# Appendix — Harvey v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 855

## Text

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 underly

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2390%3A2. Public record. Not legal advice.