# Petition — Crespo v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2786%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 919 ## Text 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