# Appendix — Roemer v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0032%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 464 U.S. 935 ## Text g3-29 Fi NO. SoS 9n the Supreme Court of the WMnited States OCTOBER TERM, 1982 CHARLES E. ROEMER, II, Petitioner VERSUS UNITED STATES OF AMERICA, Respondent PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT PETITION FOR WRIT OF CERTIORARI VOL. II—APPENDIX A, B, C, D, E JOHN R. MARTZELL MARTZELL, LAMOTHE & GAY 338 Lafayette Street New Orleans, Louisiana 70130 Tel.: 504/581-9065 Counsel of Record JOHN WILSON REED GLASS & REED 338 Lefayette Street New Orleans, Louisiana 70130 Tel.: 504/581-9065 Attorneys for Petitioner, Charles E. Roemer, II AB Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555 A-l APPENDIX “A” UNITED STATES of America, Plaintiff-Appellee, Vv. Charles E. ROEMER, II and Carlos Marcello, Defendants-Appellants. No. 82-3040 United States Court of Appeals, Fifth Circuit April 11, 1983. Following the denial of defendants’ pretrial motion to dismiss, 508 F.Supp. 586, defendants were convicted before the United States District Court for the Eastern District of Louisiana, Morey L. Sear, J., 537 F.Supp. 1364, of conspiring to violate the Racketeer Influenced and Cor- rupt Organizations Act, and their motion for judgment of acquittal or for new trial was denied, and they appealed. The Court of Appeals held that: (1) affidavit in support of Government's application for electronic surveillance was adequate; (2) Government did not artifically create federal jurisdiction; (3) evidence sustained conviction; (4) jury in- structions correctly and adequately stated the law; and (5) evidence sustained finding that the hand written notes of FBI agent prepared after a meeting with one of the defen- dants did not constitute a ‘‘statement’’ which prosecution was required to disclose to defendant, and because the report which was released to defendant was substantially identical to the notes, any error in failing to disclose the notes would have been harmiess. A-2 Affirmed. Glass & Reed, John W. Reed, John R. Martzell, New Orleans, La., for defendants-appellants. Arthur A. Lemann, III, New Orleans, La., for Carlos Marcello. John P. Volz, U.S. Atty., L. Eades Hogue, Asst. U.S. Atty., Albert J. Winters, Jr., lst Asst. U.S. Atty., John Voorhees, Dept. of Justice, Strike Force, New Orleans, La., for plaintiff-appellee. Before GOLDBERG, GEE and RANDALL, Circuit Judges. PER CURIAM: Appellants Roemer and Marcello were convicted of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1962(d) (1976). On appeal they argue (1) the affidavit in support of the government's initial application for electronic surveillance was inade- quate; (2) the government artificially created federal jurisdiction; (3) the evidence was insufficient to support their convictions; and (4) the jury instructions incorrectly stated the law. Also, we have carried with the case a motion to disclose material pursuant to the Jencks Act, 18 U.S.C. § 3500 (1976). We have carefully examined the briefs, all portions of the record directed to our attention by the parties or the opinions of the court below, and all authorities cited by the parties or the opinions of the court below. We have found A-3 that the verdicts below are supported by the law and evidence and must be affirmed. This case has been thoroughly briefed and well handled by all parties from the earliest stages, and all of the arguments presented to us on the four points of alleged error were also presented to the trial court below. The trial court was conscientious and thorough in its exposition of the law and we affirm the judgments below based upon the portions of the trial court's opinions relating to the four points of appeal. United States v. Marcello, 508 F.Supp. 586, 601-07 (E.D.La. 1981) (affidavit); United States v. Marcello, 537 F.Supp. 1364, 1367, 1369-77 (E.D.La. 1982) (artificial crea- tion of jurisdiction); id. at 1379-80, 1382-84 (sufficiency of evidence); id. at 1384-86 (jury charge). This case carries with it a motion to unseal handwrit- ten notes of an FBI agent prepared after a meeting with Roemer and subsequently incorporated into a standard “302” report. The 302 was produced under the Jencks Act, 18 U.S.C. § 3500 (1976), but the notes were not. The issue before us is whether the notes were a statement by the agent, who testified at trial. To be a statement, the notes must be ‘‘signed or otherwise adopted”’ by the agent. Jd. § 3500(e)(1). The trial court found that the notes were not a In particular, there was sufficient evidence to support the fin- ding of agreement by Roemer to commit mail fraud. ‘‘It was not necessary to prove that [the defendant] actually did the mailing, ‘he need only have had a reasonable basis to foresee that his actions would result in the use of the mails.’ '’ United States v. Martino, 64% F.2d 367, 401 (5th Cir.1981), cert. denied, _ U.S. _, 102 S.Ct. 2006, 72 L.Ed.2d 465 (1982), _ U.S. _, 102 S.Ct. 2007, 72 L.Ed.2d 465 (1982), __ U.S. _.. 102 S.Ct. 2020, 72 LEd.2d 474 (1982) (quoting United States v. Georgalis, 631 F.2d 1199, 1206 (5th Cir. 1980)). As the trial court below stated, the evidence in this case ‘shows not only the expectation that the mail and interstate phone calls would be used to further the scheme, but also the defendants’ assent and approval of the use of those means of effecting the plan.’’ United States v. Marcello, supra, 537 F.Supp. at 1344. A-4 statement, observing that the notes were full of abbrevia- tions and difficult to interpret. The trial court also found that the 302 was almost totally duplicative of the rough notes. One circuit has held that rough notes are not statements. See, e.g, United States v. Griffin, 659 F.2d 932, 937-38 (9th Cir.1981), cert. denied, _ U.S. __, 102 S.Ct. 2019, 72 L.Ed.2d 473 (1982); United States v. Spencer, 618 F.2d 605 (9th Cir. 1980). Other courts have held to the con- trary. See, e.g., United States v. Walden, 465 F.Supp. 255, 259-61 (E.D.Pa.1978), aff'd, 590 F.2d 85 (3rd Cir.) cert. denied, 444 U.S. 849, 100 S.Ct. 99, 62 L.Ed.2d 64 (1979); United States v. Hilbrich, 232 F.Supp. 111 (N.D.I.1964), aff'd, 341 F.2d 555 (7th Cir.), cert. denied, 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704 (1965). This circuit has not adopted any hard or fast rule, but has consistently held that a determination of whether a writing was a statement was a factual determination to be reversed only if clearly erroneous. See, e.g., United States v. Cole, 634 F.2d 866, 867 (5th Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); United States v. Medel, 592 F.2d 1305, 1317 (5th Cir.1979); United States v. Cathey, 591 F.2d 268, 274 (5th Cir.1979). Our circuit has noted that the roughness of the notes may be relevant to a finding that they were not adopted by the author as a statement. See United States v. Surface, 624 F.2d 23, 26 (5th Cir.1980); United States v. Jiminez, 484 F.2d 91, 92 (65th Cir.1973). Given the trial court’s proper reliance on the roughness and abbreviations of the notes, its finding that the notes were not a statement is not clearly erroneous and must be affirmed. In any event, because the released 302 is substantially identical to the retained notes, had there been error it would have been harmless. United States v. A-5 supra, 624 F.2d at 26; United States v. Medel, supra, 592 F.2d at 1316-17; United States v. Jiminez, supra, 484 F.2d at 92. AFFIRMED. A-6 APPENDIX “‘B”’ UNITED STATES of America Vv. Carlos MARCELLO et al. Crim. A. No. 80-274. United States District Court, E.D. Louisiana. Jan. 9, 1981 In prosecution resulting from a Justice Department undercover ‘‘sting”’ operation, defendants filed pretrial mo- tions to dismiss indictment or to suppress evidence alleged- ly illegally obtained. The District Court, Sear, J., held that: (1) transcripts and evidentiary records did not indicate that grand jury process had been affected by alleged Govern- ment-initiated leaks to news media or by any misconduct by Government attorneys, thus evidentiary hearing on mo- tion to dismiss was not necessary; (2) evidence established that informer was mentally capable of freely and voluntari- ly consenting to recording of his conversations with defen- dant and that he did so; (3) since early wiretap orders form- ed basis for findings of probable cause as to later wiretap orders, all defendants had standing to challenge the wiretap orders, even though not all defendants were sub- jects of the early orders; (4) affidavits supporting wiretap in investigation of criminal! activity relating to corrupt in- fluence and bribery in public employee insurance contracts provided magistrates with sufficient evidence to warrant finding of probable cause; (5) records disclosed no inten- tional or reckless misrepresentations or omissions such as would render affidavits insufficient to establish probable A-7 cause: and (6) motion for disclosure of identity of informer would be denied, where defense failed to demonstrate relevance of informer’s identity to case and his defense, since the information which informer provided was itself ir- relevant to the case. Order accordingly. John P. Volz, U.S. Atty., E. D. La., L. Eades Hogue, U. S. Dept. of Justice, Albert Winters, Richard T. Sim- mons. Asst. U. S. Attys., John Voorhees, U. S. Dept. of Justice, New Orleans, La., for United States. Russell J. Schonekas, New Orleans, La., Henry Gon- zalez, Tampa, Fla., for Marcello. Thomas R. Dyson, Jr., Washington, D. C., Frank DeSalvo. New Orleans, La., for Davidson. Michael S. Fawer and Matthew H. Greenbaum, New Orleans, La., for Roemer. Arthur A. Lemman, III, New Orleans, La., for Marinello. Risley Triche, Napoleonville, La., for Young. SEAR, District Judge. I. Introduction Defendants in a government prosecution resulting from the Justice Department's undercover “sting” opera- tion code-named ““BRILAB” have brought various pretrial A:8 motions to dismiss the indictment against them or, failing that, to suppress certain evidence which they contend was illegally obtained. The defendants first move to dismiss the indictment because of what they characterize as govern- mental overreaching and jurisdiction artificially created by the government. They also contend in these motions that prejudicial publicity resulting from leaks to the news media of grand jury proceedings is so pervasive that they are en- titled to dismissal of the indictment. In addition, defendant Carlos Marcello seeks dismissal on the ground that he is a victim of arbitrary and discriminatory selective prosecu- tion. In the second group of motions, defendants seek sup- pression of their recorded communications obtained by the government with the consent of an informer, Joseph Hauser, or pursuant to wiretap orders issued by United States District Judges in the District of Columbia and the Eastern District of Louisiana. In addition to the motions to suppress, the second group of motions includes one brought by Marcello for disclosure of the name of the in- dividual who provided the government with confidential notebooks and telephone logs allegedly stolen from him in a 1977 burglary. Arguments on the motions to dismiss and other preliminary motions! were heard on October 6 and 7, 1980. : Prior to the hearing conducted the week of October 6, 1980, and again before the hearings held the week of December 8, 1980, the defen- dants moved to adopt the substantive motions and the motions to sup- press of their co-defendants, and I granted the motions to adopt. In ad- dition to the motions discussed in the text of this minute entry, the defendants brought various motions in October to dismiss the indict- ment and to strike portions of the indictment. I denied these motions orally from the bench. Motions for review of the discovery orders issued by United States Magistrate Ingard O. Johannesen were also argued and decided at the October hearings. See Minute Entry filed November 4, 1980. In addition, defendants Charles Roemer, I. Irving Davidson, Vincent Marinello and Aubrey Young argued that their prosecutions A-9 At that time rulings on some of these motions were defer- red until the trial or following any post-trial hearings that might be necessary. During the week of December 9, 1980, extensive evidentiary hearings were held on the motions to suppress and defendant Marcello’s motion for disclosure. Because of the number of motions, the uniqueness of some, and the necessity of maintaining an orderly record, there is a need to explain my rulings on the motions to suppress and the motion for disclosure, as well as to elaborate on my prior rulings on the motions to dismiss. Il. Background of the Case On June 17, 1980, defendants Carlos Marcello, I. Irv- ing Davidson, Vincent Marinello, and Charles Roemer were indicted by a federal grand jury in the Eastern District of Louisiana. A fifth defendant, Aubrey Young, was added as a defendant in a superseding indictment issued by the grand jury on August 14, 1980. In the lengthy, twelve- count indictment, the defendants are charged with various violations of federal law allegedly uncovered in a Justice Department undercover operation commonly known as BRILAB. The investigation, whose acronym stands for ‘‘bribery-labor,”” centered upon suspected illegal activities involving public officials, labor unions and reputed organiz- ed crime figures in the Southwest. The BRILAB operation in Louisiana lasted about one year from February 1979 to February 1980, a period during which the 1979 Louisiana gubernatorial campaign and election were held. As part of the investigation, two FBI agents posed as representatives of a fictitious Beverly Hills, California firm called Fidelity Financial Consultants. The agents were aided by Joseph (Footnote 1 continued) should be severed from the trial of defendant Carlos Marcello. | denied the motions to sever orally from the bench. A-10 Hauser, a cooperating individual who had pleaded guilty on February 5, 1979 to federal charges arising out of his in- volvement in an insurance swindling scheme. In this prosecution defendants are charged with in- volvement in a criminal enterprise for the purpose of ob- taining insurance contracts from state and local govern- ments, labor unions, and at least one private business by committing various criminal acts. In general the defen- dants are charged with (1) a conspiracy to obtain insurance contracts by committing criminal acts in violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962(c); (2) a substantive violation of RICO, 18 U.S.C. § 1961(4), in that the defendants were allegedly ‘‘associated in fact’’ as an ‘‘enterprise’’ to obtain insurance contracts by committing criminal acts; (3) viola- tions of the federal mail fraud statute, 18 U.S.C. § 1341; (4) violations of the federal wire fraud statute, 18 U.S.C. § 1343; and (5) interstate travel or transportation in aid of racketeering in violation of 18 U.S.C. § 1952. III. Motions to Dismiss Among the motions argued by the defendants on Oc- tober 6 and 7, 1980 were four whose determination they contend requires extensive evidentiary hearings. First, the defendants seek to dismiss the indictment on grounds of “governmental overreaching’ and prosecutorial miscon- duct. They contend that the acts charged in the indictment were all part of a scheme initiated, controlled, planned and executed by the government itself in violation of their con- stitutional rights to due process of law. Second, the defen- dants submit that the indictment should be dismissed because federal criminal jurisdiction was artificially created by the government, which they argue concocted, A-11 created and supplied the interstate commerce aspects necessary to allege a federal offense. Third, defendant Marcello seeks to dismiss the indictment as to him on grounds that the government engaged in discriminatory selective prosecution. Marcello contends that for years government prrosecutors have arbitrarily labeled him as chief of a Louisiana organized crime syndicate and boss of the ‘‘Mafia’’ or ‘‘La Cosa Nostra.’’ Marcello argues that this false label prompted the government to create the scheme charged in the indictment for the express purpose of fraudulently inducing Marcello in particular into the scheme in violation of his Fifth and Fourteenth Amend- ment rights to due process and equal protection of the law. Finally, defendants seek dismissal of the indictment on grounds that they were severely prejudiced by government-initiated leaks to the press. They contend that these leaks enabled newsmen to write and broadcast reports about the pending BRILAB grand jury investiga- tion creating unfair and prejudicial pre-indictment and pre- trial publicity which rendered further proceedings fun- damentally unfair. Alternatively, the defendants ask that the government officials responsible for the news leaks be held in contempt pursuant to Fed.R.Crim.Pro. 6/e). Each of these motions contemplates a broad eviden- tiary hearing at which the defendants would examine government officials, witnesses and documents in hopes of establishing prosecutorial misconduct so egregious that the resulting indictment must be dismissed as a violation of defendants’ constitutional rights. In anticipation of the contemplated evidentiary hearings, the defendants sub- poenaed the Attorney General of the United States, one of his chief deputies, the director of the FBI and one of his assistants, United States attorneys, FBI agents, and the government's chief witness and informer. Joseph Hauser. A-12 In addition, they subpoenaed members of the press whose news stories appeared prior to and during the grand jury investigation and which defendants contend prejudiced them. A) Governmental Overreaching and Artifically Created Jurisdiction The motions alleging governmental overreaching and artificially created jurisdiction share a common legal basis and require substantially similar proof. For each of these motions, defendants seek an evidentiary hearing to elicit the testimony of government officials and informers who were involved in the BRILAB investigation or its supervision. The threshold issue in the resolution of these motions is whether claims of governmental misconduct and artificially created jurisdiction present cognizable defenses to a criminal prosecution. I find that each does. Ordinarily, a criminal defendant's allegation of governmental overreaching or prosecutorial misconduct arises in the defense of entrapment. When a defendant pleads the defense of entrapment, he has the burden of showing that law enforcement officials induced him to com- mit a crime that he was not predisposed to commit and that the government implanted the criminal design in his mind. United States v. Russell, 411 U.S. 423, 433, 436, 93 S.Ct. 1637, 1643, 1645, 36 L.Ed.2d 366 (1973); United States v. Anderton, 629 F.2d 1044, 1047 (5th Cir. 1980); United States v. Wolffs, 594 F.2d 77, 79-80 (5th Cir. 1979). A claim of governmental overreaching, however, is a distinct and different defense in which the defendants contend that the government's involvement in the BRILAB scheme was so pervasive and outrageous that due process principles or the court's power of supervision over the criminal justice A-13 system require that the indictment be dismissed. The Supreme Court on two occasions has declined to reverse a criminal conviction on grounds of governmental overreaching. There is language, however, in United States v. Russell, supra, and in the concurring and dissenting opi- nions in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), suggesting that the Court might be willing to accept the defense of governmental misconduct in an appropriate case. In Russell, the Court upheld the conviction for illegal manufacture of drugs even though an undercover agent had supplied him with an essential ingredient. The Court stated, however: While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process prin- ciples would absolutely bar the government from invoking judicial processes to obtain a convic- tion,...the instant case is distinctly not of that breed.... The law enforcement conduct here stops far short of violating that ‘‘fundamental fairness, shocking to the universal sense of justice,’’ man- dated by the due process clause of the Fifth Amendment. 411 U.S. at 431-32, 93 S.Ct. at 1643. In Hampton, the Court upheld a conviction for heroin distribution, and Justice Rehnquist, writing for a three-justice plurality of the Court, completely rejected the governmental miscon- duct defense. 425 U.S. at 489-90, 96 S.Ct. at 1650. The con- curring and dissenting opinions noted, however, that police overinvolvement in a crime could bar prosecution on due process grounds where the misconduct reached a “demonstrable level of outrageousness."’ /d. at 495 n.7, 96 S.Ct. at 1653 n.7. A-14 Several courts of appeals have recognized that in some circumstances convictions obtained through egregious misconduct by government agents involved in the creation and maintenance of criminal activities would be vacated. See United States v. Twigg, 588 F.2d 373, 381 (3d Cir. 1978); United States v. Archer, 486 F.2d 670, 676-77 (2d Cir. 1973); Greene v. United States, 454 F.2d 783, 787 (9th Cir. 1971). The Fifth Circuit has agreed that in certain situations, a defense of governmental miscon- duct, separate and distinct from the defense of entrapment, may bar a criminal prosecution on due process grounds. In United States v. Graves, 556 F.2d 1319, 1324 (5th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978), the court ruled that ‘‘[t]here is still available in appropriate cases a governmental misconduct defense grounded on the dual principles of due process and the supervisory powers of the court, but such a defense does not fall within the narrow confines of ‘entrapment’ as that term has been explicated in Russell and Hampton.” Therefore, without deciding the merits of defendants’ mo- tion at this time, I conclude that the motion to dismiss the indictment on grounds of governmental overreaching presents a cognizable and legitimate defense. Similarly, defendants’ motion to dismiss on grounds of artificially created jurisdiction also presents a cognizable legal defense. The RICO statute itself makes clear that an effect on interstate commerce is an essential element of the federal offenses charged in the indictment. See 18 U.S.C. § 1962(a), (b), and (c). The motion to dismiss on grounds of artificially created jurisdiction is factually related to defendants’ governmental overreaching argu- ment in that they contend that government overinvolve- ment in the scheme resulted in the creation and maintenance of the interstate commerce elements of the A-15 offense charged in the indictment. In United States v. Archer, supra, federal and local law enforcement officers created an undercover operation to investigate suspected corruption and public bribery in the New York City criminal justice system. Two assistant district attorneys were eventually convicted of violations of the Federal Travel Act, 18 U.S.C. § 1952, but the Second Circuit reversed the convictions. In its original opinion, the court held that when Congress responded to the Attorney General's request to lend the aid of federal law en- forcement to local officials in the prosecution of certain crimes, primarily of local concern, where the participants were engaging in interstate ac- tivity, it did not mean to include cases where the federal officers themselves supplied the interstate element and acted to ensure that an interstate ele- ment would be present. Manufactured federal jurisdiction is even more offensive in criminal than in civil proceedings.... {MJanufactured jurisdiction “‘is a reflection of the federal judicial system which brings it into disrepute.”’ 486 F.2d at 682 [citations omitted]. On rehearing, the Se- cond Circuit tempered somewhat the breadth of its language, pointing out that its decision “in fact went no further than to hold that when the federal element in a pro- secution under the Travel Act is furnished solely by under- cover agents, a stricter standard is applicable than when the interstate or foreign activities are those of the defen- dants themselves and that this was not met here.” Jd. at 685-86. The Fifth Circuit was faced with a similar motion to A-16 dismiss a Travel Act indictment on grounds of artificially manufactured jurisdiction in United States v. Perrin, 580 F.2d 730 (Sth Cir. 1978), aff'd, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). In Perrin, the court rejected the defense under the particular facts of that case, but it recognized the validity of the defense in a proper case when it stated that the ‘defendants’ argument that the govern- ment improperly obtained jurisdiction is for the court to determine as a matter of law....’ Jd. at 737. Therefore, again without passing on the merits of the motion, I con- clude that the defendants’ motion to dismiss on grounds of artificially created jurisdiction also presents a cognizable claim. The two defense motions discussed above are not patently frivolous; their determination will require an evidentiary basis of some sort. Each motion looks to a determination of whether the government acted unlawful- ly, and each places in controversy the facts surrounding the government's conduct in this case. Without evidence, I cannot make the findings of fact, or draw the legal conclu- sions necessary to decide defendants’ motions. Therefore, having determined that these motions raise legitimate defenses in law to criminal prosecutions, I also conclude that an evidentiary hearing must be conducted. The re- maining question is when such a hearing should be conducted. Fed.R.Crim.Pro. 12(b) provides that ‘‘[aJny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” The rule then enumerates five kinds of motions which must be raised prior to trial. Included are defenses and objections ‘‘based on defects in the institution of the prosecution” and ‘‘defenses and objections based A-17 on defects in the indictment or informationn.”’ In United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), the Supreme Court interpreted substantially similar language in the forerunner of the present Rules 12(b). In Covington, the Court stated that a defense is capable of determination without trial of the general issue “if trial of the facts surrounding commission of the alleged offense would be of no assistance in determining the validi- ty of the defense.’ Jd. at 60, 89 S.Ct. at 1561. The Court noted that the rule permits factual hearings prior to trial “if necessary to resolve issues of fact peculiar to the mo- tion.” Id. Under Fed.R.Crim.Pro. 12(e), however, I have the discretion to defer for good cause the determination of such motions until the trial or after the verdict. The rule provides: A motion made before trial shall be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after verdict, but no such determination shall be deferred if a par- ty’s right to appeal is adversely affected. Where factual issues are involved in determining a mo- tion, the court shall state its essential findings on the record. The legislative history of Rule 12(e) indicates that the Supreme Court initially proposed that the rule allow a court ‘‘to defer ruling on a pretrial motion until the trial of the general issue or until after the verdict’’ without men- tion of ‘‘good cause.’’ H.R.Rep.No.94-247, 94th Cong., lst Sess., reprinted in [1975] U.S.Code Cong. & Ad. News 674, 679-680. In reviewing the Supreme Court's proposals, however, the Committee on the Judiciary of the House of A-18 Representatives modified the Supreme Court's proposal to permit a court to defer its ruling on pretrial motions only for good cause. The Committee's chief concern was that a court not be allowed to defer its ruling if to do so would adversely affect a party’s right to appeal, especially the government's right to appeal pursuant to 18 U.S.C. § 3731. The House Judiciary Committee intended its amendment to ‘discourage the tendency to reserve rulings on pretrial motions until after verdict in the hope that the jury’s ver- dict will make a ruling unnecessary.” H.R.Rep.No.94-247, 94th Cong., lst Sess., reprinted in (1975] U.S. Code Cong. & Ad.News 674, 6480. The question here is whether there is ‘‘good cause” within the meaning of Rule 12(e) to defer conducting an evidentiary hearing and ruling on defendants’ motions un- til trial of the case or after the verdict is rendered. Although there is very little case law addressing the issue of whether evidentiary hearings on motions like these must be conducted prior to trial and whether the motions must be decided pretrial, I find some guidance for my deci- sion in two recent cases. In United States v. Criden et al., Crim. No. 80-166 (E.D.Pa., Aug. 18, 1980) (Fullam, J.), the court was faced with a similar motion to dismiss the indict- ment on grounds of governmental misconduct in one of the Justice Department's ABSCAM prosecutions.” Judge Fullam conducted several days of evidentiary hearings on various motions brought by the defendants; nevertheless, he concluded that resolution of the governmental mis- 2 ABSCAM is a code name for an undercover operation carried out by the Justice Department at about the same time as the BRILAB investigation. In ABSCAM, FBI agents set up an operation called Abdul Enterprises, Inc., and posed as representatives of Middle Eastern businessmen who sought assistance from public officials for business enterprises. A-19 conduct issue had to be deferred until trial when a full and complete record would be available. In United States v. Barletta, 500 F.Supp. 739 (D. Mass., 1980) (Tauro, J.), the government brought a motion prior to retrial of a multi- count indictment to admit evidence consisting of tape recordings of telephone conversations between the defen- dant and a government informer. The court decided to defer conducting an evidentiary hearing or ruling on the motion until trial. While the motion at issue in Barletta dif- fers from those before me, I find that the interests suppor- ting deferral in Barletta are applicable here. In Barletta, Judge Tauro said: It makes sense that pretrial proceedings be designed to avoid, whenever possible, the time consuming chore of hearing the same evidence twice, first before and then during trial... * * * * * * Rule 12 was designed to avoid the wasteful duplication of effort inherent in the government's theory that would mandate pretrial determina- tions of motions to admit without regard to any good cause there may be to defer.... Our courts are overburdened. Judges, therefore, have an obliga- tion to expend judicial resources prudently. This includes ensuring that valuable court time is not wasted. A determination to defer in order to avoid such waste is manifestly one made for good cause.... x = a = * = A precedent mandating that a district judge hear the same evidence twice would be an impru- dent imposition on the limited resources of the judicial system. Id., at 742, 744, 747. \ A-20 In this case, defendants seek an ‘‘unfettered”’ inquiry into the conduct of government officials. See defendants’ joint supplemental memo of Oct. 9, 1980. The allegations of government misconduct before me at this time are vague, and to permit an unstructured inquiry without limitation at this stage of the proceeding would require hearings which could last as long as the trial itself, with the defen- dants hoping to uncover some wrongdoing by government agents or officials. The facts that describe the govern- ment’s undercover operation, the offenses attributed to the defendants in the indictment, and the alleged acts of misconduct imputed to government officials by the defen- dants are intertwined. In my judgment, they cannot be suc- cessfully disentangled. Most of the facts that the defen- dants want to prove at a hearing will be elicited during the complex and lengthy trial anticipated by both sides. This point is best illustrated by the close relationship between the defendants’ claims of governmental overreaching and the classic defense of entrapment. See generally United States v. Graves, supra, 556 F.2d at 1321-24. Although the court in Graves pointed out that the defense of governmen- tal misconduct ‘‘grounded on the dual principles of due pro- cess and the supervisory powers of the court’’ is separate and distinct from the defense of entrapment, id. at 1324, the facts supporting the overreaching defense appear to be included within the entrapment defense. Although in Graves the Fifth Circuit left no doubt that it was not error to consider the governmental misconduct defense pretrial, id. at 1322-23, the court did not require that the motion be disposed of pretrial or that evidentiary hearings concerning the motion be conducted pretrial. I am sensitive to the concerns expressed by counsel for defendant Marcello at oral argument that insofar as defendants’ motions would dispose of the case and spare A-21 defendants the long ordeal and expense of trial if they are granted, the evidentiary hearing should be conducted and a ruling made on the motions now. These are important concerns which I do not brush aside lightly. I find, however, that in the context of this factually complex case, the best course to protect both the defendants constitu- tional rights and society's interest in the just and efficient administration of criminal justice is to defer resolution of the motions until trial of the case. At the time of the trial, I can assess the full panoply of facts, including the conduct of the FBI undercover agents and government attorneys who conducted the investigation and the nature of the in- terstate commerce elements of the offenses charged in the indictment. The trial will also provide an opportunity for counsel to define more precisely the areas of inquiry that support their contentions, which at this time are rather vague. Moreover, resolution of the issues presented by defendants’ motions may require that defendants themselves testify regarding the impact of the alleged over- reaching or the existence of relationships required in the in- terstate commerce element of the offense. If I find that fur- ther hearings appear necessary or appropriate as a result of the trial, they will be ordered immediately. The interests of the defendants and of society are best served if these serious motions are determined on the basis of a full eviden- tiary record and a complete understanding of the facts of this complex case. Therefore, I conclude that the eviden- tiary hearing and resolution of these motions must be deferred until trial. In addition, counsel for defendant Marinello contend- ed during oral argument of his separate motion to dismiss that the RICO offenses charged in Counts | and II of the indictment failed to state an effect on interstate commerce as required by the RICO statute because Fidelity Financial A-22 Consultants, the California firm set up by the Justice Department as part of the investigation, was a purely fic- titious operation through which insurance contracts could never have been written. I requested that counsel for the government and defendant Marinello submit supplemental memoranda on the issue. As counsel for Marinello notes in footnote 1 of his supplemental memorandum, this argu- ment is in fact closely related to defendants’ joint motion to dismiss on grounds of artificially-created jurisdiction. Since I have deferred until trial my ruling on the motion to dismiss on grounds of artificially-created jurisdiction, I will also reserve judgment on this argument until that time. In all other respects, the motion to dismiss brought in- dividually by defendant Marinello is denied. B) Selective Prosecution Defendant Marcello’s motion to dismiss the indict- ment on grounds of discriminatory and arbitrary selective prosecution stands in 4 slightly different procedural posture from the two motions discussed above. Like those motions, the motion to dismiss for selective prosecution raises a cognizable defense to a criminal prosecution. The Fifth Circuit has ruled, however, that a defendant bears a heavy burden of establishing, at least prima facie, that (1) he has been singled out for prosecution while others similarly situated have not generally been proceeded against for similar conduct, and (2) the government's discriminatory selection of him for prosecution has been in- vidious or in bath faith, i.e, based upon such impermissible con® derations as race, religion, or the desire to prevent his exercise of constitutional rights. See United States v. Johnson, 577 F.2d 1304, 1308 (5th Cir. 1978); United states v. Kahl. 583 F.2d 1351, 1353 (5th Cir. 1978). There has been some disagreement among the circuits, however, over the A:23 second prong of the test stated above. Some decisions have indicated that relief may be available when intentional or purposeful discrimination is practiced against an in- dividual, even though the discrimination is not class-based. See United States v. Torquato, 602 F.2d 564, 569 n.9 (3d Cir. 1979), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307 (1980); United States v. Falk, 479 F.2d 616, 619 (7th Cir. 1973). Criminal prosecutions are generally presumed to have been undertaken in good faith and nondiscriminatori- ly, United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978); United States v. Falk, supra, 479 F.2d at 620, and the burden of proving discriminatory selective prosecution is on the defendant. Several courts have held that in order to minimize intruding on the largely discretionary pro- secutorial function while still enabling defendants effec- tively to raise claims of selective prosecution, the defen- dant is obligated to make a threshold showing of discriminatory prosecution before an evidentiary hearing will be conducted on this defense. Jn re Grand Jury, 619 F.2d 1022, 1030 (3d Cir. 1980); United States v. Torquato, supra, 602 F.2d at 569-70, and cases cited therein. Before a hearing will be conducted, some credible evidence must be adduced showing that the government intentionally and purposefully discriminated against the defendant. Jd. at 570. In Torquato, for example, the Third Circuit denied defendant's request for a post-trial evidentiary hearing on the question of selective prosecution, finding that even after a full trial on the merits, defendant had failed to show a sufficient factual basis to require that an evidentiary hearing be held. Jd. at 572. In this case, defendant Marcello has not preliminari- ly adduced any credible evidence of his discriminatory A-24 selective prosecution by the government. Defendant’s mo- tion papers contain speculation that the prosecution is in some way tied to government ‘‘frustration”’ over its inabili- ty to prevail in a deportation proceeding presently pending against Marcello. The motion also asserts without any ap- parent evidentiary backing that the government has ar- bitrarily and falsely labeled Marcello as an Organized Crime chieftain. Defendant comes closest to adducing some credible evidence of selective prosecution when he argues that some of the consensually obtained tape recordings made by the government with the assistance of its chief in- former, Joseph Hauser, show that Marcello was unlawfully selected and pursued by the government as the target of its investigation. Defendant has pointed to no specific conver- sations on these tapes, however, that would tend to provide the prima facie showing he must make to be entitled to a full evidentiary hearing on this issue. Shortly after I made my oral ruling deferring an evidentiary hearing and resolution of defendants’ over- reaching and artificially created jurisdiction motions until trial, counsel for defendant Marcello requested that I also defer ruling on his motion to dismiss on grounds of selec- tive prosecution, and I have agreed to defer it. It may be that some evidence will be adduced at the trial that will be useful in deciding this motion or that will require that I conduct further evidentiary hearings after the trial. C) Prejudicial Publicity Defendants’ motion to dismiss the indictment, or alternatively for sanctions, on grounds that they were pre- judiced by government-initiated leaks to the news media also requires that I determine whether extensive pretrial evidentiary hearings must be conducted. Defendants first A-25 contend that pre-indictment publicity engendered by leaks to the press by government sources so tainted the grand jury process that their Fifth Amendment rights to fun- damental fairness and due process of law have been ir- reparably impaired. The alternative of defendants’ motion seeks sanctions because government officials who leaked information to the news media violated Fed.R.Crim.Pro. 6(e), internal guidelines of the United States Justice Department, and Rules 13.1 and 13.2,3 Local Rules of the United States District Court for the Eastern District of Louisiana. Defendants’ request for an evidentiary hearing on this part of their motion is clearly governed by the Fifth Circuit's decision in Jn re Grand Jury Investigation, T. Ber- tram Lance v. United States Department of Justice (the Lance case), 610 F.2d 202 (5th Cir. 1980). In a thorough and well-reasoned opinion, Lance provides guidelines to the general question of when to hold an evidentiary hearing on alleged violations of the traditional policy of grand jury secrecy. After reviewing the existing evidentiary record 2 Local Rule 13.1 provides: It is the duty of the lawyer for each of the parties not to release or authorize the release of information or opinion in connection with pending or imminent criminal litigation with which he is associated, for dissemination by any means of public communication, if there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice. Local Rule 13.2 provides: When there is a grand jury or other pending investigation of any criminal matter, a lawyer participating in the investiga- tion shall refrain from making any extrajudicial statements for dissemination by any means of public communication that goes beyond the public record or that is not necessary to inform the public that the investigation is under way, to describe the general scope of the investigation, to obtain assistance in the apprehension of a suspect, or to warn the public of any dangers, or otherwise to aid the investigation. A-26 and analyzing the factors outlined in the Lance case, I con- clude that no further evidentiary hearing is required and that insofar as defendants’ motion seeks dismissal of the indictment, the motion is denied. I note initially that the evidentiary record that already exists provides evidence determinative of this mo- tion. The defendants initially submitted as exhibits attach- ed to their motions fifteen newspaper articles and one transcript of a television newscast, all of which were releas- ed between February and June 1980 when the media fre- quently reported on the pending BRILAB investigation. The defendants later supplemented these with several other newspaper articles from publications across the coun- try. In addition, I have received and reviewed affidavits submitted by seven government attorneys denying that they disclosed matters concerning the investigation to any unauthorized persons and also denying any knowledge that any other participants in the investigation disclosed secret matters. At my request, I was also provided with a copy of the so-called Blumenthal Report, an extensive document prepared by the Justice Department which reviews in detail its confidential and internal investigation aimed at discovering the sources of leaks to the news media that ocurred during the government’s principle ‘‘sting’’ opera- tions, including BRILAB. Finally, at defendants’ request, I have reviewed transcripts of the proceedings of the grand jury that returned the indictment in this case. In addition to this evidence, defendants had subpoenaed at the time of the hearings on this motion several members of the press whose news stories appeared during the investigation and a number of Justice Department attorneys and officials, presumably to elicit their testimony about the source of news leaks. Based on the arguments of counsel and the evi- dence already at my disposal, I decided those subpoenaed A-27 need not testify at this time. While Lance involved facts different in several respects from those here, its teachings are applicable. Lance requires that in determining whether the moving party has established a prima facie case of prejudicial and unlawful leaks of secret grand jury information sufficient to require a broad evidentiary hearing, a court must con- sider five factors. First, there must be a clear indication that the media reports disclose information about matters occurring before the grand jury. 610 F.2d at 216. In this case some of the articles about which defendants complain rely for their sources on defendants themselves, see e.g., defendants’ exhibit F or on court documents and records. See, e.g., defendants’ exhibit A, paragraph 1; defendants’ exhibit N. Some do appear, however, to disclose informa- tion about matters occurring before the grand jury. See, e.g., defendants’ exhibits L, M, O, P. Second, the articles must “‘indicate the source of the information revealed to be one of those proscribed by Rule 6(e)."’ Id. at 217. Those sources include grand jurors, court reporters, typists, government attorneys, and other gov- ernment officials to whom disclosure may be made under the rule. Scattered throughout the articles submitted by the defendants are references to ‘‘sources close to the in- vestigation,’ ‘‘Federal sources,’ ‘‘Justice Department sources’’ and simply ‘‘sources.’’ No reference is made in any of the articles to a particular person or persons, and in some of the articles, high-ranking officials in the Office of the United States Attorney and the FBI are reported to have specifically refused to comment or give out details on the investigation. See, e.g, defendants’ exhibit D. However, in determining whether these vague origins A-28 actually implicate sources prohibited by Rule 6/e), it is necessary to consider the nature of the material disclosed. Id. at 217-18. In some instances, it is reasonable to infer from the nature of the disclosure made that the ‘‘sources’’ referred to in the article are included within those enumerated in Rule 6/e). Third, ‘in assessing the what and who of disclosure at the prima facie case stage, the court must assume that all statements in the news report are correct.’ Jd. at 219. I have done so in this case. Fourth, the nature of the relief requested and the ex- tent to which it interferes with the grand jury process must be considered. A defendant seeking dismissal of an indict- ment ‘‘bears a heavy burden in attempting to justify such relief.’’ Jd. On the other hand, a prima facie case requiring a hearing on whether to impose sanctions does not require as strong a showing. In this case, defendants seek both forms of relief—dismissal and contempt sanctions. Fifth, the court must weigh any evidence presented by the government to rebut the assumed truthfulness of reports which otherwise make a prima facie case of miscon- duct. Jd. at 219. In Lance, government attorneys provided no evidence denying misconduct and the court found that the articles presented by Lance in support of his motion made a sufficient prima facie case to warrant an eviden- tiary hearing ‘‘in the absence of any affidavit by the Justice Department attorneys denying that they, their associates, or their superiors divulged the information appearing in the newspaper articles.’’ Jd. at 220-21 (emphasis added). The absence of affidavits appeared to be a key factor in the court’s decision to remand the Lance case to the district court for a factual analysis of ‘‘whether the showing made A-29 by Lance would still warrant an evidentiary hearing even if a responsive affidavit should be filed by government counsel.’’ Jd. at 221. I note in this case that while I have received affidavits from seven government attorneys who conducted the grand jury investigation locally, I have received nothing from the FBI agents or other government officials who may have been privy to the grand jury proceedings. Insofar as defendants’ motion seeks dismissal of the indict- ment, the fourth and fifth factors of the Lance test weigh heavily against conducting any further evidentiary hear- ing. As Lance points out, a ‘criminal defendant who seeks to obtain dismissal of an indictment...bears a heavy burden in attempting to justify such relief.’’ Jd. at 219. This heavy burden requires a showing of prejudice to the defendants or abuse of the grand jury process by the government. See United States v. Thomas, 593 F.2d 615, 623 (5th Cir. 1979); United States v. Malatesta, 583 F.2d 748, 753-54 (5th Cir. 1978), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (1979). Defendants have failed to bear that heavy burden in this case. I have examined carefully the tran- scripts of the grand jury proceedings, and I have found nothing to indicate that the grand jury process which led to these indictments was in any way affected by publicity or by any misconduct by government attorneys. Instead, the indictment appears to have been the result solely of the evidence that was presented to the grand jury. My review of these transcripts and the existing evidentiary record convinces me that an evidentiary hearing on the motion to dismiss is unnecessary and that no abuse of the grand jury process resulting in prejudice to the defendants occurred. Therefore, the motion to dismiss the indictment on these grounds is denied. A-30 Defendants’ motion for sanctions, however, presents a slightly different situation. The Lance case notes that a defendant’s burden in showing a prima facie case sufficient to require an evidentiary hearing on a motion for sanctions does not require as strong a showing as the motion to dismiss. The defendants have submitted newspaper ar- ticles and a broadcast transcript, portions of which appear to satisfy the first three elements of the Lance standard for conducting an evidentiary hearing. On the other hand, the government has submitted affidavits rebutting the assum- ed truthfulness of the news reports. Moreover, I have reviewed the Blumenthal Report, and found it inconclusive at best since it buttresses the government's affidavits in some respects and the defendants’ claims in others. In Lance the Fifth Circuit remanded the case to the district court for factual analysis of whether the preliminary show- ing would warrant an evidentiary hearing if the govern- ment filed responsive affidavits. In this case, the govern- ment has filed affidavits which are only partially respon- sive. Rule 6(e) imposes an obligation of secrecy not only on government attorneys, but also on FBI officials and others who participate in the grand jury proceedings. I have defer- red my ruling on defendants’ motion for sanctions. The government may supplement its proffer, if it can, by filing, no later than February 2, 1981, affidavits of FBI agents or other officials who participated in the grand jury pro- ceeding. At that time I will again review the materials sub- mitted by defendants, the affidavits, and the Blumenthal Report to determine what further action, if any, by way of evidentiary hearing or court-ordered investigation is appropriate. IV. Motions to Suppress the Consensually Recorded Tapes Central to the government's case are the electron- A-31 ically recorded conversations between informer Joseph Hauser and some of the defendants. The defendants argue that the tapes were unlawfully obtained because Hauser’s consent was not given freely and voluntarily, knowingly and understandingly, and they are therefore inadmissible. In an effort to compel an evidentiary hearing on the issue of Hauser’s consent, the defendants submitted with their motions evidence which they contended constituted a suffi- cient preliminary showing of Hauser’s incapacity to con- sent. Included in their proffer was a transcript of Hauser’s February 5, 1979 guilty plea before the Honorable William C. Frey, United States District Judge for the District of Arizona, United States v. Hauser, No. CR-78-313 (D.Ariz., Feb. 5, 1979), to RICO charges arising from a scheme to swindle health, welfare and pension funds from labor unions. Defendants contend the facts surrounding the guil- ty plea are relevant because it was entered contem- poraneously with Hauser’s decision to cooperate with the government by taping his conversations. They argued that Hauser made several statements that indicate he could not have knowingly and voluntarily consented to the recordings.4 4 For example, the defendants point out that Hauser told Judge Frey that as an adolescent in Poland during World War II he was struck on the head with a bar when he tried to escape from an internment camp (defendant Marinello, exhibit 2, plea transcript p. 5). Hauser also said that he had been ‘‘under a tremendous pressure” for the last five years and that at the time he changed his plea he was taking twenty pills a day, including Dilantin, Valium, Mellaril and Benzedrine (transcript p. 8). Hauser also said that his doctor told him that at times his medication took away his ability to reason and understand, and that at his physi- cian's suggestion he had seen a psychiatrist for treatment of depression. (Transcript pp. 10-13). It should be noted, however, that despite these problems Hauser assured Judge Frey that he fully understood the pro- ceeding and the charges to which he pleaded guilty, and Judge Frey ac- cepted the plea. A-32 In support of their claim of incompetence, the defen- dants also submitted the affidavit of Dr. Kenneth Ritter, a psychiatrist who reviewed a portion of Hauser’s guilty plea and concluded that some of the drugs Hauser was taking “have the capacity to alter levels of consciousness, awareness, alertness, and mood’ and are normally prescribed to treat serious mental or brain disorders that “may profoundly affect a person’s capacity to freely give unbiased consent.’’ In addition, defendants pointed out portions of the early consensual tapes in which Hauser said he was under mental and financial pressure. In anticipation of a hearing on the issue of Hauser’s ability to consent, defendants subpoenaed Hauser’s medical records from his personal physician in California. On the basis of this preliminary showing and to allow the parties a meaningful opportunity to meet their burdens on this issue, I conducted an evidentiary hearing limited to the question of Hauser’s consent. See generally United States v. Glickman, 604 F.2d 625, 629, 633 (9th Cir. 1979), cert. denied, 444 U.S. 1080, 100 S.Ct. 1032, 62 L.Ed.2d 764 (1980); United States v. Phillips, 540 F.2d 319, 324 (8th Cir.), cert. denied, 429 U.S. 1000, 97 S.Ct. 530, 50 L.Ed.2d 611 (1976); United States v. Napier, 451 F.2d 552 (5th Cir. 1971). At the hearing, the government introduced into evidence seven consent forms executed by Hauser in the presence of FBI agents in which he agree to allow his con- versations to be recorded. The government also called as witnesses FBI Agents William Wiechert and Thomas Rup- prath, who witnessed the signing of the forms. They testified that Hauser’s demeanor at the time he executed the forms was “‘‘rational and normal’”’ and that Hauser ap- peared lucid and in control of his faculties. They also testified that Hauser was not threatened, physically abus- ed, or in any way coerced before signing the forms. Agent A-33 Wiechert said that while he occasionally saw Hauser tak- ing pills, he appeared to be lucid and not suffering from any debilitating effects from the pills. Over the government’s objection, I permitted the defendants to examine Hauser’s medical records, and they were reviewed by Dr. Ritter. On the following day, Dr. Rit- ter testified that the drug dosages Hauser was taking at or about the time of his agreement to consent to the tapings was a ‘formidable dose of medication’’ which itself could have affected Hauser’s ability to consent, although it was possible for some persons to function quite well under the same dosages. He concluded based on the limited informa- tion available to him that it was possible that Hauser might have been incapable of consenting. After being given the opportunity to review the full transcript of Hauser’s guilty plea, the doctor testified that it appeared that Hauser understood the exhaustive questioning and the nature and meaning of his plea of guilty at the time. Finally, I allowed counsel to question Hauser himself as part of the evidentiary hearing. Hauser identified the consent forms and testified that the FBI agents explained them to him, that the agents made no threats or promises to him, and that he understood the nature and content of the forms when he signed them. Hauser testified that although he was taking medication at the time he con- sented to the recording of his conversations, his senses were not impaired. At the conclusion of Hauser’s testimony, the defendants requested that I compel a psychiatric examination of Hauser which I declined on the basis of the evidentiary record. After considering the testimony of the witnesses, the transcript of Hauser’s Arizona guilty plea, the documentary evidence submitted by the parties, and having listened to the consensual tape A-34 recordings prior to the hearings, I determined that Hauser’s consent to the recording of his conversation was given freely and voluntarily, knowingly and understan- dingly as required by law. Knowing and voluntary consent is a requisite to lawful interception of consensually recorded conversations. See 18 U.S.C. § 2511(2)(c) and (d); United States v. Juarez, 573 F.2d 267, 278 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 289, 58 L.Ed.2d 262 (1978). Some circuits have stated that consent will ordinarily be established if the govern- ment shows merely that the informant engaged in the con- versation knowing that it was being taped. United States v. Glickman, supra, 604 F.2d at 633; United States v. Fuentes, 563 F.2d 527, 533 (2d Cir.), cert. denied sub nom., Sansone v. United States, 434 U.S. 959, 98 S.Ct. 491, 54 L.Ed.2d 320 (1977); United States v. Kirk, 534 F.2d 1262, 1272-73 ‘8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); United States v. Bonnano, 487 F.2d 654, 658-59 (2d Cir. 1973). In Glickman, the Ninth Circuit summarized this general approach by saying: The extent of proof required to show that an in- former consented to the monitoring or recording of a conversation is considerably less stringent than that needed to show consent to a physical search. The reasons for this less stringent stan- dard regarding conversations is that....{aJn in- former's consent to the monitoring or recording of a telephone conversation is an incident to a course of cooperation with law enforcement of- ficials on which he has ordinarily decided some time previously and entails no unpleasant conse- quences to him. In order to establish consent to taping of con- versations, it wilf ordinarily suffice for the gov- A-35 ernment to show that the informant engaged in the conversation knowing that it was being taped. 604 F.2d at 633-34 (citations omitted). A panel of the Fifth Circuit, however, has indicated that the validity of an in- former's consent to the recording of his conversations must be measured against the more stringent standard of con- sent to a physical search. In United States v. Napier, 451 F.2d 552, 553-54 (5th Cir. 1971), the court cited its decision in United States v. Elrod, 441 F.2d 353 (5th Cir. 1971), a case involving the validity of a defendant's consent to a search of his hotel room, as providing the proper standard for determining the effect of mental capacity on the ability to consent to the recording of conversations.” In Elrod, the court said that ‘‘a determination of the question of free and voluntary consent requires a determination that the person was mentally competent to understand the nature of his act when he signed the ‘Consent to Search’ form.’’ 441 F.2d at 355 (emphasis by the court). The court said that the act of consent must be ‘‘the consensual act of one who knew what he was doing and had a reasonable appreciation of the nature and significance of his actions.’’ Jd. Regardless which standard is applied in this case, however, I conclude that Hauser was mentally capable of freely and voluntarily consenting to the recording of his conversations, and that he did so. The consent forms, the agents’ testimony, Hauser’s testimony during the eviden- tiary hearing, and the transcript of his guilty plea, which was accepted by Judge frey, convince me that Hauser's ° In a footnote in Glickman, the Ninth Circuit recognized the dif- ferent standard applied by the Fifth Circuit in Napier and Elrod, but rul- ed that Napier and Elrod were inapposite to the facts of Glickman. See United States v. Glickman, supra, 604 F.2d at 634 n.5. A-36 consent was knowingly and understandingly given. Moreover, one need not listen too long to the tape recor- dings themselves to become satisfied beyond peradventure of doubt that they were made freely and with full understanding of what was going on. I| therefore conclude that the defendants’ motions to suppress the consensually recorded conversations must be denied. In addition to the grounds discussed above, defen- dant Davidson argues that because (1) Hauser was not ac- ting ‘‘under color of law’’ as required by 18 U.S.C. § 2511(2)ic), and (2) the taping was for purposes of commit- ting criminal, tortious, or injurious acts by Hauser, a per- son not acting under color of law, and the tapes were therefore unlawfully made under 18 U.S.C. § 2511(2)(d) and must be suppressed. I find that these arguments are without merit. Section 2511(2)(c) provides that it ‘shall not be unlawful...for a person acting under color of law to in- tercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such intercep- tion.’’ The courts have generally held that where an in- former is acting under the direction and supervision of government investigators, as the evidence indicates Hauser was doing in this case, the informer is acting under color of law within the meaning of the statute. See United States v. Rich, 518 F.2d 980, 985 (8th Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976); United States v. Ransom, 515 F.2d 885, 890 (5th Cir. 1975), cert. denied, 425 U.S. 945, 96 S.Ct. 1687, 48 L.Ed.2d 189 (1976). Since I conclude that Hauser was acting under color of law in this way, it is unnecessary to reach defendant's se- cond argument, which is prefaced on the assumption that Hauser was not acting under color of law, and defendant Davidson's motion to suppress on these grounds is denied. A:37 V. Motions to Suppress the Court-Ordered Wiretaps In their motions to suppress the court-ordered wiretaps, the defendants contend that their tape-recorded conversations made pursuant to wiretap orders issued by United States District Judges under 18 U.S.C. § 2510 et seq. are inadmissible for a variety of reasons. Their chief arguments are that (1) the orders authorizing the wiretaps were not founded on a showing of probable cause; (2) FBI agents and government attorneys misrepresented and omitted material facts in the affidavits accompanying the applications for authorization to tap defendants’ telephones; and (3) the government did not comply with the requisite statutory provisions permitting wire intercepts. The defendants contend that each subsequent application for a wiretap order in the long series of intercepts authoriz- ed in this investigation builds upon the fruits of the previous orders. Thus, defendants have concentrated their challenges® on the earliest applications and orders of May 4, June 13, and June 14, 1979. © It is undisputed in this case that defendants Davidson and Marcello have standing to challenge any and all of the wiretap orders, and they have brought their own motions or adopted the arguments of their co-defendants in seeking suppression of these tapes. The govern- ment has challenged the standing of defendants Marinello, roemer, and Young to attack the early wiretap iy AS that as to these orders they are not ‘aggrieved persons’ within the meaning of 18 U.S.C. § 2518(10a) and Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). I agree, however, with defendants’ con- tention that each subsequent wiretap order issued in the long series of orders in this case built upon previously issued orders to establish pro- bable cause. It is clear that all defendants eventually became ‘aggrieved persons’’ at one point or another in the series of wiretap orders. Since the early wiretap orders formed the linchpin upon which all later fin- dings of probable cause and the wiretap orders were based, I conclude that all defendants have standing to raise these challenges to the wiretap orders. Therefore, I have allowed counsel for all defendants to present their arguments on these motions. A-38 The affidavits upon which defendants focus their at- tack are virtually identical; each can be divided into two sections. In the May 4, 1979 affidavit of FBI Agent Charles Waker, for example, the first 14 paragraphs con- sist of background information purportedly provided in an April 4, 1979 conversation between Walker and Hauser in which Hauser described past dealings he allegedly had with defendants Marcello and Davidson. The second part of the affidavit contains information purportedly gleaned from recorded telephone and personal communications of David- son, Marcello and Hauser made by the FBI with Hauser’s consent. Walker stated in the affidavit that he had per- sonally reviewed each of the conversations and summariz- ed their content. Walker's May 4 affidavit was included in the application for the initial wiretap order prepared by government attorney Bruce Kelton and submitted to United States District Judge Charles R. Richey in Washington, D.C. It appears in substantially similar form along with another affidavit in which FBI Agent Doug Bird purportedly summarizes additional telephone conver- sations intercepted pursuant to the May 4 order in the June 13 application, and again above Walker’s signature in the June 14 application. Both Walker and Kelton testified extensively during the evidentiary hearings. A) Sufficiency of the Affidavits: Probable Cause, Misrepresentations, and Omissions Defendants’ arguments that the recordings are inad- missible because the orders were not supported by pro- bable cause and because there were material misrepresenta- tions and omissions in the affidavits supporting each wiretap application are somewhat related. Both involve the ultimate question of the sufficiency and validity of the af- fidavits supporting the determination of probable cause to A-39 wiretap. The arguments require that i inquire into (1) the ‘facial’ sufficiency of the affidavits and whether the hear- say and double hearsay statements in the background paragraphs provided by Hauser are sufficient to support a finding of probable cause, and (2) the ‘‘subfacial’’ sufficien- cy of the affidavits and whether there were material mis- representations and omissions that affected the magistrate’s determination of probable cause. An order authorizing a wiretap, like an ordinary search warrant, must be supported by a magistrate’s fin- ding of probable cause. 18 U.S.C. § 2518(3)(a); United States v. Weinrich, 586 F.2d 481, 487 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979); United States v. Hyde, 574 F.2d 856, 862 (5th Cir. 1978). In general, probable cause exists where “the facts and cir- cumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient un- to themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.”’ Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 1881, 18 L.Ed.2d 1040 (1967). The Supreme Court has recognized that ‘‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,”’ and that magistrates may use their common sense in determin- ing the existence of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637 (1969). See also United States v. Davis, 617 F.2d 677, 659 (5th Cir. 1979). A magistrate'’s determination of pro- bable cause should be paid great deference by reviewing courts, as long as the magistrate has performed his in- dependent function and no. served merely as a rubber stamp for the police. Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 1512, 12 L.Ed.2d 723 (1964); See Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 591; A-40 United States v. Davis, supra, 617 F.2d at 692. When the magistrate’s finding of probable cause is based on his review of the entire picture presented to him and the use of his own judgment and common sense, his determination is conclusive in the absence of arbitrariness. United States v. Weinrich, supra, 586 F.2d at 487; United States v. Hyde, supra, 574 F.2d at 862. The defendants’ arguments in these motions to sup- press raise what the Fifth Circuit has described as challenges to both the ‘facial sufficiency’ of the affidavits. See United States v. Martin, 615 F.2d 318 (5th Cir. 1980). An attack on the facial sufficiency of the affidavit involves the information contained within the four corners of the af- fidavit itself. A challenge to the subfacial validity of the af- fidavit goes beyond the document and concerns itself with alleged misrepresentations and omissions that could have affected the magistrate’s assessment of probable cause. In this case, defendants challenge the facial sufficien- cy of the affidavits by arguing that the hearsay and double hearsay information provided to the affiant by Hauser and the information gleaned from the consensually recorded taped communications were insufficient to support a fin- ding of probable cause. Where the information contained in an affidavit supporting a wiretap order is obtained from an informer such as Hauser, the magistrate’s determination of probable cause must be measured against the dual test established by Aguilar v. Texas, supra, and Spinelli v. United States, supra. First, the affidavit must provide the magistrate with the underlying facts from which the infor- mant concluded that criminal activity was occurring or had taken place, and these facts must warrant an inference of criminal activity. Second, the affidavit must provide facts establishing the probable credibility of the informer or the A-4] reliability of his information. Both requirements must be satisfied; if either is not met, the affidavit cannot establish probable cause. United States v. Martin, supar, 615 F.2d at 324. I conclude in this case that both elements of the Aguilar-Spinelli test are satisfied on the face of the affidavits. The background portion of the affidavit sets out suf- ficient facts as related by the informer, Hauser, taken as a whole and read in context with the entire affidavit to war- rant an inference that criminal activity related to the ac- quisition of insurance contracts through corrupt influence and bribery had occurred in 1976. Similarly, the affidavit contains sufficient facts provided by the consensually- made tape recordings to warrant an inference that in- fluence and payoffs were to be used to obtain public employee insurance contracts in Orleans and Jefferson Parishes in 1979. I conclude from my reading of the af- fidavits that sufficient facts were stated to satisfy the first element of the Aguilar-Spinelli test. Similarly, the detailed affidavits submitted in support of the early wiretap ap- plications also supplied the judges who issued the orders with sufficient facts to determine the probable credibility and reliability of the informer. The information contained in the background portion of the affidavit related to the 1976 transactions is detailed and is based largely on Hauser’s personal knowledge, observations, and participa- tion in the activity. Much of the background information concerning Hauser’s past dealings with Marcello and Davidson is corroborated by the consensual recordings which are the source of the information contained in the se- cond part of the affidavits. The affidavit informs the magistrate that despite Hauser’s past dealings with Marcello and Davidson, he was now cooperating with the FBI by taping conversations in connection with the A-42 investigation, (May 4, 1979 affidavit of Walker, § 15), and that a federal criminal prosecution was pending against Hauser at the time he was becoming involved as an in- former in the BRILAB investigation (May a4, 1979) af- fidavit of Walker, € 52). In short, the information set out in the affidavits provided the magistrates with sufficient evidence to warrant a finding of probable cause, and those findings should not now be disturbed. Defendants’ challenge to the subfacial sufficiency of the affidavits argues that the affidavits are flawed by material misrepresentations and omissions that undermine the affidavits and vitiate the finding of probable cause. These arguments go beyond the four corners of the af- fidavits to attack the probable cause determinations. The validity of such subfacial challenges to affidavits presented in support of warrants was recognized by the Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and has also been recognized by the Fifth Circuit. United States v. Martin, supra, 615 F.2d at 328; United States v. Astroff, 578 F.2d 133 (5th Cir. 1978). In Franks, the Court recognized a defendant's right to challenge the truthfulness of statements made by the af- fiant in an affidavit supporting a warrant and ruled that in some circumstances a pretrial evidentiary hearing on the issue might be required. If at the hearing ‘'the allegation of perjury or reckless disregard [for the truth] is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the af- fidavit’s remaining content is insufficient to establish pro- bable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if pro- bable cause was lacking on the face of the affidavit.’’ 438 U.S. at 156, 98 S.Ct. at 2676. In a summary at the end of its opinion, the Court said: A-43 There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hear- ing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or otherwise reliable statements of witnesses should be fur- nished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovern- mental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficcient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defen- dant is entitled, under the Fourth and Fourteenth Amendments, to his hearing. Whether he will prevail at that hearing is, of course, another issue. 438 U.S. 171-72, 98 S.Ct. 2684-85 (emphasis added). While Franks deals only with misrepresentations in the affidavit, the Fifth Circuit has held by analogy to Franks that ‘‘omis- sions...made intentionally or with reckless disregard for the accuracy of the affidavit’’ may also vitiate a finding of pro- bable cause. United States v. Martin, supra, 615 F.2d at 329. A-44 Using Franks as my guide, I determined that defen- dants had made a sufficient preliminary showing of possi- ble misrepresentations and omissions in the affidavit to warrant an evidentiary hearing. At that hearing, the testimony of FBI Agent Charles Walker, the affiant in the May 4, 1979 application for a wiretap order, and Bruce Kelton, the government attorney who prepared the initial application, was taken. In addition, defendants submitted a substantial amount of documentary evidence. Also ad- mitted into evidence during this hearing were copies of the consensually recorded taped communications of Hauser, Marcello, and Davidson made prior to the May 4 applica- tion and accompanying transcripts of the tapes prepared by the government. I have now carefully reviewed the evidence and listened to the tape recordings and I conclude that defendants’ motions to suppress on these grounds must be denied. It is true, as defendants have pointed out, that there were some misrepresentations and omissions in the affidavits, but in each instance they were either unintentional or were not made recklessly, or they were im- material to a finding of probable cause. Most of what the defendans characterize as unlawful misrepresentations are, in fact, reasonable inferences and interpretations which can be drawn from a review of all the tapes and an understan- ding of the statements in the entire context of the series of conversations among the participants. It is unnecessary to address each of the arguments and allegations raised by the defendants, but a few ex- amples will illustrate my views. In paragraph 20 of the affidavit, the affiant describes a conversation between Hauser and Marcello in which Hauser allegedly asks Marcello if Marcello has any ‘‘juice’’ with the New Orleans City Council that might assist Hauser in winning an insurance contract for the city’s public employees. Ac- A-45 cording to the government's affidavit, Marcello replied: “Yes, I've got 'em all where I want ‘em.’ Defendants con- tend that Marcello’s actual response was: ‘‘Yeah, I got them all what I want.’’ I have listened to the tape recording of this particular conversation more than 12 times, and I conclude that it is possible to hear the statement either way and I am not now positive which is correct. In con- sidering the remark in the context of the entire conversa- tion and the series of conversations represented by the tapes that were admitted into evidence, however, I believe that the interpretation placed upon the conversation by the affiant is an accurate one. The inference arising from the conversation that Marcello exercises influence over the decisions of the council is a reasonable one based on a review of the entire conversation tuat supports the finding of probable cause. Similarly, the defendants challenge the use in paragraph 24 of the affidavit of the phrase ‘‘inside information” to describe information Marcello allegedly would provide to Hauser concerning bidding for insurance contracts for Jefferson Parish public employees. The defen- dants argue that the government affidavit has in fact plac- ed placed a sinister hue on what in reality was an offer to obtain perfectly legitimate information, such as bid specifications for the parish insurance business. While it is true that the phrase ‘‘inside information’ does not appear on the recording of the conversation upon which this paragraph of the affidavit is based, it is clear to me from my review of the «xchange in the context of the entire con- versation that the affiant’s characterization of the conver- sation was a reasonable and accurate one. Perhaps the most serious misrepresentations raised by the defendants concern paragraphs 23 and 28 of the af- fidavit. In paragraph 23, the affidavit states that while discussing the Jefferson Parish insurance contracts during A-46 an April 2, 1979 conversation, Hauser said that once the contract was obtained, ‘ ‘we'll pay who we have to pay’ and Marcello verbally agreed.’’ I agree with defendants that the phrase ‘‘we'll pay who we have to pay’ does not appear on the tape. In fact, Walker admitted as much when he testified during the hearing. I conclude, however, that the placement of quotes around the disputed phrase was not done in reckless disregard of the truth since a review of the entire conversation indicates that paragraph 23 is an ac- curate conveyance of the meaning of what was said in that conversation. The actual exchange on which this paragraph was based appears to have been Hauser saying that ‘whatever we have to take care of we'll take vare of’’ and Marcello responding ‘‘That’s all.’ It is important, I believe, not to view these brief verbal exchanges in a vacuum; instead, they can only properly be understood and interpreted when heard in the context of the relevant con- versation as a whole. While the actual words presented to the magistrate in the affidavit were inaccurate, the magistrate was not misled because the paragraph accurate- ly reflected what the conversation, viewed as a whole, was all about. In paragraph 28, the affidavit describes an April 7, 1979 conversation between Hauser and Davidson. While the affidavit characterizes this paragraph as the summary of a taped conversation reviewed and analyzed by the af- fiant, it is actually a summary of a telephone call monitored on an extension phone in Hauser’s home by another FBI agent. See defendants’ exhibit 35. Apparently, no recor- ding of this conversation exists, although the magistrate apparently was led to believe that this paragraph was bas- ed on a recording. I find, however, that even if this paragraph is stricken from the affidavit, a sufficient basis for a finding of probable cause still exists in the remaining content of the affidavit. A-47 I have reviewed each of the defendants’ allegations of misrepresentations or omissions raised in their pre-trial motion papers, in their questioning and oral argument at the evidentiary hearing, and in the supplemental memoran- dum filed by defendant, Roemer after the hearing. I have measured these allegations against what I have read in the affidavits and heard on the tapes, and I have weighed them against the applicable legal standards provided by the Supreme Court and the Fifth Circuit. I conclude that the defendants have failed to establish intentional or reckless misrepresentations or omissions in the affidavits which, when set to one side of the affidavits, render them insuffi- cient to establish probable cause. Most of the alleged misrepresentations or omissions raised by the defendants are in fact accurate reflections or interpretations of the tape-recorded conversations when those statements or remarks are heard and understood in their proper context within the series of conversations relevant to these mo- tions. Those few allegations that raise actual misrepresen- tations or omissions are either unintentional, not recklessly made, or have no effect on the sufficiency of the affidavit to support a finding of probable cause when deleted from the affidavit. Defendants’ subfacial challenge to the suffi- ciency of the affidavits has therefore failed, and the mo- tions to suppress on those grounds are denied. B) Staleness An additional argument raised by the defendants in connection with the sufficiency of the findings of probable cause to wiretap is that the background information pro- vided by Hauser in the first part of the affidavit should be stricken from the affidavit on grounds of staleness. Defen- dants contend that because the background information concerns events occurring from late 1975 to September A-48 1976, it is stale information which cannot be used to sup- port a finding of probable cause in the 1979 applications for wiretap orders. I disagree with the defendants’ argument. The staleness standard does not establish an ar- bitrary time limitation in which information must be presented to a magistrate. Instead, it is clear that in some circumstances ‘information which demonstrates a chain of related events covering a broad span of time continuing to the current period may furnish a most reliable indicia of present activity.....° United States v. Weinrich, supra, 586 F.2d at 491. Staleness is an issue which must be decided on the peculiar facts of each case, but the rule allows ‘“‘fairly long periods of time to elapse between information and search warrant in cases where the evidence clearly shows a longstanding, ongoing pattern of criminal activity."’ United States v. Hyde, supra, 574 F.2d at 865. In this case, the facts set out in the affidavit describe similar kinds of criminal activity occurring in 1976 and again in 1979 among persons who appear to have had a longstanding and ongoing relationship. Moreover, the older information set out in the background portion of the affidavit is corroborated in many respects by the informa- tion obtained from the consensual tape recordings made in 1979. Under these circumstances, it was not unreasonable for the judges who issued the intercept orders to conclude that the relationships and activity described in the af- fidavits was ongoing and continuing, and I will not disturb their findings of probable cause to issue intercept orders on grounds of staleness. C) The Statutory Requirements At various points in their motions, defendants have A-49 sought to suppress the tape recordings made pursuant to court orders on grounds that the government failed to com- ply with some of the statutory requisites established by Ti- tle III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seg. Included among defen- dants’ arguments are that (1) the orders are insufficient on their face; (2) the government failed to ‘‘minimize the in- terception of communications not otherwise subject to in- terception”’ pursuant to 18 U.S.C. § 2518/5); (3) the orders failed to particularly describe the communications sought to be intercepted pursuant to 28 U.S.C. § 2518/4); (4) the government provided an insufficient justification for the need for electronic surveillance and failed to try other in- vestigatory techniques before resorting to wiretapping as required by 18 U.S.C. § 2518(1)(c); (5) the government failed to comply with the sealing requirements of 18 U.S.C. § 2518(8)(a); and (6) unauthorized disclosures were made to the grand jury in violation of 18 U.S.C. § 2517(5). I have been provided with no evidence to support any of the defendants’ allegations, and my own examination of the orders and the relevant parts of the record in this case convinces me that all requirements of 18 U.S.C. § 2510 et seg. have been complied with by the government. Defen- dants’ motions to suppress on these grounds are therefore denied. D) Miscellaneous Arguments Defendants have also raised several miscellaneous arguments in support of their contentions that the tapes made pursuant to court-ordered wiretaps are inadmissible. These arguments include (1) the statute authorizing the wire interceptions, 18 U.S.C. § 2510 et. seg., is unconstitu- tional; (2) the application failed to include a statement of A-50 facts relating to previous interceptions of the defendants’ communications; (3) unauthorized interceptions of defen- dants’ conversations were made; and (4) the intercept orders are “‘irretrievably tainted’’ under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). I conclude that all of these arguments are without merit, and that the motions to suppress the court-ordered wiretaps on these and any other grounds asserted by the defendants are denied without need for fur- ther discussion. VI. Motion to Disclose Identity of Informer Near the end of August, 1980, a sealed envelope was delivered to the office of the attorney-in-charge of the Justice Department’s New Orleans Organized Crime Strike Force.’ The only identification contained on the envelope was a telephone number scrawled on the outside. The attorney-in-charge opened the envelope and found a spiral looseleaf notebook containing telephone call logs and ap- pointment notations. The notebook apparently belonged to defendant Marcello. The attorney turned over the notebook and the telephone number to an FBI agent who after call- ing the telephone number on the envelope arranged to meet with the person who answered. They met on five occasions in August and early September 1980 and the agent receiv- ed eleven additional notebooks, all containing information similar to that in the first notebook and all apparently ' The factual narrative that comprises the first three paragraphs of this section of my minute entry is based on the testimony of the witnesses who testified at the evidentiary hearing conducted on this mo- tion. The witnesses were Russell Schonekas, counsel for defendant Marcello; Eades Hogue, attorney-in-charge of the Justice Department's New Orleans Organized Crime Strike Force; John Volz, United States Attorney for the Eastern District of Louisiana; and Special Agent Harold Hughes of the New Orleans office of the FBI. A-51 belonging to defendant Marcello. The notebooks contained information about appointments and telephone calls dating from 1970 to 1977, and the government officials reviewed the notebooks and determined that they were irrelevant to the BRILAB prosecution and would not be used at trial. On October 2, 1980, counsel for defendant Marcello was summoned to the Office of the United States Attorney for this District. When he arrived, he was given the twelve notebooks. Government representatives declined to iden- tify the source of their information since the informer had requested anonymity because of fear of reprisals. The notebooks were personal property of Marcello which had been stolen in an August 30, 1977 burglary of his business office and reported to the Jefferson Parish Sheriff's Office. The FBI was aware that Marcello had reported a burglary, and when the informer provided the FBI with the twelve notebooks, he was questioned about his knowledge of the burglary. According to the FBI agent who met with the informer, the informer denied that he had committed the burglary and denied that he knew the identi- ty of the burglar. Defendant Marcello has brought this motion to re- quire the FBI or the government attorneys (1) to disclose the name and address of the informer who provided the government with the notebooks allegedly taken in the burglary, and (2) to state (a) whether they know the identi- ty of the burglar, (b) whether the government participated in or was responsible in any way for the burglary, and (c) whether they have reviewed or examined the notebooks and plan to use them at the trial of this case. Counsel for the defendant agreed at oral argument on this motion that the government had satisfied the second part of this A-52 motion. Each of the government officials who testified at the evidentiary hearing on this motion denied that the government perpetrated the burglary or was in any way in- volved, and also denied that any government official knows the identity of the burglar. some of the government of- ficials admitted they had examined the notebooks, but the Strike Fo°>» attorney-in-charge testified that they were ir- relevant . she BRILAB case and would not be used at trial. Thus, the only portion of defendant’s motion that re- mains to be decided is defendant’s request for disclosure of the identity of the informer who provided the government with the notebooks. Defendant’s legal theory in support of his motion is rather vague; his very brief memo in support of the rnotion states simply that he “‘relies upon the 5th and 14th Amendments to the U.S. Constitution and Rule 47 of the Federal Rules of Criminal Procedure.’’ Counsel's oral argument following the evidentiary hearing seemed to touch on notions of fundamental fairness inherent in the Fifth Amendment. Defendant cites no case law in support of his motion. Although the govefnment is required to disclose the identity of confidential informers under some cir- cumstances, there is no general requirement that an in- former's identity be disclosed in all cases. See Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). In Roviaro, the Supreme Court pro- vided the following general guidance on the ‘‘informer’s privilege:”’ What is usually referred to as the informer’s privilege is in reality the Government's privilege to withhold from disclosure the identity of per- sons who furnish information of violations of law A-53 to officers charged with enforcement of that law. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law- enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. The scope of the privilege is limited by its underlying purpose.... A further limitation on the applicability of the privilege arises from the fundamental re- quirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his com- munication, is relevant and helpful to the defense of an accused, or is essential to a fair determina- tion of a cause, the privilege must give way. In these situations the trial court may require disclosure... We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protec- ting the flow of information against the in- dividual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors. 353 U.S. at 59-62, 77 S.Ct. 627-29 (citations omitted) {em- phasis added]. In general, therefore, disclosure of an in- former's identity will be ordered when the informer's iden- tity is relevant, helpful to the defense, or essential to a fair A-54 determination of the case. In this case, disclosure of the informer's identity will serve none of these purposes. Defendant has failed to demonstrate the relevance of this informer’s identity to this case and his defense, and I discern none. The identity of the informer, who provided information which itself is ir- relevant to this case, is in no way essential to determina- tion of this proceeding, nor would it be helpful to the defense of these charges. The informer apparently fears revelation of his or her identity and obviously would not have come forward except under the cloak of anonymity ex- plained in Roviaro. Under these circumstances, the balance of interests weighs in favor of continued confidentiality, and I therefore deny defendant's motion for disclosure. ORDER SEAR, District Judge. IT ISORDERED that defendants’ motions to adopt the substantive motions and motions to suppress of their co-defendants are GRANTED. IT IS FURTHER ORDERED that the defendants’ motions to dismiss the indictment in the captioned pro- ceeding on grounds of governmental misconduct and over- reaching, artificially created jurisdiction, and selective pro- secution are DEFERRED until trial. Defendants’ motion to dismiss the indictment on grounds of prejudicial publici- ty is DENIED, but defendants’ alternative motion for sanctions is DEFERRED. IT IS FURTHER ORDERED that all other substan- tive motions urged by defendants in arguments conducted A-55 October 6 and 7, 1980, including the motions to sever, to dismiss, and to strike portions of the indictment, are DENIED. IT IS FURTHER ORDERED that the defendants’ motions to suppress the consensually recorded tapes of defendants’ conversations and the tape recordings made pursuant to court orders, which motions were urged and argued December 8 through 12, 1980, are DENIED. The motion of defendant Marcello for disclosure of the identity of a government informer is also DENIED. A-56 APPENDIX “C”’ UNITED STATES of America v. Carlos MARCELLO et al. Crim. A. No, 80-274. United States District Court, E.D. Louisiana. April 20, 1982. . Defendants moved for judgment of acquittal or, in the alternative, for new trial following their convictions of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act. The District Court, Sear, J., held that: (1) the Government's involvement in the sting operation was not so unusually pervasive as to violate due process principles and did not result in the artificial crea- tion of federal jurisdiction; (2) there was sufficient evidence that defendants agreed to commit one or more additional predicate offenses to sustain their convictions; (3) although the offenses which served as additional predicate offenses were related to the initial predicate offense they were separate offenses for purpose of establishing a pattern of racketeering activities; and (4) the Government amply pro- ved an agreement to participate in an enterprise separate and apart from the mere agreement to commit acts of racketeering activity. Motions denied. John Volz, U.S. Atty., L. Eades Hogue, U. S. Justice A-57 Dept., Albert Winters, Richard T. Simmons, Asst. U. S. Attys., John Voorhees, U. S. Justice Dept., New Orleans, La., for Government. Arthus A. Lemann, III, Provino Mosca, Russell Schonekas, New Orleans, La., Henry Gonzalez, Tampa, Fla., for defendant Carlos Marcello. John R. Martzell, John Wilson Reed, Michael Fawer, Mathew Greenbaum, New Orleans, La., for defendant Charles E. Roemer, II. SEAR, District Judge. Introduction Following their convictions in this federal criminal prosecution, defendants Carlos Marcello and Charles E. Roemer, II, moved for judgments of acquittal or, in the alternative, for a new trial on a number of grounds. After considering the extensive memoranda submitted by coun- sel and the oral argument presented at the hearing of December 14, 1981, in light of the substantial record of the case and the voluminous evidence adduced at trial, I denied the defendants’ motions, ruling orally from the bench. At the same time, I also denied four motions which had been argued by the defendants prior to trial, but whose deter- mination had been deferred until trial. See United States v. Marcello, 508 F.Supp. 586, 590-98 (E.D.La.1981). Background of the Case In the summer of 1980, Marcello and Roemer were charged with three co-defendants in a lengthy twelve-count indictment resulting from a year-long Justice Department A-58 undercover ‘‘sting’’ operation commonly known as Brilab.! The Brilab investigation was nationwide and broad in scope, centering upon suspected illegal activities involving public officials, labor unions and reputed organized crime figures. The investigation was carried out by agents of the Federal Bureau of Investigation working with a convicted felon and career con man named Joseph Hauser. Hauser had recently pleaded guilty to federal criminal charges aris- ing from a scheme to swindle health, welfare and pension funds from labor unions, United States v. Hauser, No. CR-78-313 (D.Ariz. Feb. 5, 1979). He willingly agreed to cooperate with federal officials when approached at about the time of his quilty plea by FBI agents who proposed that he participate in the undercover operation.“ Hauser’s agreement to cooperate in the investigation was not entire- ly motivated by the spirit of penitence or by a sense of civic obligation. In exchange for his participation in the Brilab investigation, Hauser received the assistance of Justice Department attorneys who appeared on his behalf in his Arizona sentencing, substantial compensation payments in addition to reimbursement for expenses and other fringe benefits during -his-participation in the Brilab investiga- tion, and a place in the federal witness protection program when his term of imprisonment resulting from his criminal conviction ended. The Louisiana arm of the Brilab operation in which : The term “Brilab” is an acronym which stands for ‘‘bribery- labor.’ Ironically, the Louisiana component of the Brilab investigation in no way implicated labor unions or their officials in any alleged or ac- tual wrongdoing uncovered by the investigation. 2 Hauser testified at trial that he was initially approached about cooperating in the investigation by FBI agents William Wiechert and William Fleming. See Trial Testimony of Joseph Hauser under Direct Examination by the Government, June 15, 1981, Trial Transcript at 4208-12. A-59 Hauser became involved lasted about one year, from February 1979 to February 1980, a period during which the 1979 gubernatorial campaign and election were conducted. As part of the undercover investigation, Hauser and two FBI agents, Michael Wachs and Larry Montague, posed as representatives of a fictitious Beverly Hills, California firm called Fidelity Financial Consultants. Wachs, who assum- ed the alias Michael Sachs, and Montague, who took the name Larry Golden, working together with Hauser, set up their dummy business on the West Coast. Personalized business cards and stationery showing that they represented Prudential Insurance Company of America, one of the largest insurance firms in the world, were printed by the FBI.2 Posing as insurance representatives with a connection to Prudential, Hauser and the two agents con- tacted individuals with whom Hauser said he had dealt in the past, including Carios Marcello, in an effort ta. gain a foothold for obtaining insurance contracts with state and local governmental agencies and private businesses in Louisiana. The agents’ activities included face-to-face meetings with Marcello, several candidates for public of- fice, and Roemer, who wa then Commissioner of Ad- ministration of the state of Louisiana and chief of the gubernatorial campaign of then-State Senator Edgar G. * Government exhibit No. 309. John Stoddart. senior vice presi- dent and general counsel of Prudential. testified that although Pruden- tial had agreed to cooperate with the government in the Brilab in- vestigation, the printing of business cards bearing the inscription ‘Fidelity Financial Consultants Representing Prudential Insurance Company of America” and listing an agent's alias, address and telephone number was in conflict with assurancces Prudential had received from the FBI in May 1979 that there would be no ‘advertising’ of a connection between Prudential and Fidelity. See trial testimony of John Stoddart under direct examination by defendant Marinello, July 23, 1981, Trial Transcript at 9097-9119. Interestingly. the name Pruden- tial Insurance Company was printed on the business cards in boldface type at least twice as large as the lightface printing used for the name Fidelity Financial Consultants. A-60 ‘Sonny’ Mouton of Lafayette. Scores of tape recordings of conversations concerning the election campaign, insurance, and the activities of the agents and the defendants were made with Hauser’s consent? or pursuant to wiretap orders previously issued by United States district judges.° More than 130 of the surreptitiously made recordings were eventually used as evidence at the Brilab trial. The agents made cash payments of thousands of dollars to several can- didates or their representatives. Roemer himself received two payments totalling $25,000, which he contended were campaign contributions for Mouton. In the indictment that formed the basis for this criminal prosecution, however, the payments were characterized as bribes given in return for Roemer’s promise to use his influence to shift the state employees insurance contract from its existing carrier to the agents. Count One of the superseding indictment® that resulted from the Brilab investigation charged Marcello, Roemer, I. Irving Davidson, Vincent Marinello, and Aubrey Young with a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act, 18 U.S.C. § 1962(d). Specifically, the defendants were charged with conspiring to associate together in fact as an enterprise for the purpose of obtaining the state employees insurance contract through the commission of various criminal acts, including public bribery in violation of 4 See 18 U.S.C. § 2511(2Nc) and (d); United States v. Marcello, 508 F.Supp. 586, 598-601 (E.D.La.1981) © See 18 U.S.C. § 2510 et seg. 6 Two indictments were actually returned. Each contained essen- tially the same charges, but the first. returned on June 17, 1980, Court Record Document No. 1, named only four defendants while the second, a superseding indictment returned on August 12, 1980, Court Record Document No. 56, named a fifth defendant. Aubrey W. Young. A-61 Louisiana law, La.Rev.Stat.Ann. § 14:118 (West Supp.1980); interstate travel with intent to conduct unlawful activity in violation of 18 U.S.C. § 1952; wire fraud in violation of 18 U.S.C. § 1343; and mail fraud in violation of 18 U.S.C. § 1341. Count Two charged all five defendants with a substantive violation of RICO. Counts Three through Twelve alleged various acts of mail fraud, wire fraud, and interstate travel in aid of unlawful activity against some or all of the defendants. After eighteen weeks of trial, the jury found Marcello and Roemer guilty of Count One, the RICO conspiracy. Marcello was acquitted on the eleven other counts against him, and Roemer was acquitted of the five other charges against him.’ Their co-defendants were acquitted on all charges against them.® Prior to the trial, I had deferred ruling on three mo- tions brought by the defendants to dismiss the indictment on grounds of governmental overreaching or misconduct, selective prosecution, and artificially created federal jurisdiction,? an issue raised with renewed fervor in " Roemer was acquitted of Counts Nine and Eleven, both involv- ing wire fraud charges, when | granted his motion for entry of judgment of acquittal as to those counts pursuant to Rule 29(a), Fed.R.Crim.Pro., on July 7, 1981 at the close of the government's case-in-chief. The jury acquitted him of Counts Two, Ten and Twelve. The jury acquitted Marcello on Counts Two through Twelve. 8 Davidson was acquitted of all twelve counts against him by the jury. Marinello was acquitted of Count eleven on July 7, 1981 when I granted his motion for entry of judgment of acquittal as to that count pursuant to Rule 29a), Fed.R.Crim.Pro. The jury acquitted him of Counts One, Two and Twelve. Young was acquitted of all counts alleged against him in the indictment when | grante! his motion for entry of judgment of acquittal pursuant to Rule 29a) on July 7, 1981. 9 In their pre-trial motions, the defendants had also sought A-62 defendant Roemer’s post-trial motion for judgment of ac- quittal. The rulings were deferred primarily so that my determination would be based on a complete evidentiary record and a complete understanding of the facts of this complex case without the necessity of conducting exten- sive and redundant pre-trial hearings that would have duplicated much of the evidence to be presented at the an- ticipated lengthy trial. United States v. Marcello, supra, 508 F.Supp. at 594. Although the defendants were provid- ed an opportunity at the post-trial hearing conducted on December 14, 1981 to present any further evidence rele- vant to their pre-trial motions,!9 no additional evidence was presented at that time and the defendants rested their motions on the substantial record developed at trial. After the trial, the convicted defendants filed lengthy post-trial motions! ! which were scheduled for hearing and argument on December 14, 1981 along with the deferred motions. In addition to the previously raised issue of artificially created federal jurisdiction, the post-trial motions included the following three general arguments: (1) The evidence presented during the trial was insufficient to support the RICO conspiracy conviction because no actual agreement to commit the requisite second predicate offense was prov- ed; (2) The jury instructions concerning certain elements (Footnote 9 continued) a dismissal of the indictment on grounds that they were prejudiced by government-initiated leaks to the news media prior to and during the grand jury investigation that led to their indictment. I denied their mo- tion to dismiss, but deferred ruling on their alternative motion for sanc- tions against the government. See United States v. Marcello, 508 F.Supp. 586, 598 (E.D.La.1981). My ruling on the defendants’ alter- native motion for sanctions is discussed at pages 1378-79. 10 See Court Record Document No. 463, at 4-5. 11 See Court Record Documents No. 448, 548, 549, 557. Counsel for defendant Marcello also indicated his desire to adopt the arguments set forth in defendant Roemer's motion and memoranda. A-63 of the RICO conspiracy conviction were insufficient; and (3) The government failed to prove either the existence of an ‘‘enterprise’’ separate from the alleged predicate of- fenses or a ‘‘pattern of racketeering activity’’ as that term is defined by the RICO statute. Governmental Overreaching and Artificially Created Federal Jurisdiction The defendants’ allegations of governmental miscon- duct or overreaching and artificially created federal jurisdiction share common legal and factual bases and re- quire substantially similar proof. Both claims touch upon the conduct of government agents in the instigation, opera- tion and maintenance of alleged criminal offenses during the Brilab investigation. Both require examination of the specific activities of these government agents in an under- cover operation, which, by its nature, required a degree of government participation, and both seek to define the boundary between permissible and impermissible govern- mental involvement. In their motions to dismiss on grounds of govern- mental misconduct and overreaching, the defendants con- tend that the government’s involvement in the Brilab scherne was so pervasive and outrageous that due process principles or the court’s supervisory power over the criminal justice system require that the indictment against them, and their resulting convictions based on that indict- ment, be dismissed. Although the Supreme Court has never applied the defense of outrageous governmental miscon- duct in a specific case to dismiss an indictment or vacate a conviction, it has recognized that a situation may arise “in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely A-64 bar the government from invoking judicial processes to ob- tain a conviction.’’ United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). In order for the defense to be invoked successfully, the egregious conduct of the law enforcement agents must be violative of our concepts of fundamental fairness and the universal sense of justice embodied in the due process clause. Jd. In a concurring opinion in Hampton v. United States, 425 U.S. 484, 495 n.7, 96 S.Ct. 1646, 1653 n.7, 48 L.Ed.2d 113 (1976), Justice Powell stated that in order for the defense to be invoked successfully in any given case, ‘‘police overin- volvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction.”’ Several courts of appeals have established that in some circumstances convictions obtained through egregious governmental misconduct in the creation and maintenance of criminal activities must be vacated. See United States v. Twigg, 588 F.2d 373 (3d Cir. 1978); United States v. Archer, 486 F.2d 670 (2d Cir. 1973); Greene v. United States, 454 F.2d 783 (9th Cir. 1971). Other courts, while recognizing the validity of the defense, have noted that it is one that ‘‘would rarely, if ever, be available.”’ United States v. Brown, 635 F.2d 1207, 1212 (6th Cir. 1980), quoting United States v. Leja, 563 F.2d 244, 246 n.4 (6th Cir. 1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1263, 55 L.Ed.2d 780 (1978). The Fifth Circuit has acknowledged that a defense of governmental misconduct grounded on concepts of due process and existing separately from the traditional defense of entrapment is available in some cir- cumstances, United States v. Meacham, 626 F.2d 503, 512 (5th Cir. 1980); United States v. Graves, 556 F.2d 1319, 1324 (5th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978), but in no case has the Fifth Circuit yet reversed a conviction on that specific ground. A-65 The defendants’ motions to dismiss on grounds of ar- tificially created federal jurisdiction have two basic com- ponents, one asserted pre-trial in very general terms, and the other argued post-trial and addressed to specifics. In their motions raised prior to trial, the defendants contend- ed that the overinvolvement of government agents in the scheme resulted in the creation and maintenance of the in- terstate commerce elements of the offenses charged in the indictment. For example, the defendants argued pre-trial that because the California firm set up by the FBI was a purely fictitious operation through which insurance con- tracts could never have been written, there could be no ef- fect on interstate commerce in reality through the dealings of the defendants with the agents. In their post-trial mo- tions, the defendants have refined their argument, concen- trating on specific evidence adduced at trial which they contend demonstrates the government's creation of the federal jurisdictional elements of the mail and wire fraud offenses that serve as predicate acts to the RICO con- spiracy of which they were convicted. The defendants argue that the government agents themselves created and caused the November 2, 1979 mailing which forms the basis of the mail fraud predicate offense and that the government manipulated the cross-country travels of government informer Joseph Hauser and the undercover agents in such a way as to create the necessity for in- terstate telephone calls the defendants caused or made to Hauser or to the agents in furtherance of the scheme. While the Fifth Circuit has never vacated a convic- tion on grounds of artificially created federal jurisdiction, it has recognized the legitimacy of the defense. United States v. Perrin, 580 F.2d 730, 737 (5th Cir. 1978), aff'd, 444 U.S. 37, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). The defen- dants, however, have relied principally on the decision of A-66 the Second Circuit in United States v. Archer, supra. 12 In Archer, federal and local law enforcement officers created an undercover operation to investigate suspected corrup- tion and public bribery in the New York City criminal justice system. Two convictions under the Federal Travel Act, 18 U.S.C. § 1952, resulted, but the Second Circuit vacated those convictions finding ‘‘manufactured federal jurisdiction” in a situation in which ‘‘the federal officers themselves supplied the interstate element and acted to en- sure that an interstate element would be present.’’ United States v. Archer, supra, 486 F.2d at 682. Federal jurisdiction in the Archer case was based primarily on three interstate or foreign telephone calls allegedly made or received by the defendants in fur- therance of the bribery scheme. The first call involved a defendant in New York who returned a telephone call made by a government agent in New Jersey. The court discarded this call as a legitimate basis for finding federal jurisdiction because the agent admitted he had gone to New Jersey for the sole purpose of getting the defendant to talk in an in- terstate phone conversation. Jd. at 674, 681-82. The second call involved attempts by a defendant in New York to reach a government agent at a Las Vegas, Nevada hotel. The court rejected these unsuccessful attempts to reach the agent in Las Vegas because the calls ‘resulted from a plant of misinformation’ which provoked calls that the defend- 12 The defendants have also placed some reliance on the opinion of the district court in United States v. Jannotti, 501 F.Supp. 1182 (E.D.Pa.1980), see Court Record Document No. 548 at 44-45, in which the district judge vacated two convictions obtained as a result of the Abscam investigation, another Justice Department ‘‘sting operation conducted at about the same time as the Brilab investigation. The ddistrict court's decision has now been reversed, however, by the United States Court of Appeals for the Third Circuit, 673 F.2d 578 (3d Cir. 1982). A-67 ant would not otherwise have made and because the agent knew that any attempt by defendant to reach him at the hotel would be fruitless because the agent would not be at the hotel and ‘‘there was not and, under the circumstances, could not have been any actual use of a facility in interstate commerce which would in fact promote, etc., any unlawful activity. Jd. at 682. The third call was from a government agent, who was in Paris, France on a legitimate, though unrelated. investigation, to a defendant in New York. Although the government agent had not been sent abroad for the sole purpose of making a foreign call that would serve to create federal criminal jurisdiction, the court re- jected it because the call was a casual and incidental occur- rence which served no real purpose in furtherance of the scheme and had in no way been initiated by the defendant. Id. at 682-83. On rehearing, the Archer court adhered to its decision reversing the convictions and dismissing the in- dictment. but limited somewhat the broad language it had used in rendering its initial opinion by noting that it had gone ‘‘no further than to hold that when the federal ele- ment in a prosecution under the Travel Act is furnished solely by undercover agents, a stricter standard is ap- plicable than when the interstate or foreign activities are those of the defendants themselves....'’ (emphasis added). Id. at 685-86. The use of paid informants and undercover opera- tives. like those employed in Brilab, is, of course, a legitimate and permissible law enforcement technique and means of investigation. See United States v. Russell, supra, 411 U.S. at 432, 93 S.Ct. at 1643. Only when the specific acts of such government agents)? reach ‘‘a demonstrable . +3 The activities of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0032%3A2. Public record. Not legal advice.