investigated and handled civil

and criminal litigation relating to activities of E=nest 0.

“Mcenckzneier, Jeanne Moenciceiar, Spect=c Feeds Corporaticn, etc.

These matters, which relate to the manufaccure and distribution

of laetrile, were ‘handled by the Food and Orug Administration

(Newark, N.J.) under my supervision from on or about Octcher

1976 tc on or about March 1977. To the best cf my knowledge

during the above time and until today's date there has been

no electronic susveillance cr wire tapping in. connection with

easen ey, ‘

fn ree yg ll U.s. Attoraey

Swern and Subscribed

to before me this 16th

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

SPECIAL AGENT . PETITIONERS,

INTERNAL REVENUE SERVICE

vs. No. 78=-74-ORL-CIV-2

LANDMARK BANK OF ORLANDO

RESPONDENT

"A a & 5

I, NELSON H. PATNAUDE, of full age being dul ;

according to law hereby depose and say: ats peu

le © am a Special agent employed by che [naternal

Revenue Servica, Intelligence Division, Newark, New Jersey

and have been so employed since 1961.

2. Since ay involvement with the Tatalligence

Division inves:igations relating to JEANENE MOENCXMEIER and

ERNST MOENCXME=ER I have no knowledge of any wire taps having

been used in these investigations.

se ye

aS

By: He >

Special Agenc

Tacalligence Division

Newark,District Director's Office

Taternal Revenue Service

Sworn and subscri b to

befure.azpn this day

of » 1978

1 : . ap

Pigs wie (0) [aateue

NOTARY PUBLIC OF NEW JERSEX2

My Commission Expires: 79

40

A-10

RECEIVES ot

U. S ATTORNEY

MIDOLE DISTRICT OF FLORIOA

UNITED STATES DISTRICT COURT

MIDOLE UISTRICT OF FLORIDA MAR 2G 1978

- -_ _ -_ - -_ - = -_ _ 7 - _ 7 _ - 7 - all %

Uniced States of America : ORLANDO

Plaincice

A€fidavic

Ve.

Ernsc and Jeanene Moenckmetear

Defendancs. :

“-“—<“2e2 ee ee eo we wee eee we eve X

STATE OF NEW YORK

COUNTY OF NEW YORK sa.:

JOHN [.. RENNISH being duly sworn deposes and savy chic:

L) . C am a special agence in che United Scaces Customs Service,

Departmenc of che Treasury.

2) I am currencly case agence assigned to invescigace possisile

vivlacions of Cuscoms Laws wherein Ernsc and Jeanene Mounckmeter are

che cargec vf che invescigacion.

3) During che course of chis invuscigacion © have never used aor

do Tt know of any ocher officer of che Uniced Stace» Customs Service

using eleccronic eavesdropping cechniques ia obtaining evidence againse

Ernsc and Jeanene Moenckmuier or any possible cuo-conspiracer.

/

. ‘

! ‘ ‘

’

‘jOHN L. RENNISA

Sworn co before mu chis 17th

day of Murch, 1978.

HARVEY BARRISON

NOTARY PUBLIC, State af New York

Re, 100173380

Quatified im Nasscu County

Comemanen Lepires Mareh 10, 1) 29 39

A-1l