Petition — Andrews v. United States

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Supreme Court U3,

| FILED

APR-R4 1979

In the Supreme Co aN RODAK, JRug CLERK

OF THE

United States

Octoser TERM, 1978

wo 68-1624

Searcy Baker ANDREWS,

Cares Masao JOHNSON,

Petitioners,

Vs.

Unrrep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Ninth Circuit

Marcus S. Tore.

Pavuu D. Wor

360 Pine Street

Penthouse Suite

San Francisco, CA 94104

Telephone: (415) 421-6140

Attorneys for Petitioners

William Osterhoudt

1632 Union St

A 94123

SOWNE-PERNAU WALS San Francisco, C

—

Te ccs

sre eer rere on

re Oe cre ee ee ee , eae. NS

Questions presented for review ...................60000005.

Constitutional and statutory provisions .....................

ESE SS ne a Oe ee

The court below erred in failing to find that the Fourth

Amendment and 18 U.S.C. § 2510 et seq. require a sufficient

showing of probable cause be set forth as to petitioner

Andrews prior to the issuance of wiretap orders which re-

sulted in interception of his conversations ...............

The court below erred in finding that the requisite necessity

Ill

The court below erred in ——s that the minimization re-

quirement of 18 U.S.C. § 2518(5) was satisfied ...........

NE EB ys a ek OE ip Sot AA en 2G

TABLE OF AUTHORITIES CITED

Cases

Berger v. New York, 388 U.S. 41 (1967) .................. 13

United States v. Abascal, 564 F.2d 821 (9th Cir. 1977) cert.

den. sub nom. Frakes v. United States, ... U.S. ..., 98

S.Ct. 1521, and ... U.S. ...., 98 S.Ct. 1583 (1978) ........ 4

United States v. Curreri, 388 F.Supp. 607 (D. Md. 1974) ...._ 18

United States v. Damitz, 495 F.2d 50 (9th Cir. 1974) ...... 19

United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658 (1977 } i

United States v. Giordano, 416 U.S. 505 (1974) ............14,20

United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975) ... .16, 18

United States v. Kerrigan, 514 F.2d 35 (9th Cir.), cert. denied,

Sy Ue MM got feces, C04 blanc we tec ens ck arcs 16

Wong Sun v. United States, 371 U.S. 471 (1963) ........... 16

Constitutions

United States Constitution, Fourth Amendment ... .2, 12,17, 14,15

Rules

Federal Rules of Criminal Procedure, Rule 23(c) ........... 7

Statutes

Bp Was I 5.55 oink i vevsc cn ctveneats 2, 10, 12

I Se, 5 WE Oe ee A diy cing ving 354 as ba aie 2

I eo ek oT ae eae nd a 3

Se Po, eee ees rt, Ta. 13

i a SRR, So SCO Se 2 14

Section 2518(1 tP} Fok Caer ata ace te ooo ale 13

Section 2518(1)(b)(iv) .............. RP ORS 14

Section 2518(1(c) ..... Kpdelwae tuees hceaniale 2, 16, 20

a ke ERE odes ie ae aes 14

Section 2518(3 {2 ee Caled Dae hana 13, 14

I noes bso /sCh os een ce cea ee 2, 16, 20

Section 2518(3 is DR Pe ee eer ety re nk 14

ooo o's. win'd vba ba x « Mace sata ORS 13, 14

Es a sss rca cu kl a bd Saree Cu 2, 20, 21

DE Ue IE 5 vk cee crecrccceescrvsncccens 6

US cd sin igs y orks bo aw ds kaw 6

oe os ee oon tee 6

Be Sie WI IEE ih bids nc s edd wis a bs bdo ea wuscaae 2

Other Authorities

2 U.S. Code Cong. & Admin. News, 2112 (1968) ............ 13

eres — eed

In the Supreme Court

OF THE

United States

OctoBer TERM, 1978

No.

Searcy Baker ANDREWS, .

Cartes Masao JOHNSON,

Petttioners,

vs.

Unrtep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Ninth Circuit

The petitioners, Searcy Baker Andrews and Charles

Masao Johnson, respectfully pray that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit, entered

March 26, 1979.

OPINION BELOW

The Court of Appeals entered its opinion on March 26,

1979. A copy of the opinion affirming the judgments of con-

viction is attached as Appendix A.

JURISDICTION

Jurisdiction of this Court is invoked under Title 28,

United States Code, Section 1254(1). —

QUESTIONS PRESENTED FOR REVIEW

(1) Did the Court below err in failing to find that the

Fourth Amendment and 18 U.S.C. § 2510 et seq. require a

sufficient showing of probable cause be set forth prior to

issuance of the wiretap orders? |

(2) Did the Court below err in finding that the requisite .

necessity requirements of 18 U.S.C. §¢ 2518(1)(¢) and (3)

(ce) were satisfied ?

(3) Did the Court below err in finding that the minimi-

zation requirement of 18 U.S.C. § 2518(5) was satisfied?

CONSTITUTIONAL AND STATUTORY PROVISIONS

United States Constitution, Fourth Amendment:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly describ-

ing the place to be searched, and the persons or things

to be seized.

18 U.S.C. § 2515:

Prohibition of use as evidence of intercepted wire or

oral communications.

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communi-

cation and no evidence derived therefrom may be re-

ceived in evidence in any trial, hearing, or other

proceeding in or before any court, grand jury, depart-

ment, officer, agency, regulatory body, legislative com-

———

mittee, or other authority of the United States, a State,

or a political subdivision thereof if the disclosure of

that information would be in violation of this chapter.

18 U.S.C. § 2518:

Procedure for interception of wire or oral communi-

cations.

(1) Each application for an order authorizing or ap-

proving the interception of a wire or oral communica-

tion shall be made in writing upon oath or affirmation

to a judge of competent jurisdiction and shall state the

applicant’s authority to make such application. Each

application shall include the following information:

(b) a full and complete statement of the facts and

circumstances relied upon by the applicant, to justify

his belief that an order should be issued, including

(i) details as to the particular offense that has been,

is being, or is about to be committed, (ii) a particular

description of the nature and location of the facilities

from which or the place where the communication is

to be intercepted, (iii) a particular description of the

type of communications sought to be intercepted, (iv)

the identity of the person, if known, committing the

offense and whose communications are to be inter-

cepted ;

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;

(3) Upon such application the judge may enter an

ex parte order, as requested or as modified, author-

izing or approving interception of wire or oral com-

munications within the territorial jurisdiction of the

court in which the judge is sitting, if the judge deter-

mines on the basis of the facts submitted by the ap-

plicant that—

(a) there is probable cause for belief that an indi-

vidual is committing, has committed or is about to com-

mit a particular offense enumerated in section 2516

of this chapter; .

and have failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous;

(d) there is probable cause for belief that the facili-

ties from which, or the place where, the wire or oral

communications are to be intercepted are being used,

or are about to be used, in connection with the com-

mission of such offense, or are leased to, listed in the

name of, or commonly used by such person.

(4) Each order authorizing or approving the inter-

ception of any wire or oral communication shall

specify— 2

(a) the identity of the person, if known, whose com-

munications are to be intercepted;

(5) No order entered under this section may au-

thorize or approve the interception of any wire or oral

communication for any period longer than is necessary

to achieve the objective of the authorization, nor in any

event longer than thirty days. Extensions of an order

may be granted, but only upon application for an ex-

tension made in accordance with subsection (1) of this

section and the court making the findings required by

subsection (3) of this section. The period of extension

shall be no longer than the authorizing judge deems

necessary to achieve the purposes for which it was

granted and in no event for longer than thirty days.

Every order and extension thereof shall contain a pro-

vision that the authorization to intercept shall be exe-

cuted as soon as practicable, shall be conducted in such

a way as to minimize the interception of communica-

tions not otherwise subject to interception under this

chapter, and must terminate upon attainment of the

authorized objective, or in any event in thirty days.

(10)(a) Any aggrieved person in any trial, hearing,

or proceeding in or before any court, department, offi-

cer, agency, regulatory body, or other authority of the

United States, a State, or a political subdivision

thereof, may move to suppress the contents of any in-

tercepted wire or oral communication, or evidence de-

rived therefrom, on the grounds that—

(i) the communication was unlawfully inter-

cepted ;

STATEMENT OF THE CASE

A. Course of Proceedings

Beginning in August, 1975, and continuing through No-

vember, 1975, Respondent sought and obtained authoriza-

tion to conduct a series of five wiretaps on telephones

located in three different residences. These wiretaps were

directed first to telephones used by Robert Earl Andrews,

then telephones used by petitioner Charles Johnson, and

finally the telephone used by petitioner Searcy Baker

Andrews. On November 30, 1975, both petitioners were

arrested pursuant to warrants based upon information re-

ceived during the course of the wiretaps.

On December. 18, 1975, the Grand Jury for the Northern

District of California returned an indictment against both

petitioners and 18 co-defendants. Petitioner Andrews was

charged in Count 1 with conspiracy to possess with intent

to distribute heroin and cocaine and to distribute heroin

and cocaine (Title 21, U.S.C. 846). Counts 13, 18 and 24

charged petitioner Andrews with the use of a telephone

to facilitate the conspiracy (Title 21, U.S.C. §843(b)).

Count 33 charged that petitioner Andrews possessed co-

caine in violation of Title 21 U.S.C. 841(a)(1) (CT 3-20).*

Petitioner Charles Johnson was charged with conspiracy

in Count 1 and with use of a telephone to facilitate a con-

spiracy in Counts 12, 20, and 21 (CT 3-20).

‘The evidence presented to the Grand Jury consisted

mainly of testimony regarding the contents of intercepted

conversations, surveillance resulting from the intercepts,

and the fruits of searches and seizures pursuant to war-

rants obtained based upon information derived from the

wiretaps. Various motions to suppress were filed (CT 906-

937, 951-957, 998-1011, 1032-1037, 1140-1145, 1237-1247) and

heard by the district court in evidentiary hearings begin-

ning June 1, 1976 (RT 1-929). The district court’s order

denying motions to suppress was filed on June 17, 1976

(CT 1113-1120). Another court order denying further wire-

tap motions and search and seizure motions was filed Sep-

tember 14, 1976 (CT 1170-1175).

* Abbreviation Code:

CT—Clerk’s Transcript on ——

RT—Reporter’s Transcript of Pretrial Hearings

Stipulations, saving all objections to admissibility re-

garding the evidence.obtained from the wire intercepts of

petitioners Andrews and Johnson were filed on September

30, 1976 (CT 1252-1261, 1299-1351). A court trial held on

September 30, and October 5, 1976—pursuant to Rule 23(c)

of the Federal Rules of Criminal Procedure—on a set of

stipulated facts accompanied by government exhibits (CT

1352 and CT 1353). The vast majority of these exhibits

were transcripts of various defendants’ telephone conver-

sations. The stipulations further laid foundations for the

wiretap transcripts and set out the results of government

surveillance of defendants.

On December 2, 1976, the court found petitioner Andrews

guilty on all counts (CT 1560). On December 2, 1976, judg-

ment and sentence was imposed for Searcy Baker Andrews

of twelve (12) years, $25,000 fine and a special parole of

five (5) years as to Count 1, four (4) years each as to

Counts 13, 18, 24; twelve (12) years and a special parole

term of five (5) years as to Count 33 (CT 1560). The sen-

tences of imprisonment as to counts thirteen (13), eighteen

(18) and twenty-four (24) were made to run consecutive

to each other and concurrent with counts one (1) and thirty-

three (33) of the indictment, and the sentence imposed on

count thirty-three (33) of the indictment was to run con-

current with the sentence of imprisonment imposed on

Count 1 (CT 1561).

On December 2, 1976, the court entered judgments of

conviction as to petitioner Charles Johnson on all counts.

Sentence was imposed for Charles Johnson of eight (8)

years, and a special parole of five (5) years as to Count 1

and four (4) years each as to Counts 12, 20, and 21. The

sentences of imprisonment as to Counts 12, 20 and 21 were

made to run concurrent with each other and concurrent

with the sentence of imprisonment of Count 1 of the in-

dictment.

A timely notice of appeal was filed on December 2, 1976

(CT 1573). The Ninth Cireuit Court of Appeals affirmed

the judgments of conviction of both petitioners on March

26, 1979. (See Appendix A.)

B. Statement of Relevant Facts

In 1975 the Federal Drug Enforcement Administration

began an investigation into possible narcotic trafficking by

one Robert Earl Andrews and others—including petitioners

Searcy Baker Andrews and Charles Johnson. The agents

learned of the trafficking initially from an informant (CT

85) (RT 224). The informant was, throughout the dura-

tion of the investigation, the mistress of Robert Earl

Andrews (RT 225). Some physical surveillance of Robert

Earl Andrews, and at least one attempted “buy” from

Robert Earl Andrews by an undercover agent, occurred

prior to August, 1975.

Beginning in early August, 1975, the respondent sought

and received authorization to conduct a series of wiretaps.

(See, e.g., CT 37, 38). The first two wiretaps were on

phones located in Robert Earl Andrews’ residence (CT 37).

The third and fourth taps were on phones located in peti-

tioner Charles Johnson’s residence. The fifth and final tap

was on a phone located in petitioner Searcy Baker An-

drews’ residence (CT 38). Each application for a wiretap

was accompanied by an affidavit of Drug Enforcement Ad-

ministration Agent Kenneth Wallace, who was the case

agent. (See, e.g., CT 83-97, 99-104, 106-122, 123-135, 137-

150.) Each succeeding wiretap was based.on information

learned from the preceding wiretaps. Each of the subse-

quent applications incorporated the affidavits supporting

the preceding wiretaps.

The wiretaps ran for 74 days over a four month period.

The first tap commenced August 18, 1975, and terminated

August 25. The second tap commenced August 28, 1975 and

terminated September 6, 1975. The third tap commenced

September 30, 1975 and terminated October 17, 1975. The

fourth tap commenced October 17, 1975 and terminated

November 6, 1975. The fifth and final tap commenced No-

vember 11, 1975 and terminated November 30, 1975.

Petitioner Searcy Baker Andrews was named as a person

whose conversations were likely to be intercepted in all

but the first wiretap (CT 84, 100, 107, 124, 138). His con-

versations were intercepted in all of the wiretaps. Drug

related conversations of petitioner Searcy Baker Andrews

were intercepted in the third, fourth and fifth wiretaps (CT

106-150, 1203-1209, 12’ v-1275). In the affidavit for the third

wiretap the government falsely attributed a drug related

conversation to petitioner Searcy Baker Andrews (CT 112).

Drug related conversations of petitioner Charles Johnson

were also intercepted in all the wiretaps.

Numerous agents participated in the wiretapping and

attendant surveillance. Logs of calls and tape recordings

were made (CT 1251-1291). .

As a result of evidence derived from the wiretaps the

government secured arrest warrants for both petitioners

and arrested them on November 30, 1975.

REASONS FOR GRANTING THE WRIT

THE COURT BELOW ERRED IN FAILING TO FIND

THAT THE FOURTH AMENDMENT AND 18 U.S.C.

§ 2510 ET SEQ. REQUIRE A SUFFICIENT SHOWING

OF PROBABLE CAUSE BE SET FORTH AS TO

PETITIONER ANDREWS PRIOR TO THE ISSUANCE

OF WIRETAP ORDERS WHICH RESULTED IN IN-

TERCEPTION OF HIS CONVERSATIONS.

In the August 18, 1975 wiretap application, petitioner

Searcy Baker Andrews was not named as a person likely

to be intercepted (CT 83-97). He was so named in each

of the subsequent wiretap applications. The affidavit sup-

porting the initial wiretap application was incorporated

in the subsequent affidavits for each of the later wiretaps.

The initial affidavit (August 18, 1975) was over fifteen

pages long, and contained detailed information regarding

Robert Earl Andrews’ narcotics dealings. The only infor-

mation regarding petitioner Searcy Baker Andrews is a

single statement attributed to a confidential informant that

sometime in the past (possibly up to April, 1975) Robert

Earl Andrews received his narcotics in part from petitioner

Searcy Baker Andrews (CT 86). No other information

concerning petitioner Andrews is set forth.

The application for the second wiretap named petitioner

Searcy Baker Andrews. The affidavit for the August 28,

1975 wiretap (CT 99-104) incorporated the August 18, 1975

affidavit and stated in pertinent part:

“3. ... (a) There is probable cause to believe that

Robert Earl Andrews and... [Searcy Baker Andrews]

— —E

.. » have been and are now committing offenses in-

volving . . . heroin and cocaine, in violation of Title

21, United States Code, Sections 841(a)(1)...

(b) There is probable cause for belief that wire

communications concerning these offenses will be ob-

tained through the interception ...

4. ... [incorporation of 8/18/75 affidavit]

... In addition, based upon my examination of daily

monitoring logs, listening to intercepted calls, and

discussions with other agents, interceptions thus far

have established that:

(b) That Robert Earl Andrews and [Searcy Baker

Andrews] ... are conducting a narcotics business.

5. That there is probable cause to believe Robert Earl

Andrews and [Searcy Baker Andrews]. . . have used

and are using the [target phone].”

(CT 99-294).

While otherwise setting forth the results of the first

wiretap in detail, no factual assertion is made as to the

specifies which support affiant’s allegations of probable

cause as to petitioner Searcy Baker Andrews. After stating

there is probable cause to believe Searcy Baker Andrews

is committing the enumerated offenses—based on gen-

eralized assertions of listening to unspecified calls, review-

ing logs of unspecified contents, having unspecified conver-

sations with other agents, and giving examples of calls

of other defendants—the affiant concludes:

“WHEREFORE, affiant believes the probable cause

exists to believe Robert Earl Andrews and [petitioner

Searcy Baker Andrews]... have been and are com-

mitting offenses involving ... heroin and cocaine .. .

[and] ... have used and are using and will continue

to use the [target] telephone .. .” (CT 103).

The August 28, 1975 application essentially duplicated

the affidavit and set forth no more than was set forth in

the affidavit. No facts specific to petitioner Searcy Baker

Andrews were stated. The order authorizing the tap was

issued on the basis of:

“. .. Application and order under oath having been

made before me by John Gibbons .. . , and full con-

sideration having been given to the matters set forth

therein, and to the affidavits of Kenneth P. Wallace,

attached thereto, the court finds:

(a) There is probable cause to believe that...

Searcy Baker Andrews... [ete.]”

(CT 738-742).

The affidavit for the third wiretap (September 30, 1975)

incorporates the first affidavit and sets forth a drug related

phone call attributed to petitioner Searcy Baker Andrews

. (CT 112). This phone call was found to be erroneously

attributed to petitioner Searcy Baker Andrews (CT 1117).

The only other information regarding petitioner Searcy

Baker Andrews in this highly detailed affidavit was that

petitioner Searcy Baker Andrews had been seen in the

company of petitioner Charles Johnson, one of the sus-

pected narcotics traffickers (CT 120). No other facts as

to petitioner Searcy Baker Andrews were enumerated.

Again the authorizing judge issued the wiretap order based

upon the sworn affidavits presented to him.

18 U.S.C. § 2510 et seq. was enacted by Congress to make

the Fourth Amendment applicable to electronic sur-

veillance. The inter-relationship between 18 U.S.C.

§$§ 2518(3)(a), 2518(1)(b), and 2518(4)(a) clearly estab-

lishes that Congress intended Title III to impose a require-

ment that the wiretap application contain a factual basis for

establishing probable cause to support the conclusion that

a particular named person is committing a specific offense

and will be intercepted. .

The legislative history of § 2518(a) supports the position

that the statute requires a showing of probable cause as

to each person named, thus reflecting the Fourth Amend-

ment’s constitutional requirement.

“Subparagraph (a) requires that the judge determine

that there is probable cause for belief... [that the

enumerated offense] ... is being, or has been...

committed by a particular person ... With the findings

required by subparagraphs (a) and (b), the order will

link up specific person, specific offense and specific

place. Together they are intended to meet the test of

the Constitution that electronic surveillance techniques

be used only under the most precise and discriminate

circumstances, which fully comply with the require-

ments of particularity.”

2 U.S. Code Cong. & Admin. News, 2112, 2191 (1968) (em-

phasis added).

The Senate Report in turn cited to Berger v. New York,

388 U.S. 41, 58-60 (1967). In Berger, this Court construed

the constitutional sufficiency of a New York wiretap statute

which required, inter alia, “the naming of the person or

persons whose communications . .. are to be overheard. . .”

Berger held the mere naming of persons, while necessary,

was not enough. Jd. at 58-60. The legislative history cita-

tion to this specific portion of Berger supports the reading

of 3(a)’s “individual” to be those persons named in the

order. As to those persons a factual basis supporting prob-

able cause must be shown, since a specific item—a conver-

sation of that particular person—is sought to be seized.

That was not done as to petitioner Andrews in the present

case.

This Court has repeatedly held that the provisions of

Title III must be strictly construed. United States v.

Chavez, 416 U.S. 526 (1974); United States v. Giordano,

416 U.S. 505 (1974). ,

The Court of Appeals, relying upon United States v.

Donovan, 429 U.S. 413 (1977), held Fourth Amendment

requirements were satisfied in the present case by “identi-

fication of the telephone line to be tapped and the particu-

lar conversations to be seized,” and rejected the contention

that probable cause must be stated in the current applica-

tion for each person named therein as a probable converser.

This holding disregards the statutory language in which

the “individual” referred to in § 2518(3)(a) is the person

or persons named in § 2518(1)(b) (iv), (4)(a), and (3)(d).

Not only do §§ (1)(b)(iv), (3)(d) and (4)(a) encompass

§ (3)(a), but also § (3) refers back to the specific factual

showing required in § (1).

Moreover, in United States v. Donovan, supra, this

Court held that § 2518(1)(b)(iv) requires that all persons,

for whom the government has probable cause, be named in

the wiretap order. Jd. 97 S.Ct. at 668. In so holding, this

Court specifically rejected the “principal target” analysis

adopted by the Court of Appeals below. In adopting the

“target” analysis, the court below failed to consider peti-

tioner Andrews’ right not to be overheard on a Title IIT

wiretap unless all of Title III’s requirements as to a person

named in the application—i.e., petitioner Andrews—are

satisfied.

The Court of Appeals policy analysis in support of its

probable cause holding is equally unpersuasive. Reasoning

from Donovan’s requirement that an agency name all per-

sons in its wiretap application for whom a probable cause

showing can be made, the court below concluded that the

agency would be overburdened if it had to make such a

probable cause determination and showing for each person

named. This burden is precisely that which Congress en-

visioned when it enacted the detailed and exacting stand-

ards of Title III. Further, the Court of Appeals apparently

overlooked the fact that a district court judge must review

the wiretap applications—before signing a Title III wire-

tap order—to determine if the probable cause standard has

been met as to each person named. Surely that judicial

officer is capable of assessing correctly the probable cause

showing offered as to each named individual. Thus, con-

trary to the statement of the court below, the investigating

agents are not burdened to any significant extent since they

merely have to make a factual showing to the judge in the

ex parte application. The judge, not the investigating

agency, ultimately decides if probable cause has been es-

tablished as to the named individuals in the application.

This “burden” is precisely that which a judge must hear

repeatedly in assessing probable cause for issuing com-

plaints and in ruling on suppression motions where a prob-

able cause issue is involved.

In failing to recognize that Title III’s protection of pe-

titioner’s Fourth Amendment and statutory privacy rights

were abridged by the absence in the wiretap application

of facts upon which the judge could make the ultimate

probable cause determination with respect to petitioner

Andrews—an individual named in the application—the

court below erred. This Court should grant the petition for

a writ of certiorari to resolve this fundamental question

regarding electronic surveillance.

THE COURT BELOW ERRED IN FINDING THAT THE

REQUISITE NECESSITY REQUIREMENTS OF 18

U.S.C. §§ 2518(1)(c) and (3)(c) WERE SATISFIED.

The requisite necessity requirements of 18 U.S.C. §§ 2518

(1)(c), and (3)(c) are to be given a practical, common-

sense interpretation; wiretap, therefore, need not be re-

sorted to only as a last resort. United States v. Kerrigan,

514 F.2d 35 (9th Cir.), cert. denied, 423 U.S. 924 (1975).

However, before a wiretap authorization can properly issue,

the applicant must, at the very least, make a full factual

showing that other investigative techniques reasonably ap-

pear unlikely to succeed if tried. United States v. Kalustian,

529 F.2d 585 (9th Cir. 1975).

Both petitioners asserted below, and assert here, that

the application in support of the August 18, 1975 wiretap

request was totally deficient under §§ 2518(1)(¢) and (3)

(c). Since all subsequent wiretap orders and evidence de-

rived as the fruits of this deficient application, suppression

of all the evidence from the August 18, 1975 and subse-

quent taps is required. Wong Sun v. United States, 371 US.

471 (1963).

The affidavit in support of the application for the August

18, 1975 wiretap is inadequate because it fails on its face

to establish requisite necessity for a wiretap; it contains

substantial material false statements; it states facts which

militate strongly against a finding of requisite necessity;

and numerous facts known to the Drug Enforcement Ad-

ministration which would nave negated a requisite necessity

finding were omitted from the affidavit.

The application does not contain a detailed and complete

factual statement which establishes why normal investiga-

tive procedures were unlikely to succeed if tried. As pre-

sented to the authorizing court (CT 793-822, 923), the

government’s application makes only a few, vague “fac-

tual” claims, key among which were the assertions that

Robert Earl Andrews did not sell drugs to new customers

who would not use drugs in his presence, and that physical

surveillance would be impossible due to the geographic

make-up of the area and the large number of drug users

who frequented it. The applicant then concludes that “such”

techniques—presumably controlled buys by agents and sur-

veillance—would not show the scope of a conspiracy nor

would they “provide enough evidence” to “arrest, indict,

or convict” the conspirators. No further facts are set forth

to explain the “factual” assertions concerning Robert Earl

Andrews’ mode of operations or illuminating the “unsuc-

cessful” surveillance efforts attempted.

The affidavit is equally deficient. Drug Enforcement Ad-

ministration Agent Wallace stated in the affidavit (CT 96)

that physical surveillance would be impossible, without

providing any facts to support his assertion. Further, the

Wallace affidavit mentions that two informers were un-

willing to testify, but makes no mention of whether or not

the informers have been offered immunity. Furthermore,

the affidavit provides a detailed description of the ease with

which a Drug Enforcement Administration Agent had in

fact met with Robert Andrews in an attempt to purchase

drugs. Since these “factual” allegations are conclusory, in-

ternally inconsistent, and fail to establish why other tech-

niques such as pen registers, consent calls, controlled buys,

ordinary search warrants, informant testimony under im-

munity grants, Drug Enforcement Administration infiltra-

tion, or cooperation with local law enforcement authorities,

would be unsuccessful, the requisite necessity standard

has not been met. See United States v. Curreri, 388 F.

Supp. 607 (D. Md. 1974); United States v. Kalustian, 529

F.2d 585 (9th Cir. 1975).

Furthermore, there were substantial false material rep-

resentations in the affidavit and application that undermine

the requisite necessity showing. Despite statements in the

Wallace affidavit that the informant would not testify, the

evidence adduced at the suppression hearing established

that the informant would testify (CT 793-822; RT 243).

In addition, government investigative reports provided to

the defendants, and testimony of government agents es-

tablished that successful surveillance had been conducted of

Robert Andrews’ Vernon Street apartment when the nar-

cotics trafficking occurred (CT 793-822). The testimony at

the evidentiary hearing also refuted the Wallace affidavit

assertions that Drug Enforcement Administration Agents

were unable to deal in an undercover capacity with Robert

Earl Andrews (CT 793-822). If the Wallace affidavit, there-

fore, is stricken in its entirety, or even stricken only as to the

material misrepresentations, (see United States v. Damitz,

495 F.2d 50 (9th Cir. 1974)), the government’s requisite

necessity showing fails to meet the statutory standards.

Information developed by the defense during pretrial

proceedings (CT 793-822) established that numerous facts

which were relevant to the determination of requisite neces-

sity were known to the Drug Enforcement Administration

as of August 18, 1975, and were omitted in the affidavit.

These omissions misrepresented the true picture of the

Drug Enforcement Administration’s access to normal tech-

niques to investigate the alleged conspiracy.

Wallace omitted the following material information:

(1) that one Mona Lisa Martini lived with Robert Earl

Andrews for over two years; (2) that Martini was Robert

Earl Andrews’ dope-runner and picked up narcotics for

Robert Earl Andrews; (3) that Martini was on the govern-

ment payroll; (4) that Mona Lisa Martini knew virtually all

the persons in this case (CT 793-822); and (5) that Mona

Lisa Martini spoke with these persons over the phone (CT

793-822; RT 223-290). Wallace also failed to inform the

court that in addition to Mona Lisa Martini and one “Dirty

Harry”, other informants with access to Robert Earl An-

drews were known to Drug Enforcement Administration

and not used (CT 793-822). Wallace also suppressed the

fact that the Drug Enforcement Administration failed to

use local and state police resources to investigate the case,

and to develop other investigative leads.

In ruling on the requisite necessity issue, the Court of

Appeals failed to consider the variety of serious deficien-

cies in the government’s requisite necessity showing. Since

the requisite necessity provisions are at the heart of Title

III’s carefully drawn standards, this Court should grant

certiorari in order to articulate clearly what factual show-

ing the respondent must make to satisfy §§ 2518(1)(c) and

(3)(¢).

Ill

THE COURT BELOW ERRED IN FINDING THAT

THE MINIMIZATION REQUIREMENT OF 18 U.S.C.

§ 2518(5) WAS SATISFIED.

The minimization requirement reflects the congressional

intent that wiretapping not supplant traditional investiga-

tive methods. United States v. Giordano, 416 U.S. 505

(1974). The limited use of wiretapping has been mandated

by Congress through the § 2518(5) requirement that the in-

terception of a telephone call be terminated as soon as pos-

sible so that unnecessary intrusion is minimized.

In the present case, the wiretapping lasted 74 days over

a four month period and intercepted 4,000 telephone calls.

While the standard for testing minimization is “reason-

ableness” (see United States v. Chavez, 553 F.2d 491 (9th

Cir.,) cert. denied, 96 S.Ct. 2237 (1976)), reasonableness

must be determined in light of the life of the wiretapping.

United States v. Abascal, 564 F.2d 891 (9th Cir. 1977)

cert. denied sub nom. Frakes v. United States ...... 6 a

98 S.Ct. 1521 and ...... US. ......, 98 S.Ct. 1583 (1978).

Further, the method of minimization (i.e. discontinuance

of interception of innocent calls), must be considered in

assessing § 2518(5) compliance.

Respondent conceded below that by its own count, hun-

dreds of non-drug and non-criminal calls were intercepted.

21.

Further, after the first seven days of wiretapping, respond-

ent had identified no fewer than thirteen people as targeted

conspirators, including both petitioners. Considering that

respondent had already secured the cooperation of a con-

fidential informant (Martini) who resided at the Robert

Andrews’ apartment which was the subject of the wiretap,

it is inconceivable that further wiretapping—at least after

September 7, 1975—was necessary. Thus, at that time or

earlier, the failure to terminate the wiretap ran afoul of

minimization requirements and mandates the suppression

of all evidence derived subsequent to the time—no later

than September 7, 1975—when § 2518(5) required termina-

tion of wiretapping.

In rejecting petitioners’ minimization argument, the

Court of Appeals’ opinion failed to recognize the overall

duration of the wiretaps, and did not consider the quality

of the evidence obtained at an early stage of the wire-

tapping, or the other investigative means available during

the wiretapping. By focusing exclusively on the 37 day

wiretap of petitioner Johnson’s phone, the court below

failed to apply the minimization standards properly. Ac-

cordingly, this Court should grant the petition for a writ of

certiorari to resolve this important electronic surveillance

issue.

CONCLUSION

For the reasons stated herein, the petition for a writ of

certiorari should be granted. - Pn

“Dated: April 18, 1979.

. , Respectfully submitted,

“Marcus S. Toren

Paut D. Wor

By Maxcus S. Toren

Attorneys for Petitioners

(Appendix Follows) .

APPENDIX A

A-l

APPENDIX A

United States Court of Appeals

for the Ninth Circuit

United States of America,

Plaintiff-Appellee,

vs.

Anthony Martin,

Nolan Allen Hall,

Searcy Baker Andrews,

Charles Masao Johnson, a/k/a Chas,

Stephen Bruce Davenport, a/k/a

Steve Davenport,

Lewis Nathaniel Dixon, a/k/a

Baby Boy, B.B.

and Pretty Boy Floyd,

Defendants-Appellants.

[Filed Mar. 26, 1979]

No. 77-1271

No. 77-1272

No. 77-1281

No. 77-1282

No. 77-1338

No. 77-1619

Appeal from the United States District Court

for the Northern District of California

OPINION

Before: WALLACE and HUG, Circuit Judges, and

GRANT", District Judge

HUG, Circuit Judge:

Searcy Baker Andrews, Charles Johnson, Anthony

Martin, Lewis Dixon, Nolan Hall and Stephen Davenport

*Honorable Robert A. Grant, Senior United States District Judge

for the Northern District of Indiana, sitting by designation.

A-2

appeal from their convictions for violations of federal laws

relating to the distribution and possession of illegal drugs.

Defendants Andrews, Johnson, Hall and Martin were

convicted after a two-day trial before the court, the

primary evidence considered by the court being facts

stipulated to by the prosecution and the defense. Defend-

ants Davenport and Dixon were convicted after a jury

trial. All of the convictions arose from the same set of

events, and-the cases have been consolidated on appeal.

Although the appellants challenge their convictions on

numerous grounds, the principal issues presented for re-

view concern the admissibility of evidence abtained through

the use of wiretaps and the requisite elements of the crime

of facilitation of the commission of a felony. We affirm as to

all parties except Davenport. We affirm his conviction for

attempted possession of narcotics, but reverse his convic-

tion for facilitation of the drug conspiracy.

COURSE OF THE PROCEEDINGS

All defendants were charged in one count with conspiracy

to distribute, and to possess with the intent to distribute,

heroin and cocaine, in violation of 21 U.S.C. $846. All

defendants except Davenport were convicted of this charge.

The jury acquitted Davenport of the conspiracy charge,

but convicted him of attempted possession of cocaine or

heroin. :

All defendants were charged in various counts with use

of a telephone to facilitate a conspiracy in violation of

A-3

21 U.S.C. 4 843(b), and each was convicted on one or more

counts arising out of these charges. Except in the case of

Davenport, the sentence imposed on each defendant was

ordered to run concurrently with his sentence for the con-

spiracy conviction. In Davenport’s case, the sentence was

ordered to run concurrently with the sentence for the at-

tempted possession charge.

Andrews was also convicted of the substantive offense

of possession with the intent to distribute cocaine, in vio-

lation of 21 U.S.C. 4 841(a)(1). The sentence imposed was

ordered to run concurrently with the sentence for the con-

spiracy conviction.

Il.

FACTS

In mid-1975, the Drug Enforcement Administration

(DEA) instituted an investigation into what they believed

to be a highly sophisticated drug ring involving some of

the appellants. To facilitate this investigation, in August

of 1975 the DEA sought and received authorization to

conduct a series of wiretaps. The primary basis for the

appeals of the defendants revolves around the validity of

these wiretaps under 18 U.S.C. § 2518, since the most sig-

nificant evidence offered by the government in the prosecu-

tion below was obtained by means of these wiretaps.

The initial wiretap was ordered on August 18, 1975. The

issuing court authorized a wiretap on the phone of Robert

Earl Andrews, a defendant who is not a party to this ap-

peal, authorizing the interception of the conversations of

“Robert Earl Andrews and others as yet unknown”. This

A-4

authorization, although potentially effective for 20 days,

was terminated after seven days, since the phone at the

residence was replaced. On August 28, a new wiretap was

ordered on this phone, naming Robert Andrews and ap-

pellants Searcy Baker Andrews and Charles Johnson as

probable conversers. This wiretap was terminated after

ten days.

On September 30, the issuing judge authorized a tap on

the two phones in Johnson’s residence, this order naming

as probable conversers appellants Johnson and Andrews,

other persons not parties to this appeal and “persons un-

known”. Although initially effective for 20 days, this wire-

tap was renewed after 17 days. A new order was issued

on October 17, renewing the prior wiretap on Johnson’s

phones for another 20 days. This second order named ap-

pellants Johnson, Andrews, Martin and Hall as probable

conversers. The tap was terminated at thé end of 20 days.

On November 11, the issuing judge authorized the wire-

tapping of appellant Andrews’s phone. Named as probable

conversers were Searcy Baker Andrews, Charles Johnson

. and “others unknown”. This tap lasted for the full autho-

rized period of 20 days.

In addition to comprising a crucial portion of the evi-

dence offered at trial, the information obtained through

these wiretaps served other functions as well. Some of the

information obtained from the earlier wiretaps was incor-

porated into the affidavits in support of the later wiretaps.

Additionally, with the evidence obtained from these wire-

taps, affidavits were drawn up in support of search and

arrest warrants which were ultimately used against the

ee ec

A-5

appellants. Pursuant to these latter warrants: (1) Andrews

was arrested in his car; on the floor of his car, behind the

driver’s seat, a leather bag was found which contained co-

caine; (2) drugs were seized at the residence of room-

mates Martin and Hall; (3) guns located in Dixon’s

bedroom, within his reach, were seized; and (4) Johnson’s

residence was searched, but the only evidence seized that

had any impact in the proceedings below, were his two

telephones.

II.

ISSUES INVOLVED

The issues we are called upon to decide in this appeal

are:

(1) Whether the evidence obtained from wiretaps should

have been suppressed for various reasons;

(2) Whether a person who merely attempts to purchase

a drug for his own use from a member of a conspiracy

to sell that drug can be convicted, by that act alone, of

facilitation of a conspiracy within the meaning of 21 U.S.C.

§ 843(b) ;

(3) Whether the search of Johnson’s residence was ille-

gal, justifying reversal;

(4) Whether the failure of Dixon’s motion for severance

or mistrial was reversible error;

(5) Whether the admission into evidence of guns found

in Dixon’s apartment was reversible error; and

(6) Whether there was sufficient evidence to support

Andrews’s conviction for possession of cocaine with the

intent to distribute.

A-6

IV.

WIRETAP ISSUES

We turn first to the various contentions of appellants

that the wiretaps were unlawful and that the evidence de-

rived therefrom should have been suppressed. We are con-

cerned here with both a Fourth Amendment requirement

and the requirements under Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-

2520. The statutory requirements may, of course, be more

restrictive than the requirements of the exclusionary rule

for Fourth Amendment violations.

Section 2515 of 18 U.S.C. prohibits the receipt in evi-

dence of the contents of a communication, or evidence de-

rived therefrom, if the disclosure would be in violation of

the Act. That section is triggered by § 2518(10)(a), which

provides in part:

Any aggrieved person . . . may move to suppress the

contents of any intercepted wire or oral communica-

tion, or evidence derived therefrom, on the ground

that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Section 2518(1)-(8) sets out the procedures and require-

ments in order to obtain a valid order to place a wiretap

on the telephone and subsequent requirements of the agency

following the wiretap. |

A-7

A. Naming of Probable Conversers in Wiretap Appli-

cation.

Andrews argues that the trial court erred in declining to

suppress evidence obtained through the wiretaps authorized

by the orders issued on August 28 and September 30. He

contends that the Fourth Amendment and 18 U.S.C. § 2518

(1)(b)(iv) and (3)(a) require that the application for

wiretap authorization set forth sufficient facts to allow the

issuing judge to conclude that there is probable cause to

believe that each person named in the application as a

probable converser is committing an offense. Andrews

argues that he was named as a probable converser in the

application, but that the DEA did not then have probable

cause to believe that he was committing an offense.

There is nothing in the Fourth Amendment that imposes

a requirement of the type urged by Andrews. In United

States v. Donovan, 429 U.S. 413 (1977), the Court stated:

The Fourth Amendment requires specification of “the

place to be searched, and the persons or things to be

seized.” In the wiretap context, those requirements are

satisfied by identification of the telephone line to be

tapped and the particular conversations to be seized.

Id. at 427, n.15. There is no constitutional requirement

that the persons whose conversations may be intercepted

be named in the application. Jd. Consequently, we hold that

the Fourth Amendment does not require that the reasons

for naming all probable conversers be shown in the appli-

cation.

The question concerning the requirements of the statute

is not as easily resolved. The subject of our inquiry is the

A-8

statutory section governing the procedure for obtaining

wiretap authorization, 18 U.S.C. § 2518.

An application for an order authorizing a wiretap must

include the “identity of the person, if known, committing

the offense and whose communications are to be inter-

cepted”. 18 U.S.C. § 2518(1) (b) (iv). The judge to whom the

application is submitted may enter an order authorizing

a wiretap if the application shows that “there is probable

cause for belief that an individual is committing, has com-

mitted, or is about to commit” an offense enumerated in

§ 2516. 18 U.S.C. § 2518(3)(a). In United States v. Kahn,

415 U.S. 143, 150-155 (1974), the Supreme Court held that

the investigative agency does not have to name in its ap-

plication a probable converser who it does not have prob-

uhie cause to believe is engaged in the criminal activity

under investigation. The Court later held in Donovan that

§ 2518(1)(b)(iv) does require the investigative agency to

name in its application every probable converser who it

has probable cause to believe is engaged in the criminal

activity under investigation. 429 U.S. at 423-28. In effect,

Andrews now urges us to hold that § 2518(1)(b)(iv) and

(3)(a) require that only those for whom such probable

cause is shown may be named in the application. We dis-

agree.

At the outset we note that there is nothing in the word-

ing of the statute itself that compels us to adopt Andrews’s

position. Section 2518(1)(b) (iv), as construed in Donovan,

describes those persons who must be named in the appli-

cation; it does not expressly prohibit the investigative

agency from naming other individuals in the application.

Section 2518(3)(a) permits a judge to issue an authoriza-

A-9

tion order upon a showing that probable cause exists with

respect to an individual; it does not expressly require a

similar showing with respect to each person named in the

application.

A restriction that the investigative agency can name in

its application only those for whom probable cause exists

is not consistent with the policy of Title III. The provisions

of Title III were designed to accommodate two competing

policy objectives: (1) the authorization of electronic sur-

veillance as a weapon against organized crime; and (2) the

protection of individual privacy. Kahn, 415 U.S. at 151.

Section 2518(8)(d) of the Act requires that each person

named in the application be given notice (which is denomi-

nated as an “inventory”) within a reasonable time after

the entry of the authorization order or the denial of the

application, which shall contain the fact of the entry of

the order, the date of the entry and the fact that during

the period, wire and oral communications were or were

not intercepted. It is mandatory to send the notice to those

persons named in the application, but it is discretionary as

to whether notice is to be sent to persons not named in the

application. Therefore, the policy of protecting persons

from unreasonable invasions of privacy is furthered by

naming in the application all those persons likely to have

their conversations intercepted, whether or not probable

cause exists as to them, because those persons will benefit

from the mandatory statutory notice requirements. In

eases where probable cause is doubtful as to some con-

versers, an investigative agency should be encouraged to

name more, rather than fewer, persons in the application.

A-10

In addition, the competing policy objective of aiding law

enforcement would be frustrated if an investigative agency

were required’ to make a showing of probable cause for

every person named in the application. Under Donovan,

the agency is required to name all persons for whom a

showing of probable cause can be made. If the agency order

can later be challenged on the ground that probable cause

did not exist for one or more of the expected conversers,

an impossible burden of exactness is imposed upon the

agency in making a decision on which reasonable minds

may differ. The policy behind the statute is best served by

allowing latitude in naming an expected converser, even

though probable cause as to that person ultimately may not

be found.

In rejecting the argument that a defendant must be

arrested when probable cause is first established, so that

the right to counsel during questioning would be triggered,

the Supreme Court considered the dilemma posed by that

argument;

~ <The police are not required to guess at their peril the

precise moment at which they have probable cause to

arrest. a suspect, risking a violation of the Fourth

Amendment if they act too soon, and a violation of the

Sixth Amendment, if they wait too long.

Hoffa v. United States, 385 U.S. 293, 310 (1966). We can-

not believe that Congress intended to create a similar

dilemma for law enforcement agencies attempting to follow

the guidelines of 42518.

A-ll

B. Failure to Name Persons in Application and to Pro-

vide Notice.

Martin and Hall contend that the wiretap order issued

on September 30 was improper because neither was named

in the wiretap application, even though each was a probable

converser who the investigative agency had probable cause

to believe was committing the offense under investigation.

Martin also complains that he was not provided with the

“inventory” required by § 2518(8)(d). Both argue that

evidence obtained from these wiretaps should have been

suppressed pursuant to 18 U.S.C. 4 2518(10) (a) (1).

As discussed in the previous section, the DEA was re-

quired by 18 U.S.C. 4 2518(1) (b) (iv) to name in its wiretap

application each probable converser who it had probable

cause to believe was committing an offense. United States

v. Donovan, 429 U.S. at 423-28. Additionally, those persons

named in the wiretap applications are entitled to the in-

ventory, designed to inform the persons of the filing of

the application, whether an order was entered and, if so,

the dates of the wiretap and whether oral communications

were intercepted. 18 U.S.C. 4 2518(8)(d). However, in

Donovan, the Supreme Court held that §§ 2518(1) (b) (iv)

and (8)(d) do not play substantive roles in the statutory

framework to substantially implement the congressional

intention to limit the use of intercept procedures; and

therefore that failure to comply fully with those provisions

does not invalidate an order authorizing a wiretap. 429

US. at 432-39.

There is a suggestion in Donovan that suppression would

be justified if government agents intentionally withheld the

A-12

names of suspects from its application. 429 U.S. at 436, n.

23. There is no indication of such conduct in this case.

Therefore, even assuming that those sections were vio-

lated, appellants were not entitled to the suppression of

evidence.

C. Misstatement in Affidavit.

Andrews contends that a misstatement in the affidavit

supporting the application for the September 30 order to

tap Johnson’s telephone erroneously attributed a drug-

related phone call to him, and therefore requires suppres-

sion of the evidence obtained from the wiretap.

We first consider whether exclusion was required because

of a Fourth Amendment violation. In United States v. Hole,

564 F.2d 298 (9th Cir. 1977), we held that even a material

misstatement in an affidavit supporting a search warrant

will not invalidate the warrant under the Fourth Amend-

ment, if the misstatement was “made in good faith and

neither intentionally nor recklessly”. Jd. at 301-302. In the

present case, the district court determined that the mis-

statement was innocent. Our review of the record fully

supports this finding.

Moreover, we note that the misstatement in this case was

not material. The phone call should have been attributed

to Johnson. There was, however, probable cause to believe

that Johnson, who was also named in the application, was

committing an offense enumerated in the statute; there-

fore, there was probable cause for the issuing judge to

authorize the wiretaps on Johnson’s phones. See 18 U.S.C.

§ 2518(3) (a). There was no Fourth Amendment violation.

We next consider whether Andrews was entitled to sup-

pression under the statute, 18 U.S.C. § 2518(10)(a)(1) on

- —

A-13

the ground it was unlawfully intercepted. Whether sup-

pression is required under the statute is determined from

the provisions of Title III rather than from the exclusion-

ary rule developed to deter violations of the Fourth Amend-

ment. United States v. Giordano, 416 U.S. 505, 524 (1974).

We have earlier held that the naming of an expected con-

verser against whom there may not have been probable

cause does not vitiate the order. There is nothing in the

express provisions of the statute which requires that an

innocent and immaterial misstatement in the application

for wiretap authorization invalidates the wiretap order.

See United States v. Turner, 528 F.2d 143, 156-58 (9th

Cir.), cert. denied sub nom. Grimes et al v. United States,

423 U.S. 966 (1975) (reasonable and good faith effort to

comply with the minimization requirements). The misstate-

ment in the application for the wiretap authorization, which

was both innocent and immaterial, does not entitle Andrews

to suppression under either Fourth Amendment or statu-

tory standards.

D. Necessity.

All parties to this appeal join in Johnson’s argument

that the DEA failed to make an adequate showing of the

necessity for wiretaps as required by 18 U.S.C. § 2518(1) (c)

and (3)(c). We disagree. The judge who authorizes a wire-

tap has considerable discretion to determine whether an

adequate showing of necessity has been made. United

States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975). An in-

vestigative agency is not required to exhaust all possible

investigative techniques before resorting to a wiretap. Id.

In this case, the DEA made a showing that it had unsuc-

cessfully attempted to investigate the parties to the co-

A-14

spiracy using several methods short of electronic surveil-

lance. We conclude that the trial court correctly found

that an adequate showing of necessity was made.

E. Duration.

The appellants also contend that the duration of the

wiretaps was not properly minimized, as required by 18

U.S.C, § 2518(5). The length of time during which a wiretap

is used is a crucial factor in determining whether there

has been reasonable minimization of communications inter-

cepted. United States v. Chavez, 533 F.2d 491, 493 (9th

Cir.), cert. denied, 426 U.S. 911 (1976). In this case, the

longest wiretap on any one set of telephones was that

placed on Johnson’s phones. The initial wiretap and the

extension of the wiretap together extended over a period

of 37 days. In light of the significance of Johnson’s in-

volvement in the conspiracy and the state of the investiga-

tion at the time the extension was granted, we think this

period was reasonable. The wiretaps on the other phones

were used only for brief periods of time and were also

reasonable.

FACILITATION OF THE CONSPIRACY

Dixon, Johnson, Andrews and Davenport contest the

validity of their convictions under 21 U.S.C. § 843(b) for

the use of a telephone to facilitate the conspiracy to pos-

sess with the intention to distribute and to distribute

cocaine or heroin. We do not reach the contentions of Dixon,

Johnson and Andrews, for the reason that their sentences

under this conviction run concurrently with the sentences

on the conspiracy conviction which we affirm. This circuit

A-15

follows the concurrent sentence doctrine under which the

appellate court, as a matter of discretion, may decline to

review a conviction under one count if a conviction under

another count is affirmed and the sentences run concur-

rently and no adverse collateral legal consequences for the

appellant result from the additional conviction. United

States v. Wall, 577 F.2d 690, 699 (9th Cir. 1978). We find

no adverse collateral legal consequences to these appli-

cants; and, in the exercise of our discretion, we decline to

review these appellants’ arguments on this issue.

Appellant Davenport’s sentence on the felony facilitation

count runs concurrently with the misdemeanor conviction

for possession. However, he received a three-year sentence

on the felony count, suspended to six months’ confinement,

with three years’ probation upon release from confinement,

whereas he received a sentence of six months only on the

misdemeanor. We must therefore review the conviction

on the facilitation count.

Davenport’s appeal on this count presents us with a

question of interpretation of 21 U.S.C. § 843(b), which pro-

hibits the use of a telephone to facilitate certain drug-

related felonies.*

Davenport specifically was charged in Count 19 of the

indictment as follows:

On or about October 28, 1975, in the State and

Northern District of California, STEPHEN BRUCE

‘Section 843(b) provides in : “It shall be unlawful for any

person knowingly or Screnitionally to use any communication facility

in committing or in causing or facilitating the commission of any

act or acts constituting a felony under any provision of this sub-

chapter... .” (being the subchapter dealing with drug-related

offenses )

A-16

DAVENPORT, aka Steve, defendant herein, did, in

violation of Title 21, United States Code, Section

843(b), knowingly and willfully use a communication

facility namely, a telephone, in facilitating a conspiracy

to possess with intent to distribute and to distribute

heroin and cocaine, in violation of Title 21, United

States Code, Sections 846 and 841(a) (1).

The telephone call specified in the indictment as the basis

for the charge was a telephone call between Davenport and

Johnson, in which Davenport attempted to purchase a small

amount of cocaine. The evidence does not support a finding

that Davenport knew of the existence of the conspiracy to

distribute, nor that he had any involvement in the distribu-

tion of cocaine or heroin himself. Davenport, in the tele-

phone conversation was, at most, attempting to purchase

cocaine for his personal use.

Although there was some effort by the prosecution to

establish from the telephone conversation that Davenport

was attempting to acquire cocaine for distribution, the

small amount be sought to obtain (2-4 grams) is not ordi-

narily consistent with an intent to distribute. There was

mention in the conversation of wishing to borrow scales to

“weigh something out” and of “splitting it up”, but it was

apparent from the testimony of an expert witness and a lay

witness associated with Davenport that this had nothing

to do with the cocaine conspiracy, but rather, related to the

division of some marijuana that he and a friend had

purchased. Furthermore, it is evident from a careful review

of the transcript, the instructions of the court, and the

numerous questions from the jury concerning those in-

structions, that both the judge and the jury were of the

opinion that Davenport was not attempting to purchase

A-17

cocaine for distribution, but was attempting to purchase

cocaine from Johnson for his own use.

The basic premise of Davenport’s argument is that a

purchaser’s relationship to the distribution conspiracy from

which he buys is of such a marginal nature that he cannot

be considered a “facilitator” within the meaning of the

statute. Simply stated, he argues that a buyer cannot

facilitate the very sale which creates his status. The gov-

ernment argues that a conspiracy is on ongoing enterprise,

a continuing agreement, and that buyers encourage and

facilitate the continuation of that agreement through their

purchases. In spite of its logical appeal, the strength of

the government’s argument breaks down in the fact of

contrary considerations.

We have found no decisions of this circuit which lend

support to the government’s position that the distribution

of drugs or an agreement to distribute drugs is “facili-

tated” by a purchaser of the drugs. In each case in which

we have upheld a conviction for facilitation, the defendant’s

role in the distribution of drugs has been far more sub-

stantial than that of a buyer for personal consumption.

E.g., United States v. Turner, 528 F.2d 143 (9th Cir.), cert.

denied sub nom. Grimes et al. v. United States, 423 U.S. 996

(1975) (conspirator); United States v. Padilla, 525 F.2d

308 (9th Cir. 1975) (conspirator/seller); United States v.

Smith, 519 F.2d 516 (9th Cir. 1975) (conspirator) ; United

States v. Veon, 474 F.2d 1 (9th Cir. 1973) (sellers).

In Rewis v. United States, 401 U.S. 808 (1971), the Su-

preme Court approved the Fifth Circuit’s ruling in Rewis

v. United States, 418 F.2d 1218 (5th Cir. 1969), which held

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that a gambler whose participation in a gambling business

was only that of a better, and not a proprietor, could not

be found guilty of acting with intent to facilitate the un-

lawful gambling activities in violation of 18 U.S.C. § 1952.

The Supreme Court agreed that “intent to .. . facilitate”

requires more than a mere “desire to patronize the illegal

activity”. Rewis, supra at 811. Therefore, a mere customer

did not facilitate the business he patronized. This inter-

pretation of the ambiguous term “facilitation” was sup-

ported in the opinion by the legislative history behind the

statute in question, and by reference to the general prin-

ciple that “ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity .. .”. Accord,

United States v. Bass, 404 U.S. 336, 347 (1971). Our eir-

cuit has since applied this interpretation of the term

“facilitation” under 18 U.S.C. § 1952 in United States v.

Gibson Spec. Co., 507 F.2d 446, 450-5 (9th Cir. 1974). A

difference in the nature of the illicit business should not

change the basic principle enunciated by the Supreme

Court and by our circuit that a mere customer’s contribu-

tion to the business he patronizes does not constitute the

facilitation envisioned by Congress,

Our couclusion is also supported by the legislative his-

tory of the Comprehensive Drug Abuse Prevention and

Control Act of 1970, of which §843(b) is a part. The

scheme of the Act shows that Congress intended to draw

a sharp distinction between distributors and simple pos-

sessors, both in the categorization of substantive crimes

and in the resultant penalties. See United States v. Swi-

derski, 548 F.2d 445, 449-50 (2d Cir. 1977) (diseussing leg-

—islative history). To hold that persons who merely buy

_ ren e

2 RRS

A-19

drugs for their personal use are on equal footing with dis-

tributors by virtue of the facilitation statute would under-

the facilitation count is therefore reversed.

VI.