Petitioners Reply Brief — Guippone v. United States

Office - Supreme Court, U.S,

FIEED

NOV 19 @@s

No. 83-166.

ALEKaM EER STEVAS,

In the CLERK

Supreme Court of the United States.

Ocroser TERM, 1983.

ROBERT ANGELO GUIPPONE anp

ANTHONY MICHAEL PORCELLI,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Reply to the Brief of the United States in Opposition

to Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

MaprtTIN G. WEINBERG,

LILLIAN A. WILMORE,

Oren, WEINBERG & LAWSON,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Reply to the brief of the United States in opposition to

petition for writ of certiorari to the United States

Court of Appeals for the Second Circuit

I. The government's brief in opposition concedes

that the basic facts as to the denial of access to the

original tapes for independent analysis are true as

pleaded by the petitioners

II. The government erroneously argues for the first

time that petitioners seek a general rule that de-

fense access to copies of electronics surveillance

tapes is insufficient: petitioners argue that access

to the originals of electronic surveillance tapes is

required when a colorable claim is raised

III. The government argues for the first time that

there is no conflict in the circuits regarding defense

access to such original tapes because tapes are not

like other physical evidence, where the circuit

courts are divided on the standards for access for

independent analysis

IV. Neither the minimization requirement of 18

U.S.C. § 2518(5) nor momentary delay in turning

on the recording equipment explains the conceded

omissions from these tapes

V. The petitioners’ motion for independent analysis

was timely and is fully developed on the record

Table of Authorities Cited.

CASES.

Barnard v. Henderson, 514 F.2d 744 (5th Cir. 1975)

United States v. Bynum, 360 F. Supp. 400 (S.D. N.Y.

1973), aff'd, 485 F.2d 490 (2d Cir. 1973), vacated on

other grounds, 417 U.S. 903 (1974), conformed to,

386 F. Supp. 449, aff'd, 513 F.2d 533, cert. denied,

423 U.S. 952 (1975)

United States v. Focarile, 340 F. Supp. 1033 (D. Md.),

aff'd sub nom. United States v. Giordano, 469 F.2d

522 (4th Cir. 1972), aff'd, 416 U.S. 505 (1974)

United States v. Leta, 332 F. Supp. 1357 (M.D. Pa.

1971)

United States v. Manfredi, 488 F.2d 588 (2d Cir. 1973),

cert. denied, 417 U.S. 936 (1974)

STATUTES.

18 U.S.C. § 2518(5)

18 U.S.C. § 2518(8)

18 U.S.C. § 2518(8)(a)

MISCELLANEOUS.

American Bar Association Standards, Electronic Sur-

veillance § 5.13 (Authenticity)

Minimization of Wire Interception: Presearch Guide-

lines and Postsearch Remedies, 26 Stan. L. Rev. 1411

(1974)

Post-Authorization Problems in the Use of Wiretaps:

Minimization, Amendment, Sealing, and Inven-

tories, 61 Corn. L. Rev. 92 (1975)

5n

No. 83-166.

In the

Supreme Court of the United States.

OctToser TERM, 1983.

ROBERT ANGELO GUIPPONE anpb

ANTHONY MICHAEL PORCELLI,

PETITIONERS,

UNITED STATES OF AMERICA,

RESPONDENT.

Reply to the Brief of the United States in Opposition

to Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

Petitioners Robert Guippone and Anthony Porcelli hereby

respectfully make their reply to the brief of the United States

in opposition to their petition for writ of certiorari.

2

I. THe GoveRNMENT’S BRIEF IN OpposITION CONCEDES THAT

THE Basic Facts AS TO THE DENIAL OF ACCESS TO THE OnicI-

NAL TAPES FOR INDEPENDENT ANALYSIS ARE TRUE AS PLEADED

BY THE PETITIONERS.

The government's brief in opposition (hereinafter “OB.”)

seeks to characterize the issues raised by petitioners as “purely

factual” and to support that contention by presenting this

Honorable Court with a plethora of factual assertions not per-

tinent to the legal questions presented by petitioners. The on-

ly factual matter of significance to the legal questions raised is

whether the petitioners were denied access to the original

recordings of their conversations which were used to convict

them at trial. In essence, the government concedes that access

was denied and frames the question as to whether such denial

was “improper.” It does not, however, present the Court with

legal argument on the “propriety,” but rather with a series of

rationalizations and excuses for the obvious injustice.

It is significant that the government does not argue that the

facts as found by the Appeals Court are correct. It states,

rather, that “neither the court nor the parties explored the

issue thoroughly” (OB. 10 n.17). Nor does it address the lack

of a remedy for such erroneous fact-finding if this Honorable

Court does not act. See Petition, Statement of the Case, Part

C and Reasons for Granting the Writ, Part II. The reason this

vital issue was ignored, argues the government, is that the de-

fendants raised so many issues. /d. Individual rights do not

and should not hinge on the multipiicity of issues in a given

case. Further, the government begs its confusion and misun-

derstanding, i.e., “it appears that the government believed

petitioners were seeking custody of the original tapes.” Jd.

(emphasis added). That there is no basis in the record for such

belief is plain. (See appendix to petition for rehearing in the

Second Circuit Court of Appeals generally, especially Exhibit I

3

at 4, quoted in part in petition for writ of certiorari at 12.) The

strongest record reference which the government can find in

support of its alleged “belief” is the affidavit of petitioners’

electronics expert, in which the expert affirms that: “I wish to

emphasize that the integrity of the recordings and equipment

can be safeguarded since the aforesaid examination may be

made by a government designated expert in my presence.” Ap-

pendix on Appeal (hereinafter “AA.”) at 395.

II. THe GOovERNMENT ERRONEOUSLY ARGUES FOR THE FIRST

TIME THAT PETITIONERS SEEK A GENERAL RULE THAT DEFENSE

Access To Copies OF ELECTRONICS SURVEILLANCE TAPES IS

INSUFFICIENT: PETITIONERS ARGUE THAT ACCESS TO THE

ORIGINALS OF ELECTRONIC SURVEILLANCE TAPES IS REQUIRED

WHEN A COLORABLE CLAIM IS RAISED.

For the first time, the government implies that petitioners

seek to argue that defense access to copies of electronic surveil-

lance tapes would generally be insufficient (OB. 9n.15). Peti-

tioners have not, and do not raise such aclaim. The questions

raised herein center around the specific situation where de-

fendants raise a more than colorable claim, the strongest claim

they can possibly raise without expert analysis of the original

tapes, and where the only access for analysis allowed is to

copies of the tapes. Mere listening is not analysis and is a com-

pletely inadequate method of testing for authenticity and puri-

ty. The definition of a “colorable” claim and the allocation

and nature of the burden of proof in such circumstances are

legal issues fully capable of resolution by this Court and

respectfully presented to it by petitioners. There must be

clarification of the ground rules where a defendant claims and

makes a showing of impurity or of tampering with electronic

surveillances tapes.

4

II]. THe GovERNMENT ARGUES FOR THE First TIME THAT THERE

1s No CONFLICT IN THE Circuits REGARDING DEFENSE ACCESS

TO SUCH ORIGINAL TAPES BECAUSE TAPES ARE Not Like OTHER

PHYSICAL EVIDENCE, WHERE THE Circuit Courts ARE DIvIDED

ON THE STANDARDS FOR ACCESS FOR INDEPENDENT ANALYSIS.

Also for the first time, the government argues that there is

no conflict in the circuits as to the petitioners’ right of access to

such evidence, because electronic surveillance tapes are not

like other physical evidence (OB. 9). Yet the government has

nothing to say as to why electronic surveillance tapes should be

treated differently than are seized narcotics, a murder

weapon, or a bloodstain, especially where the evidence is

“critical and subject to varying expert opinion.” Barnard v.

Henderson, 514 F.2d 744, 746 (5th Cir. 1975). All physical

evidence is inherently fragile, but access for testing (not

custody) cannot be denied in fairness where a colorable claim

is raised. The trial judge was clear as to the terms and condi-

tions being sought by the defendants. His denial rested on his

view that tampering with tapes is a crude “cut and splice”

process and that the petitioners had not carried the heavy

burden he placed on them to prove that an agent intentionally

and knowingly took “the scissors” to these tapes, without ac-

cess to the original tapes for analysis (OB. 7 n.10 and OB. 11).

IV. NEITHER THE MINIMIZATION REQUIREMENT OF 18 U.S.C.

§ 2518 (5) Non MoMENTARY DeLay IN TURNING ON THE RE-

CORDING EQUIPMENT EXPLAINS THE CONCEDED OMISSIONS

FROM THESE TAPES.

The government flatly concedes that there were omissions in

the-tapes (OB. 11 n.19). It notes that the trial court suggested

that “the omissions could have resulted from minimization.”

5

Id. Petitioners urge this Honorable Court that pursuant to

18 U.S.C. § 2518(5) there would have been no reason for the

agents to minimize the petitioners’ conversations about gam-

bling. Conversations about crimes other than the one being

investigated may trigger an amendment to the warrant. Fur-

ther, minimization occurs when the agent listens to the con-

versation for a brief period of time and then makes a deter-

mination as to whether it is pertinent. Minimization would

not result in omissions from the beginning of conversations.

See affidavit of petitioners (AA. 398-399), claiming omissions

from the beginning as well as throughout conversations.

In its awareness that minimization could not lead to drop-

ping the beginning of a conversation, the government argues

that the omissions “could also have been due to the failure of

the agents to turn on the intercepting equipment as soon as a

petitioner entered the apartment, if the agents watching from

across the street miscalculated the time used to travel from the

entrance hall to the apartment” (OB. 11 n.19). Such failure

would certainly not result in the loss of more than a few sec-

onds of conversation. It does not explain omissions from con-

versations in mid-stream, nor does it account for the specific

omissions claimed by the petitioners, i.e., omissions that

caused the content and substance of their conversations to

become distorted. United States Code, Title 18, § 2518(8) (a)

condemns the practice of editing conversations to the detri-

ment of the party and of having his statements taken out of

context. See Minimization of Wire Interception: Presearch

Guidelines and Postsearch Remedies, 26 Stan. L. Rev. 1411,

1416-1417 (1974); Post-Authorization Problems in the Use of

Wiretaps: Minimization, Amendment, Sealing, and Inven-

tories, 61 Corn. L. Rev. 92, 105-106, 121-122 (1975).*

* See American Bar Association Standards, Electronic Surveillance § 5.13

(Authenticity):

Electronic surveillance techniques employed by law enforcement of-

ficers for the recording of communications uttered in private with-

6

Also see United States v. Bynum, 360 F. Supp. 400, 408-409

(S.D. N.Y. 1973), aff'd, 485 F.2d 490 (2d Cir. 1973), vacated

on other grounds, 417 U.S. 903 (1974), conformed to, 386 F.

Supp. 449, aff’d, 513 F.2d 533, cert. denied, 423 U.S. 952

(1975) (§ 2518(8) “encourages the recording of calls — with

specific procedures for sealing and storing the tapes produced

— for the protection of the individuals whose conversations

are subject to interception and recording and for guarding

against editing and later claims of distortion of segments of the

tapes,” 360 F. Supp. at 409); and United States v. Manfredi,

488 F.2d 588, 590 n.9 (2d Cir. 1973), cert. denied, 417 U.S.

936 (1974); United States v. Leta, 332 F. Supp. 1357, 1360

(M.D. Pa. 1971); and United States v. Focarile, 340 F. Supp.

1033, 1048 (D. Md.), aff'd sub nom. United States v. Gior-

dano, 469 F.2d 522 (4th Cir. 1972), aff'd, 416 U.S. 505 (1974).

Minimization is not a license to destroy or conceal exculpatory

evidence.

V. Tue PetiTioners’ MOTION FOR INDEPENDENT ANALYSIS

WAS TIMELY AND IS FULLY DEVELOPED ON THE RECORD.

For the first time in the instant case the government at-

tempts to raise the spectre of an “eleventh hour” demand for

access to the original tapes (OB. 10). Petitioners filed a timely

pre-trial notice of motion for independent analysis of the

original tapes, which was denied by Judge Owen on Decem-

ber 4, 1981 by endorsement on the first affidavit of petitioners’

electronics expert. A second affidavit of the expert was filed

on December 9, 1981. The judge denied the petitioners’ mo-

tion for independent analysis on January 7, 1982, requesting

that the parties to the intercepted conversations file affidavits

out the consent of the parties should be so employed that a complete,

accurate and intelligible record of the communication will be ob-

tained. (Emphasis added.)

7

in support of their motion. The petitioners filed affidavits on

January 13, 1982. Independent analysis of the original tapes

was fully denied (AA. 398, 964, 1191, 1251). Jury selection

commenced February 17, 1982. Motions for independent

analysis were renewed at trial and denied (AA. 964, 1251],

1191). In its brief on appeal the government made no chal-

lenge to the timeliness of the motion for independent analysis.

The government appends to its brief in opposition a “trans-

cript” of an intercepted conversation between Willard Wil-

liars and the petitioners. A fair and non-partisan reading of

this admitted “excerpt” shows Williams attempting to solicit

Porcelli to get cocaine for him, i.e., for his personal use;

Porcelli stating relievedly that he is cured from the use of co-

caine, but indicating that he knows “a guy” who had cocaine;

and Guippone trying to put Williams off and get him to stop

aggravating Porcelli about getting cocaine for him. This con-

versation is an insufficient basis for a conviction on a count of

possession or distribution of a large quantity of cocaine on that

same day, March 6. The record shows that no cocaine was

delivered to Williams by either petitioner on that day (AA.

1405, 1048). Money changed hands, but it is not clear what

the money was for. This scant “transcript” is unintelligible

(“UI”) in twenty-one different places.

Petitioners do not argue to the Court that the conversation

of March 6 said nothing about cocaine. Rather, they have

persistently pressed their defense that their relationship and

dealings with Williams were about gambling and not drugs

and that they were not guilty of the offenses charged. The

government attempts to parlay this snippet of conversation

into a massive drug-dealing conspiracy which involves the

petitioners. What is missing, omitted, and deleted is the heart

of the matter: the petitioners’ true relationship with Williams

and their innocence of the offenses charged.

8

The legal questions raised by petitioners are clear, narrow,

developed on an extensive record and fully capable of resolu-

tion by this Court. The increasing use of electronic surveil-

lance as an investigatory tool compels a conclusion that the

issues raised will recur. The government’s brief in opposition

has resolved any questions as to the basic facts underlying the

claims raised by petitioners. The guidance of this Honorable

Court is needed.

Respectfully submitted,

MARTIN G. WEINBERG,

LILLIAN A. WILMORE,

OTERI, WEINBERG & LAWSON,

75 Blossom Court,

Boston, Massachusetts 02114.

(617) 227-3700