Petition for Writ of Certiorari — Jackson v. United States
Supreme Court brief1974
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INDEX
OPINION BELOW .
JURISDICTION .
QUESTION PRESENTED
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED .
STATEMENT OF THE CASE .
REASONS RELIED ON FOR THE ALLOWANCE
OF THE WRIT .
APPENDIX
TABLE OF CASES
Berger v. United States,
295 US. 378 .
Blumenthal v. United States,
332 US. 539.
Hoke v. United States,
227 U.S. 308 .
Kotteakos v. United States,
328 U.S. 750.
Stirone v. United Siutes,
361 U.S. 212.
United States v. Bruno,
105 F.2d 921 (2 Cir. 1939),
reversed, 308 U.S. 287
12
12
12
12
13, 14
13
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1973
No. 73-
LAWRENCE W. JACKSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
and
CARL W. BROOKS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
TO: The Honorable The Chief Justice of the United
States and the Honorable Associate Justices of the
Supreme Court of the United States.
The petitioners respectfully pray that writ of certiorari
issue to review the final order of the United States
Court of Appeals for the District of Cclumbia Circuit
entered on February 4, 1974, that affirmed the judg-
ment and conviction entered against the said petitioners
in the United States District Court (for the District of
Columbia) Criminal Case No. 1912-69.
OPINIONS BELOW
There was no opinion in the United States District
Court for the District of Columbia.
There was an opinion of the United States Court of
Appeals, and the same is appended hereto. The said
opinion is also found at 494 F. 2d 1007.
JURISDICTION
The judgment of the United States Court of Appeals
for the District of Columbia sought to be reviewed was
dated and entered on February 4, 1974.
By order of the United States Court of Appeals,
dated and entered on April 15, 1974, the petition of
co-appellants Tantillo, Verderosa and James (adopted by
the petitioners herein, Lawrence W. Jackson and Carl
W. Brooks) for rehearing was denied. By notice dated
April 15, 1974, the Clerk of the Circuit Court informed
counsel that no Judge of the Court had requested a
vote on that portion of the said petition for rehearing
that requested en banc rehearing and that, accordingly,
no further action with respect thereto would be taken.
On May 23, 1974, the Honorable Chief Justice Burger
signed an ordery extending the time for the filing of the
Petition for Writ of Certiorari herein, to and including
June 14, 1974 (No. A-1100).
On June 14, 1974. counsel for the petitioners Jackson
and Brooks found it necessary on account of exigent
circumstances and extraordinary causes to file a motion
to this Court for a further extension of time to July 5,
1974, in which to file the Petition for Writ of Certiorari
on behalf of Jackson and Brooks. (On June 14, 1974,
the co-appellant Enrico Tantillo, and possible other co-
appellants, had filed a petition for Writ of Certiorari,
meaning that there is presently before the court applica-
tion seeking review of the subject judgment of the
Circuit Court.)
By letter dated June 18, 1974, from the Clerk of the
Court, the application for further extension oi time was
returned, with the adyice that under Rule 22 (2) the
time for filing an application for writ of certiorari could
only be extended in such cases as this for a period not
to exceed thirty days. It was further said that the
Petition for a Writ of Certiorari shall be received and
docketed with a notation as to its untimely filing.
The Jurisdiction of this Court is invoked under Section
1254 (i) of ‘litle 28 of the United States Code.
QUESTION PRESENTED
In a Criminal Case in which seven persons are charged
with violations of the federal narcotics laws and the
major and common offense against them is that of con-
spiracy (which is set forth in two counts: conspiracy to
violate 26 U.S.C. 84705(a), as proscribed in 26 U.S.C.
§7237(v); and conspiracy to violate 21 U.S.C. §174)
and the theory of the prosecution is that all the de-
fendants were involved in a single conspiracy, of the
“chain type’, involving the wholesale and retail distribu-
tion of heroin and cocaine, is it not substantially prejudicial
to the rights of all of the defendants and especially to
the petitioners, when a large portion of the government’s
evidence at trial shows against one of them, who is a
police officer, that he was engaged only in a bribery
arrangement with the other, who was alleged to be a
large local distributor of drugs.
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
Amendment 5, United States Constitution
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a present-
ment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the
Militia, when in actual service in time of War or
puclic danger: nor shall any person be subject
for the same offense to be twice put in jeopardy
of life or lirnb; nor shall be compelled in any
criminal case to be a witness against himself,
nor be dv prived of life, liberty, or property, with-
out due process of law; nor shall private liberty
be taken for public use, without just compensa-
tion.
21 United States Code
$174 Same; penalty; evidence
“Whoever fraudulently or knowingly imports
or brings any narcotic drug into the United
States or any territory under its control or
jurisdiction, contrary to law, or receives, con-
ceals, buys, sells, or in any manner facilitates
the transportation, concealment, or sale of any
such narcotic drug after being imported or brought
in, knowing the same to have been imported or
brought into the United States contrary to law, or
conspires to commit any of such acts in violation
of the laws of the United States, shall be im-
prisoned not less than five or more than twenty
years and, in addition, may be fined not more
than $20,000. For a second or subsequent offense
(as determined under section 7237(c) of the In-
ternal Revenue Code of 1954), the offender shall
be imprisoned not less than ten or more than
forty years and, in addition, may be fined not
more than $20,000.
“Whenever on trial for violation of this section
the defendant is shown to have or to have had
possession of the narcotic drug, such possession
shall be deemed sufficient evidence to authorize
conviction unless the defendant explains the
possession to the satisfaction of the jury.
“For provision relating to sentencing, proba-
tion, etc., see section 7237(d) of the Internal
Revenue Code of 1954. Feb. 9, 1909, c. 100,
§2(c), (f), 35 Stat. 614; Jan. 17, 1914, c. 9, 38
Stat. 275; May 26, 1922, c. 202, 81, 42 Stat.
596; June 7, 1924, c. 352, 43 Stat. 657; Nov.
2. 1591, c. 666, 881, 5(1), 65 Stat. 767; suly 18,
1956, c. 629, Title I, 8105, 70 Stat. 570.”
26 United States Code
84704 Packages
“(a) General requirement. — It shall be un-
lawful for any person to purchase, sell, dispense,
6
cr distribute narcotic drugs except in the origina’
stamped package or from the original stamped
package; and the absence of appropriate taxpaid
stamps from narcotic drugs shall be prima facie
evidence of a violation of this subsection by the
person in whose possession the same may be
found.”
“84705
‘“(a) General requirement. — It shall be
unlawful for any person to sell, barter, exchange
or give away narcotic drugs except in pursuance
of a written order of the person to whom such
article is sold, bartered, exchanged, or given, on
a form to be issued in blank for that purpose
by the Secretary or his delegate. . .
(Aug. 16, 1954, 9:45 a.m.., E.D.T., ch. 736,
68A Stat. 551, amended Aug. 31, 1954, ch.
1147, Sections 7, 68 Stat. 1003; Aug. 1,
1956, ch. 852, Section 12(c), 70 Stat. 909.)”
“87237
“(a) Where no specific penalty is otherwise
provided. — Whoever commits an offense, or
conspires to commit an offense, described in
part I or part II of subchapter A of chapter
39 for which no specific penalty is otherwise
provided shall be imprisoned not less than 2 or
more than 10 years and, in addition, may be
fined not more than $20,000. For a second
offense, the offender shall be imprisoned not
less than 5 or more than 20 years and, in
addition, may be fined not more than $20,000.
For a third or subsequent offense, the offender
shall be imprisoned not less than 10 or more than
40 years and, in addition, may be fined not more
than $20,000.
‘“(b) Sale or other transfer without written
order. — Whoever commits an offense, or con-
spires to commit an offense, described in section
4705(a) or section 4742(a) shall be imprisoned
not less than 5 or more than 20 years and, in
addition, may be fined not more than $20,000.
For a second or subsequent offense, the offender
shall be imprisoned not less than 10 or more
than 40 years and, in addition, may be fined not
more than $20,000. . .”
STATEMENT OF THE CASE
The petitioner, Carl W. Brooks, was a member of the
Washington, D.C. Police Department from February 3,
1964 through the time of the major events in this case,
(July-August, 1969). His entire service with the Depart-
ment was with the Narcotics Squad of the Morals Divi-
sion as an officer or a plainclothesman.
On July 9, 1969, Judge William B. Jones of the United
States District Court for the District of Columbia autho-
rized the installation of a wire intercept pursuant to 18
U.S.C. 82518 on telephone number 582-9265, listed tu
one Richard M. James at 201 — 53rd Streei, S.E., Wash-
ington, D. C. The basis for the Court’s order was an
affidavit by Agent John F. Cody of the Bureau of Nar-
cotics and Dangerous Drugs. Interception of wire
communications (telephone calls) under the order began
on July 11, 1969. Later in the investigation, a similar
order was entered by the District Court on telephone
number 399-3695 (of Mary Davis, Apartment 301 at
3676A Hayes Street, N.E., Washington, D. C.). Intercep-
tion of telephone calls under the second order com-
menced on August 1, 1969. The taps on the two phones
were terminated on August 18, 1969.
Based mainly on evidence gathered by government
agents by the two wiretaps, numerous arrest warrants
were sought and issued, leading to the arrest of persons,
including the petitioners, on or about August 18, 1969.
As a result of the investigation, a thirteen-count indict-
ment was returned in the District Court (Cr. No. 1912-
69) against seven persons, including the two petitioners
herein. (Others charged in the indictment were Enrico
N. Tantillo, A. Paladino, Robert Verderosa, Mary P.
Davis and Leon James; Paladino and Davis are now
deceased.) Count one charged ail of the defendants
with conspiracy under 26 U.S.C. 87237(b) to sell, barter,
exchange and give away heroin and cocaine in violation
of 26 U.S.C. 84705(a). All defendants were charged in
Count Two of conspiracy to violate 21 U.S.C. 8174 by
receiving, concealing, selling and facilitating the trans-
portation, concealment and sale of heroin, after the
heroin had been imported into the United States contrary
to the law with the knowledge of the defendants.
Counts Three, Four, Five, Six, Seven and Eight charged
the petitioner Lawrence W. Jackson only with offenses
arising from the sale on two occasions, June 19, 1969
and June 24, 1969, of a heroin mixture to a “certain
individual” (an informant) (26 U.S.C. 4705(a), 26
U.S.C. 4704(a) and 21 U.S.C. 174).
9
Count Nine of the indictment charged that on or about
August 14, 1969 Carl W. Brooks, then a police officer, did
corruptly ask, demand, solicit, seek and agree to receive
a thing of value from Lawrence W. Jackson for being in-
fluenced in the performance of his official duties, in
violation of 18 U.S.C. 201. Upon pre-trial motion of
the petitioner Brooks, the count was servered from the
indictment. The remaining four counts were against
various of the other defendants and charged substantive
narcotic law violations relating to the alleged possession
of narcotics at the time of their arrest or upon the execu-
tion of search warrants.
The trial of the case took approximately nine weeks
(from October 15, 1970 to December 17, 1970). During
the course of the trial, a voluminous amount of evidence
was introduced against the seven defendants to show that
a conspiracy existed and what their roles in the alleged
conspiracy were. In order to prove the conspiracy, the
government relied heavily upon the telephone calls that
had been intercepted under the court authorized wiretaps
of telephones 582-9265 and 399-3695. Roughly, 300 or
more of the calls were played to the jury in the govern-
ment’s case. In addition to the use of intercepted phone
calls in the case, the government offered other evidence,
such as the testimony of law enforcement officers of
their surveillance on various occasions, much lay and ex-
pert testimony, documents, physical evidence, etc. Testi-
mony was given to prove the substantive counts against
Jackson that described two narcotics transactions by an
informant with Jackson on June 19 and June 24, 1969.
The government’s theory respecting the two conspiracy
counts was that all the defendants were members of a
single, solitary conspiracy that had as its objects the
10
distribution of narcotics as charged in Counts One and
Two. The manner of the operation of the conspiracy
was that the defendants Tantillo, Paladino and Verderosa
of New York were supplying Jackson with large amounts
of narcotics on an almost weekly basis (and were also
supplying James to some undetermined extent); that
Jackson in turn was redistributing these narcotics in
Washington, D. C. by way of a large distribution enter-
prise that was headquartered at 201 — 53rd Street, S.E.;
that retail and wholesale purchases of narcotics were
being accomplished through telephone calls to telephone
number 582-9265, located at that address; that Mary P.
Davis, a close friend of Jackson, was closely associated
with Jackson in his drug selling enterprise, assisting him
as a liaison with the defendants from New York and his
local customers, and that her phone (399-3695) was used
for the purpose; that police officer Brooks was assisting
Jackson by advising him of law enforcement efforts
against him, for which intelligence and information
Jackson was paying Brooks money.
At the trial, government evidence against Brooks con-
sisted of the introduction of telephone toll records of
his home telephones, which showed that on several
occasions (before the wiretaps), calls had been made to
the two tapped phones. Toll records for the phone
582-9265, also in evidence, showed several calls made to
Brooks’ residence phones. Nearly 60 tape recordings
of intercepted phone calls allegedly of Brooks’ conversa-
tions (where he was the caller) were introduced into
evidence. Observations of Brooks by federal agents and
police officers were also testified to at the trial. The
sum total of the evidence in the case pertaining to
Brooks amounted to establishing that Brooks and Jackson
11
were involved in an arrangement whereby Brooks furnished
Jackson with information and that Jackson gave him
money. There was absolutely no evidence that Brooks
was in any way involved in drug dealings or transactions.
There was no evidence that he nad any contact or
knowledge of the defendants Tantillo, Paladino, or
Verderosa, or James. There was no evidence that the
agreement between these persons contemplated, included
or embraced the Jackson-Brooks dealings. There was
evidence showing that Brooks did call to the telephone
of Mary Davis. The intercepted conversations to her
phone whicn he allegedly made showed only that he was
attempting to reach Jackson.
At the end of the government’s case, a motion was
made for Brooks for acquittal on the grounds that the
government’s evidence failed to establish that he was
connected with a general overall conspiracy involving all
of the defendants; (the conspiracy charged in the indict-
ment); and further, that there was a variance between
the conspiracy charged and the proof, which, at most,
showed a different and uncharged conspiracy (bribery)
between him and Jackson. (Jackson also made this
motion.) The motion was denied by the Court. The
Court did acquit Leon James of the conspiracy counts
because of insufficient evidence. The case was in a}
other respects submitted to the jury, with the result
that verdicts of guilty were returned against all the defen-
dants on all remaining counts.
On February 5, 1971, the defendants were sentenced.
The petitioner Jackson was sentenced: On Count One
(conspiracy to violate 26 U.S.C. 84704(a)) to 15 years
imprisonment and a fine of $15,000.00; on Count Two
(conspiracy to violate 21 U.S.C. 8174) to 15 years
-.
1Z
concurrent with the sentence on Count One; on each of
Courits Three and Six, 10 years imprisonment; on each
Counts Four and Seven, 5 years imprisonment; and on
each of Counts Five and Eight, 10 years imprisonment.
The sentence on Counts Three, Four, Five, Six, Seven
and Eight were to run concurrent with each other, but
consecutive to the sentences imposed on Counts One and
Two. In addition, he was fined $15,000.00 on Count
Five. The full sentence imposed on Jackson in the case
was a 25-year term of imprisonment and a fine of
$25,000.00. Cari W. Brooks was sentenced to a term
of 5 years imprisonment on Count One and a similar
concurrent term on Count Two. Both Jackson and
Brooks, as well as the other persons convicted in the
case, appealed to the Circuit Court. These appeals were
consolidated by order of the Circuit Court and on
February 4, 1974, a judgment was rendered by the
Court which fully affirmed the judgments and convictions.
REASONS RELIED ON FOR THE
ALLOWANCE OF THE WRIT
The questions raised by this petition deal with the
recurrent and troubling problem of variance and its
ramifications in federal multidefendant criminal con-
spiracy cases. Hoke v. United States, 227 U.S. 308;
Berger v. United States, 295 U.S. 378; Kotteakos v.
United States, 328 U.S. 750; Blumenthal v. United States,
332 U.S. 539. The criminality shown in the govern-
ment’s evidence of the Brooks-Jackson relationship should
not have been admitted in evidence as a part of the
proof of the conspiracy charge in this case. To begin
with, the dealings between the two were well outside the
confines of narcotics distribution. The government’s
13
theory against the other five defendants and Jackson,
excluding Brooks. altogether, was that three of them
(Tantillo, Paladino and Verderosa) were the suppliers of
Jackson and James; and that Davis was connected with
the drug dealings of Jackson, both with the persons
supplying him and those whom he in turn supplied. In
theory, this line of narcotics dealing, from supplier-to-
wholesaler-to-retailer, presented the typical “chain” con-
spiracy. United States v. Bruno, 105 F. 2d 921 (2 Cir.
1939), reversed 308 U.S. 287. The bribery arrangement
between the two petitioners was separate and self-contained.
It was, however, rife with base criminality, so much so,
that it should not properly have been put before the jury.
Prejudice to the rights of the two petitioners and the
others on trial in this case was manifest. Aside from the
fact that the bribery scheme was separate, was only be-
tween two of the seven on trial, importantly, it was not
narcotics trafficking. At best it could be said to have
been related to Jackson’s local narcotics trafficking. But
the point that is made here is that the trial was not for
the offense of bribery, that Count (Nine) having been
severed before the trial. Nor were the dimensions of
the narcotics conspiracy charged in the indictment that
of Jackson’s local trafficking and its tangents or satellites
(though petitioners by no means concede that even so,
the evidence of the bribery would have been admissible).
What the petitioners argue is that they were each sub-
jected to prosecution for an offense (bribery) for which
they were not on trial. See: Stirone v. United States,
361, U.S. 212.
14
The decision of the Court of Appeals in this case on
this question ! is directly in conflict with the way that
this Co:urt decided a similar issue in the Stirone case,
supre. It is, principally for this reason, that this Court
should issue its writ of certiorari to review the judgment
of the Circuit Court.
The petitioners, Jackson and Brooks, by this petition,
also seek leave to join the petition for writ of certiorari
previously filed by their co-appellant, Enrico Tantillo,
and to adopt all of the grounds and reasons asserted
therein.
Respectfully submitted,
JOHN A. SHORTER, JR.
508 Fifth Street, N.W.
Washington, D. C. 20001
638-4040
Counsel for Petitioners
1 In the portion of its written opinion dealing with the ques-
tion raised herein (construed by the Court to be only a contention
by Brooks that the evidence did not support his conviction of
conspiracy), the Circuit Court said:
“. . .The evidence showed that Brooks played a vital part in
the conspiracy by protecting Jackson and his enterprise from
interference by the police. He did this with full knowledge
of the nature of the unlawful enterprise, even though he
might not have known the identity of all the participants.
This was enough to make him a party to the conspiracy.
The government was not required to show that Brooks knew
Tantillo, Paladino, Verderosa, or James; a conspirator need
not know the identity of all other conspirators or the particu-
lar roles they play in the unlawful enterprise. . . .”
(App. p. 28)
15
CERTIFICATE OF SERVICE
This is to certify that I served 3 copies of the fore-
going Petition for a Writ of Certiorari upon the respon-
dent, United States of America by mailing three copies
thereof, in a duly addressed envelope, postage prepaid,
to Earl J. Silbert, United States Attorney, U. S. Court-
house, Washington, D. C., and by mailing three copies
of the same, in the same manner, to the Solicitor General,
Department of Justice, Washington, D. C. 20530, this
___ day of July 1974.
JOHN A. SHORTER, JR.
APPENDIX
Notice: This De seen is subject to formal revisivn before publication
in the Federal Reporter -, U.S. a0. D.C. ee. Users are requested
to notify the Clork of any formal errors in order that corrections may be
made before the Sound vclumes go to press.
United Srates Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 71-1168
No. 72-1489
UNITED STATES OF AMERICA
Vv.
LEON JAMES, APPELLANT
No. 71-1192
No. 72-1488
UNITED STATES OF AMERICA
Vv.
ENRICO TANTILLO, APPELLANT
No. 71-1193
No. 72-1483
UNITED STATES OF AMERICA
Vv.
ROBERT VERDEROSA, APPELLANT
*-2
No. 71-1215
UNITED STATES OF AMERICA
v.
LAWRENCE W. JACKSON, APPELLANT
No. 71-1216
UNITED. STATES OF AMERICA
v.
CARL W. BROOKS, APPELLANT
Appeals from the U::ited States District Court
for the District of Columbia
Decided February 4, 1974
Edward J. Cull, with whom George M. Coburn (both
appointed by this Court) was on the brief, for appellant
in Nos. 71-1168 and 72-1489.
Joel M. Finkelstein, with whom James L. Rider was
on the brief, for appellants in Nos. 71-1192, 72-1488, 71-
1193 and 72-1483.
A-3
John A. Shorter, Jr., with whom William A. Bonders
was on the brief, for appellants in Nos. 71-1215 and 71-
1216.
Roger E. Zuckerman, and James L. Lyons, Assistant
United States Attorneys with whom Harold H. Titus, Jr.,
United States Attorney, John A. Terry, Theodore Wiese-
man, Robert EF. L. Eaton, Jr., Assistant United States
Attorneys, were on the brief for appellee.
Before: HARRISON WINTER,* Circuit Judge for the
Fourth Circuit, MACKINNON and Ross, Cir-
cuit Indaes,
Opinion for the Court filed by Circuit Judge Ross.
Ross, Circuit Judye: The appellants and Carmine Pa!-
adino and Mary Davis, both now dead, were indicted for
conspiracy to sell narcotics in violation of 26 U.S.C.’ §§
7237(b) and 4705/a), and conspiracy to receive and
conceal narcotic drugs, knowing them to have been
illegally imported. 21 U.S.C. § 174.1 Jackson, Tantillo,
Paladino, Verderosa and James were also indicted for
substantive violations of the narcotics laws. Al] except
James were convicted of conspiracy and of various sub-
stantive offenses. James was convicted of certain sub-
stantive offenses, but acquittzd of conspiracy by direc-
tion of the court.’
The case for the government depended upon evidence of
telephone communications and conversations intercepted
* Sitting by designation pursuant to 28 U.S.C. § 291 (a).
* These statutes were repealed, Pub.L. 91-513, 84 Stat. 1291-
92, Oct. 27, 1970.
? After this acquittal, counsel for James moved for severance
of the substantive counts, Fed.R.Crim.P. 14. The motion was
A-4
and recorded by agents of the Bureau of Narcotics and
Dangerous Drugs (Bureau). The interceptions were au-
thorized by District Judge William B. Jones, pursuant
to 18 U.S.C. §§ 2510-20 (1970).
The communications intercepted by the government
agents took place over two telephones, one, listed as 582-
9265, located at 201 - 53rd Street, S. E., Washington,
D. C.. Apartment 2, and the other, listed as 399-3695,
at 3676-A Hayes Street, N.E., Washington, D. C., Apart-
ment 301. On July 9, 1969 Judge Jones entered an
order authorizing the interception of communicatiors
over telephone 582-9265. Interception commenced on July
11, 1969 and continued, pursuant to the order of July
9 and an extension of authority granted by Judge Jones,
until August 19. On August 1, 1969 Judge Jones au-
thorized the interception of communications over tele-
phone 399-3695. Interception under this authority began
on August 1 and continued until August 19.
denied. This court has consistently held that such a decision is
within the sound discretion of the trial judge. See, e.g., United
States v. Wilson, 140 U.S. App. D.C. 220, 434 F.2d 494 (1970);
United States v. Gambrill, 146 U.S. App. D.C. 72, 449 F.2d
1148 (1971). In ruling on the motion, Judge Robinson care-
fully considered the claim that James would be prejudiced by
a failure to sever. Judge Robinson reviewed the evidence which
had been introduced at trial to determine whether James had
been “‘tainted” by association with the other defendants. He
also reviewed the nature of the substantive charges against
James and the evidence which had been introduced to support
them. (Tr. 5343-52). He was of the opinion that the jury would
be able to compartmentalize the evidence as to James, and
careful instructions on the matter were given to the jury.
(Tr. 5729-30, 5758-62). In these circumstances, we think the
motion for severance was properly denied. Schaffer v. United
States, 362 U.S. 511, rehearing denied, 363 U.S. 858 (1960);
United States v. Kaufman, 311 F.2d 695 (2d Cir. 1963).
A-5
During the periods when the intercepting devices were
in place government agents recorded all communications
over the two telephones. Many of the communications
were put in evidence before the jury and were the basis
of the government’s case. From this evidence the jury
was justified in finding that the appellant Jackson was in
the business of selling narcotic drugs in the City of Wash-
ington, and that arrangements for the purchase, sale and
delivery of drugs were made over the two telephones.
More than 5,000 telephone calls were intercepted, 70%
of which related to the sale or purchase of narcotics. The
jury was also justified in finding that the appellants
Tantillo and Verderosa, who lived in New York, were
Jackson’s suppliers.
I. CONSTITUTIONALITY
The appellants contend that the statute under which
their conversations were intercepted, Title III of the
Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. $$ 2510-20 (1970), is unconstitutional on its
face. We reject this contention without replowing the
ground which has been thoroughly and ably covered by
many other courts. See United States v. Tortorello, 480
F.2d 764 (2d Cir. 1973), cert. denied, 42 U.S.L.W. 3181
(Oct. 9, 1973) ; United States v. Cafero, 473 F.2d 489 (3d
Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3018
(Mar. 26, 1973); United States v. Bobo, 477 F.2d 974
(4th Cir. 1973), petition for cert. filed sub nom. United
States v. Gray, 42 U.S.L.W. 3167 (Aug. 2, 1973) ; United
States v. Cox, 462 F.2d 1293 (8th Cir. 1972); United
States v. Cox, 449 F.2d 679 (10th Cir. 1971), cert. denied,
406 U.S. 934 (1972).
II. VALIDITY OF THE COURT ORDERS
By a motion to suppress the appellants attacked the
orders of the District Court authorizing the interception
A-6
of their telephone communications. They contended that
there was no probable cause for the issuance of the Dis-
trict Court’s order and that the procedures in other ways
failed to comply with the requirements of the statute.
After pretrial hearings, lasting for twenty-one days, Dis-
trict Judge Robinson denied the motion. We think he
was right.
The underpinning of the application for wiretap au-
thorization was an affidavit of Special Agent John F.
Cody of the Bureau of Narcotics and Dangerous Drugs,
United States Department of Justice. The affidavit re-
cited that Lawrence Jackson was well known to Bureau
agents as a major violator of the narcotics laws, although
he had no record of narcotics convictions. He had been
the subject of a continuing investigation by the Bureau
since 1966 but efforts to make a case against him had
failed because of the “tight security’? under which he
operated and which enabled him to identify the Bureau’s
undercover agents. He had no legitimate means of sup-
port but owned a 1969 Lincoln Continental sedan, dressed
in expensive clothes and spent money lavishly.
An informer, referred to in the affidavit as SE-2-9-
0011, but later identified as George Lewis, told Agent
Cody that Jackson was one of the largest wholesale nar-
cotics dealers in the Washington area. He volunteered
his services in making a case against Jackson.’ His re-
* Because Agent Smith had told Lewis that a reward of
$1500 would be recommended upon the completion of the case,
although no payment had been made by the time of the trial,
appellants Tantillo and Verderosa contend that a contingent
fee arrangement existed which violated due process. William-
son v. United States, 311 F.2d 441 (5th Cir. 1962). Without
expressing an opinion on the soundness of the Williamson de-
cision, but see United States v. Grimes, 438 F.2d 391 (6th
Cir.), cert. denied, 402 U.S. 989 (1971), we think the facts
of this case do not bring it within the Williamson rationale.
It is undisputed that the possibility of a reward was not
A-7
liability had been demonstrated when his information and
services enabled the Bureau to make four cases against
major violators in the Washington area. In these cases
Lewis, in company with Bureau agents, made seven pur-
chases of high-quality heroin.
On June 17, 1969 Lewis telephoned Jackson at 399-
3695. Cody monitored the call with Lewis’ permission.
A woman who answered the telephone said that Jackson
was at “the 582 number” which she could not disclose
without Jackson’s permission. When Lewis called the
woman back she told him that the number was 582-9265
and that if Jackson asked how he obtained the number to
say she had given it to him. Lewis then called 582-9265
and was told by a man who answered that Jackson was
not there but was at 396-9755. Reached at 396-9755,
listed to a barbershop, Jackson offered to sell Lewis for
$1500 an ounce of heroin that could “stand nine cuts”.
Lewis agreed to buy a half ounce for $750 and this
transaction took piace on June 19. The half ounce of
heroin proved to be 88.5% pure. Although a Bureau
agent accompanied Lewis to the meeting with Jackson,
and surveillance by other agents was attempted, “Jack-
son made three check turns and one U-turn in an obvious
effort to detect a surveillance” (Cody Affidavit §8) and
then took Lewis alone to the point where the narcotics
were secreted, approximately five blocks from the meet-
ing point.
On June 23 Lewis telephoned 582-9265, Agent Cody
again monitoring the call with Lewis’ permission. A
discussed until after Lewis had come forward with his infor-
mation about Jackson. Before Lewis came forward the agents
knew that Jackson was an active dealer in narcotics. There
was no auestion of entranment as there was in the Williamson
case. See United States «+. Russell, 411 U.S. 123 (1973).
Finaliy, Lewis was subjected to thorough and exhaustive
cross-examination about the circumstances of the reward dis-
cussion and the nature of the arrangement.
A-8
man who answered the telephone said Jackson was not
there but he was usually there every day to receive
telephone calis and generally arrived around 2:00 P.M.
The following morning Lewis reached Jackson at the 399
number and arranged to purchase an gunce of heroin
of the same purity as that purchased on June 19. Later
that day, in the presence of Agent Wilder, Jackson sold
Lewis 23.500 grams of 65.2% pure heroin. The price was
$1500. Although Agent. Wilder was able to witness the
sale, Jackson told Lewis that he would not sel! any heroin
to strangers and that Wilder should not be included in
any future transactions. Agent Cody, who was in the
vicinity of the transaction, observed several men believed
to be associates of Jackson who were touring the area,
apparently searching for surveillance teams. Directly
after this transfer of heroin Jackson drove to 201 - 53rd
Street, S.E. where the 582-9265 telephone was located.
The affidavit of Agent Cody recited further that by
subpoena to the Chesapeake and Potomac Telephone Com-
pany he learned that the telephone number 582-9265
was listed to Richard M. James at the 53rd Street, S.E.
address. The records reflected that on January 27, 1969
three toll calls were made from this telephone to 512—
723-4937; on January 30 there was one such call, one
on February 8 and one on February 13. There were two
calls to 512—723-4937 on February 14, five on February
18 and one on April 17. The telephone number 512—
723-4937 was listed to Amelia Rendon, 201 Coke Street,
Laredo, Texas.
Laredo, Texas was known to Cody as the main point
on the Texas border for the smuggling of contraband
and narcotics from Mexico to the United States. On
June 26, 1969 Cody was informed by Special Agent
Thormalen of the Bureau’s San Antonio office that his
office had received information to the effect th:t Ren-
don of Coke Street, Laredo, was a courier of narcotics
from Mexico to Chicago and Washington, and that Ren-
A-9
don was associated with a well-known narcotics smug-
gler by the name of Marshallino Meriz. Meriz, accord-
ing to Bureau files, was associated with one Francisco
Flores, alias Poncho, a Mexican born in Laredo, who was
operating a restaurant in Washington, D. C. Flores had
been under investigation by the Bureau and was sus-
pected of being a major smuggler of narcotics from Mex-
ico to Washington. On October 30, 1966 a girl friend of
Flores was arrested at Laredo, Texas, in possession of
thirteen ounces of heroin.
Conciuding his affidavit Agent Cody stated that exten-
sive surveillance of Jackson was continuing but was not
productive because of his extreme caution. In addition,
he lived in 2 densely populated area and was closely as-
sociated with severa] of his neighbors who were prepared
to alert him to danger. Fis local telephone calls were of
course not noted on the subpoenaed records.
Cody submitted that probab!e cause existed to believe
that Jackson had used and would continue to use the
telephone listed as 582-9265 at 201 - 53rd Street, S.E.,
Apartment 2, Washington, D. C., in the commission of
offenses involving the importation of narcotics and a
conspiracy to do so. He requested an order pursuant to
18 U.S.C. $2518 authorizing the interception of wire
communications over telephone 582-9265 for a period of
thirty days. Finally, he submitted that no other inves-
tigative procedure reasonably appeared likely to succeed.
The appellants contend that (1) Agent Cody’s affidavit
did not contain allegations sufficient to constitute prob-
able cause for the issuance of a wiretap order; (2) Cody
did not exhaust normal investigative procedures before
making the application; and (3) the affidavit was im-
peached and discredited by testimony taken at the hear-
ing on the motion to suppress. At the conclusion of the
hearings on the motion the district judge found that the
affidavit had not been impeached or discredited and that
A-10
its allegations constituted probable cause. The court found
further that the interception of wire communications was
the only investigative procedure likely to succeed.
A. Probable Cause
The Cody affidavit must be read and interpreted in a
commonsense and realistic fashion. If the apparent facts
set out were such that a reasonably discreet and prudent
man would be led to believe that Jackson was using the
telephone No. 582-9265 in buying and selling narcotics
and in conspiring to do so, that was enough. Dumbra
v. United States, 268 U.S. 4385 (1925); Brinegar v.
United States, 338 U.S. 160 (1949); United States v.
Ventresca, 380 U.S. 102 (1965); Bell v. United States,
102 U.S. App. D.C. 388, 254 F.2d 82, cert. denied, 358
U.S. 885, rehearing deed, 358 U.S. 923 (1958). We think
the affidavit met this test. The reliable informant Lewis
knew Jackson to be one of the largest narcotics whole-
salers in the Washington area. On two occasions he pur-
chased a substantial quantity of unusually pure heroin
from Jackson. In the course of these dealings he leerned
that 582-9265 was apparently the secure headquarters
number of the Jackson narcotics enterprise. This fact
appeared from the following circumstances: (1) when
on tune 17 Lewis called Jackson for the first time at
399-3695 the answerer reported that Jackson was at the
“582 number” but that number could be given out only
with Jackson’s permission; (2) when Lewis called the
582 number the answerer gave him the number of a
barbershop where Jackson could be reached; (3) on Jure
23, when Lewis called the 582 number, he was told
that Jackson was regularly there after 2:00 P.M. to re-
ceive calls. In addition, there were the many cal!s from
the 582 number to Laredo, Texas, the main point on
the Texas border for the smuggling of narcotics from
Mexico into the United States.
A-11
B. Use of Normal Investigative Techniques
As required by the statute, 18 U.S.C. § 2518(3) (c),
District Judge Jones determined on the basis of the alle-
gations submitted to him that normal investigative pro-
cedures had been tried and had faile: to penetrate the
Jackson enterprise, or reasonably appeared to be unlikely
to succeed if tried. This determination was sustained by
Judge Robinson after hearing the motion to suppress.
We 2acree.
We consider and apply section 2518(3) (c) in ligitt of
the discussion of that provision in S. Rep. No. 1097, 90th
Cong., 2d Sess. 101 (1968):
This requirement is patterned after traditional
search warrant practice and present English proce-
dure in the issuance of warrants to wiretap by the
Home Secretary. [Citation omitted.] The judgment
would involve a consideration of all the facts and
circumstances. Norma! investigative procedure would
include, for example, standard visual or aural sur-
veillance techniques by law enforcement officers, gen-
eral questioning or interrogation under an immunity
grant, use of regular search warrants, and the infil-
tration of conspiratorial groups by undercover agents
or informants. Merely because a normal] investiga-
tive technique is theoretically possible, it does not
follow that it is likely. [Citations omitted.] What
the provision envisions is that the showing be tested
by aoe and commonsense fashion. [Emphasis
added. |
Considering the matter in a practical and commonsense
fashion we find that although the informant had made
two purchases of drugs from Jackson it was reasonable
to believe that these transactions were only minor items
in Jackson’s enterprise, and that the exposure of his
entire operation required different and more sophisti-
cated techniques. Certainly it was clear that surveillance
techniaues znd infiltration would be frustrated by Jack-
son’s extreme caution.
A-12
C. Impeachment of the Affidavit in
Support of the Application
At the hearing on the motion to suppress the appel-
lants attempted to demonstrate various inaccuracies, dis-
crepancies or omissions in the Cody affidavit, which, ac-
cording to the appellants, destroyed its validity as a state-
ment of probable cause. Thus it was ciaimed that the
telephone listed to Amelia Rendon in Laredo, Texas,
had been disconnected before the order authorizing the
wiretap was signed, and that in any event the Amelia
Rendon who was the subscriber was not the “fat Amelia”
who was a courier of narcotics. The appellants chal-
lenged Cody’s statement that the current toll records at
582-9265 were not available. In summary, the appellants
contended that Cody’s investigation was cursory and that
he relied upon hearsay. As we have indicated, Judge
Robinson concluded that the averments of the affidavit
had “not been impeached or discredited [so] as to destroy
probable cause for the issuance of the wiretap order
.” (Mot. Tr. 2641).
In our opinion the alleged inaccuracies or omissions in
the Cody affidavit were not fatal to the showing of prob-
able cause. In reaching this conclusion we assume with-
out deciding that a court may examine the underlying
evidence when an affidavit establishes probable cause on
its face. See Rugendorf v. United States, 376 U.S. 528
(1964); cf. Kenney v. United States, 81 U.S. App. D.C.
259, 157 F.2d 442 (1946); United States v. Gianaris,
25 F.R.D. 194 (D.D.C. 1960). But see United States
v. Carmichael, No. 71-1492 (7th Cir. Oct. 9, 1973).
D. Department of Justice Authorization
The applications for authority to intercept wire com-
munications, upon which Judge Jones acted, were filed
by Assistant United States Attorney Harold Sullivan
and represented that they were “authorized by the As-
A-13
sistant Attorney General for the Criminal Division of
the Department of Justice [Will Wilson], who has been
specially designated by the Attorney General of the
United States to exercise the powers conferred on him
by Section 2516 of Title 18, United States Code.”
After their appeals were perfected the appellants filed
moticns in this court requesting a remand, to examine
the manner in which officials of the Department of
Justice authorized the wire interception applications.
The motions were inspired by the decision of the Cir-
cuit Court of Appeals for the Fifth Circuit in United
States v. Robinson, 468 F.2d 189, decided Jan. 12, 1972;
for subsequent developments in the case see 472 F.2d
973 (Sth Cir. 1973) (en banc), and 359 F.Supp. 52
(S.D. Fla. 1972). In the Robinson case the court held
invalid an interception application that was not ap-
proved by the Attorney General or by an Assistant At-
torney General, but rather by executive assistants or
deputies of these officials. The court held that this pro-
cedure failed to comply with the requirements of 18
U.S.C. § 2516(1) which provides in part:
The Attorney General, or any Assistant Attorney
General specially designated by the Attorney Gen-
eral, may authorize an application to a Federal judge
of competent jurisdiction for, and such judge may
grant in conformity with section 2518 of this chap-
ter an order authorizing or approving the inter-
ception of wire or oral communications .
See also United States v. Mantello, U.S. App. D.C.
, 478 F.2d 671 (1973), petition for cert. filed, 42
U.S.L.W. 3022 (Apr. 30, 1973).
This court denied appellants’ motions to remand. with-
out prejudice to the submission of appropriate motions
in the District Court pursuant to Fed.R.Crim.P. 33.
Motions for a new trial were thereafter filed in the Dis-
trict Court and. after hearing, were denied by the trial
judge.
A-14
At the hearing on the motions for a new trial the evi-
dence, by way of affidavits, disclosed that Attorney Gen-
eral John N. Mitchell sent to Assistant Attorney General
Will Wilson a2 memorandum captioned “SUBJECT: In-
terception Order Authorization” and referring to Mr.
Wilson’s “recommendation that authorization be given
_.. to make application for an interception order under
18 U.S.C. 2518, permitting the interception of wire com-
munications to and from telephone number 582-9265
_...” The memorandum concluded “you are hereby
specially designated to authorize Harold Sullivan to make
the above described application.” The memorandum was
initialed by Mr. Mitchell. Similar memoranda were sent
with respect to the applications for an extension of the
wiretap on 582-9265 and for authority to intercept com-
munications on 399-3695. Mr. Mitchell’s affidavit stated
that his “memoranda of approval . . . constituted noti-
fication to the Assistant Attorney General of the Criminal
Division that the discretionary action of approving each
of the requests to make application to the court for an
interception order had been taken by me.” The affidavit
of Henry Petersen, Deputy Assistant Attorney General
in the Criminal Division, stated that having received
the approval of the Attorney General, he signed Will
Wilson’s name to the letter informing Assistant United
States Attorney Harold Sullivan that he was authorized
to present the application to the court. Mr. Wilson did
not examine any of the files but had authorized Mr. Peter-
sen to sign his name to such a letter of authorization in
every instance in which the request had been favorably
acted upon in the Office of the Attorney General.
The District Court found that Attorney General Mit-
chell “personally approved the requests for authority to
apply for the interception orders in this ease.”’ The court
then “considered the requirements of 18 United States
Code, Section 2518(1)(a) that the application for an
A-15
order to intercept wire or oral communications shall
state the applicant’s authority to make such application
and the identity of the officer authorizing the application”
and the court found that “under the facts of this case”
it was immaterial that Mr. Mitchell, and not Mr. Wil-
son, as alleged, was the authorizing officer. Accordingly
the motions for a new trial were denied.
We agree with the district judge. He was plainly cor-
rect in his finding that the Attorney General personally
approved the requests to make applications to the court
for interception orders; and this personal authorization
of the Attorney General complied with the requirements
of 18 U.S.C. §2516(1). That the applications to the
court erroneously stated that they were authorized by
Mr. Wilson rather than by the Attorney General was an
immaterial variance. Once the Attorney General per-
sonally approved the request, the actions of his subordi-
nates were essentially ministerial; the letter purportedly
signed by Mr. Wilson was “but an act of transmittal
without legal consequence to the «authorization itself.”
United States v. Askins, 351 F.Supp. 408, 412 (D. Md.
1972); United States v. Cafero, 473 F.2d 489 (38d Cir.
1973), petition for cert. filed, 42 U.S.L.W. 3018 (Mar.
26, 1973); United States v. Becker, 461 F.2d 230 (2d
Cir. 1972), petition for cert. filed, 42 U.S.LW. 3016
(July 28, 1972); United States v. Pisacano, 459 F.2d
259 (2d Cir. 1972), petition for cert. filed, 42 U.S.L.W.
3016 (Apr. 8, 1972); United States v. Bobo, 477 F.2d
974 (4th Cir. 1973), petition for cert. filed sub nom.
United States v. Gray, 42 U.S.L.W. 3167 (Aug. 2, 1973) ;
United States v. Cox, 462 F.2d 1293 (8th Cir. 1972);
United States v. Ceraso, 467 F.2d 647 (3d Cir. 1972);
United States v. Mainello, 345 F.Supp. 868 (E.D.N.Y.
1972). The record clearly fixed responsibility for the au-
A-16
thorizations upon the Attorney General and thug fulfilled
the purpose of 18 U.S.C. § 2518(1) (a).*
III. COMPLIANCE WITH THE COURT CRDER—
MINIMIZATION
As required by 18 U.S.C. § 2518(5), each of the three
wiretap orders contained the proviso that
this authorization to intercept wire communications
. .. Shall be conducted in such a way as to minimize
the interception of communications that are not oth-
erwise subject to interception... .
It is undisputed that the government recorded every
conversation during the period of the wiretaps. The ap-
pellants argue that in so doing the government violated
the minimization condition of the court order. In sup-
port of this contention at a suppression hearing ir. the
District Court the appellants challenged 11 calls and in
their briefs to this court they list 184 “extremely per-
sonal” calls. The government had intercepted approxi-
mately five thousand calls.
The congressional reports accompanying the wiretap
statute and decisions interpreting 18 U.S.C. § 2518(5)
make it clear that the minimization standard, like the
standards traditionally applied to tie determination of
probable cause, is one of reasonablenezs which must be
ascertained from the facts of a given case. “What is
important is that the facts in the application on a case-
by-case basis justify the period of time of the surveil-
lance.” S. Rep. No. 1097, 90th Cong., 2d Sess. 101 (1968).
The minimization requirement is satisfied if “on the
whole the agents have shown a high regard for the right
of privacy and have done al] they reasonably could to
“Section 2518(1)(a) provides: “Each application shall
include the following information:
(a) the identity of the investigative or law enforce-
ment officer making the application, and the officer au-
thorizing the application;”
A-17
avoid unnecessary intrusion.” United States v. Tov-
torello, 480 F.2d 764, 784 (2d Cir. 1973), cert. denied, 42
U.'S.L.W. 3181 (Oct. 9, 1973). [Emphasis added.]
Therefore, interception of virtually all conversations may
be found violative of the: minimization requirement in a
particular factual setting, see United States v. King, 335
F.Supp. 523 (S.D. Cal. 1971), rev’d on other grounds,
478 F.2d 494 (9th Cir. 1973), petition for cert. filed,
42 U.S.L.W. 3018 (Mar.' 29, 1973), but be justified in
other circumstances, see United States v. Bynum, 360
F.Supp. 400 (S.D.N.Y.), aff'd, 485 F.2d 490 (2d Cir.
1973).
The question of reasonableness in wiretapping presents
difficulties not found when the subject of a seizure is
tangible property:
What is “reasonable,” “practicable,” or “feasible”
depends upon the facts and circumstances in each
case. [Citation omitted.| It is certainly unreason-
able and goes beyond the limits of practicability or
feasibility in every case to give a seizing officer what
the Berger court characterized as a “roving com-
mission to ‘seize’ any and all conversations.” 388
U.S. at 59, 87 S.Ct. at 1883. But it is not unrea-
sonable to recognize that it is much easier to de-
scribe with particularity in a warrant ine nature
and contents of a physical object than a conversa-
tion which has not yet been heard. In the former
case the law enforcement officer can by sight and
touch generally determine before he takes the item
into his custody whether it is something which he
is authorized to seize by the warrant while in the
latter case he can generally determine with exact-
ness whether the conversation is authorized to be
seized by the warrant only when he has already taken
it into custody by having heard it in its entirety.
United States v. Focarile, 340 F.Supp. 1033, 1047 (D.
Md.), aff'd sub nom. United States v. Giordano, 469 .zd
522 (4th Cir. 1972), cert. granted, 411 U.S. 905 (1973).
With this perspective it becomes possible to identify the
A-18
factors which determine the degree of minimization re-
quired in a given case.
1. Scope of the Criminal Enterpr xe Under Investiga-
tion. What the Senate noted with reg.rd to the duration
of a wiretap is pertinent to the minimization issue.
Where it is necessary to obtain coverage to only one
meeting, the order should not authorize additional]
surveillance. [Citation omitted.] Where a course of
conduct embracing multiple parties and extending
over a period of time is involved, the order may
aio ad authorize proportionately longer surveil-
ance....
S. Rep. No. 1097, 90th Cong., 2d Sess. 101 (1968). Where
the criminal enterprise under investigation is a large-
scale conspiracy with many participants, it may be nec-
essary for the government to monitor more conversa-
tions with greater intensity than when the investigation is
more limited. For example, some sophisticated narcotics
conspiracies closely resemble advanced commercial enter-
prises with production and distribution networks, col-
lection personnel, internal security forces, and so forth.
Identification of the contours of the conspiracy und the
participants may be the government’s principal objec-
tive.’ Compare United States v. Cox, 462 F.2d 1293 (8th
Cir. 1972) (continuous tap found not to violate minimi-
zation requirement where the object of the investiga-
tion was an organized criminal conspiracy of large pro-
portions) with United States v. King, 335 F.Supp. 523
(S.D. Cal. 1971), rev’d on other grounds, 478 F.2d
494 (9th Cir. 1973), petition for cert. filed, 42 U.S.L.W.
3018 (Mar. 29, 1973), (continuous tap found to violate
the minimization requirement where the court order
limited the interception to investigation of a single nar-
cotics shipment).
5 Ultimately, fifty-five persons were charged in seven sep-
arate indictments as members of the Jackson conspiracy.
A-19
Additional characteristics of a criminal enterprise may
affect the level of minimization possible. Where the mem-
bers of a conspiracy act with great circumspection,
agents may be justified in monitoring a significant part,
or perhaps all, of a conversation in order to be sure that
it is indeed innocent. A number of reported cases have
noted the use of codes within narcotics conspiracies so
that superficially innocent conversations are actually
highly relevant to the investigation. See United States v.
Cox, 462 F.2d 1298 (8th Cir. 1972); United States v.
Sisca, 361 F.Supp. 785 (S.D.N.Y. 1973); United States
v. Focarile, 340 F.Supp. 1083 (D. Md.), aff'd sub nom.
United States v. Giordano, 469 F.2d 522 (4th Cir. 1972),
cert. granted, 411 U.S. 905 (1973). Another technique
often found is the use of guarded language or the deliber-
ate discussion of irrelevant matters during the early mo-
ments of a conversation so that, if the conversations are
being monitored, agents, assuming the call to be innocent,
will cease the interception. See United States v. Bynum,
360 F.Supp. 400, 412-13 (S.D.N.Y.), aff'd, 485 F.2d 490
(2d Cir. 1973).
True, if this thesis is taken to the extreme, the mini-
mization requirement could be emasculated. The answer.
of course, is that it will not be taken to an extreme if
the reviewing standard is one of reasonableness and the
factua] setting of each case is examined carefully.
2. Location and Operation of the Subject Telephone. In
Katz v. United States, 389 U.S. 347 (1967), the Su-
preme Court held that the fourth amendment protects a
person’s reasonable expectation of privacy. As Justice
Harlan noted in concurrence, such an expectation must
“he one that society is prepared to recognize as ‘roa-
sonable.’” 389 U.S. at 361. In wiretap cases decided
both hefore and after enactment of the wiretap statute,
courts have implicitly, if not explicitly, applied that
A-20
standard in evaluating the propriety of government in-
trusion upon a citizen’s privacy. Where the probability
is high that persons not under investigation will be using
the tapped telephone or that the content of the calls will
not pertain to the subject matter of the investigation, the
government must adopt procedures to limit the intercep-
tion of those kinds of calls. Thus it is not surprising that
statutory or constitutional violations are most often
found when home or legitimate business telephones are
tapped, for the citizen’s expectation of privacy in such
surroundings is high. See United States v. LaGorga, 336
F.Supp. 190 (W.D. Pa. 1971) (minimization requirement
violated by tap of home telephone when many of the
intercepted calls were “innocent”); Berger v. New York,
388 U.S. 41 (1967) (constitutional violation found in
continuous tap of legitimate business telephone). Where,
by contrast, a telephone is used exclusively to conduct
illegal business and is located in a place which serves no
residential or business purpose in the sense in which
those terms are ordinarily used, then the users of that
telephone do not have the expectation of privacy which
“society accepts, and less stringent minimization standards
are both reasonable and permitted by Title III. See
United States v. Bynum, 360 F.Supp. 400 (S.D.N.Y.),
aff'd, 485 F.2d 490 (1973) (apartment at which tele-
phone was located was used almost exclusively for crim-
inal activity).
3. Government Expectation of the Content of the Calls.
In order to obtain wiretap authorization, the government
must show to the satisfaction of a judicial officer that
there is probable cause to believe that a given telephone
will be used for one of the offenses enumerated in the
statute, 18 U.S.C. §§ 2518(3) (a)-(b). If at the time of
the initiation of the wiretap the government knows those
persons who are suspected of the criminal offense, it can
tailor its minimization efforts to avoid monitoring incom-
ing or outgoing calls involving other persons; similarly,
A-21
if the government knows during what time of the day
the telephone will be used for criminal activity, it can
avoid intercepting calls at other times. These considera-
tions affect the initial minimization tactics employed by
the government, but agents may expand or contract their
interception policy as the wiretap continues:
Probable cause must exist as of the time of the in-
trusion, and the results of the investigation—which
naturally informs the hindsight analysis of judges
and lawyers—are not to be considered. With wire-
taps, however, the degree of probable cause existing
during the course of an investigation may fluctuate,
since the growing amalgam of information received
during the tap more sharply defines the skeletal data,
inferences and sophisticated suspicions with which
the investigation began.
United States v. Bynum, 360 F.Supp. at 404.
Thus, judicial analysis of the minimization requirement
must take note of the ever-changing character of the in-
vestigation. If the fruits of the tap in its early stages
reveal a pattern of criminal conduct unknown to the
government at the time of the initiation of the tap, then
an expanded pelicy of interception (within the confines
of the court order) may be justified. See United States
v. Focarile, 340 F.Supp. 1033, 1047-50 (D. Md.), aff'd
sub nom. United States v. Giordano, 469 F.2d 522 (4th
Cir. 1972), cert. granted, 411 U.S. 905 ( 1973). In the
Focarile case the court found that there had been no vio-
lation of the minimization requirement even though gov-
ernment agents had not carried out a minimization policy
until the tap had existed for almost two we ks.
Although total interception for 12 to 13 days may
well be unreasonable under ordinary circumstances
to establish a pattern [of personal calls], it di -- -ot
seem to the court unreasonable here where . .e1c
was an alleged narcotics conspiracy involving .n un-
known number of persons and where it was extremely
difficult, if not impossible, to determine which calls
A-22
were “innocent” in advance of obtaining a reliable
pattern.
340 F.Supp. at 1050.
4, Judicial Supervision by the Authorizing Judge. In
Katz v. United States, 389 U.S. 347 (1967), the Supreme
Court found a violation of the fourth amendment even
though the government argued that the electronic surveil-
lance undertaken was so narrowly circumscribed that it
could have been authorized in advance. The Court held
that bypassing a neutral predetermination by a judicial
officer would circumvent “the safeguards provided by
an objective predetermination of probable cause, and
substitutes instead the far less reliable procedure of an
after-the-event justification ....” 389 U.S. at 358,
quoting Beck v. Ohio, 379 U.S. 89, 96 (1964). The most
striking feature of Title III is its reliance upon a judi-
cial officer to supervise wiretap operations. ‘Close scru-
tiny by a federal or state judge during al! phases of the
intercept, from the authorization through reporting and
wee enhances the protection of individual rights
” United States v. Bynum, 360 F.Supp. at 410.
Onee : a judge has authorized a wiretap, he may continue
supervising the implementation and operation of the tap
by requiring reports from government agents. 18 U.S.C.
§ 2518(6). When a judge requires such reports at reg-
ular intervals, reviews the progress as it is related to
him, and closely supervises the interception, “the rights
of affected individuals are most likely to be safeguarded.”
United States v. Bynum, 360 F.Supp. at 410.
When the circumstances of the case under review are
considered in light of the above factors, it becomes clear
that the authorizing judge and the government agents
could not have “formulate[d] any detailed screening in-
structions which could effectively minimize licit telephone
interception.” United States v. Bynum, 485 F.2d at 501.
On the basis of the facts known to the government at
A-23
the initiation of the tap (and contained in the Cody
affidavit), it was clear that Jackson was involved in a
narcotics conspiracy of great size and sophistication. The
purchases of unusually pure _ heroin negotiated by
Lewis indicated that Jackson was close to importers and
high in the distribution chain. Jackson’s extreme cir-
cumspection, which made it impossible for the govern-
ment to penetrate his enterprise with conventional en-
forcement techniques, indicated that he was street-wise,
and Lewis indicated that Jackson was known as one of
the largest narcotics wholesalers in the city.
The June 19 and June 24 heroin purchases, negotiated
through calls placed to 582-9265, gave the government
every reason to believe that the residence and telephone
therein served as an answering service. First, there had
been the circumspection surrounding the disclosure of the
582 number to Lewis. Second. there had been the per-
sons at the 582 number who had been able to get mes-
sages to Jackson. Third, although not mentioned in the
affidavit. Jackson himself had told Lewis to call him at
the 582 number on June 19 to arrange the drug delivery.
Finally, there was the June 23 statement by a person
answering the 582 telephone that Jackson was there
regularly in the afternoon. These factors justified the
government’s belief that the telephone was used largely
for illegal activities and, under the theory adopted in
the Focarile case, authorized an eariy period of constant
monitoring in order to determine the pattern of illegal
usage.
Certainly once the tap was installed the government
was justified in continuing to intercept every conversa-
tion. It became clear that the 582 number was used al-
most exclusively to conduct illegal business. The people
taking orders frequently admonished purchasers to state
their business quickly so that the telephone would not be
A-24
tied up. Callers were told, “This is a business ’phone.”
(Tel. Tr. 2188). Jackson once said, “Now lay off the
*phone, ’cause I’ve got some calis comin’”. (Tel. Tr.
5547). “I holdin’ the line up and people wants to pay
money ....” (Tel. Tr. 5878-79). When a non-business
call came in, the caller was told, “Alrighty, well I am
on somebody’s ’phone, this is a business ’phone so look
here, I call you when I get home.” (Tel. Tr. 12,742).
Calls came in during all hours of the day and night at
the rate of one every ten minutes. The telephone was
manned in shifts, with “employees” often near exhaus-
tion. The apartment in which the telephones were lo-
cated served no residential function. Although statistics
prepared after the fact cannot control—the adequacy of
minimization depends upon what appeared to government
agents at the time—statistics reveal that seventy percent
of the calls were related to narcotics transactions, while
only twelve percent could positively be determined to in-
volve neither narcotics nor other criminality. Because
many persons involved were either friends or relatives,
many conversations containing incriminating statements
—some of them in cryptic or coded terms—also contained
some personal conversations.
In accordance with the terms of the wiretap order,
the government submitted written and oral reports to
Judge Jones. Written reports, which have been exam-
ined by this court, were submitted on July 14, July 28,
August 7, and August 13 with respect to the July 11-
August 19 tap on the 582 number. A number of the
reports prepared by the agent-in-charge (and submitted
to the Assistant United States Attorney) were also given
to Judge Jones at these times. While the reports do prin-
cipally deal with aggregate statistics, they also highlight
important developments in the identification of partici-
pants in the conspiracy, and a fair reading indicates that
A-25
the authorizing judge was aware that the government
was intercepting every telephone call. The record also
contains a memorandum from J udge Jones indicating that
the Assistant United States Attorney made oral reports of
the progress of the investigation on July 14, 18, 23, and
28, and August 1 and 13, 1969. Fewer oral and written
reports were filed with regard to the tap on the 399
number which was in operation only between August 1
and 19; but it is clear that Judge Jones was aware of
the progress of the government investigation, understood
the scope of the interception, and approved the govern-
ment conduct.
In support of their argument that the recorded inter-
ceptions were an impermissible intrusion into their
privacy, the appellants refer us to a number of conver-
sations which they characterize as “private”. We think
their illustrations contradict their argument, for although
the conversations frequently contain chaff they are also
laden with evidentiary wheat. For example, the appel-
lants refer to one conversation which they summarize as
follows: “On July 16 at 5:32 a.m. a man and woman
talk about personal matters for several hours.” When
we examine the conversation, which was played in sub-
stantial measure by the government at trial, we find that
it occurred between Jackson and his confidante and co-
defendant Mary Davis. It began at 5:32 A.M. and lasted
until 7:40 A.M. During the conversation reference was
made to “Carlos”, later identified as the co-defendant
Paladino, whom Jackson regularly met at the Davis
house. Jackson discussed the efforts of the police to keep
him under surveillance, the techniques the police em-
ployed, and the-steps he was taking to avoid detection.
Jackson also talked at length of the economics of the drug
traffic, the problems caused by people “sniffin’ and snortin’
and tastin’” his drugs and the problem of getting large
customers to buy both heroin and cocaine. He spoke of
A-26
the difficulty of obtaining good help and of keeping the
good will of his suppliers. Davis accused him of paying
less attention to her when he met Carlos and started
making “big money”; to which Jackson rejoined that the
growing responsibility of dealing with “bigger people”
required his increased attention.
The appellants also point to a conversation on July 17
at 5:13 A.M., when “a woman and her brother-in-law
discuss the hardships of her life for over 10 minutes.”
This vas a conversation between Lester Jackson, the
brother cf Lawrence Jackson, and a woman. Lester told
the woman that earlier in the day police had been in
the neighborhood, apparently engaged in surveillance, and
that Lawrence Jackson was attempting to determine
whether they were stiil there. He said that Lawrence
was often exhausted by his efforts in running a success-
ful narcotics business because he refused to trust others
and made most of the “moves” himself; that no one in
the business could keep awake longer than Lawrence
who pushed himself to the limit of his endurance in pur-
suit of business. Lester Jackson added that he irtended
to leave the headquarters as soon as he finished counting
the money. Five hours later he called the woman and
told her he had been delayed the previous evening by
“rollers” that showed up. He said he had been receiving
money “so fast I can’t get no break, every time I look
around somebody else lookin’ an’ somebody else bring
some money.” He asked whether the woman put the last
batch of money in the proper spot and said he had an-
other bag of money as “big as that one”. Appellants
characterize this conversation as one in which a “man
talked to his wife and baby daughter”.
The telephones in this case were used almost exclu-
sively to conduct illegal transactions; any personal con-
versations were mere specks in the tovrent of conspira-
torial communications. The appellants were not in a
A-27
position to insist that their few legitimate personal re-
marks must be sieved out from the great volume of their
unlawful conversations.
IV. THE CASE OF APPELLANT BROOKS
The appellant Brooks contends that the evidence does
not support his conviction of conspiracy. His argument
must be rejected.
For five years before his arrest Brooks had been a
member of the Narcotics Squad of the Metropolitan Po-
lice Department, and in that capacity he was familiar
with the operations of the appellant Jackson. The evi-
dence disclosed that he made many telephone calls to
Jackson and the other conspirators on 582-9265 and 399-
3695; some sixty recordings of the intercepted calls were
introduced in evidence. There were also calls from 582-
9265 to Brooks’ residence in Maryland. In addition,
federal agents testified concerning their observations of
Brooks. For example, there was testimony that on one
occasion agents gave Brooks false information that they
planned to have an informart purchase heroin from Jack-
son at a certain time and place. Thirteen minutes later
Brooks called Jackson’s headquarters to warn him of the
imper‘ding arrest. Later in the day Brooks telephoned
Jackson and told him “the Feds are going to try to get
you today”. He also gave Jackson the name of the in-
formant who was supposed to have made the purchase
of narcotics. Finally, there was evidence which justified
the jury in finding that Jackson was giving Brooks money
in return for the information he received from Brooks.
Brooks summarizes his argument as follows:
The evidence against Brooks, which because of its
character was also evidence against Jackson, showed
at most that the two of them were engaged in a
bribery scheme. Stretched to its furthest possible
limits this evidence showed only that Brooks a nar-
A-28
cotics officer was giving Jackson information that
he obtained or learned in his work that was useful
to Jackson, a narcotics trafficker. There was abso-
lutely no evidence that Brooks was in anyway |sic_
involved in drug dealings or transactions. There
was no evidence that he had any contact or knowl-
edge of the defendants Tantillo, Paladino or Ver-
derosa, or James. There was no evidence that the
agreement between these persons contemplated, in-
cluded or embraced the Jackson-Brooks dealings.
In making this argument, it is conceded that the
evidence supports the inferences that Brooks knew
that Jackson was dealing in both heroin and cocaine,
and that as a narcotics officer of broad experience,
Brooks knew that Jackson was getting his drugs
from someone else, and that as to the heroin Jackson
wes selling, Brooks knew that it had been imported
inte the United States by someone, somewhere, con-
trary to law.
(Brooks’ Brief at 25-26, 33-34).
We think the appellant’s argument answers itself. The
evidence showed that Brooks played a vital part in the
conspiracy by protecting Jackson and his enterprise from
interference by the police. He did this with full knowl-
edge of the nature of the unlawful enterprise, even
though he might not have known the identity of all the
participants. This was enough to make him a party to
the conspiracy. The government was not required to
show that Brooks knew Tantillo, Paladino, Verderosa,
or James; a conspirator need not know the identity of
all other conspirators or the rarticular roles they piay
in the unlawful enterprise. United States v. Bynum, 485
F.2d 490, 495-97 (2d Cir. 1973) ; United States v. Agueci,
310 F.2d 817, 826-28 (2d Cir. 1962), cert. denied, 372
U.S. 959 (1963); United States v. Cole, 365 F.2d 57
(7th Cir. 1966), cert. denied, 385 U.S. 1024, 1027, 1032,
rehearing denied, 386 U.S. 951 (1967) ; United States v.
Rich, 262 F.2d 415, 418 (2d Cir. 1959).
ow. on™
A-29
V. ADDITIONAL ARGUMENTS BY TANTILLO AND VERDEROSA
A. Voice Identification
At trial narcotics Agent Devine listened to a number
of recorded telephone conversations and was able to iden-
tify the voices of Paladino and appellants Verderosa and
Tantillo. The appellants argue that the admission of De-
vine’s testimony violated their rights to counsel and due
process.
Before trial Agent Devine had been present at two
post-indictment meetings when a government informant,
Ralph Caputo, listened to the tapes and identified the
voices of those participating. On one occasion both De-
vine and Caputo wore earphones, and when Caputo iden-
tified the voices for other agents at the meeting, Devine
did not hear him (except on a few occasions when Devine
had removed the earphones). At the second meeting
neither Devine nor Caputo wore earphones, and Devine
was able to hear both the tapes and Caputo’s identifica-
tion of voices. At trial the government called Caputo.
Out of the presence of the jury, he testified that he knew
the voices of Verderosa, Tantillo, and Paladino quite well
because he had dealt in narcotics with them on numerous
occasions. The appellants objected that they cov!d not
effectively cross-examine Caputo because to do so would
waive their rights against self-incrimination regarding
the prior narcotics dealings. The District Court ruled
Caputo’s proffered testimony inadmissible, and it was in
this context that the government proffered Agent Devize.
Devine had heard the voices of the appellants many times
at a New York restaurant and bar where he had con-
ducted at least seventy hours of close surveillance of the
appellants, and he testified that he recognized their voices
in the recordings kefore he heard Caputo’s identifications.
In light of United States v. Ash, 418 U.S. 300 (1973),
we reject the argument that counsel should have been
A-30
present at the pretrial meetings when Devine listened
to the tapes. The appellants’ due process attack is also
unfounded. Even assuming that the Caputo identifica-
tion in Devine’s presence was suggestive, there was clear-
ly an independent basis for Devine’s in-court identifica-
tion of the voices. Devine’s surveillance of appellants,
when he observed and listened to them at close range
over a substantial period of time, established by clear
and convincing evidence that the in-court identifications
were based upon factors other than Caputo’s statements.
United States v. Wade, 388 U.S. 218, 240 (1967).
B. Validity of Two Conspiracy Convictions
Appellants Tantillo and Verderosa were convicted on
count 1 of the indictment charging conspiracy under 26
U.S.C. $$ 4705(a), 7237(b) and on count 2 of the in-
dictment charging conspiracy under 21 U.S.C. $174.
They contend that Braverman v. United States, 317 US.
49 (1942), precludes their conviction and sentencing on
both counts because, although the object of the conspiracy
may have heen the violation of two different statutes,
there was proof of but one conspiracy.
In the Braverman case, the defendants were convicted
under section 37 of the Criminal Code of conspiracy to
violate numerous provisions of the Internal Revenue Code.
Each count of the multi-count indictment referred to a
separate Revenue Code provision, and the defendants re-
ceived consecutive sentences on each count for conspiracy
to violate each provision of the Revenue Code. The con-
spiracy itself was proscribed under the all-encompassing
federal’ conspiracy statute, the predecessor of 18 U.S.C.
$371. The Court reversed:
Since the single continuing agreement, which is the
conspiracy here, thus embraces its criminal objects,
it differs from successive acts which violate a single
penal statute and from a single act which violates
two statutes. [Citations omitted., The single agree-
A-31
ment is the prohibited conspiracy, and however di-
verse its objects it violates but a single statute, § 37
of the Criminal Code. For such a violation only the
single penalty prescribed by the statute can be im-
317 U.S. at 54.
In the present case the defendants were convicted of
the violation of two separate and distinct conspiracy
statutes. The government argues that this distinguishes
the Lraverman case, and the Supreme Court has so held.
In American Tobacco Co. v. United States, 328 U.S. 781,
787-88 (1946), the Supreme Court addressed the argu-
ment that separate convictions for conspiring to restrain
trade and conspiring to monopolize trade, in violation of
two sections of the Sherman Act “amount to double jeop-
ardy, or to a multiplicity of punishment ... .” The
Court stated:
On the authority of the Braverman case, petitioners
claim that there is but one conspiracy, namely, a
conspiracy to fix prices. In contrast to the single
conspiracy described in that case in separate counts,
ali charged under the general conspiracy statute,
§ 37, Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88,
we have here separate statutory offenses, one a con-
spiracy in restraint of trade .. . and the other a
conspiracy to monopolize . . . . One is made criminal
by ¢ 1 {of the Sherman Act} and the other by £2
of the Sherman Act.
328 U.S. at 788. This interpretation of the meaning ci
the Braverman decision is consistent with the view of
the commentators. See Annot., 87 L.Ed. 29, 37-39
(1943'; 1 ANDERSON, WHARTON’S CRIMINAL LAW AND
PROCEDURE § 83, at 180 (1957). Where, as in this case,
two specific conspiracy statutes are involved, a defendant
may properly be convicted under both. Accordingly we
reject the contention vf Tantilleo anc Verdercsa.*
© Tantillo and Verderosa also challenge the conviction for
violation of 21 U.S.C. § 174 on the theory that no heroin was
a
A-32
C. Rulings On Evidence
Tantillo and Verderesa challenge the admission in evi-
dence of a three-party telephone conversation: between
Jackson, a “collection agent” of the enterprise named
Rudy, and a delinquent purchaser nained Buster. In the
course of the conversation, to stimulate Buster to pay
for the drugs he had received, Jackson threatened him
with death or serious injury. Jackson also complained
that Buster’s failure to pay was jeopardizing Jackson’s
life because when “them Guineas get to shooting, they
don’t shoot at you. . .. ’Cause I’m da one dats takin
all da weight.” (Tel. Tr. 377). The appellants claim
that these statements by Jackson were not made in fur-
therance of the conspiracy, and prejudiced them by char-
acterizing them as potential murderers. We think how-
ever that the statements were admissible. A criminal con-
spiracy continues until the objects for which it was formed
introduced into evidence to support the requisite finding of
possession. The only heroin introduced at trial had been pur-
chased by informer Lewis, and the court had instructed the
jury that there was no evidence that Tantillo and Verderosa
had constructively possessed that particular heroin. (Tr.
5743). Appellants misconceive the nature of a conspiracy
charge, which need not include proof of commission of the
substantive violation. There was substantial evidence intro-
duced at trial, including intercepted conversations, from which
the jury could have concluded that Tantillo and Verderosa
were dealing in heroin. We agree with the Second Circuit
which held that
“no proof of actual dealings in narcotics is required to
establish conspiracy to violate the narcotics laws and that
when such proof is required, as in the case of a substan-
tive count or in order. to give rise to the statutory infer-
ence from possession, ‘just as with any other component
of the crime, the existence of and dealing with narcotics
may be proved by circumstantial evidence’... .”
United States v. Nuccio, 373 F.2d 168, 174 n.4 (2d Cir.), cert.
denied, 387 U.S. 906, rehearing denied, 389 U.S. 889 (1967).
A-33
have been accomplished. Since one object of this con-
spiracy was illicit gain—the collection of money in ex-
change for drugs—it embraced the means ordinarily
employed to accomplish that intended result. Cf. Mc-
Donald v. United States, 89 F.2d 128, 133-34 (8th Cir.),
cert. denied, 301 U.S. 697, rehearing denied, 302 U.S. 773
(1937), rehearing denied, 325 U.S. 892 (1944). A fair
inference, grounded in common sense, was that the means
of collection contemplated and sometimes used by the con-
Spirators would not be those employed in normal com-
mercial transactions. As the Second Circuit observed with
respect to an analogous contention in United States v.
Bynum, 485 F.2d 490, 499 (2d Cir. 1973): “We are
not dealing with minor league addicted street pushers
but with well-financed brazen professionals engaged in a
large-scale criminal undertaking in which corruption and
violence are endemic.” *
VI. TANTILLO’s CHALLENGE TO THE
§ 4704(a) CONVICTION
Count 9 of the indictment charged Tantillo jointly with
Verderosa and Paladino with a violation of 26 U.S.C.
$ 4704(a). The count was based upon cocaine seized in
the late afternoon of August 18, 1969 in apartment 723
of the Cambridge Apartments, 1221 Massachusetts
Avenue, N.W., in Washington. Tantillo contends that
there was no evidence to justify a finding beyond a rea-
sonable doubt that he possessed the cocaine, either ac-
tually or constructively. Analysis of the evidence impels
us to a contrary conclusion.
* Tantillo and Verderosa also object to the evidence concern-
ing the corruption of Brooks. Enough has been said, we think,
to demonstrate that the activities of Brooks were part and
parcel of the conspiracy and plainly within the contemplation
of Tantillo and Verderosa as conspirators. See Part IV, supra.
Shc |
:
; ‘ ” ‘
Ss ieee sagt? tie Pace ated
A-34
At trial the parties agreed on a single instruction out-
lining the legal concepts of possession. Included in the
instruction and given to the jury was the following
charge on constructive possession:
... A person who, although not in actual possession,
knowingly has the power and the intent at a given
time to exercise dominion or contro] over a thing,
either directly or through another person or persons,
is then in constructive possession of it. Such con-
structive possession of a narcotic drug may be found
where a person has the power to control the disposi-
tion of the drug and to assure its delivery. Thus,
a person who has a working relationship with or is
otherwise exclusively associated with those who have
physical custody of a narcotic drug so that he is
without difficulty and, as a matter of course, able
to assure production of the drug to a customer, may
be found to have constructive possession of the nar-
cotic drug.
However, a person who lacks such a working re-
lationship or association sufficient to assure produc-
tion of the drugs may not be found constructively to
possess it even if he knows the person or persons
eau and trading in the narcotic drug. (Tr.
Applying the test stated in the court’s charge we think
the evidence justified the jury in concluding that Tan-
tillo possessed the cocaine found in apartment 723.
There was evidence from which the jury could reason-
ably infer that on July 28, 1969 Tantillo, Verderosa and
® See United States v. Baratta, 397 F.2d 215, 224 (2d Cir.),
cert. denied, 393 U.S. 939 (1968), rehearing denied, 393 U.S.
1045 (1969); United States v. Bethea, 143 U.S. App. D.C. 68,
70, 442 F.2d 790, 792 (1971); United States v. Davis, 461 F.2d
1026, 1035-36 (3d Cir. 1972); United States v. Mendoza, 435
F.2d 891, 896 (5th Cir. 1970), cert. denied, 401 U.S. 943
(1971); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960),
cert. denied, 365 U.S. 889 (1961); United States v. Jones, 308
F.2d 26, 30 (2d Cir. 1962).
A-35
Paladino came to Washington, established a base of
operations at the Hotel America and made a delivery of
narcotics to Jackson. A week later, on August 5, Tan-
tillo and Verderosa went to the Cambridge Apartments
and inquired about a one-bedroom apartment. Later that
day Tantillo in the presence of Verderosa filled out a
rental application for apartment 723. Using the fictitious
name “DiCarlo”, Tantillo represented to Mrs. Ann Ver-
non, the resident manager, that he was in Washington
to open a bakery and Verderosa was his helper.
On August 11 Tantillo, Verderosa and Paladino again
operated from the Hotel America while dealing in nar-
cotics with Lawrence Jackson and Leon James. On that
same day Tantillo and Verderosa returned to the Cam-
bridge Apartments and Tantillo signed a one-year lease
for apartment 723. Tantillo was given a set of keys to
the apartment. Tantillo and Verderosa were in and out
of the Cambridge that afternoon and were together at
the apartment house on the following day.
On August 13 Tantillo introduced Paladino to Mrs.
Vernon as “Mr. Rizzo”, his brother-in-law. Tantillo told
Mrs. Vernon he wanted her to meet Mr. Rizzo because
Mr. Rizzo “would be spending quite a bit of time here
from New York”.
There was evidence that on August 15 Paladino called
Jackson and agreed to resupply Jackson with cocaine on
Monday, August 18. On Monday morning Paladino ar-
rived at National Airport by plane and proceeded to
Union Station where he met Verderosa who was carry-
ing the cocaine, wrapped in multi-colored paper. Ver-
derosa then went by cab to the Cambridge Apartments
where he left the cocaine in apartment 723, using Tan-
tillo’s keys to open the apartment. Verderosa and Pala-
dino thereafter made several attempts to reach Jackson
by telephone. Verderosa finally reached Jackson at the
582 number and they agreed to meet at Alabama
SRR PNR. RP ELS
VA RD. RATE TN
A-36°
Avenue, S.E., where Jackson was to pay Verderosa for
the cocaine. At the meeting place Verderosa, Paladino
and Jackson were arrested and agents recovered two keys
which were dropped by Verderosa. The agents took ‘the
two keys to the Cambridge Apartments, compared them
with the keys to apartment 723 which Mrs. Vernon pro-
duced, and found they were identical. Shortly there-
after the agents, using the two keys, and armed with
a search warrant, entered the apartment. There they
found a plastic bag containing 463.72 grams of 55.4%
anhydrous cocaine. Also found was some crumpled multi-
colored wrapping paper which was identified by an agent
as the same kind of paper that was on the package Ver-
derosa had been carrying that morning at Union Station.
While the agents were searching apartment 723 there
was a knock on the door and when an agent opened it
Tantillo and a young lady were standing in the door-
way. Tantillo was then arrested and searched. In one of
his pockets was a roll of bills totaling $2,210. Among
his papers was one on which several telephone numbers
were written, including the 582 number, the 399 number,
and a number listed to the wife of Leon James.
When Tantillo entered the lobby of the Cambridge -
Apartments just before his arrest he tried to use the
telephone at the switchboard to call his apartment; how-
ever, the switchboard was busy and Tantillo went up
to the apartment unannounced.
From al] this evidence we think the jury could rea-
sonably conclude that Tantillo rented the apartment at
the Cambridge as a base for his operations and as a
place for the storage of narcotics pending their delivery.
The evidence also justified the conclusion that Tantillo
had given his keys to Verderosa, intending that the
drugs consigned to Jackson be kept in the apartment
until they were delivered. Tantillo was plainly the man-
aging partner of the unlawful enterprise; his working
e
|
SERINE EMTS LAY GGT ERE: PRO
‘ See CNA IN
A-37
relationship and association with Verderosa and Pala-
dino were such that he obviously had dominion and con-
trol over the apartment and the drugs stored there, and
was able to assure their production to the customer Jack-
son. This was enough to show that he had constructive
possession of the drugs.
VII. ADDITIONAL ARGUMENTS BY APPELLANT JAMES
A. Validity of the Search Warrant
Pursuant to a search warrant issued August 17, 1969
agents searched James’ apartment on Florida Avenue,
N. W., and seized quantities of heroin and cocaine. The
drugs thus seized provided the principal evidence upon
which James was convicted of substantive narcotics of-
fenses. He argues that the evidence should have been
Suppressed because the affidavit in Support of the search
warrant contained material errors; if those errors had
not been made, he Says, there would not have been prob-
able cause for the issuance of the warrant.
The affidavit filed by Agent Cody set out facts and cir-
cumstances, including telephone conversations, from
which it could reasonably be concluded that Tantillo,
Paladino and Verderosa (then known as Santarelli) in
New York were the source of Jackson’s supply of nar-
cotiecs; and that when they made delivery of narcotics to
nim they came to Washington for that purpose. On the
afternoon of August 11, 1969, according to the affidavit,
agents observed Tantillo, Paladino and Verderosa in the
Hotel America at 14th Street and Massachusetts Avenue
in Washington. Verderosa left the hotel carrying a black
vinyl bag. Following behind him were Tantillo and Pala-
dino. Verderosa walked alone to a point on N Street near
the hotel, where he got into a 1968 black-over-yellow
Ford Thunderbird. Twenty-two minutes later the agents
observed Leon James driving the Thunderbird in the vi-
A-38
cinity of the hotel. In the car with James was Verderosa.
The agents lost sight of James for about ten minutes
and then saw him driving off alone. They followed him
to 14th Street and Florida Avenue, N.W. where he
parked and entered an apartment building at 1415 Flor-
ida Avenue. At this time he was carrying a plaid plastic
bag “approximately large enough to hold a loaf of bread”
and his actions were furtive. Consulting telephone com-
pany records the agents found that an unpublished tele-
phone number was listed in the name of Leon James at
1415 Florida Avenue, Apartment 303.
The Cody affidavit also referred to five intercepted tele-
phone communications which he believed concerned Leon
James. These conversations were:
{[1]. At 8:05 P.M. on August 8, 1969, “Leon”
telephoned to Lawrence Jackson at 582-9265, asked
for Jackson, and, on learning from “Wayne” that
Jackson was elsewhere, left the telephone number
C05-3203, which number according to the records of
. the Chesapeake and Potomac Telephone Company, is
listed to Ontario Liquors, 1733 Columbia Road, N.W.,
Washington, D. C.
[2]. At 8:30 P.M. on August 8, 1969, Lawrence
Jackson telephoned to 582-9265 and asked “Richard”
for messages. When told that “Leon” had called,
Jackson asked if that was “Leon James”. Richard
called to “Wayne” in the room and asked which
“Leon” it was that had telephoned. “Wayne” stated
that Jackson should call “Leon” at CO5-3203.
[3]. On August 8, 1969, at 10:22 P.M. “Leon”
called . . . again and asked for Lawrence Jackson.
“Leon” said he was waiting. A Lawrence Jackson
associate was upset that Jackson had not called,
“Leon”, and said he would go up the street and tel!
Jackson that “Leon” was waiting.
[4]. At 4:05 A.M. on August 10. 1969, “Sissy
Harold” telephoned Lawrence Jackson at 582-9265
and, during a long conversation, asked Jackson to
finance him in a narcotics selling operation. Jack-
A-39
son refused, stating that “Leon James” (whom Jack-
son also refers to as “Old Man James”) once loaned
“Sissy Harold” money to start an operation and that
James never received his money back. According to
Jackson, “Leon James” had told him not to do busi-
ness with “Sissy Harold.”
[5]. On August 11, 1969, at 10:42 A.M., “Leon”
called the hea uarters of Lawrence Jackson. An
associate of Jackson said that Jackson had left one-
half hour ago. “Leon” then said “Have Lawrence
“ond to my store. The man left some money for
im. ~
Before trial, on the basis of further study, the gov-
ernment concluded and with commendable candor con-
ceded that the Leon mentioned in calls Numbered 1, 3
and 5 was not the defendant Leon James. Seizing on this
discrepancy the appellant James argues that the attribu-
tion of the calls to him was unreasonable and that in
consequence probable cause to issue the search warrant
did not exist. We disagree.
The existence of probable cause to support a warrant
is to be determined from the perspective and knowledge
of the agents and magistrate at the time it was issued.
Specifically, the question here is whecher a reasonably
discreet and prudent man, considering the facts and cir-
cumstances presented to Agent Cody and the magistrate,
would have believed that James was engaged in illegal
narcotics activity at 1415 Florida Avenue, Apartment
303. We think the facts and circumstances meet that
standard.
Given the sequence in time in which the telephone
ealls occurred, together with the identification of Leon
Jame: by name in two of the calls, it wag not unrea-
sonable to conclude that the “Leon” referred to in all
five instasices was Leon James. Moreover, the three calls
erroneously attributed to Leon James added little to
the substance of the affidavit: at most they showed a re-
A-40
lationship between Jackson and “Leon”, a fact already
established by the other two cails.
Taken as a whole, the Cody affidavit plainly estab-
lished probable cause for the search of the James apart-
ment. The vinyl bag carried by the known narcotics
courier, the circumspect meeting in the car with an im-
plicated trafficker, the disappearance of the courier min-
utes thereafter, the bread-sized bag carried by James as
he left his parked car near his apartment, and his fur-
tive conduct upon entering the building—these circum-
stances taken together reasonably established the prob-
ability that Verderosa gave Leon James a quantity of
narcotics which he thereafter took to his apartment and
secreted there.
B. The Count 12 Cocaine Conviction
The jury convicted Leon James on count 12 of the
indictment which charged that he violated 26 U.S.C.
§ 4704(a) by purchasing, dispensing or distributing two
packages of cocaine not in or from the original stamped
package. He contends that the evidence did not support
this conviction.
The two packages of cocaine involved in count 1? were
found by agents on August 18, 1969 during the search
of the James apartment on Florida Avenue. Both pack-
ages of cocaine were found in a locked metal box in the
dresser of the apartment. One of the packages was a
glassine bag containing 2.656 grams of 6.77% anhydrous
cocaine. The other package was wrapped in tinfoil and
contained 1.716 zrams of 6.87% anhydrous cocaine.
Also contained in the locked metal box along with the
cocaine were the following:
a. a large double glassine bag containing a white
powder which was determined to be 72.769 grams of
86.7 percent anhydrous heroin;
A-41
b. twelve empty glassine bags which are commonly
used to. package narcotics in quantities of less than
an ounce.
c. 147 empty glassine bags which are commonly
used to package narcotics in quantities of an ounce
or more; and
d. assorted paraphernalia commonly used to cut or
weigh narcotics, e.g., sifter, knife, tinfoil, spoons.
In the hall closet of the apartment agents found a suit-
case containing a spoon and a bag. The bag contained a
substance which turned out to be manitol, a diluent
which can be used to cut drugs. Also recovered from the
hall closet was a scale with calibrations from one-half
ounce to sixteen ounces.
In one of the address books seized from the apartment
was the following notation:
11 % Boy
1 vA ed
1 OZ Girl $930.00
4 ities 1500.00
$300.00 570”
Evidence showed that the terms “14 Boy,” “14 Boy,”
“1 OZ Girl,” “14 Girl,” are terms used in the traffick-
ing of narcotics and that the meanings of the terms are
respectively: 1% ounce of heroin, 14 ounce of heroin, 1
ounce of cocaine, and 14 ounce of cocaine.
From the notebook entry the jury reasonably could
have inferred that appellant James purchased and dealt
in substantial amounts of cocaine as well as heroin.
From the cutting paraphernalia found in the apartment,
the jury reasonably could have corcluded that James used
that paraphernalia to cut the cocaine and heroin he pur-
chased, and that the two packages of cocaine found in the
locked metal box along with the larger package of heroin
had been prepared by James for street distribution. In
particular this inference was reasonable with respect to
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A-42
the cocaine which was packaged in a glassine bag, iden-
tical with numerous other glassine bags found in the
locked metal box. From this particular type of drug pack-
aging and the circumstances which surrounded its posses-
sion, the jury reasonably could have inferred that the
package of cocaine was intended solely for distribution
and not for appellant James’ personal use. Cf. Turner
v. United States, 396 U.S. 398, 420, rehearing denizd,
397 U.S. 958 (1970).
James does not claim that the evidence was insufficient
to support his conviction on count 10 of the indictment.
This count related to the heroin found in the locked metal
box which also contained the cocaine. In light of all the
circumstances we think it was a reasonable conclusion
that the heroin and the cocaine were possessed by James ~
for the same purpose, that each was a part of his stock
in trade. Aithough the stock of cocaine happened to be
low the jury could believe that it was still for sale.
The appellant James objects to the reference in the
court’s charge to the statutory inference created by the
mere possession of & narcotic drug. True it is that in
Turner v. United States, 396 U.S. 398, 423, the Supreme
Court held that “bare possession of cocaine is an insuffi-
cient predicate for concluding that [a defendant] was
dispensing or distributing.” In the case of James how-
ever the evidence showed much more than bare posses-
sion of cocaine. The instruction on the inference is there-
fore “beside the point, since even if invalid, it was harm-
less error; the jury must have believed the possession
evidence which in itself established a distribution barred
by the statute.” Turner v. United States, 396 U.S. at 421.
Having considered all the contentions of the appellants
we conclude that the judgments must be and they are
hereby
Affirmed.
MEMORANDUM
In the Supreme Court of the United States
OcTOBER TERM, 1974
No. 74-40
LAWRENCE W. JACKSON AND CARL W. BROOKS,
PETITIONERS
V.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
MEMORANDUM FOR THE UNITED STATES IN OPPOSITION
Petitioners claim that, in the trial of a. chain-type
narcotics conspiracy, they were prejudiced by the admis-
sion of evidence showing that they were involved in a
bribery relationship in pursuit of the conspiracy’s objec-
tives.
After a jury trial in the United States District Court
for the District of Columbia, petitioners and four co-
defendants were convicted of conspiracy to violate 26 U.S.C.
(1964 ed.) 4705(a) and 21 U.S.C. (1964 ed.) 174. Jackson was
also convicted of substantive narcotics offenses. Peti-
tioner Jackson was sentenced to a total of imprisonment
for twenty-five years and fines of $25,000. Petitioner
Brooks was sentenced to imprisonment for five years.
The court of appeals affirmed on February 4, 1974 (Pet.
App. A-I to A-42; 494 F. 2d 1007). Motions for re-
(1)
.
;
i
}
RK ig hy SAR ae
iE
2
hearing were denied on April 15, 1974. The Chief Jus-
tice extended the time for filing a petition for a writ
of certiorari to and including June 14, 1974. The peti-
tion for certiorari was filed on July 3i, 1974, and is
therefore out of titue under Rule 22(2) of the Rules of
this Court. Moreover, there is no issue justifying further
review. _ ;
The evidence introduced at trial, viewed together
with all reasonable inferences in the light most favorable
to the government, Glasser v. United States, 315 U.S.
60, showed a huge narcotics operation in the District
of Columbia. The government’s case rested largely on
proof of telephone conversations intercepted and recorded
pursuant to court authorization! by agents of the Bureau
of Narcotics and Dangerous Drugs. In a period of less
than sixty days in the summer of 1969, more that 5,000
calls involving two telephones were recorded, approxi-
mately seventy percent of which related to narcotics
transactions (Pet. App. A-3 to A-5).
On July 28, 1969, co-defendants Tantillo and Verderosa
and deceased co-conspirator Paladino came from New
York to Washington and delivered narcotics to petitioner
Jackson. On August 11 these three individuals made a
narcotics deal with Jackson and agreed to supply him
with cocaine. On August 18, Paladino arrived at National
Airport and proceeded to Union Station. There he met
Verderosa, who was carrying something wrapped in
multi-colored paper. Verderose ‘hen went to an apart-
'The validity of the authorization is discussed in the governmen:
memorandum in opposition to the petition for a writ of certiorari
in Tantillo vy. United States, No. 73-6891, now pending before the
Court. To the extent that petitioners rely on issues raised by Tantillo,
we rely on our memorandum in that case. We are serving upon
petitioners’ counsel a copy of our memorandum in opposition in
Tantillo.
3
ment in northwest Washington which had been rented by
Tantillo. After several unsuccessful attempts, Verderosa
reached Jackson by telephone and arranged a rendez-
vous in southeast Washington. At the rendezvous Jackson
and Verderosa were arrested, at which time Verderosa
dropped two keys, which the officers took into their
possession. After obtaining a search warrant, the officers
went to Tantillo’s apartment in northwest Washington,
opened the door with the keys which Verderosa had dropped,
and entered. They found a plastic bag containing 463
grams of cocaine and some crumpled wrapping paper
which was identified as the same kind of paper earlier
seen on the package carried by Verderosa at Union Sta-
tion (Pet. App. A-34 to A-36).
The government introduced in evidence recordings of
some sixty telephone calls to Jackson by petitioner
Brooks, a member of the Narcotics Squad of the Metro-
politan Police. On one occasion narcotics agents gave
Brooks false information that they planned to have a
named informant buy heroin from Jackson at a certain
time and place. Brooks immediately called a warning to
Jackson’s headquarters. Later that day he told Jackson
that the “Feds are going to try to get you today” and
gave him the name of the informant who supposedly was
going to make the purchase. The government also intro-
duced evidence from which the jury could infer that
Jackson was paying Brooks for the information received
(Pet. App. A-27).
As the court of appeals stated, the “evidence
showed that [petitioner] Brooks played a vital part
in the conspiracy by protecting [petitioner] Jackson
and his enterprise from interference by the police”
aye
4
(Pet. App. A-28).? It is immaterial whether he person-
ally had contacts with the other conspirators. Blumen-
thal v. United States, 332 U.S. 539; United States
v. Agueci, 310 F. 2d 817, 826-828 (C.A. 2), certio-
rari denied, 372 U.S. 959. Petitioners do not question
the sufficiency of the instructions by which this issue
was submitted to the jury.
Although the trial court granted a pre-trial motion by
Brooks to sever a count alleging that he entered into a
bribery relationship with Jackson (Pet. 9), there was
no error in admitting evidence of the bribery in the
conspiracy trial. It was highly relevant both to the
extent of the conspiracy and to the nature of Brooks’
participation in it. Although it may have been prejudi-
cial to both Brooks and Jackson, its prejudice was more
than outweighed by its probative value. The trial court
is allowed considerable discretion in making evalua-
tions of this sort, and did not abuse its discretion
here. Evidence “otherwise relevant is not rendered
inadmissible merely because its tendency is to prove
the commission of some other crime.” Green v. Unit-
ed States, 176 F. 2d 541, 543 (C.A. 1). Finally, the
decision of the court of appeals on this question en-
ails a factual judgment rather than a_ controlling
issue of law.
It is therefore respectfully submitted that the peti-
tion for a writ of certiorari should be denied.
Rosert H. Bork,
Solicitor General.
OcToBER 1974.
2No problem of variv .ce is presented. Petitioners do not show in
what respects the prov: varied from the allegations of the indictment.
Cf. Stirone v. Unitec. States, 361 U.S. 214.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.