Petition — Crespo v. United States

October Term, 1978

No. a 2. -j 6 66

JOSE MIGUEL CRESPO, VICTOR HERNANDEZ,

CARMEN IRIS RIVERA, and STEVEN ANGELET,

Petitioners,

-V-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J. JEFFREY WEISENFELD

Attorney for Petitioner Crespo

401 Broadway

New York, N.Y. 10013

STEVEN GOLDENBERG

Attorney for Petitioner Hernandez

23? Broadway

New York, N.Y. 10007

ROBERT BLOSSNER

Attorney for Petitioner Angelet

233 Broadway

New York, N.Y. 10007

GOLDBERGER, FELDMAN & DUBIN

Attorneys for Petitioner Rivera

401 Broadway

New York, N.Y. 10013

ee Oy

DICK BAILEY SERVICE, INC. — Telephone: (212) 447-5358

s

TABLE OF CONTENTS

Page

eR SGE Nea basedeescssscccccce l

J urisdiction PLES ECEArhGhendecesessseescescs l

eet i cei neaeeabeseccccesnceses 2

Constitutional Provisions and Statutes Involved......... 2

eee CCEe seca wesenacsccces ces 2

I I occ ccccccccccccccccs 4

The Writ Should Be Granted To Resolve Whether A

_ Failure To Seal Intercepted Communications At The End

Of Each Wiretap Order And At The End Of Each Exten-

sion Thereof Renders Such Communications Inadmissible

Under 18 U.S.C. §2518(8)(a) And To Resolve Whether A

Wiretap Conducted Solely By State Agents Must Comply

With State Law On Sealing Before They Can Be Introduc-

OE ie a sas ieecdcseeeceFedecesccss ”

Gas cuatawidereewiedscccedeeascccesesecens a

Appendices:

A. Opinion of the Court of Appeals .................5. la

Di. Ce a Cb secon ace dec senccseadoscs. 21a

©. Bees GN seca oe bea a Gk ce eben en 23a

ii

TABLE OF AUTHORITIES

Cases Page

People v. Glasser, 58 A.D.2d 448 (2d. Dept. BPR ddkscdaeay

People v. Washington, —N.Y.2d—(December 7, Se

United States v. Falcone, 505 F.2d 478 CG Cor. TOD. nc cccdic

United States v. Fury, 554 F.2d

TT Lea en ee

United States v. Gigante, 538 F.2d 502 ole | re

United States v. Manfredi, 488 F.2d 588 (2d Cir. Se

United States v. Marion, $35 F.2d 697 (2d Cir. 1976) .........

STATUTES AND OTHER AUTHORITIES

Wr sles, SNES oo aoe cis baccckecccc,

IN THE

SUPREME COURT OF THE UNITED STATES

JOSE MIGUEZ CRESPO, VICTOR HERNANDEZ,

CARMEN IRIS RIVERA, and STEVEN ANGELET,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Jose Miguel Crespo, Victor Hernandez, Steven Angelet,

and Carmen Rivera, petitioners herein, pray that.a writ of cer-

tiorari issue to review the judgment of the United States Court

of Appeals for the Second Circuit entered in this case on

February 2, 1979.

OPINION BELOW

The United States Court of Appeals for the Second Circuit

affirmed in a written opinion dated February 2, 1979 the convic-

tion of petitioners. In an order dated April 3, 1979, the Second

Circuit denied petitioners petition for rehearing en banc.

JURISDICTION

The denial of petitioners’ petition for rehearing was denied

on April 3, 1979. The jurisdiction of the Court is invoked under

28 U.S.C. §1254(1).

2

QUESTIONS PRESENTED

1. Does the Federal wiretap statute 18 U.S.C. §2518(a) re-

quire sealing at the expiration of each order authorizing

wiretaping?

2. Does State law (§700.50(2) and §700.65(3) C.P.L.) on

sealing control, in a federal prosecution, the use of conversa-

tions seized by State officers under a state warrant?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

This case involves Title III of the Omnibus Crime Control

and Safe Street Act, 18 U.S.C. §§2515 et. sea.

STATEMENTS OF FACTS

Petitioners were convicted on January 26, and February 8,

1978, after a jury trial in the District Court for the Southern

District of New York (Pierce, J.) of conspiracy to import co-

caine and to possess and distribute cocaine in violation of 21

U.S.C. §§846 and 963.*

The Government’s prosecution was mainly based upon 138

recorded conversations seized as a result of a New York State

Court-ordered wiretap. This surveillance was conducted solely

by State officers and the fruits thereof were sealed and main-

tained solely by agents of the State of New York. The various

state wiretap orders and extensions were as follows:

*Petitioners were sentenced as follows: Jose Miguel Crespo, ten years with

three years special parole; Victor Hernandez, six years with three years special

parole; Steven Angelet, ten years with three years special parole; and Carmen

Rivera, twelve years with ten years special parole.

‘ Ww

a 3

Plant/Tap: 22 Telephone Line: (212) 829-1770 Residence:

Gregory Comulada and Eva Ramirez Time Period (Sealing):

9/22/76 (extensions 10/22/76, 11/5/76 to 12/2/76. Sealed

12/2/76.

Plant/Tap: 25 Telephone Line: (212) 796-9306 ster’

Steven Angelet and Maria Marcano Time Period (Sealing):

10/18/76 to 11/16/76, Sealed 11/17/76.

Plant/Tap: 28 Telephone Line: (914) 965-9624 Residence:

Jose Miguel (or Mike) Crespo and Julianna Gross Time Period

(Sealing): 11/23/76 (extensions 12/23/76) to 1/10/77. Sealed

1/11/77.

Plant/Tap: 29 Telephone Line: (212) 681-1615 Residence:

Herman Rivera Time Period (Sealing): 12/1 1/76 to 12/28/76,

Sealed 12/29/76.

Thus, the sealing was completed only at the end of the a"

tire period of each wiretap and extensions thereof é bs .

Federal law requires sealing at the end of each wiretap or —

each extension or if state law is controlling on the validity of the

sealing procedure, most of the evidence against petitioners was

improperly admitted at trial.

4

REASONS FOR GRANTING THE WRIT

THE WRIT SHOULD BE GRANTED TO RESOLVE

WHETHER A FAILURE TO SEAL INTERCEPTED

COMMUNICATIONS AT THE END OF EACH

WIRETAP ORDER AND AT THE END OF EACH EX-

TENSION THEREOF RENDERS SUCH COM.-

MUNICATIONS INADMISSIBLE UNDER 18 U.S.C

§2518(8)(a) AND TO RESOLVE WHETHER iv"

WIRETAP CONDUCTED SOLELY BY STATE

pohaticid pasate COMPLY WITH STATE LAW ON

ORE THE

Ate ee Y CAN BE INTRODUCED AT

At the outset it must be remembered that the wiretaps in

question were made pursuant to a state court order and they

were safeguarded and sealed entirely by agents of the state of

New York. The federal prosecutor’s first action with regard to

these communications was in Causing the tapes to be

a via state orders to the federal authorities on

en : : 1 a nine months after the last sealing date

A. 18 U.S.C. §2518(8)(a) requires sealing at the end of each wire

fap order and at the end of each extension thereof.

18 U.S.C. §2518(8)(a), provides: “Immediately upon the

expiration of the period of the order, or extension thereof, such

recordings shall be made available to the judge issuing such

order and sealed under his directions.”

The Second Circuit has interpreted this section to mean

that sealing need not occur until the end of the entire wire ta

period, including extensions. See, United States v. Fury, pt

F.2d. 522 (2d Cir.) cert. denied, 433 U.S. 910 (1977) ‘It is

respectfully submitted that the language of §2518(8)(a) peraniis

two interpretations; one requiring sealing only at the end of the

entire period of interception the other requiring sealing at the

end of each order and at the end of each extension. Given this

ambiguity, the purpose of the wiretap statutes and of

§2518(8)(a), particularly, must be controlling.

The sealing requirement has been held to be integral to the

statutory scheme. United States v. Gigante, 538 F.2d 502, 505

(2d Cir. 1976).

Maintenance of the integrity of such evidence is part

and parcel of the Congressional plan to “‘limit the use of

intercept procedures to those situations clearly calling for

the employment of this extraordinary investigative

device.’’ United States v. Giordano, 416 U.S. 505, 527, 94

S.Ct. 1820, 1832, 40 L. Ed. 2d 341 (1974). Moreover, it

plays ‘‘a central role in the statutory scheme.”’ Jd. at 528,

94 S.Ct. at 1832. See also, United States v. Chavez, 416

U.S. 562, 94 S.Ct. 1849, 40 L.Ed. 2d 380 (1974) . . . The

judicial sealing requirement, therefore, provides an exter-

nal safeguard against tampering with or manipulation of

recorded evidence. The sealed tapes become ‘‘confidential

court records...”

§38 F.2d at 505 (footnote omitted). See, United States v.

Falcone, 505 F.2d 478, 486 (3d Cir. 1974) (Rosenn, J., dissen-

ting opinion).

The statutory scheme creates a unique and strict predicate

to admissibility: tapes cannot be used or disclosed unless sealing

has been complied with or there is a satisfactory explanation for

the failure to do so. 18 U.S.C. §2518(8)(a); C.P.L. §700.65(3).

Unlike sections of the statute which deal with the manner of in-

terception (e.g., authorization, minimization, necessity for

wiretap, etc.), the sealing section does not rely upon the motion

to suppress provision of 18 U.S.C. §2518(10)(a), which confers ~

standing only upon persons ‘‘aggrieved.’’ Section 2518(8)(a)

does not use this terminology, rather it speaks in terms of prere-

quisites to use of disclosure.

J); P

(December 7, — eople vy. Washington, at

In United States

¥. Mari

1976) the Second Circuit sales” 35 F.2d 697, 702 (2d Cir.

7

The Second Circuit in its opinion below concedes that there

are instances where state law must control. However, a distinc-

tion is made between the interception of wiretap evidence and

its preservation. The latter, according to the Second Circuit,

does not require resort to state law. It is respectfully submitted

that the distinction is without meaning in the context of a state

wiretap whose fruits are used in a federal court. Where federal

officers rely upon state machinery to obtain evidence, as here,

then the state rules must be respected. Otherwise, respect for

state law will be undermined and state officers afforded an easy

means of avoiding any higher state requirements. Moreover, it

will lead to forum shopping, in that it is well known that state

warrants are more easily obtained than federal ones. Thus,

federal officers will have access to the easier state procedure

without concern about any higher requirements relating to the

preservation of this evidence.

CONCLUSION

FOR THE REASONS SET FORTH ABOVE THE PETI-

TION FOR CERTIORARI SHOULD BE GRANTED.

Respectfully submitted,

Ges J. JEFFREY WEISENFELD

Attorney for Petitioner Crespo

STEVEN GOLDENBERG

+» 2d Sess., quoted in 2 U.S.

Attorney for Petitioner Hernandez

GOLDBERGER, FELDMAN & DUBIN

Attorneys for Petitioner Rivera

State) applicati

mits it. The gore may be authorized unless a speci

whole in the propo ute must meet the minimum oe State statute per- ROBERT BLOSSNER

Attorney for Petitioner A» gelet

would be free to cin chapter. The Proposed p ards reflected as a

" naga rovisi isi

pt more restrictive lentalation On envisions that States

APPENDIX A—Opinion of the Court of Appeals

UNITED STATES COURT OF APPEALS

For tHE Sgconp Crovurr

Nos. 1031, 1032, 1033, 1034, 1035, 1036—

September Term, 1977.

(Argued June 1, 1978 Decided February 2, 1979.)

Docket Nos. 78-1064, 78-1073, 78-1076,

78-1077, 78-1078, 78-1086.

Unrrep Srates or AMERIOA, 3

Appellee,

—

Luis Soromayor, a/k/a “Toti,” Carmen Inis Rivera, a/k/a

“Carmencita,” Jose Micuen Crespo, a/k/a “Mike

Crespo,” Victor Hernanpez, a/k/a “Victor,” a/k/a

“Vitin,” Sreven Ancetet, a/k/a “Steven Marcano,”

a/k/a “Stevie,” and Ismaz~ Romero, a/k/a “Cookie,”

Appellants.

Before:

Mansrigetp and Timers, Circuit Judges,

and Horrman,* Senior District Judge.

Appeal from judgments of conviction of the United

States District Court for the Southern District of New

York, Lawrence W. Pierce, Judge, convicting appellants,

after a jury trial, of conspiracy to distribute heroin and

i Of the United States District Court for the Eastern District of

Virginia, sitting by designation.

la

oo and to import cocaine in violation oftthe law. Sub-

8 ative count for possessing and distrifuting heroin

against defendant Romero. Errors assigned rélate to ad-

ays sd of tapes in violation of New York law and, as

su tive count, failure to grant a/aid-tri '

for severance, Affirmed. “3 ae Pare

‘ ;

on brief), for appellan

Rosert B. Buossyer, Ne ‘York, New York, for

appellant Steven Angelet.

Samuget W. Morpny, Jk., Davi W. VERSFELT,

New York, New (Donovan, Leisure

Newton & Irvine, New York, New York in

brief), for appellant Ismael Romero. :

StzpHen M. Gotpenserc, New York, New York,

for appellant Victor Hernandez.

Micuart Younc, New York, New York (Gold-

berger, Feldman & Dubin, New York, New

York, on brief), for appellant Carmen

Rivera.

Rosert B. Fiske, Jr., United States Attorney

for the Southern District of New York

(Robert J. Costello, Richard Lawler, Robert

J. Jossen, Assistant United States Attor-

neys, Southern District of New York, of

counsel), for the United States of Athieiee,

2a

v

Horrman, Senior District Judge:

Appellants appeal from judgments of conviction entered

on January 26 and February 8, 1978 in the United States

District Court for the Southern District of New York,

after an eight week trial before the Honorable Lawrence

W. Pierce, District Judge, and a jury. The appellants were

convicted of conspiracy to import cocaine into the United

States and to possess and distribute heroin and cocaine in

the United States in violation of 21 U.S.C. §§ 846 and 963.

In addition, Ismael Romero was convicted of possession

with intent to distribute and distribution of 106.3 grams of

heroin in violation of 21 U.S.C. §§ 841(a) (1) and 841(b)

(1)(a). The principal error alleged is the failure of the

district court to suppress wiretap tapes allegedly untimely

sealed under New York law. We affirm.

The Government’s prosecution was mainly based on the

introduction into evidence of 138 recorded conversations

seized as a result of New York State court-ordered sur-

1 Appellants were sentenced as follows: Luis Sotomayor, twelve years

imprisonment, with ten years special parole; Carmen Iris Rivera, ten

years with ten years special parole; Jose Miguel Crespo, ten years with

three years special parole; Victor Hernandez, six years with three years

special parole; Steven Angelet, ten years with three years special

parole; Ismael Romero, five years on the conspiracy count and a con-

current three years on the substantive count, with four years special

parole.

In addition, Sotomayor and Rivera were later sentenced to six-month

concurrent sentences after pleading guilty to assaulting a deputy United

States marsha) during the course of trial.

Sotomayor’s appeal is no longer before us. He escaped from the penal

institution on or about July 10, 1978. On August 30, 1978 the panel

entered an order dismissing Sotomayor’s appeal with prejudice unless

he returned to federal custody within 30 days of the filing of said order,

same being under the authority of Molinaro v. New Jersey, 396 U.S.

365 (1970), and United States v. Sperling, 506 F.2d 1323, 1345, n. 33

(24 Cir. 1974). Sotomayor was not returned to federal custody within

the required period and the dismissal of his appeal is now final. While

Sotomayor is no longer a party to the appeal, this opinion would apply

to him if he had remained a party.

3a

veillance of four telephone lines in Bronx and Westchester

Counties. Testimony was also given by officers who per-

formed surveillance, and who explained to the court and

jury the code system employed to discuss drug dealing over

the telephone system.

Four plants or taps were involved, each operated by

New York law enforcement officers. The following table

outlines these taps:

Plant/

Tap Telephone Line

Residence

Time Period

(Sealing)

22 (212) 829-1770 Gregory Comulada 9/22/76 (exten-

and Eva Ramirez

sions 10/22/76,

11/5/76) to

12/2/76. Sealed

12/2/76.

25 (212) 796-9306 Steven Angeletand 10/18/76 to

Maria Marcano 11/16/76. Sealed

11/17/76.

28 (914) 965-9624 Jose Miguel (or 11/23/76 (exten-

Mike) Crespo and_ sions 12/3/76,

Julianna Gross 12/23/76) to

1/10/77. Sealed

1/11/77.

29 (212) 681-1615 Herman Rivera 12/11/76 to

12/28/76. Sealed

12/29/76.

The investigation which led to the indictment was com-

menced during the summer of 1976 by members of the

New York City Police Department assigned to Manhattan

North narcotics in conjunction with the Bronx County

District Attorney. During the course of the investigation,

4a

the indicated wiretap orders were sought by New York

law enforcement officers. These orders were granted by

a justice of the Supreme Court of the State of New York,

Bronx County, and by a judge of the Westchester County

Court.

A central plant was established by the investigators

to record and log the intercepted communications. The

procedure for collection and preservation of the original

tapes was to remove the tape from the recorder at mid-

night and place it, and the line sheets, in an envelope,

which was put into a wire basket on a desk at the central

plant. Police Officer Connelly was responsible for trans-

porting the tapes from the plant to the Bronx district

attorney’s office the following day. On several occasions

other officers performed this duty when Connelly could

not.

The envelope was taken to the wire room at the district

attorney’s office. The tape would then -be reproduced and

stored in this room, which was under the supervision of

detectives Ryan and Campion. Connelly, or one of the

other officers, would return to the plant with the dupli-

cate recording. Only Ryan, Campion, and their command-

ing officer had access to the tapes in the district attorney’s

office once the tapes were received as the tapes were filed

in the office and only these three individuals had keys

to the room.

Officer Connelly, in his capacity as coordinator of the

four taps, was also present at the sealing of each of the

tapes. He took possession of the appropriate tapes from

the district attorney’s wire room and appeared before a

judge with an assistant district attorney for the sealing |

procedure. The sealing dates were December 2, 1976 (Tap

22); November 16, 1976 (Tap 25); January 11, 1977 (Tap

Sa

’

dues 29, 1976 (Tap 29). Stated otherwise, the

A = ace within one day following the last ex-

pees Pp ants do not contest the admissibility of

pt e papi during the last extension order, but

re — : e admissibility of evidence received during

iginal orders and any extension orders save and

except the fina] ones.

Mpegs! the ey containing the tapes were kept

m in the Bronx district att y

On September 16, 1977, D i 5 ae

, » Detective Ryan, on state cou

t

a turned the sealed tapes over i Police Officer

aa > gl Mella of the Drug Enforcement Ad-

" © tapes were transferred to the Uni

i Ree tag the Southérn District of New ay

ember 26, 1977, the tapes were i :

*% unsealed t

ara of District Judge Pierce and defense pine 4

Pree vernment sought to prove the existence of an

ps . narcotics conspiracy which was responsible for

msi py large quantities of heroin and cocaine in New

be SatewpAnag! . of the ee were Sotomayor

ivera, whose operation id

cotics to the organization of C osm

respo and Victor Hernan-

wer sone and Hernandez, in turn, acted as uleaties

wy istributed the narcotics to a partnership consisting

stage ce and Gregory Comulada,’? and also to

rman Ivivera,’ Ismael Romero, and ti

y Santiago Lopez.‘

i latter group of purchasers redistributed the paid

cotics to their customers. Among Herman Rivera’s cus

2 Comulada died before the indictm

learned he had died, the tap on aga was returned. When the police

telephone was terminated.

3 = At the time of this wri

oh the’ the ef the titel ting, Herman Rivera is a fugitive, as he was

4 Lopes is « fugitive, as he was at the time of trial

6a

tomers were Angel Rivera’ and Robert Beck.’ Angel

Rivera also received narcotics from the Sotomayor-Carmen

Rivera partnership. In addition, the Angelet-Comulada

partnership had other sources of suptuy for cocaine in

Florida.

The investigation proceeded basically in inverse order

of levels of importance to the conspiracy. The first wire-

tap was on the telephone of Gregory Comulada. Through

conversations intercepted during that wiretap it was de-

termined that Comulada had a partner in the narcotics

business, Steven Angelet. Other conversations inter-

cepted on the Comulada wiretap showed that Comulada

and Angelet were receiving heroin from Mike Crespo.

A wiretap then was installed on Crespo’s telephone and

revealed that Crespo had a partner, Victor Hernandez.

Additional conversations intercepted during that wiretap

showed that Crespo and Hernandez were receiving nar-

cotics from Luis Sotomayor and Carmen Rivera.

At trial, the Government proved the substantial nar-

cotics conspiracy charged in the indictment through much

the same way that the investigation had uncovered the

loosely knit, but clearly connected, chain of supplier-

wholesaler-distributors and purchasers. The chronologi-

cal wiretaps demonstrated the inverse hierarchy and

brought the conspiracy from distributor to wholesaler to

supplier over a short period of time in the fall of 1976

and January 1977. The evidence showed that these de-

fendants discussed various narcotic transactions in code

5 Angel Rivera entered a pretrial guilty plea to the conspiracy count,

and received a sentence of ten years with ten years special parole. How-

ever, Judge Pierce later granted a motion to reduce Rivera’s sentence

and resentenced him to imprisonment for eight years with six years

special parole.

6 Beck is a fugitive, as he was at time of trial.

7a

language over the telephone and that Crespo and Her-

nandez also employed a radio communication device or

“beeper” to maintain constant communication with each

other as well as with all of their customers. The scope

and volume of defendants’ activities was suggested by

a ledger book which was seized pursuant to a search

warrant from Angel Rivera’s apartment. This ledger

book demonstrated the positions of Sotomayor and Car-

men Rivera as sources of supply.

In addition, Detective Mahone testified that Ismael

Romero sold him 106.3 grams of heroin on December 3,

1976, and offered to sell quarter kilograms of heroin to

him on a regular basis.

The Government concedes that if the tapes are inad-

missible, a new trial must be granted.

I. Seaurne or Tapes

The crux of this case lies in the tape sealing require-

ments of the New York statute and their possible applica-

tion to a subsequently conducted federal prosecution. It

was not until the state and local law enforcement officers

had completed their investigation that a decision was made

to permit federal prosecution.’ As noted, on September 16,

1977, the tapes were transferred, pursuant to state court

orders, to the federal authorities.

In dealing with wiretap orders the federal statute, 18

U.S.C. § 2518(8) (a), provides: “Immediately upon the ex-

piration of the period of the order, or extensions thereof,

such recordings shall be made available to the judge issu-

7 The initial federal indictment was filed on June 6, 1977. A super-

seding indictment was returned on August 1, 1977. The appellants

pen y aap a second superseding indictment filed September 30,

; extension order for the final plant or ta i

January 10, 1977. . vie aaa

oo aw emer

ing such order and sealed under his directions.” (Emphasis

added) The tapes were timely sealed following the expira-

tion of the extension orders in accordance with the federal

statute. No federal agents were involved in the wiretap

investigation or in the sealing.

The New York counterpart to 18 U.S.C. § 2518(8) (a) is

contained in Criminal Procedure Law (CPL) §700.50(2)

and requires the sealing of tapes “[i]mmediately upon the

expiration of the period of an eavesdropping warrant.”

Subsequent to the argument of this case on appeal, the

New York Court of Appeals ruled that ¢ 700.50(2) requires

sealing at the expiration of each order authorizing eaves-

dropping, regardless of any extension of the period of

authorized eavesdropping. People v. Washington, No. 505

—— N.Y.2d —— (December 7, 1978).* Although the Court

of Appeals’ discussion of the obligation to seal prior to the

termination of the total period of authorized eavesdropping

could be regarded as dictum, since the tapes in issue re-

mained sealed for an unreasonable length of time following

the expiration of the last extension period, we see no rea-

son to doubt that Washington authoritatively declares New

York law on this question. See Hawks v. Hamiil, 288 U.S.

52 (1933). Accordingly, our discussion proceeds with the

8 Washington confirmed the reading of § 700.50(2) given by the Appel-

late Division, Second Department, of the New York Supreme Court.

People v.. Glasser, 58 A.D. 2d 448, 396 N.Y.8.2d 422 (2d Dept. 1977);

People v. Weiss, —— A.D, 24 ——, 404 N.Y,8.2d 392 (2d Dept. 1978) ;

see also People v. Pecoraro, 58 A.D. 2d 462, 397 N.Y.8.2d 60 (2d

Dept. 1977) (one judge disapproving and two judges approving of

Glasser’s interpretation of the statute). Glasser and Pecoraro were

decided before the defendants in this case went to trial but after the

wiretapping touk place. Prior to the decision in Glasser, but also after

the completion of the wiretapping at issue in this case, this Court,

having available only an unreported New York trial court decision,

interpreted §700.50(2) as being equivalent to the federal sealing

requirements. 18 U.S.C. § 2518(8)(a). United States v. Fury, 554 F.2d

522 (2d Cir.), cert. denied, 433 U.S. 910 (1977).

9a

understanding that the tapes in this case were not sealed

in compliance with New York law and would not be admis-

sible in a state court proceeding.

We are next confronted with the question whether the

admissibility into evidence of the taped wiretaps in a fed-

eral prosecution is governed by state or federal law. Mani-

festly, if federal law is applicable the tapes were clearly

admissible. There is an impressive line of authority to the

effect that, in the area of search and seizure. it is federal

law which controls the admissibility of evidence in a federal

trial, even where the evidence has been obtained by state

officers who may have violated state law. Preston v. United

States, 376 U.S. 364, 366 (1964); Rios v. United States. 364

U.S. 253, 255, 261 (1960); Elkins v. United States. 364 US

206, 223-24 (1960) ; United States v. Garrett, 565 F.2d 1065,

1068 (9th Cir. 1977) ; United States v. Turner, 558 F.2d 46,

49 (2d Cir. 1977); United States v. Mejias, 552 F.2d 435,

444 (2d Cir. 1977); United States v. Collins, 552 F.2d 243,

247 (8th Cir. 1977), cert. denied 434 U.S. 870 (1977 ):

United States v. Magda, 547 F.2d 756, 757, n.2 (2d Cir.

1976), cert. denied 434 U.S. 878 (1977); United States v.

Votteller, 544 F.2d 1355, 1361 (6th Cir. 1976), reh. denied

554 F.2d 1065; United States v. Dudek, 530 F.2d 684, 690

(6th Cir. 1976); United States v. Shaffer, 520 F.2d 1369

1372 (3rd Cir. 1975), cert. denied 423 U.S. 1051 (1976) :

United States v. Bedford, 519 F.2d 650, 654 (3rd Cir. 1975),

cert. denied 424 U.S. 917 (1976); United States v. pag

517 F.2d 377, 382 (2d Cir. 1975); United States v. ite.

ctda, 515 F.2d 49, 52 (8rd Cir. 1975); cert. denied sub nom.

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

v. Infelice, 506 F.2d 1358, 1365 (7th Cir. 1974), cert. denied

419 U.S. 1107 (1975); United States v. Castillo, 449 F.2d

1300, 1301, n.2 (5th Cir. 1971); United States v. Coronna

420 F.2d 1091, 1092, n.2 (5th Cir. 1970); United States ‘

10a

-—,

Scolnick, 392 F.2d 320, 323 (3rd Cir. 1968), cert. denied sub

nom. Brooks v. United States, 392 U.S. 931 (1968) ; United

States v. Beigel, 370 F.2d 751, 756 (2d Cir. 1967). There are

undoubtedly other authorities which have been overlooked.

In several of these cases, conflicting federal and state

statutes involved wiretaps.’

This circuit, despite its opinions in Turner, Magda,

Mejias, Burke and Beigel, appears to have made some

distinction as to whether state or federal law applies.

In United States v. Manfredi, 488 F.2d 588, 592 (2d Cir.

1973), involving a joint wiretap investigation between

state and federal officers, the court held that the federal

government subjected itself to the risk that state courts

may impose on such warrants and the evidence obtained

under those warrants a higher standard than would a

federal court dealing with the interpretation of the fed-

eral wiretap statute, citing as its only authority Cali-

fornia v. Jones, 30 Cal. App. 3d 852, 106 Cal. Rptr. 749,

appeal dismissed for want of substantial federal question,

414 U.S. 804 (1973).%° In any event, the wiretaps in the

9 Elkins v. United States, 364 U.S. 206 (1960); United States v.

Shaffer, 520 F.2d 1369, 1372 (3rd Cir. 1975); United States v. Ar-

mocida, 515 F.2d 49, 52 (3rd Cir. 1975) ; United States v. Infelice, 506

F.2d 1358, 1365 (7th Cir. 1974). There are probably many other au-

thorities along similar lines.

10 In United States v. Hall, 543 F.2d 1229 (9th Cir. 1976), cert. denied

429 U.S. 1075 (1977), the en banc court, speaking through Judge Choy,

had before it the question of the admissibility in a federal court of

evidence pursuant to an arrest by California state officers when that

arrest was based on the state agents’ use of information gathered by

wiretap authorized under federal law but illegal under California law.

Acknowledging the binding state authority of People v. Jones, 30 Cal.

App. 3d 852, 106 Cal. Rptr. 749 (1973), two other California cases,

and United States v. Di Re, 332 U.S. 581, 589 (1948), the en banc

court said:

We reject the urging to apply Di Re for two reasons: we perceive

Title III to represent “an applicable federal statute,” and we do not

believe that Di Re is meant to apply to a case such as this. In addi-

lla

instant case were not the result of a joint investigation,

but were sclely the product of state action.

Manfredi was followed by United States v. Rizzo, 491

F.2d 215 (2d Cir. 1974), cert. denied 417 U.S. 944 (1974),

where again the issue was whether the state officers had

complied with the “minimization” requirements of 18

U.S.C. § 2518(5). Again, relying on Manfredi, the author

stated that the question must be answered in the first

instance by reference to state law, although it was stated

that, in both Manfredi and Rizzo, the procedures employed

constituted sufficient “minimization” under state and fed-

eral law.

In a third case involving state authorized electronic

interceptions, following which the results were turned

over to federal authorities, United States v. Marion, 535

F.2d 697, 702 (2d Cir. 1976), the court, in holding that

the requirement of Title III, 18 U.S.C. § 2517 (5) for ju-

dicial approval of the interception of communications re-

lating to offenses other than those specified in the original

wiretap authorization, applies to state wiretap authori-

zations, said by way of dicta: “If a state should set forth

procedures more exacting than those of the federal stat-

ute, however, the validity of the interceptions and the

orders of authorization by which they were made would

have to comply with that test as well.” ™

tion, we conclude that the federal court is not compelled to exclude

the seized material merely because of a violation of state law. We

thus affirm Hall’s conviction.

That the issue is not clear is evidenced by the dissent of three of the

thirteen judges.

ll The only case authority cited for this position is Manfredi. How-

ever, reliance is also placed upon 8.Rep. 1097, 90th Cong., 2d Sess.,

quoted in 2 U.S. Code Cong. & Adm. News at p. 2187 (1968), which

reads: “No [state] applications may be authorized unless a specific

State statute permits it. The State statute must meet the minimum

12a

It is this language in Marion upon which the appellants

rely. They argue ‘that since the state law requires the

sealing of the tapes immediately after the expiration of

the term of the original warrant, as well as at the termi-

nation of any extension order, the more stringent require-

ments of the state law must be met before the tapes can

be received in evidence.

We agree that under New York law as interpreted by

the New York Court of Appeals the tapes could not be

received in evidence in a New York State court. However,

we do not consider Manfredi and its progeny to obligate

us automatically to apply in a federal proceeding all :pro-

visions of a state wiretap statute containing more strin-

gent requirements than those prescribed by Title iit. We

believe that at most Manfg@di requires us, in determining

whether to admit a wiretap obtained by a state officer

acting under a state court order issued pursuant to a

state statute, to apply only those more stringent state

statutory requirements or standards that are designed

to protect an individual’s right of privacy, as distinguished

from procedural rules that are essentially evidentiary in

character.”

standards reflected as a whole in the proposed chapter. The proposed

provision envisions that States would be free to adopt more geht

legislation... .” (Emphasis supplied) We do not construe the emp a

sized language as evidence of Congressional intent to preclude <n

sibility of such testimony in a federal court where higher standa

imposed by a state statute are not met.

12 We recognize that two cases in this Circuit have invoked Manfredi

in determining the admissibility of wiretap evidence allegedly not

sealed in accordance with New York law. United States v. Capra, 501

F.2d 267, 277 n. 10 (2d Cir. 1974); United States v. Bisco, 421 F.

Supp. 401, 407 (8.D.N.Y. 1976). In Capra the court found that oe

tapes had been sealed in accurdance with both state and federal law,

and in Ricco the court was applying a requirement—that the tapes be

sealed “immediately” upon expiration of the period of authorized caves-

13a

This distinction between procedures governing the in-

terception of wiretap evidence and those governing the

preservation of such evidence after interception for trial

is important. Since a state’s protection of privacy nor-

mally reflects principles central to its social and govern-

mental order, our failure to respect its more stringent

protection of privacy rights would not only violate prin-

ciples of federalism, but encourage state and federal law

enforcement officials to by-pass state law and to engage

in federal forum-shopping of tainted evidence. On the

other hand, rules pertaining to the admissibility of evi-

dence are ordinarily governed by the law of the forum."

dropping—that is common to the estate and federal law. Thus, it is

certain in Capra and quite possible in Ricco that the result did not

depend on whether state or federal law applied.

13 A second reason for distinguishing between the “right of privacy”

and the “evidentiary” dimensions of wiretap regulations is provided

by Title III of the Omnibus Crime Control and Safe Street Act, 18

U.S.C. $§ 2515, et seq., the federal statute governing wiretapping by

federal and state authorities. In enacting Title III, Congress spe-

cifically intended to leave the states free to acopt limitations on eaves-

dropping more stringent than those applicable to warrants issued by

a federal court. See Sen. Rep. No. 1097, reprinted in 1968 U.S. Code

Cong. & Adm. News 2112, 2187. To carry out this intention § 2516

authorizes eavesdropping pursuant to a warrant issued by a federal

court in compliance with the standards set out in § 2518 or pursuant

to a warrant issued by a state court in compliance with § 2518 and

with applicable state law. Read as a whole Title III suggests that

the reference to state law extends only to the conditions for the issuance

and execution of an eavesdropping warrant, as distinguished from post-

interception evidentiary procedures such as sealing. Section 2516 itself

is captioned “Authorization for interception of . . . communications,”

suggesting that it does not address post-interception procedures. Simi-

larly, the three general grounds for suppression of wiretap evidence,

set out in § 2518(10)(a), refer to defects in the order authorizing

interception and in the interception itself. The sealing requirement

contains its own standard, § 2518(8)(a), suggesting that wiretap evi-

dence can be suppressed for improper sealing only if the seal does not

accord with the federa) standard. Cf. United States v. Curreri, 388

F.Supp. 607 (D.Md. 1974) (Title IiI does not require exclusion in a

federal proceeding of wiretap evidence obtained under a state warrant

l4a ,

Applying these principles here, it is readily apparent

that New York’s sealing requirements, although vital to

the state statutory scheme, do not impose a standard

designed to protect an individual’s right of privacy but

seek only to assure that, once a lawful interception has

been completed, the fruits of the seizure will remain in-

tact. United States v. Lawson, 545 F.2d 557, 564 (7th Cir.

1975). The sealing requirement is a post-interception pro-

cedure relating solely to the later preservation of the

evidence, as contrasted to the methods used to obtain it.

Since the latter involved the state’s interest in protection

of privacy, the state’s law on the subject was respected

in Manfredi, Rizzo and Marion. However, whatever in-

terest, if any, the state may have in securing federal

enforcement of its sealing requirements through appli-

cation of the exclusionary rule is outweighed by the fed-

eral interest in establishing its own standards for the

admission of lawfully obtained wiretaps into evidence.

Even if Manfredi were extended to post-interception

proceedings we do not believe that a federal court is

required upon the facts of this case to apply retroactively

Washington’s interpretation of the relevant statutes or its

exclusionary rule. The integrity of the factfinding process

has not been impaired in this case. There is no suyrvestion

that the tapes were altered in any manner. The tapes were

the result of a state investigation in which the federal

when exclusion is not justified under any of the three grounds in

§ 2518(10) (a)).

Thus, although § 2518(10)(a), in conjunction with § 2516, may re-

quire exclusion of wiretap evidence obtained under a state warrant

when the state standards for the issuance and execution are not satis-

fied, the Manfredi rule, limited to the conditions for issuance and exe-

cution of a wiretapping order, is not only consistent with but in

furtherance of the legislative intent and represents an appropriate exer-

cise of the court’s supervisory powers.

15a

anthorities played no part. At the time of the investigation

the only apparent state authority on the subject was People

v. Mangiaracina, a decision by the Supreme Court of Kings

County on July 15, 1976, which held that the sealing need

not take place until immediately after the expiration of the

last extension date."* The universal practice of state and

federal authorities was to arrange for the sealing of tapes

after the expiration of the last extension order. Thus the

state police, in executing the court warrants after Man-

giaracina but before Glasser and Washington acted reason-

ably in the good faith assumption that they were not re-

quired to seal the tapes until the extensions of the warrants

had expired. Indeed there was no motive for them not to

seal each installment immediately upon its completion if

there were grounds to believe at that time that such earlier

sealing was required.

The evidence obtained by the state law enforcement au-

thorities was in good faith compliance with the prevailing

constitutional norms. It remained in good faith at least

until the Glasser decision. As stated in United States v.

Peltier, 422 U.S. 531, 537 (1975):

The teaching of these retroactivity cases is that if

law enforcement officers reasonably believed in good

faith that evidence they had seized was admissible at

trial, the “imperative of judicial integrity” is not of-

fended by the introduction into evidence of that ma-

terial even if decisions subsequent to the search or

14 See: United States v. Fury, 554 F.2d 522, 533. However, Judge

Polsky had ruled in conformance with Futy in People v. Rosenberg,

N.Y.L.J., October 20, 1976, at 13, col. 1 (Sup. Ct. Kings Co.). Judge

Poleky later reversed himself in People v. Rao, N.Y.L.J., September 13,

1977, at 12, col. 4 (Sup. Ct. Kings Co.), which reversal followed

Glasser.

l6a

seizure have broadened the exclusionary rule to encom-

pass evidence seized in that manner.

See also Linkletter v. Walker, 381 U.S. 618, 636-40 (1965).

While Peltier was a search and seizure case, and we are

here confronted with a technical violation of the New York

law with respect to the sealing of tapes obtained as a result

of valid orders entered by state court judges, we think the

reasoning of Peltier and Linkletter is controlling. Under

the circumstances of this case and the reasoning of Peltier

and Linkletter we do not believe that the police should be

penalized for failure to anticipate the later interpretation

of § 700.50(2) by Glasser, Weiss and Washington.”

Appellants urge only a violation of the New York statute,

CPL § 700.50(2), which was modeled after the federal stat-

ute, 18 U.S.C. § 2518. There is no history indicating why

the state legislature did not use the precise wording of 18

U.S.C. § 2518(8)(a). Fury, supra, at 533.

In Linkletter v. Walker, 381 U.S. 618, 628 (1965), it was

held that “the Court may in the interest of justice make

[a] rule prospective . . . where the exigencies of the situa-

tion require such an application.” We are convinced that

the “interest of justice” is promoted in this case where only

a technical violation relating to an interpretation of the

state statute is involved, and where no state court had

rendered any authoritative construction of the statute at

the time the taps were conducted. Under the exigencies of

the situation there was no error in denying appellants’ mo-

tion to suppress the tapes.

15 The New York Court of Appeals had not at that time expressly

approved or disapproved of Glasser, but an effort was made to appeal

Glasser and the appeal was denied by a single judge.

17a

II. Severance

The only other issue which merits discussion is the con-

tention by Ismael Romero that the district court erred, at

mid-trial, in not granting him a severance of the substan-

tive count of the indictment, in which he was named as the

sole defendant. He claims that the evidence introduced

against him on the substantive count may have “spilled

over” to convict him on the conspiracy count and, in turn,

that the evidence introduced against his codefendants on

the conspiracy count may have “spilled over” to convict

him on the substantive count.

We note initially that the substantive count was properly

joined for trial in one indictment with the conspiracy count.

Count Three charged Romero with the distribution of ap-

proximately 106.3 grams of heroin on December 3, 1976, a

transaction which was alleged as well in Overt Act 24 in

the conspiracy count (Count One) of the indictment. Thus,

the joinder of these two offenses was proper under F.R.

Cr.P. 8(a), which provides:

(a) Joinder of Offenses. Two or more offenses may ,

be charged in the same indictment or information in a

separate count for each offense if the offenses charged,

whether felonies or misdemeanors or both, are of the

same or similar character or are based on the same act

or transaction or on two or more acts or transactions

connected togethér or constituting parts of a common

scheme or plan.

We are of the opinion that Romero has waived any claim

of error under Rule 8 by his failure to move before trial

for a severance. Rule 12(b)(2) and 12(f), F.R.Cr.P.;

United States v. Green, 561 F.2d 423 (2d Cir. 1977), cert.

denied 434 U.S. 853 (1977).

18a

ne Sa SS TT, aE

Romero would have us evaluate this issue under Rule 14

which provides:

Relief from Prejudicial Joinder

If it appears that a defendant or the government

is prejudiced by a joinder of offenses or of defendants

in an indictment or information or by such joinder for

trial together, the court may order an election or sepa-

rate trials of counts, grant a severance of defendants

or provide whatever other relief justice requires. In

ruling on a motion by a defendant for severance the

court may order the attorney for the government to

* deliver to the court for inspection in camera any state-

ments or confessions made by the defendants which

the government intends to introduce in evidence at the

trial.

In United States v. Stirling, 571 F.2d 708, 735 (2d Cir.

1978), this court noted the heavy burden imposed on an

appellant advancing such an argument:

Thus, the real question is not whether there was a

misjoinder under the liberal provisions of Fed.R.Crim.

P. 8, but whether the refusal of the district court to

sever [the appellant] from the main trial was so un-

fairly prejudicial under Rule 14 as to constitute an

abuse of discretion. This is a difficult burden for [the

appellant] to meet. “The determination of the elusive

criterion of prejudice rests in judicial discretion at the

trial level, and is virtually unreviewable.” 8 Moore’s

Federal Practice J14.02[1], at 14-3 (2d ed. 1977) (foot-

note omitted). While we do not shirk our responsi-

bility of review, we are reluctant to overturn a convic-

tion for denial of a motion for severance unless there

19a

2la

: : ‘showing of substantial prejudice. United States

: : ye 513 F.2d 1191, 1209 (2d Cir.), cert. denied, 423

os » 96 S.Ct. 74, 46 L.Ed.2d 62 (1975). It is not

ne ent merely to show that the accused would have

rte a better chance for acquittal at a separate trial

ited States v. Corr, 543 F.2d 1042, 1052 (2d Cir.

a 8 Moore’s Federal Practice, 714.04[1], at 14

-4 to 14-15 (2d ed. 1977) (footnote omitted). é

APPENDIX B—Decision On Rehearing

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the third day of April, one

thousand nine hundred and seventy-nine.

Present: HON. WALTER R. MANSFIELD,

burden.**

The judgments-of eomviatt HON. WILLIAM H. TIMBERS,

Arrimaep. nviction are affirmed. : | HON. WALTER E. HOFFMAN,

t Circuit Judges.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

LUIS SOTOMAYOR, a/k/a ‘“‘Toti’’, CARMEN IRIS

RIVERA, a/k/a ‘“‘Carmencita’’, VICTOR HERNANDEZ,

a/k/a “‘Victor’’ a/k/a ‘‘Vitin’, ISMAEL ROMERO, a/k/a

““Cookie’’, JOSE MIGUEL CRESPO, a/k/a “‘Mike Crespo’’,

STEVEN ANGELET, a/k/a ‘‘Steven Marcano’’, a/k/a

**Stevie’’,

Defendants-Appellants.

78-1064; 78-1073; 78-1076; 78-1077; 78-1078; 78-1086

A petition for a rehearing having been filed herein by

counsel for the Appellants, Jose Miguel Crespo, Steven

16 We assume arguendo Romero

joined in , f :

tion made by counsel for other mae” mud-<rial coverance mo- : Angelet, & Carmen Rivera

20a Upon consideration thereof, it is

; Pea gE A: —

22a

Ordered that said petition be and it hereby is denied.

A. Daniel Fusaro,

Clerk

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of i

Appeals, in

and for the Second Circuit, held at the United States Court

House, in the City of New York, on the third day of April, one

thousand nine hundred and seventy-nine.

United States of America,

Plaintiff-A ppellee,

Vv.

ee Sotomayor, a/k/a “‘toti’’, Carmen Iris Rivera, a/k/a

_Carmenchta” Victor Hernandez, a/k/a ‘‘Victor’’ a/k/a

Vitin’’, Ismael Romero, a/k/a ‘‘Cookie,”’ Jose Miguel

Crespo, a/k/a ‘‘Mike Crespo,”’ Steven An

’ ’ gelet, a/k/a “*

Marcano,” a/k/a “Stevie,” Steven

Defendants-A ppellants.

A petition for rehearing containing a suggestion that the

action be reheard in banc having been filed herein by counsel

for the defendants-appellants, Jose Miguel Crespo, Steven

Angelet, and Carmen Rivera, and no active judge or judge who

was a member of the panel having requested that a vote be taken

on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

23a

APPENDIX C—Statutes Cited

18 U.S.C. §2518. Procedure for interception of wire or oral

communications.

(8)(a) The contents of any wire or oral communication

intercepted by any means authorized by this chapter shall,

if possible, be recorded on tape or wire or other com-

parable device. The recording of the contents of any wire

or oral communication under this subsection shall be done

in such way as will protect the recording from editing or

other alterations. Immediately upon the expiration of the

period of the order, or extensions thereof, such recordings

shall be made available to the judge issuing such order and

sealed under his directions. Custody of the recordings shall

be wherever the judge orders. They shall not be destroyed

except upon an order of the issuing or denying judge and in

any event shall be kept for ten years. Duplicate recordings

may be made for use or disclosure pursuant to the provi-

sions of subsections (1) and (2) of section 2517 of this

chapter for investigations. The presence of the seal provid-

ed for by this subsection, or a satisfactory explanation for

the absence thereof, shall be a prerequisite for the use or

disclosure of the contents of any wire or oral communica-

tion or evidence derived therefrom under subsection (3) of

section 2517.

New York Criminal Procedure Law

§700.50 Eavesdropping warrants; progress reports and notice

2. Immediately upon the expiration of the period of

an eavesdropping warrant, the recordings of communica-

tions made pursuant to subdivision three of section 700.35

must be made available to the issuing justice and sealed

under his directions.

Fe.

24a

§700.65 Eavesdropping warrants; disclosure and use of infor-

mation; order of amendment.

3. Any person who has received by any means

authorized by this article, any information concerning a

communication, or evidence derived therefrom, _in-

tercepted in accordance with the provisions of this article,

may disclose the contents of that communication or such

derivative evidence while giving testimony under oath in

any criminal proceeding in any court or in any grand jury

proceeding; provided, however, that the presence of the

seal provided for by subdivision two of section 700.50, or a

satisfactory explanation of the absence thereof, shall be a

prerequisite for the use or disclosure of the contents of any

communication or evidenced derived therefrom.

< iijcaieeaaaal