Petition — Saitta v. United States

IN THE

Supreme Court of the United States

October Term, 1979

No: _@9"=1484

LEO JOSEPH SAITTA,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GERALD L. SHARGEL

Attorney for Petitioner

1370 Avenue of the Americas

New York, New York 10019

(212) 541-7105

March 21, 1980

i

Table of Contents

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Constitutional Provisions Involved in the Case...

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Reasons for Granting the Writ

I - The Court of Appeals Improperly Held That

a Search Warrant May Be Issued Based on an

Oral Affidavit Containing Both Lawfully and

Unlawfully Obtained Information ..........

II - By Erroneously Holding That Unlawfully

Obtained Information May Be Disregarded

the Court of Appeals Improperly Declined to

Rule That a Warrantless Telescopic and.

Binocular Search Violates the Fourth

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Appendix A - Opinion of the United States

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Appendix B - Opinion of United States

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ii

Table of Authorities

Cases:

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507

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United States v. Giordano, 416 U.S. 505, 94 S.Ct.

SE LUO hd Skene eb es SRNR ESE e Oe cae

United States v. Langley, 466 F.2d 27 (6th Cir.

SPAN usc bas ci Wed S aoe Chee peesadwss v 60 Lee

de) eer Ft te Reel OEE Pee eee

United States Constitution:

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Statutes:

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Se Pa Si bw oS Ea eee bd ees o0s ox eames

SE SEE 6 vp padi boss $408 ve eeCy yb Kae SO-

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Other Authorities:

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en

IN THE

Supreme Court of the United States

October Term, 1979

No.:

LEO JOSEPH SAITTA,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner Leo Joseph Saitta respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding on February 21,

1980. :

Opinions Below

The opinion and order of the Court of Appeals, not

yet reported, appears in the appendix hereto at page la.

The Magistrate’s report and recommendation on peti-

tioner’s pre-trial suppression motion is in the appendix

at page 7a. On page 19a of the appendix is the order of the

District Court approving and adopting the magistrate’s

report as the opinion and order of that court.

2

Jurisdiction

The judgment of the Court of Appeals for the Fifth

Circuit was entered on February 21, 1980. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

Questions Presented

1. Does the Fourth Amendment allow a Court to

disregard a defendant’s attack on the illegality of certain

allegations contained in an oral search warrant affidavit

if the Court finds sufficient allegations based on law-

fully obtained information?

2. Whether a warrantless telescopic and binocular

search is violative of the Fourth Amendment?

Constitutional Provisions Involved in the Case

1. United States Constitution, Amendment IV; The

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

propers and effects against unreasonable search and

seizures shall not be violated.

Statement of the Case

On April 27, 1978 Steven Iannucci, a special agent

with the United States Secret Service, while working in

an undercover capacity, was introduced to Leo Joseph

Saitta in Brooklyn, New York. At that time Saitta agreed

to sell Special Agent Ianucci counterfeit currency in an

amount of one hundred thousand dollars ($100,000.00)

consisting of counterfeit ten and twenty dollar Federal

Reserve Notes on the condition that Special Agent

lannucci agree to finance the printing operations. Several

telephone conversations occurred thereafter wherein

Saitta and Special Agent Iannucci diseussed flight plans

to Jacksonville, Florida and the financ:ag of the printing.

~_

——E—EE——

3

On April 28, 1978 Special Agent Iannucci, while

working in an undercover capacity and his true identity asa

Secret Service Agent still unknown to Saitta, met Saitta

at the Jacksonville Beach Holiday Inn in Jacksonville,

Florida. At this meeting Saitta stated that he needed

one thousand dollars ($1,000.00) to purchase the paper,

ink and other supplies to cover the various expenses

incidental to the printing of the counterfeit. These dis-

cussions resulted in Special Agent Iannucci giving Saitta

$700.00 in genuine currency for that purpose.

On April 29, 1978, Saitta flew under the name Robert

Gussoni from Jacksonville, Florida to Atlanta, Georgia

arriving in Atlanta at 9:20 a.m. Saitta was kept under sur-

veillance on this flight by Secre’ Service Special Agent

Glen Garbis who had also boarded the flight in Jackson-

ville. Upon arrival in Atlanta, Secret Service agents

continued to maintain their surveillance of Saitta. Westfall,

who had been under surveillance as a result of prior investi-

gation in this case, was observed leaving his business,

J & C Graphics Company, at 1168 Richard Road, Decatur,

Georgia (which is in the Northern District of Georgia) at

approximately 10:05 a.m. on April 29, 1978. Westfall

thereafter arrived at Hartsfield International Airport,

Atlanta where he met Saitta. Saitta and Westfall got into

Westfall’s jeep, stopped at several banks, and at 11:47 a.m.

on April 29, arrived at J & C Graphics. Westfall was a

tenant at that location and proprietor of J & C Graphics

which was a commercial printing concern.

From 11:47 a.m. and continuing until 11:07 p.m. on

April 29, surveillance was maintained by Secret Service

agents at J & C Graphics from a fixed surveillance unit,

passing automobile, bushes approximately 130 feet across

the street, and from various other locations in the area.

During this surveillance, Special Agents James Beary and

Steven Schenk observed Westfall and Saitta on the

premises at J & C Graphics. Special Agents Beary and

4

Schenk would testify that they were able to view negatives

of backs of ten and twenty dollar Federal Reserve Notes

mounted on layout sheets from their place of surveillance.

At one point Westfall was observed holding said negatives

up to the light, and Saitta was observed looking on while

Westfall was holding them.

Saitta remained at J & C Graphics from 11:47 a.m.

until the search warrant was executed at 11:07 p.m. on

April 29. Westfall left the premises of J & C Graphics

on several occasions for short periods of time but would

then return. Westfall did not leave the premises from

7:32 p.m. until his arrest later that evening.

Application for a search warrant was made by

telephone by Special Agent-in-Charge J.D. Kivett to the

Honorable Joel M. Feldman, United States Magistrate,

on the evening of April 29. Judge Feldman granted said

search warrant application at 9:46 p.m. that evening.*

Thereafter at 11:07 p.m. said search warrant was

executed by Special Agents of the Secret Service on the

premises of J & C Graphics. The agents went to the front

door, identified themselves verbally as Secret Service

agents and put their Secret Service credentials flush

against the glass door. The door was locked. Saitta and

Westfall were standing by the printing press when the

agents identified themselves. Upon observing the agents,

both moved out of view of the agents. The agents broke

through the locked glass door and entered the premises.

On the printing press were found eight hundred

sheets of ten and twenty dollar counterfeit Federal Reserve

Notes (backs only) actually being printed as the agents

entered.

*Issuance of a warrant based upon sworn oral testimony com-

municated by telephone is authorized by Fed. R. Crim. P. 41(1){2).

5

Prior to trial petitioner moved to suppress all evidence

seized pursuant to the warrant. In response the Magistrate

issued a report recommending that the motion be denied.

Based on this report the District Court denied Petitioner’s

suppression motion and incorporated the report as the

opinion and order of the Court. Subsequently Petitioner

entered into a stipulation of facts with the Government

upon which Chief Juge Charles A. Moye, Jr., sitting

without jury, based his conclusions of law and fact.

Petitioner was adjudged guilty of committing various

counterfeiting offenses and of conspiring to commit those

offenses in violation of Title 18 U.S.C. §§ 471, 472, 474

and 371.

REASONS FOR GRANTING THE WRIT

I

The Court of Appeals Improperly Held That a Search

Warrant May Be Issued Based on an Oral Affidavit

Containing Both Lawfully and Unlawfully Obtained

Information.

The finding by the Court of Appeals that the sworn

oral testimony communicated by telephone to the United

States Magistrate that contained unlawfully obtained

information (see infra at page 2a) was sufficient to support

the issuance of the warrant was, it is submitted, an

erroneous application of Fourth Amendment law.* It is

petitioner’s contention that adherence to the rule enun-

ciated by the Fifth Circuit contravenes fundamental

constitutional principles, and perpetuates an already

*The information relayed to the Magistrate and relied upon by

the Court of Appeals in support of the warrant is contained within

the Court's opinion at page 2a of the appendix.

6

existing conflict among the Circuits. Compare United

States v. Williams, 594 F.2d 86, 95 n.17 (Sth Circuit

1979) with United States v. Langley, 466 F.2d 27, 35

(6th Cir. 1972) (“{W]here such tainted information

comprises more than a very minor portion of that found

in an affidavit supporting a warrant to search, the warrant

must be held invalid.” (Emphasis in original.) ) In the

context of this case it is apparent that the fruits of the

telescopic search constituted more than a “very minor

portion” of the oral affidavit. Therefore, under the

rationale of Langley the warrant should be invalidated

due to its disproportionate reliance on the illegally

obtained evidence.

Since this Court has yet to rule on this important

issue and since there is indeed conflict among the Circuits

certiorari should be granted. See United States vy.

Giordano, 416 U.S. 505, 554-56, 94 S.Ct. 1820, 1845

(1974) (Powell, J., concurring in part and dissenting in

part). In addition, under any analysis Petitioner contends

that the contents of the oral affidavit were insufficient

to rise to the level of probable cause.

By Erroneously Holding That Unlawfully Obtained

Information May Be Disregarded the Court of Appeals

Improperly Declined to Rule That a Warrantless Tele-

scopic and Binocular Search Violates the Fourth Amend-

ment.

Although the issue presented by this portion of the

petition was fully briefed and argued by petitioner, the

Court of Appeals declined to reach it in rendering its

decision affirming petitioner’s conviction. Petitioner

contends however that since the court erroneously held

the oral application for the warrant contained sufficient

7

lawful information, this Court should consider the

alleged illegality of the search.

By upholding the Magistrate’s report that the search

did not violate the Fourth Amendment the District Court

decision denying petitioner's suppression motion dis-

regarded the mandates enunciated by this Court. Under

the doctrine enunciated in Katz v. United States, 389 U.S.

347, 88 S.Ct. 507 (1967) it is clear that one has a reasonable

expectation of privacy to be free from warrantless govern-

mental intrusion if one takes reasonable precautions

to ensure that privacy. In this regard the evidence clearly

supported a finding that Petitioner had an expectation

of privacy that society would deem to be reasonable.

Therefore in this case petitioner asserts that, as a matter

of law, no warrantless aided visual search is reconcilable

with the Fourth Amendment.

Certiorari is important in this case since the issue

presented is yet to be decided by this Court or any Circuit

Court of Appeals. The available case law, often conflicting,

is from relatively few District and State Courts. Further-

more, the question is critical to determining the extent

to which the criminal justice system will take heed of

‘increasing advances in technology and how those advances

affect the rights of criminal defendants.

Conclusion

For these reasons a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted,

GERALD L. SHARGEL

Attorney for Petitioner

1370 Avenue of the Americas

New York, New York 10019

(212) 541-7105

APPENDICES

la

Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Docket No. 79-5055

Feb. 21, 1980

UNITED STATES of America,

Plaintiff-Appellee,

V.

Leo Joseph SAITTA and James Patrick Westfall,

Defendants-Appellants.

Appeals from the United States District Court for

the Northern District of Georgia.

Before GODBOLD, RONEY and FRANK M.

JOHNSON, Jr., Circuit Judges.

GODBOLD, Circuit Judge:

The defendants were convicted of counterfeiting

offenses. 18 U.S.C. §§ 471, 472 and 474. Secret Service

agents surveilled defendants at a one-story commercial

‘printing shop owned by Westfall and located in a group

of several small commercial establishments. During night

hours, using 9-power binoculars and a 20-power hand-held

telescope that could zoom to 40-power (both were com-

mercially available), the agents observed defendants

through a gap between the blinds covering the front

windows of Westfall’s shop. The windows opened onto

the sidewalk in front of the building. The agents saw them

examining layout sheets containing negatives of counter-

feit Federal Reserve notes. This magnified observation

was part of the basis for a search warrant obtained by

telephone from a U.S. Magistrate.! Defendants assert

' Issuance of a warrant based upon sworn oral testimony

communicated by telephone is authorized by Fed.R.Crim.P. 41(c\2)

(effective October 1, 1977).

2a

Appendix A

Opinion of United States Court of Appeals

that this mechanically assisted viewing of the interior

of the print shop wa- a violation of the Fourth Amend-

ment—that in itself was an unlawful search and also could

not be used as part of the basis for the search warrant.2

[1] It is not necessary that we decide this issue

because we conclude that the warrant was valid even

without the fruits of the observation through the telescope

and binoculars.

Following is a transcript of relevant parts of the

telephone conversation between Secret Service agent

Kivett (“K”) and Magistrate Feldman (“F”).

K: OK, on 4/28/78, a Leo Joseph Saitta, told a

Special Agent of the Secret Service, who was

operating in an undercover capacity, that he,

Saitta, was going to have counterfeit currency

printed and would sell it to the agent. The agent

? Defendants rely principally upon U.S. v. Kim, 415 F.Supp.

1252 (D. Hawaii 1976)(observation into defendant’s apartment and

of his balcony, conducted from 160 feet away, and % of a mile away,

through telescope and binoculars, held an invalid search: similar

observation of those walking from elevator to defendant's apartment,

by way of an outdoor terrace, held not invalid). See also, People v.

Arno, 90 Cal.App.3d 505, 153 Cal.R ptr. 624 (1979). Contra, On Lee vy.

U.S., 343 U.S. 747, 754, 72 S.Ct. 967,96 L.Ed. 1270, 1276 (1952)(dicta);

Fullbright v. U.S., 392 F.2d 432 (10th Cir.), cert. denied, 393 U.S. 830,

89 S.Ct. 97, 21 L.Ed.2d 101 (1968); Hodges v. U.S., 243 F.2d 281

(Sth Cir. 1957); Johnson v. State, 2 Md.App. 300, 234 A.2d 464 (1967);

State v. Thompson, 196 Neb. 55, 241 N.W.2d 511 (1976); Common-

walth v. Hernley, 216 Pa. Super. 177, 263 A.2d 904 (1970), cert. denied,

401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971); State v. Manly,

85 Wash.2d 120, 530 P.2d 306, cert. denied sub nom., McIntire v.

Washington, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 81 (1975); but cf.

State v. Loyd, 435 P.2d 797 (Idaho 1967) (use of flashlight to look

into car).

3a

Appendix A

Opinion of United States Court of Appeals

gave Saitta $700.00 in genuine currency, which

Saitta said he was going to use to purchase ink

and paper, that he would locate a printer on

4/29/78, and print up the counterfeit, which was

to be delivered on the afternoon of 4/30/78.

Saitta under surveillance on 4/29/78, by agents

of the Secret Service, when he flew-from Jackson-

ville, Fla., to Atlanta, Ga., where he made several

telephone calls and a short time later was met

at the airport by James Patrick Westfall. They

drove trom the airport to J & C Graphics, 1168

Richards Dr., I’m sorry, Richards Rd., Decatur,

Ga., which is operated by Westfall. They entered

the graphic shop at 11:47 AM, 4/29/78. Westfall

has left and returned twice but Saitta ‘is still

there and they are both are [sic] there at this

time. Special Agents James M. Beary, Jr. and

Stephen W. Schenk have personally observed both

Saitta and Westfall working on negatives of Fed-

eral Reserve Notes. They recognize these as nega-

tives based on their years of experience as Secret

Service Agents, by their size and shape, which

is that of the back of Federal Reserve Notes, as

indicated by the schroll and lathe work around

the corners and sides. The negatives were in

goldenrod paper, which is used prior to burning

plates from negatives. They also observed Westfall

holding up the goldenrod paper, with the nega-

tives in it, as if checking his workmanship. SA

Beary also observed goldenrod paper with cuts

in it the same shape and size as the Treasury Seal

and Serial No.’s on Federal Reserve Notes. In

order for Saitta to have counterfeit currency

ready to deliver by tomorrow afternoon, the

4a

Appendix A

Opinion of United States Court of Appeals

printing must begin immediately. It should also

be noted that Westfall has been previously con-

victed for printing counterfeit FRN’s. Agents

Beary and Schenk are continuing their surveillance

of Westfall and Saitta in the J & C Graphics.

* * * * * *

F: Do you have any previous information on whether

or not Saitta has a prior criminal record[?]

K: Yes sir, he does have a prior criminal record,

he has an FBI number, I’m not. . . don’t know

exactly what his record is, but he does have an

FBI number so that means he would have a prior

criminal record.

* * * * * *

F: And you say Westfall has previously been con-

victed.

K: Westfall was, has previously been convicted,

yes sir, and if you will hold on one moment I can

find that information for you if you'll like.

OK

Hold on.

I don’t have the date, Judge, but it was under

our Secret Service file # J-315-CO-3373-2.

Alright [sic], now,

He was arrested after passing these notes in New

Iberia, Louisiana, I don’t have the date.

Summarizing, here is what the magistrate knew:

—On May 28 Saitta told an undercover Secret

Service agent that he would have counterfeit currency

printed and would sell it to the agent.

—The agent gave Saitta $700 which Saitta said he

would use to purchase ink and paper.

—Saitta said he would locate a printer on May 29

and print up the money.

Sa

Appendix A

Opinion of United States Court of Appeals

—The money was to be delivered on the afternoon

of May 30.

—Saitta flew to Atlanta and was met at the airport

by Westfall. They went to Westfall’s printing shop, arriving

there at 11:47 A. M. Westfall came and went but Saitta

was still there at 9:36 p. m.

—In order for Saitta to have the counterfeit cur-

rency ready to deliver on the afternoon of May 30, the

printing would have to begin immediately.

—Wesifall previously had been convicted for printing

counterfeit Federal Reserve notes.

—Saitta had a prior criminal record.

—Westfall had been arrested after passing “these

[counterfeit] notes” in New Iberia, Louisiana.

[2] These circumstances adequately established

probable cause to believe that criminal activity was going

on in the print shop, and, even more specifically, criminal

activity related to printing or preparation for printing

of the counterfeit currency that Saitta had agreed would

be delivered less than 24 hours later. As a result, we need

not reach the appellants’ allegations regarding the

binocular-telescope search, particularly where, as here,

the independent information was obtained prior to the

search and thus was not even arguably “fruit of a poisonous

tree.” See U.S. v Giordano, 416 U.S. 505, 554-56, 94 S.Ct.

1820, 1845, 40 L.Ed.2d 341, 375-76 (1974)(Powell, J.,

concurring in part and dissenting in part, joined by

Burger, C.J. and Blackmun and Rehnquist, JJ.); U.S. v.

Williams, 594 F.2d 86, 95 n.17 (5th Cir. 1979); U.S. v.

Tarrant, 460 F.2d 701, 703-04 (Sth Cir. 1972); U.S. v.

Marchand, 564 F.2d 983, 992-94 (2d Cir. 1977), cert.

denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978);

6a

Appendix A

Opinion of United States Court of Appeals

Howell v. Cupp, 427 F.2d 36, 38 (9th Cir. 1970); James v.

U.S., 135 U.S. App. D.C. 314, 418 F.2d 1150 (D.C. Cir.

1969); U.S. v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966).3

AFFIRMED.

> Westfall, and possibly Saitta also, contended below that the

warrant was invalid because Westfall had not been convicted for

counterfeiting Federal Reserve notes but had been tried and con-

victed in United States court in Corpus Christi, Texas, for the offense

of interstate forgery. The record at the motion to suppress hearing

showed that Westfall had been charged with possessing and passing

counterfeit currency but that the complaint was dismissed and that

he pleaded guilty to the charge of interstate forgery. Kivett’s state-

ment to the magistrate was based upona teletype from the San Antonio,

Texas, office of the Secret Service which indicated that Westfall had

been convicted of counterfeiting. Relying upon Franks v. Delaware,

438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the district court

held tuat the erroneous statements by the magistrate concerning

Westfall’s conviction were not made knowingly or intentionally or

with a reckless disregard of the truth, and that even without the

Statement that Westfall had been convicted of counterfeiting the

information given by Kivett established probable cause. Neither

defendant raises on appeal Kivett’s misstatement as a basis for

invalidating the warrant. Nevertheless, since we base our decision

upon examination of the adequacy of probable cause without the

fruits of the aural observation, we consider the sufficiency of the

information before the magistrate without including the erroneous

Statement that Westfall had been convicted of counterfeiting, and

hold that it was adequate.

Ta

Appendix B

Opinion of United States District Court

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

Criminal Action No. C78-179A

UNITED STATES OF AMERICA

-VS-

JAMES PATRICK WESTFALL,

LEO JOSEPH SAITTA

MAGISTRATE’S ORDER AND

REPORT AND RECOMMENDATION UPON

DEFENDANTS’ PRE-TRIAL MOTIONS AND

FINAL CERTIFICATION

Defendant James Patrick Westfall is charged in each

count of a twelve count indictment and Defendant Leo

Joseph Saitta is jointly charged in seven of the twelve

counts with having willfully, knowingly, and with intent

to defraud the United States counterfeited and conspired

to counterfeit obligations of the United States, that is

Federal Reserve Notes, drawn on the Treasurer of the

United States, as well as possession of said notes and

the implements to make them, in violation of 18 U.S.C.

§§ 471, 472 and 474. The matter is presently before the

Magistrate for consideration of several pre-trial motions

filed by the defendants.

MOTION FOR DISCOVERY AND INSPECTION

The Government indicates in its response to defend-

ants’ various motions that it has complied with Rule 16

of the Fed.R.Crim.P. as well as this Court’s Local Rule

190 (191.2) in allowing the defendants to discover and

8a

Appendix B

Opinion of United States District Court

inspect Rule 16 materials in the Government’s possession.

While there is no requirement for an Order on this matter

at this time, the Government and the defendants are

reminded that they have a continuing obligation to furnish

to each other any additional materials that may come

into their possession.

MOTIONS TO SUPPRESS

Each of the defendants moves to suppress any and

all evidence obtained by virtue of the execution of a

telephonic search warrant issued by Magistrate Feldman

on the night of April 29, 1978, at the premises of J & C

Graphics, Inc., 1168 Richards Road, Decatur, Georgia.

Defendants contend that the facts communicated to the

Magistrate on the issue of probable cause for the issuance

of the warrant were illegally obtained by the Government

in violation of the defendants’ Fourth Amendment rights

to freedom from unreasonable search and seizure. Defend-

ants further contend that the Government agents orally

communicated information to the Magistrate which was

untrue and that said communication was made willfully

and intentionally on the part of the Government agents.

Underlying Facts

Prior to April 29, 1978, the date of the arrest, the

Atlanta office of the Secret Service had received infor-

mation concerning defendant Saitta in connection with

alleged counterfeiting activity. In March 1978, co-defend-

ant Saitta had passed a quantity of counterfeit $10 and $20

Federal Reserve Notes to an undercover Secret Service

agent. (Transcript of July 21, 1978 [hereinafter referred

to as TR II], page 38). Following that exchange, Saitta

agreed to deliver an additional sum of counterfeit notes

a ns aN 2 ttn

9a

Appendix B

Opinion of United States District Court

to undercover agents in Jacksonville, Florida, on April 30,

1978. (TR II, 38). Saitta flew to Jacksonville, Florida,

on April 28, 1978, to meet with said agents who delivered

$700 to Saitta to cover the expenses to be incurred in the

printing of the counterfeit paper. (TR II, 39). The next

day, on April 29, 1978, Saitta flew to Atlanta arriving at

Hartsfield International Airport in the morning. (TR II,

40). It was at this point that surveillance by the Secret

Service began. Observation revealed that after Westfall

met Saitta at the airport, they proceeded directly to the

J & C Graphics Company at 1168 Richards Road, Decatur,

Georgia, where they arrived at approximately 11:45 a.m.

(TR II, 36). The building in which J & C Graphics was

located, is a single story, glassed front structure, housing

_three businesses open to the public. The lots adjacent

to this commercial structure were either vacant, undevel-

oped or residential properties. (Defendant’s Exhibits M2-7

and 15). The entrance door to the shop was a regular

aluminum framed door with see-through smoked glass,

and the windows were clear glass but covered by trans-

parent fixed-position blinds. There was a walkway along

the entire length of the building as well as a blacktop

parking lot between the front of the building and Richards

Road. A surveillance team lead by Special Agents Beary

and Schenk was set up immediately and kept its vigil

until 11:07 p.m. when the search warrant was executed.

Agents Beary and Schenk initially conducted their sur-

veillance in an automobile by occasionally cruising past

the store. (TR II, 40). Eventually, at approximately 8 p.m.,

the two agents took up concealed positions in a wooded

area estimated to be 130 feet across the street from the

front entrance of J & C Graphics. (Transcript of July 20,

1978, [hereinafter referred to as TR I, Page 73). Although

they were unable to see into the store during the daytime

10a

Appendix B

Opinion of United States District Court

surveillance; after nightfall, because of the contrasting

brightly lit interior they were able to view defendants’

activities from their concealed vantage point. Some

observations of the premises were conducted with the

assistance of binoculars which were rated at nine power

and a twenty power telescope which could zoom to forty

power (TR I, 75-76). Agent Beary has stated that although

they could make out the outlines of objects and persons

in the J & C Graphics Store front through the transparent

blinds, it was exclusively through a gap in the non-abutting

blinds draping the store front windows that the evidence

indicating the actual manufacture of counterfeit money

was seen. The gap was purportedly wide enough to afford

an unobstructed full view of defendants (TR I, 66-67).!

Agent Beary further testified that he was able to see

details of a negative lithograph through this opening in

the blinds, which in his expert opinion included lathe

work and style work resembling that contained on a genu-

ine Federal Reserve Note (TR I, 81, 99). All of defendants’

activities which were later recounted to justify the search

warrant were conducted in the glassed wall front right

room of J & C Graphics. After gathering this information

Agent Beary forwarded this information to Special Agent

Kivett who was stationed at the Atlanta office of the Secret

Service. Agent Kivett in turn informed Judge Feldman via

telephone of the activities Agent Beary had witnessed.

In addition, Judge Feldman was informed of co-defendant

Westfall’s past criminal record and co-defendant Saitta’s

| The actual gap between the two separate blinds remained very

much in dispute throughout the evidentiary hearing. Neither of the

two Secret Service Agents who testified could agree upon the actual

gap width between the two units. Nor is there any agreement between

the agents and defendant Westfall and defense witness Frazier.

te .

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Appendix B

Opinion of United States District Court

previous contacts with undercover Secret Service Agents.

(Search Warrant, Defendant’s Exhibit M-19). Agent

Kivett represented that in 1970 defendant Westfall had

been convicted for printing and passing counterfeit

Federal Reserve Notes in Texas.” Based upon all the factors

contained in the sworn telephonic statement, Judge

Feldman issued a telephonic search warrant at 9:46 p.m

April 29, 1978. This warrant was executed at 11:07 p.m.

by the Secret Service at the premises of J & C Graphics.

Use of Binoculars and Telescope

Defendants here contend that the use of binoculars

and a telescope by FBI agents in conducting a surveillance

of the business location constitute a violation of their

Fourth Amendment protection against unreasonable

searches and seizures. Relying upon Katz v. United States

389 U.S. 347 (1967) and United States v. Kim, 415 F. Supp.

1252 (D.C. Hawaii 1976) defendants contend that the

actions of the agents constituted a warrantless search of

the premises of J & C Graphics, Inc. and therefore was

per se unreasonable. The Government takes the position

that Katz stands for the proposition that there must

first have been exhibited an actual (subjective) expectation

? Defendant Westfall has never been prosecuted for passing

counterfeit notes by the United States Attorney’s office in Houston

Texas. He has, however, been convicted of forgery in the State Court

of Louisiana. Furthermore, defendant has also received a ten year

sentence for interstate forgery charges from the United States District

Court for the Southern District of Texas. The sentencing judge con-

sidered the counterfeiting violations when directing this federal

term to be served concurrently with the state sentence (Government

Exhibits M-12 and 13). Evidence supporting the federal prosecution

was obtained, in part, through a consenual search of defendant’s

Texas residence as well as, a voluntary confession given by defendant

(Government's Exhibits M-5, 6, 7).

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Opinion of United States District Court

of privacy, and second that the expectation be one that

society is prepared to recognize as “reasonable” (389 U.S.

at 361).

While the District Court opinion in Kim supra held

that evidence obtained through the warrantless use of

telescopic aid should be excluded, numerous other courts

have dealt with the question of the warrantless use of

binoculars and telescopes to assist in surveillance and

found’ no violation of Fourth Amendment rights. See,

United States v. Minton, 488 F.2d 37 (4th Cir. 1973),

cert. den. 416 U.S. 936 (1974); Fulbright v. United States,

392 F.2d 432 (10th Cir.), cert. den. 393 U.S. 830 (1968);

Commonwealth v. Hernley, 216 Pa. Super. * Re ge

263 A.2d 904 (1970), cert. den. 401 U.S. 914 (1971).

In Kim supra the defendant was observed by Govern-

ment agents from a building one-quarter mile away

from his building. The observations were made by the

agents in the residence or apartment of Kim located on

an upper floor of a high-rise apartment building. The

Court there held that the evidence obtained from the

telescopic surveillance of Kim’s apartment and balcony

should be suppressed. (415 F. Supp. at 1258). The Court

went on to state that their finding related only to activities

“within Kim’s apartment” and that if the surveillance

had been on activities on the balcony of the apartment

that the Court might very well not have found any invasion

of privacy.

The factual differences between Kim supra and the

instant case are great. Here the premises under surveillance

was a public business location on a public street on the

ground floor with a sidewalk directly in front of the

premises. The business was surrounded by other public

businesses and was located in a small public shopping

athint thea aii

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Appendix B

Opinion of United States District Court

area and contained a sign on the outside indicating its

public nature. While the evidence indicated that there

were stationary plastic blinds located in the windows of

the business establishment here in question, there was

no indication that these blinds had been placed over the

window for privacy on this particular occasion but only

that they remained in that position at all times during the

Operation of this business. There can be no comparison

of the expectation of privacy in an apartment residence

on an upper floor of a high-rise apartment and a com-

mercial business on the street level open to the public

The evidence here further indicated that the agents were

able to see equipment and persons through the blinds

and that the blinds contained a gap between two sections

through which a person passing on the outside walk could

view the inside. The entry door to J & C Graphics, while

smoke colored, was clear and visibility inside the premises

was there for any member of the public to view. There

does not appear in the record of the hearing of this matter

any evidence that indicates that the defendants were

attempting to keep from public view any of their activities

in the manufacture of counterfeit Federal Reserve Notes.

The photographs of the premises in this matter and the

testimony of the agents indicate that what the agents saw

through the binoculars and telescope could have been seen

bya person walking on the sidewalk in front of the com-

mercial premises. (TR I, pp. 98, 99).

It is difficult for this Magistrate to apply the theory

of Katz dealing with electronic surveillance to the instant

case dealing with binocular observation of material

clearly visible to any member of the passing public. While

one might reasonably expect privacy in a telephone

conversation that same expectation would not apply while

counterfeiting Federal Bank Notes in a commercial

business on a public street clearly visible to all those

passing.

i a I i a

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Appendix B

Opinion of United States District Court

It is the opinion of this Magistrate that the use of

binoculars and a telescope by the Government agents

while located in a public place did not violate the Fourth

Amendment rights of the defendants. The factual differ-

ences between the instant case and those found in Kim

supra do not require that this Court follow the Kim

decision. The decisions in Fulbright and Hernley appear

to have much more relevance to the instant facts than

does Kim.

Misrepresentations in Affidavit to Obtain Warrant

Defendant Westfall contends that the affiant gave to

the Magistrate untrue information in order to obtain the

issuance of the warrant. He contends that the statement

that defendant Westfall had previously been convicted for

printing counterfeit Federal Reserve Notes was false. The

evidence indicates that Westfall was not convicted for

counterfeiting Federal Reserve Notes but was tried and

sentenced in the Federal Court in Corpus Christi, Texas

for the offense of Interstate Forgery. At the time of his

sentence, the District Court Judge indicated that he was

taking into consideration the counterfeiting violations of

Westfall. The record indicates that Westfall was in fact

charged with possessing and passing a counterfeited

obligation of the United States but that the complaint was

subsequently dismissed and he plead guilty to the charge

set forth above.

The Supreme Court has held in Franks v. Delaware,

Supreme Court __—, 46 Law Week 4669 (1978)

that a defendant must show that the false statements

made by the complaining officer must have been necessary

to a finding of probable cause and that such false statements

were made knowingly and intentionally or with reckless

-

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Appendix B

Opinion of United States District Court

disregard of the truth. Here the evidence indicates that

Westfall had in fact been charged with possession of a

counterfeit note even though the charge had subsequently

been dismissed. The Government agent was in fact relying

upon a teletype from the San Antonio office of the Secret

Service which indicated that Westfall had been convicted

of counterfeiting. On the basis of the evidence available

to the Government agent at the time there is no indication

that he intentionally indicated an untrue fact to the Magis-

trate or that he acted in willful disregard of the truth.

If, in fact, the statement of the affiant that Westfall

had been convicted of counterfeiting were stripped from the

information given to the Magistrate, it is the conclusion of

this Magistrate that there still remained probable cause in

the remaining information sworn to at that time. The facts

sworn to indicating that Saitta had made a previous sale of

counterfeit notes, that Saitta had accepted funds from an

undercover federal agent in order to purchase supplies

for the sale of an additional $100,000 of Federal Reserve

Notes, the fact that Saitta was met at the Atlanta Airport

by Westfall and that the two defendants spent the day at

the commercial printing premises of Westfall all constitute

sufficient probable cause for the issuance of the warrant

even excluding the information concerning Westfall’s

conviction. It is thus the opinion of this Magistrate that

there remained sufficient evidence in the warrant affidavit

to indicate probable cause that the search warrant should

issue.

Standing

The Government takes no issue with the contention of

defendant Westfall that he has standing to move for sup-

pression of the evidence obtained in the execution of the

search warrant here in question. While the Government

does take issue with the standing of defendant Saitta to

l6a

Appendix B

Opinion of United States District Court

question the validity of the warrant and subsequent

evidence obtained thereunder because of the conclusion

of this Magistrate to deny the motion to suppress it is

not necessary to treat the issue of standing of defendant

Saitta at this time.

DEFENDANT SAITTA’S MOTION

FOR SEVERANCE

Defendant Saitta has moved for severance from co-

defendant Westfall pursuant to Fed.R.Crim.P. Rule 14.

Through pre-trial discovery, defendant Saitta has received

a copy of a statement made by co-defendant Westfall

inculpating Saitta with the crimes charged in the indict-

ment. Defendant alleges that in light of this statement

co-defendant Westfall will be unlikely to testify at trial.

Furthermore, if the Government elects to introduce co-

defendant Westfall’s statement into the record and Westfall

does not choose to testify, defendant asserts that he will

be prejudiced and denied his Sixth Amendment right to

confront adverse witnesses. This potential dilemma finds

its origins in United States v. Bruton, 416 F.2d 310 (8th

Cir.) cert. den. 397 U.S. 1014 (1969).

Remindful of the fact that severance lies within the

sound discretion of the Court, defendant’s motion should

be denied. United States v. Muro, 537 F.2d 1339 (Sth Cir.

1976). The problem presented by defendant is only a

potential conflict that is not certain to be raised at trial.

If, in fact, a Bruton conflict does arise, the problem may

be resolved by an alternative solution of excising all

inculpating references to defendant from co-defendant’s

statement. Muro, supra; United States v. Dorsett, 544

F.2nd 687 (4th Cir. 1976). The record does not support

defendant’s motion to sever at this time.

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Appendix B

Opinion of United States District Court

CONCLUSION

It is the recommendation of the Magi

defendants’ motions to suppress the iia sctieiaen

under the search warrant issued on April 29, 1978 be

denied for the reasons set forth above. It is further recom-

mended that the motion of defendant Saitta to sever

the trial of his action from that of co-defendant Westfall

be denied at this time and until additional facts indicat

the necessity of the granting of such a motion. :

In all other respects this case i i

lI S believed read

trial and it is so certified at this time. The Case is een

scheduled for trial on August 28, 1978 which is well within

the requirements of this Court’s S

Speedy Trial Act. peedy Trial Plan and the

Let a copy of this Order and R .

eport and Recom-

mendation be served upon counsel for each of the parties

AND IT IS SO ORDERED AN

D RE -

MENDED this 23rd day of August 1978. esa

/s/

JOHN E. DOUGHERTY

UNITED STATES MAGISTRATE -

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Appendix B

Opinion of United States District Court

ORDER

Let a copy of this Order and Recommendation be

served upon counsel for the parties. Counsel for the parties

will be allowed to file objections to this Order prior to

the placing of this case on trial or within ten days of this

Order, whichever shall first occur. If no objections are

made, this Order and Recdmmendation will be adopted

as a record of the proceedings and may become the

opinion and Order of the Court.

The Clerk is directed to submit the Order and Recom-

mendations with objections if any upon receipt.

SO ORDERED this 23rd day of August, 1978.

s/

JOHN E. DOUGHERTY

UNITED STATES MAGISTRATE

ee

19a

Appendix B

Opinion of United States District Court

ORDER

On June 6, 1978, the grand jury returned a twelve

count indictment charging defendant James Patrick

Westfall, in each of the twelve counts, and defendant

Leo Joseph Saitta, in seven of the twelve counts, with

having counterfeited and conspired to counterfeit

obligations of the United States and with possession of

said counterfeit obligations, together with the implements

to make them, in violation of 18 U.S.C. §§ 471, 472 and

474. Presently pending herein is the magistrate’s report

of August 23, 1978, recommending (1) that the defendants’

motion to suppress the evidence obtained pursuant to a

certain telephonic search warrant issued during the night

of April 29, 1978, be denied; and (2) that the motion of

defendant Saitta to sever the trial of his action from that

of co-defendant Westfall be denied at this time without

prejudice to renew it at trial.

The defendants object to the magistrate’s recom-

mendation with respect to their motion to suppress on

the ground that the holding in United States v. Kim,

415 F. Supp. 1252 (Hawaii 1976), should control the

issue of whether the agents’ telescopic surveillance of

their activities at the J & C Graphics Company at 1168

Richards Road in Decatur, Georgia, on the night in

question constituted a violation of their fourth amendment

rights. After careful review and consideration of the

factual distinctions between Kim and the case sub judice,

the court concurs with the magistrate’s findings that the

decisions in Fullbright v. United States, 392 F.2d 432

(10th Cir. 1968), and Commonwealth v. Hernley, 263

A.2d 904 (1970), cert. denied, 401 U.S. 914 (1971), have

more bearing on the facts herein than the decision in

Kim. There are significant differences in the reasonable

20a

Appendix B

Opinion of United States District Court

expectations of privacy of those engaged in activities

conducted within a residence on an upper floor of a

high-rise apartment and those engaged in activities

conducted within the front office of a commercial business

building located on the street level and open to the public

view through blinds containing a gap between two sections,

or through a clear smoke-colored glass door. Further,

Fullbright has been cited with approval by the Court of

Appeals for the Fifth Circuit in a similar case. See United

States v. Grimes, 426 F.2d 706, 708 (Sth Cir. 1970). For

the above reasons, the magistrate’s report and recom-

mendation should be and is hereby approved and adopted

as the opinion and order of this court. Accordingly, the

defendants’ motion to suppress is hereby denied.

IT IS SO ORDERED this 30th day of August, 1978.

/s/

WILLIAM C. O’KELLEY

* United States District Judge