Appendix — Harvey v. United States

i fA . _

86 -316 | % Supreme Court, US.

Wie FILED

]' AUG 28 1988

| | JOSEPH F. SPANIOL, JR.

NO. CLERK ie

in the

— Supreme Court

of the

United States

OCTOBER TERM, 1986

WILLIAM JOSEPH HARVEY,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO |

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

August 27, 1986

Of Counsel:

JAMES J. HOGAN

G. ROBERT BLAKEY Executive Plaza, Suite 300

3050 Biscayne Boulevard

Miami, Florida 33137

(305) 576-7260

Attorney for Petitioner

Professor of Law

Notre Dame Law School

Notre Dame, Indiana 46556

(219) 239-5717

pineal wlantea nS

UNITED STATES of America,

Plaintiff-A ppellee,

v.

Marion VAN HORN, Scott Bertelsen, Gary Balough,

Dennis Kay. Robert Van Horn, Dennis Cason, Thomas

Sikes, John Crosby Bertelsen, Joseph William

Campbell,

Defendants-A ppellants.

UNITED STATES of America,

Plaintiff-A ppellee,

v.

William Joseph HARVEY, a/k/a Billy,

Defendant-A ppellant.

Nos. 83-5102, 84-5138.

United States Court of Appeals,

Eleventh Circuit.

May 23, 1986.

Defendants were convicted in the United States

District Court for the Southern District of Florida,

Sidney M. Aronovitz, J., 560 FSupp. 1040, of various

charges stemming from marijuana importation and

distribution ring, and they appealed. The Court of Appeals,

Kravitch, Circuit Judge, held that: (1) affidavit in support

of electronic surveillance order was sufficient under

Title III; (2) omission of page from affidavit showing

App. 1

that Government intended to disclose prior state wiretap

did not mandate suppression of subsequently intercepted

communications; (3) severance of trials from that of

another defendant was not required on basis of compelling

prejudice; (4) defendants were not entitled to disclosure

of type of microphone and location of microphone from

which electronic surveillance was made: and (5) evidence

supported convictions of conspiracy to make false

statements.

Affirmed.

See also, 544 F.Supp. 189.

1. Telecommunications —516

To meet necessity requirement for electronic

surveillance under Title III, affidavit need not show a

comprehensive exhaustion of all possible investigative

techniques, but must simply explain retroactive or

prospective failure of several techniques that reasonably

suggest themselves. 18 U.S.C.A. §2518(1)(c).

2 Telecommunications —516

Affidavit met necessity requirement for electronic

surveillance under Title III of office of defendant suspected

of masterminding marijuana importation and distribution

ring, as affidavit set forth numerous facts showing that

ordinary surveillance techniques had been attempted

and had failed. 18 U.S.C.A. §2518(1\(c).

App. 2

3. Telecommunications —519

Under Title III, district court is not required to

terminate a surveillance whenever it receives a report

of no progress. 18 U.S.C.A. §§ 2510-2520, 2518(1\(e).

4. Telecommunications —527

Progress reports district court requested in

authorizing electronic surveillance were not required

by Title III, but were ordered at discretion of district

judge; thus, import of progress reports was also a matter

within discretion of district court. 18 U.S.C.A. §2518(6).

5. Telecommunications —515

District court was within its discretion in determining

that information in affidavit justified 30 days of electronic

Surveillance of office of defendant suspected of

masterminding marijuana importation and distribution

ring, as it set forth continuing criminal enterprise,

operating over long period of time; thus, affidavit set

out probable cause as required under Title III. 18 US.C.A.

§2518(1)(b)(i).

6. Telecommunications —515

Defendant’s temporary absence did not negate

probable cause showing required for electronic

surveillance, under Title III, of defendant's office on

suspicion of masterminding marijuana importation and

distribution ring, as FBI stated in its progress reports

that it believed defendant would return shortly, and

affidavit set forth three other employees of defendant’s

business as possible conspirators who could have been

App. 3

overheard in-office even during defendant’s absence. 18

U.S.C.A. §2518(1)(b)(i).

7. Telecommunications —530

District court was not clearly erroneous in finding

that FBI did not know that defendant was a named

target of state Title III wiretap authorization, thereby

supporting conclusion that had such information been

disclosed in federal electronic surveillance application,

it would have met requirement of Title III that previous

applications for surveillance be disclosed. 18 U.S.C.A.

§2518(1)(e).

8. Criminal Law —394.3

Suppression is not mandated by inadvertent

noncompliance with Title III requirement that prior

applications for electronic surveillance be disclosed. 18

US.C.A. §2518(1)e).

9. Criminal Law —394.5(4)

Party seeking suppression on basis that affidavit

in support of search warrant omitted something bears

burden of showing omission was more than negligent.

10. Telecommunications —514

Omission, from affidavit in support of electronic

surveillance under Title III, of information of state

wiretap on phone of an individual who was alleged

participant in defendant's drug ring, did not require

district court to infer recklessness so as to render

App. 4

affidavit insufficient under Title III’s disclosure section,

as that information, contained on missing page of affidavit,

was referred to in subsequent progress reports, and

there was no evidence that government agents failed to

proofread or otherwise properly examine the affidavit.

18 U.S.C.A. §§ 2510-2520, 2518(1)(e).

11. Telecommunications —520

Agents complied with requirement for electronic

surveillance under Title III that the surveillance be

properly minimized, as logs and testimony supported

conclusion that agents ceased monitoring conversations

they determined to be nonpertinent to alleged drug

ring, and defendants produced no evidence of specific

conversations which agents should not have monitored.

18 U.S.C.A. §§ 2510-2520, 2518(5).

12. Telecommunications —514

That district judge who authorized initial electronic

surveillance under Title III was outside district when

he executed order extending wiretap did not invalidate

the extension. 18 U.S.C.A. §§ 2510-2520, 2518(3).

13. Telecommunications —514

Florida law authorizes surveillance for marijuana

offenses, and thus government's application for extension

of electronic surveillance order under Title III was not

tainted by referring to state wiretap. 18 U.S.C.A. §§

2510-2520, 2516(2); West’s FS.A. §934.07.

App. 5

14. Telecommunications —520

Continuing approval of district court which authorized

electronic surveillance under Title III met requirement

of statute’s judicial approval limitation, which prevents

incidental interception of conversations for which

government has shown no probable cause, as authorizing

judge received both progress reports and applications

for extension, they described nature of conversations

being intercepted, and authorizing judge twice extended

the surveillance after reviewing conversations and

determining that they were properly intercepted. 18

US.C.A. §§ 2510-2520, 2517(5).

15. Criminal Law —394.3

No special approval is required before submission,

to state courts, of application to use state evidence

under section of Title III providing for judicial approval

for use of evidence obtained through a state wiretap.

18 U.S.C.A. §§ 2510-2520, 2517(5).

16. Criminal Law —394.3

State judge, in authorizing federal agents to use

evidence obtained through state wiretap, complied with

section of Title III requiring judicial approval, as state

judge expressly found that interceptions related to

federal charges were “intercepted incidentally,” and, as

same judge who had authorized state wiretap, was in a

position to know whether state agents had properly

executed state wiretap. 18 U.S.C.A. §§ 2510-2520, 2517(5).

App. 6

17. Criminal Law —394.3

Delay of five months by federal agents in requesting

state judge to authorize their use of evidence obtained

through state wiretap was timely under Title III action.

18 U.S.C.A. §2517(5).

18. Criminal Law —394.3

Use of test:mony of witness implicated in state:

evidence used t_ btain federal indictment against

defendant did nr ~ violate Title III section requiring

judicial approval of use of state wiretap evidence, as his

testimony came from personal knowledge rather than

from a surveillance. 18 U.S.C.A. §§ 2510-2520, 2517(3),

(5).

19. Criminal Law —394.3

State circuit judge was authorized, under Florida

law and thus under Title III, to approve federal agents’

use of state wiretap evidence. 18 U.S.C.A. §§ 2510-2520,

2510(9\(b), 2517(5); West’s FS.A. §934.02(8).

20. Criminal Law —622.2(6)

Antagonistic defenses may satisfy compelling

prejudice standard for severance, but only if defenses

are irreconcilable and mutually exclusive.

21. Criminal Law —622.2(6)

First defendant’s defense did not result in compelling

prejudice to remaining defendants so as to justify

App. 7

severance of their trials in prosecution for various charges

stemming from marijuana importation and distribution

ring, notwithstanding that first defendant’s counsel

did admit that his client was likely guilty of some

crime, as focus of her arguments was that individual

which masterminded alleged ring was primary culprit,

the alleged mastermind did not go to trial, and neither

first defendant nor remaining defendants introduced

evidence at trial.

992. Indictment and Information —124(1)

Indictment showed common goal of systematic and

repeated importation and distribution of large amounts

of marijuana, and overlapping participation by various

defendants; therefore, there was no misjoinder of

defendant in counts alleging conspiracy to import

marijuana and a count alleging conspiracy to possess

marijuana with intent to distribute; those counts set

forth a single conspiracy in which defendant was a

member.

23. Criminal Law —-627.5(6)

There is a qualified government privilege not to

disclose sensitive investigative techniques.

24. Telecommunications —528

Government’s qualified privilege not to disclose

sensitive investigation techniques applies equally to

nature and location of electronic surveillance equipment.

App. &

25. Criminal Law —627.6(1)

Defendants, charged with participation in marijuana

importation and distribution ring, failed to show necessity

of disclosure by government of type of microphone

used in electronic surveillance, and where microphone

was hidden.

26. Criminal Law —627.8(2)

That government delayed until eighth week of trial

to request that defendants provide voice exemplars did

not prejudice defendants, and thus did not render the

request untimely.

27. Criminal Law —-394.4(9), 412.1(3)

Evidence seized during an unlawful arrest, or

statements made by person unlawfully arrested while

in custody, are products of arrest and will be suppressed;

evidence with only a loose causal connection to an

illegal arrest, however, will not be suppressed.

28. Criminal Law —394.3

Conversations of defendant's coconspirators

regarding his arrest were not the product of that illegal

rrest, and thus wiretap evidence of the conversations

about the arrest was admissable, as causal connection

between arrest and statements was broken by intervening

acts of third parties.

App. 9

29. Criminal Law —40

By using evidence of defendant's prior arrest for

state marijuana charges, Government did not violate

agreement in which Government agreed not to pursue

any criminal or civil liability arising out of event in

return for defendant’s agreement to forfeit a vessel to

the United States, as Government did not agree to

never use the arrest as evidence in a prosecution for

subsequent criminal activity.

30. Conspiracy —47(6)

Evidence supported finding that defendants agreed

to make false statements to the FBI relevant to their

alleged participation in drug importation ring, thereby

supporting their convictions of conspiracy to make false

statements. 18 U.S.C.A. §1001.

31. Fraud —68.10(1)

A statement is material, for purposes of offense of

making false statement, if it has a natural tendency to

influence, or to be capable of afiecting or influencing a

governmental function; statement need not have exerted

a*tual influence, so long as it had capacity to do so. 18

U.S.C.A. §1001.

32. Fraud —68.10(4)

Statements made to FBI by coconspirator of main

target of FBI investigation into drug importation ring

were material for purposes of offense of making false

statements, as record indicated that FBI was interested

App. 10

in using third party to obtain information about their

main target, and misstatements defendant agreed to

make would have misled FBI about main target’s

relationship with third party. 18 U.S.C.A. §1001.

33. Fraud —68.10(1)

“Exculpatory no” exception to offense of making

false statement does not apply when a person attempts

to affirmatively mislead a government investigation.

34. Fraud —68.10(1)

“Exculpatory no” exception to offense of making

false statements did not apply to defendant’s statements

to FBI about main target of FBI investigation into drug

importation, as defendant did not simply agree to deny

personal wrongdoing, but to mislead the FBI about

their main target. 18 U.S.C.A. §1001.

Richard Harris, Neil Karadbil, Asst. U.S. Attys.,

Miami, Fla., for plaintiff-appeilee in 83-5102.

Paul D. Lazarus, Nurik, O’Donnel!l & Lazarus,

Lauderdale, Fla., for Scott Bertelsen.

Paul M. Rashkind, Miami, Fla., for Thomas Sikes,

J.C. Bertelsen.

Ronald A. Dion, Entin, Schwartz, Dion & Sclafani,

North Miami Beach, Fla., for M. Van Horn, R. Van Horn,

Dennis Kay, Dennis Cason, Gary Balough, Scott Bertelsen

& Joseph William Campbell.

App. 11

James J. Hogan, Miami, Fla., George Robert Blakey,

Notre Dame Law School, Notre Dame, Ind., for defendants-

appeliants.

Neil Karadbil, Ft. Lauderdale, Fia., Jon May, Linda

Collins Hertz, Richard Kamp, Asst. U.S. Attys., Miami,

Fla., for plaintiff-appellee in 84-5138.

Appeals from the United States District Court for

the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and

HENLEY*, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Ten different defendants challenge their convictions

under various charges stemming from a marijuana

importation and distribution ring.’ The ring, masterminded

by appellant William Joseph Harvey, operated between

1978 and 1982. Harvey ran the operation from his office

at the Delray Towing Service, a business he owned in

Delray Beach, Florida. The organization used speedboats

to transport marijuana from large freighters into the

United States, and then distributed the marijuana.

There is no contention that the evidence was not

sufficient to show the participation of all of the appellants

* Honorable J. Smith Henley, Senior U.S. Circuit Judge for

the Eighth Circuit, sitting by designation.

' Appellant Harvey entered a conditional plea of guilty, reserving

his right to appeal the district court’s ruling on the motion to

suppress. Fed.R.Crim.P. 11(a\(2). The remaining appellants went to

trial and were convicted by a jury.

App. 12

in the conspiracy. The prosecution, however, relied on

evidence obtained by electronic surveillance of Harvey’s

office at Delray Towing. All of the appellants challenge

the legality of the surveillance and contend that the

evidence should not have been admitted. The district

court conducted an evidentiary hearing and, after long

and careful eansideration. denied the appellants’ motion

to suppress the evidence. United States v. Harvey, 560

F.Supp. 1040 (S.D.Fla.1982). The propriety of this decision is

the main focus of this appeal.

I. ADMISSIBILITY OF THE ORAL INTERCEPT

EVIDENCE

Background

On October 17, 1980, the government applied to

the district court for an order authorizing interception

of oral communications in Harvey’s office at Delray

Towing. The application was supported by an affidavit

of Stephen Gillman, an Assistant United States Attorney,

and Harold C. Copus, an agent of the Federal Bureau of

Investigation (FBI). On October 20, the district court

entered an order authorizing interception for thirty

days; the district court entered orders extending the

interception period on November 20 and again on

December 19. The listening device functioned from

October 24, 1980 until January 19, 1981.

The district court’s authority to authorize the

electronic surveillance involved in this case is found in

Title III of The Omnibus Crime Control and Safe Streets

Act of 1968. 18 U.S.C. §§ 2510-2520. Title III sets forth

numerous requirements the government must meet before

App. 13

surveillance may be authorized, 18 U.S.C. §2518(1), the

findings the district court must make, 18 U.S.C. §2518(3),

and requirements for the district court’s authorization

order. 18 U.S.C. §2518(4). Title III contains its own

exclusionary rule under which the appellants all have

standing to challenge the surveillance. 18 U.S.C. §2518(10).

The appellants raise numerous potential deficiencies in

the district court’s authorization.

A. Necessity of Electronic Surveillance Under 18 U.S.C.

§2518(1)(c).

An application for interception must contain

a full and complete statement as to whether or

not other investigative procedures have been

tried and failed or why they reasonably appear

to be unlikely to succeed if tried or be too

dangerous.

18 U.S.C. §2518(1\c). Appellants contend that the two

affidavits supporting the government’s October 17, 1980,

application are little more than “boilerplate.” They argue.

that alternative investigative techniques were available,

namely, ordinary surveillance, execution of a search

warrant of Delray Towing, an undercover “sting” operation,

and a grand jury investigation with immunity for

witnesses.

[1, 2] The necessity requirement is designed to

ensure that electronic surveillance is neither routinely

employed nor used when less intrusive techniques will

succeed. United States v. Giordano, 416 U.S. 505, 515,

94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974); United States

App. 14

v. Kahn, 415 US. 148, 153 n. 12, 94 S.Ct. 977, 983 n. 12,

39 L.Ed.2d 225 (1974). The affidavit need not, however,

show a comprehensive exhaustion of all possible

techniques, but must simply explain the retroactive or

prospective failure of several investigative techniques

that reasonably suggest themselves. United States v.

Alonso, 740 F.2d 862, 868 (11th Cir.1984), cert. denied,

US. 105 S.Ct. 928, 83 L.Ed.2d 939 (1985);

United States v. Hyde, 574 F.2d 856, 867 (5th Cir.1978).

Judged by these standards, we believe the affidavit in

this case was sufficient.

With respect to the utility of ordinary surveillance

techniques, Agent Copus’ affidavit sets forth numerous

facts showing that they had been attempted and had

failed. The affidavit also explains the failures. The affidavit

states that surveillance of actual marijuana off-load

operations was impossible because of anti-surveillance

techniques employed by Harvey. These techniques included

use of a helicopter, night scopes and listening devices,

and central command of the various small vessels from

a larger vessel. In addition, it is obvious that the

government was not seeking to catch one or. two small

vessels with marijuana, but to expose the entire conspiracy.

The affidavit also sets forth the reasons why surveillance

of the headquarters at Delray Towing was impossible.

According to the affidavit, to the west of Delray Towing

was the city dump; to the east a parking lot for a night

club that was frequented by members of the ring and

owned by Harvey’s father, to the north a garage, to

which agents could not obtain access without disclosing

the investigation; to the south, the nearest point from

which surveillance could be conducted was a half mile

away. Harvey also conducted security procedures at

App. 15

Delray Towing; indeed, one attempt at surveillance from

a building approximately one-half to one mile away was

discovered by Harvey. Finally, the affidavit states that

even if ordinary surveillance were practical, it could

only lead to evidence that members of the conspiracy

were meeting, and not to direct evidence of criminal

activity.

The affidavit explained that a search of the premises

at Delray had been considered and rejected because it

was not believed that there was sufficient physical evidence

there to revea! the entire conspiracy or to successfully

prosecute its members.

With respect to a “sting” operation, the affidavit

indicates that the informants upon which the government

was relying feared for their lives because of threats

from Harvey. The affidavit also states that government

agents had tried and failed to gain introduction to

Harvey. The affidavit asserts that such attempts would

endanger the lives of undercover agents and informants.

Appellants contend that the affidavit is incredible in

this respect because the FBI had infcrmants with

knowledge of the conspiracy. The contention is frivolous;

that the informants may have known of the conspiracy

does not mean Harvey would have trusted them. Moreover,

the affidavit explained that these persons feared for

their lives.

Agent Copus’ affidavit further states that he had

discussed the possibility of a grand jury investigation

with the Assistant United States Attorney. The affidavit

explains that such an investigation was rejected because

the necessary witnesses were members of the conspiracy

App. 16

and would not voluntarily testify, and that it had been

impossible to determine the roles of various members

of the conspiracy in order to judge who should be

afforded immunity.

With respect to the danger to informants posed by

either a sting operation or a grand jury investigation,

we note that the affidavit asserts that one informant

directly refused to testify out of fear, another source

relayed death threats that Harvey had made against

potential informants, another witness had been beaten

and received death threats, one member of the conspiracy

was left at a hospital with bullet wounds which he

refused to explain and another person was threatened

with death. The affidavit therefore presents a pattern

of threats and a presence of danger to witnesses and

agents. This existence of danger is one of the justifications

for electronic surveillance. 18 U.S.C. §2518(1\(c). The

appellants argue that the fears alleged in the affidavit

are belied by the fact that witnesses testified at trial.

Again, this contention is frivolous; that witnesses were

willing to testify in court after the FBI had broken the

conspiracy and arrested its members does not indicate

that they would have been willing to do so at the time

the surveillance was requested.

Appellants’ final contention with respect to necessity

is that the district court improperly relied on Agent

Copus as an expert witness. This contention is difficult

to understand. The district court’s authorization order

does not state that its decision was based on any expert

opinion of Agent Copus, and as discussed above, the

affidavit set forth numerous factual matters rather than

expert opinion. The appellants cite no authority that

App. 17

an application for oral interception must be based on

an expert opinion. In any event, the affidavit indicates

that Agent Copus had five years experience as an FBI

agent, with two years of specilization in narcotics; the

district court clearly would have been within its discretion

had it chosen to rely on Copus as an expert.

B. Probable Cause under 18 U.S.C. §2518(1)(b).

An application must include

a full and complete statement of the facts and

circumstances . . . including (i) details as to

the particular offense that has been, is being,

or is about to be committed.

18 U.S.C. §2518(1)(b)i}. The offense set forth in the

application was a RICO conspiracy. 18 U.S.C. §§ 1961-68.

The affidavit lists an organization with a leader, various

liéutenants, and workers. The organization was

headquartered at Delray Towing, and had a continuing

business of importing and distributing marijuana. The

appellants’ contentions that the affidavit did not establish

probable cause that there had been an agreement to

commit two predicate RICO acts, 18 U.S.C. §1961(5),

and that the affidavit did not set forth probable cause

that there was a RICO enterprise 18 U.S.C. §1961(4),

require no further discussion in light of the facts already

discussed. See United States v. Bascaro, 742 F.2d 1335,

1342-43 (11th Cir. 1984) (marijuana offenses may be

predicate acts for RICO charge), cert. denied, - US.

, 105 S.Ct. 3476, 3477, 3488, 87 L.Ed.2d 613 (1985);

United States v. Pepe. 747 F.2d 632, 659-60 (11th Cir.i984)

(RICO conspiracy requires that defendant agree to commit

the two predicate acts and be aware that others have

App. 18

done so); United States v. Hewes, 729 F.2d 1302, 1310-11

(11th Cir.1984) (definition of RICO enterprise), cert.

denied, ___ USS. , 105 S.Ct. 790, 83 L.Ed.2d 783

(1985). In addition, the affidavit demonstrated an ongoing

enterprise operated out of Harvey’s office; thus there

was probable cause to believe that the surveillance

would vield incriminating evidence.”

The appellants urge that even if probable cause

existed at the time of the application, the district court

should have terminated the surveillance when no

incriminating conversations were intercepted during

the first days of the wiretap. The appellants argue that

the district court should have shut down the surveillance

upon receipt of the reports indicating no progress in

the investigation. They cite two reasons why probable

cause no longer existed: at the time of the November

12, 1980, progress report, no relevant conversations

had been obtained and the latest information on Harvey

was sixty-six days old; and after the surveillance began

the agents learned that Harvey was out of town.

[3-5] In our view a district court is not required

to terminate a surveillance whenever it receives a report

of no progress. First, the progress reports the district

court required in this case were not mandated by the

statute, but were ordered at the discretion of the district

judge. 18 U.S.C. §2518(6). Accordingly, the import of the

progress reports was also a matter within the discretion

*The appeilants contend that the FBI was not authorized to

conduct surveillance in connection with narcotics offenses. Our

conclusion that the affidavit set forth probable cause of a RICO

violation, which the appellants admit the FBI was authorized to

investigate, obviates consideration of this issue.

App. 19

of the authorizing district court. See United States v.

Tannelli, 477 F.2d 999, 1002 (3d Cir.1973), aff'd on other

grounds, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616

(1975). In authorizing the thirty days of surveillance,

the district court determined that there was probable

cause to believe relevant communications would be

intercepted within the thirty day period. 18 U.S.C.

§2518(3)b). The proper time to consider whether the

information in the affidavit had become stale would be

at the end of the thirty days when the government

reapplied. 18 U.S.C. §2518(1)(f). The district court was

clearly within its discretion in determining that the

information in the affidavit justified thirty days of

surveillance. The affidavit set forth a continuing criminal

enterprise, operating over a long period of time. See

Scott v. United States, 486 U.S. 128, 140-42, 98 © .Ct.

1717, 1724-26, 56 L.Ed.2d 168 (1978) (investigations of

large, complex conspiracies justify a greater scope of

surveillance); United States v. Bascaro, 742 F.2d 1335,

1345-46 (11th Cir.1984) (staleness of evidence considered

liberally in cases involving large drug conspiracies due

to their protracted and continuous nature), cert. denied,

___ US. ___, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985).

Accordingly, the fact that the most recent information

would have been two months old at the end of the

period does not indicate that probable cause did not

exist.

[6] Furthermore, Harvey’s temporary absence,

reported to the district court, did not negate the probable

cause. First, the FBI stated in its progress reports that

App. 20

it believed Harvey would return shortly.’ Second, the

affidavit set forth three other employees of Delray Towing

as possible conspirators, and these persons could have

been overheard in the office even during Harvey’s absence.'

C. Showing of Previous Applications for Electronic

Surveillance Under 18 U.S.C. §2518(1)(e).

The application for electronic surveillance must

include

a full and complete statement of the facts

concerning all previous applications known to

the individual authorizing and making the

application, made to any judge for authorization

to intercept, or for approval of interceptions

of, wire or oral communications involving any

of the same persons, facilities, or places specified

in the application, and the action taken by the

judge on each such application.

18 U.S.C. §2518(1)e). Prior to the federal surveillance,

the Boca Raton, Florida Police Department had obtained

‘The October 29, 1980, progress report stated that Harvey

was expected back that day. The November 4, 1980, progress

report stated that the principals were “maintaining a low profile”

due to arrests by state officials, but were expected back shortly.

Accordingly, there is no factual basis in the record for appellants’

contention that current probable cause did not exist.

‘Appellants contend this is contrary to the record because

the record indicates all meetings were called by Harvey. We disagree.

The affidavit indicated other employees of Delray were involved in

the conspiracy. It is reasonable to infer they might converse in

Harvey's office even in Harvey’s absence.

App. 21

authorization for a state Title III wiretap on the phone

of Robert Jernigan, one of the members of the drug

ring. The federal agents learned of the state wiretap on

October 14, 1980. Harvey was one of the named targets

of the state wiretap. The state wiretap was not disclosed

in the October 17, 1980 application for surveillance. In

considering the motion to suppress, the district court

found that the government had intended to disclose the

wiretap, but that a page of the application, (page 21C)

had been inadvertently omitted. 560 F.Supp. at 1070.

The district court also found that the FBI agents did

not know at the time that Harvey was a target of the

state investigation.

[7] The appellants argue that, even including page

21C, the application did not contain “a full and complete

statement of the facts concerning all previous applications

known to the individual authorizing and making the

application.” They argue that the agents knew that

Harvey was a named target of the state Title IIl. The

district court, after a hearing on the motion to suppress,

found otherwise, 560 F.Supp. at 1073, and appellants

must show these findings to be clearly erroneous.

Appellants focus on testimony of government agents

that they knew about the state wiretap, and that they

knew that Harvey had been intercepted. That Harvey

might have been intercepted is an obvious inference

from the existence of the wiretap, as the application

set forth a believed criminal relationship between Harvey

and Jernigan. The agents, however, clearly testified

that they did not know Harvey had been named on the

state application, and the district court chose to believe

this testimony. The agents further testified that they

did not learn whether Harvey had actually been

App. 22

intercepted. The district court also relied on testimony

that the FBI agents did not attempt to learn the details

of the state investigation because they feared tainting

their own evidence if the state investigators had committed

any illegalities, found the state investigators uncooperative,

and thought the state investigators were after Jernigan

rather than Harvey. We hold that the district court’s

finding that the FBI did not known that Harvey was a

named target of the state Title III is not clearly erroneous.

Accordingly, had page 21C been included, the application

would have met the disclosure requirement.°

[8] We must consider, therefore, what standard

applies to an inadvertent omission of materia] required

by section 2518(1Xe). Title III’s exclusionary rule applies

to communications that have been “unlawfully intercepted.”

18 U.S.C. §2518(10)(a). The Supreme Court has ruled

that not all failures to satisfy the statutory requirements

of Title III render an interception “unlawful.” United

States v. Donovan, 429 U.S. 413, 438, 97 S.Ct. 658, 673,

90 L.Ed.2d 652 (1977). In Donovan, the Court held that

a violation of the requirement that the application identify

all those likely to be overheard, 18 U.S.C. §2518(1)(b)iv),

did not mandate suppression because the requirement

did not play a central roje in the decision to authorize

surveillance. The Supreme Court found a difference

between those requirements of the application that

pertain to the determination the district judge must

make to authorize the surveillance (section 2518(3)(a-d) )

and the remaining requirements for the application.

*Because the agents did not “know” Harvey was named on the

state Title III application, we need not consider whether a failure

to completely satisfy the requirements of section 2518(1\e) would

mandate suppression.

App. 23

The determinations the authorizing judge must make

relate to the probable cause and necessity requirements.

The disclosure of prior wiretaps does not relate to the

legal determination the judge must make. Accordingly,

inadvertent noncompliance with the section 2518(1)(e)

disclosure requirement does not mandate suppression.

Our conclusion is consistent with the only other circuit

we know to have considered the question since the

Supreme Court’s decision in Donovan. See United States

v. Abramson, 553 F.2d 1164, 1169-70 (8th Cir.), cert.

denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095

(1977).°

[9, 10] The appellants also claim that the omission

of page 21C was a constitutional violation, requiring

‘Appellants contend the Abramson is in conflict with United

States v. Bellosi, 501 F.2d 833 (D.C.Cir.1974). Bellosi, however, was

decided before the Supreme Court's decision in Donovan, and we

find it unpersuasive.

Appellants contend that the omission of page 21C also relates

to the section 2518(1Xc) necessity showing. They argue that section

2518(1Xc) requires a “full and complete statement” of prior investigative

efforts, and that therefore any omission of a prior investigative

effort requires suppression. We disagree. Such a reading of section

9518(1Xc) would render section 2518(1Xe) superfluous; section 2518(1Xe)

requires that the application disclose all prior electronic surveillance

“known” to the officer. Hence, appellant's “strict liability”

interpretation of section 2518(1c) is contrary to the statutory

language. We therefore analyze the omission of page 21C in the

context of section 2518(1Xe). In any event, the existence of the

prior state wiretap, which did not yield evidence to arrest Harvey,

made the surveillance neither more nor less necessary. See United

States v. Donovan, 429 U.S. 413, 438, 97 S.Ct. 658, 673, 50 L.Ed.2d

652 (1977) (suppression of electronic surveillance required only if

interception was “unlawful”).

App. 24

dismissal under Franks v. Delaware, 438 U.S. 154, 171-72,

98 S.Ct. 2674, 2684-85, 57 L.Ed.2d 667 (1978). Franks

only applies, however, to intentional or reckless omissions

from an affidavit. Jd. Affidavits supporting warrants

are presumed valid, and the party seeking suppression

bears the burden of showing the omission was more

than negligent. Jd. at 171, 98 S.Ct. at 2684: United

States v. Martin, 615 F.2d 318, 327-29 (5th Cir.i986}. The

district court found that the omission was inadvertent.

The appellants contend that this finding is clearly

erroneous, arguing that the omission itself raises an

inference of recklessness, and that the government must

then prove that the omission was not reckless. We

disagree. There may be cases in which the district

court may infer recklessness from an omission, but we

do not believe it was required to do so in this case. See

Franks, 438 U.S. at 171, 98 S.Ct. at 2684 (party seeking

suppression must prove omission was more than

negligence), Martin, 615 F.2d at 329. The record

demonstrated that the government had intended to

include page 21C, as the material was referred to in

subsequent progress reports. A government agent filing

an affidavit has a duty to ensure that the affidavit has

been carefully assembled, but that does not mean that

if a page slips out the agent has been reckless. Here,

there is not even any evidence that the government

agents failed to proofread or otherwise properly examine

the affidavit. We hold that the findings of the district

court are not clearly erroneous. Accordingly, because

the omission was not shown to be reckless, we need not

address the implications of Franks for Title III cases.

D. Whether the Surveillance Was Properly Minimized

as Required by 18 U.S.C. §2518(5).

App. 25

Every authorizing order must require that the

surveillance “be conducted in such a way as to minimize

the interception of communications not otherwise subject

to interception.” 18 U.S.C. §2518(5). The authorizing

order at issue contained such a requirement. The district

court found that the monitoring agents had made a

good faith effort to minimize, and that they had in fact

reasonably minimized interception. 560 F.Supp. at 1075-76.

The appellants contend that the agents did not

minimize. They do not rely on evidence that nonpertinent

conversations were monitored; rather they rely upon

the practices the agents used and the supervision of

the district court. They note that the agents violated

their own guidelines for minimization. The practices

appellants criticize are as follows. The application stated

that the agents would minimize by suspending monitoring

whenever voice identification indicated that the

conversants were not the principals, and that agents

would coordinate their monitoring with surveillance of

Delray Towing to ensure that some of the principals

were inside when monitoring was done. The agents

found voice identification difficult during the early stages

of the monitoring, and did not coordinate their monitoring

with normal surveillance. The Assistant United States

Attorney instructed the agents to tape record all

monitored conversations, but in fact the agents only

recorded conversations they believed incriminating. They

also monitored during times they knew Harvey was out

of town.

The Supreme Court discussed the principles for

reviewing claims that agents failed to minimize Title

III surveillance in Scott v. United States, 436 U.S. 128,

App. 26

98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The Court first

made clear that the motives, or good faith, of the

monitoring agents was simply not an important

consideration. 436 U.S. at 138-39, 98 S.Ct. at 1723-24.

Rather, the question is whether the agents’ monitoring

was reasonable in light of all the facts and circumstances

of the case. The Court cited several factors in Scott,

including the number of nonpertinent conversations

intercepted, the location of the surveillance, and the

nature of the investigation. Jd. at 139-40, 98 S.Ct. at

1724-25.

In the current case, therefore, we place little weight

on the fact that the agents deviated somewhat from the

conditions in the application. Although the practices

employed by the agents are a consideration, we are

more concerned with whether the agents in fact monitored

nonpertinent conversations. In any event, the practices

employed were reasonable. With regard to the voice

identification issue, we note that in the early stages the

agents were dealing with what they believed to be a

large conspiracy with many of the members still

unidentified. Accordingly, they could hardly use voice

identification alone to guide their monitoring. See Scott,

436 U.S. at 141, 98 S.Ct. at 1725 (voice identification

may be impossible during initial stages of a conspiracy

investigation). Indeed, one of the goals of the surveillance

was to identify additional conspirators. As far as

coordination with normal surveillance, we have already

discussed difficulties of such surveillance in this case.

We have also already discussed the effect of Harvey’s

absence; there were other members of the conspiracy

who may have been overheard in the office, and the

agents expected Harvey to return. Scott, 463 U.S. at

App. 27

140-41, 98 S.Ct. at 1724-25 (when bug is located in place

frequented by conspirators rather than public, wider

monitoring is justifiable).

The appellants also urge that the authorizing district

judge’s failure to terminate the surveillance upon receipt

of reports of no progress indicates the surveillance was

not minimized. Again appellants miss the mark. The

progress reports reveal no pertinent conversations, but

do not show that the agents were unduly monitoring

nonpertinent conversations.

[11] We turn to the key issue, whether in fact the

agents unreasonably monitored nonpertinent

conversations. The district court found, on the basis of

the agents’ testimony and their monitoring logs, that

the agents ceased monitoring conversations they

determined to be nonpertinent. The logs and testimony

do in fact support the district court’s conclusion. Most

important, the appellants have produced no evidence of

specific conversations which the agents should not have

monitored. Because the appellants cite no evidence

contradictory to the district court’s findings of fact, we

must accept them as not clearly erroneous. We therefore

hold the agents complied with the minimization

requirements.

E. Validity of the November 20 order Extending the

Authorization for Another 30 Days.

Appellants claim that the extension of surveillance

was without probable cause, again focusing on whether

the elements of a RICO conspiracy were shown. The

contentions have been adequately discussed above. We

note, however, that the probable cause was boosted by

the interception of pertinent conversations on November

18 and 19, tending to confirm the existence of the

conspiracy.

[12] Appellants also challenge the extension on

the ground that the authorizing judge was outside the

district when he executed the order. The authorizing

judge, a judge of the Southern District of Florida, was

in the Middle District of Florida at the time. As a judge

of the Southern District, the judge had the power to

authorize surveillance conducted within that district.

18 U.S.C. §2518(3). Appellants cite no authority for

their contention that district courts may not authorize

surveillance conducted within their territorial jurisdiction

if the judge happens to be physically outside the

jurisdiction. Nor is there any reason to deny district

judges such power. Indeed, such authority has traditionally

been recognized. See e.g. United States v. Strother,

078 F.2d 397 (D.C.Cir.1978).

Appellants also urge that the government’s

application for the November 20 extension was tainted

because it referred to the state wiretap, arguing that

the state wiretap was invalid because Florida law does

not permit wiretapping for investigation of marijuana

offenses.

[13] Florida law authorizes surveillance for

marijuana of’onses; hence we reject appeliants’ contention

that the state wiretap was invalid. Appellants’ argument

is based on a difference between the language of the

state and federal wiretapping statutes. The federal

statute authorizes investigations of “dealing in narcotic

App. 29

drugs, marijuana or other dangerous drugs.” 18 U.S.C.

§2516(2). The state law, however, refers only to “narcotics

or other dangerous drugs.” Fla.Stat.Ann. §934.07.

According to appellants the state omitted “marijuana”

in order to exclude marijuana offenses from electronic

surveillance. Appellants cite nothing in either the

legislative history or Florida decisions tc support this

contention. In fact the state likely omitted “marijuana”

because it believed it redundant in light of the inclusion

of “dangerous drugs.” The Florida courts have not directly

addressed the issue, but they have referred to marijuana

as a dangerous drug, and have affirmed convictions for

marijuana offenses on the basis of wiretap evidence.

See e.g., State v. Manning, 379 So.2d 1307

(Fla.Dist.Ct.App.1980) (affirming use of electronic

surveillance evidence in marijuana case); Hamilton v.

State, 366 So.2d 8 (Fla.1978) (marijuana a dangerous

drug). Accordingly, we hold that the state electronic

surveillance law includes marijuana offenses and the

state wiretap therefore was valid.

F. Compliance with Disclosure Requirement of 18 U.S.C.

§2517(5) with respect to the Federal Surveillance

The application and authorization orders for the

surveiliance in this case designated, among others, the

foilowing sections: 21 U.S.C. §§ 541(a), 846, and 18 U.S.C.

§1962(c-d). Appellant Harvey was indicted under 21

U.S.C §848, 952(a) & 963. Harvey contends that the

variance between the application and the indictment

invoked the requirement of section 2517(5) that the

government obtain prior approval before disclosing the

evidence. Section 2517(5) provides:

App. 30

When an investigative or law enforcement

officer, while engaged in intercepting wire or

oral communications in the manner authorized

herein, intercepts wire or oral communications

relating to offenses other than those specified

in the order of authorization or approval, tne

contents thereof, and evideiice derived therefrom

may be disclosed or used as provided in

subsections (1) and (2) of this section. Such

contents and any evidence derived therefrom

may be used under subsection (3) of this section

when authorized or approved by a judge of

competent jurisdiction where such judge finds

on subsequent application that the contents

were otherwise intercepted in accordance with

the provisions of this chapter. Such application

shall be made as soon as practicable.

Harvey urges that the charges in the indictment were

for “offenses other than those specified in the order of

authorization or approval,’ and that the government

revealed evidence to the grand jury without obtaining

judicial approval.

The government responds that (1) the application

set forth probable cause of the existence of the violations

charged in the indictment and that the mere failure to

include statutory citations does not mean that the offenses

were “other than those specified,” and (2) that the use

of the evidence was in effect approved by the authorizing

court, which viewed progress reports and extended the

surveillance.

Congress adopted section 2517(5) because it “wished

to assure that the Government does not secure a wiretap

App. 31

authorization order to investigate one offense as a

subterfuge to acquire evidence of a different offense for

which the prerequisites to an authorization order are

lacking.” United States v. Campagnuolo, 556 F.2d 1209,

1214 (5th Cir.1977). In this case it is clear that no

“subterfuge” occurred. The government uncovered the

very conspiracy it identified in its original application,

and the conspiracy was conducting the very activities

listed; the government simply charged Harvey under a

different statute than the one set forth in the application.

The government argues with some force that requiring

approval under section 2517(5) would simply elevate

form over substance. .

[14] We hold, however, that regardless of whether

the government was required to seek judicial approval,

the continuing approval of the authorizing district court,

after it had been apprised of the conversations intercepted,

meets the judicial approval requirement.’ The purpose

of the judicial approval limitation is to prevent incidental

interception of conversations for which the government

has shown no probable cause; the statute does not

ensure that a defendant is charged only with the crimes

set forth in the application. In considering whether the

judicial approval required by the statute has occurred,

courts must keep in mind this purpose. Cf. United

States v. Campagnuolo, 556 F.2d 1209, 1214 (5th Cir.1977).

Courts thus have considered the section 2517(5) approval

"Because we hold that the judicial approval requirement was

satisfied in this case, we do not consider whether the government

is correct in arguing that the indictment did not charge “offenses

other than those specified in the order of authorization.” 18 U.S.C.

§2517(5). See e.g., United States v. Brodson, 528 F.2d 214 (7th

Cir.1975); United States v. Daly, 535 F.2d 434 (8th Cir.1976), see

also infra note 8.

App. 32

requirement flexibly, and have held that the court need

not have approved of the new charges as long as it has

approved of the collection of the evidence supporting

those charges. See United States v. Masciarelli, 558

F.2d 1064, 1067-69 (2d Cir.1977) (section 2517(5) approval

impliedly made by authorizing judge who extended

surveillance after being told of evidence supporting

charges not asserted in application); United States v.

Tortorello, 480 F.2d 764, 782-83 (2d Cir.), cert. denied,

414 US. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). Here the

authorizing judge received both progress reports and

applications for extension, and these described the nature

of the conversations being intercepted. The authorizing

judge twice extended the surveillance. Accordingly, he

reviewed the conversations which the government had

been intercepting, and determined that they were properly

intercepted. This suffices to meet section 2517(5)

requirement.

G. Compliance with 18 U.S.C. §2517(5) with Respect

to Use of Evidence from the State Wiretap

Appellants complain that the government used

evidence obtained through the state wiretap without

obtaining proper or timely approval as required by

section 2517(5). The federal agents learned of the existence

of a state wiretap on October 14, 1980. They did not

obtain approval to use the evidence until August 1982.

The approval was from the Florida circuit judge who

had authorized the state surveillance. The appellants

raise several arguments in support of their claim that

the approval was improper and untimely; none of the

arguments requires extensive discussion.

App. 33

[15] Appellants maintain that the application to

use the state evidence was not properly approved because

section 2516(1) requires approval from an attorney genera!

or assistant attorney general. Section 2516(i) does not

apply to an application to a state judge for approval; it

applies only to applications submitted to a “Federal

judge of competent jurisdiction.” Such authorization

does not allow further monitoring, but simply allows

use of conversations already intercepted. We hold that

no special approval is required before submission of

section 2517(5) applications to state courts.

[16] The appellants further claim that the state

judge’s authorization was invalid because there is no

indication that he made the finding “that the contents

were otherwise intercepted in accordance with the

provisions of this chapter,” required by section 2517(5).

They note that the government’s application made no

effort to show that the communications were properly

intercepted. We disagree. The state judge expressly

found that the interceptions related to the federal charges

were “intercepted incidentally.” This was the same judge

who had authorized the state wiretap, and accordingly

he was in a position to know whether the state agents

had properly executed the state wiretap. The finding

that the conversations were intercepted incidentally

makes complete sense as both the state and federal

agents were investigating violations of marijuana laws.

Appellants cite no evidence contrary to this finding.

[17] Section 2517(5) requires that applications for

approval be made “as soon as practicable.” Appellants

insist that the government learned of the state wiretap

on October 14, 1980, and that it should not have waited

App. 34

until August 9, 1982, to obtain approval. We hold that

the government’s request was timely. In considering

the timeliness issue, we must keep in mind the purpose

of section 2517(5), to prevent subterfuge. United States

v. Vento, 533 F.2d 838, 855 (3rd Cir.1976). We reiterate

that the federal and state investigators were investigating

precisely the same activity, and there is no hint that

the state wiretap was a subterfuge to generate evidence

for federal charges. Moreover, although the federal agents

learned of the existence of the state wiretap in October

1980, they did not learn the contents until March 1982.

Accordingly, the delay was only five months. Finally,

the appellants have not shown any prejudice from the

delay. Vento, 533 F.2d at 855, United States v. Southard,

700 F.2d 1, 30-31 (1st Cir.), cert. denied, 464 U.S. 823, 104

S.Ct. 89, 78 L.Ed.2d 97 (1983).*

[18] According to the appellants, however, the

agents used the information from the state wiretap to

obtain the indictment against Harvey, and use of the

evidence before obtaining the approval violated section

2517(5). The evidence cited by appellants is testimony

by Darryl Falls, a witness who was implicated in the

state evidence. Appellants argue that the testimony

was the fruit of the state wiretap, and that therefore

approval was required prior to use of the testimony. We

disagree. Section 2517 enumerates three situations in

which use or disclosure of intercepted communications

is permissible. 18 U.S.C. §2517(1-3). By its terms, the

requirement of approval! for use of evidence set forth in

‘Because we find that the government did not violate 2517(5),

we need not consider under what situations, if any, such a violation

would mandate suppression. See Vento, 533 F.2d. at 855 (suggesting

no suppression for 2517(5) violations).

App. 35

section 2517(5) applies only to use of the evidence under

section 2517(3). Section 2517(3) concerns disclosure of

the communication or evidence derived from the

communication while testifying under oath. The testimony

of coconspirator Falls obviously came from personal!

knowledge rather than from the surveillance; he did

not disclose any evidence obtained from the surveillance

and his testimony was therefore not within section

2517(3). Nor did any other witness before the grand

jury relay the contents of any conversations intercepted

in the state wiretap or any other evidence discovered

by the witness as a result of the state wiretap. Accordingly,

section 2517(5) approval was not necessary before the

grand jury proceeding.

[19] Finally, the appellants challenge the authority

of the state circuit judge to enter the approval order.

Section 2517(5) requires approval by “a judge of competent

jurisdiction.” The statute includes the following within

the definition of a judge of competent jurisdiction:

a judge of any court of general criminal

jurisdiction of a State who is authorized by a

statute of that State to enter orders authorizing

interceptions of wire or oral communications.

18 U.S.C. §2510(9)\(b). The approving judge, a Florida

circuit judge, is authorized to enter such orders under

Fla.Stat.Ann. §934.02(8).

For the foregoing reasons, the order of the district

court denying the motion to supress is AFFIRMED.

App. 36

II. TRIAL ISSUES

A. Severance

The appellants who went to trial ail claim that

they were entitled to a severance from the trial of

Gainer Jernigan. Unlike the other defendants, Jernigan

was charged with a continuing criminal enterprise violation

under 21 U.S.C. §848. The appellants point out that in

order to avoid conviction under 21 U.S.C. §848, counsel

for Jernigan adopted a strategy of admitting involvement

in a conspiracy, but denying that Jernigan played a key

role. According to appellants this strategy prejudiced

their defense.

Claims of severance are governed by familiar

principles. Persons indicated together ordinarily should

be tried together. A motion for severance is a matter

within the sound discretion of the district court. “To

establish an abuse of discretion the defendant must

demonstrate that without severance he was unable to

receive a fair trial and that he suffered compelling

prejudice against which the trial court could offer no

protection.” United States v. Magdaniel-Mora, 746 F.2d

715, 718 (11th Cir.1984).

[20] Antagonistic defenses may satisfy the

compelling prejudice standard, but only if the defenses

are “irreconcilable and mutually exclusive.” Jd. In United

States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978), a

prosecution for possession of an unregistered weapon,

the two defendants took the stand and each testified

that the other had possessed the weapon. The court

stated that “[eJach was the government's best witness

App. 37

against the other,” and found compelling prejudice. 581

F.2d at 492. Mere hostility between defendants, however,

does not meet the compelling prejudice standard. In

United States v. Vadino, 680 F.2d 1329, 1334-35 (11th

Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76

L.Ed.2d 344 (1983), one defendant argued entrapment,

and admitted most of the matters asserted by the

prosecution; the court ruled that such a defense did not

result in compelling prejudice to the other defendants.

See also United States v. Mota, 598 F.2d 995, 1000-01

(5th Cir.1979) (defense of insanity not irreconcilable

with codefendant’s defense of noninvolvement), cert.

denied, 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770

(1980).

[21] Compelling prejudice did not exist in this

case. Jernigan’s counsel did admit that Jernigan was

likely guilty of some crime; however, the focus of her

arguments was that Harvey was the primary culprit,

and that Jernigan was simply a small player in Harvey's

gang. Harvey did not go to trial; appellants. therefore,

hardly can argue compelling prejudice. Appellants point

to only two incidents in which Jernigan’s counsel

implicated other defendants. First, in the course of a

cross-examination regarding a phone call between

appellants Cason and Jernigan, counsel asked questions

concerning whether Jernigan had been giving orders

to Cason. These questions simply tended to exonerate

Jernigan from the continuing enterprise charge while

not further implicating Cason. In her closing, counsel

referred to Jernigan as “a glorified Buck Van Horn.”

Although a statement comparing one defendant's guilt

to another’s is hardly desirable, it did not result in

compelling prejudice. The statement presented no

evidence or argument in favor of convicting Van Horn;

App. 38

moreover, a jury could accept counsel's basic argument

that Jernigan was simply one of many workers without

necessarily finding that Van Horn, or any of the other

defendants, was guilty.

We also note that neither Jernigan nor any of the

appellants introduced evidence at trial. It would be

unusual to find compelling prejudice from a codefendant’s

defense when that defense did not entail presentation

of evidence. See United States v. Magdaniel Mora, 746

F.2d 715, 718 n. 3 (11th Cir.1984). Finally, the trial court

gave explicit curative instructions during counsel's closing

argument, instructing the jury to consider the guilt or

innocence of each defendant separately. Accordingly,

we find that the appellants have not met the compelling

prejudice standard and that the district court was within

its discretion in denying a severance.

B. Misjoinder of Appellant Sikes

Appellant Sikes contends that he was misjoined

under Federal Rule of Criminal Procedure 8(b). The

indictment contained twenty-three counts. The first

two counts were continuing criminal enterprise charges

against Jernigan and Harvey under 21 U.S.C. §848.

Count III alleged a conspiracy to import marijuana.

Cour* IV alleged a conspiracy to possess marijuana

with intent to distribute. The remaining counts alleged

various substantive violations of the marijuana laws.

Sikes was named only in the conspiracy counts. The

conspiracy counts included seventy-one overt acts, and

named Sikes in only four of them. Sikes argues that he

was misjoined because the conspiracies alleged in Counts

III and IV are actually multiple unrelated conspiracies,

App. 39

and because the substantive counts are all unrelated to

his participation.

The overt acts contained in the conspiracy counts

showing participation of Sikes were discussions between

Harvey and Sikes on November 18, 1980. Harvey, Sikes,

and codefendant Dennis Kay discussed future marijuana

off-loads, and division of profits from past sales; Harvey

asked Sikes to take possession of 20,000 pounds of

marijuana; Harvey and Sikes discussed a payment toa

supplier, Sikes told Harvey that codefendant John

Bertelsen had recently paid Sikes $125,000. The other

overt acts refer to separate episodes of importation, in

which Sikes is not named.

[22] We conclude that Counts Iil and IV set forth

a single conspiracy, in which Sikes was a member. This

court has decided numerous cases involving claims of

multiple conspiracies, and some simple principles are

relevant. A coconspirator need not participate in every

phase of the venture. Nor need a conspirator be aware

of ali of the participants. Three factors support a finding

of a single conspiracy common goal, common scheme,

and overlapping participants. United States v. Brito,

721 F2d 743, 747 (11th Cir.1983). The halimark of a

single conspiracy is “a regularized pattern of activity

involving a significant continuity of membership and

directed toward a common goal.” United States v. Darby,

744 F.2d 1508, 1542 (11th Cir.1984). The indictment here

shows a common goal of systematic and repeated

importation and distribution of large amounts of

marijuana. The indictment shows overlapping participation

by the various defendants. The indictment shows a

common scheme of off-loading and distribution. With

specific reference to Sikes, it shows his knowledge of

both off-loading and distribution, his knowledge of other

members of the conspiracy, and knowledge of past,

present and future activities of the conspiracy. Accordingly,

Sikes was properly joined in Counts III and IV.

Sikes also argues that the substantive counts, in

which he was not named, were improperly joined with

the conspiracy counts. A defendant need not be named

in all counts of the indictment. If the substantive charges

in which the defendant is not named all arise out of the

same conspiracy then joinder is proper. See, e.g., United

States v. Phillips, 664 F.2d 971, 1016 (5th Cir. Unit B,

1981), cert. denied, 459 U.S. 906, 103 S.Ct. 208, 74 L.Ed.2d

166 (1982); United States v. Corbin, 734 F.2d 643, 649

(11th Cir.1984) (proper test is whether charges arise

out of “series of acts or transactions” as shown by

“substantial identity of facts or participants”). All of

the substantive counts relate to the marijuana importation

and distribution activities of the conspiracy. We have

already determined that the indictment set forth a

single conspiracy, in which Sikes was a member.

Accordingly the conspiracy counts were not misjoined

with the substantive counts.

C. Revelation of the Location and Type of Surveillance

Equipment Employed

Despite numerous requests, the district court would

*Since this case was briefed, the Supreme Court decided

United States v. Lane, ____ U.S. ___, 106 S.Ct. 725, 88 L.Ed.2d

814 (1986), holding that misjoinder is subject to the harmless error

doctrine. As we have decided that joinder was proper, we need not

consider prejudice.

App. 41

not allow the appellants to discover either the type of

microphone used in Harvey’s office, or where the

microphone was hidden. The appellants contend that

consequently they were deprived of the right to confront

the witnesses against them. The government resisted

such revelations on the ground that they would adversely

affect future criminal investigations. It asks us to recognize

a privilege not to disclose the location and type of

equipment used in surveillance unless the defendant

demonstrates that such information is relevant and

helpful to the defense.

-[23] We recognize a qualified government privilege

not to disclose sensitive investigative techniques. In

Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1

L.Ed.2d 639 (1957), the Supreme Court acknowledged

the existence of an “informer’s privilege.” The Court

stated that the government has a privilege to withhold

the identity of persons who furnish information of

violations of law to the police, reasoning that the privilege

furthered effective law enforcement by encouraging

citizens to come forward with relevant information. 353

U.S. at 59, 77 S.Ct. at 627. The privilege must give way,

however, where the informant’s identity of knowledge

is “relevant and helpful to the defense of an accused, or

is essential to a fair determination of a cause.” Id. at

60-61, 77 S.Ct. at 627-28.

The District of Columbia Circuit has applied the

Roviaro privilege to surveillance locations. See United

States v. Harley, 682 F.2d 1018, 1020-21. (D.C.Cir.1982);

United Siates v. Green, 670 F.2d 1148 (D.C.Cir.1981). In

Green, a police officer using binoculars observed the

defendant committing a drug transaction. The defendant

App. 42

wished to identify the precise location of the officer's

observation post. The court ruled that the information

was privileged.

Just as the disclosure of an informer’s identity

may destroy his future usefulness in criminal

investigations, the identification of a hidden

observation post will likely destroy the future

value of that location for police surveillance.

The revelation of a surveillance location might

also threaten the safety of police officers using

the observation post, or lead to adversity for

cooperative owners or occupants of the building.

Finally, the assurance of nondisclosure of a

surveillance location may be necessary to

encourage property owners or occupants to

allow the police to make such use of their

property.

670 F.2d at 1155. Green was decided in the context of

a motion to suppress; the District of Columbia Circuit

extended the privilege to trial testimony in Harley. In

Harley two officers observed a drug transaction, one

using binoculars, the other video-taping it with a zoom

lens. Again, the defendants attempted to learn the

precise viewing location. The court held that the

defendant’s right to confront witnesses was not violated

in light of the government’s interest in keeping its

surveillance post secret, and the defendant’s failure to

show a need for the evidence. 682 F.2d at 1020-21. In

considering the defendant’s need, the court reasoned

that the jury could judge the observer's ability to

identify by seeing the video tapes made from the

surveillance spot, and from testimony of the approximate

distance. See also United States v. Crumley, 565 F.2d

App. 43

945, 950-51 (5th Cir. 1978) (government need not reveal

where “track sheet” identifying vehicle parts was hidden

unless defendant shows need).

[24] We hold that the privilege applies equally to

the nature and location of electronic surveillance

equipment. Disclosing the precise locations where

surveillance devices are hidden or their precise

specifications will educate criminals regarding how to

protect themselves against police surveillance.

Electronics surveillance is an important tool of law

enforcement, and its effectiveness should not be

unnecessarily compromised. Disclosure of such

information will also educate persons on how to employ

such techniques themselves, in violation of Title III.

The privilege will give way if the defendant can

show need for the information. In this case the appellants

contend that the information was necessary to

demonstrate that the voices on the tapes could have

been distorted, resulting in improper voice

identifications. They insist that testimony of Agent

Copus and their own expert witness indicated that the

location of the microphone could have resulted in

distortion.

[25] The district court conducted an in camera

hearing to review the government’s assertion of privilege

and held a hearing on the appellants’ claim of necessity.

We agree with the district court that the information

was privileged and that the defendants did not

demonstrate necessity. There was testimony that the

voices could have been distorted by the way the

microphone was hidden. The district court, however,

App. 44

listened to Agent Copus, who was monitored from

Harvey's office during the course of the investigation

and was able to compare Agent Copus’ voice on the

tapes with his actual voice and determine that the

voice had been accurately recorded. The appellants

were allowed to examine the tapes, and were informed

that the transmission was by air rather than wire. The

ultimate question of whether the voice identifications

of the appellants were correct was given to the jury

and the appellants were allowed to explore and argue

the possibility of misidentification in front of the jury.

Accordingly, we agree with the district court’s finding

that necessity was not shown in this case.

We stress that the necessity determination requires

a case by case balancing process, and that we have

established no fixed rules about the discoverability of

electronic surveillance techniques in criminal cases.

See Roviario v. United States, 353 U.S. 53, 60, 77 S.Ct.

§23, 627, 1 L.Ed.2d 639 (1957); United States v. Harley,

682 F.2d 1018, 1020 (D.C.Cir.1982)."°

D. Timeliness of the Government’s Request for Voice

Exemplars

During the eighth week of trial, the government

requested that the appellants provide voice exemplars,

to be played before the jury in order to confirm the

"The appellants also contend that the Classified Information

Procedures Act, 18 U.S.C. app. iv., applies to the information they

sought. Appellants are wrong. The district court did not find that

the information was classified nor do appellants provide any reason

why it should have. See 18 U.S.C. app. iv §I (defining classified

information); United States v. Panas, 738 F.2d 278, 285-86 (8th Cir.

1984).

App. 45

identifications. Appellants Sikes and Bertelsen concede

that the government had the right to compel the

defendants to give exemplars, see United States v.

Dionisio, 410 U.S. 1, 93 S.Ct. 754, 35 L.Ed.2d 67 (1973),

but argue that the government’s request came too late.

The appellants contend that the district court’s

standing discovery order required the government to

disclose its intention to seek voice exemplars. That

order, requiring the government to disclose statements

of the appellants within its “possession, custody, or

control,” parallels the requirements of Rule 16.

According to appellants, because the government had

the authority to compel exemplars, the exemplars were

within its control and the government was bound to

disclose that it intended to seek them. This argument

is absurd. The discovery order applied to statements

the government had, not statements that it could have

had.

[26] In any event, the appellants have shown no

prejudice from the government's delay. The complain

that they had become committed to the defense of

improper identification, but they provide no alternative

theory of defense which they could have presented had

they known the government intended to seek voice

exemplars. Indeed, in light of the contents of the tapes,

improper identification appears to have been the most

logical defense.

E. Admissibility of Intercepted Conversations

Referring to Bertelsen’s Arrest

Appellant John Bertelsen was arrested for loitering

and prowling near a Coast Guard Station on October 1,

App. 46

1980. Numerous other members of the conspiracy were

also arrested on that day. The state Title III wiretap on

Jernigan’s phone intercepted conversations about the

arrests, the various charges, and obtaining releases

and included mention of Bertelsen’s arrest. The

government has conceded that the arrest of Bertelsen

was unlawful. Bertelsen claims, therefore, that the

conversations about the arrest should have been

excluded, and that the government should not have

been allowed to argue that the conversations

demonstrated Bertelsen’s connection with the

conspiracy.

(27, 28] We hold that the conversations of

Bertelsen’s coconspirators regarding his arrest were

not the product of the illegal arrest. Evidence seized

during an unlawful arrest, or statements made by the

person unlawfully arrested while in custody, are products

of the arrest and will be suppressed. Evidence with

only a loose causal connection to an illegal arrest,

however, will not be suppressed. Wong Sun v. United

States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d

441 (1963). The mere existence of a “but for” causal

connection does not mandate suppression. Dunaway v.

New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 2259, 60

L.Ed.2d 824 (1979); United States v. Bailey, 691 F.2d

1009, 1013 (1982), cert. denied, 461 U.S. 933, 103 S.Ct.

2098, 77 I..Ed.2d 306 (1983). In this case, the causal

connection was broken by the intervening acts of third

parties. The challenged evidence is not a statement

made by Bertelsen, but statements made about

Bertelsen by third parties. Accordingly, the evidence

was not the fruit of the illegal arrest and suppression

was not required.

App. 47

F. Use of Prior Similar Act Evidence Against Campbell

[29] Appellant Campbell complains that the

government used similar act evidence against him in

violation of a prior agreement. The evidence

demonstrated that Campbell had been arrested and

convicted on state marijuana charges in 1978. After the

conviction, Campbell and the federal government

entered into an agreement in which the government

agreed not to pursue any criminal or civil liability arising

out of the event; Campbell agreed to forfeit a vessel to

the United States.

The use of evidence of the prior arrest did not

violate the agreement. The government agreed not to

pursue any charges for the events leading to the arrest.

The government did not agree to never use the arrest

as evidence in a prosecution for subsequent criminal

activity.

G. Sufficiency of the Evidence with Respect to

Convictions Under 18 U.S.C. §1001

Appellants Marion Van Horn and Gary Balough

were convicted of conspiracy to make false statements

in violation of 18 U.S.C. §1001. The appellants contend

that there was sufficient evidence to prove that they

agreed to make false statements, that the false statements

were not material and that the “exculpatory no” exception

to section 1001 applies.

Agreement

[30] In considering the sufficiency of the evidence

to convict we view the evidence in the light most favorable

App. 48

to the government, with all reasonable inferences drawn

in favor of the jury’s verdict. Glasser v. United States,

315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

With respect to whether the appellants reached an

agreement with Harvey to make false statements, the

evidence is clear. The evidence disclosed that on several

occasions Harvey and Van Horn discussed what Van

Horn should say to the FBI and that Van Horn agreed

to lie to the FBI about his connection with the conspiracy

and about Harvey. Overt acts were committed in

futherance of the conspiracy: on November 21, 1980,

Van Horn spoke with the FBI and told the agents that

Harvey had instructea him to cooperate fully.

With respect to Balough, an intercepted conversation

on November 18, 1980, provided sufficient evidence to

convict. Harvey and Balough discussed what Balough

should say to FBI investigators; in particular, they

discussed how to portray Harvey’s relationship with

his girl friend Trudy Stalker. Harvey had given Stalker

expensive gifts, which he feared would raise suspicion.

Harvey and Balough agreed that Balough would tell

agents that Stalker was a race car groupie, and that

Harvey had not purchased gifts for her. They also discussed

what Stalker was to say. An overt act was committed in

furtherance of the conspiracy as Stalker spoke to FBI

agents.

Materiality

[31, 32] A statement is material for the purposes

of section 1001 if it has a “ ‘natural tendency to influence,

or be capable of affecting or influencing, a governmental

function. ” United States v. Lopez, 728 F.2d 1359, 1362

(11th Cir.1984) (quoting United States v. McGough, 510

App. 49

F.2d 598, 602 (5th Cir.1975)), cert. denied, ____ USS.

, 105 S.Ct. 112, 83 L.Ed.2d 56 (1984). The statements

need not have exerted actual influence, so long as it

had the capacity to do so. Jd. The statement that the

conspirators agreed to in this case were material. Harvey

was the main target of the FBI investigation, and Van

Horn agreed to mislead the FBI about Harvey. The

record indicates the FBI was interested in using Staiker

to obtain information about Harvey, and the misstatements

Balough agreed to make would have misled the FBI

about Harvey’s relationship with Stalker.

Exculpatory No

{33] The “exculpatory no” exception to section

1001 was established in this circuit in Paternostro v.

United States, 311 F.2d 298 (5th Cir.1962). There the

court held that section 1001 did not cover negative

exculpatory responses to questions propounded by an

investigating agent during a conference not initiated

by the interviewee. /d. at 309. The exception is based

both on the purpose of the statute and the fifth amendment

right against self-incrimination. The exception therefore

does not apply when a person attempts to affirmatively

mislead a government investigation. United States v.

Krause, 507 F.2d 113 (5th Uir.1975) (defendant used

“aggressive action” to mislead NLRB investigation);

United States v. Bush, 503 F.2d 813, 818 (5th Cir.1974)

(“there is a valid distinction between negative exculpatory

denial of a suspected misdeed and an affirmative

representation of facts peculiarly within the knowledge

of the suspect not otherwise obtainable by the

investigator.’).

[34] The discussions between Harvey and Van Horn

do not simply show an intent that Van Horn deny

wrongdoing, but an intent that Van Horn lead the FBI

investigation away from Harvey. On November 18, Harvey

and Van Horn discussed an upcoming FBI interview,

and Van Horn’s denial of knowledge of involvement by

Harvey. On November 21, Van Horn reported to Harvey

that he had told the FBI that Harvey wanted him to

cooperate. On December 30, Harvey theorized to Van

Horn that the FBI would offer Van Horn immunity.

They also discussed a lawyer for Van Horn; Harvey

agreed to pay for one, but told Van Horn not to tel! the

FBI about it. Van Horn did not simply agree to deny

personal wrongdoing, but to mislead the FBI about

Harvey. Accordingly, the exculpatory no exception does

not apply.

Similarly, the exculpatory no does not apply to

Balough’s agreement to lie on behalf of Harvey; Balough

did not agree simply to deny connection with Harvey,

but to affirmatively steer the FBI in the wrong direction.

For the reasons stated, the convictions are

AFFIRMED.

App. 51

ON PETITIONS FOR REHEARING

AND SUGGESTION FOR

REHEARING EN BANC

(Opinion Oct. 15, 1985, 11th Cir.1985,

773 F.2d 1158)

UNITED STATES OF America,

Plaintiff-A ppellee,

v.

Marion VAN HORN, Scott Bertelsen, Gary Balough,

Dennis Kay, Robert Van Horn, Dennis Cason, Thomas

Sikes, John Crosby Bertelsen, Joseph William

Campbell, Defendant-Appellants.

UNITED STATES of America,

Plaintiff-A ppellee,

v.

William Joseph HARVEY, a/k/a Billy,

Defendant-A ppellant.

Nos. 83-5102, 84-5138.

United States of Court of Appeals,

Eleventh Circuit

July 25, 1986.

Appeal from the United States District Court for

the Southern District of Florida.

App. 52

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING

EN BANC

(Opinion May 23, 1986, 11 Cir.,

789 F.2d 1492).

Before FAY and KRAVITCH, Circuit Judges, and

HENLEY*, Senior Circuit Judge.

PER CURIAM:

The opinion of the court filed on May 23, 1986 is

modified as follows:

The first sentence of the first paragraph of the slip

opinion at page 3610 is hereby deleted and the following

substituted:

We also note that Jernigan did not introduce any

evidence at trial.

The text of footnote 1 on page 3597 is hereby

deleted and the following substituted:

Appellant Harvey went to trial before the

district court judge based on a stipulated trial

transcript and was convicted. The remaining

appellants went to trial and were convicted by

a jury.

*Honorable J. Smith Henley, Senior U.S. Circuit Judge for the

Eighth Circuit, sitting by designation.

App. 53

The Petition for rehearing by the panel is DENIED. No

member of this panel nor judge in regular active service

on the court having requested that the court be polled

on rehearing enbanc, the suggestion for rehearing en

bane is DENIED.

App. 54

UNITED STATES of America,

Plaintiff,

V.

William Joseph Harvey, et al.,

Defendants.

No. 82-73-Cr-SMA.

United States District Court,

S.D. Florida,

Miami Division.

Aug. 30, 1982.

On Motion to Vacate Restraining Order

Feb. 14, 1983.

In prosecution brought under, inter alia, the continuing

criminal enterprise statute, defendants moved to suppress

electronic surveillance and any evidence derived therefrom.

The District Court, Aronovitz, J., held that: (1) probable

cause was established for initial electronic surveillance order

as well as the extensions; and (2) order authorizing use of

state wiretap evidence did not violate statutory provision

requiring subsequent application prior to disclosure or use

of incidentally intercepted communications. Upon one

defendant’s motion to vacate a restraining order. permitting

him from disposing of his beneficial interests in assets during

pendency of the criminal proceedings against him and upon

his alternative motion for an adversary hearing, the District

Court held that: (3) defendant was entitled to a probable

cause type of hearing; and (4) Government showed by a

preponderance of the evidence that it would likely convince

jury, beyond a reasonable doubt, that defendant committed

three or more federal narcotics violations in concert with

five or more persons and that the assets which were subject

of restraining order were subject to forfeiture under continuing

criminal enterprise statute; thus, district court would not

vacate restraining order which prevented defendant from

App. 55

selling or transferring his beneficial interest in the assets

during pendency of criminal proceedings against him.

Motions to suppress denied; motion to vacate restraining

order denied.

1. Telecommunications —492

Federal electronic surveillance statute is constitutional.

18 U.S.C.A. §2510 et seq.

2. Telecommunications —512

Wiretap order was properly authorized inasmuch as

general order of delegation survived resignation of Attorney

General who gave the initial authorization. 18 U.S.C.A. §2516.

3. Telecommunications —519

Wiretap order was not invalid on ground that it authorized

FBI to conduct drug-related surveillance where RICO allegation

in the investigation was not limited to strictly drug-related

offenses but also allegedly involved bribery of public officials,

murder, stolen car engines and other offenses. 18 U.S.C.A.

§§ 1961, 1962, 2510(7), 2516, 2518(4)(d).

4. Telecommunications —519

It is not necessary for FBI to have specific investigation

responsibilities for specific offenses before it can participate

in court-approved interceptions directed at those offenses.

18 U.S.C.A. §2516.

5. Commerce —82.5

Marijuana related drug offenses may be predicate to

racketeering acts under RICO. 18 U.S.C.A. §1961(1)(D).

6. Telecommunications —515

Same probable cause standard which exists for search

warrants is applicable to wiretaps; probable cause exists

where facts and circumstances within affiant’s knowledge,

and of which he has reasonably trustworthy information, are

App. 56

sufficient unto themselves to warrant a man of reasonable

caution to believe than an offense is being committed, has

been committed, or is about to be committed. 18 U.S.C.A.

§2518.

7. Telecommunications —515, 530 }

In issuing a wiretap order, judge must exercise his own

judgment, gleaned from a commen sense reading of the entire

affidavit, as to whether the facts alleged constitute probable

cause and when judge or magistrate acts in that manner, his

determination as to probable cause is conclusive in absence

of arbitrariness, i.e., a judge’s determination of probable

cause should be accorded great deference by reviewing courts

as long as he performs his independent function and did not

merely serve as a rubber stamp for the police. 18 U.S.C.A.

§2518.

8. Telecommunications —515

Where much of the information in affidavit in support

of application for wiretap order comes from confidential

informants, magistrate’s or judge's search for probable cause

must be guided by and measured against a standard set

forth in Aguilar v. Texas and Spinelli v. United States.

9. Telecommunications —515

Affidavit, which established reliability of informants

and revealed that the informants had furnished information

to FBI over a protracted period of time which displayed

intimate detail that could come only from persons who were

integrally situated within circle of defendant’s activities

which, when combined with FBI’s independent corroboration

of much of the information through verification of

nonincriminating facts, would lead a man of reasonable prudence

to believe that an offense had been committed based upon

the facts and circumstances contained in the affidavit,

established probable cause for issuance of electronic surveillance

order.

App. 57

10. Telecommunications —515

To warrant electronic surveillance under RICO,

Government was not required to prove a prima facie case of

RICO conspiracy in its application but was required only to

show the probable cause standard of probability that there

was, is, or would be a RICO violation; furthermore, Government

was not required to set forth sufficient facts for issuing

judge to conclude that there was probable cause to believe

that each person named as a person whose conversations

would probably be intercepted committed the offenses. 18

U.S.C.A. §2518(1)(b).

11. Telecommunications —515

Initial probable cause for electronic surveillance to gather

information concerning an ongoing narcotics conspiracy did

not beceme stale during first 30-day period of electronic

surveillance because first three five-day progress reports

did not show any progress.

12. Telecommunications —516

Showing by Government that other methods had failed

or reasonably appeared to be unlikely to succeed if tried or

would be too dangerous was sufficient to support electronic

surveillance order. 18 U.S.C.A. §2518(3).

13. Telecommunications —516

The more traditional techniques need not be exhausted

if they are impractical or costly and inconvenient in order to

obtain an electronic surveillance order. 18 U.S.C.A. §2518(3).

14. Telecommunications —516

For purposes of obtaining an electronic surveillance

order, determination that other investigative techniques will

net succeed may not be based upon affidavits that include

only bare conclusory statements. 18 U.S.C.A. §2518(3).

15. Telecommunications —516

Statute governing electronic surveillance does not require

that all possible techniques be tried before a wiretap may be

authorized; rather, its purpose with regard to requiring a

showing of alternative investigative techniques is to inform

issuing judge of the difficulties involved in the use of

conventional techniques. 18 U.S.C.A. §2518(1)\(c),(3\c).

16. Telecommunications —516, 530

In ruling upon propriety of issuance of electronic

surveillance order, courts will not set unduly burdensome

standards on Government's demonstration that no reasonable

alternative existed; consideration discretion rests with issuing

judge in deciding whether other investigative methods might

have been successfully employed. 18 U.S.C.A. §2518(1\(c), (3)(e).

17. Telecommunications —527

Sealing requirements of federal electronic surveillance

statute were not violated as result of fact that the original

intercepted tapes from initial 30-day period were not sealed

until the end of entire surveillance or that no directions

were contained in the order as to care, custody or sealing of

tapes. 18 U.S.C.A. §2518(8).

18. Telecommunications —528

With regard to service of notice of inventory, federal

statute governing electronic surveillance requires no more

than reasonable efforts to reach persons within statute's

inventory group and suppression is mandated only if the

defendants receive notice on eve of trial and were able to

show prejudice resulting from delay or noncompliance. 18

US.C.A. §2518(8)(d).

19. Criminal Law —394.3

Suppression of evidence obtained for use of electronic

surveillance would not be ordered for delay or noncompliance

App. 59

with statutory requirement concerning service of notice of

inventory where no defendant was able to show prejudice

resulting from the delay or noncompliance. 18 U.S.C.A.

§2518(8\d).

20. Telecommunications —515

Government can rely on conversations intercepted during

‘nitial electronic surveillance to provide probable cause for

renewal as well as relying upon probable cause supplied in

the initial application.

21. Telecommunications —519

It is permissible that a wiretap continue until Government

accumulates enough evidence to determine scope otf the

conspiracy and identify individuals involved.

29. Telecommunications —515

Progress reports indicating conversations dealing with

drug transactions, initial application and application for

extension and affidavits of initial and extension orders

supported finding of probable cause for an extension of

wiretap order.

23. Telecommunications —513

District judge had authority to execute an order extending

electronic surveillance while outside his territorial jurisdiction

where the order was operative within his territorial jurisdiction.

24. Criminal Law —394.3

There was no basis for suppression of results of electronic

surveillance for failure to include a certain defendant in

earlier applications and orders as 2 “target” of the surveillance

where FBI only identified that individual as a person known

to be committing the offense and whose conversations were

likely to be intercepted at a date subsequent to initial application

and order and initial extension application and order; thus,

evidence obtained by surveillance both before and after

order authorizing an intercept of that defendant's conversations

could be used against him. 18 U.S.C.A. §2518(1 Ma).

25. Telecommunications —515, 529

Although federal statute governing continuing criminal

narcotics enterprises was not specifically cited in application

for order authorizing electronic Surveillance, affidavit set

forth probable cause as to each of the elements of an offense

under that statute and therefore Government was not required

to obtain subsequent authorization to disclose product of

electronic surveillance revealing violation of statute governing

continuing criminal narcotics enterprises. Comprehensive

Drug Abuse Prevention and Control Act of 1970, §408, 21

U.S.C.A. §848; 18 U.S.C.A. §2517(5).

26. Telecommunications —5i]

Where authorizing judge is presented with applications

to extend electronic surveillance, affidavits in support thereof,

and/or progress reports of the interceptions obtained, and

upon examination of those materials the judge grants

authorization for an extension of the surveillance, that

subsequent approval satisfies requirements of statutory

provision requiring a subsequent application prior to disclosure

of incidentally intercepted comunications if the supplemental!

materials disclosed to judge that communications relating

to offenses other than those specified in the original application,

affidavit and order were intercepted. 18 U.S.C.A. §2517(5).

27. Telecommunications —520

Although statute governing continuing criminal narcotics

enterprises was not specifically cited in application for order

authorizing electronic surveillance, trial judge, in issuing

extension orders, gave implicit approval and authorization

for interception of communications relating to violations of

App. 61

that statute and therefore Government satisfied requirements

of statutory provision requiring subsequent application prior

to disclosure or use of incidentally intercepted communications.

Comprehensive Drug Abuse Prevention and Control Act of

1970, §408, 21 U.S.C.A. §848; 18 U.S.C.A. §2517(5).

28. Criminal Law —394.3

Unintentional omission of one page from 55 page affidavit,

which contained information regarding a previous state wiretap

of which one defendant was the target, did not warrant

suppression of product of electronic surveillance for violation

of provisions of federal wiretap statute relating to disclosure

of previous applications, approval of application by designated

official, or showing of necessity for electronic surveillance in

application where the omission of the page did not detract

from sufficiency of the enumerated factors necessary for

authorization of the interceptions and where a full and complete

application was submitted to and approved by Justice

Department and where judge as subsequently apprised of

the prior state wiretap. 18 U.S.C.A. §§ 2516, 2518(1\(b), (3\(c).

29. Criminal Law —394.3

Omission of one page from 55 page affidavit for wiretap

order, which contained reference to a state wiretap of which

one defendant was a target, did not provide a basis for

suppression of product of the electronic surveillance where

defendants failed to prove an intentional omission or reckless

disregard for the truth and where inclusion of the omitted

page in the affidavit would not have vitiated the probabie

cause showing.

30. Telecommunications —515

Affidavit for wiretap order is invalid only if it is shown

by a preponderance of the evidence that it contains knowing

and intentional material misrepresentations, where there

has been a reckless disregard for the truth as to material

matters, and without the false material, the affidavit is

insufficient to establish probable cause.

31. Telecommunications —520

Government met its burden of establishing that

minimization requirement was met with regard to interception

of oral communications in officc under surveillance in connection

with an investigation of defendants’ activities relating to

narcotics trafficking. 18 U.S.C.A. §2518(5).

32. Telecommunications —520

In determining whether Government has met its burden

of establishing that its electronic surveillance has met

requirement that interceptions be conducted in such a way

as to minimize the interception of communications not otherwise

subject to interception, there must be an objective assessment

of agents’ actions in light of the facts and circumstances of

their particular case in order to determine their reasonableness;

three factors are considered in determining reasonableness:

nature and scope of criminal enterprise under investigation,

Government’s reasonable interference of the character of a

conversation from the parties to it, and extent of judicial

supervsion. 18 U.S.C.A. §2518(5).

33. Criminal Law —394.3

Federal Courts —386

Validity of a state wiretap authorization is to be determined

under state law; however, admissability of evidence at trial is

governed by federal law.

34. Telecommunications —515

Affidavit for state wiretap order, which detailed

information commencing over two years prior to the application

relating to continuing pattern of criminal activity leading to

violations of Florida narcotics laws and marijuana smuggling,

App. 63

established probable cause for issuance of state wiretap

under Florida law, nothwithstanding contentions that

information supplied by informants was insufficient and that

the information was stale. West’s F.S.A. §934.09(3).

35. Telecommunications —516

Affidavit submitted in support of application for state

wiretap order demonstrated the statutory necessiiy lo resort

to the wiretap. West’s F'S.A. §$34.09(3).

36. Teiecommunications —512

State wiretap order was not invalid on ground of improper

authorization as result of fact that Florida State Attorney,

who personaily authorized police detective to apply a wiretap

order, did not personally apply for wiretap order. West's

F'S.A. §934.07.

37. Telecommunications —493

Florida law authorized wiretap for marijuana

offenses. West’s F.'S.A. §934.07.

38. Telecommunications —529

Order authorizing use of state wiretap evidence did not

violate statutory provision requiring subsequent application

prior to disclosure or use of incidentally intercepted

communications. 18 U.S.C.A. §2517(5).

39. Telecommunications,—529

Testimony of witness presented to federal grand jury

was not evidence derived from state wiretap and therefore

did not require authorization prior to disclosure of witness’

testimony. 18 U.S.C.A. §2517(5).

On Motion to Vacate Restraining Order

40. Criminal Law —1221

Hearsay testimony was admissible in evidentiary hearing

in which defendant sought to vacate ex parte restraining

ae

App. 64

order preventing him from selling, transferring, assigning,

or otherwise disposing of any part of his beneficial interest

in certain assets, which were subject to forfeiture under

continuing criminal enterprise statute upon his conviction,

during pendency of criminal proceedings against him.

Comprehensive Drug Abuse Prevention and Control Act of

1970, §408, 21 U.S.C.A. §848.

41. Criminal Law —1221

Defendant would be given a probable cause type of

hearing after entry of ex parte order restraining sale or

transfer of his interest in certain assets, which would be

subject to forfeiture under continuing criminal enterprise

statute, upon conviction, during pendency of criminal

proceedings against him. Comprehensive Drug Abuse

Prevention and Control Act of 1970, §408(d), 21 U.S.C.A.

§848(d).

42. Drugs and Narcotics —195.

Government showed by a preponderance of the evidence

that it would likely convince jury, beyond a reasonable doubt,

that defendant committed three or more federal narcotics

violations in concert with five or more persons and that the

assets which were subject of restraining order were subject

to forfeiture under continuing criminal enterprise statute;

thus, district court would not vacate restraining order which

prevented defendant from selling or transferring his beneficial

interest in the assets during pendency of criminal proceedings

against him. Comprehensive Drug Abuse Prevention and

Control Act of 1970, §408, 21 U.S.C.A. §848.

Stanley Marcus, U.S. Atty., S.D. Fla., by Neil Karadbil,

Asst. U.S. Atty., Miami, Fla., for plaintiff.

James Jay Hogan, Joseph Beeler, Miami, Fla., for

defendants.

App. 65

III.

IV.

VI.

VI.

INDEX

. CONSTITUTIONALITY OF 18 US.C.

oc ys

. ALLEGED INVALIDITY OF ORDER UPON

BASIS THAT AUTHORIZATION TO APPLY

THEREFOR WAS NOT PERSONALLY

EE A a art a

AUTHORIZATION OF FB.I. AGENTS TO

INVESTIGATE DRUG-RELATED

NN eg Se SOE i bp neo ops a a os

MARIJUANA-RELATED DRUG OFFENSES

MAY BE PREDICATE RACKETEERING

Foe 8) 8 | Eee

PROBABLE CAUSE FOR THE OCTOBER

I oso eine sb o's ogee nee a o's

1. Sufficiency of probable cause in the

a ce Sap a asa a oe ek ae

sp ows Vin 0 Voce eens once

3. Continuation of future conversations about

past bribes, homicides, ete..............

4. Staleness of the probable cause. .......

5. Necessity showing for the order was

inadequate (use of alternative investigative

DG os I reek e as nse ey sss

SEALING REQUIREMENTS ............

THE ORDER OF NOVEMBER 20, 1980 WAS

ALLEGEDLY INVALID .................

1. Carry-Over Objections. ...............

2. Insufficient probable cause for an

NE RR i a ly Se ie aa a

App. 66

pe.

pg.

ps

. 1047

1049

. 1050

. 1050

. 1050

. 1053

. 1053

. 1054

. 1055

. 1057

. 1058

. 1058

. 1058

VII.

IX.

XI.

XII.

INDEX (Continued)

3. Was the district judge without authority

to execute an extension order outside his

territorial jurisdiction but operative within

his territorial jurisdiction? ............. pg.

THE ORDER OF DECEMBER 19, 1980 WAS

ALLEGEDLYINVALID ...... | ng.

1. Carry-Over Objections. ............... pg.

2. Prior failure to name Defendant Kay as a

INS Sd kine od VENER S aoe a pg.

ALLEGED §2517(5) VIOLATION (DIS-

CLOSURE OF TITLE III INTERCEPT AS

TO A §848OFFENSE)................... pe.

1. Section 848 was not an offense “other

than those specified in the order of autho-

rization or approval” under §2517(5). ..... pg.

2. The requirement of §2517(5) was met..... pg.

. THE EFFECT OF MISSING PAGE 21C ...._ pg.

1. Alleged violations of Title III........... pg.

2. The allegation of intentional omission and

the effect of missing page 21C on the

showing of probable cause.............. pg

ag ee pg

FLORIDA STATE CHAPTER 934

ks RE Nas aOR a, ir aR pg

ie I oa aks ee tod en ee pg

a pg

3. Improper Authorization. .............. pg

App. 67

1058

1058

1058

1058

1060

1063

1066

1067

1070

. 1073

. 1075

. 1076

. 1077

. 1078

. 1078

} INDEX (Continued)

4. First and Second Extension Orders

I ia a oe beds ves ees pg. 1078

5. No authorization in Florida Stautes to

wiretap for marijuana offenses. ......... pg. 1079

6. Whether §2517(5) was violated regarding

eee pg. 1079

ORDER DENYING MOTIONS TO SUPRESS TITLE III

ELECTRONIC SURVEILLANCE AND EVIDENCE

DERIVED THEREFROM AND INCLUDING DENIAL

OF MOTION TO SUPPRESS STATE TITLE III WIRE

INTERCEPT AND EVIDENCE DERIVED

THEREFROM

ARONOVITZ, District Judge.

Defendants WILLIAM JOSEPH HARVEY, THOMAS

SIKES and DENNIS KAY’ addressed Motions to Suppress

electronic surveillance and any evidence derived therefrom

to a Title III oral intercept of communications of William

Joseph Harvey, John Dennis Cason, Robert Jernigan, Bruce

Emory Griffin, Wesley Simkins, Mike McCrary, Skip Hope,

Arthur Michael Sakell, Joseph William Campbell, Jr., Gary

Balough and Parker Peak, at the office of William Joseph

Harvey, Defendant, located at 1945 South Dixie Highway,

Delray Beach, Florida, a towing business conducted by Delray

'The following Defendants have also filed Motions to Suppress the

federal Title III electronic surveillance and/or the Florida state Chapter

934 wiretap: Robert Gainer Jernigan, Joseph William Campbell, Jr., Gary

Balough, John Dennis Cason, Gene Johnson, Marion Van Horn, Robert

Van Horn, John Bertelsen, Scott Bertelsen and Jay Jernigan. Several

Defendants have also filed Motions to Join and/or Adopt the Motions to

Suppress filed by other Defendants. The Motions to Join and/or Adopt

are hereby GRANTED, but only insofar as the Defendants seeking to

Join and/or Adopt are “aggrieved persons” as defined in the Act. See 18

U.S.C. §§ 2510(11), 2518(10)a).

App. 68

Towing Service, Inc., of which Harvey was alleged to be

president.

The Honorable Eugene P. Spellman, U.S. District Judge,

Southern District of Florida, entered the original order

authorizing interception on October 20, 1980, for thirty (30)

days (Defendant’s Exhibit No. 4); an amended order on October

22, 1980 (Defendant’s Exhibit No. 5); an order authorizing

continued interception of oral communications for an additional!

thirty (30) days on November 20, 1980 (Defendant's Exhibit

No. 16); and an order continuing interception for an additional

thirty (30) days signed on December 19, 1980 (Defendant's

Exhibit No. 26). The oral intercept commenced functioning

on October 24, 1980, and remained in position and functioning

until January 19, 1981.

A multitudinous attack has been made upon this Title

III intercept. After reviewing extensively the original motions,

all supplements thereto then pending, and the Government’s

omnibus response, this Court heard testimony and received

evidence basically addressed to three (3) evidentiary issues,

to-wit:

(1) The adequacy and sufficiency of minimization

procedures and implementation;

(2) The effect of missing page 21C of the original affidavit

of Harold Copus, Special Agent, F.B.I., not found among

the unsealed original documents in this Title III intercept,

as it related to the sufficiency of the affidavit itself to

establish probable cause and as it related on a Delaware

v. Franks [438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667},

infra, basis and all issues arising from the omission of

Page 21C from the original affidavit; and

(3) The adequacy of disclosure pursuant to 21 U.S.C.

§2517(3) and (5) in terms of a prior Florida state Title III

wiretap and the federal Title III wiretap sub judice.

Evidence was received with respect to the State Title

III disclosure issue.

App. 69

All other matters raised by the Defendants in these

Motions to Suppress were legal issues and were heard

extensively in oral a*gwments. The evidentiary hearings

were conducted over a ¢/od of four days and oral argument

thereon lasted one full day. Thereupon, having now considered

the original Motion of William Joseph Harvey, five (5)

Supplements thereto, the Motions of Thomas Sikes and Dennis

Kay and all Supplements thereto, and considering the joinder

therein of all co-defendants who are “aggrieved” persons,

the Government’s omnibus response, the testimony and evidence

adduced and oral arguments, and being otherwise fully advised

in the premises, it is thereupon

ORDERED AND ADJUDGED that each and every Motion

to Suppress the Title III oral intercept and the evidence

derived therefrom, and including Motions to Suppress the

Florida Chapter 934 wire intercept and evidence derived

therefrom, addressed by each and every Defendant entitled

to do so by law is hereby DENIED, each respectively, for the

reasons hereinafter set forth.

Findings of Fact and Conclusions of Law are made

herein when applicable and required for those matters as to

which testimony and evidence were received at an evidentiary

hearing.

I. CONSTITUTIONALITY OF 18

U.S.C. §§ 2516, 2518

[i] In its memorandum in support of the Motion to

Suppress (p. 23) Defendant Harvey “candidly concedes that

most federal and state courts faced with the issue have

found Title III (18 U.S.C. §2510, et seq.) constitutional on its

face. . . . For the purpose of appeal, this issue is once again

here raised. . . .” In United States v. Sklaroff, 506 F.2d 837

(5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d

105 (1975), the Fifth Circuit joined in the holdings of other

circuits that Title III meets the constitutional tests for

electronic surveillance set forth by the U.S. Supreme Court

App. 70

in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87

S.Ct. 1873, 18 L.Ed.2d 1040 (1966). See also United States v.

Tortorello, 480 F.2d 764 (2nd Cir.), cert. denied, 414 U.S. 866,

94 S.Ct. 63, 38 L.Ed.2d 86 (1973); United States v. Cafero, 473

F.2d 489 (3rd Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct.

2622, 41 L.Ed.2d 223 (1974). The statute in question is

constitutional.

II. ALLEGED INVALIDITY OF ORDER UPON BASIS

THAT AUTHORIZATION TO APPLY THEREFOR

WAS NOT PERSONALLY DELEGATED

[2] 18 U.S.C. §2516 provides that the Attorney General

or any Assistant Attorney General specifically designated

by the Attorney General may authorize an application for a

wiretap. Here, authorization was given by Assistant Attorney

General Philip B. Heymann (in charge of the Criminal

Division) pursuant to Order No. 799-78 entered by Attorney

General Griffin Beli on August 15, 1978 (Defendant’s Exhibit

No. 21). In August, 1979, Attorney General Benjamin Civiletti

succeeded the Honorable Griffin Bell as Attorney General,

although no new Order was issued prior to the wiretap

authorization nor was the August 15, 1978 Order revoked.

Two courts have specifically addressed the contention of

Defendants which attempts to narrowly construe wiretap

authorization from being exercised by any individuals other

than the Attorney General or Assistant Attorney General

and the issue of whether a general order of delegation

survives the resignation of Attorney General Griffin Bell.

United States v. Wyder, 674 F.2d 224, 226-27 (4th Cir.), cert.

denied, ___ US. , 102 S.Ct. 2944, 73 L.Ed.2d 1340 (1982)

and United States v. Mallory, 507 FSupp. 99 (D.Md. 1981),

both hold that the general rule that acts of administrative

officials continue in effect after the end of their tenure until

revoked or altered by their successors in office applies in the

circumstances sub judice. The correspondence of October

16, 1980, from Philip B. Heymann, the Assistant Attorney

App. 71

General in charge of the Criminal Division, to Philip Wilens,

Director of the Office of Enforcement Operations, clearly

demonstrates that the surveillance was properly authorized

within the meaning of United States v Giordano, 416 U.S.

505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The specific

designation was lawful because it delegated authority to the

Assistant Attorney General of the Criminal Division, not a

specific named individual. United States v. Wyder, supra,

and United States v. Mallory, supra; United States v. Todisco,

667 F.2d 255 (2nd Cir. 1981), cert. denied, 455 U.S. 906, 102

S.Ct. 1250, 71 L.Ed.2d 444 (1982).

Some Defendants (not Harvey) also argue that paragraph

2 of the authorization order (Defendant’s Exhibit No. 4)

limits the Assistant Attorney General's authorized power to

those situations under §2518(7) dealing with emergencies.

The plain reading of the statute demonstrates that the

authority is contained in the conjunctive and does not limit

the power of the Assistant Attorney General to the specific

emergency situations but instead permits the Assistant

Attorney General to have additional authority to act

specifically in emergency situations. This wiretap was not

authorized under the §2518 emergency provision and the

language in paragraph 2 of the authorization order is not

applicable.

Section 2516 sets up a procedure for authorization to

submit an application to a judge. It does not set forth the

criteria for making application to a judge; rather, it defines

the requirement of obtaining the Attorney General's

authorization. Therefore, Defendant's argument that it was

improper for the Assistant Attorney General to authorize

U.S. Attorney Atlee Wampler, who in turn allegedly

improperly authorized Assistant U.S. Attorney Stephen

Gillman, is without merit. United States v. Bowdach, 366

F.Supp. 1368 (S.D. Fla. 1973), affd 501 F.2d 220 (5th Cir.

1974), cert. denied, 420 U.S. 948, 95 S.Ct. 1331, 43 L.Ed.2d

426 (1975).

App. 72

Therefore, the authorization to apply for the subject

order and its extensions was validly in force and exercised.

III. AUTHORIZATION OF F.B.I. AGENTS TO

INVESTIGATE DRUG-RELATED OFFENSES

[3] 18 U.S.C. §2516 provides that applications may be

made for authority by the FBI, or a federal agency having

responsibility for the investigation of the offense as to which

the application is made, to conduct the wiretap surveillance.

Defendants argue that since §2518(4)\(d) requires that the

identity of the agency authorizing the intercept of the

communication be set out in the order of authorization and

since §2510(7) defines an investigative or law enforcement

officer to mean an officer empowered by law to conduct

investigations for offenses under §2516, the Court’s order

was invalid. Defendants argue that the order purported to

authorize FBI personnel to conduct drug-related surveillance

when responsibility for investigating those offenses lies with

the DEA and not the FBI. Defendants argue that the FBI

does not have jurisdiction over drug investigations and therefore

the wiretap order was invalid since it authorized the FBI to

conduct drug-reiated surveillance.

The Government argues th:.t neither the language of

the statute nor the legislative history support the Defendants’

contention that the Act restricted the FBI's wiretap authority

to only those offenses which are within the exclusive jurisdiction

of the FBI. First, it should be noted that among the offenses

to be investigated by the Order (Defendant’s Exhibit No. 4

and amended Order, Defendant’s Exhibit No. 5) is RICO,

which Defendants do not argue is outside the FBI's jurisdiction.

The basic offenses involved a violation of 18 U.S.C.

§§ 1961 and 1962 (RICO) which clearly entail a series of drug-

related crimes. See United States v. Phillips, 664 F.2d 971

(5th Cir.1981). Moreover, the RICO allegation in this investigation

was not limited to strictly drug-related offenses. It also

allegedly involved bribery of public officials, murder, stolen

App. 73

car engines and conspiracy to commit murders, each

constituting a separate violation of Florida Statutes.

(Defendant’s Exhibits Nos. 2 & 3). The investigation of these

offenses provided a jurisdictional basis within 28 U.S.C.

§501, et seg. and 28 C.FR. §0.85.

A review of the legislative history to §2516(1) supports

a “plain meaning” interpretation as to the responsibilities

envisioned for the FBI in the investigation of such offenses.

The Senate Judiciary Committee Report, S.Rep. No. 1097,

90th Cong., 2nd Sess. 97 (1968), U.'S.Code Cong. & Admin.

News 1966, pp. 2112, 2186 explains §2516(1) as follows:

The order of authorization may permit the Federal

Bureau of Investigation or the Federai agency having

responsibility for the investigation of the offense involved

to intercept the wire or oral communication. The

Department of Justice under the leadership of the

Attorney General must be the central focal point of any

drive against organized crime, particularly in the collection,

analysis, and dissemination of information. It is appropriate

that no limitation be placed on the investigations in

which the investigative arm of the Department may

participate. Organized crime has not limited itself to

the commission of any particular offense. No limitation

should be placed on the Department of Justice.

This passage speaks of possible judicial authorization of

interceptions by “the Federal Bureau of Investigation or the

Federal agency having responsibility for the investigation of

the offense. . . .” It does not indicate that the FBI must

have general investigative responsibility for a given offense

before it may be authorized under §2516(1) to participate in

an interception directed at such an offense.

[4) Section 2516 and the legislative history demonstrate

that it was not necessary for the FBI to have specific

investigative responsibilities for specific offenses before it

could participate in court-approved interceptions directed

App. 74

at those offenses involved herein. The Defendant’s argument

does not find support in either the statute or the history of

the Act.

IV. MARIJUANA-RELATED DRUG OFFENSES MAY BE

PREDICATE RACKETEERING ACTS UNDER RICO

[5] Defendant candidly concedes (p. 1060) that decisions

in this circuit have found marijuana-related drug offenses to

fall within RICO, 18 U.S.C. §1961(1\D) (“any offense involving

. . . the felonious . . . importation. . . or otherwise dealing

in narcotics or other dangerous drugs. . .”) See, e.g., United

States v. Phillips, 664 F.2d 971, 1039-40 (5th Cir.1981)

(“Marijuana may be the subject matter of a RICO charge.”)

Decisions in this circuit have held that marijuana-related

drug offenses fall within RICO. United States v. Phillips,

supra. While Defendant goes on to detail the basis for his

contention that such decisions are in error, this Court is

nevertheless bound by them until an en banc Eleventh Circuit

holds otherwise. See Bonner v. City of Prichard, Alabama,

661 F.2d 1206 (11th Cir. 1981) (en banc).

V. PROBABLE CAUSE FOR THE OCTOBER 20, 1980

ORDER

1. Sufficiency of probable cause in the Affidavit. itself.

This subsection will treat Defendant's attack upon the

sufficiency of the affidavit to establish probable cause within

its four corners; except that there is excluded, at this point,

all matters relating to the sufficiency of missing page 21C

and its context within the affidavit and under Franks v.

Delaware, infra. This latter exception will be discussed later

in this Opinion.

Under Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct.

2674, 2684-2685, 57 L.Ed.2d 667 (1978), there is a presumption

of validity with respect to the affidavit supporting a search

warrant or court order for electronic surveillance. To mandate

an evidentiary hearing, the challenger’s attack must be

App. 75

supported by more than conclusory allegations, and must be

supported by more than a mere desire to cross-examine. A

defendant seeking an evidentiary hearing on the probable

cause shown by affidavits presented to the court must make

“a substantial preliminary showing that the statements in

the affidavits concerning facts material to the finding of

probable cause are deliberately false or made with reckless

disregard for the truth.” United States v. Licavoli, 604 2d

613, 621 (9th Cir.1979), cert denied, 446 U.S. 935, 100 S.Ct.

2151, 64 L.Ed.2d 787. The allegations of deliberate falsehood

or reckless disregard for the truth must be accompanied by

an offer of proof which points out specifically the portion of

the warrant affidavit that is claimed to be false and should

be accompanied by a statement of supporting reasons. Franks,

supra. Affidavits or sworn or otherwise reliable statements

of witnesses should be furnished or their absence

satisfactorily explained — allegations of negligence or innocent

mistake are insufficient. The deliberate falsity or reckless

disregard whose impeachment is permitted by Franks is

only that of the affiant, not of any non-governmental

informant. And, finally, if the above 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

sufficient content in the application to support a finding of

probable cause, no hearing is required. See also, United

States v. Jeffers, 621 F.2d 221, 227 (5th Cir.1980).

Here, no basis for an evidentiary hearing was established

and, in fact, no evidentiary hearing was requested as to the

sufficiency of probable cause within the boundaries of the

affidavit, except as to the attack founded upon missing page

21C.

[6, 7] The same probable cause standard which exists

for search warrants is applicable to wiretaps: probable cause

exists where the facts and circumstances within the affiant’s

knowledge, and of which he has reasonably trustworthy

information, are sufficient unto themselves to warrant a

man of reasonable caution to believe that an offense is being

App. 76

committed, has been committed or is about to be committed.

18 U.S.C. §2518; Berger v. New York, 388 U.S. 41, 55, 87 S.Ct.

1873, 1881, 18 L.Ed.2d 1040 (1967). There need only be a

probability of criminal activity rather than a prima facie

showing. In issuing the order the judge must exercise his

own judgment, gleaned from a common-sense reading of the

entire affidavit, as to whether the facts alleged constitute

probable cause. When the judge or magistrate acts in this

manner, his determination as to probable cause is cenclusive

in the absence of arbitrariness—ie., a judge's determination

of probable cause should be accorded great deference by

reviewing courts as long as he performed his independent

function and did not merely serve as a rubber stamp for the

police. Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir.1973);

United States v. Hyde, 574 F.2d 856, 862 (5th Cir.1978);

United States v. Marcello, 508 F.Supp. 586, 602-603 (E.D.La.

1981).

[8] However, when, as here, much of the information in

the affidavit comes from confidential informants, the

magistrate’s or judge's search must be guided by and measured

against the standards set forth in Aguilar v. Texas, 378 U.S.

108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v.

United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637

(1969), as interpreted by the Fifth Circuit in United States v.

Squella-Avendano, 447 F.2d 575 (5th Cir.), cert. denied, 404

US. 985, 92 S.Ct. 450, 30 L.Ed.2d 369 (1971). Aguilar requires

that the affidavit set forth: (1) the underlying circumstances

from which the informant concluded that criminal activity

was afoot and, (2) the underlying circumstances from which

the affiant concluded that the informant was credible or the

information reliable.

[9] The first prong of the Aguilar test concerning

reliability can be established if the informants past reliability

is known. This enables the court to judge the reliability of

the current information already obtained. If information

from an informant produces fines, savings, recoveries and

App. 77

arrests, they will be attributed to the source as his past

record. Thereafter, law enforcement officers can be fairly

certain they will have future information from a source with

ar already proven record of accomplishment. In the instant

case, both sources #1 and #2 contained in the affidavit have

built a track record of reliable information which culminated

in numerous law enforcement statistics. (99 27, 28.) Based on

their past records, it was possible for Judge Spellman to

estimate that their reliability would be no less in this case.

The second prong of the Aguilar test, namely, whether

an informant’s tip contains the underlying circumstances

from which he arrived at his informatics, is equally important

to establishing probable cause. The affidavit in support of

the order delves into great detail as to how source #1 came

into possession of his information. (§§ 29-36.) It is replete

with instances of personal knowledge inc!uding eyewitness

accounts of criminal wrongdoing by certain Defendants.

(99 34-37). Other inputs by source #1 as to underlying

circumstances relate personal contacts with Defendants in

which they admit criminal conduct, such as when one of the

Defendants advised source #1 of the details as to how offload

personnel are paid for their services. ({33.) Moreover, source

#2 also has persona! knowledge of the information contained

in the affidavit. Any observances which were less than actual

criminal conduct on the part of the Defendants were minimal.

Even those instances are bottomed on occasions when

defendants told the source about their narcotics activity or

showed the source evidence of narcotics activity (see °74,

where source #2 was shown from 3 to 4 million dollars by

William Joseph Harvey and told it was from his narcotics

transaction).

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,

21 L.Ed.2d 637 (1969), the Supreme Court held that the

Aguilar test of reliability could be enhanced by law

enforcement corroboration of limited aspects of the

informant’s report through the use of independent sources.

See also United States v. Weinrich, 586 F.2d 481 (5th Cir.

App. 78

1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d

402 (1979). That this very tool was employed on numerous

occasions is evidenced by the instant affidavit which indicates

many surveillances by the FBI and attempts at corroboration

of source information through independent investigation.

Such examples of independent evaluators taken by themselves

do not purport to suggest criminal wrongdoing, but, when

added to source information, have the corroborative cffect of

supporting that information. Spinelli, supra, 393 U.S. at

418, 89 S.Ct. at 590; United States v. Hirschhorn, 649 F.2d

360 (5th Cir.1981); United States v. Escandar, 319 F.Supp.

295, 304 (S.D.Fla. 1970). In most cases it is the detail prov iced

by the information in combination with the corroboration »y

independent investigation that satisfies the court’s concern

with credibility and reliability. United States v. Cummings,

507 F.2d 324 (8th Cir.1974); United States v. Sellers, 483 F.2d

37 (5th Cir.1973), cert. denied 417 U.S. 908, 94 S.Ct. 2604, 41

L.Ed.2d 212 (1974). Both sources #1 and #2 had furnished

information to the FBI over a protracted period of time

which, when taken by itself, displayed intimate detail that

could come only from persons who were integrally situated

within the circle of Defendant's activities. This information,

when combined with the FBI's independent corroboration

of much of the information through verification of non-

incriminating facts, would lead a man of reasonable prudence

to believe that an offense has been committed based upon

the facts and circumstances contained in the affidavit. See

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d

327 (1959). Defendant Sikes attempts to discredit the affidavit

by taking issue with isolated instances within the probable

cause summary. His allegation that paragraphs 20, 21 and 23

are not specific enough is unwarranted, however, as those

items are merely part of the “BACKGROUND” section.

Defendant Harvey’s attacks on probable cause take place in

the statement of facts where certain items are branded as

nebulous and other substantial items are simply glossed

over. In fact, the only specific attack by either Harvey or

App. 79

Sikes’ motion is on paragraph 74c where source #2 heard

several people in a bar talking about offloads. Sikes, however,

omits the specificity contained in the paragraph which

describes the amount of marijuana, the two locations, the

three individuals in charge, and the corroborative source

information that Harvey had “a business deal in Miami.”

(974.) In any event, source #2 as well as source #1 and the

‘concerned citizen’ each provide specific, detailed,

corroborated and reliable information throughout the

affidavit. The description of each source's reliability (see

$4 27-28) provides a textbook example of vouching for an

informational source.

This is in strong contrast with the case of United States vu.

Hyde, 574 F.2d 856 (5th Cir. 1978), wherein the court upheld

an affidavit in which the sole verification of the confidential

informants was that they were “believed to be reliable.” It

also is clear, from a thorough reading of the affidavit, that

the source information comes not from “doubie hearsay”, as

Sikes contends, but in the form of first person observations

of, and conversations with, the principal subjects. The

affidavit is replete with direct evidence supplied not only by

the unnamed witness but also by such named individuals as

Cheryl Campbell, Demetria Leiman, Robin Sorrentino, Janet

Harris, Michael Sorrentino, Frank Wilt and Jerry Siciliani.

As the Fifth Circuit has stated in assessing defense attempts

to scrutizine a surveillance affidavit:

We must also be mindful that probable cause is the sum

total of layers of information and the synthesis of what

police have heard, what they know, and what they

observed as trained officers. We weigh not individual

layers, but the laminated total.

United States v. Weinrich, supra [586 F-2d 481] at 490; quoting

United States v. Edwards, 577 F.2d 883, 895 (5th Cir.1978)

(en banc). Even when no particular source is found to be

reliable, the fact that a number of informants come forward

will supply probable cause. See United States v. Hyde, supra,

App. 80

574 F.2d at 863. It is also clear that an individual who is a

bystander or victim-eyewitness to criminal activity does not

have to meet the A guilar-Spinelli requirements. United States

v. Crfarelli, 589 F.2d 180 (5th Cir.1979). The volume of reliable

information within the 43-page affidavit of Agent Copus

simply cannot be overcome by the Defendants’ arguments.

It is adequate in every sense to meet the tests and

requirements necessary to support the electronic surveillance

orders, with or without missing page 21C.

2. Scope of RICO.

[10] Defendant Harvey argues that to warrant the

surveillance under RICO the Government had to show that

each named subject agreed personally to commit two or

more predicate offenses and that an enterprise existed which

was composed of a group of persons associated together for

the common purpose of engaging in a course of conduct.

Harvey asserts that there has not been the requisite showing

in the affidavits that the persons to be the subject of the

electronic surveillance agreed to commit personally two

predicate offenses. However, the Government need not prove a

prima facie case of RICO conspiracy in the application but

need only show the probable cause standard of probability

that there was, is, or will be a RICO violation. Similarly, if

applied to Harvey’s assertion that the Government did not

show the existence of an enterprise, here again, the

Government is not required to prove that such aa enterprise

existed, rather, the Government need establish only that

there was probable cause to believe that RICO violations

existed.

A warrant will not be invalidated by interpreting an

affidavit in a hypertechnical sense inasmuch as the affidavit

should be viewed in a common sense manner. Considering

the affidavit in its entirety, there was probable cause to

believe that the persons to be electronically surveilled were

part of an enterprise which was engaging in the commission

of the predicate offenses and also probable cause to believe

App. 81

that Harvey had agreed to participate in the enterprise

through commission of two or more predicate offenses.

Other Defendants argue that there was an insufficient

showing of probable cause as to that particular defendant.

Although §2518(1)(b) requires inclusion in the application of

the identity of persons, if known, whose communications are

to be intercepted, this provision is interpreted to place a

limit on the Government’s right to obtain a wiretap and

information about someone whom they knew in advance was

committing the crimes charged and would probably be

intercepted. It seeks to prevent the Government from failing

to disclose the names of individuals who would probably be

intercepted. Defendants argue that the affidavit must set

forth sufficient facts for the issuing judge to conclude that

there is probable cause to believe that each person named as

a person whose conversations would probably by intercepted

committed the offenses. This argument was rejected in United

States v. Martin, 599 F.2d 880, 884-85 (9th Cir.), cert. denied,

441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979), wherein

the court rejected this restrictive approach by holding that

an order can issue upon a probable cause showing with

respect to an individual (here, Harvey), but the staute does

not require a similar showing as to each person named in the

application.

3. Continuation of future conversations about past bribes,

homicides, etc.

Defendant Harvey argues that there was no showing in

the affidavit that there would be future conversations in the

Delray Towing office about past bribes or homicides, but

rather only a showing that there may be future conversations

about marijuana ventures. In addition to the narcotics

offenses, the affidavit names other offenses such as murder,

bribery, the corruption of a Coast Guard officer and stolen

race car engines. The offenses are part and parcel of Harvey’s

criminal enterprise, the foundation of which was drug

smuggling. The Defendant’s contention that the Goverment’s

App. 82

proof was only that such events had taken place in the past

and would not provide future evidence is a distinction without

a difference. Probable cause exists where the affiant’s

evidence would support a reasonable belief that an offense

has been or is being committed. United States v. Flynn, 664

F.2d 1296, 1304 (5th Cir.1982). The affidavit, taken in its

entirety, shows a criminal enterprise that committed crimes

in the past and wouid do so in the future. It is inherent in

such an enterprise that other crimes would be necessary

and plans to commit them as well as measures to cover them

up would be forthcoming. Courts will not invalidate a warrant

by interpreting an affidavit in a hypertechnical, rather than

common-sense manner. ‘See Jones v. United States, 362 U.S.

257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). That such

conversations would occur in the office of William Joseph

Harvey at Delray Towing is amply demonstrated throughout

the affidavit. Source #2, (4§ 62, 63, 64, 66, 68 and 74B), Chery!

Campbell (§75a), Demetria Leiman through Arthur Sakell

(976), and Janet Harris through John Harris (9124), each

described the office as the meeting place for Harvey’s criminal

activity discussions. That fact was reinforced by FBI

surveillance and the many details provided by Source #2.

Evidence thus collected must be seen and weighed as

understood by those versed in the field of law enforcement.

United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66

L.Ed.2d 621 (1981).

This probable cause attack is without merit.

4. Staleness of the probable cause.

[11] Deiendant Harvey next argues that the initial

probable cause, if it existed, became stale during the first

30-day period of the electronic surveillance because the first

three 5-day progress reports did not show any progress. The

electonic surveillance was in place on October 24, 1980. The

first report on October 29, the second report on November

4, and the third report on November 11, 1980 (at 5-day

intervals), each showed no significant conversations.

App. 83

However, the progress report of November 20, showed

significant conversations, commencing November 18, 1980.

Harvey claims that even if there was initial probable

cause, it became stale since no relevant conversations were

intercepted until November 18, 1980. Section 2518(6) provides

that a judge may require progress reports to be made.

United States v. lannelli, 477 F.2d 999, 1002 (3d Cir.1973),

aff'd 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), held

that the sufficiency of progress reports was a matter for the

supervising judge and his discretion to permit the

continuation of the surveillance when reports are sketchy,

must be viewed in light of the fact that there is no

requirement for such reports by the statute. Also, the

activities in which Harvey was alleged to be engaged were

part of an ongoing narcotics operation, not merely a one-

time incident. Therefore, since the very conduct which the

surveillance seeks to disclose is of a protracted or continuing

nature, the time element is of less significance. See United

States v. Weinrich, supra; United States v. Hyde, 574 F.2d

856, 865 (5th Cir.1978); United States v. Tucker, 638 F.2d

1292, 1299 (5th Cir.), cert. denied, 454 U.S. 833, 102 S.Ct. 1382,

70 L.Ed.2d 111 (1981).

The facts of this case indicate an ongoing narcotics

conspiracy. Aside from speculation or strong suspicion on

the part of agents from the FBI, the evidence in the affidavit

shows a conspiracy dating back to May, 1979 (§§ 39-43), and

continuing through September 23, i980. (§74C.} Actually,

the last information was the arrest of Robert Gainer Jernigan

and the departure of William Joseph Harvey which was

learned of on October 14, 1980. The initial wire interception

order was forwarded to Judge Spellman October 17, 1980,

and signed October 20, 1980.

In United States v. Weinrich, supra, the court stated

the basic rule in determing staleness:

In general, the basic criterion as to the duration of

probable cause is the inherent nature of the crime

App. 84

... [wlhere an affidavit recites a mere isolated

violation then it is not unreasonable to believe,

that probable cause quickly dwindles with the

passage of time. On the other hand, if an affidavit

recites activity indicating protracted or continuous

conduct, time is of less significance. (emphasis

supplied).

586 F.2d at 491. This reasoning was followed by the Second

Circuit in a similar case, United States v. Martino, 664 F.2d

860 (1981); see also, Bastida v. Henderson, 487 F.2d 860, 864

(5th Cir.1973).

Probable cause is not determined by a ritualiste counting

of the number of days since the last information and the

warrant’s issuance. United States v. Kirk, 534 F.2d 1262.

1274 (8th Cir.1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971,

53 L.Ed.2d 1091 (1977). Each case must be determined on its

own facts. United States v Martinico, supra; United States

v. Diecidue, 603 F.2d 535, 560 (5th Cir. 1979), cert. denied, 445

U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). It must be

noted, however, that the number of days in the instant case

(27) is comfortably within the time factors courts have mentioned

in determining staleness. [See Hyde, supra, 20-46 days;

Weinrich, supra, 20 days; United States v. Barfield, 507 F.2d

53 (5th Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1684, 44

L.Ed.2d 105 (1975), 40 days; Martino, supra, 22 days.] This

holding applies even in the absence of the instant added

factor of protracted and continuous criminal conduct, a factor

which renders time of less significance. Bastida v. Henderson,

487 F.2d 860, 864 (5th Cir.1973).

The Fifth Circuit, in United States v. Hyde, 574 F.2d

856, 865 (1978), considered the above doctrine in relation to a

wiretap application used in an investigation of ongoing

narcotics trafficking:

The upshot of this rule in practical application has been

to allow a fairly long period of time to elapse between

information and search warrant in cases where the

App. 85

evidence clearly shows a longstanding, ongoing pattern

of criminal activity. This result is even more defensible

in wiretap cases than in ordinary search warrant cases,

since no tangible objects which can be quickly carried

off are sought.

The court then had no trouble finding that, in a conspiracy

that had lasted over two years. information that was less

than two months old was not stale.

There is no merit to the argument with regard to

staleness.

5. Necessity showing for the order was inadequate (use of

alternative investigative techniques).

[12] Harvey alleges that the statements of FBI Agent

Copus on the need for interception in §§ 130-144 do not meet

the statutory requirements of §2518(3), that less

intrusive/normal investigative techniques have failed,

probably would fail, or are too dangerous. Harvey alleges that

Copus was not an expert in drug investigations so his

statements cannot be viewed as expert testimony on the

subject and that the reasons given are inadequate: informants

are afraid and unwilling to testify; the defendants have

evaded detection and surveillance; difficulty of conducting

physical surveillance; not able to place an agent in the

operation; grand jury immunity techniques would be

unfruitful; and a search warrant would be ineffective.

{13, 14] The purpose of §2518(3) is to inform the issuing

judge of the difficulties involved in the use of commonplace

techniques. United States v. Robertson, 504 F.2d 289 (5th

Cir.1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1568, 43 L.Ed

778 (1975). The more traditional techniques need not be

exhausted if they are impractical or costly and inconvenient.

Id. It is also true that the determination that other

investigative techniques will not succeed may not be based

upon affidavits that include only bare conclusory statements.

United States v. Martinez, 588 F.2d 1227, 1231 (9th Cir.1978).

App. 86

The affidavit clearly meets the tests set out in the

statute and case law. Agent Copus is an FBI agent who has

been assigned for the two previous years to other narcotics

investigations. Additionally, the affidavit is not merely

conclusory but states the reasons why traditional methods

have failed and would fail.

There is a sufficient basis for the Order’s conclusion

that the traditional methods would not be successtul, ana

since the government’s burden of establishing compliance

with this section is not great and considerable discretion

rests with the issuing judge in deciding whether other

investigative techniques might be successfully employed,

there has been an adequate showing by the government that

other methods have failed or reasonably appear to be unlikely

to succeed if tried or would be too dangerous. See United

States v. Landmesser, 553 F.2d 17, 20 (6th Cir.), cert. denied,

434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977); United

States v. Anderson, 542 F.2d 428, 431 (7th Cir.1976).

[15] As the Fifth Circuit has pointed out, §2518(1)(c)

and (3c) must be read in a common sense fashion. They are

“simply designed to assure that wiretapping is not resorted

to in situations where traditional investigative techniques

would suffice to expose the crime.” United States v. De La

Fuente, 548 F.2d 528, 537-38 (5th Cir.), cert. denied, 431 US.

932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977), quoting United

States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12,

39 L.Ed.2d 225 (1974). The statute does not require that all

possible techniques be tried before a wiretap may be

authorized. See United States v. Martino, 664 F.2d at 868,

and cases cited therein. Rather, its purpose is simply to

inform the issuing judge of the difficulties involved in the

use of conventional techniques. United States v. Pacheco,

489 F.2d 554 (5th Cir. 1974), cert. denied, 421 U.S. 909, 95

S.Ct. 1558, 43 L.Ed.2d 774 (1975). The provision contemplates

that the showing be tested in practical and common sense

fashion. S.Rep. No. 1097, 90th Cong., 2d Sess., 100 U.S. Code

Cong. and Admin. News (1968), pp. 2112, 3290; United States

App. 87

v. Robertson, supra. The Fifth Circuit also has stated in

United States v. McCoy, 539 F.2d 1050 (5th Cir.1976), cert.

denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977),

that in order to uphold the wiretap order the affidavit need

only supply a “factual predicate” adequate to support the

judge’s implicit finding that investigative procedures appear

unlikely to succeed.

[16] Both Sikes and Harvey have filed motions which

state that there was insufficient necessity to utilize electronic

surveillance. Both fail to supply a reasonable alternative

upon which the government could have proceeded. An item

by item breakdown of the Defendant’s argument, in concert

with the respective responses by the Government, reveals a

lawful basis for the surveillance pursuant to §2518(1)(c) and

(3c). As numerous courts have stated, it is a difficult

proposition to be very specific when one endeavors to prove

a negative such as the Defendants suggest. Courts will not

set unduly burdensome standards on the Government's

demonstration that no reasonabie alternative existed. See

United States v. Steinberg, 525 F.2d 1126 (2d. Cir.1975), cert.

denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976).

Considerable discretion rests with the issuing judge in

deciding whether other investigative methods might have

been successfully employed. United States v. Landmesser,

533 F.2d 17 (6th Cir.), cert denied, 434 U.S. 855, 98 S.Ct. 174,

54 L.Ed.2d 126 (1977); United States v. Smith, 519 F.2d 516

(9th Cir.1975); United States v. Daly, 535 F.2d 434 (8th

Cir.1976). Also, as stated in United Staivs v. Anderson, 542

F.2d 428, 431 (7th Cir.1976): “the government’s burden of

establishing its compliance with [subsection 2518(1)(c)] is not

great.” See also, United States v. Askins, 351 F.Supp. 408,

414 (D.Md.1972).

Defendant Harvey alleges that the qualifications of FBI

Agent Copus in the area of drug-related investigations

somehow render his evaluation of alternative procedures

insufficient. His allegation that Copus lacks the expert

abilities necessary in this case ignores the affidavit which

App. 88

states Copus’ qualifications to investigate RICO violations

and apply for the instant order under 18 U.S.C. §2510(7).

Further, the affidavit documents Copus’ two years of

experience in the area of complex narcotics importation and

distribution conspiracies. (§§ 1-2.) Harvey’s allegation

concerning Copus’ lack of drug related training does not

stand up in light of the affidavit and the further explanation

that Copus was stationed at the Drug Enforcement Agency

for two years working on solely drug-related offenses.

Additionally, the Defendant cites no legal basis for his

theory that an affidavit by an individual with even no training

in the drug-related field (assuming this was a totally drug-

related case) would render an otherwise proper affidavit

insufficient.

Normal investigative techniques have been amply

demonstrated by the Government to be inadequate for the

circumstances which necessitated and gave probable cause

for issuance of the electronic surveillance here.

VI. SEALING REQUIREMENTS

[17] Defendants Harvey, Sikes and co-defendants contend

that the sealing requirements of §2518(8) were not fulfilled

in that no directions were contained in the order as to the

care, custody or sealing of tapes and because the original

intercepted tapes from the October 20, 1980 initia! 30-day

period were not sealed until January 23, 1981. Some defendants

also maintain that they did not receive an inventory following

the termination of the wiretaps.

Section 2518(8) provides that “immediately upon the

expiration of the period of the order, or extensions therecf,

such recordings should be made available to the judge issuing

such order and sealed under his direction. Custody of the

recordings shall be wherever the judge orders.” Here, the

tapes were sealed on January 23, 1981, three (3) days after

the termination of the last intercept order (Defendant's

Exhibits 59(b) and 42). Case law clearly holds that the tapes

do not have to be sealed until the end of the extension

App. 89

orders, i.e., at the termination of the entire surveillance.

United States v. Scafidi, 564 F.2d 633, 641 (2d Cir. 1976), cert.

denied, 436 U.S. 903, 98 S.Ci. 2231, 56 L.Ed.2d 401 (1978);

United States v. Vazquez, 605 F.2d 1269, 1275-76 (2d Cir.),

cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408

(1979). A delay of three (3) days after termination is reasonable

and acceptable under the statute. United States v. Sklaroff,

506 F.2d 837, 840 (5th Cir.), cert. dented, 423 U.S. 874, 96

S.Ct. 142, 46 L.Ed.2d 105 (1975) (delay of fourteen (14) days

with no showing of prejudice to the defendants).

Defendants also contend that the initial authorization

order must specify the procedures for sealing, care and

custody of the tapes. The Act does not so state. Such a

procedure may be prudent but there is no requirement that

if be followed or included. United States v. Gigante, 538 F:2d

502, 507 (2d Cir.1976). The Government contends, and there

appears nothing to contradict it, that the tapes were preserved

and maintained in a manner equivalent to that in United

States v. Abraham, 41 F.2d 624 (6th Cir. 1976). The tapes

were locked in an FBI evidence vault until January 23, 1981,

when they were sealed in the presence of the Honorable

Eugene P. Spellman (Defendant’s Exhibit 58-B). The propriety

of the sealing of the tapes was demonstrated in open court

on June 30, 1982, when, after notice to all Defendants, two of

the five boxes of the tapes were opened. All seals which

bore the signature of Judge Spellman were intact. This

complies with the standard set forth in §2518(8). The

Congressional purposes in the sealing requirements were to

safeguard recordings from editing or alteration and to maintain

the confidentiality of the recordings. United States u Mendoza,

574 F.2d 1373, 1376-77 (5th Cir.), cert. denied, 439 U.S. 988, 99

S.Ct. 584, 58 L.Ed.2d 661 (1978). The real determination

therefore is merely whether the tapes were properly and

expeditiously sealed, the seals kept intact and the cartons

kept in a secure area. There has been no evidence adduced

which would taint any of the foregoing requirements nor

furnish a basis to suppress for improper sealing requirements.

App. 90

[18, 19] Time for service of notice of inventory under

§2518(8d) was extended by court order to July 18, 1981.

The statute requires no more than reasonable efforts to

reach persons within the Act’s inventory group. Suppression

is mandated only if the defendants receive notice on the eve

of trial and were able to show prejudice resulting from the

delay or non-compliance. United v. Lawson, 545 F.2d 557, 564

(7 Cir.i975). No prejudice has been shown from failure to

receive a notice by any defendant.

According to the government, the deadline for service

of inventory was July 18, 1981 (Defendant’s Exhibit 45-B).

On July 13, 1981, a letter post-marked July 15, 1981, was

sent to Joseph William Campbel! who raises this issue of

failure to furnish notice of inventory at his last known address

by certified mail. The letter was returned “unclaimed”. (See

Exhibit AS submitted by the government with Omnibus

Response). Defendant Campbell received notice some time

between July 15, 1981, and September 9, 1981 (See Exhibit

AT as submitted by government with Omnibus Response.)

There is no basis upon which to supress on this ground

raised by Campbell.

VII. THE ORDER OF NOVEMBER 20, 1980

WAS ALLEGEDLY INVALID

1. Carry-Over Objections.

By reference thereto, the Defendants carry over their

objections raised to the October 20, 1980 order relating to

the various issues above-discussed. For the reasons previously

enumerated the same rulings apply here and the carry-over

objections are deemed to be inadequate and insubstantial.

2. Insufficient probable cause for an extension.

{20-22} Defendant Harvey claims that there was no

showing of a RICO enterprise or an agreement involving

Defendant Harvey in the initial 30-day intercept. However,

the government can rely on the conversations intercepted

App. 91

during the initial surveillance to provide probable cause for

renewal as well as relying upon the probable cause supplied

in the initial application. The issue is whether the progress

reports, initial application and application for extension and

the affidavits of the initial and extension orders support a

finding of probable cause. Since the progress reports during

the first 30-day period from November 18, 180 onward indicate

conversations dealing with drug transactions, there is an

even stronger showing of probable cause to those offenses in

support of the first extension order. United States v. Fury,

554 F.2d 522 (2d Cir.1977), cert. denied, 436 U.S. 931, 98 S.Ct.

2831, 56 L.Ed.2d 776 (1978). Further, it is permissible that a

wiretap continue until the government accumulates enough

evidence to determine the scope of the conspiracy and the

identity of the undividuals involved. See United States v.

McCoy, 539 F.2d 1050 (5th Cir.1976), cert. de ied, 431 US.

919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977).

3. Was the district judge without authority to execute an

extension order outside his territorial jurisdiciton but operative

within his territorial jurisdiction?

[23) In the instant case, Judge Spellman signed the

original surveillance order of October 20, 1980, in Miami,

Florida. (Defendant’s Exhibit 4.) During the week of November

20, 1980, Judge Spellman, along with other judges of the

Southern District of Florida, was in Sarasota, Florida (Middle

District of Florida), attending a judicial seminar. FBI Agents

Harold Copus and Stephen Conger, along with Assistant

U.S. Attorney Stephen Gillman, went to Sarasota where the

order of November 20 was presented. Judge Spellman called

the Administrative Office and was apprised that he had

authority to entertain the extension application in Sarasota,

Florida (Defendant’s Exhibit 54A), dated November 21, 1980.

When reviewing judicial authority under 18 U.S.C. §2518,

an examination of the authority provided to judges/magistrates

to issue search warrants under Rule 41, Fed.R. Crim.P, is

relevant. The similarity between the wiretap statute and

App. 92

the rule governing search warrants is obvious. Both provisions

require that government applications be made to judicial

officers and be supported by sworn testimony or affidavits.

Compare, 18 U.S.C. §2518(1) and Rule 41(c)(1), Fed.R.Crim.P.

Likewise, an order or search warrant must meet the

constitutional mandates of probable cause and particularity

as reflected in United States vu. Donovan, 429 US. 413, 427-28,

97 S.Ct. 658, 667-668, 50 L.@d.2d 652 (i$77); see aiso, 18

U.S.C. §2518(3) and (4) and Rule 41(c), Fed.R.Crim.P. Finally,

Congress intended that 18 U.S.C. §2518 be interpreted in

light of existing law under Rule 41. S.Rep. No. 1097, 90th

Cong., 2d Sess., reprinted in 1968 U.S. Code Cong. & Ad.News

2112, 2189. This analogous treatment of wiretap applications

and search warrants provides the basis for allowing federal

judges while physically outside their territorial jurisdiction

to authorize wiretap extensions which will be executed within

the territorial district of the judge.

The specific issue of a federal magistrate’s authority to

sign a search warrant outside his territorial jurisdiction was

addressed in United States v. Strother, 578 F.2d 397 (D.C.Cir.

1978). The court noted that “[jJudges have proverbially signed

papers or done other acts outside their territorial jurisdiction

which have effect-—-and can only have effect— within those

respective jurisdictions.” Jd. at 400. In interpreting the language

of Rule 41(a), the court focused its’ attention not on the

physical location of the judge when signing an order but on

the judge’s authority where the order will be executed. The

court stated thai “. .. the search warrant can only be

operative in the territory in respect of which the issuing

officer is clothed with judicial authority. It is not intended,

we believe, to require that under all circumstances the physicai

acts involved in the issuance of a warrant be performed in

that territory.” Jd. at 399 (footnote omitted); See also United

States v. Gomez, 495 F.Supp. 992, 1012 (S.D.N.Y. 1979), cert.

denied, 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 194 (1981).

It is the place of execution, not the location of the

judge, which determines the authority of a judge to issue a

App. 93

court order. In the instant case, Judge Spellman authorized,

on November 20, 1980, the extension of a surveillance order

for an office located within his judicial district, the Southern

District of Florida. Moreover, this same district judge had

previously authorized the initial order of October 20, 1980.

The Court takes judicial notice that for many years past

and including the calendar year 1980, there was in effect a

blanket order issued by the Chief Judge of the U.S. Court of

Appeals for the Eleventh Circuit (Fifth Circuit) cross-designating

each district judge in each district of Florida with judicial

authority to sit in every other district in Florida without

further order. Here, Judge Spellman did even less by executing

an order operative within his own district, although executed

in another district of Florida.

Judge Spellman’s extension order of November 20, 1980

was valid.

Vill. THE ORDER OF DECEMBER 19, 1980

WAS ALLEGEDLY INVALID

1. Carry-Over Objections.

Here again, the Defendants readopt their arguments

that the October 20, 1980 order and the November 20 extension

were invalid on the basis of grounds previously enumerated.

The same rulings of this Court are applied and the order

and extensien are deemed to be valid.

2. Prior failure to name Defendant Kay as a target.

[24] Defendant Kay was not listed in the initial October

20 application and order nor in the November 20 extension

application and order as a person known to be committing

the offenses for which the surveillance is sought and whose

communications are to be intercepted. 18 U.S.C. §2518(1)(a).

However, in the December 4, 1980 progress report the

Government informed the judge that they had identified

Kay as a person whose oral communications may be intercepted.

Accordingly, in the December 4 progress report and in the

App. 94

ee en ee

December 17, 1980 application for an extension of the court's

surveillance authorization the Government sought authorization

to intercept Kay’s conversations. This authorization was

subsequently granted by Judge Spellman in his December

19, 1980 order authorizing the continued interception.

The Court finds from the evidence introduced at the

suppression hearing that the FBI only identified Kay as a

person known to be committing the offense and whose

conversations are likely to be intercepted on or about December

2, 1980. The Court also finds that the December 17 extension

application and December 19 order continuing interception

comported with §2518(1)a). United States v. Kahn, 415 US.

143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Accordingly, there is

no basis for suppression for failure to include Defendant Kay

in earlier applications and orders as a “target” of the

surveillance and the evidence obtained by the surveillance

both before and after the December 19, 1980 order can be

used against him. United States v. Hyde, 574 F.2d 856 (5th

Cir.1978); United States v. Scafidi, 564 F.2d 633 (2d Cir.1977).

IX. ALLEGED §2517(5) VIOLATION (DISCLOSURE OF

TITLE III INTERCEPT AS TO A §848 OFFENSE)

Defendant Harvey argues that because 21 U.S.C. §848

was not specifically cited in the application, incorporated

affidavit, and/or the order authorizing the interception, an

order granting authorization to disclose the intercepted

communications to the grand jury and at trial in relation to

a §848 offense was necessary under §2517(5). For the reasons

set forth below, the Court concludes that no violation of

§2517(5) occurred. Although some of the relevant facts have

been set out supra, a further brief review of the pertinent

facts is helpful.

On October 17, 1980, application was made to United

States District Judge Eugene P. Spellman by Assistant U.S.

Attorney Stephen B. Gillman for an order authorizing the

interception of oral communications of Defendant Harvey

App. 95

and other named individuals, as well as other persons then

unknown. Said application was supported by an extensive

and detail

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