Petition — Williams v. United States
Supreme Court brief1983
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82-1689
Office -Supreme Court, U.S,
‘ FILED
APR 35 1983
|
ALEXANDER L. STEVAS,
SEER K
IN THE
Supreme Court of the United States
October Term, 1982
WILLARD WILLIAMS,
Petitioner,
-against-
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
JAY GOLDBERG, P.C.
Attorney for Petitioner
230 Park Avenue
Suite 935
New York, New York 10169
(212) 370-1000
i
Questions Presented
1. Does an individual have any privacy interest
protected by the Fourth Amendment in the contents of
sealed opaque containers which by necessity are placed
curbside at his residence for trash collection? Did the
repeated warrantless, non exigent searches, on fourteen
occasions over a six month period of twenty-three sealed
bags of petitioner’s trash, offend Fourth Amendment
rights as enunciated by this Court?
2. Did the Second Circuit’s decision upholding the
court ordered eavesdropping conflict with 18 U.S.C.
§2518(4)(c) and the Fourth Amendment rule of partic-
ularity as to the place from which conversations may be
seized? Did the continuous eavesdropping of second floor
bedroom conversations following two orders expressly
limiting interceptions to first fioor living room
conversations in a two level duplex apartment, offend
Petitioner’s constitutional and statutory rights where the
Government conceded the absence of probable cause as
to the second flcor bedroom?
ii
Table of Contents
EE
erates sac adid ans bveseseavenns
eer eed ra nwhe pene edseeee es
Constitutional Amendment Involved ...........
EME CD 6 kode cevtcssccecccsecesns
The Second Circuit Opinion ....................
Reason for Granting the Writ ..................
The Decision Below Raises Important Issues
of Federal Constitutional Law Which Have Not
Been and Should Be Resolved By This Court .
A. The Second Circuit Interpreted This
Court’s Fourth Amendment Holdings When
It Ruled That An Individual Is Deemed To
Have Abandoned Any And All Expectations
Of Privacy In Sealed Bags Of Trash Which
By Necessity Are Placed Curbside At His
Home For Collection. Repeated Warrant-
less, Non-Exigent Searches, On Fourteen
Occasions Over A Six-Month Period, Of
Twenty-Three Sealed Bags of Petitioner’s
Trash Violated His Fourth Amendment
a
wo wo Ww — eo,
ili
B. The Second Circuit Decision Upholding
The Court Ordered Eavesdropping Con-
flicted With 18 U.S.C. 2518(4)(c) And The
Fourth Amendment Rule Of Particularity As
To The Place From Which Conversation May
Be Seized. The Continuous Eavesdropping of
Second Floor Bedroom Conversations Follow-
ing Two Orders Expressly Limiting Inter-
ceptions To First Floor Living Room Con-
versations In A Two-Level Duplex Apart-
ment, Offended Petitioner's Constitutional
And Statutory Rights Where The Government
Conceded Absence of Probable Cause As 'T»
The Second Floor Bedroom.................
The Seizure Of Upstairs Conversations
Amounted To a General Search ........
If The Trial Court Were Correct That
The Bugs Could Seize Conversations
From Any Place, Then The Orders Were
In The Nature of General Warrants ....
The Appropriate Remedy...............
I oS ree eee ua tae wen se ea ee en
Appendix A - Opinion of United States Court of
PR kin 6 60a vk $d eae eae cannes
Appendix B - Opinion and Order of United States
RES CEE bx acncxscaceb ae ceunccabenectens.
Appendix C - Opinion and Order of United States
RPG NE 5 i 5o.i:6d'0 sca pane deca uate dendas ei
Appendix D - Opinion and Order of United States
SE hss vk ca eee cae
Appendix E - First Eavesdropping Order and
Excerpts of Government’s Supporting Papers .
52a
iv
Table of Authorities
Cases:
Abel v. United States, 362 U.S. 217 (1966)... 10, 11, 12
Andresen v. Maryland, 427 U.S. 463 (1976) ..... 21, 23
Arkansas v. Sanders, 442 U.S. 753 ............. 12
Berger v. New York, 388 U.S. 41 (1967) ......... 21
Camara v. Municipal Court, 387 U.S. 523 (1967) 13
Chenkin v. Bellevue Hospital Center, 479 F.Supp.
RB. | Ue ree rey ae 8
Coolidge v. New Hampshire, 402 U.S. 443, 91
S.Ct. 2022, 29 L.Ed.2d 564 (1971).......... 23, 24, 27
Davis v. United States, 327 F.2d 301 (9th Cir. 1964) 12
Katsaris v. United States, 684 F.2d 758 (5th Cir.
wt yGr taal hiwbs vs ues cbens seas s 3a 0Ke 08 11
Katz v. United States,
389 U.S. 347 (1967) ... ccc vee 4, 7, 8, 9, 10, 11, 13, 22
Keiningham v. United States, 287 F.2d 126 (D.C.
2 IRM Cpa ree rer 2 ne rear 21
Lopez v. United States, 373 U.S. 427............ 23
Magda v. Benson, 536 F.2d 111 (6th Cir. 1976) .. 10
Marron v. United States, 275 U.S. 196, 48 S.Ct. 76 27
Marshall v. Barlow’s Inc., 436 U.S. 307 (1978) .. 13
Mincey v. Arizona, 437 U.S. 385..............6. 10
People v. Krivda, 5 Cal. 3d 357, 96 Cal. Rptr. 62,
486 P.2d 1262, cert. granted, 405 U.S. 1039,
remanded 409 U.S. 33 (1972) Aff'd on both state
and federal grounds, 8 Cal. 3d 623, 105 Cal.
Rptr. 521, 504 P.2d 457, cert. denied, 412 US.
Or ra enn OL nl aneans i xeassat ess 3, 11
People v. Sirhan, 7 Cal. 3d 369 .............00.. 12
People v. Stewart, 110 Cal. Rptr. 227 (Ct. App.
ee Cee ee ea ba aban bene 12
Reid v. Georgia, 100 S.Ct. 2752 (1980)........... 8, 13
Rios v. United States, 364 U.S. 253 (1960)....... 11
Roberts v. United States, 332 F.2d 892 (8th Cir.
I So aac CU an eG yes cick ég ee eae 12
Vv
Scott v. United States, 436 U.S. 128 (1978).......
In re Search Warrant, 572 F.2d 321 (D.C. Cir.
ee ee awe
ea sieecaniinieaninaat We
Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13
RR
Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22
csc ts cco aeeheeeseteeseaye
Steele v. United States, 267 U.S. 2198 (1925) ....
United States v. Agapito, 620 F.2d 324 (2nd Cir.
cS eee ed ovndbeeeeese
cc acens
1972) ........ | _ , Sa
PEC CsGeae eles kink encnsvebhenesssnceesseeas
United States v. Chadwick, 433 U.S. i Séemas 10,
United States v. Cortina, 630 F.2d 1207 (7th Cir.
Te sve e eek beeen eecess
1978) LEME ELaS Dae KEN Ouse eed ns de bnbddtereeses
a eh easbeecbeusees
United States v. Donovan, 429 U.S. 413 (1976) ..
United States v. Dzialak, 441 F.2d 212 (2nd Cir.
1971 i dceeesees
1979) ........ (2 eee
United States v. Fernandez, 430 F.Supp. 794
ie ian ced ednie ska enews
United States v. Heldt, 668 F.2d 1238 (D.C. 1981)
United States v. Hinton, 543 F.2d 1002 (2nd Cir.
a any SNUBS 6 aR A pe alae
United States v. Hinton, 219 F.2d 324 (7th Cir.
ne ee oa ea ve wu e's
26
12,13
29
28
238
19, 23
26
vi
United States v. Hubbard, 493 F.S. 209 (D.C. 1979)
United States v. Jackson, 448 F.2d 963 (9th Cir.
1971)cert. denied, 405 U.S. 924 (1972) .........
United States v. Jordan, 399 F.2d 610 (2nd Cir.
RG oe ans pb ade a eiad \
United States v. Kahn, 415 U.S. 143 (1974) .....
United States v. Klein, 565 F.2d 183 (1st Cir.
slg re a ds aa 6 vw aiaaece b's
retry Cer rere er ee
1976) ........ Li oe
United States v. Nine 200-Barrel Tanks of Beer,
ED ys vip scuccunaxcsseidesvace
United States v. Parmenter, 531 F.S. 975 (D.C.
MO ACA gen i Ps are
United States v. Principe, 499 F.2d 1135 (1st Cir.
ee ee cea esd g a has es 6a u's a0 o8
| ROR ae
ae MAS EE oD
1982 “at AD SIE Pa Re lato” gl om
SMES TOO EE NR err eee
1970) ........ Teac. eas, os Je ,
United States v. Taborda, 635 F.2d 131 (2nd Cir.
Ne lke wd upn ee 66 is
I
United States v. Tracy, 350 F.2d 658 (3d Cir.),
cert. denied, 382 U.S. 943, 86 S.Ct. 390, 15
i UID svc cancbccsecccsceccsecces
United States v. Vahalik, 606 F.2d 99 (5th Cir.
Rs reac eke eGpeey Koons sedenans
28,
10,
23
29
10
vii
United States v. Vilhotti, 323 F.Supp. 425 (SDNY,
BSA Nk iv acnne nchans Oe seen eau cebiesnds sss 9
United States v. White, 407 U.S. 745 (1971) ..... 8
Walter v. United States., 100 S.Ct. 2395 (1980) .. 13
Warden v. Hayden, 387 U.S. 294 (1967) ......... 11
United States Constitution:
Fourth Amendment .... i, 2,6, 7, 8, 9, 10, 13, 14, 22, 27, 30
Statutory Provisions:
EE aaa Woo os knee kak web ad i, 14, 21, 25
ES end WEG a an trea kaceaeene evens ens 2,4
is ED 55 oss ke Woe uh bapesskehtbecanes 2
Other Authorities:
W. LaFave, Search and Seizure §4.10 (1978)...... 21
“Perspectives on the Fourth Amendment,” 58
PE Bas ET: CREED vidas i cee wedeburecosns 9
Senate Report, 1097 (1968), U.S. Code Cong. and
I IE ask ovdncseivcisaedvekvessues 24
ee, at a ES BOG og 6-05 6 b-y dws 0 56688 Re bee KS i)
a
IN THE
Supreme Court of the United States
October Term, 1982
WILLARD WILLIAMS,
Petitioner,
against
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Petitioner, Willard Williams, respectfully prays that
a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Second Circuit
entered in this proceeding on February 18, 1983.
Opinions Below
The opinion of the Second Circuit, rendered on
February 13, 1983 is unreported but reproduced in the
Appendix, infra at p. la.
2
The opinion of the District Court rendered on De
cember 1, 1981 is reported at 527 F.Supp. 859 (SDNY,
1981) and is reproduced in the Appendix, infra at p. 38a.
Jurisdiction
On February 18, 1983 the Second Circuit entered its
judgment affirming the judgment of conviction en-
tered by the District Court, Southern District of New
York, following a guilty plea finding petitioner guilty
of one count of an indictment charging him with organ-
izing a continuing criminal enterprise engaged in the
possession and distribution of narcotics in violation of
21 U.S.C. 848.
Petitioner was sentenced on May 7, 1982 to the cus-
tody of the Attorney General for «@ lifetime term without
parole.
Petitioner is the only defendant ever to receive a life
sentence without parole under this statute on a guilty
plea. He is serving that sentence.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
Constitutional Amendment Involved
United States Constitution, Fourth Amendment:
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unrea-
sonable searches and seizures shall not be vio-
lated...
Statement of the Case
The Second Circuit reviewed a judgment of con-
viction entered in the United States District Court for
the Southern District of New York on May 7, 1982 by the
Hon. Richard Owen, United States District Judge,
following petitioner’s plea to a violation of 21 U.S.C. 848
charging that he engaged in a continuing narcotic enter-
prise.
3
Petitioner received, on his plea, the maximum
sentence provided by law, i.e. a life sentence without
any chance of parole.*
The case against Petitioner was in large part
established by the fruits of repeated warrantless non-
exigent searches, on at least fourteen occasions over a
six-month period, of twenty-three sealed bags of peti-
tioner’s trash which he had placed on the sidewalk
outside of the apartment building in which he lived.
No application was ever made to a judicial officer to
seize or to search the bags. The fruits of the searches
provided the foundation for the court-ordered eaves-
dropping. The courts below disposed of the issue raised
by treating the trash as abandoned property.
This Court has previously indicated an interest in
the issue of whether an urban dweller can be said to
have no expectation of privacy when, by necessity, he is
forced to place his trash outside his home for collection.
See People v. Krivda, 5 Cal. 3d 357, 96 Cal. Rptr 62, 486
P.2d 1262, cert. granted, 405 U.S. 1039, remanded 409
U.S. 33 (1972) Aff'd on both state and federal grounds, 8
Cal. 3d 623, 105 Cal. Rptr. 521, 504 P.2d 457, cert. denied,
412 U.S. 919 (1973).
The remaining foundation for the case against the
petitioner were the fruits of two eavesdropping orders.
These orders limited the authorized intercepts to the
one area in petitioner’s two-story two apartment duplex
where probable cause existed to believe criminal activity
had been taking place, that being the ground floor living
room area (Apartment J).** The government conceded
* Filed at the same time as this petition 1s petitioner's certiorari
petition from the Second Circuit judgment in Williams v. United
States wherein that Court ruled that despite the “ill advised”
comments of the Trial Judge prior to the guilty plea, which the de-
fense claimed reasonably conveyed the impression petitioner would
not receive a life sentence, they “fail to provide a basis for the § 2255
claim of involuntariness...”
** Reproduced in the Appendix infra at p. 52a is a copy of the first
order. The two orders had the same limitation.
4
that no probable cause existed to believe criminal con-
duct existed in the upstairs apartment (Apartment 1J)
which was petitioner’s bedroom.*
The government, having drafted the orders, under-
stood that the orders limited the right to intercept only
those conversations occurring in the ground floor living
room.** Within days of the installation of the first
eavesdropping device, however, it became clear that the
device, though placed on the ground floor, was picking
up incriminating conversations from the upstairs apart-
ment.
The record was also clear that the government, in its
five-day reports as well as the renewal bugging applica-
tion and the wiretap order, not only kept the facts from
the Court, but falsely represented that the fruits were
those only of first floor conversations.***
The Trial Court and the Second Circuit both ruled
that as long as the devices were placed on the ground
floor, then it was appropriate to intercept conversations
from areas other than the first floor, if the conversations
could be picked up on first floor devices. This view, we
suggest, is closely comparable to the discredited Ninth
Circuit analysis rejected in Katz v. United States, 389
U.S. 347 (1967). There, as here, the bug was placed in a
non-protected area (in our case, in an authorized area).
Conversations were picked up, however, originating ina
protected area. Despite the Ninth circuit view, this Court
ruled that the intercepts violated the petitioner’s Fourth
Amendment riguts.
Once these motions were denied, petitioner pleaded
guilty pursuant to 21 U.S.C. 848 reserving the right to
appeal issues raised relating to his pretrial sup-
pression claims.
* See infra, p. 20.
** Reproduced in the Appendix at p. 57a is the relevant portion of
the government's instructions to the agents.
*** Reproduced in the Appendix at p. 60a is a typical 5-day report.
5
Prior to plea, these claims were reserved:
(1) that the repeated warrantless non-exigent
searches on at least fourteen (14) occasions over
a six-month period of twenty-three (23) sealed
bags of petitioner’s trash violated his Fourth
Amendment rights and thus, tainted the elec-
tronic surveillance orders;
(2) that the execution of the electronic surveillance
orders amounted to general searches in that
agents, though authorized to intercept conver-
sations from the first floor of petitioner’s apart-
ment, knowingly and repeatedly intercepted
conversations from the second floor apartment
of his two floor duplex. The intercepts, there-
fore, were beyond the limits of the orders. If on
the other hand the Second Circuit were correct
that the orders permitted interceptions of con-
versations wherever occurring, as long as
picked up on the first floor bug then the orders,
we submit, were infirm as in the nature of gen-
eral warrants by reason of their lack of speci-
ficity as to the place from which the conversa-
tions could be intercepted.*
The Second Circuit Opinion
As to the search of petitioner’s trash, the Court
ruled that the “placement of it for collection on a public
sidewalk is inconsistent with the notion that [Williams]
retains a privacy interest in it. His act is one of aban-
donment.”
With respect to the challenge to electronic surveil-
lance, the Court ruled that the orders permitted agents
to intercept such communications as might be audible
by an unenhanced bug in the ground floor living room,
even though originating from the second floor bedroom.
* Another issue was reserved: whether the eavesdropping orders
were signed by an official authorized to do so. See Appendix p. 14a-
17a. We will rely on and adopt the arguments on this issue to be made
in the petitions of co-defendants Porcelli and Guippone.
6
The Court ruled that its holding did not convert the
eavesdropping orders into general warrants since the
orders authorized interception of narcotics-related con-
versations and specified the location where the devices
were to be placed. The Court erroneously did not consider
it crucial that the orders did not specify the place from
which the conversations could be seized.
Reason for Granting the Writ
The Decision Below Raises Important Issues of
Federal Constitutional Law Which Have Not Been
and Should Be Resolved By This Court
A. The Second Circuit Erroneously Interpreted This
Court’s Fourth Amendment Holdings When It Ruled
That An Individual Is Deemed To Have Abandoned Any
And All Expectations Of Privacy In Sealed Bags Of
Trash Which By Necessity Are Placed Curbside At His
Home For Collection. Repeated Warrantless, Non-
Exigent Searches, On Fourteen Occasions Over A Six-
Month Period, Of Twenty-Three Sealed Bags Of Peti-
tioner’s Trash Violated His Fourth Amendment Rights.
It was December 19, 1980 when DEA agents first
observed the manner in which Petitioner disposed of
his trash. He placed in the corridor, just outside his
apartment, “an apparently full green garbage bag uni-
quely closed at the top with a light brown tape approxi-
mately an inch in width.” Thereafter, between Decem-
ber, 1980 and May 26, 1981, the agents made more than
14 warrantless seizures from the sidewalk where the
trash was placed, followed by warrantless searches of
the coritents of twenty-three sealed bags. No claim
of exigency was made.
The warrantless searches revealed, among other
things, rent receipts, pharmacy prescription labels,
bank receipts, traces of narcotics, marnite wrappers,
and handwritten notes reflecting the financial details
of petitioner’s narcotic transactions, with names of
suppliers, customers and amounts owed. The results
7
formed the sine qua non of the government’s proffer
on the issue of probable cause for the two eavesdropping
orders, as well as subsequently obtained search
warrants.
Petitioner presses that the placement of his trash
in sealed opaque bags tor collection did not manifest a
surrender of any and all expectations of privacy to the
police or the general public. The contents of the bags
were carefully concealed and pains had been taken to
seal them. The contents were not visible without empty-
ing or searching through the bags. Opaque bags had
been chosen. Under such circumstances, petitioner had
a reasonable expectation that his trash would not be
rummaged through and picked over by law enforcement
officers acting over a period of six months without a
search warrant.
It was in the lodestar case of Katz v. United States,
389 U.S. 247 (1967), that the Supreme Court held that the
Fourth Amendment protects people not places, from
unreasonable intrusion into their privacy by the govern-
ment. This Court declared:
What a person knowingly exposes to the public
is not a subject of Fourth Amendment protection
(citations omitted). But what he seeks to pre-
serve as private, even in an area accessible to
the public, may be constitutionally protected.
(citations omitted). (Emphasis added) 389 U.S.
at 351-352.
When petitioner placed his trash in an opaque con-
tainer and took pains to seal it with tape, he inten-
tionally chose to preclude exposure of the contents of the
bag to the public. A citizen should not be required to
keep his garbage piled up in his home to avoid explora-
tory searches by the police.
It is conceded that not every privacy interest which
a person asserts is constitutionally protected. ‘The
application of the Fourth Amendment depends on
whether the person invoking its protection can claim a
8
‘justifiable,’ a ‘reasonable,’ or ‘legitimate’ expectation of
privacy that has been invaded by government action.”
Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577 (1979).
This turns on whether the individual’s conduct
demonstrates an actual subjective expectation of pri-
vacy and whether such an expectation is justifiable.
Chenkin v. Bellevue Hospital Center, 479 F. Supp. 207
(SDNY, 1971).
There can be no dispute that petitioner manifested
an actual, subjective e:.pectation of privacy. A person
who willingly engages in criminal conduct in Times
Square at high noon picks his spot and if he is observed,
he could hardly claim that such observation by the
police constituted a Fourth Amendment violation. How
very different though is the case at bar where by neces-
sity (1) the garbage had to be removed from the apart-
ment, and (2) petitioner as a signal of his subjective
interest in privacy, used an opaque bag and then care-
fully sealed it with a separate piece of tape. There
existed an actual, subjective expectation of privacy on
the part of petitioner. The act of necessarily ridding
his apartment of garbage should not be viewed as a
voluntary act abandoning his privacy interest to rum-
maging police officers acting without judicial authority.
(See: Reid v. Georgia, 100 S. Ct. 2752 (1980).
It is agreed that subjective expectation of privacy,
standing alone, is generally not enough to generate
Fourth Amendment protection. There must be an ex-
pectation of privacy which society is prepared to recog-
nize as reasonable. Central to any application of the
Katz rule, as this Court later put it in United States v.
White, 407 U.S. 745 (1971), is a determination of what
“expectations of privacy are constitutionally ‘justifi-
able’.”” But, how then is one to determine whether
society would be willing to view as reasonable petition-
er’s expectation that his sealed trash not be ruammaged
through without a warrant? According to Mr. Justice
Harlan in his dissent in White, the question must be
answered by assessing the nature of a particular prac-
tice, the likely extent of its impact on the individual’s
9
sense of security balanced against the utility of the con-
duct as a technique of law enforcement.
Starting with Justice Harlan’s analysis in Katz,
courts have drawn upon the customs and sensibilities of
the people at large in order to determine what expecta-
tions are constitutionally reasonable. The nature and
quality of privacy is determined by the operation of the
mores on a society and this dictates the sort of privacy
one is led to expect. U.S. v. Vilhotti, 323 F. Supp. 425
(SDNY, 1971). Against the expectation of privacy held
by an individual courts must make a judgment whether
the particular practice threatens a reasonable person’s
sense of security. 6 U. Mich. J. L. Ref. 154, 179-180.
Professor Amsterdam has framed this portion of the
Katz test in these terms: whether permitting the police
regularly to engage in the questioned practice, limited
nothing more than by their own self-restraint requires
the people to which the Fourth Amendment refers to
give up too much of their freedom as the cost of privacy.
“Perspectives on the Fourth Amendment” 58 Minn. L.
Rev. 349 (1974).
The issue is not whether the requirements of law
enforcement may necessitate the search of a citizen's
trash; rather, whether the average citizen is reasonable
in expecting that before police officers embark on a
course of continued searches through one’s sealed trash
in an attempt to uncover incriminating evidence, a judi-
cial officer will be given the opportunity to weigh pri-
vacy against need. In the area of Fourth Amendment
rights, courts do not, except in extraordinary situations,
permit law enforcement officials the exclusive right to
determine for themselves whether privacy ought to
fall in the face of a law enforcement need. Law enforce-
ment officials in non-exigent circumstances would not
be seriously hampered by a requirement to seek judicial
authority before rummaging through a citizen’s trash in
an exploratory way for any bits and pieces which could
incriminate the individual. To be sure, this Court has
reaffirmed the cardinal principle that ‘searches con-
ducted outside the judicial process, without prior
10
approval by judge or magistrate, are per se unreasonable
under the Fourth amendment - subject only to a few
specifically established and well delineated exceptions.’
Ross, supra citing Mincey v. Arizona, 437 U.S. 385, 390.
See also, U.S. v. Chadwick, 433 U.S. 1.
The only possible way to justify the police conduct
in the case at bar is improperly to reach back to a pre-
Katz analysis. This is just what was done in U.S. v.
Dzialak, 441 F.2d 212 (2nd Cir. 1971) where in upholding
a warrantless trash search, the Court post-Katz,
nonetheless relied upon Abel v. U.S., 362 US. 217 (1966)
for the proposition that trash was abandoned property
outside the protection of the Fourth Amendment.
In Dzialak, defendant was a driver for the Railway
Express Agency. An REA agent, investigating the dis-
appearance of merchandise, searched the curbside trash
in front of Dzialak’s home and seized incriminating
evidence. The fruits of this private investigation were
turned over to the FBI which then obtained a warrant
for the search of Dzialak’s home. The defense sought
to suppress simply by reason of the agent’s violation of
the City Administrative Code prohibition against
searches of trash.* The Court, however, was not per-
suaded that the ordinance negated proof of an intent to
abandon. To the Dzialak court, and the weight of
authority, “the act of placing (trash) for collection is an
act of abandonment and what happens to it thereafter is
not within the protection of the Fourth Amendment.”
U.S. v. Crowell, 586 F.2d 1020, 1025 (4th Cir. 1978). See
also U.S. v. Vahalik, 606 F.2d 99 (5th Cir. 1979); U.S. v.
Shelby, 573 F.2d 971 (7th Cir. 1978); Magda v. Benson,
536 F.2d 111 (6th Cir. 1976).
In Abel v. U.S., 362 U.S. 217 (1960), this Court first
addressed the matter of Fourth Amendment rights in
* Clearly Dzialak was mistaken to claim that violation of the
Code made the search illegal. Properly viewed, the existence of the
Code provision should be taken as reassuring the citizen that some
degree of privacy will be respected.
11
trash. Pre-Katz this case dealt with a defendant who
left materials in a hotel room from which he had
checked out. At a time when property law notions were
the key to resolution of Fourth Amendment claims, this
Court held that Abel had surrendered any constitutional
protection in the discarded items.
In light of Katz and its progeny, Abel should not,
in the case at bar, be considered dispositive. Even before
Katz, this Court had signaled the end of relying solely
upon property law concepts to dispose of Fourth Amend-
ment claims. See: Warden v. Hayden, 387 U.S. 294, 304
(1967).*
Petitioner’s expectation of privacy was higher and
rightly more intense than a checked out hotel guest who
had no expectation whatever of returning to the place
from where he had departed. The Court, in Rios v. U.S.,
364 U.S. 253, 262, n.6 (1960), spoke of Abel in terms of
a vacated room.
The California courts appear best to appreciate the
compelling privacy factors in an urban society in sealed
trash placed curbside for collection. See: People v.
Krivda, 5 Cal. 3d 357, vacated and remanded, 409 U.S.
33, affirmed on basis of both state and federal constitu-
tions, 8 Cal. 3d 623.
We do not mean to suggest that in all events, is
trash protected from warrantless searches. The vacated
room situation, as in Abel would not require a warrant.
See U.S. v. Jordan, 399 F.2d 610 (2nd Cir. 1968). Some
of the other situations in which trash would probably
not be protected are as follows: Trash deposited in a
roadside barrel or a refuse container in an airline
terminal: U.S. v. Jackson, 448 F.2d 963, 971 (9th Cir.
1971), cert. denied, 405 U.S. 924 (1972) (privacy under the
Katz rationale forfeited when defendants placed articles
* While property law concepts may still be considered, there can
be no finding of abandonment where petitioner discarded his trash
out of “necessity, duty or utility to himself.” Katsaris v. U.S. 684 F.2d
758 at 762 (5th Cir. 1982).
12
in public trash can outside motel room). Trash that is in
plain view near or on top of a trash container: People v.
Sirhan, 7 Cal. 3d 369 (policeman saw letter lying in plain
view in box of trash while stationed in backyard to
protect privacy of mother of alleged assassin of Senator
Robert Kennedy): U.S. v. Stroble, 431 F.2d 1273 (6th Cir.
1970) (empty carton and IBM card lying beside garbage
cans); Davis v. U.S., 327 F.2d 301 (9th Cir. 1964)
(marijuana discovered in plain view in two wastebaskets
after valid entry of home); Trash seized with valid third
party consent: Abel v. U.S., 362 217, 225 (1960) (items
seized from wastebasket after hotel management
consented to search following Abel’s checkout but before
the normal checkout hour); Roberts v. U.S., 332 F.2d 892
(8th Cir. 1964) (wife consented to seizure of bullet
abandoned by husband in ceiling of home). Trash seized
under exigent circumstances: U.S. v. Brown, 457 F.2d 731
(1st Cir. 1972) (substantial risk of destruction of evidence
in trash barrel and rubbish piles) (the Brown court did
not reach what it termed the “difficult” issue of whether
trash is abandoned property, id at 734 n.2); People v.
Stewart, 110 Cal. Rptr., 227 (Ct. App. 1973) (probable
cause existed and trash about to be collected).
In the case at bar, assuming a law enforcement need
to seize the garbage, it nonetheless was in a sealed
opaque bag when seized. See: U.S. v. Chadwick, 433,
U.S. 1; Arkansas v. Sanders, 442 U.S. 753, which place
great emphasis on the expectation of privacy arising
from the act of sealing or locking a container. In United
States v. Ross, U.S. (June 6, 1982), this
Court stated:
One point on which the Court was in virtually
unanimous agreement in Robbins was that a con-
stitutional distinction between “worthy” and
“unworthy” containers would be improper.
* * *
13
As Justice Stewart stated in Robbins, the Fourth
Amendment provides protection to the owner of
every container that conceals its contents from
plain view. 453 U.S., at 427 (plurality opinion).
(Emphasis added.)
Even items thrown away do not justify, without
more, a warrantless search of contents when the con-
tainer is reduced to police possession and no exigency
exists. See Reid v. Georgia, 100 S. Ct. 2752 (1980).
The right to seize does not confer the right to conduct a
warrantless search. Walter v. U.S. 100 S. Ct. 2395 (1980).
The fact that the trash container in the case at bar
was in a public place, did not dispense with the need to
utilize the warrant process to conduct a search even
though the showing of cause is concededly less than for
the search of other places such as a home. Camara uv.
Municipe! Court, 387 U.S. 523 (1967); Marshall v.
Barlow’s Inc., 436 U.S. 307 (1978).
It is no answer to say that petitioner might have
taken steps to further protect his garbage, i.e. by calling
a private collector or by shredding it. It would be a per-
version of Katz to interpret it as extending protection
only to those who resort to special means to keep per-
sonal information from the outstretched hands of the
police. To dispose of this case by suggesting petitioner
could have done more to ensure his privacy, is to say:
Mr. Katz could, of course, have protected himself
against surveillance by forbearing to use the phone.
Amsterdam, supra at page 402. By the same reasoning
Chadwick could have chosen to leave the footlocker at
home, Walter could have taken steps to insure proper
delivery of his mail, Reid could have chosen to better
secrete the case or to have held on to it, and the now
famous Mrs. Mapp could have taken steps to more care-
fully hide her narcotics. Such an analysis which would
dispose of Fourth Amendment claims by resort to what
might have been, what could have been done, has never
proved sufficient in other Fourth Amendment contexts
to defeat a Constitutional claim. There is simply no
14
reason why in this context, a right of such magnitude
should fall by the utilization of what amounts to a
flippant response.
To protect those financially able to hire private
collectors or purchase shredders would be to invest more
protection in the wealthy than poor. Petitioner, by
reason of illness, was essentially confined to bed and
could not personally take his trash toadump. There is no
reason to favor the privacy rights of the mobile over those
persons confined to their home.
In conclusion, the continued warrantless searches
of petitioner’s trash over a course of six months vio-
lated petitioner’s Fourth Amendment rights. Accord-
ingly, the eavesdropping orders which relied upon the
fruits to a material extent were fatally tainted.
B. The Second Circuit Decision Upholding The Court
Ordered Eavesdropping Conflicted With 18 U.S.C. 2518
(4)(c) And The Fourth Amendment Rule Of Particularity
As To The Place From Which Conversations May Be
Seized. The Continuous Eavesdropping Of Second Floor
Bedroom Conversations Following Two Orders Ex-
pressly Limiting Interceptions To First Floor Living
Room Conversations In A Two-Level Duplex Apart-
ment, Offended Petitioner’s Constitutional And Statu-
tory Rights Where The Government Conceded The
Absence Of Probable Cause As To The Second Floor
Bedroom.
1. Factual Discussion
NATURE OF THE ORDERS
On February 18, 1981 and April 2, 1981 Judge Ward
only found that there was probable cause to believe
“that the first floor duplex Apartment J” was being
“used by, or is being used by and will be used during
the period of interception” for the commission of crimes.
The Court was obliged to and did limit the interceptions
of oral conversations concerning described offenses to
those from the first floor of duplex Apartment J.
15
The moving affidavits of AUSA Ruggiero and
Agent O’Connor submitted in support of both orders,
had proffered probable cause only with respect to
criminal activity and oral communications limited to
“inside the first floor of duplex Apartment J.’’*
The government drafted the orders. The instructions
which it gave to the monitoring agents, made it crystal
clear that there was authority to intercept only such con-
versations as occurred “inside the first floor” of the
duplex. The agents were instructed that because of this,
they were to identify “all the people who used the first
floor.’’**
On February 23, 27, March 4, 16 and 19, the District
Court was furnished with five-day reports, purporting to
represent “interceptions of oral communications occur-
ring in the first floor of duplex Apartment J.” Five-day
reports were submitted at appropriate intervals after
the April 2nd Order, representing that first floor con-
versations were all that were being intercepted.
The prosecution, as early as February, 1981, was
aware that the bugs which it placed in the first floor were
picking up conversations which occurred inside the
second floor. It kept this fact from the Court.
What the government did, was purposely to place
bugs inside the first floor so that by reason of their
range or the transient nature of the instrument into
which one of the bugs was placed, conversations could
be intercepted which occurred on the second floor. Or
having appropriately placed the bugs in the first in-
stance, the government decided to keep them in place
upon learning they were intercepting upstairs conversa-
tions.
* The government conceded probable cause existed only as to the
first floor: infra p. 20.
** See Appendix p. 57a, the government’s instructions.
16
Petitioner’s position was this:
(1) The orders only authorized interceptions of oral
communications of persons conversing on the
first floor. Execution of the orders whereby
agents knowingly intercepted second floor
conversations amounted to a general search.
(2) If the Courts below correctly interpreted the
orders as permitting interception of oral com-
munications between parties wherever they
might be as long as they were picked up on these
bugs, the orders were infirm for they constituted
general warrants in that they did not set forth
with required specificity the place from which
the conversations were to be intercepted.
(3) In either event, suppression of all the tapes,
under the circumstances, was the appropriate
remedy.
THE HEARING AND DECISION
On February 18, 1981 Officer Murray, posing as a
telephone repairman, entered the first floor apartment
of petitioner and placed two bugs in that apartment
(A 498).* One bug was placed in the telephone block on a
wall near the couch, the other into the beige telephone
(A 498). The bugs so placed could not intercept upstairs
conversations (A 499). On February 20, Officer Myers
entered, replaced the malfunctioning beige phone and
took out the black phone at petitioner’s request osten-
sibly to repair it. He brought it back on February 24.
Petitioner placed a long extension cord on the unbugged
black phone. The bugged beige phone on arrest had the
standard 12-15 feet cord.
The man who designed the bugs, Robert Brady,
positively testified that use of his bug (which had a
range of 3-15 feet) even if placed midway up the stair-
case, could not pick up a full television dialogue or a
continuous upstairs conversation. Many tapes did just
* “A” refers to Appendix filed in Second Circuit.
17
that. While the government claimed it installed Brady
bugs, Mr. Brady had no firsthand knowledge of this.
Clearly, the range of the Brady bug did not comport with
the way the instant bugs performed. The range into the
upstairs bedroom picking up full dialogue pointed to
enhancement alterations to his kind of bug. Brady
testified that he had the capacity to provide a stationary
bug for installation on the first floor to intercept
downstairs conversations just as the Court had ordered.
However, no one from the government asked him to do so.
If the range of interceptions were widened by placement
into a mobile unit such as a phone, it is clear the
government made a considered choice to do this since it
was not necessary to place the bug in a phone.
Days after installation, agents ran into these diffi-
culties: one bug malfunctioned and, the agents believed
they were picking up second floor conversations. The
prosecutor was alerted and a decision was made to re-
enter Apartment 1J, but to deal with one problem: correct
the malfunctioning bug, not to correct the condition
which caused interception of impermissible
conversations. No one consulted Mr. Brady to explore
wheiner one he had available could properly limit
interceptions to first floor communications. The Court,
in a five-day report, was told of the defective non-
operating bug; it was, however, not told of the
interception of upstairs conversations.
The government’s initial position was that the inter-
cepts were those of first floor conversations. This was
abandoned when DEA handwritten log entries showed
conclusively that upstairs conversations were being
intercepted and agents knew it. The super-
vising DEA Agent admitted that his agents were aware
of these upstairs interceptions shortly after installation
of the bugs. Faced with the existence of many upstairs
interceptions, the government then pressed the doctrine
of plain view, that is, if the bugs were properly placed
then interceptions of upstairs activity were proper. The
inadvertence criterion of the plain view doctrine was, we
suggest, overlooked:
18
1. Having knowledge of the layout of the two apart-
ments, the government chose to place a bug in a mobile
unit, such as a phone, in order to increase the possibility
of a range of interceptions wider than ordered.
2. Knowing that the bugs were intercepting up-
stairs conversations the government, on the second and
third entries, could have corrected this, but chose only
to enter to replace one which had ceased to operate.
3. The government wrongfully chose to keep the
facts from the Court. So too, Mr. Brady was not con-
sulted to secure from him an instrument which would do
just as the Court had ordered. Obviously, the govern-
ment was satisfied to seize upstairs conversations.
4. The government affirmatively mislead the Court
in repeated five-day reports and in the second applica-
tion on April 2, 1981 by representing that all intercep-
tions were of first floor conversations.
5. As final evidence of their desperation, the govern-
ment asserted that Judge Ward obviously knew there
were upstairs conversations since the prosecutors sent
him the voluminous DEA handwritten logs, along with
the five-day reports. This argument is important for by
it, the government recognized that agents obviously
knew when they prepared the logs that they were inter-
cepting upstairs conversations. The argument is
nothing short of preposterous in pressing that what
with Judge Ward having five-day reports advising these
were first floor communications, he would have labored
on his own through the hundreds upon hundreds of
handwritten logs to see if there were any indications of
second floor interceptions.
In its ruling, the Trial Court first stated that a
different issue would exist were the bugs overly sensi-
tive. Here, they were “standard.” Title III, however,
contains no definition of “standard bugs.”’ What was
standard in 1968 may be different from the standards
of 1981. It is impossible to support the findings below
19
that the bugs were standard or unenhanced since phy-
sical inspection and independent examination of the
bugs were denied by the Trial Court despite requests
therefore.
The Trial Court erroneously found that petitioner
kept the bugged phone just a few feet from his bed and
the TV set. However, the bugged beige phone was
plugged in downstairs and attached to the 12-15 foot
cord installed by the Telephone Company (A 504). Peti-
tioner had attached a long cord to a downstairs black
unbugged phone making it possible only to bring this
instrument upstairs. Confusion over which instrument
had been attached to the long cord was clarified by
reference to the record (A 352-53, 363-64).
The courts below ruled that once the “standard” bugs
were placed downstairs, any conversation wherever
occurring, could be intercepted.
2. Legal Discussion
THE SEIZURE OF UPSTAIRS CONVERSATIONS
AMOUNTED TO A GENERAL SEARCH
The government took pains in its papers in support
of the orders to particularize conversations to be seized
(“from” the first floor). Instructions given to the agents
were to monitor conversations “inside the first floor.”
Because of this, agents were to familiarize themselves
with persons entering and leaving the first floor (no
mention being made of the second floor). These
instructions were properly meant to limit the discretion
of the agents to first floor conversations and to avoid the
danger of a general search (see U.S. v. Heldt, 668 F.2d
1238, 1260 (D.C. 1981). The Courts below erroneously
dismissed the government instructions as being “overly
restrictive.” This ignored the fact that once the govern-
ment proffered probable cause only as to the first floor,
20
the Court and government simply could not justify the
seizure of upstairs conversations. It is crystal clear that
the government conceded the absence of any probable
cause with respect to upstairs conversations. We need
only look te the government’s hearing memorandum
where it admitted:
Furthermore, monitoring agents had absolutely
no reason to believe that there would be narcotics
conversations in Williams’ bedroom. By no
stretch of the imagination can it be said that in
advance of installing the bug the agents had
“»yrobable cause to believe” that they would be
able to intercept relevant conversation from the
second floor. (Citation omitted). Even before the
electronic bug surveillance began the agents accu-
mulated a great deal of evidence regarding the
nature of Williams’ narcotics activities. Not one
bit of that evidence, including physical and video
tape surveillance, even suggests that the narcotics
suppliers and customers who visited Williams’
apartment had narcotics conversations with him
in his bedroom upstairs. Every bit of that evi-
dence suggested those conversations took place on
the first floor of his apartment. Therefore, the
agents installed a bug which eliminated their
capability of intercepting conversations from the
second floor of Williams’ apartment(A 385).
It is entirely appropriate in determining the intend-
ment and limit of the orders to consider the “papers as a
whole” which the government submitted to the Court.
U.S. v. Torterello, 480 F.2d 764, 780 (2nd Cir. 1974).
When Judge Ward issued the orders on February 18,
1981 and April 1, 1981, he could not have intended to
authorize seizures beyond that for which probable cause
had been shown (e.g. from upstairs). An eavesdropping
order may never go beyond the probable cause showing
in the moving afidavits. See U.S. v. Parmenter, 531 F.S.
975 (D.C. Mass 1982), U.S. v. Hinton, 219 F.2d 324 (7th
Cir. 1955). In Hinton, supra, the Court stated:
21
.. the scope of the warrant to search is depend-
ent upon the extent of the showing of probable
cause. The command to search can never include
more than is covered by the showing of probable
cause to search.
Apartment J (the downstairs) and 1J (the upstairs)
were separate apartments. Even were a warrant to
specifically authorize interceptions from both places on
a showing of probable cause only as to one unit, the
warrant would be defective due to overbreadth (Steele v.
U.S., 267, U.S. 2198 (1925); U.S. v. Bermudes, 526 F.2d
89, 97 (2nd Cir. 1975). A fortiori, it was inappropriate
to seize second floor conversations where the govern-
ment specifically conceded no probable cause as to the
second floor and the order itself limited interceptions
to first floor conversations.
Obviously, as a “responsible official” Judge Ward
intended to “take care to assure that the eavesdropping
would be conducted in a manner that minimized un-
warranted intrusions upon privacy.” Andresen v.
Maryland, 427 U.S. 463 (1976). Having the govern-
ment’s moving papers before him which asserted prob-
able cause only to seize downstairs conversations, it is
clear that his orders meant to go no farther. To construe
Judge Ward’s orders as unlimited as to the place where
the conversants might be - which is the practical effect of
the lower courts’ interpretation of the orders - is to offend
the Fourth Amendment and the statutory limitation
requiring specificity as to the area to be covered by the
eavesdropping operation. 18 U.S.C. 2518(1)(b). Title III
was meant to eliminate the vice of entrusting agents with
a “Roving Commission” to seize conversations Berger v.
N.Y., 388 U.S. 41 (1967). It is recognized that the
authority to search granted by a warrant is limited to the
specific places described in it and may not extend to
additional or different places. See e.g. Keiningham v.
U.S., 287 F.2d 126, 129 (D.C. Cir. 1960), U.S. v. Principe,
499 F.2d 1135, 1137 (1st Cir. 1974); W. LaFave, Search and
Seizure §4.10 (1978).
22
The position taken by the Courts below, to the effect
that if the bugs were properly placed they could seize
conversations anywhere within the apartment, even
from a place such as the upstairs area for which no
probable cause existed, is one not far different from that
rejected in Katz v. U.S., 389 U.S. 347 (1967). There,
as in the case at bar, agents were within their authority
to place a bug in a given location. The issue was, given
the fact that the device was placed in an area which did
not violate Katz’s Fourth Amendment rights (and
here with the Court orders, the placement of the bugs in
Williams’ apartment was not an unlawful intrusion into
his Fourth Amendment rights) whether the interception
was prohibited because he spoke in a private area. The
Court of Appeals for the Ninth Circuit, in upholding
Katz’s conviction, ruled that since the bug had been
placed in an authorized area, seizure of his private
conversation was not violative of his Fourth Amendment
rights. This Court in reversing, held that the reach of the
Fourth Amendment turns not on where the device is
placed; rather, upon whether the intrusion is violative of
one’s reasonable expectation of privacy.
Applying the reasoning in Katz to the case at bar,
it becomes clear that placing the bug in a judicially
approved area is of no constitutional significance when
there is the seizure without probable cause of conversa-
tions in an area in which petitioner reasonably expects
the highest degree of privacy (i.e. his bedroom). The
verity is that a warrant cannot justify a search into an
area where one rightfully expects privacy if probable
cause is lacking.
In a case where a person speaks so loudly that his
voice can be overheard by the “naked human ear” it
may be said he has surrendered a reasonable expecta-
tion of privacy. U.S. v. Agapito, 620 F.2d 324, 330 (2nd
Cir. 1980). It is recognized that “as soon as electronic
surveillance comes into play, the risk (to privacy)
23
changes crucially.” Brennan, J. dissenting in Lopez v.
U.S. 373 U.S. 427, 465-66. In short: [A]ny enhanced*
method of viewing or listening into the interior of ahome
impairs a legitimate expectation of privacy unless
covered by or excepted from the warrant requirement.”
U.S. v. Taborda, 635 F.2d 131, 138, fn. 7 (2nd Cir. 1980).
In the case at bar, the orders specifically restricted
seizures to ground floor conversations and there were no
facts justifying resort to any of the warrant exceptions.
Coolidge v. New Hampshire, 403 U.S. 443 (1971).
This is not a case where in retrospect the govern-
ment discovered that upstairs conversations were
seized; rather, this is a case where virtually from the
outset the government was aware that the bugs were
seizing more than what was initially intended and
ordered. If the issuing court’s use of the language “from
the premises known as the first floor” was not particular
enough, it was appropriate to refer to the government's
papers for the purpose of providing particularity (see e.g.
Heldt, supra at 1257; Andresen, supra; U.S. v. Klein
565 F.2d 183 (1st Cir. 1977); in re Search Warrant, 572
F.2d 321, 324-327 (D.C. Cir. 1978)). The government's
moving papers left no room for doubt that there was not
one bit of inculpatory evidence to justify intrusion into
the upstairs bedroom.
The government did nothing at all to enable Judge
Ward to determine if his orders were being faithfully
adhered to. Congress intended the Five-Day Reports to
provide an opportunity for a judicial “check.” Requiring
reports was to assure correction of “any abuses” (See
* Were the bugs enhanced? If Mr. Brady were correct about the
range of his kind of bug that it could not pick up full television
dialogue or continuous upstairs conversations, then it is clear the
range of bugs in the case at bar went beyond that expected of the
Brady bug. The Trial Court denied repeated demands to inspect and
test the bugs. The findings below that the bugs were not enhanced
was made without counsel or the Trial Court being given the
opportunity to inspect the devices.
24
Senate Report, 1097, 1968, U.S. Code Cong. and Admin.
News 2193; U.S. v. Kahn, 415 U.S. 143, 154 (1974). Not
only was the Court not advised that upstairs bedroom
interceptions were being made, it was falsely reassured
that only downstairs conversations were being inter-
cepted.
Late in the hearing the government first raised the
doctrine of plain view to justify the seizure of conversa-
tions other than those Judge Ward had ordered. But use
of this doctrine under the circumstances of this case
would permit a “government official to use a seemingly
precise and legal warrant only as a ticket to get into
a man’s home, and, once inside, to launch forth upon un-
confined searches and indiscriminate seizures as if
armed with all the unbridled and illegal power of a
general warrant.” Stanley v. Georgia, 394 U.S. 557,
572, 89 S. Ct. 1243, 1251, 22 L.Ed 2d 542 (1969) (Stewart,
J., concurring).
In Coolidge v. New Hampshire, 403 U.S. 443, at 465
(1971) a plurality of the Court set out a limitation to
the use of the plain view doctrine, that the searching
agents must come upon the unspecified items inad-
vertently. An agent must be acting in good faith to
confine himself to searching for the specified items
when he happens upon an unspecified item. To the
inadvertence criterion, good faith must be added. U.S. v.
Hubbard, 493 F.S. 209 (D.C. 1979). The plain view
doctrine ‘“‘may not be used to extend a general explora-
tory search from one object to another until something
incriminating at last emerges.” Coolidge, supra at 466.
Applied to electronic eavesdropping, when a monitoring
agent unexpectedly hears a conversation concerning a
crime other than one specified in the order, he is per-
25
mitted to listen to and record the conversation.* How-
ever, the case at bar is so very different from situations
justifying the seizure of items in reliance on the plain
view doctrine for these reasons:
(1) here, agents had no right to intercept conversa-
tions from the second floor. The proper analogy
would be to situations where agents seize items
from a second dwelling armed only with an
order which permitted a search and seizure of
one dwelling. This is not a case of agents acting
in a proper place coming upon an item of evi-
dence in the course of a legitimate search;
rather, this is more properly likened to a search
into an impermissible area and thus, the doc-
trine of plain view should have no application;
(2) wedo not have the element of good faith and/or
inadvertence. Agents knew within days of the
installation that upstairs interceptions were
being made. Log entries reflected this. The
government conceded this when it argued that
Judge Ward must have known of this from a
reading of the log entries.
The inadvertence requirement is not satisfied where
agents have reason to know in advance what they will
find from the search.
As a final argument to uphold the seizures, the
government argued that at worst, there was the failure
to minimize and all that would then be infirn were the
upstairs interceptions (18 U.S.C. 2518(5). However, the
requirement to minimize involves as attempt to insure
intercepts only of those communications subject to
seizure under Title III. In every case involving claims
of failure to minimize, the electronic device picked up
communications from permitted areas. The physical
* Several courts have suggested, however, that subsequent judi-
cial approval would be necessary where agents continue to intercept
conversations concerning other crimes. See U.S. v. Marion, 535 F.2d
692, 705 (2d Cir., 1976).
26
range of the seizures was not the issue; the contents
were U.S. v. Torterello, 480 F.2d 764 (2nd Cir. 1974); U.S.
v. Capra, 501 F.2d 267 (2nd Cir. 1974); U.S. v. Hinton,
543 F.2d 1002 (2nd Cir. 1976); U.S. v. Principe, 531 F.2d
1132 (2nd Cir. 1976); U.S. v. Manfredi, 488 F.2d 588 (2nd
Cir. 1973).
Properly viewed the failure to minimize is limited to
instances where the agents do not restrict themselves to
the kinds of communications authorized by a Title III
order. Scott v. U.S., 436 U.S. 128 (1978).
The case at bar involving as it does knowing intru-
sions into an area not subject to search and in which
petitioner has an intense expectation of privacy is more
likened to an unconstitutionally impermissible explora-
tory search rather than a statutory violation of the duty
to minimize.
IF THE TRIAL COURT WERE CORRECT THAT THE
BuGS COULD SEIZE CONVERSATIONS FROM ANY
PLACE, THEN THE ORDERS WERE IN THE NATURE
OF GENERAL WARRANTS
The Trial Court and the Second Circuit held that if
the government placed the bugs on the first floor as
ordered, then any conversations, wherever occurring,
could be intercepted. If this be the correct interpretation
of the orders, then this ignores the constitutional and
statutory requirements that there be specificity of the
place from which the conversations are to be seized.
The Second Circuit would limit the particularity
requirement to the place where the device is placed and
the subject of the seizures without regard to the place
from which the seizures may be made. This, we submit,
is erroneous.
A citizen’s right of privacy would, were the Court cor-
rect, depend on the state of the art with respect to bug-
ging devices. Bugs already exist to intercept up to
27
distances a block away. Advances have been made
since the 1968 enactment of Title III. Title III itself
gives no definition of a “standard” or “oversensitive”
bug. No independent testing of the bugs in the case at
bar assured that they were not oversensitive. If the
orders can be read as permitting bugs to be placed any-
where on the first floor, even purposely into a mobile
unit such as a phone near the common staircase, then
the orders invited unwarranted intrusions into the up-
stairs bedroom for which no probable cause existed and
in which petitioner rightfully had the most intense
expectation of privacy.
The Fourth Amendment specifically provides that a
search warrant must particularly describe the place to
be searched. When the Court confined itself to the
alleged propriety of the placement of the bugs without
regard to limits from which conversations could be
seized, it improperly construed Judge Ward’s orders as
general warrants.
General warrants, of course, are prohibited by the
Fourth Amendment. “jT]he problem [posed by the
general warrant] is not that of intrusion per se, but of
a general, exploratory rummaging in a person’s belong-
ings...{[The Fourth Amendment addresses the problem]
by requiring a ‘particular description’ of the things to
be seized. Coolidge v. New Hampshire, 403 U.S. 443,
467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971). This re-
quirement “’makes general searches impossible and pre-
vents the seizure of one thing under a warrant describ-
ing another. As to what is to be taken, nothing is left
to the discretion of the officer executing the warrant’.”
Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 512, 13
L.Ed.2d 431 (1965), quoting Marron v. United States, 275
U.S. at 196, 48 S.Ct. at 76.
Here, the orders permitted seizure of first floor con-
versations but, according to the Courts below, agents
could seize second floor conversations. ‘This is the
essence of a general warrant.
28
THE APPROPRIATE REMEDY
It has been held that flagrant disregard for the
limitations in a warrant can transform an otherwise
valid search into a general one, thereby requiring the
entire fruits of the search to be suppressed. See general-
ly United States v. Rettig, 589 F.2d 418, 423 (9th Cir.
1978); United States v. Fernandez, 430 F.Supp. 794, 801
(N.D.Cal. 1976); United States v. Nine 200-Barrel Tanks
of Beer, 6 F.2d 401, 402 (R.I. 1925) Cf. United States v.
Tracy, 350 F.2d 658 (8d Cir.), cert. denied, 382 U.S.
943, 86 S.Ct.390, 15 L.Ed.2d 353 (1965) (all evidence sup-
pressed for disregard of limits on use of force).
Suppression of the entire intercepts is the proper
result when agents have failed to show a regard for the
right of privacy and have not done all they reasonable
could to avoid intrusion into an impermissible area. U.S.
v. Feldman, 606 F.2d 673 (6th Cir., 1979).
It is the bad faith exhibited by the government
which makes the unlawful conduct in the case at bar
particularly reprehensible. This Court has repeatedly
pointed out that the propriety of applying the exclu-
sionary rule may turn on the bad faith of the govern-
ment in seeking or executing an eavesdropping warrant.
In U.S. v. Donovan, 429 U.S. 413 (1976), the Court
found that the failure to identify the targets in an eaves-
dropping application did not, ipso facto, warrant sup-
pression. However, the Court stated:
There is no suggestion in this case that the
government agents knowingly failed to identify
respondent’s Donovan (et al) for the purpose
of keeping relevant information from the District
Court that might have prompted the Court to
conclude that probable cause was lacking. If
such a showing had been made, we would have a
different case.
In U.S. v. Cortina, 630 F.2d 1207 (7th Cir., 1980)
where a government agent deliberately lied in an affi-
davit presented to support a search warrant, the Court
held that:
29
When Brown lied to the Magistrate, therefore,
he committed two offenses: one against the
constitutional guarantee, against unreasonable
searches and a second against the judicial system.
In addition to the consequences flowing from the
lack of probable cause, this second injury to the
judiciary itself requires this Court to guarantee
that one of the tainted evidence reaches the court-
room. Our responsibility to uphold the integrity
of the judicial system therefore requires the sup-
pression of all the evidence resulting from the
search as to all defendants.
The deception of the Court which took place in the
instant case is no less egregious than in Cortina. Had
Judge Ward been advised that upstairs conversations
were being monitored, he could have taken steps to
remedy the situation. See U.S. v. Diadone, 558 F.2d 775
(5th Cir., 1977) (where the issuing judge was advised of
the impossibility of adhering to the minimization in-
structions and thus, there was no error).
The Ninth Circuit case of U.S. v. Rettig, 589 F.2d 418
(9th Cir., 1978) presents the appropriate analysis in dis-
posing of a case like the one at bar. As in Rettig, it is
simply not possible for the government to show which
conversations were intercepted upstairs as compared
with downstairs.
In ordering total suppression, the Court wrote:
We find the record establishes that the agents did
not confine their search in good faith to the
objects of the warrant, and that while purporting
to execute it, they substantially exceeded any
reasonable interpretation of its provisions. As
interpreted and executed by the agents, his war-
rant became an instrument for conducting a
30
general search. Under the circumstances, it is
not possible for the court to identify after the
fact the discrete items of evidence which would
have been discovered had the agents kept their
search within the bounds permitted by the war-
rant; and therefore all evidence seized during the
search must be suppressed.
Total suppression is ideaily suited to a continued
pattern of flagrant disregard for the limitations of
provisions of a warrant central to the Fourth Amend-
ment and Title III. When there is added a studied
attempt to keep the transgressions from the Court the
degree of misconduct becomes so magnified as to justify
the remedy of total suppression.
Conclusion
For these reasons, the petition should be granted.
Respectfully submitted
JAY GOLDBERG, P.C.
Attorney for Petitioner
230 Park Avenue - Suite 935
New York, New York 10169
(212) 370-1000
April 14, 1983
la
Appendix A
Opinion of United States Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 346-47, 348, 388, 349-50, 385, 426, 892
August Term 1982
Argued: Dec. 1, 1982 Decided: Feb. 18, 1983
Docket Nos. 82-1125, 82-1175, 82-1179, 82-1181,
82-1183, 82-1189, 82-1177, 82-1185, 82-1187
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
against
WILLIE TERRY,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
against
ERIC NALVEN, ROBERT GUIPPONE, WILLARD
WILLIAMS, ONZELO MARKUM, CLARENCE
HAYNES, SAINT JULIAN HARRISON, PAUL
JENKINS, and ANTHONY MICHAEL PORCELLI
Defendants-Appellants.
Before: LUMBARD, MANSFIELD and KEARSE,
Circuit Judges.
Consolidated appeals from judgments of the South-
ern District of New York convicting appellants of viola-
tions of federal narcotics laws and conspiracy, 21 U.S.C.
2a
Appendix A - Opinion of United States Court of Appeals
§§ 812, 841, 843, 846, and 848. Defendant Williams
pleaded guilty pursuant to a stipulation reserving the
right to appeal certain issues relating to pretrial sup-
pression claims. Defendant Terry was convicted after a
non-jury trial before Chief Judge Constance B. Motley.
The remaining appellants were convicted after a jury
trial before Judge Richard Owen. Appellants raise
numerous issues, principal of which are challenges to
searches of Williams’ trash containers, the legality and
execution of eavesdropping orders, seizures made during
the execution of an arrest warrant, the sufficiency of the
evidence against certain defendants and the conduct of
the jur trial.
The conviction of Haynes is reversed. The convic-
tions of all other appellants are affirmed.
BENNETT M. EPSTEIN, ESQ.
New York, NY,
for Appellant Terry.
STANLEY NEUSTADTER, ESQ.,
New York, NY,
for Appellant Nalven.
MARTIN G. WEINBERG, ESQ..,
Boston, MA (Oteri, Weinberg &
Lawson, Boston, MA, of counsel),
for Appellants Guippone and Porcelli.
JAY GOLDBERG, ESQ..,
New York, NY,
for Appellant Williams.
THEODORE KRIEGER, ESQ.
New York, NY,
for Appellant Markum.
RICHARD A. GREENBERG, ESQ.
New York, NY,
for Appellant Haynes.
3a
Appendix A - Opinion of United States Court of Appeals
SALVATORE F. QUAGLIATA, ESQ.
Ozone Park, NY,
for Appellant Harrison.
JEFFREY L. GREENUP, ESQ.,
New York, NY
for Appellant Jenkins.
RICHARD A. MARTIN and
KATE SMITH PRESSMAN,
Assistant U.S. Attorneys, New York,
NY (John S. Martin, Jr., U.S.
Attorney for the Southern District of
New York, Walter P. Loughlin,
Assistant U.S. Attorney, New York,
NY, of counsel),
for Appellee
MANSFIELD, Circuit Judge:
Defendants appeal from judgments of the Southern
District of New York convicting them of federal narco-
tics violations arising out of the same core of operative
facts. One indictment (S 81 Cr. 398) charged (1) seven of
the appellants (all but Terry) and 10 others' with con-
spiracy to possess and distribute heroin and cocaine in
violation of 21 U.S.C. § 846 (Count 1), (2) defendant
Willard Williams with organizing and supervising a
continuing criminal enterprise in violation of 21 U.S.C.
§ 848 (Count 2), and (3) various defendants with posses-
sion of large quantities of heroin and cocaine in viola-
tion of 21 U.S.C. § 841(a)(1) (Counts 3 to 15) and illegal
use of the telephone to further the narcotics conspiracy
' Of the 10 remaining individuals, 8 pleaded guilty before trial;
one, “Bobby” James, was acquitted after trial; and one is a fugitive.
One of the defendants, Paul Jenkins, who pleaded guilty before
Judge John M. Cannella, and sought to join in this appeal pursuant
to F.R.A.P. 28(i), did not preserve any issues for appeal. Accordingly,
we affirm his conviction.
4a
Appendix A - Opinion of United States Court of Appeals
in violation of 21 U.S.C. § 843(b) (Counts 16 to 25). De-
fendant Williams pleaded guilty to Count Two (criminal
enterprise) preserving by stipulation three pretrial sup-
pression claim issues for appeal.? The other six appel-
lants were convicted of the conspiracy count and the
related substantive offenses charged after a six-week
jury trial before Judge Richard Owen.* We reverse the
judgment convicting appellant Haynes of conviction of
conspiracy and illegal use of a telephone.‘ Finding no
merit in the other claims of error, we affirm the judg-
ments convicting Williams, Porcelli, Guippone, Harri-
son, Markum, and Nalven.
A second indictment (S 81 Cr. 426) charged Terry in
three counts with similar narcotics violations (conspir-
acy with Williams and another to distribute heroin and
cocaine, possession with intent to distribute 19.4 grams
of cocaine and diluents, use of telephone to facilitate
conspiracy). After a non-jury trial before Chief Judge
Constance Baker Motley, Terry was convicted of all
counts and placed on probation for two years. We affirm.
Viewed most favorably to the government, Glasser
v. United States, 315 U.S. 60, 80 (1942), the evidence
showed that during the period from October 1980 to May
1981 Williams managed from his duplex apartment on
East 89th Street, New York City, a continuing narcotics
business in which he received and processed wholesale
* Williams was sentenced to life imprisonment without parole.
By separate order we reject Williams’ claim that his guilty plea
should be vacated because of alleged assurances with respect to the
sentence he would receive.
‘ Porcelli, Guippone, and Harrison were sentenced to 30-year
terms of imprisonment with lifetime special parole. Haynes and
Markum received 15-year sentences of imprisonment with lifetime
special parole. Nalven was sentenced to 3 years imprisonment.
Williams, Porcelli, Guippone and Haynes, as previously convicted
federal narcotics violators, were subject to enhanced penalties pur-
suant to 21 U.S.C. §§ 841(b)(1A) and 851.
* The government concedes that Haynes’ term of special parole
was improper. Bifulco v. United States, 447 U.S. 381 (1980).
5a
Appendix A - Opinion of United States Court of Appeals
quantities of heroin and cocaine, re-sold these drugs to
distributors, paid back the suppliers, laundering and
banking the profits, and that all but one of the other
seven appellants played active roles in the business,
either as suppliers, purchasers, or facilitators (e.g.,
money launderers, drug testers). Defendants Porcelli
and Guippone were the main suppliers of wholesale
quantities of heroin and cocaine to Williams. The dis-
tributors included appellants Harrison, Markum,
Nalven, Terry and various co-defendants. Harrison also
became a supplier of cocaine to Williams when he was
unable to pay Williams for the heroin he had distributed.
This heroin had been supplied by Guippone and Porcelli.
Nalven, in addition to acting as a distributor, assisted
Williams in testing for purity drugs being supplied to
Williams and “laundering” some of the large cash re-
ceipts from sales, i.e., arranging to bank the funds as
coming from legitimate sources.
The evidence establishing the existence and opera-
tions of the narcotics enterprise consisted mainly of
(1) testimony of Drug Enforcement Administration
(DEA) agents who made an initial purchase of heroin
from one of Williams’ distributors and engaged in
months of continuous surveillance of the defendants,
(2) papers and articles retrieved from bags of Williams’
trash placed on the sidewalk outside his apartment for
collection, (3) pen registers, photographs, video tapes
and court-authorized electronic surveillance of conversa-
tions among the appellants, (4) post-arrest admissions
by some defendants, and (5) articles seized at the time
of arrest of some, including one kilogram of cocaine
found in Williams’ apartment, $400,000 in safe deposit
boxes controlled by him ($14,500 of which was part of
$40,000 previously paid by DEA undercover agents for
the purchase of heroin), firearms and ammunition found
in the premises of Harrison, Guippone and Nalven, and
cocaine from Harrison’s automobile.
6a
Appendix A - Opinion of United States Court of Appeals
The government’s investigation into the defend-
ants’ narcotics activities began on October 24, 1980,
when a DEA agent, Zenford Mitchell, purchased one-
eighth of a kilogram of heroin for $40,000 from a pre-
viously-convicted narcotics dealer, Steward, who ob-
tained the heroin from an apartment building at 307
East 89th Street, New York City, where defendant
Williams, a twice-convicted narcotics distributor, rented
and occupied a ground-floor duplex apartment (“J” and
“1J”) under the name Felix Davis, with telephones
registered in other names. Further surveillance, use of
an informant, and an interview with the owner of the
apartment building, provided reasonable grounds for
the belief that the source of the narcotics was the Wil-
liams’ duplex. For instance, Steward was seen on two
occasions entering that apartment, after dialing the
Williams’ apartment phone number from a nearby pub-
lic phone. On October 31, 1980, a week after the DEA
agent’s purchase of the heroin through Steward, defend-
ants Porcelli and Guippone, previously convicted federal
narcotics violators, were observed visiting the apart-
ment, departing with a large closed paper bag and
driving off with it. More visits to the Williams’ apart-
ment by Porcelli and Guippone followed.
Noting that Williams left his garbage in a green bag
closed with a brown tape in the public corridor of his
apartment to be brought out to the sidewalk for pick-up
by the trash collector, DEA agents periodically removed
some of the bags from the sidewalk, which yielded
evidence identifying Williams and incriminating him
and others. Among the items recovered from the trash
was a note in Williams’ handwriting dealing with a
large-scale heroin transaction; records in code numbers
of the financial accounts of various narcotics distribu-
tors, including payments and amounts owed; wrappers
for mannite, a substance used to dilute heroin; traces
of cocaine; and a record of large-scale narcotics sales.
7a
Appendix A - Opinion of United States Court of Appeals
Pen registers® connected to the Williams phone lines
from outside his apartment recorded the making and
phone numbers of calls to Porcelli, Steward and Harri-
son. Numerous persons were observed visiting the
Williams apartment, including Harrison, Porcelli,
Guippone, defendants Paul Jenkins and Bernard Hen-
derson (from whom DEA agents had purchased heroin).
On February 18, 1981, Judge Robert J. Ward of the
Southern District of New York, upon the application of
the DEA agents, approved in writing by Sanford M.
Litvack, Assistant Attorney General of the United
States, supported by an affidavit attesting to the fore-
going information, authorized the installation of two
listening devices (“bugs”) in the living room (Apt. J)
located downstairs in the Williams duplex to record
pertinent conversations “from the premises known as
the first floor of duplex Apartment J,” which was con-
nected to the upstairs bedroom (known as “lJ” by a
large open stairway).® Thereupon police officers, posing
as telephone repairmen, installed two bugs in the
Williams living room, one in a wall jack rear the floor,
and the other in a telephone having a standard 7-8 foot
cord, which was too short to permit a person to carry the
phone upstairs to Williams’ bedroom unless the cord
was lengthened.
Over the next few months DEA agents recorded
scores of conversations in the Williams apartment
» A pen register is a device installed on a telephone line outside
of the subscriber's home that records the electronic impulses made
when outgoing calls are dialed. The device perforates a tape, indicat-
ing the date, time, and number dialed. The tape does not show
whether the receiving telephone was answered, nor whether there
was any conversation. The device on Williams’ telephone also de-
termined the origin of incoming calls. See J. Carr, The Law of
Electronic Surveillance, § 3.02|3\[b][ii] at 74 (1977 and Supp. 1979).
® The order was renewed on April 2, 1981 for an additional 30
days.
8a
Appendix A - Opinion of United States Court of Appeals
which, with the agents’ surveillance and evidence al-
ready uncovered, clearly established the existence of the
above-described continuous narcotics enterprise and the
participation in it of all of the appellants except Haynes.
Porcelli and Guippone visited the Williams apartment
on numerous occasions, carried out packages and had
discussions with Williams regarding purchases of
heroin and cocaine, amounts of money paid and owed,
and problems in obtaining payment from Harrison. On
March 6, 1981, for instance, they visited Williams, re-
ceived $30,000 from him, and arranged to supply him
with three-quarters of a kilogram of cocaine. On March
16, 1981, Porcelli received $30,000 from Williams and
agreed to hold an eighth of a kilo of heroin for him. Al-
though Porcelli and Guippone suspended deliveries
when they discovered that their car was being surveilled
in mid-March 1981 after a visit to Williams, Porcelli on
April 29, 1981, resumed discussions with Williams re-
garding methods of continuing narcotics sales on a
more secure basis to avoid government surveillance.
When Porcelli was arrested on May 31, 1981, he in-
structed his daughter to tell his son-in-law, “George”
(Valenti) to “get rid of’ the narcotics. There was evi-
dence from which it could be inferred that Porcelli had
kept a “stash” of narcotics at Valenti’s house. When
Guippone was arrested he had 300 rounds of ammuni-
tion in his car and he denied knowing anyone named
Williams or Felix Davis. However, in his wallet Guip-
pone had several telephone numbers for Harrison in
Williams’ handwriting, as well as the address of Wil-
liams’ daughter.
The electronic evidence against Harrison was
equally incriminating and, coupled with the agents’
surveillance and other evidence, revealed that Harrison
was one of Williams’ distributors until he fell behind in
payments of money owed Williams for narcotics sup-
plied by Porcelli and Guippone, whereupon Harrison
sought to deliver cocaine to Williams in lieu of cash to
9a
Appendix A - Opinion of United States Court of Appeals
repay his debt. For instance, on March 12, 1981, Harri-
son delivered 1-1/2 kilograms of cocaine to Williams,
which proved to be unsatisfactory. Thereupon, on
March 15, 1981, he delivered almost 2 kilos of cocaine to
Williams. Williams was later overheard to say that on
March 25, 1981, Harrison again delivered a kilogram of
cocaine to Williams. When arrested, Harrison had one
of Williams’ phone numbers which he had obtained on a
visit to the latter’s apartment. A later search of Harri-
son’s premises and car uncovered a sawed-off shotgun,
hundreds of rounds of ammunition, some cocaine, and
writings identified as heroin accounting sheets.
Onzelo Markum, Williams’ younger brother, also
known as “Junior,” was taped discussing with Williams
sales and deliveries of cocaine. For instance, on April
18, 1981, he advised Williams that he was bringing over
“that girl” (code term for cocaine) and arrived one-half
hour later, turning the cocaine over to Williams. His
name was on Williams’ narcotics accounting sheets. In
addition to assisting his brother in the purchase and sale
of narcotics he exchanged large amounts of cash pro-
ceeds ($30,000 to $40,000 a day according to Williams) at
midtown banks.
Eric Nalven played several roles in the conspiracy,
including that of narcotics tester and money launderer.
When Agent Mitchell made his initial purchase from
Steward he was told that he could use the back room of
Nalven’s bar to test the heroin sold. Although Nalven
conceded purchasing cocaine from Williams for per-
sonal use in small gram amounts for $100 to $200, on
several occasions he visited Williams’ apartment and
received cocaine in quantities associated with dealing
rather than personal use, i.e., a purchase for $2,000 on
one occasion and on other occasions amounts of cocaine
that could be subdivided on others.
There was also evidence that Nalven acted as a
money exchanger and narcotics-tester for Williams. The
10a
Appendix A - Opinion of United States Court of Appeals
latter stated on one occasion, in offering to pay $150 for
every $10,000 laundered, that Nalven had been “getting
rid of five or six [thousand] for me a week.” The tapes
further revealed that at times when Williams received
narcotics from a supplier he would ask “Eric” to test it
and advise the supplier of the results, and that Nalven
showed Williams how to use a microscope, an instru-
ment Williams used to test cocaine for purity. After
Williams’ arrest his microscope was found to have
traces of cocaine on it. When arrested Nalven falsely
told the DEA agents that he never used cocaine.
The evidence against appellant Clarence (‘‘Legs’’)
Haynes was almost entirely hearsay: records taken from
Williams’ trash referring to “Legs” along with others
listed as narcotics distributors; mention by Williams of
Haynes as the person who used defendant Bobby James
(who was acquitted) as a narcotics courier; and Wil-
liams’ end of a conversation, purportedly with Haynes,
in which Williams asked Haynes to tell Gabe McMillan
“about shirts (a code word for narcotics) that he had
passed.” The non-hearsay evidence against Haynes
consisted of a short phone conversation with Williams
in which the former asked ‘“‘what’s happening” and the
latter replied “ain’t nothing happening;”’ admissions
by Haynes upon arrest that he was known as “Legs,”
and that he knew Williams and Harrison and had
spoken with them on the telephone but not about nar-
cotics; and an address book containing names of alleged
drug traffickers and a narcotics price list, which was
found in an apartment he shared with James who testi-
fied that the book belonged to him and that the entries
were made by him, not Haynes.’
Appellant Willie Terry, who was tried separately
before Chief Judge Motley, does not challenge the
7 McMillan, separately indicted, was convicted after a jury trial
and sentenced to a 3-year term of imprisonment by Judge Robert W.
Sweet. His conviction was affirmed by summary order on July 2,
1982. United States v. McMillan, No. 82-1101.
lla
Appendix A - Opinion of United States Court of Appeals
sufficiency of the evidence against him, which consisted
of records of telephone calls by Williams to Terry’s
apartment; tape-recorded conversations between the two
regarding efforts to purchase narcotics; records of
“Terry” narcotics transactions found in Williams’ trash;
vials containing cocaine residue found on Terry when
arrested; and a scale, small amount of marijuana and
business card with “Davis” (Williams’ alias) on it, all of
which were seized from his apartment during a search
incident to the execution of an arrest warrant.
Judge Owen, after evidentiary hearings, denied in
reasoned opinions defendants’ motions to suppress evi-
dence derived from the retrieval and search of Williams’
trash and the electronic surveillance of Williams’ apart-
ment and telephone. Likewise Chief Judge Motley, after
an evidentiary hearing, denied in a written opinion
Terry’s motion to suppress the evidence seized from his
apartment.
DISCUSSION
A. CLAIMS COMMON TO ALL APPELLANTS
1. Searches of Williams’ Trash
Williams contends that the warrantless searches by
DEA agents over a six-month period of his trash bags,
which were set out for collection in sealed opaque bags,
violated his reasonable expectation of privacy and that
evidence so obtained tainted the legality of the elec-
tronic surveillance order.* We disagree.
In the absence of evidence indicating an intent by
the former owner to retain some control over or interest
in discarded trash, his placement of it for collection on a
public sidewalk is inconsistent with the notion that he
retains a privacy interest in it. His act is one of aban-
* Although all appellants join in Williams’ challenge to the
legality of seizure of evidence from his trash, only Williams has
standing to assert that the searches violated the Fourth Amendment.
Rakas v. Illinois, 439 U.S. 128, 133-34 (1978).
12a
Appendix A - Opinion of United States Court of Appeals
donment. Abel v. United States, 362 U.S. 217, 241 (1960);
United States v. Vahalik, 606 F.2d 99, 101 (5th Cir.
1979), cert. denied, 444 U.S. 1081 (1980); United States v.
Shelby, 573 F.2d 971, 973-74 (7th Cir.), cert. denied, 439
U.S. 841 (1978); Magda v. Benson, 536 F.2d 111, 112 (6th
Cir. 1976) (per curiam); United States v. Mustone, 469
F.2d 970, 972 (1st Cir. 1972); United States v. Dzialak,
441 F.2d 212, 215 (2d Cir.), cert. denied, 404 U.S. 883
(1971); but see People v. Krivda, 5 Cal.3d 357, 96 Cal.
Rptr. 62, 486 P.2d 1262 (1971), remanded, 409 U.S. 33
(1972), aff'd on both state and federal constitutional
grounds, 8 Cal.3d 623, 105 Cal. Rptr. 521, 504 P.2d 457,
cert. denied, 412 U.S. 919 (1973).
When plastic trash containers and their contents
are picked up by the collector and carted to a public
waste disposal area, common experience teaches that
the former owner obtains no implicit assurance that the
trash will remain inviolate or free from examination.
Indeed, once the trash is discarded the former owner
rarely has any further interest in it other than to be
assured that it will not remain at his doorstep. In the
rare instance when he desires to preclude inspection by
others of private papers in his garbage he may do so by
first shredding or burning them or by hand-delivering
the papers to a garbage-grinding machine. We do not
view the mere use of taped opaque containers as indicat-
ing an intent to retain a privacy interest; these con-
tainers, apparently the most commonly-available type
sold, are obviously designed to assure tidiness in appear-
ance rather than privacy.’ Such containers are hardly
safety deposit boxes. In any event, even though the
presence of other circumstances may indicate an intent
to retain a privacy interest in trash (e.g., written restric-
tions on containers or retention of containers on private
® Since items found in closed containers during a lawful search
do not require a separate warrant, United States v. Ross,
U.S. ___., 50 U.S.L.W. 4580, 4586 (June 1, 1982), a fortiori, there is no
requirement to obtain a warrant to search sealed items that are dis-
carded on a public street for collection.
13a
Appendix A - Opinion of United States Court of Appeals
property until collected), the circumstances in this case
clearly evidence abandonment by Williams of his trash.
Accordingly, we affirm the district court’s denial of his
motion to suppress the evidence seized from the trash
searches.
2. Challenges to Electronic Surveillance in Wil-
liams’ Apartment
All appellants challenge on several grounds the
court-authorized electronic surveillance in Williams’
apartment. Their first ground, that evidence derived
from illegal trash searches was used to obtain the eaves-
dropping order, is rejected for reasons already stated
and because the application for the order disclosed
probable cause independent of the trash-derived evi-
dence. See Franks v. Delaware, 438 U.S. 154, 171-72
(1978).
Appellants next contend (i) that the affidavit sup-
porting the original application for the room bugs was
inadequate because it did not assert that all other less
intrusive investigative techniques were unlikely to
succeed as is required by 18 U.S.C. §§ 2518(1)(c) and
(3)(c),'° and (2) that the order renewing the authoriza-
tion for an additional 30 days was invalid because the
supporting affidavit was a mere “boiler-plate” repeti-
tion of the facts set forth in the earlier affidavit.
We hold that the affidavits were adequate. The orig-
inal affidavit disclosed the standard investigative
' Title 18 U.S.C. § 2518(1)(c) provides that an application for an
order for interception of wire or oral communications shall include
“a full and complete statement as to whether or not other investiga-
tive procedures have been tried and failed or why they reasonably
appear to be unlikely to succeed if tried or to be too dangerous.” Sec-
tion 2518(3Xc) requires the judge in an ex parte order authorizing
the interception to determine on the basis of the facts submitted
by the applicant that “normal investigative procedures have been
tried and have failed or reasonably appear to be unlikely to succeed
if tried or to be too dangerous.”
l4a
Appendix A - Opinion of United States Court of Appeals
procedures that had been tried and explained why their
continued use would be unproductive. It explained that
Williams rarely left his apartment and would not meet
with someone he did not know; that a search of his
apartment would not reveal his narcotics stash which
he kept nearby; and that the co-conspirators previously
contacted, Jones and Steward,'' had become suspicious
and refused to deal further with undercover agents. The
affidavit further indicated the agents’ inability through
physical surveillance to establish the significance of the
meetings between the suspects; a record of their conver-
sations was therefore essential.
An affidavit describing the standard techniques
that have been tried and facts demonstrating why they
are no longer effective is sufficient to support an eaves-
dropping order even if every other possible means of
investigation has not been exhausted. United States v.
Todisco, 667 F.2d 255, 258-59 (2d Cir. 1981), cert. denied,
455 U.S. 906 (1982); United States v. Vazquez, 605 F.2d
1269, 1282 (2d Cir.), cert. denied, 444 U.S. 981 (1979),
(quoting United States v. Hinton, 543 F.2d 1002, 1011 (2d
Cir.), cert. denied, 429 U.S. 980 (1976)). Agents are not
required to resort to measures that will clearly be un-
productive. When, as here, a defendant (Williams) con-
ducts his narcotics business only on a face-to-face basis
from his apartment, it is unnecessary for government
investigators first to seek a wiretap before applying for
an eavesdropping order since a bug, not a wiretap,
would provide the evidence sought. Since the factual
justification for the order had not changed at the time
when an extension was sought, it was unnecessary to
vary the specific facts, admittedly accurate, in the re-
newal application. Todisco, supra, 667 F.2d at 259.
Appellants next argue that the order should be in-
validated because it was signed by an Assistant Attor-
'! Steward was charged in a separate indictment. Jones was an
unindicted co-conspirator.
l5a
Appendix A - Opinion of United States Court of Appeals
ney General who lacked authority. We disagree. On
January 19, 1981, the last day of the administration of
President Carter, the then Attorney General Benjamin
Civiletti executed Order No. 931-81 pursuant to 18 U.S.C.
§ 2516(1)'* designating the four Assistant Attorneys
General in charge of the Criminal Division, the Tax
Division, the Office of Legal Counsel, and the Antitrust
Division, in that order, to exercise the power of the
Attorney General, in his absence, to authorize appropri-
ate applications for electronic surveillance by federal
agencies. Each designee was authorized to exercise the
power in the event all those listed ahead of him were
“not in the District of Columbia or...otherwise not avail-
able.”
Civiletti was replaced the following day, January
20, 1981, by Attorney General William French Smith
when the new administration took office. On February
2, 1981, hold-over Assistant Attorney General Sanford
M. Litvack, head of the Antitrust Division and fourth on
Civiletti’s priority list of assistants, authorized an
application for court-ordered electronic surveillance of
Williams’ apartment. On February 27, 1981, Attorney
General Smith issued his own designation order No, 934-
81, which did not expressly redesignate the authoriza-
tion of his predecessor.
Appellants first contend that the Litvack authoriza-
tion on February 2 was inadequate because it failed to
recite the necessary precondition to Litvack’s exercise of
power, namely that the three other Assistant Attorneys
General with higher priority in the Civiletti order were
absent or otherwise unavailable. We reject this conten-
tion. Litvack, a named designee whose high office gave
'2 Title 18 U.S.C. § 2516(1) provides that “[t}he Attorney Gen-
eral, or any Assistant Attorney General specially designated by the
Attorney General, may authorize an application to a Federal judge
..for...an order authorizing or approving the interception of wire or
oral communications...”
l6a
Appendix A - Opinion of United States Court of Appeals
him statutory power to authorize electronic surveillance
orders, is presumed to have properly exercised that
power and the condition precedent is presumed to have
been met unless the defendants offer evidence, apart
from mere conjecture or speculation, to rebut this pre-
sumption. United Staes v. Todisco, 667 F.2d at 259;
United States v. Jabara, 618 F.2d 1319, 1327 (9th Cir.),
cert. denied, 446 U.S. 987 (1980); United States v. Turner,
528 F.2d 148, 151 (9th Cir.), cert. denied, 423 U.S. 996
(1975). No such evidence was offered in this case.
Appellants further claim that Order No. 931-81 was
invalid because Assistant Attorney General Litvack’s
power as a designee of Attorney General Civiletti had
expired when Mr. Civiletti left office and was no longer
responsive to the political process as required by United
States v. Giordano, 416 U.S. 505, 520 (1974). This claim
is meritless. Unlike Giordano, there is no suggestion
here that Assistant Attorney General Litvack did not
sign the order approving the application or that he was
not specially designated by Mr. Civiletti. Administra-
tive continuity requires that the designation by an out-
going Attorney General of Assistants to authorize elec-
tronic surveillance remain valid at least for a reason-
able time after the Attorney General leaves office, even
witiout an express redesignation by his successor. To-
disco, 667 F.2d at 259 (citing In re Weir, 520 F.2d 662,
667 (9th Cir. 1975)); United States v. Mallory, 507 F.
Supp. 99, 102 (D. Md. 1981). Otherwise the power of the
office of Attorney General would in this important re-
spect grind to a halt when an incumbent Attorney Gen-
eral departed and thereafter remain paralyzed until his
successor was sworn in and acted. That the change in
office resulted from a change in administration, with a
possibly different electronic surveillance policy, does not
alter the principle of administrative continuity when,
as here, the incumbent Attorney General on February
27, 1981, impliedly ratified the designation of his pre-
decessor, thereby eliminating the possibility that prior
electronic surveillance policy could escape review by a
17a
Appendix A - Opinion of United States Court of Appeals
politically accountable official of the current admin-
istration.
Appellants next argue that the two eavesdropping
devices (“bugs”), which were placed in the downstairs
living room of Williams’ duplex apartment, intercepted
conversations that occurred upstairs in the apartment.
Appellants argue that the interception of upstairs con-
versations violated both Judge Ward’s order, which
authorized interception of conversations “from the
premises known as the first floor of duplex Apartment
J,” and the Fourth Amendment, which requires that
search warrants “particularly describ[e] the place to be
searched.”
In the district court appellants originally contended
that the bugs were unlawfully placed upstairs in viola-
tion of Judge Ward’s order. They have abandoned this
claim in the face of overwhelming contrary evidence.
They now argue that the eavesdropping tapes should
have been suppressed on the ground that since noises
from Williams’ TV set, claimed to have been at all times
upstairs, and comments claimed to have been uttered
upstairs were audible on the tapes the government must
have violated the eavesdropping order by installing a
bug in a downstairs phone with a long extention cord
that might be carried upstairs and thus pick up con-
versations there. Alternatively they argue that even if
upstairs noises were overheard by accident the entire
tapes should have been suppressed. We reject both
arguments.
After extensive oral hearings, in which Williams
and the agents who installed the bugs testified, Judge
Owen found that there were no bugs installed upstairs,
that a bug with a standard 10-15 foot range was in-
stalled downstairs in a standard beige phone, described
by the installer, Officer Meyers, as having a 7-8 foot
cord, and that this installation was in compliance with
Judge Ward’s order. Although DEA agents, when they
entered the apartment months later on May 31, 1981
18a
Appendix A - Opinion of United States Court of Appeals
(after the narcotics ring was broken by arrests), noted
that the downstairs beige phone now had a 12 to 15 foot
cord, this could not be attributed to the government
(since the officers installed the phone on a 7 to 8 foot
cord) but may have been the work of Williams, who
admittedly extended the cord of one of the phones. AI-
though Williams testified that the extension installed by
him was not on the beige phone, the court stated that
“the tortuous testimony of...Williams I utterly reject as
false.” These findings are not clearly erroneous.
In any event, since Judge Ward’s order authorized
interception of narcotics-related conversations “from”
the downstairs it permitted the investigators to intercept
such communications as might be audible by an un-
enhanced bug in the living room, even though they
originated from the bedroom and could be heard down-
stairs because of the open stairway between the rooms.''
Moreover, the faint television and other noises claimed
(but not shown) to have emanated from the bedruom
were insignificant. Judge Owen found that of nearly
200 taped conversations introduced into evidence, none
appeared to have originated from upstairs, thus con-
firming evidence that the investigating agents took rea-
sonable steps to limit interception to narcotics-related
conversations originating in the living room down-
stairs. This satisfied the standard, which is that agents
observe reasonable safeguards against excessive intru-
'" Cf. United States v. Sellaro, 514 F.2d 114, 124 (8th Cir. 1973),
cert. denied, 421 U.S. 1013 (1975) (order authorizing interception of
communications from telephones encompasses authorization to
intercept both incoming and outgoing calls).
The government gave the agents monitoring the wiretap at
Williams’ apartment instructions to intercept only conversations in
the living room. Judge Owen ruled that the government's “overly
restrictive interpretation” of the scope of the agents’ authority did
not bind the court in construing Judge Ward's order. Even assuming
the agents were under a statutory duty to minimize recordings of con-
versations beyond the scope of the authorization, the trial court
found that they did so out of an excess of caution. See 18 U.S.C. §
251815).
19a
Appendix A - Opinion of United States Court of Appeals
sion. Scott v. United States, 436 U.S. 128, 139-43 (1978);
United States v. Tortorello, 480 F.2d 764, 784-85 (2d Cir.),
cert. denied, 414 U.S. 866 (1973); see also, United States
v. Rizzo, 491 F.2d 215, 217 n.7 (2nd Cir.), cert. denied,
416 U.S. 990 (1974).
Our holding does not convert the electronic surveil-
lance order into a general warrant in violation of the
Fourth Amendment requirement that search warrants
particularly describe the things to be seized. Here the
order specifically authorized the interception of audible
narcotics-related conversations by named individuals
and some unknown within a designated area. This
satisfied Fourth Amendment requirements. See Steele v.
United States, 267 U.S. 498, 503-04 (1925), incorporated
in Title III, 18 U.S.C. §§2518(1)(b)(i)-(iv) and 2518(4)(a)-
(e).
3. Custody of the Original Tapes
We find equally meritless appellants’ contention
that in violation of Fed. R. Crim. P. 16(a)(1)(C)'* and
their constitutional rights to confrontation and due
process they were denied access to the original tape
recordings made from Williams’ apartment. Appellants
were given copies of the tapes which had been enhanced
to promote audibility. In addition, the prosecutor made
the original tapes available to appellants and their
experts for analysis in his office. However, appellants
declined this offer, seeking instead to analyze the origi-
nal tapes outside the government’s custody but with a
government agent present. In the absence of any plaus-
ible evidence indicating an alteration or distortion of
what was recorded on the tapes and in light of the trial
Rule i6{a1(C) provides:
“Upon request of the defendant the government shall
permit the defendant to inspect and copy...tangible objects
..which are within the possession, custody or control of the
government, and which are material to the preparation of
his defense or are intended for use by the government as
evidence in chief at the trial...”
20a
Appendix A - Opinion of United States Court of Appeals
court’s finding of authenticity and accuracy, the request
to remove this fragile evidence from the government’s
custody was unwarranted. United States v. Fuentes,563
F.2d 527, 532 (2d Cir.), cert. denied, 434 U.S. 959 (1977).'5
4. The Court’s “Community Impact” Instruction
Over defense objection, the district court charged
the jury:
“Tf, ladies and gentlemen, you fail to find beyond
a reasonable doubt that the law has been violated
as to any charge by a defendant, you should not
hesitate for any reason to return a verdict of ac-
quittal. If, on the other hand, you should find that
the law has been violated as charged by a defend-
ant in any count, you should not hesitate because
of sympathy of other reason to return a verdict of
guilty as a clear warning that a crime of this
character may not be committed with impunity.
The public is entitled to be insured of this.” (Em-
phasis added.)
Appellants contend that the italicized portion
amounted to impermissible judicial advocacy, Quercia
v. United States, 289 U.S. 466, 470-71 (1933); United
States v. Araujo, 539 F.2d 287, 290 (2d Cir.), cert. denied,
429 U.S. 983 (1976), diverting the jury’s focus from con-
sideration of individual proof to questions of public
policy. Cf. United States v. Cheung Kin Ping, 555 F.2d
1069, 1073-74 (2d Cir. 1977).
Although we long ago held that the giving of a
“community impact” instruction was not reversible
error, United States v. Witt, 215 F.2d 580, 585 n.4 (2d
'° Even if, as Guippone and Porcelli claim, their conversations
relating to gambling had been omitted from the recordings played to
the jury, such omissions would not impugn the integrity of the tapes
that were heard by the jury, which related to narcotics. Moreover,
appellants made no objection at trial that the recordings were un-
fairly incomplete.
2la
Appendix A - Opinion of United States Court of Appeals
Cir.), cert denied, 348 U.S. 887 (1954), we have disap-
proved of similar statements when made by a prosecutor
as tending to divert the jury from consideration of the
evidence, United States v. Barlin, 686 F.2d 81, 93 (2d Cir.
1982). For the same reason we find no useful purpose to
be served by the challenged instruction.'® However,
since the evidence in the present case was overwhelming
against all defendants except Haynes, whose conviction
is reversed on other grounds, and the instruction re-
ceived no prominence, the error was harmless and did
not deprive the defendants of a fair trial. Barlin, supra,
686 F.2d at 93; United States v. Modica, 663 F.2d 1173,
1182 (2d Cir. 1981), cert denied, 102 S. Ct. 2269 (1982);
United States v. Birnbaum, 373 F.2d 250, 263 (2d Cir.),
cert denied, 389 U.S. 837 (1967).
B. ADMISSION OF EVIDENCE OF DEFENDANTS’
REFUSAL TO FURNISH PALM PRINTS
Four appellants (Porcelli, Guippone, Harrison and
Markum) contend that the trial judge erred in admitting
testimony as to their refusal to supply palm prints as
evidence of consciousness of guilt without permitting
them to elicit that they had refused because they first
wanted advice of counsel. Appellants argue that ex-
clusion of evidence of their explanation violated the
‘6 The “community impact” charge cannot be equated with the
“province of the jury” charge under which the jury is told:
“You are to perform this duty [to try the issues of fact}
without bias or prejudice as to any party. The law does not
permit jurors to be governed by sympathy, prejudice, or
public opinion. Both the accused and the public expect
that you will carefully and impartially consider all the
evidence in the case, follow the law as stated by the Court
and reach a just verdict regardless of the consequences.”
This charge has been approved by us as “standard” and proper,
United States v. Ramirez, 482 F.2d 807, 816 (2d Cir.), cert. denied, 414
U.S. 1070 (1973). In contrast to the “community impact” instruction,
it directs the jury not to consider public opinion. See 1 J. Devitt & C.
Blackmar, Federal Jury Practice and Instructions, § 11.03, at 293
(3d ed. 1977).
22a
Appendix A - Opinion of United States Court of Appeals
“doctrine of completeness” as reflected in Fed. R. Evid.
106'7 because the evidence was admissible as proof of
their “state of mind,” Fed. R. Evid. 803(3).
On two occasions the government attempted pur-
suant to court order to obtain palm prints from Porcelli,
Guippone, Harrison, Markum, and Williams, to deter-
mine whether any of their prints matched a latent palm
print found on a paper bag containing heroin which was
seized on the day of their arrests. Appellants refused,
stating that they would not supply prints in the absence
of their lawyers. At trial the government sought to in-
troduce the refusal as evidence of appellants’ conscious-
ness of guilt and to explain why the government’s
fingerprint expert had not identified the latent print
after that fact had been brought out by defense counsel.
Appellants objected to the admission of the evidence
unless they were permitted to elicit that they had con-
temporaneously expressed the desire to consult counsel.
The district court ruled that the latter assertions were
inadmissible hearsay and unnecessary for a fair under-
standing of the evidence of refusal, since the govern-
ment might “take prints as a matter of right{],”” and
appellants had “no legal basis of any kind to refuse
prints.” The court indicated that the defendants could
offer their explanation by their own testimony. At the
close of trial the court instructed the jury that the refusal
to supply palm prints could provide evidence of the de-
fendants’ consciousness of guilt.
The government has a right to obtain prints pur-
suant to a lawful custodial arrest, see United States v.
Doe, 457 F.2d 895, 898-99 (2d Cir. 1972), cert. denied,
410 U.S. 941 (1973), without the presence of counsel,
'7 Fed. R. Evid. 106 provides:
“When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require him
at that time to introduce any other part or any other writ-
ing or recorded statement which ought in fairness to be
considered contemporaneously with it.
23a
Appendix A - Opinion of United States Court of Appeals
United States v. Ash, 413 U.S. 300, 313 (1973) (no right
to counsel at post-indictment photograph display for
purposes of allowing a witness to attempt an identifica-
tion), and appellants’ refusal to provide prints was ad-
missible as evidence of consciousness of guilt. United
States v. Nix, 465 F.2d 90, 93-94 (5th Cir.), cert. denied,
409 U.S. 1013 (1972).
Testimony regarding appellants’ statements that
they desired counsel would be excludable as hearsay,
Fed. R. Evid. 802, unless admissible under an exception
to the hearsay rule. Admission was not mandated by
Fed. R. Evid. 106 (doctrine of completeness) since that
rule applies only to writings, not oral statements; in any
event Rule 106 does not render admissible evidence that
is otherwise inadmissible. However, the evidence was
admissible under the exception to the hearsay rule pro-
vided by Fed. R. Evid. 803(3),'* since appellants’ con-
temporaneous statements were relevant to the issue of
their state of mind, i.e., whether they had a conscious-
ness of guilt in refusing to furnish the prints or were
acting in good faith.
It was therefore error to exclude the proof which
appellants sought to elicit. However, the error was
harmless and did not affect appellants’ substantial
rights in view of the overwhelming proof of their guilt.
Fed. R. Crim. P. 52(a). Moreover, any prejudice was
minimized by the fact that, notwithstanding the court’s
evidentiary ruling, defense counsel, in defiance of that
ruling and despite the court’s admonitions, sought by
questions to convey to the jury that appellants had re-
fused to furnish prints until they had advice of counsel.
C.INDIVIDUAL CLAIMS OF PORCELLI AND
GUIPPONE
Porcelli and Guippone contend that the evidence
was insufficient to support their convictions of substan-
'* Fed. R. Evid. 803(3) excepts from the Hearsay Rule “{a] state-
ment of the declarant’s then existing state of mind...”
24a
Appendix A - Opinion of United States Court of Appeals
tive offenses (possession on March 6, 1981, of three-
quarters of a kilogram of cocaine with intent to dis-
tribute (Count Seven) and possession of one-eighth of a
kilogram on March 16, 1981 (Count Nine)). In view of
the overwhelming evidence of guilt this claim is rejected.
Examined in the light most favorable to the govern-
ment, Glasser v. United States, supra,315 U.S. at 80;
United States v. Stirling, 571 F.2d 708, 734 (2d Cir.),
cert. denied, 439 U.S. 824 (1978), the record shows that
on March 6, 1981, Porcelli and Guippone agreed in re-
sponse to Williams’ request for “rock” (cocaine) to send
him “three-quarters” of a kilogram of “Peruvian flake”
(cocaine) they had received from a friend, which had
come out “like feathers” (good quality). Similarly, on
March 16, 1982, Porcelli agreed with Williams to “bring
down the eighth” (eighth of a kilogram). The jury was
entitled from the surrounding circumstances, including
Williams’ expressed need for heroin on the previous day
(March 15), and his statement a day later (March 17)
that he had paid $30,000 for “boy” (code name for
heroin) the night before, to find beyond a reasonable
doubt that the substance purchased from Porcelli on
March 16 was heroin. There was also ample evidence
that the quantities were kilograms, not grams for per-
sonal use, and that the crimes occurred within the
Southern District of New York. United States v. Pane-
bianco, 543 F.2d 447, 455 (2d Cir. 1976), cert. denied,
429 U.S. 1103 (1977).
Their “boilerplate claim” that the proof disclosed
multiple conspiracies rather than the single conspiracy
charged, see United States v. McGrath, 613 F.2d 361, 367
(2d Cir. 1979), cert. denied, 446 U.S. 967 (1980), must
also be rejected. The trial court’s charge on conspiracy
followed that approved by us, United States v. Tramun-
ti, 513 F.2d 1087, 1107 (2d Cir.), cert. denied, 423 U.S.
832 (1975). The question of multiple or single conspira-
cies is one of fact, United States v. Alessi, 638 F.2d 466,
472 (2d Cir. 1980). Accepting the proof as we must in the
light most favorable to the government, United States v.
25a
Appendix A - Opinion of United States Court of Appeals
Murray, 618 F.2d 892, 902 (2d Cir. 1980); United States
v. Armedo-Sarmiento,545 F.2d 785, 789 (2d Cir. 1976),
cert. denied, 430 U.S. 917 (1977), the evidence was suffi-
cient to permit the jury to find the existence of a single,
large-scale, “chain-type” narcotics operation whose
central link was Williams’ apartment on East 89th
Street.
Porcelli and Guippone agreed to further the aims of
Williams’ narcotics enterprise by supplying him with
large quantities of heroin and cocaine for which they
received large sums of money. They were aware of the
size of the middleman Williams’ operation, United
States v. Armedo-Sarmiento, 545 F.2d at 790; United
States v. Panebianco, 543 F.2d at 453, and knew their
supply of narcotics would not stop with him. Indeed,
they frequently discussed the fortunes of one of his dis-
tributors in the venture, Harrison, who was late in his
payments. Thus, Porcelli and Guippone depended on
Williams to collect money due them from Harrison, and
Williams depended on Porcelli and Guippone to keep
him in steady supply.
When Porcelli and Guippone refused to come to Wil-
liams’ apartment for five weeks, suspecting danger,
Williams could not obtain heroin. The three exchanged
reciprocal warnings, reinforcing the existence of their
interdependence and mutual assistance, thus warrant-
ing treatment of their dealings as a single business
venture. United States v. Tramunti, supra, 513 F.2d at
1106. The temporary hiatus that occurred while the three
waited for the danger toe pass did not transform the sin-
gle ongoing conspiracy into two conspiracies since there
was nothing to indicate that any of them viewed their
mutual dealings as having terminated. United States v.
Panebianco, supra, 543 F.2d at 452. On the contrary,
during the period when Porcelli and Guippone were
lying low, Williams made repeated efforts, including a
meeting with Porcelli, to arrange alternative meeting
places to honor Porcelli and Guippone’s demand, which
was not that they cease doing business together, but
that they meet in the Bronx. Similarly, the record is
26a
Appendix A - Opinion of United States Court of Appeals
that they meet in the Bronx. Similarly, the record is
clear that appellants Porcelli and Guippone never with-
drew from the conspiracy; they merely wanted to switch
its locale. Consequently, their claim that statements of
co-conspirators after March 16, 1981 should have been
excluded is frivolous. United States v. Schwenoha, 383
F.2d 395, 396-97 (2d Cir. 1967), cert. denied, 390 U.S. 904
(1968); United States v. Borelli, 336 F.2d 376, 388-89
(2d Cir. 1964), cert. denied, 379 U.S. 960 (1965).
We also reject as meritless Porcelli’s contention that
Judge Owen erred in ruling that he would, if Porcelli
took the stand, admit Porcelli’s 20-year old narcotics
conviction on the issue of intent and guilty knowledge,
Fed. R. Evid. 404(b). The ruling was correct in view of
the claim of Porcelli’s counsel in his opening statement
that the telephone conversations with Williams related
to gambling, not narcotics, and Porcelli’s refusal to
remove this issue from dispute by stipulating that the
terms used in the taped conversations referred to nar-
cotics. United States v. Reed, 639 F.2d 896, 906-07 (2d
Cir. 1981); United States v. Figueroa, 618 F.2d 934, 941-
43 (2d Cir. 1980); United States v. Mohel, 604 F.2d 748,
753-55 (2d Cir. 1979).
Porcelli and Guippone’s remaining contentions are
without merit. We therefore affirm their convictions.
D. HARRISON’S CLAIMS
Harrison contends that he was deprived of a fair
trial because of prosecutorial misconduct. His first
claim is that when Agent Hubert Shockley hesitated in
making an in-court identification of him as the person
seen entering Williams’ apartment on March 15, 1981, to
arrange delivery of two kilograms of cocaine, the prose-
cutor aided Shockley by using his eyes to point toward
Harrison at the counsel table. Both the prosecutor and
Shockley denied any such improper collaboration.
Moreover, the court found first that any hesitation in
making the identification was attributable to the fact
27a
Appendix A - Opinion of United States Court of Appeals
that Harrison’s face was blocked from the witness by his
counsel’s open briefcase. Second, the court found that
any change in the prosecutor’s facial expression was
caused by his astonishment when, just as the witness
was looking for Harrison, defendant Haynes inexplicab-
ly rose to his feet, directing attention away from Harri-
son to himself. Since the question of what occurred in
the courtroom in the presence of judge and jury is one of
fact, we fail to find sufficient support, in view of the
trial judge’s comments, for the misconduct claim. In
any event, there was abundant other independent evi-
dence that Harrison was the speaker in the March 15
conversation with Williams regarding the delivery of
cocaine.'? Under the circumstances we also reject the
claim that the trial judge abused his discretion in order-
ing Harrison after the incident to give a voice exemplar.
Nor is there any merit in the claim that the prosecu-
tor acted improperly in questioning on cross-examina-
tion Harrison’s “voice expert” witness, Louis Gerstman,
regarding prior occasions when his testimony in other
cases had been criticized by the court as unworthy of
belief. Proof that a judge of the District of Columbia
Superior Court before whom Gerstman had testified as
an expert had found that Gerstman had “guessed under
oath” was probative of the weight to be accorded to his
testimony. Fed. R. Evid. 608(b), 613(a).?°
19 This evidence included testimony of another government
agent who had spoken to Harrison on the day of his arrest and iden-
tified the voice in the March 15 conversation as that of Harrison.
Harrison also admitted that he was knows as “Harry,” the name by
which he was addressed by Williams at their March 15 meeting.
20 Fed. R. Evid. 608(b) provides in relevant part:
“Specific instances of the conduct of a witness, for the
purpose of attacking...his credibility,...may...in the discre-
tion of the court, if probative of truthfulness or untruth-
fulness, be inquired into on cross-examination of the
witness (1) concerning his character for truthfulness or
untruth fulness...”
(Footnote continued on following page.)
‘28a
Appendix A - Opinion of United States Court of Appeals
Harrison’s claim that the court erred in admitting
identification testimony by Frank Lucas, a thrice con-
victed narcotics dealer, borders on the frivolous. The
evidence was relevant to establish Harrison’s residence,
a material fact, aid to identify his voice on the March
15, 1981 tape after Harrison had refused to stipulate that
he was the speaker whum Wiliiams greeted as “Harry.”
Lucas’ allegedly prejudicial testimony regarding his
own sordid history was elicited by Harrison’s own
counsel, over the government’s objection. Harrison thus
waived any possible claims based on the prosecutor's
reference to the testimony in summation by his failure to
object. United States v. Clemente, 640 F.2d 1069, 1081
(2d Cir. 1980), cert. denied, 454 U.S. 820 (1981).
We find no merit in Harrison’s other contentions.
His conviction accordingly is affirmed.
E. MARKUM'’S CLAIMS
Markum claims that the testimony of the govern-
ment witness Frank Lucas regarding Lucas’ own nar-
cotics history and attempts to bribe state court judges,
which was adduced on cross-examination by Harrison's
counsel over government objection, should have been
excluded under Fed. R. Evid. 403 on the ground that its
prejudicial impact outweighed its probative value, or
that a limiting instruction as to Markum should have
been given under Fed. R. Evid. 105, or a severance
granted under Fed. R. Crim. P. 14. The claim is merit-
less. Lucas’ testimony linked Harrison to the conspir-
acy. A limiting instruction was unnecessary since the
impeaching testimony brought out on cross-examina-
tion related exclusively to Lucas and could not possibly
(Footnote continued from preceding page.)
Fed. R. Evid. 613(a) provides:
“In examining a witness concerning a prior statement
made by him,...the statement need not be shown nor its
contents disclosed to him at that time, but on request the
same shall be shown or disclosed to opposing counsel.”
29a
Appendix A - Opinion of United States Court of Appeals
have been attributed by the jury to Markum or any other
defendant. Moreover, any possible error would have
been harmless beyond a reasonable doubt in view of the
abundant independent evidence of Markum’s guilt, par-
ticularly his frequent and highly incriminating con-
versations with Williams about narcotics.
We also reject Markum’s claim that the trial judge
erred in considering Markum’s perjured testimony in
impusing sentence. United States v. Grayson, 438 U.S.
41, 50-51 (1978). His conviction is accordingly affirmed.
F. NALVEN’S CLAIMS
Relying mainly on Edwards v. Arizona, 451 U.S.
477, 484-85 (1981), Nalven claims that the court erred in
admitting a false exculpatory statement made by him
upon his arrest. He asserts that the interrogation vio-
lated his Sixth Amendment right to counsel.
DEA agents, after arresting Nalven, read him his
rights under Miranda v. Arizona, 384 U.S. 436 (1966),
and asked him whether he wished to waive them, to
which he replied that he did not. He did not request a
lawyer. Some 40 minutes later, at DEA headquarters,
an Assistant U.S. Attorney again read to Nalven his
Miranda rights and asked him if he had ever taken
drugs. He replied that he had not. When further inter-
rogation was attempted he responded that he would
have nothing to say until he spoke with an attorney,
whereupon questioning ceased. At trial, in rebuttal to
Nalven’s testimony that he bought small amounts of
cocaine as a recreational user of cocaine, not a co-con-
spirator, United States v. Swiderski, 548 F.2d 445, 450
(2d Cir. 1977), the government sought to impeach him by
introducing his earlier answer. The trial court con-
cluded that in giving this answer Nalven knowingly
waived his rights until he decided not to talk further
before consulting counsel. We agree.
Edwards v. Arizona, supra, held only that it was
impermissible to infer a waiver by an accused of his
30a
Appendix A - Opinion of United States Court of Appeals
Sixth Amendment right to counsel after he “has clearly
asserted his right to counsel,” 451 U.S. at 485. Further
interrogation would then be inconsistent with Miranda.
However, unless and until the accused asks for a lawyer
he may waive his procedural Miranda rights, see Michi-
gan v. Mosley, 423 U.S. 96, 104 n.10 (1975); id. at 109-11
(White, J., concurring). Prior to the accrual of the right
to counsel, the standard for waiver is whether under the
facts and circumstances of the case, including the ac-
cused’s background and conduct, he understands the
right in question and voluntarily intends to relinquish
it. Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
In the hearing as to the voluntariness of Nalven’s
statement, Nalven acknowledged that when he was read
his rights by the Assistant United States Attorney he
understood each one of them. He understood that he did
not have to answer any questions, that anything he said
could be used against him, and that he had a right to
have an attorney before proceeding any further. Nalven
confirmed, too, that he had acknowledged understand-
ing those rights at the time he was advised of them.
Since Nalven’s rights were scrupulously respected at
every stage, with interrogation terminated immediately
upon his stating that he wanted to consult a lawyer, and
there is no suggestion that he was subjected to lengthy
questioning or other improper tactics, the finding of a
waiver with respect to his statement concerning his use
of narcotics must be upheld. Michigan v. Mosley, supra,
423 U.S. at 105-06
In any event, even if the admission of the false ex-
culpatory statement had been error it would have been
harmless beyond a reasonable doubt, since the state-
ment formed but a minuscule part of the evidence
against Nalven, which included repeated purchases of
substantial amounts of cocaine from Williams, state-
ments referring to Nalven’s role as a tester and money
launderer, and direct evidence of his assistance to
Williams in the use of the microscope to examine
cocaine.
3la
Appendix A - Opinion of United States Court of Appeals
Nalven also claims that the trial judge erred in
admitting into evidence his licensed gun, a Walther
PPK 9 millimeter pistol, and 300 rounds of hollowed out
“dum-dum” bullets seized from his basement office at
the time of his arrest. We disagree.
The trial court’s determination that the probative
value of admission of a weapon outweighs the danger of
unfair prejudice will be upheld unless arbitrary or ir-
rational. United States v. Robinson, 560 F.2d 507,
514-15 (2d Cir. 1977), cert. denied, 435 U.S. 905 (1978).
The government charged that Nalven let his bar be used
for substantial narcotics transactions. Before the ad-
mission of the weapon, DEA agents testified that the
bar was the site of their initial heroin purchase from
Steward, that the agent was told then that the bar was
“safe” and that the back room could be used to count
money and check the “dope,” and that the bar was later
used by Nalven to test drugs for Williams. That the gun
and ammunition were found in the basement rather
than in the bar could have supported the conclusion that
Naiven intended their use for protection, noi of his bar,
but of other business. While the possession of a licensed
gun, standing alone, might have no relevance to illegal
narcotics business, here the location of the weapon and
the special type of ammunition found with it (deadly
hollowed out “dum-dum” bullets) supported the in-
ference that these were instruments of the narcotics
trade. See United States v. Wiener, 534 F.2d 15, 18 (2d
Cir.), cert. denied, 429 U.S. 820 (1976).
Under the circumstances we cannot say that the
trial judge’s determination was irrational. Moreover,
since the jury was aware that Nalven had a license for
the gun there was less danger that jurors would be
tempted to punish him for possession of the gun rather
than for the offense charged. See Robinson, 560 F.2d at
513-14.
32a
Appendix A - Opinion of United States Court of Appeals
G. TERRY’S CLAIMS
Terry prudently does not question the sufficiency of
the overwhelming evidence of his guilt. However, he
does claim that the trial court erred in failing to sup-
press the set of scales (of the type used to weigh nar-
cotics being cut or packaged), some marijuana, and a
business card, all of which were seized from his apart-
ment during the execution of a warrant for his arrest.
Terry argues that the police lacked sufficient reason to
believe that he was at home, and therefore they could
not lawfully enter his apartment. Payton v. New York,
445 U.S. 573, 602-03 (1980). Because those items formed
part of the basis for the subsequent issuance of a war-
rant for the search of his apartment, which uncovered
other incriminating evidence, he contends that the
search warrant was tainted. Terry also claims that the
police extended their stay beyond the time necessary
to secure the premises and that the seizure of the busi-
ness card, which occurred some 15-20 minutes after the
agents’ arrival on the premises, was invalid. We dis-
agree.
Armed with a valid arrest warrant, the agents had
the right to enter the Terry apartment if they had a rea-
sonable basis for believing Terry was there. Payton v.
New York, 445 U.S. at 602-03; United States v. Spencer,
684 F.2d 220, 222-23 (2d Cir. 1982). They had sufficient
information to justify their belief in Terry’s presence.
The telephone at the apartment was listed to Doris
Terry. A man named Terry had spoken to Williams
from that apartment. When the agents arrived at the
apartment building, a 12-year old boy wearing a shirt
with the name “Terry” on it told them his father and
mother lived in the apartment and did not indicate that
his father was not at home. Moreover, the agents ar-
rived at the apartment at 8:45 A.M. on a Sunday morn-
ing, a time when they could reasonably believe that
Terry would be home. We have rejected the contention
that the police must first conduct a thorough investiga-
33a
Appendix A - Opinion of United States Court of Appeals
tion to obtain evidence of an arrestee’s actual presence
before entering his residence. United States v. Manley,
632 F.2d 978, 984 (2d Cir. 1980), cert. denied, 449 U.S.
1112 (1981).
Once lawfully in the apartment the agents were
entitled to make a limited security check of the premises,
id., 632 F.2d at 986; United States v. Gomez, 633 F.2d
999, 1008 (2d Cir. 1980), cert. denied, 450 U.S. 994 (1981).
The crucial incriminating items—the scale, marijuana,
and business card—were lawfully seized during the
check because they were within the officers’ plain view.
Washington v. Chrisman, 455 U.S. 1, 5-6 (1982); Spencer,
supra, 684 F.2d at 224. As long as agents did not enter
because they had advance knowledge of these items,
their discovery was inadvertent. See United States v.
Liberti, 616 F.2d 34, 37 (2d Cir.), cert. denied, 446 U.S.
952 (1980). Terry argues that the scale could not have
been in plain view because the DEA agent who seized
it had to walk over to the box and look into it before
determining that the box contained a scale. However,
since the outside of the box itself, which was in plain
view, bore the name “OHAUS,” the name of a balance
scale frequently used in narcotics dealing, and the open
box revealed part of the scale with white powder residue
on it, the agent’s seizure of it was lawful. See United
States v. Mannino, 635 F.2d 110, 115 (2d Cir. 1980).
After the initial pass-through of the apartment, and
the discovery of the marijuana and scale, the agents were
entitled to remain on the premises to secure the apart-
ment from the destruction of evidence, United States v.
Manley, 632 F.2d at 987, and to request the assistance of
Terry’s wife in locating him. The plain view seizure of
the business card, which occurred during this period,
was thus lawful. Accordingly Terry’s conviction is
affirmed.
34a
Appendix A - Opinion of United States Court of Appeals
H. INSUFFICIENCY OF THE EVIDENCE AGAINST
HAYNES
Haynes claims that since there was insufficient
proof of his participation in the alleged conspiracy the
trial court erred in admitting against him Williams’ out-
of-court hearsay statements and that the non-hearsay
evidence against him was insufficient to permit the jury
to find him guilty of conspiracy or of the substantive
charges against him. We agree.*!
Before a jury may consider against a defendant a
conspiracy count that rests in part on hearsay state-
ments of an alleged co-conspirator, the trial judge must
be satisfied by a fair preponderance of the independent
non-hearsay evidence that the defendant was in fact a
member of the conspiracy. United States v. Cicale, 691
F.2d 95, 103 (2d Cir. 1982); United States v. Geaney, 417
F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S.
1028 (1970). Without the requirement of independent
non-hearsay corroboration, co-conspirator hearsay
“would lift itself by its own bootstraps to the level of
competent evidence,” Glasser v. United States, 315 U.S.
60, 74-75 (1942), and thus assume the conclusion to be
proven, in this case Haynes’ membership in the con-
spiracy.
The standard for independent proof of participation
in the conspiracy is not as high as that needed to submit
a charge of conspiracy to the jury, United States v.
Alvarez-Porras, 643 F.2d 54, 57 (2d Cir.), cert. denied,
454 U.S. 839, (1981). The proof may be “totally cir-
cumstantial,” United States v. Ragland, 375 F.2d 471,
477 (2d. Cir. 1967), cert. denied, 390 U.S. 925 (1968),
and the court must view the evidence as a whole rather
“! Since we find this issue dispositive it is unnecessary for us to
consider Haynes’ other claims, e.g., that he was denied a fair trial by
reason of the prosecutor’s improper comments, or to remand for
correction of his sentence which the government concedes to be im-
proper by reason of the unauthorized imposition of a lifetime parole.
Bifulco v. United States, 447 U.S. 381 (1980).
35a
Appendix A - Opinion of United States Court of Appeals
than consider individual items in isolation, United
States v. Di Palermo, 606 F.2d 17, 22 (2d Cir. 1979),
cert. denied, 445 U.S. 915 (1980). Once a conspiracy
has been proved to exist, the evidence needed “to link
another defendant with it need not be overwhelming.”
United States v. Provenzano, 615 F.2d 37, 45 (2d Cir.),
cert. denied, 446 U.S. 953 (1980) (quoting United States
v. Head, 546 F.2d 6, 9-10 (2d Cir. 1976), cert. denied, 430
U.S. 931 (1977)).
Notwithstanding this lower standard the govern-
ment must nonetheless show a “likelihood of an illicit
association between the declarant and the defendant.”
United States v. Ragland, supra, 375 F.2d at 477 (em-
phasis added). Mere familiarity with a drug dealer does
not make one a member of his conspiracy; nor does
association with a conspirator provide a sufficient basis
for the admissibility of hearsay statements of an alleged
co-conspirator. United States v. Steinberg, 525 F.2d
1126, 1134 (2d Cir. 1975), cert. denied, 425 U.S. 971
(1976); United States v. Fantuzzi, 463 F.2d 683, 690 (2d
Cir. 1972); United States v. Ragland, supra, 375 F.2d at
477.
In the present case the independent non-hearsay
proof consisted of (1) Haynes’ admission that he was
known as “Legs” and knew Williams and Harrison,
(2) proof of a telephone conversation with Williams on
April 9, 1981, and (3) proof that on April 25, 1981, Wil-
liams dialed a telephone number at Haynes’ apartment
house.” The government argues that the short April 9th
“ Scraps of paper retrieved from Williams’ trash and Williams’
notebook containing references to “Legs”’ are hearsay and according-
ly may not be used to meet the Geaney threshold. The government
understandably did not seek to admit these writings as business
record exceptions to the hearsay rule, Fed. R. Evid. 803(6), absent
proof of their reliability and accuracy as business records, either
through a custodian or other qualified witness subject to cross-
examination. See United States v. McGrath, 613 F.2d 361, 367-68
(2d Cir. 1979), cert. denied, 446 U.S. 967 (1980); United States v.
Baxter, 492 F.2d 150, 164 (9th Cir. 1973), cert. denied, 416 U.S. 940
(1974).
36a
Appendix A - Opinion of United States Court of Appeals
conversation, in which the portion relied on by it was
Haynes’ question “what’s happening Felix” and Wil-
liams’ reply “ain’t nothing happening Legs,” was suffi-
cient to meet the foregoing standards because one can
infer that it was narcotics-related when considered with
evidence that Williams was at that time out of drugs.
We disagree.
Viewed in a light most favorable to the government
and “not in isolation but in conjunction,” United States
v. Geaney, supra, 417 U.S. at 1121, the independent non-
hearsay evidence proves only an acquaintanceship, not
the likelihood of an illicit relationship between Williams
and Haynes. The expression “what's happening?” is a
widespread innocent salutation, the equivalent to
“what’s cooking?,” “what’s new with you?,” or simply
“hello, how are you doing?” Hearsay proof that co-
conspirators may on two or three occasions have used
the same phrase in the course of conversations with
Williams involving narcotics hardly supports the sinis-
ter inference demanded by the government, in view of
common knowledge that the salutation is widely used by
innocent acquaintances. While “{jjudges are not re-
quired to exhibit a naivete from which ordinary citizens
are free,” United States v. Stanchich, 550 F.2d 1294,
1300 (2d Cir. 1977), neither are we permitted to read evil
meaning into words usually having an innocent conno-
tation, absent proof (of which there is none here) that
they were part of a secret code.
Statements made by Williams on April 25, 1981,
when he dialed a number at Haynes’ apartment house,
were hearsay as to Haynes since only Williams’ voice
was recorded and tnere is no non-hearsay proof that
Haynes was the person on the other end of the line.
However, even if, as the government argues, the Wil-
liams end of the conversation was admissible not to
prove the truth of what he said but merely for the pur-
pose of showing that the statement was made, Williams’
statements that “you can send Bobby” and “‘i]f Gabe
37a
Appendix A - Opinion of United States Court of Appeals
come, tell him something about shirts that he had
passed,” are too ambiguous to cross the threshold re-
quired to establish participation in a criminal conspir-
acy, United States v. Cianchetti, 315 F.2d 584, 587-88
(2d Cir. 1963). When evidence used to satisfy Geaney is
“as consistent with innocence as with guilt,” additional
evidence linking the defendant to the conspiracy as-
sumes “pivotal importance.” Alvarez-Porras, supra,
643 F.2d at 57-58. Here, that all-important other evi-
dence is totally lacking. The most that was developed
by the evidence was an acquaintanceship between
Haynes and Williams plus a possible inquiry by the
former of the latter about narcotics. As against this
meagre evidence the record shows that in the course of
eight months of surveillance by trained agents, Haynes
was never seen at Williams’ apartment. His voice was
heard on only one of some 200 taped conversations be-
tween Williams and his co-conspirators that were ad-
mitted into evidence.
For these reasons the jury should not have been per-
mitted to consider the statements of co-conspirators
concerning Haynes and the charges against him should
have been dismissd for insufficiency of proof. Accord-
ingly, we reverse his conviction and remand with
directions to enter a judgment of acquittal of the charges
against him.*'
xe*eKK KK KK HK
We have considered the remaining claims made by
various appellants and find them to be without merit.
The judgment convicting appellant Haynes is re-
versed. The judgements convicting all other appellants
are affirmed.
*' Haynes’ conviction under 21 U.S.C. § 843(b) for using a tele-
phone to further the conspiracy must be reversed in light of our rul-
ing that the evidence is insufficient to convict Haynes of the predi-
cate felony of membership in the conspiracy.
38a
Appendix B
Opinion and Order of United States District Court
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
against
WILLARD WILLIAMS, a/k/a “Felix Davis,”
a/k/a “Trees,” a/k/a “Mr. William,” a/k/a “The Black
Prince,” ANTHONY MICHAEL PORCELLI, a/k/a
“Porky,” ROBERT ANGELO GUIPPONE, a/k/a
“Sonny,” SAINT JULIAN HARRISON, a/k/a “Harry”
a/k/a “James Harrison,” a ‘k/a “Mr. Simmons,”
a/k/a “Edward Carey,” MAHLON JOSEPH
STEWARD, a/k/a sd a/k/a “Little Lips”,
JOHN DOK, a/k/a “Jack,” ONZELO MARKUM, a/k/a
“Junior,” CLARENCE HANES, a/k/a “Legs,” JOHN
DOK, a/k/a “Piggy,” ERIC NALVEN, WILLIAM
JENKINS, a/k/a “Pete,” a/k/a “Pete Smalls,”
JOHN DOK, a/k/a “‘Pighee McCoy,” SONYA SANTOS,
MICHAEL CAVAGROTTI, CINDY CAVAGROTTI,
SHEILA WILLIAMS, YOLANDA KING, a/k/a
“Lonnie,”
Defendants
Opinion and Order
81 Cr. 398
December 1, 1981
OWEN, District Judge
On February 18, 1981, Judge Robert J. Ward of this
court found that there was probable cause to believe
that a heroin ring was operating out of the apartment
of defendant Willard Williams at 309 East 89th Street
39a
Appendix B
Opinion and Order of United States District Court
in Manhattan. Pursuant to that finding, Judge Ward
signed an order authorizing the placement of electronic
listening devices (“bugs’’) in Williams’s living room
in order to obtain oral evidence of the commission of
narcotics-related crime. The order expressly provided
that the government might “intercept oral communica-
tions of...[defendants Williams, Porcelli, Guippone,
Steward,| Jones, and others as yet unknown from the
premises known as the first floor of duplex apartment
J...” Standard bugs with a range of ten to fifteen feet
were thereafter surreptitiously installed in the apart-
ment, and for the following sixty days conversations
intercepted by these bugs were monitored and tape-
recorded by agents of the Drug Enforcement Agency
(“DEA“) who were stationed in an apartment across the
street.' During this surveillance period, the agents
recorded a considerable number of conversations of the
defendants herein; it is undisputed that the subject
matter of those conversations is within the scope of
Judge Ward’s order.
After indictment, defendants moved to suppress all
the intercepted commun.cations as the fruits of an un-
lawful general search. The theory of defendants’ mo-
tion, which was based on defendant Williams's testi-
mony and some stray language on the tapes themselves,
was that certain of the bugged conversations took place
in Williams’s bedroom.? This, defendants argued,
proved that there had been an illegal bug in the bed-
room, which thereby voided the entire electronic inter-
ception and necessitated the suppression of all the tapes.
Williams’s bedroom, which at one time had been a
separate apartment designated “lJ”, was located
immediately above the living room and was connected
to the living by a set of open stairs. The stairs rose
' The order was renewed on April 2, 1981 for an additional thirty
days.
* Williams apparently has medical problems with his feet and
therefore spent a lot of his waking time on his bed.
40a
Appendix B
Opinion and Order of United States District Court
from the living room through a large aperture to the
bedroom floor at a point a few feet from Williams’s bed
and close to a projection television screen.
I held several days of hearings on the ‘‘bug-in-the-
bedroom”’ issue. I now find as a fact that there was no
bug in defendant Wialliams’s bedroom. I find that two
bugs were placed in the living room by New York City
Police officers posing as telephone repairmen. One bug
was placed in the telephone wall “jack” located on the
baseboard of the wall; the other was placed in the base
of a standard telephone with a standard wall cord con-
necting it to the bugged jack. I also find that, for his
own convenience, Williams kept this telephone on one of
the middle-to-upper steps of the stairway, which in fact
was no more than a few feet from his bed and the pro-
jection television screen.’ Even while on the stairs
however, the telephone, with the bug inside it, remained
in the living room, Accordingly, I conclude that the bug
was at all times located in compliance with the order of
Judge Ward.
As it became apparent during the hearing that there
was no bug in the bedroom, defendants shifted the
grounds of their suppression motion. They now contend
that the agents were intercepting conversations which
they knew or should have known were taking place in
the adjoining upstairs bedroom - albeit only a few feet
from the bug -- and that the agents had a duty at that
point either to stop monitoring or to come back to the
court for an extension of the limits of the eavesdropping
order. Concededly, they did neither.
To pursue this new inquiry, defendants now seek to
interrogate the monitoring agents as to their states of
mind during the two months of bugging in order to
* Williams had two other phones with different phone numbers
which were both located upstairs. Neither phone had any involve-
ment whatsoever with the matter before me.
4la
Appendix B
Opinion and Order of United States District Court
determine whether, at the time an agent was monitoring
any particular conversation, that agent knew or had
reason to believe that that conversation was coming
from the bedroom.‘ Of the some twenty monitoring
agents, defendants demand, at least at first, that five be
produced. Contending that the seizure of any conversa-
tions from the bedroom was prohibited, defendants
argue that if an agent or agents can be shown to have
had an awareness that various conversations came
from the bedroom, then all the fruits of the electronic
eavesdropping must be suppressed.°
Upon reading the court’s order itself, in light of the
language of and the principles inherent in both the Con-
stitution and Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., I de-
cline to pursue this line of inquiry, and I do not, nor need
I, make any findings of fact in this area. In the order
authorizing the bugging, Judge Ward found that there
was probable cause to believe that Williams was traf-
ficking in narcotics and that his living room was being
used for that purpose. Based on this finding, Judge
Ward authorized the DEA agents to install bugs in the
living room. They did exactly that. They were told that
they could intercept “from” that living room oral com-
munications pertaining to narcotics activity. Again,
‘ The government recorded over 1900 individual conversations.
® Defendants seek to bolster their legal position by reference
to certain oral and written instructions which the government gave to
the monitoring agents and which direct in essence that only conversa-
tions in the living room were to be intercepted. The government's
overly restrictive interpretation of the scope of the agents’ authority
does not, however, establish the law or bind this court.
42a
Appendix B
Opinion and Order of United States District Court
they did exactly that. The communications which they
recorded from that living room were audible in the living
room and thus were geographically within the scope of
the order. Consequently, whether or not an agent or
agents knew or had reason to believe that the conversa-
tion being bugged at any given time came from the
adjacent bedroom is irrelevant. A rule mandating the
suppression of incriminating conversations which were
audible in the very room which a court had designated
for the placement of a bug would, in my opinion, make a
mockery of the Constitution and Title III.° The Fourth
Amendment assures “the right of the people to be secure
in their...houses against unreasonable searches and
seizures,..." It was designed to protect the citizenry
from the abuse of power by the sovereign. It was not
designed to protect an alleged narcotics dealer from a
prosecution based upon his incriminating conversations
which were overheard by a court-authorized listening
device located in exactly the room in which the court
permitted the interception to occur.
In sum, I conclude that the bugs were lawfully
situated in the living room and that any conversation
dealing with narcotics trafficking which they over-
heard, whether or not the agents knew it was occurring
in an adjoining room, was lawfully intercepted and is
therefore admissible on the trial herein. Accordingly,
leave to defendants to pursue this new line of inquiry is
denied, and defendants’ motion to suppress the fruits of
“ For example, consider a conversation in which one speaker
is in the living room and the other is just across the doorsill in the
dining room and statements of both are picked up by the bug. Is the
government to be denied such evidence of narcotics trafficking, or
denied half of it? Is the boundary between lawful and unlawful
eavesdropping a doorsill which a monitoring agent cannot even see?
I note that this is not a case where the bug employed was so
sensitive that it could pick up conversations that were not audible to
the human ear. That may present a different issue, but such an issue
is not now before me.
43a
Appendix B
Opinion and Order of United States District Court
the electroriic surveillance authorized by Judge Ward is
denied in its entirety. The trial in this case will com-
mence on January 14, 1982 at 10:00 a.m.
The foregoing is so ordered.
s/s Richard Owen
United States District Judge
Dated: New York, N.Y.
December 1, 1981
APPEARANCES
For the Government
JOHN S. MARTIN, Jr., Esq.
United States Attorney for the Southern District
of New York
One St. Andrew’s Plaza
New York, NY 10007
By: Richard A. Martin, Esq. and
Lawrence Ruggiero, Esq.
Of Counsel
For Defendants
JAY GOLDBERG, Esq.
230 Park Avenue
New York, NY 10169
Attorney for Defendant Willard Williams
PAUL A. VICTOR, Esq.
Martin G. Weinberg, Esq.
Of Counsel
67 Wall Street
New York, NY 10007
Attorney for Defendant Robert Angelo Guippone
44a
Appendix B
Opinion and Order of United States District Court
MURRAY RICHMOND, Esq.
Martin G. Weinberg, Esq.
Of Counsel
1940 Williamsbridge Road
Bronx, NY 10461
Attorney for Defendant Anthony Michael Porcelli
SALVATORE F. QUAGLIATA, Esq.
94-04 101st Avenue
Ozone Park, NY 11416
Attorney for Defendant St. Julian Harrison
EUGENE BOGAN, Esq.
989 Avenue of the Americas
New York, NY 10018
Attorney for Defendant Onzelo Markum
PAUL GREENFIELD, Esq.
225 Broadway
New York, NY 10007
Attorney for Defendant Yolanda King
RONALD J. MARGOLIS, Esq.
1350 Avenue of the Americas
New York, NY 10019
Attorney for Defendant Sheila Williams
BARRY I. SLOTNICK, Esq.
225 Broadway
New York, NY 10007
Attorney for Defendant Michael Cavagrotti
CAESAR D. CIRIGLIANO, Esq.
James A. Cohen, Esq.
Of Counsel
The Legal Aid Society
2 Lafayette Street
New York, NY 10007
Attorney for Defendant William Mifflin
45a
Appendix B
Opinion and Order of United States District Court
BARRY ASNESS, Esq.
345 Park Avenue
New York, NY 10154
Attorney for Defendant Gloria Quintana
VICTOR J. HERWITZ, Esq.
22 East 40th Street
New York, NY 10016
Attorney for Defendant Gabriel McMillan
THOMAS H. SEAR, Esq.
Spengler Carlson Gubar Brodsky & Rosenthal
280 Park Avenue
New York, NY 10017
Attorney for Defendant Mahlon Steward
ROBERT L. HERBST, Esq.
235 Main Street
White Plains, NY 10601
Attorney for Defendant Willie Terry
RICHARD BERNE, Esq.
305 Madison Avenue
New York, NY 10017
Attorney for Defendant Cindy Cavagrotti
WILLIAM B. JACOBS, Esq.
26 Court Street
Brooklyn, NY 11201
Attorney for Defendant Ricardo Bedoya
46a
Appendix C
Opinion and Order of United States District Court
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
against
WILLARD WILLIAMS, et al.,
Defendants.
Opinion and Order
S 81 Cr. 398
December 3, 1981
APPEARANCES
For the Government
JOHN S. MARTIN, Jr., Esq.
United States Attorney for the Southern District
of New York
One St. Andrew’s Plaza
New York, NY 10007
By: Richard A. Martin, Esq. and
Lawrence Ruggiero, Esq.
Of Counsel
For Defendants
JAY GOLDBERG, Esq.
230 Park Avenue
New York, NY 10169
Attorney for Defendant Willard Williams
47a
Appendix C
Opinion and Order of United States District Court
PAUL A. VICTOR, Esq.
Martin G. Weinberg, Esq.
Of Counsel
67 Wall Street
New York, NY 10007
Attorney for Defendant Robert Angelo Guippone
MURRAY RICHMOND, Esq.
Martin G. Weinberg, Esq.
Of Counsel
1940 Williamsbridge Road
Bronx, NY 10461
Attorney for Defendant Anthony Michael Porcelli
SALVATORE F. QUAGLIATA, Esq.
94-04 101st Avenue
Ozone Park, NY 11416
Attorney for Defendant St. Julian Harrison
EUGENE BOGAN, Esq.
989 Avenue of the Americas
New York, NY 10018
Attorney for Defendant Onzelo Markum
PAUL GREENFIELD, Esq.
225 Broadway
New York, NY 10007
Attorney for Defendant Yolanda King
RONALD J. MARGOLIS, Esq.
1350 Avenue of the Americas
New York, NY 10019
Attorney for Defendant Sheila Williams
BARRY I. SLOTNICK, Esq.
225 Broadway
New York, NY 10007
Attorney for Defendant Michael Cavagrotti
CAESAR D. CIRIGLIANO, Esq.
James A. Cohen, Esq.
Of Counsel
The Legal Aid Society
2 Lafayette Street
New York, NY 10007
Attorney for Defendant William Mifflin
48a
Appendix C
Opinion and Order of United States District Court
BARRY ASNESS, Esq.
345 Park Avenue
New York, NY 10154
Attorney for Defendant Gloria Quintana
VICTOR J. HERWITZ, Esq.
22 East 40th Street
New York, NY 10016
Attorney for Defendant Gabriel McMillan
THOMAS H. SEAR, Esq.
Spengler Carlson Gubar Brodsky & Rosenthal
280 Park Avenue
New York, NY 10017
Attorney for Defendant Mahion Steward
ROBERT L. HERBST, Esq.
235 Main Street
White Plains, NY 10601
Attorney for Defendant Willie Terry
RICHARD BERNE, Esq.
305 Madison Avenue
New York, NY 10017
Attorney for Defendant Cindy Cavagrotti
WILLIAM B. JACOBS, Esq.
26 Court Street
Brooklyn, NY 11201
Attorney for Defendant Ricardo Bedoya
OWEN, District Judge
During the course of the hearings on the motion of
Willard Williams and others to suppress the fruits of an
electronic eavesdropping in Williams’s apartment in the
spring of 1981, a subsidiary issue was raised as to
whether there was an authorized, and hence an illegal,
wiretap on the very telephone that was used as part of
the circuitry for the bug. (See this court’s opinion
49a
Appendix C
Opinion and Order of United States District Court
of December 1 denying the motion to suppress the fruits
of that eavesdropping. Familiarity with that opinion is
herein presumed.)
The basis for the defendant’s claim of an illegal
wiretap is that on certain of the bugging tapes, one can
hear both the person making the telephone call and --
albeit much more faintly -- the caller. This, counsel
contends, is evidence that there was an illegal wiretap
bugging the telephone conversation itself.
I disagree with counsel’s contention. The phe-
nomenon of the caller’s faint voice being heard on the
tapes is easily explained by the fact that one of the bugs
was in the base of the telephone itself. It was conceded,
even by defendants’ alleged expert, one Shawky Aziz
(whose testimony in all other material respects I do not
credit), that if the earpiece of the phone is held the
slightest distance from the ear, the words of the caller
would be audible in the room and thus be picked up by
the bug. This is obviously what happened. Indeed, the
government demonstrated this phenomenon to me by
calling my courtroom phone from a phone booth in the
corridor.
Given the foregoing, I find that there was no such
wiretap, let alone an illegal wiretap of the telephone
No. (212) 876-3282. Thus defendant’s allegation of il-
legality is dismissed.
So ordered.
s/s Richard Owen
United States District Judge
Dated: New York, NY
December 3, 1981
50a
Appendix D
Opinion and Order of United States District Court
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
Plaintiff,
against
WILLARD WILLIAMS, et al.,
Defendants.
Memorandum and Order
81 Cr. 398
April 2, 1982
OWEN, District Judge
In support of the Memorandum and Order of Jan-
uary 15, 1982 herein, | make the following Findings of
Fact and Conclusions of Law.
The telephone that had the bug in it, I continue to
find, was at all times jacked in the living room down-
stairs in Willard Williams’ apartment. The torturous
testimony of Willard Williams I utterly reject as false.
The photographs that Williams presented to the Court,
defendants Exhibits A 1-4, do not support this testimony
at all, although it was so suggested prior to the hearing.
The government photographs, Exhibits 21 A and B,
indeed clearly reveal the contrary and are wholly sup-
portive of the Findings of Fact and Conclusions hereto-
fore reached in my Opinion and Order of December 1,
1981.
5la
Appendix D
Opinion and Order of United States District Court
Given the foregoing, the Memorandum of January
15, 1982 is confirmed as the Order of this Court.
s/s Richard Owen
United States District Judge
Dated: April 2, 1982
New York, NY
52a
Appendix E
First Eavesdropping Order and
Excerpts of Government’s Supporting Papers
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
IN THE MATTER OF THE APPLICATION OF THE
UNITED STATES OF AMERICA FOR AN ORDER
AUTHORIZING THE INTERCEPTION OF ORAL
COMMUNICATIONS
Order
AUTHORIZING INTERCEPTION OF
ORAL COMMUNICATIONS
TO: SPECIAL AGENTS OF THE DRUG ENFORCE-
MENT ADMINISTRATION, UNITED STATES
DEPARTMENT OF JUSTICE
Application under oath having been made before me
by Lawrence F. Ruggiero, an Assistant United States
Attorney for the Southern District of New York, and
an “investigative or law enforcement officer” as defined
in Section 2510(7) of Title 18, United States Code, for
an Order authorizing the interception of oral communi-
cations pursuant to Section 2518 of Title 18, United
States Code, and full consideration having been given to
the matters set forth therein, the Court finds:
(a) There is probable cause to believe that WIL-
LARD BERNARD WILLIAMS, a/k/a “Felix,” a/k/a
“Mr. Davis,” a/k/a “Felix Davis,” a/k/a “Trees,”
a/k/a “Black Prince,” a/k/a “Mr. William,” AN-
THONY MICHAEL PORCELLI, a/k/a “Porky,”
ROBERT ANGELO GUIPPONE, a/k/a “Sonny,”
MAHLON JOSEPH STEWARD, a/k/a “Bunny,” and
LOUIS JONES and others as yet unknown, have com-
- mitted and are committing offenses listed in Section
. 2516 of Title 18, United States Code, involving the
importation and distribution of narcotic drug controlled
53a
Appendix E - First Eavesdropping Order and
Excerpts of Government’s Supporting Papers
substances, the possession of such substances with
intent to distribute, the use of wire facilities to aid in
distributing and possessing with intent to distribute
narcotic drug controlled substances, a conspiracy to
import and distribute and to possess with intent to dis-
tribute narcotic drug controlled substances, and engag-
ing in a continuing criminal enterprise of buying, sell-
ing and otherwise dealing in narcotic drug controlled
substances in which five or more persons are partici-
pating and from which substantial income and re-
sources are being obtained in violation of Sections 841,
843(b), 846, 848, 952, 960 and 963 of Title 21, United
States Code; as well as receiving income from a pattern
of racketeering activity, in violation of Title 18, United
States Code, Sections 1962 and 1963.
(b) There is probable cause to believe that particu-
lar oral communications of WILLARD BERNARD
WILLIAMS, a/k/a “Felix,” a/k/a “Mr. Davis,” a/k/a
“Felix Davis,” a/k/a “Trees,” a/k/a “Black Prince,”
a/k/a “Mr. William,” ANTHONY MICHAEL POR-
CELLI, a/k/a “Porky,” ROBERT ANGELO GUIP-
PONE, a/k/a “Sonny,” MAHLON JOSEPH STE-
WARD, a/k/a “Bunny,” and others as yet unknown
concerning these offense will be obtained through the
interception of oral communications, the authoriza-
tion for which is herewith applied for. In particular,
these oral communications will concern, inter alia,
importation and distribution of narcotic drug controlled
substances, the proceeds of such importation and dis-
tribution, the locations at which the narcotics are stored,
the means and manner of delivery of the narcotics, the
identity of the participants in the conspiracy and enter-
prise, and the precise nature and scope of the illegal
activity. In addition, the communications are expected
to constitute admissible e
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