Opposition — Schiavoni v. United States

At

ive

e Supreme Court, us.

FLL ED

No. 82-1961 | SEP 46 1983

: seer a

a

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1983

we)

EUGENE SCHIAVONI, aka JOE FOMAGE, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

REx E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

United States v. Donovan, 429 U.S. 413 ...... so

United States ¥. Kale, 415 U.S. 148 oon ccaccess 3

Statutes: :

Omnibus Crime Control and Safe Streets Act

of 1968, Title Ill, 18 U.S.C. 2510-252) ........ 3

TE US. DOT ID o onc kk eee csccns ee

Ua aie I a 5

RCE Balle Ee eee 3

OO USC, Re no ck eee ies 5

Rg Odie» | URC Re a es |

Te Ue TR oes cin ee ce oes l

(I)

In the Supreme Court of the Hnited States

OCTOBER TERM, 1983

No. 82-1961

EUGENE SCHIAVONI, aka JOE FOMAGE, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that omission of his name in an

application and order for electronic surveillance required

suppression of his statements intercepted during sur-

veillance.

1. Following a jury trial in the United States District

Court for the Eastern District of Pennsylvania, petitioner

was convicted of conducting an illegal gambling business, in

violation of 18 U.S.C. 1955, and conspiring to commit that

offense, in violation of 18 U.S.C. 371. The indictment

charged, and the evidence showed, that petitioner was

involved in the operation of crap ganies in the Eastern

District of Pennsylvania over an extended period in 1978,

and that he conspired with at least six other persons to

conduct the games during that time. The case against peti-

tioner was based in large measure on a number of tape-

recorded conversations intercepted pursuant to court orders

between April and June of 1978. Petitioner was sentenced

(1)

2

to a total term of eight years’ imprisonment and a $5,000

fine (Pet. App. 5a-6a). The court of appeals affirmed (Pet.

App. 3a-4a).

2. In the initial order authorizing electronic surveillance

in this case, petitioner was listed among the persons whose

oral and wire communications could be intercepted. C.A.

App. 55a, 56a.' In addition, petitioner was listed among

those who could properly be subjected to video surveillance

at the location where the oral and wire interceptions were

being conducted. C.A. App. 76a. In the applications for

renewed electronic surveillance, the government submitted

that there was probable cause to believe that petitioner was

involved in the subject offenses, and that there was probable

cause to believe that his wire communications would reveal

evidence of these offenses. C.A. App. 90a. However, the

government did not list petitioner as being among those

whose oral communications were expected to reveal evi-

dence of the offenses in question. Jbid. Accordingly, in the

extension order, the district court authorized the intercep-

tion of petitioner’s wire communications and the use of

video surveillance directed at petitioner (C.A. App. 105a-

106a, 128a), but it did not include him in the oral communi-

cations portion of the order (C.A. App. 105a).2

In the course of the interceptions conducted under the

renewal orde: petitioner was overheard in both wire and

oral commun.cations. However, on each occasion on which

petitioner’s oral communications were overheard, he was

speaking with a person who was named in the oral commun-

ications portion of the order. C.A. App. 160a, 184a-185a.

'“Oral communications” means face to face conversations; “wire

communications” means phone conversations (C.A. App. 164a).

?Several other persons were similarly identified in the wire, but not

the oral, communications sections of the renewal application and order.

3

3. Petitioner does not contend that the interceptions in

which he was overheard violated the surveillance order.

Rather, his contention (Pet. 5) is that the government knew

his oral communications were likely to be intercepted and

that he therefore should have been named in that portion of

the interception application and order. This claim is wholly

insubstantial for two reasons.

a. Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. 2510-2520, requires that a

surveillance application identify an individual if the govern-

ment has probable cause to believe (1) that the individual is

engaged in the criminal activity under investigation and (2)

that the individual’s conversations will be intercepted by the

proposed electronic surveillance (18 U.S.C. 2518(1)(b)(iv)).

United States v. Donovan, 429 U.S. 413, 423-428 (1977);

United States v. Kahn, 415 U.S. 143 (1974). The statute

further requires that under those circumstances, the court’s

interception order must also identify the individual (18

U.S.C. 2518(4)(a)). But if the government does not have

probable cause to believe that the individual’s conversa-

tions will be intercepted by the particular form of electronic

surveillance that is being requested, the government is not

required to name the individual in that part of the applica-

tion. Cf. United States v. Kahn, 415 U.S. 143, 155 (1974).

Likewise, the district court's order authorizing electronic

surveillance need not name any individual if there is not

probable cause to believe that his conversations will be

intercepted by the particular form of surveillance under

consideration.

Petitioner does not contend that the government had

probable cause to believe that his face to face conversations

relating to the subject offenses would be intercepted in the

location for which the oral interception order was requested.

He merely asserts (Pet. 6) that he wasa target of the investi-

gation and that his name was known to the government at

4

the time of the application in question. But that is clearly

not enough to require naming him in the application or the

order, or even to justify doing so; there must be probable

cause to believe that his criminal communications will be

overheard in the course of the particular surveillance at

issue. Petitioner has failed to demonstrate that the govern-

ment had that probable cause, yet nonetheless intentionally

omitted his name from that portion of the surveillance

application.3

The far more reasonable conclusion is that the govern-

ment drafted its application cautiously — that it asserted

that there was probable cause to believe petitioner’s tele-

phone conversations would be intercepted, but not his oral

communications — for the simple reason that the govern-

ment did not think that it had probable cause on the latter

score.‘ If the government had had probable cause to believe

petitioner’s oral as well as wire communications would be

intercepted, it would have had nothing to gain from includ-

ing petitioner’s name in the wire communication portion of

the application, but omitting it from the oral communica-

tion portion. The fact that petitioner’s oral communications

were intercepted — in the course of his conversations with

persons as to whom there was probable cause — is not

sufficient to establish, retroactively, that the government

should have expected to overhear petitioner in face to face

communications at the surveillance site.

The fact that other targets were similarly treated makes it unlikely

that the omission was an oversight.

‘At the suppression hearing, the government attorney indicated that

he did not know why petitioner was not identified in the oral communi-

cation portion of the application (C.A. App. 159a). When he attempt-

ed to obtain that information for the record from the FBI agent who

supervised the surveillance (C.A. App. 163a-164a), petitioner’s counsel

objected (C.A. App. 186a), and the district court indicated that it was

not interested in further testimony on the matter (ibid.; cf. C.A. App.

160a).

5

b. Even if the government did have probable cause to

believe that petitioner’s oral communciations would be

intercepted, the failure to mention his name in the applica-

tion or the order does not justify suppressing the evidence

obtained under the authority of the order. United States v.

Donovan, supra, 429 U.S. at 435-437. Petitioner apparently

seeks (Pet. 6) to distinguish Donovan on the ground that

that case focused on the contents of the interception appli-

cation (18 U.S.C. 2518(1)(b)(iv)) and the inventory (18

U.S.C. 2518(8)(d)), rather than the contents of the intercep-

tion order (18 U.S.C. 2518(4)). This distinction, however, is

totally without force. The Donovan case, like this one,

involved the question of what must appear in both an

application and an order. See 429 U.S. at 435 (“the failure to

identify additional persons who are likely to be overheard

engaging in incriminating conversations could hardly inval-

idate an otherwise lawful judicial authorization”); id. at

436-437 n.24. The Court focused on the application simply

because, as the instant case demonstrates, if the application

does not mention a particular individual, neither will the

order. Therefore, if the failure to name a particular subject

in the application cannot justify suppression, neither can

the failure to name him in the order.°

SNor is there any merit to petitioner's suggestion (Pet. 6) that Title III

provides more stringent identification requirements for surveillance

subjects who are allegedly “principal targets” of the government's inves-

tigation. In the absence of probable cause to believe that an individual's

incriminatory conversations will be intercepted, that individual need

not be named in the surveillance application or authorization regardless

of his status in the investigation. Cf. United States v. Donovan, supra,

429 U.S. at 423-428.

6

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

SEPTEMBER 1983

DOJ-1983-09