Petition for Writ of Certiorari — Vitello v. United States

Office -Supreme Court, Us. |

84-859 — FILED

WOV 21 1964

No. ALEXANDER |. STEVAS,

tIERK

ee

In the

Supreme Court of the United States

OctTosBer TERM, 1984

FRANCIS A. VITELLO,

PETITIONER,

C.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Tuomas C. CAMERON

DiMeEnto & SULLIVAN

100 State Street

Boston, Massachusetts 02109

Attorneys for Petitioner

Blanchard Press. Inc.. Boston. Mass. — Law Printers (617) 426-6690

I

Questions Presented

1. What is the standard for suppression where a wiretap

order is insufficient on its face, under 18 U.S.C. §2518(10)

(a) (ii)?

2. Does the standard for suppression established in United

States v. Giordano, 416 U.S. 505 (1974), for “unlawful

interceptions” also apply to facially insufficient warrants?

Ill

Table of Contents

Page

ee I

Sa a II!

Se Ill

EN ]

ETE EOE Oe ee 2

Constitutional and Statutory Provisions............... 2

SITET ee ee ee 3

igs SSS Kk ls s Ain 'eie are ee ds os 3

Ne i 4

Reasons for Granting the Writ....................... 8

keh esa eaeeieur«his 14

eh oe Cee See 6 kes bO anaes 15

Opinion of the Court of Appeals................. 15

Opinion of the District Court........:.......... 16

Judgment of the Court of Appeals................ 28

TABLE OF AUTHORITIES

Cases

Berger v. New York, 388 U.S. 41 (1967)............ 12, 14

Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d

RES GEE a 5

Stone v. Powell, 428 U.S. 465 (1976).................. 6

Tirado v. C.1.R., 689 F.2d 307 (2d Cir. 1982), cert. den.

en cb anv bee eke et enens 7

United States v. Acon, 513 F.2d 513 (3d Cir. 1975)... 9, 11

United States v. Austin, 399 F.Supp. 698 (E.D. N.Y.

ey aah Cuvee hn Hb os oan nose 10

United States v. Baynes, 400 F.Supp. 285 (E.D. Pa.

ER A LS ee Vip d Sh kee a8 6 van eo 0 11

United States v. Chavez, 416 U.S. 562, 575 (1974)...... 9

United States v. Cirillo, 499 F.2d 872 (2nd Cir. 1974),

ed! | 10

IV

Page

United States v. Giordano, 416 U.S. 505 (1974)....... 7,8

United States v. Janis, 428 U.S. 433 (1976)............ 7

United States v. Lamonge, 458 F.2d 197 (6th Cir. 1972) 13

United States v. Lawson, 545 F.2d 557 (7th Cir. 1975) 11

United States v. Swann, 526 F.2d 147 (9th Cir. 1975)... 11

Vitello v. Gaughan, 414 F.Supp. 26 (D.C. Mass. 1976) 6

Vitello v. Gaughan, 544 F.2d 17 (1st Cir. 1976), cert.

SR, SE ae ees oe cn bite hia 6

Constitutional and Statutory Provisions

United States Constitution. Fourth Amendment....... 2.6

Be Se is I. 6 cs aes ce seen iwaanes 2, 8

he ig Ale ma a ee 6

EES gs ger Sree PO 6, 12

aso yay as ae soc sara 7, 8

ae A a aes kal ca 7,8

ee es ee ice ova cnkcwnk baceaua 2

EO ne oa ene ee 3

Title III, Omnibus Crime Control and Safe Streets Act

In the

Supreme Court of the United States

OcrToBer TERM, 1984

No.

FRANCIS A. VITELLO.

PETITIONER,

U.

UNITED STATES OF AMERICA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Francis A. Vitello petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

First Circuit entered in this case on September 25, 1984.

Opinions Below

The unpublished, per curiam opinion of the Court of

Appeals for the First Circuit is appended, infra, at p. 15. The

opinion of the United States District Court for the District of

Massachusetts (Keeton, J.), also unpublished, is appended,

infra, at p. 16.

2

Jurisdiction

The judgment of the Court of Appeals was entered on

September 25, 1984. This Court's jurisdiction tc review that

judgment is invoked under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

CONSTITUTION OF THE UNITED STATES

The Fourth Amendment to the United States Constitution

provides in pertinent part:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no War-

rants shall issue, but upon probable cause, supported by

Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be

seized.

Omnibus Crime Control and Safe Streets Act of 1968

Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, 18 U.S.C. § 2510-2520, provides in pertinent part:

§ 2518. [Procedure for interception of wire or oral

communications. ]

'_ 8 @© © @

(4) Each order authorizing or approving the intercep-

tion of any wire or oral communication shall specify —

(e) the period of time during which such inter-

ception is authorized, including a statement as to

whether or not the interception shall automatically

terminate when the described communication has

been first obtained.

(10)(a) Any aggrieved person in any trial, hearing or

proceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the United

3

States, a State, or a political subdivision thereof, may

move to suppress the contents of any intercepted wire or

oral communication, or evidence derived therefrom, on

the grounds that—

(i) the communication was unlawfully inter-

cepted;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or

proceeding unless there was no opportunity to make such

motion or the person was not aware of the grounds of the

motion. If the motion is granted, the contents of the

intercepted wire or oral communication, or evidence de-

rived therefrom, shall be treated as having been obtained

in violation of this chapter. The judge, upon the filing of

such motion by the aggrieved person, may in his discre-

tion make available to the aggrieved person or his counsel

for inspection such portions of the intercepted com-

munication or evidence derived therefrom as the judge

determines to be in the interests of justice.

Statement of the Case

PROCEEDINGS BELOW

Petitioner, Francis A. Vitello (Vitello), brought suit in the

United States District Court for the District of Massachusetts

under 28 U.S.C., § 1346(a)(1), seeking the refund of approxi-

mately $300,000.00 seized by the United States in partial

satisfaction of wagering excise taxes assessed against him.

Vitello argued that the documents used to make the assess-

ments could not properly be received as evidence in the case,

because they were the “fruit” of an illegal wiretap conducted

in 1972. The government counterclaimed for approximately

$1.5 million, the unpaid balance of the deficiency assessed

4

against Vitello. After several stipulations, the parties filed

cross-motions for summary judgment.

On February 24, 1984, the United States District Judge,

Keeton J., filed a Memorandum and entered Judgment for

the government on Vitello’s claims and for the government in

the amount of $1,471,914.50 on the government's counter-

claim.

The Court of Appeals for the Final Circuit affirmed, “for

substantially the reasons appearing in the district court's

opinion,” on September 25, 1984.

Facts

On April 24, 1972, an assistant district attorney for Suffolk

County applied for and received from a state court judge

authorization to intercept the wire communications of a

named individual, not the petitioner, to and from a specified

telephone number in the West Roxbury section of Boston. The

wiretap warrant specified that the interception procedure be

employed for not more than 15 days. The interception, which

was begun on April 25 and conducted by Boston police, termi-

nated nine days later on May 4, 1972. Vitello’s voice was not

overheard.

However, as a result of information obtained from this

interception, the assistant district attorney applied for and

received, on May 10, 1972. state court authorization to inter-

cept the wire communications of other named individuais, in-

cluding Vitello, to and from two specified telephones in the

Roslindale section of Boston. The assistant district attorney's

application sought permission to intercept communications

over the two telephones for fifteen days, but the wiretap war-

rant issued specified no such limitation. Rather, it provided:

“...and that such interception procedure shall not

automatically terminate when the type of communica-

tion described in the Application and Affidavit has been

first obtained, but shall continue until communications

5

are intercepted which reveal the details of said violations or

the said conspiracy and the identity of participants therein and

the extent of the violations and the location or locations in-

volved therein. . .”

The assistant district attorney’s application was neither at-

tached to the May 10 warrant nor incorporated therein by

reference.

Interceptions under the second warrant began on May 12,

1972, and lasted twelve days. Vitello’s voice was overheard

only on this second wiretap, which in turn furnished probable

cause for issuance of a warrant to physically search Vitello’s

home on May 25, 1972.

Vitello was arrested during that search, in which volumi-

nous gambling paraphernalia was seized.

Within one week of the seizure of Vitello’s records the IRS

had used them to generate asserted deficiencies and a jeopardy

assessment against Vitello for $1,730,377.30 for wagering

excise taxes alleged to be due for the period January 1, 1966 -

April, 1972. The governm.>* stipulated that the assessments

were based entirely on the seized records.

The tapes of Vitello’s conversations and the physical

evidence obtained in the resultant search of his home were first

used at Vitello’s state criminal trial on gaming charg. ;. Sup-

pression of the tapes and physical evidence was denied, and

Vitello was convicted. Commonwealth v. Vitello, 367 Mass.

224, 229, 327 N.E.2d 819 (1975).

On Vitello’s appeal to the Massachusetts Supreme Judicial

Court, the state conceded that evidence obtained from sources

other than the wiretap would not have been sufficient to

justify the physical search.

Vitello briefed and argued to the Supreme Judicial Court

the error of the trial court in denying his motion to suppress

the tapes of his conversations and the physical evidence ob-

tained in the resultant search. In “the first full review of the

State wiretapping statute,” id. at 231, the Supreme Judicial

6

Court expressly regarded as “serious and substantial,” id. at

271, Vitello’s claim with respect to the absence of a fixed

termination date in the May 10 warrant, but rejected it on the

theory that the conceded deficiency in the warrant could be

cured by reference to the underlying application, which re-

quested only fifteen days’ duration for the tap. Id. at 271-272.

Vitello then sought habeas corpus relief in the United States

District Court. On April 9, 1976 the District Court, Freed-

man, J., found the May 10, 1972 wiretap warrant to be con-

stitutionally defective, in that its failure to contain a termina-

tion date could not be cured by reference to the assistant

district attorney's application, because the application was

neither attached to nor incorporated by reference into the

warrant. Vitello v. Gaughan, 414 F.Supp. 26 (D.C. Mass.

1976).

The Commonwealth appealed the judgment ordering Vitello’s

release to the Court of Appeals for the First Circuit. While

that appeal was pending, this Court decided Stone v. Powell,

428 U.S. 465 (1976), wherein it decided that habeas corpus

relief would not be afforded to review Fourth Amendments

claims already litigated in state criminal proceedings. Ac-

cordingly, Vitello could no longer invoke Judge Freedman’s

stated basis for granting habeas relief and could only urge the

Court of Appeals to affirm on the theory that the omission of a

termination date from the May 10, 1972, wiretap warrant also

violated a federal statute, specifically 18 U.S.C., §§2518,

4(e), (5), which are Title III's provisions requiring a stated ter-

mination date and that wiretaps terminate upon attainment of

the authorized objective, or in any event within 30 days. That

Court reversed, holding that Vitello had not demonstrated

prejudice sufficient to justify habeas corpus relief, Vitello v.

Gaughan, 544 F.2d 17 (Ist Cir. 1976). This Court denied cer-

tiorari, 431 U.S. 904 (1976).

In the instant civil tax proceeding, Vitello asserted that the

wagering excise tax assessments against him could not stand

7

because the probable cause for the search, which yielded the

documents upon which the assessments were entirely based.

was the product of a wiretap whose warrant was facially in-

sufficient under 18 U.S.C. §2518(10)(a)(ii).

After having concluded that neither of the prior decisions in

the habeas proceedings was controlling on the issue before

him, District Judge Keeton concluded that the May 10, 1972

wiretap was facially deficient in that it did not specifically

identify the time period authorized, and, on its face, could be

read as authorizing an intercept of longer than 30 days, infra.

pp. 22-23, but ruled that the facial deficiency shown was in-

sufficiently grave to warrant suppression, applying to this case

the standard articulated by this Court in United States v. Gior-

dano, 416 U.S. 505 (1974) for violations of §2518(10)(a)(i),

“unlawful interception”.

Judge Keeton acknowledged that he was breaking new

ground:

“Although, as Vitello notes, Giordano and Chavez con-

cerned suppression motions under §2518(10)(a)(i), I in-

terpret them as applicable to motions under (a)(ii) as

well.” Infra, p. 23.

In a one-sentence, per curiam opinion, the Court of Appeals

for the First Circuit affirmed on September 25, 1984, “for

substantially the reasons appearing in the district court's

opinion.’ Infra, p. 15.

' The government had argued to Judge Keeton that even if the wiretap

was illegal, the documents would nevertheless be admissible in this civil tax

proceeding, citing United States v. Janis. 428 U.S. 433 (1976) and Tirado v.

C.1.R., 689 F.2d 307 (2d Cir. 1982), cert. den. 103 S.Ct. 1256 (1983). On

oral argument to the Court of Appeals. the Government conceded that Janis

and Tirado did not apply in a wiretapping context.

8

Reasons for Granting the Writ

Certiorari should be granted because the decision of the

Court of Appeals for the First Circuit concerns an important

question of federal law which has not been, but should be,

settled by this Court, and because it is in conflict with a deci-

sion from the Sixth Circuit.

The district court judge relied on United States v. Giordano,

416 U.S. 505 (1974), for the proposition that facial insufficien-

cies in wiretap warrants of a minor nature do not require sup-

pression. He then concluded that the facial deficiency here

was of insufficient gravity to justify suppression.

Vitello respectfully submits that the decision below proceeds

upon a misinterpretation of Giordano.

Title III, the Federal wiretap statute, 18 U.S.C. §§2510-

2520, requires suppression where:

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which

it was intercepted is insufficient on its face; or...

18 U.S.C. §2518(10)(a)(i), (ii).

Giordano, supra, concerned a non-facial defect in the inter-

ception process, in that the application there appeared to have

been properly authorized by an Assistant Attorney General

specially designated by the Attorney General, but that

person’s name had in fact been signed by an improper person,

the Attorney General's Executive Assistant. Suppression

under subsection (i), unlawful interception, had been ordered

in the lower courts, and the government was arguing to this

Court that approval by the wrong official is a statutory viola-

tion only, and that subsection (i) must be construed to reach

constitutional, but not statutory, violations. 416 U.S. at

525-526. The government's argument ran that since subsection

(i) must include some constitutional violations, and since

* This Court ruled that the lower court had been in error in concluding

that this was also a facial insufficiency. Id. at 525, n.14.

9

subsection (ii) must reach some statutory violations without

constitutional overtones, and since the latter cannot be con-

sidered “unlawful interceptions” under subsection (i) or

subsection (ii) would be unnecessary, it follows that there is no

basis for holding that any statutory violations fall within

subsection (i). [bid.

This Court rejected that argument, holding that subsection

(i) reaches some statutory infringements as well as constitu-

tional ones. Id. at 527.

It then became this Court’s task to define which statutory

violations are also “unlawful interceptions” under subsection

(i). This Court, in that setting, held that Congress intended to

require suppression, under subsection (i):

“where there is a failure to satisfy any of those statutory

requirements that directly and substantially implement

the congressional intention to limit the use of intercept

procedures to those situations clearly calling for the

employment of this extraordinary investigative device.”

Giordano, supra, at 527 (emphasis supplied).

Since, in Giordano, this Court accepted the arguments (1)

that subsection (ii) reaches statutory violations, and (2) that it

must reach statutory violations different from those reached

by subsection (i), or it would be unnecessary, United States v.

Chavez, 416 U.S. 562, 575 (1974), it follows that the above

definition, or standard, of statutory violations reached under

(i) cannot also be the definition, or standard, of statutory

definitions reached by subsection (ii).

In United States v. Acon, 513 F.2d 513 (3rd Cir. 1975), the

Third Circuit approached applying the Giordano, subsection

(i), standard to a subsection (ii) case:

“This language [from Giordano] does imply that

paragraphs (ii) and (iii) must reach violations of some

provisions of Title III which do not directly and substan-

tially implement the congressional intent to limit use of

10

wiretaps. Despite this intention to extend (10)(a)(ii)

further than 10(a)(i), we do not conclude that suppres-

sion is required for every minor facial insufficiency.” 513

F.2d at 517.

The district judge in the instant case took the final step

toward blurring the distinction which this Court took pains to

draw in Giordano between subsections (i) and (ii):

“Although, as plaintiff notes, Giordano and Chavez con-

cerned suppression motions made under §2518(10)(a)(i),

I interpret them as applicable to motions under (a)(ii) as

well.” Infra, p. 23.

Vitello submits that Congress intended that suppression

follow from all facial insufficiencies, not an unnecessarily

harsh result when all that must be done to avoid that sanction

is put into the warrant what Title III says to put into it. Vitello

further submits that Congress’ intent is controlling where the

statute is unambiguous.

The argument that this Court has tolerated a middle ground

by denying certiorari, 419 U.S. 1056 (1974), in United States

v. Cirillo, 499 F.2d 872 (2nd Cir. 1974), does not bear

scrutiny. In Cirillo, language, directing that the interception

be conducted in such a manner as to minimize the interception

of non-criminal conversations, was omitted from the warrant,

an apparent facial deficiency. However, Cirillo is distinguish-

able from the instant case in that the Second Circuit panel

addressed the issue not in terms of Title III, but rather of New

York’s state wiretapping statute, and drew no distinction be-

tween “unlawful interception” and “facial insufficiency.”*

fhus, there is little basis for reading into the denial of cer-

tiorari in Cirillo any revelations about what Congress meant

by prescribing suppression for facial insufficiency.

* The same is true of United States v. Austin. 399 F.Supp. 698 (E.D. N.Y.

1975), also cited by the district judge below.

1]

However, even if this Court had indicated a willingness to

forgive some facial insufficiencies, it certainly did not, by

Giordano, intend to severely limit the availability of suppres-

sion in subsection (ii) situations, to:

“ _failure[s] to satisfy any of those statutory require-

ments that directly and substantially implement the con-

gressional intention to limit the use of intercept pro-

cedures to those situations clearly calling for the employ-

ment of this extraordinary investigative device.” Gior-

dano, supra, at 527.

A careful reading of Giordano, particularly 416 U.S. at

524-527, demonstrates that the district judge expressly applied

the wrong standard to this subsection (ii) case.

Vitello has argued, supra, that any facial insufficiency re-

quires suppression. If he is correct, then United States v. Acon,

513 F.2d 513 (3rd Cir. 1975), and its progeny‘ were errone-

ously decided. However, even if those cases were correctly de-

cided, they do not necessarily control here. It may be possible

that actual compliance with the substantive requirements of

authorization by a proper official suffices to overcome a

“minor” or “technical” facial defect consisting of an

unauthorized person having done the ministerial act of signing

the authorization. Equally, “substantial compliance” with

provisions in Title III designed to result in minimization may

overcome the somewhat cumulative requirement that the war-

rant contain a minimization directive.

There is nothing minor, technical or cumulative, however,

about failing to limit the discretion of the officers executing

the warrant. The omission from the warrant of a termination

date, in such a manner as to affirmatively command the

officers executing it to keep listening to Vitello’s conversations

* United States v. Lawson, 545 F.2d 557 (7th Cir. 1975) (unauthorized ap-

plicant); United States v. Swann, 526 F.2d 147 (9th Cir. 1975) (per curiam)

(unauthorized applicant); United States v. Baynes, 400 F. Supp. 285 (E.D.

Pa. 1975) (minimization language missing).

12

until the details and extent of the violations were ascertained,

infra, pp. 4-5, was a failure to satisfy two of the major bases of

Berger v. New York. 388 U.S. 41 (1967).

Title III was designed by Congress in direct response to

Berger to provide the judicial supervision and procedures

found lacking there.

The Berger Court had four major objections to the New

York statute, one of which was the absence of a termination

provision:

“Third, the statute places no termination date on the

eavesdrop once the conversation sought is seized’,

Berger, supra. 59-60.

Another of the four major concerns in Berger was with the

general nature of wiretap warrants under the New York pro-

cedure:

“Secondly, authorization of eavesdropping for a two-

month period is the equivalent of a series of intrusions,

searches and seizures pursuant to a single showing of

probable cause.” Id. at 59.

Congress directly addressed this Court’s concern about termi-

nation dates in Title III by requiring that the wiretap warrant

specify:

“(e) the period of time during which such interception is

authorized, including a statement as to whether or not

the interception shall automatically terminate when the

described communication has been first obtained.”

§2518(4)(e).

Congress then sought to avoid general warrants by means of

§2518(5):

“No order entered under this section may authorize or ap-

prove the interception of any wire or oral communication

for any period longer than is necessary to achieve the

13

objective of the authorization, nor in any event longer

than thirty days. Extensions of an order may be granted,

but only upon application for an extension made in

accordance with subsection (1) of this section and the

court making the findings required by subsection (3) of

this section. The period of extension shall be no longer

than the authorizing judge deems necessary to achieve the

purposes for which it was granted and in no event longer

than thirty days. Every order and extension thereof shall

contain a provision that the authorization to intercept

shall be executed as soon as practicable, shall be con-

ducted in such a way as to minimize the interception of

communications not otherwise subject to interception

under this chapter, and must terminate upon attainment

of the authorized objective or in any event in thirty days.”

Vitello submits that the omission, inadvertent or otherwise,

of a termination date in such a manner as to unambiguously,

affirmatively order the officers to continue eavesdropping

until satisfied that they had fathomed the full extent of the

violations, infra, pp. 4-5, resulted in an open-ended order re-

quiring a general exploratory search. This, in turn, directly

impinged upon two of the four major considerations which

concerned this Court in Berger, supra. The viclation was

anything but “minor or technical”.

It is essential to the orderly administration of justice that

this Court either recognize that all facial insufficiencies re-

quire suppression, or establish a Giordano-like standard for

facial insufficiencies which will include, at the very least,

violations of the concerns addressed in Berger.

The decision below, in forgiving the omission of a termina-

tion date as a “minor or technical” facial insufficiency, is also

in conflict with United States v. Lamonge, 458 F.2d 197 (6th

Cir. 1972), where the wiretap warrant bore no date, ap-

parently through inadvertence. Because it permitted intercep-

tions for a period of “eight days from the date of this order,”

14

the Sixth Circuit Court of Appeals ruled that the absence of a

date made its duration unlimited by its own terms, and appar-

ently authorized a wiretap for an unreasonable length of time,

rendering it invalid under Berger, supra.

Conclusion

Because the courts below have purported to settle an impor-

tant question of federal law which has not been, but should

be, settled by this Court, i.e., the standard for suppression for

facially insufficient wiretap warrants, and because of the con-

flict with the decision of the Sixth Circuit, the petition for a

writ of certiorari should be granted.

Respectfully submitted,

THomMas C. CAMERON

DiMEnTO & SULLIVAN

100 State Street

Boston, Massachusetts 02109

Attorneys for Petitioner

November 24, 1984

15

APPENDIX

United States Court of Appeals

a Sor ts Hane Cael P

No. 84-1320

FRANCIS A. VITELLO,

PLAINTIFF, APPELLANT,

v.

UNITED STATES OF AMERICA,

DEFENDANT, APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rospert E. Keeton, U.S. District Judge]

Before

CAMPBELL, Chief Judge,

Cowen,®* Senior Circuit Judge,

and Breyer, Circuit Judge.

Thomas C. Cameron, with whom DiMento ¢ Sullivan, was on

brief, for appellant.

Lisa A. Prager, Attorney, Tax Division, U.S. Department of

Justice, with whom William F. Weld, United States Attorney,

Glenn L. Archer, Jr., Assistant Attorney General, Michael L. Paup,

Attorney, Tax Division, and Carleton D. Powell, Attorney, Tax

Division, were on brief, for appellee.

September 25, 1984

PER CuriAM. Substantially for the reasons appearing in the

district court’s opinion, the decision of the district court is

affirmed.

* Of the Federal Circuit, sitting by designation.

16

UNitepD STATES Districr Court

District OF MASSACHUSETTS

Civit Action Nos. 77-3913-K

77-1137-K

FRANCIS A. VITELLO,

PLAINTIFF

v.

UNITED STATES OF AMERICA,

DEFENDANT

MEMORANDUM

FEBRUARY 24, 1984

These consolidated cases come before me on cross-motions

for summary judgment, in both cases. Vitello has sued to

recover approximately $300,000 that was seized by the govern-

ment in partial satisfaction of wagering excise taxes assessed

against him. The United States has counterclaimed for

approximately $1,470,000, the unpaid balance of the defi-

ciency assessed against plaintiff.

No material questions of fact exist. Not even in alternative

argument does either party call attention to any allegedly

material dispute of fact. The parties do not dispute the amount

of the wagering tax assessments. The only issue is the legal

question whether the documents used to make the assessments

may properly be received as evidence in this proceeding. The

basis of plaintiffs challenge to this evidence is that it is the

“fruit” of an illegal wiretap conducted in 1972.

The wiretap was conducted as part of an investigation by

the Boston City Police into suspected gambling activity. On

April 24, 1972, upon application of Robert Snider, then the

assistant district attorney of Suffolk County, Judge Lurie of

Suffolk Superior Court issued a warrant authorizing an inter-

ception lasting fifteen days. Docket No. 24, Ex. D at D-31.

ae

tone”

17

Based on information obtained from this wiretap, Snider on May

10, 1972 applied for a warrant to tap two more phone numbers.

In the course of his affidavit ir: support of that application,

Snider stated that “the interception is required to be maintained

for a period of 15 calendar days... .” Id. at D-38. At this point,

although the police had begun to suspect the involvement of

plaintiff in the conspiracy, his voice had not been heard on the

wiretap. See Aff. of Det. O’Malley, Ex. D. at D-44. Judge Lurie

signed a warrant presented to him by Snider authorizing the

wiretap of the two numbers. The warrant did not state that it

would terminate in fiteen days. Instead, it stated

that such interception procedure shall not automatically

terminate when the type of communication described in

the Application and Affidavit has been first obtained, but

shall continue until communications are intercepted which

reveal the details of said violations or the said conspiracy

and the identity of participants therein and the extent of the

violations and the location or locations involved

therein... .

Snider's affidavit filed in support of the government's motions

for summary judgment states that the termination language

that had appeared in the earlier affidavit was omitted through

clerical oversight and that he failed to notice the error because

of time pressures. Snider Aff., Ex. E at E2-3. This position is

also supported by the opinions of the Supreme Judicial Court

in Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819,

846 and the First Circuit in Vitello v. Gaughan, 544 F.2d 17

(Ist Cir. 1976), cert. denied 431 U.S. 904 (1977). It is an un-

disputed fact that the wiretaps authorized by this warrant

actually began on May 12, 1972 and lasted 12 days. The

wiretaps produced evidence against Vitello which provided

probable cause to search his home. That search was conducted

on May 25, 1972. During that search, various incriminating

items, including the documents on which this deficiency

assessment was based, were seized.

18

Vitello was tried and convicted for several violations of the

state gaming laws. That conviction was affirmed by the

Supreme Judicial Court in Commonwealth v. Vitello, 327

N.E.2d 819. In that appeal, plaintiff asserted that the May 10

warrant was invalid because of the lack of a definite termina-

tion date. The Supreme Judicial Court referred with approval

to the findings of the trial judge that this omission was an

unintentional product of “error and inadvertence,” 327

N.E.2d at 846, and concluded that the warrants were valid. It

reasoned that since the supporting affidavit had specified a

15-day limit, the warrant, if read in conjunction with this affi-

davit, was properly limited. Id.

Vitello then filed a petition for habeas corpus in this district,

raising once again the issue of the termination date. Judge

Freedman found that the Supreme Judicial Court's conclusion

that the warrant and the affidavit could be read in conjunc-

tion was contrary to federal law. Because he concluded that

the warrant was invalid, he granted Vitello’s petition. Vitello

v. Gaughan, 414 F. Supp. 26 (D. Mass. 1976). On appeal, this

ruling was reversed. Vitello v. Gaughan, 544 F.2d 17. The

Court of Appeals stated: “We hold that whether or not the

state court erred, as a matter of federal law, in reading the

warrant and application together, petitioner is not entitled to

release since the error, if any, was not prejudicial.” Jd. at 18.

In context, however, the First Circuit decision cannot fairly be

read as holding that admission of the fruits of the wiretap did

not affect the outcome of the criminal proceeding. Indeed, it

has been obvious throughout all these related proceedings that

exclusion of the documents seized as a result of the search war-

rant obtained on the basis of the wiretaps would have de-

cisively altered the outcome. The holding of the First Circuit

was, instead, that error, if any, either as to the stated basis of

the Supreme Judicial Court’s decision (reading the warrant

and application together) or as to the clerical mistake in omit-

ting to state a limit on the duration of the wiretap was not

etl

19

prejudicial. It is clear that the First Circuit held that federal

law did not require exclusion of the documents in question in

the state criminal proceedings.

A ditferent legal issue is presented here. Does federal law re-

quire exclusion of the documents in question in federal tax

proceedings?

The government argues that plaintiff is collaterally es-

topped from challenging the legality of the wiretap warrant

by virtue of the adverse ruling in Commonwealth v. Vitello,

’ 327 N.E.2d 819. The ruling there was, however, on a legal

issue different from the one before me now. Likewise, Vitello’s

argument that Judge Freedman’s holding is decisive here must

be rejected because his ruling was on a legal issue different

from that now before me. Moreover, his ruling could not have

preclusive effect for the additional reason that his judgment

was reversed. The grounds of the First Circuit decision cannot

properly be interpreted as leaving Judge Freedman’s deter-

mination binding on the parties.

I.

The first question I consider is whether I should suppress the

challenged evidence were I to conclude that there was a viola-

tion of federal law.

The government argues that because the alleged defect was

caused by the action of state officials, the evidence need not be

suppressed in unrelated federal proceedings under the au-

thority of United States v. Janis, 428 U.S. 433, reh. denied 429

U.S. 874 (1976).

I reject this argument as inconsistent with the relevant

language of the federal wiretap statute.

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communica-

tion and no evidence derived therefrom may be received

in evidence in any trial, hearing or other proceeding in or

20

before any court...of the United States...if the

disclosure of that information would be in violation of

this chapter.

18 U.S.C. § 2515 (emphasis added). The plain meaning of this

statute is that any information obtained in violation of the

statute cannot be used in a federal court proceeding. Since the

federal statute explicitly applies to state officials, 18 U.S.C.

§ 2516(2), any failure on their part to conform to the statute

violates the federal law and makes evidence so obtained

inadmissible.

It is true that evidence obtained by state officials in violation

of the Fourth Amendment may, under Janis, be used in

federal proceedings if no federal officials were involved in the

illegality and if the offending state officials were not

motivated by a desire to obtain evidence for federal use. This is

so because the purpose of the judicially-created exclusionary

rule is to deter officials from violating the Fourth Amendment.

The Supreme Court had found that forbidding the federal

government from using such evidence does not significantly

deter the conduct of state officials.

However, the exclusionary rule of Title II] was framed by

Congress with more than deterrence in mind. Section 2515

was passed “not only to protect the privacy of communica-

tions, but also to insure that the courts do not become partners

to illegal conduct.” Gelbard v. United States, 408 U.S. 41, 51

(1972); In re Harkins, 624 F.2d 1160, 1166 (3d Cir. 1980).

Further, Congress was concerned about “electronic surveil-

lance, as an insidious invasion of privacy to be singled out for

special scrutiny and safeguards.” In re Lochiatto, 497 F.2d

803, 807 (Ist Cir. 1974).

The fact that this notion of “preserving judicial integrity” is

no longer the primary focus in determining the applicability of

the exclusionary rule does not govern the interpretation of

§ 2515. In cases of suppression of wiretap evidence. “[t)he

issue does not turn on the judicially fashioned exclusionary

21

rule aimed at deterring violations of Fourth Amendment

rights, but upon the provisions of Title III... .” United States

v. Giordano, 416 U.S. 505, 524 (1974). The Court cited

legislative history, which states that, even though Congress

did not intend “to press the scope of the suppression role

beyond present search and seizure law,” it did intend § 2515

to “apply across the board in both Federal and State Pro-

ceeding{s]... And it is not limited to criminal proceedings.

Such a suppression rule is necessary and proper to protect

privacy.” S. Rep. No. 1097, 90th Cong., 2d Sess., 96, 106

(1968), quoted in Giordano, 416 U.S. at 528 n.17. The Janis

decision, limiting the reach of the exclusionary rule, came

after the passage of Title III. A judicially-defined limitation on

a judicially-created rule does not apply to a separate,

statutorily-mandated exclusionary rule, which was based on

considerations and policies particularly relevant to the ques-

tion of wiretap use.

Congress has framed statutory limits on the use of electronic

surveillance that are in some respects more stringent than

those imposed by the Fourth Amendment. For instance,

§ 2515 expressly applies to grand jury proceedings, although

the Fourth Amendment exclusionary rule does not. United

States v. Calandra, 414 U.S. 338, 355-56 n.11 (1974). Thus, I

conclude that if the state officials violated Title III and the

evidence relied on by the government here is the “fruit” of that

illegality, I will be required to suppress the evidence in

question.

I turn now to the substantive legal question presented by the

cross-motions for summary judgment in these ~onsolidated

cases. That question is whether the omission of a termination

date from the wiretap warrant violated Title III in such a way

as to mandate suppression of the fruits of that warrant.

22

The relevant statutory provisions state that each order

authorizing interception “shall specify...the period of time

during which such interception is authorized, . . .” § 2518(4)(e).

Further, this statute states that “[n]o order entered under this

section may authorize or approve the interception of any wire

or oral communication for any period longer than is necessary

to achieve the objective of the authorization, nor in any event

longer than thirty days.” § 2518(5). An aggrieved person may

seek to suppress evidence obtained from a wiretap if “(i) the

communication was unlawfully intercepted; [or] (ii) the order

of authorization or approval under which it was intercepted is

sufficient on its face... .” § 2518(10)(a).

I conclude that the interception was not “unlawfully” con-

ducted within the meaning of § 2518(10)(a)(i). The intercep-

tion lasted only 12 days, well within the statutory limit. Fur-

ther, I conclude that there is no basis in any available evidence

for finding that Judge Lurie intended to authorize an intercep-

tion longer than that permissible under § 2518(5). The appli-

cation only requested a 15-day warrant and the earlier war-

rant had only authorized a 15-day intercept. I note the state

trial court also found that Judge Lurie was unaware of the

absence of a time limit in the warrant when he signed it. Com-

monwealth v. Vitello, 327 N.E.2d at 846. Also, I conclude

that there is no basis in any available evidence for finding that

the state officials seeking the warrant intended to or did

mislead the judge about the nature of the intercept he was

authorizing. Also, I note that at the time Snider applied for the

warrant, he would have had every reason to believe that a

15-day intercept would be sufficient. The first wiretap, lasting

only 9 days, had intercepted numerous incriminating conver-

sations emanating from the two phone numbers which were

covered by the second warrant.

As to the facial sufficiency of the warrant, I conclude that

the order is deficient in that it does not specifically identify the

time period authorized and, on its face, could be read as

23

authorizing an intercept of longer than 30 days. However,

suppression does not automatically follow from this conclu-

sion. Suppression is not required for every facial insufficiency.

United States v. Acon, 513 F.2d 513 (3d Cir. 1975); United

States v. Cirillo, 499 F.2d 872 (2d Cir.), cert. denied 419 U.S.

1056 (1974). I must proceed to consider the gravity of the

facial insufficiency in this case.

The Supreme Court has determined that suppression is re-

quired “where there is failure to satisfy any of those statutory

requirements that directly and substantially implement the

congressional intention to limit the use of intercept procedures

to those situations clearly calling for the employment of this

extraordinary investigative device.” United States v. Gior-

dano, 416 U.S. 505, 527 (1974). See also United States v.

Donovan, 429 U.S. 413, 433-34 (1977). The Court gave an

example of the application of that rule in Giordano’s com-

panion case, United States v. Chavez, 416 U.S. 562 (1974). In

Chavez, the warrant violated § 2518(4)(d) in that it misiden-

tified the person who had authorized the application for the

warrant. The Court, however, in part relied on the fact that

the application had actually been authorized by an official

with statutory powers to do so. This compliance with the

substantive requirements of Title III was a critical considera-

tion in determining not to suppress. Although, as plaintiff

notes, Giordano and Chavez concerned suppression motions

made under § 2518(10)(a)(i), I interpret them as applicable to

motions under (a)(ii) as well. See Acon, 513 F.2d at 517.

Courts have found on numerous occasions that technical

violations of Title III do not warrant the extreme remedy of

suppression. For instance, facial errors in identifying the per-

son authorizing application for the warrant have not led to

suppression when there has been actual compliance with the

substantive requirements of authorization by a proper official.

United States v. Lawson, 545 F.2d 557, 62 (7th Cir. 1975);

United States v. Swann, 526 F.2d 147, 149 (9th Cir. 1975) (per

curiam); Acon, 513 F.2d at 517.

24

Other courts have determined that where a warrant does

not contain sufficient language directing officials to minimize

interceptions of conversations not relevant to the investigation,

this does not automatically mandate suppression. United

States v. Cirillo, 499 F.2d at 879; United States v. Baynes, 400

F. Supp. 285 (E.D. Pa. 1975); United States v. Austin, 399

F. Supp. 698, 701 (E.D.N.Y. 1975). In these cases, the courts

found tk .t because the agents conducting the wiretap had in

fact p-operly minimized interception of irrelevant conversa-

tions, they had been in “substantial compliance” with the

statute.

In addition to considering the conformity of the govern-

ment’s actions with the substantive requirements of Title III,

courts have looked to other factors in determining whether

suppression is warranted, chiefly the prejudice to the persons

subjected to the intercept and the good faith of the govern-

ment. See, e.g., United States v. Caggiano, 667 F.2d 1176,

1179 (5th Cir. 1982) (per curiam); United States v. Chun, 503

F.2d 533, 542 (9th Cir. 1974).

In applying all these considerations to this case, I conclude

that suppression is not warranted. I recognize that § 2518(5)’s

limitation on the length of the interception is clearly an impor-

tant, substantive aspect of the statutory scheme. Without

doubt, if the intercept had lasted longer than the 30 days per-

mitted by statute, and proper extensions had not been

obtained, then suppression would be warranted. Similarly, if

state officials had sought or Judge Lurie had granted, an order

that in fact authorized an intercept for longer than was

statutorily permissible, suppression would be a proper

remedy. But the undisputed circumstances of this case do not

present those issues. Instead, the only violation that could be

found on the evidence in this case is the facial insufficiency of

the order and the warrant—the fact that, because of in-

advertence, the order and warrant lacked notice that the

judicial authorization to conduct the intercept terminated

after 15 days.

25

I conciude under the circumstances that this omission of a

specific time limit from the face of the warrant did not violate

a substantial requirement of Title III. The actual conduct of

the wiretap was in all ways proper. The intercept terminated

well within both the outside time limits imposed by the statute

and the shorter limit which Judge Lurie intended to authorize.

Also, as noted earlier, there was no real tactical advantage in

seeking an open-ended warrant because the government could

reasonably have expected that the objects of the intercept

would be achieved within 15 days.

Further, I conclude there was no prejudice to Vitello from

the error. Since he was not entitled to learn of the terms of the

warrant until after the intercept ended, § 2518(8)(d)(2), he

cannot maintain that the error denied him any information

about the authorized intrusion on his privacy. Compare In re

Application of Lafayette Academy, 610 F.2d 1, 5 (1st Cir.

1979) (specificity required in warrant to search place in order

to inform owner of the scope of the authorization at time

search was executed). Secondly, plaintiff was not legally en-

titled to have the intercept limited to any period shorter than

the 30 days authorized by statute. His rights under the statute

were thus not violated. United States v. Carubia, 377 F. Supp.

1099, 1107 (E.D.N.Y. 1974).

The only prejudice plaintiff claims is that Judge Lurie might

have intended to authorize an intercept for a period shorter

than the 15 days requested. Docket No. 29 at 9. No evidence is

proffered, however, to support such a speculation. Indeed, if

Judge Lurie had intended to alter the time limit from that re-

quested by Snider and authorized in the earlier warrant, he

would no doubt have considered the section of the warrant

dealing with time limitations before signing it and thus would

have discovered the omission.

The only danger arising from the warrant’s failure to state

specifically the time limitation is that the judicial order does

not on its face notify the executing officers of the scope of their

26

authority to intercept. One of the principal functions of a war-

rant is to “circumscribe the discretion of the executing

officer.” Lafayette Academy, 610 F.2d at 5. In this case,

however, I conclude that the danger of unbridled discretion

arising from the omission was minimal and in any event did

not materialize. There is no basis in evidence for a finding that

the officers executing the second warrant operated under the

belief that they were authorized to maintain the tap for longer

than 15 days. This is particularly true because of the short time

period elapsing between the signing of the two warrants and

the overlap of investigative personnel involved in both in-

tercepts. Detective O’Malley, who swore out affidavits in sup-

port of both warrants and who cooperated with Snider on the

application, participated in the interception process, Com-

monwealth v. Vitello, 327 N.E.2d at 847 n.27. He thus knew

that a 15-day warrant was applied for and intended.

More importantly, the omission of a definite time limit,

unlike the overbroad description of documents to be seized in

Lafayette Academy, is not the kind of insufficiency which in-

vited abuses of discretion by executing officers. Had the offi-

cers taken advantage of the omission by extending the in-

tercept longer than 15 days, that abusive conduct would have

been easily detected. I note that, in this respect, the facial in-

sufficiency of the warrant presented here is less problematic

than the omission of specific minimization language in the

warrants upheld in Cirillo and Baynes. Minimization

ianguage is obviously required to circumscribe police activity

and prevent the warrant from being an unconstitutional

“general warrant.” Yet, in those cases, even though minimiza-

tion language was omitted, the courts looked to the actual cir-

cumstances of the case, including the compliance with the

substantive provisions of the statute, to determine if suppres-

sion were warranted.

In conclusion, I emphasize the narrowness of this holding.

The fact that I do not suppress this evidence does not in any

27

way condone inadvertence by law enforcement officials or

minimize the need for scrupuious government conduct in the

highly sensitive area of electronic surveillance. As the Supreme

Court has noted, “strict adherence by the Government to the

provisions of Title III would nonetheless be more in keeping

with the responsibilities Congress has imposed upon it when

authority to engage in wiretapping or electronic surveillance is

sought.” Chavez, 416 U.S. at 580. I have rested my conclu-

sions here on the undisputed facts that the omission was a

technical, clerical error that was not intended by the officials

in charge and did not realistically benefit their activities; that,

in all other respects, the investigating officers acted in strict

compliance with applicable law; and that plaintiffs rights

were not prejudiced in any discernible way by the error. Were

any of these factors missing, a contrary conclusion might well

have been reached.

Therefore, I conclude that summary judgment must be

granted on behalf of the defendant.

(s) RoBert E. KEETON

Unitep States District JUDGE

28

United States Court of Appeals

For the First Circuit P

No. 84-1320

FRANCIS A. VITELLO,

PLAINTIFF, APPELLANT,

v.

UNITED STATES OF AMERICA,

DEFENDANT, APPELLEE.

JUDGMENT

ENTERED: SEPTEMBER 25, 1984

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and was

argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as foilows: The decision of the district

court is affirmed.

By the Court:

FrANcIs P. ScIGLIANO, Clerk.

[cc: Mr. Cameron and Ms. Prager. |