Petition — ANTHONY VALLONE v. UNITED STATES (Nos. 81-754, 81-551, 81-617, 81-805)

81754 SEP 4 1981

— — ALEXANDER L STEVAS,

i

IN THE

Supreme Court of the United States

October Term, 1981

tho aetin

—

ANTHONY VALLONE,

Petitioner,

—

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MICHAEL A. YOUNG

GOLDBERGER, FELDMAN,

DuBIN & YOUNG

Counsel for Petitioner

401 Broadway—Suite 306

New York, N.Y. 10013

(212) 431-9380

i

Questions Presented

Whether the provision of the Speedy Trial Act which

guarantees a defendant at least thirty days be-

tween arraignment and trial to prepare his defense

applies to arraignment on a superseding indictment

charging the defendant with both new and materially

revised crimes.

Whether a claim that “exigencies” prevented agents

from obtaining a warrant before entering a private

premises may properly be based on circumstances

which were anticipated by the agents sufficiently in

advance of their entry to enable them to foresee their

need for a warrant and to make timely and proper

application for one.

Whether the requirement of 18 U.S.C. § 2516(1) for

Justice Department approval for a wiretap applica-

tion is satisfied when that approval is given by some-

one who was never authorized by the current At-

torney General to give such approval.

ii

TABLE OF CONTENTS

PAGE

ge PRP ere es i

e Onan pwns 64 bs hbaees 4be0 RES ahs 1

D ˙—im ces eatuwaccanen’ 2

. 2

REASONS FoR GRANTING THE WRIT:

1.

The Decision Below Raises A Significant And

Recurring Problem Concerning Whether The

Provision Of The Speedy Trial Act Guarantee-

ing A Defendant At Least Thirty Days Between

Arraignment And Trial To Prepare His Defense

Applies To Arraignment On A Superseding In-

dictment Charging The Defendant With Both

New And Materially Revised Crimes ........

The Court Should Grant A Writ of Certiorari

To Resolve The Important Question Of Whether

A Claim That “Exigencies” Prevented Agents

From Obtaining A Warrant Before Entering A

Private Premises May Properly Be Based On

Circumstances Which Were Anticipated By The

Agents Sufficiently In Advance Of Their Entry

To Enable Them To Foresee Their Need For A

Warrant And To Make Timely And Proper

.

A Writ Of Certiorari Should Be Granted To

Determine Whether Justice Department Ap-

proval For A Wiretap, Issued By Someone Other

Than The Current Attorney General And Who

Was Never Authorized By The Current At-

torney General To Give Such Approval, Satisfies

The Requirements Of 18 U.S.C. S 2516(1) ....

14

PAGE

r le deck nc dd K 16

APPENDIX:

/ ee oe Le. 7＋»2!ẽéͤ ˙ ˙ — m1 la

C 11a

TABLE OF AUTHORITIES

Hart +. Coiner, 483 F.2d 136 (4th Cir. 1978) ..... 7

Payton v. New York, — U.S. — (1980), 100 S. Ct.

7. ᷣ . ̃%¾¶ MA ̃]˙ꝛAAʃʃʃ˙ „5 9

Silverman v. United States, 365 U.S. 505, 511, 81

S. Ct. 679, 683, 5 L. Ed. 2d 734. 9

United States v. Campbell, 581 F.2d 22 (2d Cir.

%% (ble 9

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

United States v. Knight, 443 F.2d 174 (6th Cir.

—WW bbb 7

United States v. Millican, 414 F.2d 811 (5th Cir.

%%/ͤr ͤ WWA A n 7

United States v. Reed, 572 F.2d 412, 423 (2d Cir.,

1978), cert. denied, 439 U.S. 9199. 9

Uniti States v. Wuison, 423 U.S. 411 (1976) .... 18

Statutes:

CED. . ů ů .. sess pects 14, 15

/ ůĩ . „ 5, 6, 7

/ eee e 6

Other Authorities:

Speedy Trial Plan for the Scuthern Distriet of New

, oes eeewens 6,7

Second Circuit’s “Guidelines Under the Speedy Trial

Act”, Comment 31 (slip op. at 3157) ......... 6, 7

S. Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.

Code Cong. & Adm. News 2153 at 2185 ...... 14

IN THE

Supreme Court of the United States

October Term, 1981

ANTHONY VALLONE,

Petitioner,

—

UNITED STATES OF AMERICA,

Respondent.

BRIEF FOR PETITIONER

The petitioner Anthony Vallone respectfully prays

that a writ of certiorari issue to review the judgment

of the Court of Appeals for the Second Circuit affirming

the judgment of conviction entered against the petitioner

by the United States District Court for the Southern

District of New York.

Opinions Below

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto at p. la. No opinion was

rendered by the District Court for the Southern District

of New York.

2

Jurisdiction

The date of the judgment of the United States Court

of Appeals for the Second Circuit was May 22, 1981

which was also the date of entry. A timely petition for

rehearing and rehearing en banc was filed by petitioner.

That petition was denied on July 29, 1981. A copy of

the order denying rehearing is set forth in the Appendix

at lla. This Court’s jurisdiction is invoked under Title

28, United States Code, Section 1254(1).

Statement of the Case

Petitioner Vallone was convicted, on the basis of his

plea of guilty, to conspiracy and one substantive count

of possession and distribution of heroin. His plea was

entered on the basis of an assurance by the United States

Attorney for the Southern District of New York and the

District Judge that certain legal issues, including those

raised in this petition, would be preserved for appeal.

A substantial portion of the evidence against peti-

tioner Vallone was obtained from a wiretap which the

Drug Enforcement Agency placed on the telephone of

co-defendant Anthony Todisco. Petitioner Vallone was

named as a target in the wiretap application and was

intercepted while the wiretap was in operation. Con-

sequently, the Courts below held that he had standing to

challenge the legality of that tap.

The wiretap authorization statutes require that the

Attorney General or a properly designated assistant ap-

prove each wiretap application before it is submitted to

the district court. In this case, that approval was given

by Philip Heymann, the Assistant Attorney General in

charge of the Criminal Division of the Department of

Justice. Heymann had never been delegated the au-

thority to approve such applications by the current At-

torney General, however. Rather, he relied for his

authority on an order issued several years earlier by a

former Attorney General. Even that order was suspect,

since it authorized a position—Assistant Attorney Gen-

eral in charge of the Criminal Division—rather than any

one individual, to grant approvals.

Other evidence against petitioner Vallone was seized

during the warrantless entry by DEA agents into apart-

ment 3C at 610 Waring Avenue, Bronx, New York on

September 3, 1980. The agents insisted that the entry

was necessary in order to arrest co-defendant Todisco,

who was then inside the apartment, and that their failure

to obtain a warrant was justified by the fact that any

delay might enable Todisco to be alerted via the phone

in the apartment of the arrests earlier that day of other

alleged co-conspirators.

The trial court found that the Agents had possessed

probable cause to arrest Todisco as early as August 7,

1980, almost four weeks before the arrest actually

occurred. Moreover, the agents conceded that they anti-

cipated in advance that they might arrest Todisco on

September 3, 1980, when they planned to arrest as many

conspirators as possible in the midst of a drug trans-

action. The possibility that Todisco would be alerted by

phone of the arrest of other co-conspirators, contrary to

being an unanticipated exigency, was actually an occur-

ence which the agents both anticipated and actually de-

sired. It was their expressed intent that such calls

would reach Todisco over the wiretapped phone, thereby

generating additional evidence. Consequently, the agents

anticipated in advance both the possibility that such calls

would be made and the possibility that Todisco would be

inside a private premises to receive them. Nevertheless,

the agents failed to secure a warrant authorizing them

to enter such a premises to arrest him.

4

The initial indictment in this case was filed on Sep-

tember 11, 1980. Although the government indicated on

several occasions during the next several months that it

intended to file a superseding indictment, it did not

actually do so until November 25, 1980, five days before

the date which the trial judge had set for the commence-

ment of trial. Although the superseding indictment con-

tained completely new counts, as well as materially dif-

ferent allegations in support of the existing counts, the

trial judge refused to grant any adjournment of trial in

order to enable defense counsel to prepare to meet these

new charges. The defendants thereupon pleaded guilty.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Raises A Significant And Re-

curring Problem Concerning Whether The Pro-

vision Of The Speedy Trial Act Guaranteeing A

Defendant At Least Thirty Days Between Arraign-

ment And Trial To Prepare His Defense Applies To

Arraignment On A _ Superseding Indictment

Charging The Defendant With Both New And

Materially Revised Crimes.

The government indicated on several occasions during

the fall of 1980 that it intended to file a superseding

indictment in this case. It did not do so, however, until

November 25, 1980, five days before the date which the

trial judge had set for the commencement of trial.

Contrary to the Second Circuit’s holding (slip op. at

3157), this superseding indictment was significantly dif-

ferent from its predecessor. Count VII was completely

new, charging petitioner Vallone and others with a

heroin transaction on June 11, 1980. This alleged trans-

action was nowhere mentioned in the original indictment,

5

either as a substantive crime or even as an overt act

in the conspiracy charge.

The nature of the conspiracy charged in the super-

seding indictment was also substantially different from

the conspiracy charged in the original indictment. Thus,

in the “means” section of the original conspiracy charge,

co-defendants Sferraza, Azmbuto and D’Angelo were al-

leged to have been wholesale suppliers of drugs to co-

defendant Todisco’s organization. In the superseding in-

dictment, however, they were placed at the opposite end

of the conspiratorial structure—as distributors of drugs

to customers of the Todisco operation.

Moreover, the superseding indictment alleged almost

twice as many overt acts as the original indictment. As

with Count VII, these included events and dates which

were not even mentioned in the original charges.

Faced with this last minute influx of new charges,

petitioner and the other defendants moved for a thirty

day adjournment of the commencement of trial, so as

to investigate and prepare to defend themselves against

these new allegations. The trial judge’s denial of that

motion (transcript at 809) was error.

First and foremost, petitioner was entitled to the

thirty day adjournment under the Speedy Trial Act.

After explaining that a trial must commence within

seventy days from the date of the filing of the indictment

or the defendant’s first appearance on that indictment,

18 U.S.C. §3161(c) contains the proviso that trial can-

not commence less than thirty days after the defendant

first appears on those charges.

The courts below held that the thirty day provision of

§3161(c) was not applicable where the new charges were

brought in a superseding indictment against a defendant

already charged with other crimes. The clear purpose of

this section, however, was to give the defendant a reason-

able time in which to prepare to defend himself against

new charges. The need for this preparation period would

obviously be the same regardless of whether those charges

were the first being leveled against the defc.dant or

were new charges being brought against a defendant who

was already facing other charges.

In support of their position, the trial judge and the

Second Circuit cited section 50d) (2) of the Speedy Trial

Plan for the Southern District of New York and/or the

Second Circuit’s “Guidelines Under the Speedy Trial Act”,

comment 31 (slip op. at 3157). Although these provis-

ions require trial on a superseding indictment to com-

mence within the time required for trial on the original

indictment, they do not state that the thirty day adjourn-

ment requirement of 18 U.S.C. § 3161(c) is inapplicable

in such situations. Nor could they properly have voided

that section ot the federal statute, either expressly or by

implication. According to 18 U.S.C. § 3165, such plans

must be “in accordance with this chapter” and “con-

sistent with the time standards of this chapter.” Clearly,

then, plans promulgated by the district court or the Second

Circuit cannot contravene or nullify a provision of the

federal law.

Section five of the Southern District Plan and com-

ment 31 of the Second Circuit’s guidelines must there-

fore be interpreted in conjunction with the thirty day

provision of 18 U.S.C. §3161(c). Read together, they

require that if the government intends to file a supersed-

ing indictment containing new charges, it must do so at

least thirty days before the end of the period within which

the case must be brought to trial under the Speedy Trial

Act.

0 7

This conelusion is also mandated by the due process

clause of the Fifth Amendment and the fair trial and

effective assistance of counsel provisions of the Sixth

Amendment. It is a firmly established principle of Con-

stitutional law that defense counsel must be afforded

“reasonable” time so as effectively to prepare for the

defense of his client. See e.g. Hart v. Coiner, 483 F.2d 136

(4th Cir. 1973); United States v. Knight, 443 F.2d 174

(6th Cir. 1971) ; United States v. Millican, 414 F.2d 811

(5th Cir. 1969). Forcing a defendant to trial almost im-

mediately after new charges have been brought against

him clearly violates this right. In the present case, it may

also have been a factor inducing the defendants to waive

their trial rights and plead guilty.

The dilemma between the federal law and the dis-

trict court or Second Circuit plan was of the government’s

own making. Had it brought the superseding indictment

promptly, it could have afforded the defendants the thirty

days to which they were entitled to prepare for trial on

those charges under 18 U.S.C. § 3161(c) and still brought

the case to trial within sixty days after the original in-

dictment, as required by the Southern District plan. The

government’s failure to comply with these time require-

ments should not have led to a deprivation of petitioner’s

rights under the Speedy Trial Act. The trial judge’s de-

nial of petitioner’s motion for a ‘thirty day adjournment

of trial was error which requires that his convictions be

reversed.

2. The Court Should Grant A Writ Of Certiorari To

Resolve The Important Question Of Whether A

Claim That Exigencies“ Prevented Agents From

Obtaining A Warrant Before Entering A Private

Premises May Properly Be Based On Circum-

stances Which Were Anticipated By The Agents

Sufficiently In Advance Of Their Entry To Enable

Them To Foresee Their Need For A Warrant And

To Make Timely And Proper Application For One.

On September 3, 1980, DEA agents entered a private

residence—Apartment 3C at 610 Waring Avenue, Bronx,

New York—for the purpose of arresting co-defendant

Todisco. While there, the agents made observations which

thereafter enabled them to obtain a search warrant, re-

turn to the apartment, and seize various evidence which

the government intended to introduce against petitioner

Vallone and others at trial.

The agents had possessed probable cause to arrest

Todisco since August 7, 1980, almost four weeks before

the actual arrest took place. Nevertheless, the agents

failed to obtain either an arrest warrant or a search war-

rant before making their initial entry into apartment 3C

to arrest that individual. Instead, they relied on circum-

stances existing at the moment of arrest which they

claimed brought them within the “exigencies” exception to

the warrant requirement. The record establishes, however,

that all of those circumstances were anticipated suffi-

ciently in advance of the arrest to enable the agents to

apply for a warrant. Consequently, the courts below

erred in holding that the agents were justified in failing

to secure a warrant before making their initial entry.

The district court held that petitioner Vallone had sufficient

interest in the apartment in question to have standing to chal-

lenge the legality of this warrantless entry.

In the recent landmark case of Payton v. New York,

U.S. (1980), 100 S.Ct. 1371, this Court declared

warrantless entries into private premises in order to

effectuate felony arrests to be unconstitutional, absent

exigent circumstances. In condemning this practice, the

Court stated:

The Fourth Amendment protects the individual’s

privacy in a variety of settings. In none is the

zone of privacy more clearly defined than when

bounded by the unambiguous physical dimensions

of an individual’s home—zone that finds its roots

in clear and specific constitutional terms: “The

right of the people to be secure in their . . houses

. . Shall not be violated.” That language unequivo-

cally establishes the proposition that “(a)t the very

core (of the Fourth Amendment) stands the right

of a man to retreat into his home and there be

free from unreasonable government intrusion.”

Silverman v. United States, 365 U.S. 505, 511, 81

S.Ct. 679, 683, 5 L.Ed.2d 734. In terms that apply

equally to seizures of property and to seizures of

persons, the Fourth Amendment has drawn a firm

line at the entrance to the house. Absent exigent

circumstances, that threshold may not reasonably

be crossed without a warrant. See also Uwnited

States v. Reed, 572 F.2d 412, 423 (2nd Cir.,

1978), cert. denied, 439 U.S. 913; United States

v. Campbell, 581 F.2d 22 (2d Cir. 1978).

The Court left open, however, the question of the type of

“exigent circumstances” that would justify a warrantless

entry for the purpose of either arrest or search.

Even the trial court acknowledged that the present

case posed a difficult question regarding the existence of

exigent circumstances. If the warrant requirement as

enunciated by this Court in the Payton decision is to have

10

any meaningful impact upon the actions of law enforce-

ment agents, this Court must find that the courts below

erred in concluding that the exigency requirement was

satisfied in this case.

The trial court and the Second Circuit both held that

the government agents had probable cause to arrest

Todisco sufficiently far in advance of the actual arrest

to obtain an arrest warrant. (transcript at 1355-56A).

Although the Government thereafter delayed making any

arrests in order to extend their investigation, it was clear,

at least by September 2, 1980, that the investigation was

coming to a conclusion.

It is at this juncture—September 2, 1980—that the

reasonableness of the Government’s actions must be

closely scrutinized. On this critical day, the investigation

team held a strategy meeting at which it was determined

that a “buy and bust” operation would be conducted the

following day, wherein the conspirators would be arrested

in the course of a drug transaction. Consequently, as of

September 2, 1980, twenty-four hours before those arrests

took place, the agents not only had probable cause to ar-

rest Todisco and the others, but had actually made the

decision to effectuate those arrests on September 3rd. In

fact, the agents were specifically briefed on September

2nd as to their responsibilities concerning such arrests.

They even discussed the ramifications of the Payton deci-

sion, encompassing the warrant requirement and the

issue of exigent circumstances. It was also decided that

several assistant United States Attorneys were to be

available on September 3rd for the immediate prepara-

tion of any search or arrest warrants which might be

needed.

Thus, at least by September 2nd, 1980, the agents had

every reason to believe that Todisco would be arrested on

the following day, barring any unforeseen circumstances.

11

Moreover, the agents clearly anticipated that they might

have to enter a private premises in order to effectuate

arrest. In fact, the agents deliberately planned to arrest

certain other conspirators before Todisco, in the hope

that the arrests of his alleged co-conspirators would gen-

erate incriminating telephone calls to Todisco over his

wiretapped phone. Consequently, the agents clearly fore-

saw the possibility that Todisco might have to be arrested

inside a private premises, namely, his home, where that

wiretapped phone was located. Nevertheless, those agents

inexplicably failed to obtain an arrest warrant for

Todisco.

Given the agents’ discussion of the Payton decision at

their meeting on September 2nd, the government cannot

rationally argue that the agents acted in “good faith”

ignorant of their duty to obtain an arrest warrant.

Rather, it seems clear that the agents had made a cal-

culated decision to ignore the Payton mandate, and to

seek instead to manufacture the exigent circumstances

which would authorize them to effectuate a warrantless

arrest.

In any event, the exigent circumstances which the

trial court found to have existed on the 3rd were all

either already in existence or easily forseeable at the

time of the September 2nd meeting. Thus, at the hearing

below, case agent Corcoran testified that the exigencies

necessitating a warrantless entry of Apartment 3C to

arrest Todisco arose from the fact that if the agents had

paused to obtain a warrant on September third, Todisco

might have become aware of petitioner Vallone’s arrest

earlier that day and have escaped or destroyed evidence.

In support of this speculation, Corcoran pointed to the

fact that Vallone was arrested on his warn back to the

Waring Avenue apartment, in the midst “ a six stage

drug transaction. Since Vallone was clearly expected to

12

appear at the apartment, Corcoran speculated, his fail-

ure to do so would alert Todisco that something was

wrong. Corcoran also speculated that since Vallone was

arrested on a public street and since the Waring Avenue

apartment had a phone, someone who had seen Vallone’s

arrest might phone Todisco to warn him.

These arguments are a classic example of manufac-

tured exigencies. The agents were aware on September

2nd that the transaction on the 3rd would take place in

six stages. Consequently, they were clearly aware in

advance that if any arrest took place while that trans-

action would in progress, it might create a situation

wherein the agents would not have the time to procure

warranis to arrest the other suspects. Likewise, the

agents were well aware on the 2nd that regardless of

whether Todisco was at home, at work, or at the Waring

Avenue apartment, he would be near a phone and there-

fore might be warned by phone once the arrests began to

take place. In fact, they had expressed the hope that

Todisco would receive precisely that type of telephone

warning over the wiretapped line, thereby generating

additional incriminating wiretap recordings. The agents

likewise knew on September 2nd that the suspects might

be armed, since this is invariably accepted as a truism by

the courts in drug cases. And, of course, the agents

knew on September 2nd that the suspects might try to

escape or destroy evidence if the time were taken to pro-

cure a warrant on the 3rd.

Because these reputed exigent circumstances were al-

ready in existence or foreseeable on September 2nd, the

Government should not be permitted to rely on them to

justify the September 3rd warrantless entry to arrest.

Rather, the fact that these so-called exigent circumstances

were known to the agents on September 2nd made it

mandatory that they secure the required arrest warrant

in advance of the planned arrest. Certainly, it would

13

have presented no obstacle to their investigation if such

a warrant had been obtained. An arrest warrant, un-

like a search warrant, will continue to be valid for an

indefinite time since once probable cause to arrest exists,

it will exist into the future if no intervening exculpatory

facts are uncovered. United States v. Watson, 423 U.S.

411 (1976).

Todisco was under constant surveillance on September

3rd. The agents had every opportunity of effecting his

arrest on the street, as they did with Vallone and Acosta.

In this context, the fact that the agents deliberately de-

layed taking such aciton and chose instead to make the

arrest inside Apartment 3C at 610 Waring Avenue sug-

gests that they were using the arrest in that locale as a

pretexi to gain access to that apartment.

Petitioner is not arguing, as the Second Circuit sug-

gested (slip op. at 3154), that Agents must arrest some-

one as soon as they have probable cause to do so. What

petitioner does maintain, however, is that where Agents

contemplate i.e possibility of arresting someone inside a

private dwelling and possess probable cause for that ar-

rest sufficiently far in advance of that contemplated

arrest to obtain an arrest warrant, they are required by

the Fourth Amendment to do so.

To permit the Government in such circumstances to

forego obtaining a warrant and then to rely on “exigen-

cies,” all of which were anticipated in advance, to justify

a warrantless arrest would significantly undermine

Fourth Amendment guarantees. If such a result is to be

avoided, this Court must conclude that the failure by the

agents to obtain the requisite arrest warrant for Todisco

vitiated the entry into Apartment 3C, thereby requiring

the suppression of all evidence seized as a result of that

entry.

14

3. A Writ Of Certiorari Should Be Granted To De-

termine Whether Justice Department Approval

For A Wiretap, issued By Someone Other Than The

Current Attorney General And Who Was Never

Authorized By The Current Attorney General To

Give Such Approval, Satisfies The Requirements

Of 18 U.S.C. § 2516(1).

When Congress enacted the wiretap statutes, it was

particularly concerned that resort to this extremely in-

trusive investigative technique be closely supervised and

centrally controlled. Consequently, rather than simply

authorizing any law enforcement official or even any

United States Attorney to initiate such an application on

his own, section 2516(1) of the Act proviced that only

the Attorney General, or any Assistant Attorney General

specially designated by the Attorney General, could au-

thorize a wiretap application. According to the legisla-

tive history, this provision was designed to centralize the

authority to seek a wiretap warrant in a responsible pub-

lie official subject to the political process so as to insure

that such person would formulate a uniform policy as to

this sensitive area of law enforcement, and that there

would be “lines of responsibility to an identifiable per-

son” in the event that eavesdropping authority was

abused. S. Rep. No. 1097, 90th Cong., 2d Sess., 1968

U.S. Code Cong. & Adm. News 2153 at 2185. Strict com-

pliance with this requirement is mandatory; otherwise,

the wiretap evidence must be suppressed. United States

v. Giordano, 416 U.S. 505 (1974).

In the present case, the government claimed to have

satisfied the requirements of § 2516(1) through letters of

authorization provided by Philip Heymann, the Assistant

Attorney General for the Criminal Division of the Depart-

ment of Justice. According to Mr. Heymann’s letters of

authorization, he relied for his authority to grant such

15

authorizations on “Order Number 799-78, dated August

15, 1978,” which, he claimed, “specially designated me to

authorize applications for court orders authorizing the

interception of wire or oral communications.”

Examination of that order establishes, however, that

Mr. Heymann was never properly designated to provide

the authorizations for the wiretap applications in this

ease. Under § 2516(1), it is clearly only the current

Attorney General who is empowered either to authorize

the wiretaps or designate one of his assistants to do so.

Order 799-78 was not issued by Benjamin Civiletti, the

Attorney General at the time of the authorizations in this

case. Rather, it was issued by Griffin Bell, the former

Attorney General, who had resigned that post many

months before the authorizations in this case were issued.

Since the individual who was Attorney General at the

time Mr. Heymann issued the authorizations in this case

had never delegated the authority to issue such authoriza-

tions to him, Mr. Heymann lacked the authority to prop-

erly perform that function.

Moreover, even assuming that a delegation by a former

Attorney General could be sufficient to satisfy § 2516 (1),

Order 799-78 did not constitute a proper delegation of

the wiretap authorization power. Section 2516(1) says

that the Assistant Attorney General must be “specially

designated by the Attorney General“ in order properly

to exercise this power. Order 799-78 did not authorize

any special individual, such as Philip Heymann, to exer-

cise this power, however. Rather, it simply designated

any person occupying the position of Assistant Attorney

General in Charge of the Criminal Division to perform

this function. Delegation to a position, rather than an

individual, frustrates the Congressional determination in

enacting § 2516(1) to insure close supervision and identi-

fiable persons of responsibility. Consequently, Order

16

799-78 did not constitute a proper delegation of authority

to Mr. Heymann to approve the wiretap applications in

this case.

CONCLUSION

For these reasons a Writ of Certiorari should

issue to review the judgment and opinions of The

Court of Appeals for The Second Circuit.

Respectfully submitted,

MICHAEL A. YOUNG

GOLDBERGER, FELDMAN,

DuBIN & YOUNG

Counsel for Petitioner

401 Broadway—Suite 306

New York, N.Y. 10013

(212) 431 - 9380

APPENDIX

la

Opinion

UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

eae

Nos. 1380-1, 1385-6, 1391-2, 1395—-September Term, 1980

(Argued May 20, 1981 Decided May 22, 1981)

Docket Nos. 81-1052-1058

ieee,

UNITED STATES OF AMERICA,

Appellee,

aa me

ANTHONY Tobisco, ANTHONY VALLONE, JOHN CAMPO-

PIANO, SALVATORE SFERRAZZA, ALFONSE ZAMBUTO,

LEONARD BARRACANO, and DAV D’ANGELO,

Defendants-A ppellants.

Before:

Moore, TIMBERS and MESKILL,

Circuit Judges.

Appeals from judgments of conviction entered in the

Southern District of New York, Robert J. Ward, District

Judge, of violations of the federal narcotics laws.

Affirmed.

—

BARRY IVAN SLOTNICK, New York, N.Y. (Jay

L. T. Breakstone, New York, N.Y., on the

brief), for appellant Todisco.

MICHAEL YOUNG, New York, N.Y. (Goldber-

ger, Feldman, Dubin & Young, New York,

N.Y., on the brief), for appellant Vallone.

JULIA Hert, New York, N.Y. (Edward Panzer,

New York, N.Y., on the brief), for appel-

lant Barracano.

2a

Opinion

MICHAEL L. SANTANGELO, New York, N. V.,

for appellant Campopiano,

ANTHONY V. LOMBARDINO, Kew Gardens,

N. V., for appellant Sferrazza,

ALBERT A. GAUDELLI, Flushing, N.Y., for ap-

pellant Zambuto.

STEVEN B. DUKE, New Haven, Conn., for ap-

pellant D’ Angelo.

RICHARD A. MARTIN, Asst. U.S. Atty., New

York, N.Y. (John S. Martin, Jr., U.S.

Atty., Lawrence F. Ruggiero, Mark F.

Pomerantz and Mary Jo White, Asst. U.S.

Attys., New York, N.Y., on the brief),

for appellee.

PER CURIAM:

Appellants were convicted on various counts of a fif-

teen count indictment which charged them with con-

spiracy, and the distribution, possession and possession

with intent to distribute heroin, in violation of 21 U.S.C.

$§ 812, 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C.

§2 (1976). All appellants except D’Angelo pled guilty

following the denial of their motions to suppress certain

evidence, but preserved their right to appeal from the

denial of their pre-trial motions. D’Angelo was convicted

following a jury trial. From the judgments of conviction '

* Appellants were sentenced as follows:

Todisco ....Five concurrent 30 year terms; 10 years special parole.

Vallone Two concurrent 20 year terms; 10 years special parole.

Barracano..Up to 10 years under the Young Adult Offender Act.

Zambuto ...Two concurrent 7 year terms; 3 years special parole.

Sferrazza .. Two concurrent 10 year terms; 3 years special parole.

Campopiano 15 years.

D’Angelo. ..Three concurrent 10 year terms; 3 years special parole.

3a

Opinion

entered on February 4, 1981, Robert J. Ward, District

Judge, all appellants have appealed. For the reasons

below, we affirm the convictions of all appellants on al!

counts.

The indictment followed a four month investigation by

65 agents of the Drug Enforcement Administration

(DEA). The investigation concluded on September 3,

1980, at which time a $900,000, 3 kilogram, heroin sale

was slated to take place in several installments. The sale

had been negotiated between undercover DEA agents and

appellants and their associates. To the extent relevant to

the issues on appeal, the details of that investigation will

be set forth below. For convenience, we shall rule upon

the issues raised on appeal by referring to the events

before, on and after September 3, 1980.

1. Events Before September 3, 1980

We hold that no search warrant was required for the

installation of two “pen registers” on appellant Todisco’s

telephones. Smith v. Maryland, 442 U.S. 735 (1979). We

are not persuaded by appellant’s effort to distinguish the

Smith case on the ground that the pen register there was

installed with the assistance of the telephone company.

First, the Court in Smith held that the telephone company

was acting as an agent of the police for Fourth Amend-

ment purposes. Id. at 739, n.4. Moreover, the Court’s

reasoning—that the installation of a pen register is not

a Fourth Amendment search—applies with equal force

to this case. In any event, appellants did not move for

the suppression of the evidence obtained from the pen

register and have not attempted to justify their delay.

Their claim, even if it were meritorious, has been waived.

United States v. Rollins, 522 F.2d 160, 165 (2 Cir. 1975),

cert. denied, 424 U.S. 918 (1976).

There was ample probable cause to support the wire-

taps on Todisco’s telephone. They were authorized by

da

Opinion

Chief Judge Weinstein in the Eastern District of New

York on August 7, 1980, and were extended by Judge

Nickerson of the same court on August 26, 1980. Aside

from the deference properly accorded to the determination

by the issuing judge that there was probable cause, United

States v. Perry, No. 79-1047, slip op. 6749, 6772 (2 Cir.

Feb. 9, 1981), we hold, viewing the supporting affidavits

as a whole and in a practical and common sense manner,

United States v. Steinberg, 525 F.2d 1126, 1130 (2 Cir.

1975), cert. denied, 425 U.S. 971 (1976), and in light of

the ongoing investigation, that there was probable cause.

Todisco, a known narcotics dealer, had numerous contacts

with individuals who were selling large quantities of

heroin to undercover DEA agents. The pen register had

disclosed numerous calls to other known narcotics dealers.

Todisco also was seen publicly with known dealers. While

these contacts, as appellants suggest, are subject to an

innocent interpretation when viewed in isolation, in view

of the ongoing investigation and the close proximity in

time between many of the contacts and the known sales,

we hold that there was probable cause to believe that

Todisco was involved.

We also hold that the affidavits adequately alleged that

normal investigative procedures had been or would be

ineffective. The affidavits did disclose the standard in-

vestigative techniques which had been employed and the

paucity of evidence which had resulted, or could be ex-

pected to result, therefrom. United States v. Vasquez,

605 F.2d 1269, 1282 (2 Cir.), cert. denied, 444 U.S. 981

(1979). Appellants’ observation that the language em-

ployed in the affidavit in this regard resembled that used

in another case is irrelevant, especially since there is no

claim that the assertions are untrue or do not apply to

the facts herein.

We also held that the application was properly autho-

rized. Order No. 799-78 clearly was adequate to empower

5a

Opinion

the Assistant Attorney General of the Criminal Division,

Philip Heymann, to authorize the application. In re Weir,

520 F.2d 662, 667 (9 Cir. 1975). There is no question

here, as there was in United States v. Giordano, 416 U.S.

505 (1974) (relied upon by appellants), that the Assist-

ant Attorney General did not actually sign the memo-

randum approving the application. There is no require-

ment that the authorizing official must recite his reasons

for approving a recommended wiretap application. We

decline appellants’ invitation to hold that the district court

erred in refusing to hold a full evidentiary hearing based

on appellants’ unfounded speculation.

Finally, with respect to the events before September 8,

1980, we hold that the district court’s finding of fact that

the “August 8, 1980” date on the order authorizing the

wiretaps was a ministerial error and therefore insig-

nificant, was not clearly erroneous.

2. Events on September 3, 1980

We hold that the warrantless arrest of Todisco in

Apartment 3C at 610 Waring Avenue was lawful. There

can be no doubt that, under the precedents in this Circuit,

the district court did not err in refusing to suppress the

“fruits” of that arrest, including the evidence uncovered

in the subsequent search of the apartment. United States

v. Campbell, 581 F.2d 22, 26 (2 Cir. 1979) ; United States

v. Reed, 572 F.2d 412, 424 (2 Cir. 1978), cert. denied, 439

F.2d 913 (1978). Todisco was known to be engaged in a

serious crime at the time of his arrest. One of his cohorts

had just been arrested with a gun. And, most compel-

lingly, Todisco was in a position to destroy substantial

evidence of his guilt. Appellants’ assertions that the

DEA agents somehow manufactured“ these events are

belied by the facts. The agents had no way of knowing,

before the events occurred, that Todisco, at the time of

the arrests, would be secreted with a large quantity of

heroin waiting for co-appellant Vallone to return. While

6a

Opinion

an arrest warrant could have been obtained before Sep-

tember 3, we decline, on the fact of this case, to interfere

with the discretion accorded narcotics agents to determine

when they will make an arrest. See United States v.

Santiago, 327 F.2d 573 (2d Cir. 1964). That is especially

so here, where there simply is no basis for the claims of

appellants.

Since the arrest of Todisco, and the entry subsequent

to his arrest, were lawful, there is no question that the

search of Apartment 3C, pursuant to a warrant issued on

Septersber 3, 1980, also was lawful.

Appellants’ claims regarding the warrantless arrest of

appellant Sferrazza, and the search of the Zambuto resi-

dence subsequent to that arrest, also are without merit.

Based on the wiretap evidence, and the DEA agents’ ob-

servations of the meeting between Sferrazza and Todisco

on the morning of the September 3 heroin sale, the agents

clearly had probable cause to arrest Sferrazza. In the

district court Sferrazza unequivocally withdrew his claim

that the warrantless arrest in the Zambuto residence some-

how violated his Fourth Amendment rights. He also

withdrew his claim that evidence seized subsequent to

that arrest, and his confession to DEA agents, should

be suppressed for that reason.

In, view of the claims of other appellants regarding the

Sferrazza arrest, however, we hold that, even assuming

that a warrant was required to arrest Sferrazza in

Zambuto’s home absent exigent circumstances, Steagold

v. United States, 49 U.S.L.W. 4418 (U.S. April 21, 1981),

the arrest here nevertheless was proper. In that regard,

we hold that Judge Ward’s findings of fact, stated on the

record on December 4, 1980, that exigent circumstances

justifying the warrantless arrest clearly existed under

the standards set forth in United States v. Reed, supra,

were not clearly erroneous.

7a

Opinion

We hold that the evidence seized in the Zambuto home

following the Sferrazza arrest was admissible. Mrs. Zam-

buto’s affirmative assistance in the discovery of $300,000

in cash hidden in the Zambuto basement is compelling evi-

dence that she voluntarily consented to the search, United

States v. Rothberg, 460 F.2d 223 (2 Cir. 1973). The

money therefore was admissible. The district court found

that Mrs. Zambuto’s testimony that she was coerced by

the DEA agents to assist in their search was “unbeliev-

able.” This finding was based in part on her demeanor

and her unresponsive answers to questions on cross-

examination. The district court challenged “any who

read the record [to] find otherwise.“ Having carefully

read the record, and according deference to the district

court’s determination of witness credibility, Alessi v.

United States, 628 F.2d 1133, 1135 (2 Cir. 1980), we

hold that the district court’s admission of this evidence

was proper.

Similarly, we hold that Sferrazza knowingly and intel-

ligently waived his Miranda rights before making in-

criminating statements to the DEA agents. Based on

Sferrazza’s in-court behavior and the recorded telephone

conversations involving him, the district court had an

ample basis for discounting appellant’s claim that he did

not understand English.

We further hold that the execution of the search war-

rant covering the Zambuto home on the evening of Sep-

tember 3 did not violate anyone’s rights under the Fourth

Amendment. The district court’s finding of fact that

the search began before 10 P.M. was not clearly erron-

eous, in the light of testimony that the agents were noti-

fied by telephone that the warrant had been approved by

Magistrate Chrein at 9:50 P.M.

The search of Todisco’s home, pursuant to a warrant

issued on September 3, also was lawful. There is no

inconsistency between the September 3 application for

8a

Opinion

that warrant and the DEA agents’ earlier application for

a wiretap order for Todisco’s telephone. There was no

evidence, prior to Todisco’s arrest on September 3, that

he ever physically possessed heroin. There is no merit

in appellants’ claim that the agents were required to

discuss with the magistrate on September 3 the contents

of the earlier, irrelevant, application for a wiretap.

3. Events After September 3

We hold that the district court did not abuse its dis-

cretion in refusing to grant a continuance after the filing

of a superseding indictment on November 25, 1980. First,

the Speedy Trial Act, 18 U.S.C. § 3161(c) (1980 Supp.),

does not divest the district court of its discretion to grant

or refuse a continuance. The district court’s inquiry and

ruling on the motion for a continuance was consistent

with the guidelines promulgated by this Circuit under

the Speedy Trial Act. Guidelines Under the Speedy Triai

Act, II L, comment, at 31 (January 16, 1979). While

those guidelines do not have the force of law, they are

entitled to appropriate respect. Appellants’ arguments

do not convince us that those guidelines are incorrect or

inconsistent with the statute, or that 18 U.S.C. § 3161(c)

stripped the district court of its discretion under the

circumstances of this case.

In view of the fact that the charges in the superseding

indictment were substantially the same as those in the

original indictment and in view of the fact that sub-

stantial discovery had taken place, we hold that the

district court did not abuse its discretion in refusing to

grant a continuance.

Similarly, the district court did not abuse its discretion

in refusing to grant D’Angelo a continuance on the eve

of trial to obtain new counsel. The court gave D’Angelo

an ample and continuing opportunity to air his com-

piaints about counsel. These amounted to no more than

a disagreement about tactics and an unspecified “loss of

9a

Opinion

confidence.” The court had ample opportunity to observe

counsel and to note his competence during the months

before trial when the same counsel represented D’Angelo,

without incident. In addition, the court did its utmost ‘to

accommodate D’Angelo’s concerns without disrupting the

scheduling of this complex jury trial. We repeatedly have

expressed our concern that district courts be wary of

eleventh hour requests for new counsel. E.., United

States v. Carroll, 510 F.2d 507, 510 (2 Cir. 1975) ; United

States v. Llanes, 374 F.2d 712, 717 (2d Cir. 1967).

Under the circumstances of this case, we hold that the dis-

trict court’s refusal to grant a continuance was a proper

exercise of his discretion.

We also hold that D’Angelo’s representation at trial

was by no means constitutionally ineffective under this

Cireuit's standard. E.g., United States v. Bubar, 567

F.2d 192, 202 (2 Cir. 1977), cert. denied, 434 U.S. 872

(1977). We find no merit in the claim that the district

court deprived D’Angelo of a fair trial by failing to ex-

clude evidence which appellant’s counsel made a conscious,

tactical, decision to present

We further hold that there was sufficient evidence to

support the jury verdict convicting D’Angelo. First, the

court did not err in admitting the hearsay statements of

D’Angelo’s co-conspirators. There was ample independent

evidence of D’Angelo’s participation in the conspiracy to

permit the admission of these statements. United States

v. Geaney, 417 F.2d 1117 (2 Cir. 1969). The court and

jury were free to reject D’Angelo’s “innocent” interpreta-

tion of the telephone calls and clandestine meetings which

D’Angelo had with Todisco and his associates. United

States v. Weisman, 624 F.2d 1118, 1130 (2 Cir. 1980),

cert. denied, —— U.S. —— (1981). In asking us to ac-

cept his innocent gloss on the evidence before the district

court, D’Angelo in effect is asking us to view those events

10a

Opinion

in isolation and to disregard the fact that they occurred

during substantial heroin sales to undercover agents. We

hold that there was sufficient evidence upon which the

jury could find D’Angelo guilty beyond a reasonable

doubt.

Finally, we hold that Todisco’s claim that his guilty

plea was not knowingly and intelligently made is frivo-

lous. Todisco, represented by counsel, engaged in a coi-

loquy with the district court which more than adequately

demonstrated that he understood the nature of the charges

to which he pled guilty. |

All appellants were convicted of serious offenses on the

basis of overwhelming evidence of guilt—six by pleading

guilty and one after a jury trial. Our careful examination

of the record satisfies us that all appellants were accorded

a fair hearing, by a conscientious district judge, on their

pre-trial motions and, in the case of one appellant, at his

jury trial. We affirm the convictions of all appellants on

all counts. We order that the mandate issue forthwith.

Affirmed.

lla

Order

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the

29th day of July , one thousand nine hundred and

eighty-one.

Docket No. 81-1052 thru 81-1058

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

aus Y, aan

ANTHONY Topisco, a/k/a Lefty, SAL SFERRAZZA, a/k/a

Grandpa, ALPHONSE ZAMBUTO, JOHN CAMPOPIANO,

a/k/a Uncle John, a/k/a Echoes, ANTHONY VALLONE,

a/k/a Tutti, LENNY BARRACANO, a/k/a the Kid,

David D’ANGELO, HECTOR TORRES, a/k/a Picaro,

a/k/a Pic, a/k/a Woody, a/k/a Shvartza, Luis

AcosTA, a/k/a Louis Molina, a/k/a Angel,

Defendants,

ANTHONY Topisco, a/k/a Lefty, SAL SFERRAZZA, a/k/a

Grandpa, ALPHONSE ZAMBUTO, JOHN CAMPOPIANO,

a/k/a Uncle John, a/k/a Echoes, ANTHONY VALLONE,

a/k/a Tutti, LENNY BARRACANO, a/k/a the Kid,

DAVID D’ ANGELO,

Defendants-A ppellants.

Petitions for rehearing containing suggestions that

the action be reheard in banc having been filed herein by

counsel for the defendants-appellants Anthony Todisco,

Salvatore Sferrazza, Alphonse Zambuto, David D’Angelo,

and Anthony Vallone,

12a

Order

Upon consideration by the panel that heard the appeal,

it is Ordered that said petitions for rehearing are

DENIED.

It is further noted that the suggestions for rehearing

in banc have been transmitted to the judges of the court

in regular active service and to any other judge on the

panel that heard the appeal and that no such judge has

requested that a vote be taken thereon.

A. DANIEL FUSARO,

Clerk.

By: FRANCIS X. GUIDHART,

Chief Deputy Clerk.