Opposition Brief — Bianco v. United States

Supreme Court, U.».

) Fy T P Ty

FIL-E D

—_— =

APR i; 1994

No. 93-1280 MR jl 404

>:

OFFicr OF

In the Supreme Court of the Giuted States

OCTOBER TERM, 1995

NICHOLAS L. BIANCO, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

DreEw S. Days, III

Solicitor Ge neral

JO ANN HARRIS

Assistant Attorne 7] (re ne ral

DEBORAH WATSON

Attorne uf

Departme nt of Justice

Washington, i C.. 20530

(20)? 514 2I17

QUESTIONS PRESENTED

|. Whether the district court properly admitted ev:

dence obtained pursuant to the “reving bug” provision ©

the federal wiretap statute, 18 U.S.C. 2518 11)(a)

29 Whether the warrant-. thorized search of peti

tioner Failla’s home satisfied the particularity require

ments of the Fourth Amendment

TABLE OF CONTENTS

Opinion DelOW.............scsscesecsccesesceeeseceeceecccsssccscsersssseaereeees

| ns cdaaebmnseeneensepereuseuadbersentsesevervesentes

I auupbunghdadueddedgssenbsesusteesesvenscoenesdeseues

Argument..... i os sac erdaemreggvannniiiunsecioniurrdrsesyochessen

I to a cn cubeenenndbnbbiadipnsaasviterevtbenseseseines

TABLE OF AUTHORITIES

Cases:

Alderman vy. United States, 394 U.S. 165 (1969) ............

Application of LaFayette Academy, Inc., In re, 610 F.2d

ee Cs a sunpedenstsecuuteurerenesortovsssesesees

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ..........

Franks v. Delaware, 438 U.S. 154 (1978) ..............ceeeeee:

Illinois v. Krull, 480 U.S. 340 (1987) .............cccccscsccccesees

Massachusetts v. Sheppard, 468 U.S. 981 (1984) ..........

Rakas v. Illinois, 489 U.S. 128 (1978) ..............ccccceeseeeees

Scott v. United States, 486 U.S. 128 (1970) .................4.

Stanford v. Texas, 379 U.S. 476 (1965) .........ccccseseeeeeeees

United States v. Baranek, 903 F.2d 1068 (6th Cir.

oe ee esbuwediduenesreeasepevedeseosseeres

United States v. Beaumont, 972 F.2d 553 (5th Cir. 1992),

cert. denied, 118 S. Ct. 1621 (1GGS) ........ccccrsccccccccecevceees

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

United States v. Cole, 807 F.2d 262 (1st Cir. 1986), cert.

ee. Gt TTS, BGGD CISGE) wccecescevevesccsesevccscccscevescseveees

United States v. Cook, 657 F.2d 730 (5th Cir. 1981) ......

United States v. Crozier, 777 F.2d 1376 (9th Cir. 1985) .

United States v. Curry, 911 F.2d 72 (8th Cir. 1990), cert.

Gemied, 406 U.S. 1006 (1901) ...cccccccscsccccccccccssccccssevsceveees

United States v. Donovan, 429 U.S. 413 (1977) ..........00

United States v. Ferrara, 971 F. Supp. 1266 (D. Mass.

ne eg pe usebEKa¥ ev epeneedeccsassecetecceraeeetTss

19,

19, 2

20

Continued:

Page

United States

cert. denied, 492 U.S. 918 (1989)

United States

denied, 475 U.S. 1148 (1986)

United States

United States

F.2d 214 (8th Cir.), cert.

’, Giordano, 416 U.S. 505 (1974)

'. Guerra-Marez, 928 F.2d 665 (5th Cir.),

cert. denied, 112 S. Ct. 322 (1991)

United States

United States

PTR PPO O POC EOE OOOO CeCe CeCe eee eee

. Harris, 903 F.2d 770 (0th Cir. 1990) .

'. Haydel, 649 F.2d 1152 (5th Cir. 1981),

cert. denied, 455 U.S. 1022 (1982)

‘nited States

nited States

United States

', Ippolito, 774 F.2d 1482 (9th Cir. 1985).

v. Jacobsen, 466 U.S. 109 (1984)

v. Johnson,

'. Karo, 468 U.S. 705 (1984)

', Leon, 468 U.S. 897 (1984)

’ Luk, 859 F.2d 667 (9th Cir. 1988)

*. Page, 808 F.2d 723 (10th Cir.), cert.

denied, 482 U.S. 918 (1987)

ited States

‘nited States

‘nited States

'nited States

ited States

~~

292 (2d Cir.

~~

*. Spadaccino,

'. Strand, 761 F.2d 449 (8th Cir. 1985) ...

Towne, 997 F.2d 537 (9th Cir. 1993) ...

~~

ited States

nited States

ited States

~ ~~

‘ited States

nited States

~

Wuagneur, 683 F.2d 1343 (11th Cir.

1982), cert. denied, 464 U.S. 814 (1983)

19

1D

14

15

19

19

15

16

19

1]

21

2)

15

15

20

21

19

15

19, 21

Constitution and statutes:

ee 0 ne seapuuasea 6, 7, 9, 11, 15, 17, 18, 21

Statutes—Continued Page

ee in dessa seb euhanavebioenas baceeiih 2

IX | SC. (.”s TREASURE aah ereae eee = | 2

| ge led Tse * 4 2) DRIES ERS re rere Senne den hn 16

OO eR I re se ani ehgeeiernia ‘a 10)

OO ey I eae ccakescdanpanedccnudbens Lcelicebnaiiastadibeinantis 10, 12

IS U.S.C. 251801 )(b)fil) ...... RN A TRON NP put aesandinaaae 10

+ Bie Fem 9 3) | |.) eae PP RAPP es eon AES TER? {2

Ik U.S.C. 251801 le) 8 9 12

ip fee. *° > > | Bae 10

0 ee I pon os ao esa plooenaseeeite 10

Be Be ee ig BEE, coke cdcociuieduasaraceosdvatcopnebanseectonivent 10

Be ET a, NE EEE ver sevececonccvssesccecrens 13, 14

De EE ee Oy, EIRIEED cvcdccdcductsevtecevedtane sdhakntiadmaaatiion 16

i8 U.S.C. 2518(1)) ....... a eee aa dicciasabtta 10, 16

1I8 U.S.C. 2518(11)(a) ....... duietedeebdin ere a eT

Se Re ee SR UICED cliscccewienanaversteacedisavivesdesursennes aa 3

IS U.S.C. 2518(11)(a)(O1) BRE Cie 6 a a

IG EE See SRE PEIED cicccdsorecovesheverasecteboddaseeterdesrevessutennie 9

Oe EF 67, MEINE cccécoveccensdececoserksanencsaghivertous ae ia 10

Miscellaneous:

James G. Carr. The Law of Electronic Surveillance

2d ed. Supp. 1994) seniteiotinaiiieeuctia ivaiipaenhiaee 15

2 Wayne R. LaFave, Sense itil Seizure (2d “dk 1987) ... 19

EAE KAAS OTN Loc =

In the Supreme Court of the Cinited States

OCTOBER TERM, 1993

No. 93-1280

NICHOLAS L. BIANCO, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A88) is reported at 998 F.2d 1112. The opinions of the

district court (Pet. App. A93-A101, A115-A129) are

unreported. A related opinion of the United States

District Court for the District of Massachusetts

(Pet. App. A130-A399) is reported at 771 F. Supp. 1266.

JURISDICTION

The judgment of the court of appeals was entered on

July 19, 1993. Petitions for rehearing were denied on

September 20, 1993 and on October 7, 1995. Pet. App.

A88-A93. On December 8, 1993, Justice Thomas

extended the time for filing a petition for a writ of

(1)

—————————___<————————

2

certiorari to and including February 4, 1994, and the

petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of Connecticut, petitioners

were convicted of conducting the affairs of an enter-

prise through a pattern of racketeering activity, in

violation of 18 U.S.C. 1962(c); and conspiring to con-

duct the affairs of an enterprise through a pattern of

racketeering activity, in violation of 18 U.S.C.

1962(d). Petitioners Milano, Pugliano, and Failla

were also convicted of committing violent crimes in

aid of racketeering, in violation of 18 U.S.C.

1959(a)(5). Petitioners Pugliano and Failla were also

convicted of wire fraud, in violation of 18 U.S.C. 1343.

Bianco was sentenced to 137 months’ imprisonment,

Failla to 120 months’ imprisonment, Milano to 396

months’ imprisonment, and Pugliano to 151 months’

imprisonment, with each sentence of imprisonment to

be followed by a three-year term of supervised

release. The court of appeals affirmed. Pet. App. Al-

A838.

1. This case involves petitioners’ participation in

the affairs of the Patriarca family of La Cosa Nostra.

The facts relevant to the petition involve the circum-

stances surrounding two aspects of the government’s

investigation of petitioners’ activities.

a. On January 9, 1990, FBI agents executed a

search warrant at petitioner Failla’s home in East

Hartford, Connecticut. The warrant authorized the

seizure of the following items: “Notes, Ledgers,

Envelopes, Papers, and Records Containing Initials,

Names, Addresses, Dollar Amounts, Codes, Figures,

rans

nena

3

and the Like: United States Currency.” The applica-

tion stated that the items sought to be discovered

were evidence of violations of 18 U.S.C. 894 and 1962.

The supporting affidavit (to which the warrant

explicitly referred) detailed Failla’s loansharking

business and stated that the agents were looking for

evidence of Failla’s loansharking. While the agents

were executing the warrant, they brought items to

the attention of Agent William Hutton, who headed

the search team and had responsibility to determine

whether items should be seized. Hutton had familiar-

ized himself with the warrant and its supporting

affidavit, and he understood that the purpose of the

search was to discover evidence of loansharking. See

Pet. App. A10-A11, A19-A21, A124-A126.

b. During 1989, the government decided that

because some members of the Patriarca family

suspected that the government was attempting to

monitor their activities, the family had begun to

structure its communications to avoid electronic

surveillance. After learning in October of 1989 that

the Patriarca family intended to induct several new

members into La Cosa Nostra, the government

decided to seek a warrant under 18 U.S.C. 2518(11)(a),

which would authorize a “roving bug,” that is, an

advance judicial authorization of electronic inter-

ception without advance specification of the location

of the interception. Pursuant to Section 2518(1 1)(a)(i)

(which requires approval of a roving bug by a listed

officer of the Department of Justice), on October 24,

1989, the United States Attorney’s Office submitted

to the Department of Justice a proposed application,

an affidavit from an FBI agent, and a proposed order.

Those materials described the efforts by the targeted

individuals to thwart surveillance, as well as informa-

tion regarding crimes committed by those individuals.

The materials did not, however, mention the induction

ceremony. See Pet. App. A24-A27.

On October 26, 1989, the FBI learned that the in-

duction ceremony was scheduled for Sunday, October

29. 1989, at or near Wellington Circle in Medford,

Massachusetts. Suspecting that one of the inductees

might be a Massachusetts prisoner named Vincent

Federico, the FBI contacted the Massachusetts

Department of Correction and learned that Federico

had requested a 28-hour furlough, beginning on the

morning of October 29, 1989. Federico’s furlough

application reported that he intended to stay at the

house of his brother-in-law, Stephan DiStefano, at 34

Guild Street, in Medford, near Wellington Circle. See

Pet. App. A27-A28.

On October 27, 1989, the prosecutor handling the

case delivered the interception application to Judge

David Nelson of the United States District Court for

the District of Massachusetts. Shortly after the

Justice Department approved the application, Judge

Nelson signed the order, including a requirement

that the government notify the court of all surrepti-

tious entries to install listening devices in advance if

possible, and as soon as possible after the entry if

advance notice was not possible. See Pet. App. A29-

AS.

On October 28, 1989, after observing the DiStefano

family leave their home at 34 Guild Street, the FBI

entered the home to install listening devices. The

prosecutor unsuccessfully attempted to notify Judge

Nelson by telephone before the entry, but succeeded

in advising the judge of the entry the next morning.

Later that day, the agents observed two of the

targeted individuals enter 54 Guild Street, and the

interceptions began. During the interceptions, the

government overheard and recorded a ceremony that

inducted four members of the Patriarca family,

including Federico, into La Cosa Nostra. During the

ceremony each inductee took an oath of allegiance,

submitted to a ritualistic pricking of his finger, and

was assigned a “capo” or boss who was to supervise

his criminal activity. Old members explained the

origins of La Cosa Nostra, instructed the inductees

to bring “to the table” all legal and illege! business

deals with nonmembers, and extracted promises from

the inductees that on orders they would kill their

brother or son “without hesitation.” See Pet. App.

A382-A34.

2. Based in part upon the evidence obtained

through the Failla search and the “roving bug,”

separate indictments were returned in the United

States District Court for the District of Connecticut

(this case) and in the United States District Court

for the District of Massachusetts (United States v.

Ferrara). Motions to suppress the recordings of the

induction ceremony were filed in both cases. On April

15, 1991, Judge Wolf issued a lengthy opinion denying

the motions filed by the defendants in the Mas-

sachusetts case. Pet. App. A150-A399.

On April 19, 1991, the district court in this case

denied the motions filed by petitioners, adopting “in

its entirety”.(Pet. App. A100) Judge Wolf's findings of

fact and conclusions of law. Jd. at A93-A101. The

district court also denied a motion filed by Failla to

suppress the evidence seized during the January 9,

1990, search of his Connecticut residence. Pet. App.

A115-A129. The court rejected Failla’s contention

that the warrant was overly broad, finding that the

warrant, when examined together with the appli-

—— Ess

6

cation and the affidavit, satisfied the Fourth Amend-

ment’s particularity requirement. /d. at A122-A129.

3. The court of appeals affirmed. Pet. App. Al-A88.

a. The court of appeals rejected the argument that

the warrant authorizing the search of Failia’* home

was not sufficiently particular to satisfy the ‘ourth

Amendment. Pet. App. A8-A23. The court agreed

with Failla’s contention that the warrant itself was

overly broad because it did not describe in sufficient

particularity the items to be seized and made no

mention of any criminal statute or criminal conduct.

Id. at All-A18. The court nonetheless held that the

warrant was rendered sufficient by its reference to

the supporting affidavit. 7d. at Al8-A21. Although

the warrant did not expressly incorporate the

affidavit and the affidavit was not physically attached

to the warrant, the court declined to “adhere to

formal requirements of incorporation and attachment

where as here, it is clear that the involved parties

[the federal agents and Failla] were aware of the

scope of and limitations on the search.” Jd. at A20.

The court explained that the affidavit spelled out the

nature and purpose of the proposed search, by

detailing its motivation and by specifying the nature

of the documents sought. Jd. at A21. The court also

noted that Agent Hutton actively supervised the

search after having read the affidavit. Because the

agents remained within the scope of the warrant and

affidavit when read together, the court concluded that

the search was reasonable. /d. at A22.

b. The court of appeals also rejected petitioners’

challenges to the introduction of the recording of the

induction ceremony obtained from the “roving bug.”

Pet. App. A23-A87. First, the court held that only

petitioners Milano and Failla had standing to chal-

7

lenge the electronic interception of the induction

ceremony because they were the only defendants who

were present when the recording was made, and

because none of the other petitioners claimed any

proprietary or possessory interest in the building

where the intercepted conversations occurred. /d. at

A49-A52.

The court next rejected petitioners’ constitutional

challenge to 18 U.S.C. 2518(11)(a). Pet. App. A52-A65.

The court found that the substantial conditions

imposed by Congress on the issuance of a “roving

bug,” in addition to the substantial conditions already

imposed on the issuance of any order for electronic

surveillance, satisfied the particularity requirement

of the Fourth Amendment. Pet. App. A62-A63.

The court then considered petitioners’ contentions

that the recording should be suppressed because of

violations of the statute in this case. The court first

addressed petitioners’ argument that the absence

from the application of the information in the gov-

ernment’s possession indicating that 34 Guild Street

might be the site of the induction ceremony violated

Section 2518(11)(a)(ii)’s requirement that the gov-

ernment provide the court a “full and complete

statement as to why specification [of the place where

the communication is to be intercepted] is not prac-

tical.” Pet. App. A68-A76. The court did not directly

address the question whether the application violated

the statute,' but concluded in any event that peti-

tioners’ argument on that point did not justify

suppression. Jd. at A72-A76. The court stated that

| The court stated only that “the government should have

disclosed to the court the information relating to 34 Guild

Street.” Pet. App. A75.

ee

8

violations of that disclosure requirement should

result in suppression only if the violations satisfied

the standard articulated by this Court in Franks v.

Delaware, 438 U.S. 154 (1978). The court then

accepted the district court’s findings that the

government did not engage in “deliberate falsehood or

reckless disregard for the truth,” and that “the

nondisclosure * * * was immaterial.” Pet. App. A72.°

Accordingly. the court upheld the district court’s

conclusion that the nondisclosure of the 34 Guild

Street information did not justify suppression of the

recording. Jd. at A76.

The court also rejected petitioner Milano’s argu-

ment that the recording should have been suppressed

because of the government’s failure to disclose in the

application prior applications for interceptions of

communications involving persons mentioned in the

application. Pet. App. A83-A87. The court agreed

that the government violated Section 2518(1)(e) when

it failed to disclose prior applications not only for the

principal “targets” of the surveillance, but also for all

other persons mentioned in the application. Pet. App.

A838. The court nevertheless concluded that suppres-

2 On the latter point, the court of appeals explained that it

agreed with the district court’s conclusion that

there was enough independent information of the nature of

the suspects’ crimes and their evasive methods to justify

issuing the roving order, even without the information

about 34 Guild Street. Moreover, even if the judge had

been advised of the anticipated induction ceremony at 34

Guild Street, the information would not have eliminated

the need for a roving order, because the members of the

enterprise were trying to avoid detection, and could easily

have changed the location at the last minute.

Pet. App. A75-A76.

9

sion was not an appropriate remedy because the

failure to disclose prior applications was inadvertent;

the court noted that there were no judicial decisions

interpreting Section 2518(1)(e) at the time the

application was filed. Pet. App. A85-A87.

ARGUMENT

1. Petitioners raise several challenges to the

introduction at their trial of the recording obtained

pursuant to the “roving bug” warrant authorized

under Section 2518(11)(a). Because the warrant in

this case appears to be the first to result in published

judicial opinions regarding that provision,* review by

this Court of those questions would be premature. In

any event, petitioners fail to offer any strong reason

for doubting the correctness of the court of appeals’

rejection of petitioners’ claims.

a. Petitioners contend (Pet. 32-42) that Section

2518(11)(a) is unconstitutional because it does not

conform with the particularity requirement of the

Fourth Amendment. In light of the detailed pro-

visions that Congress fashioned to circumscribe the

use of the provision and the important law-

enforcement purposes that justify it, that claim lacks

merit.

First, Section 2518(11)(a)(ii) itself requires that the

“roving-bug” application include “a full and complete

statement as to why * * * specification [of the place

where the communication is to be intercepted] is not

practical and identif[y] the person[s] committing the

offense and whose communications are to be inter-

%’ The first two decisions cited at Pet. App. A48-A49

involved the wiretap provisions in 18 U.S.C. 2518(11)(b). The

third decision (United States v. Ferrara, 771 F. Supp. 1266 (D.

Mass. 1991)) considered the warrant at issue here.

10

cepted.” That requirement limits the use of the

statute to cases where conventional surveillance is

impractical. Furthermore, the underlying provisions

of Section 2518, which generally apply in full to cases

under Section 2518(11)(a),’ substantially vitiate peti-

tioners’ concerns (Pet. 38) about “[t]he general war-

‘ant, the unrestricted search, the roving commis-

sion.” Section 2518(4) requires that the application

include a list of the persons whose communications

are to be intercepted, a particular description of the

types of communications to be intercepted, and a

description of the offense to which the communica-

tions relate. Also, a court can issue a warrant only if

it determines that the application establishes proba-

ble cause to believe that a person is committing one of

the serious offenses listed in 18 U.S.C. 2516, that the

requested surveillance will discover communications

concerning that offense, and that normal inves-

tigative procedures are inadequate or unduly dan-

gerous. 18 U.S.C. 2518(3). Finally, interceptions

under Section 2518(11) cannot occur “until the

facilities from which, or the place where, the

communication is to be intercepted is ascertained by

the person implementing the interception order.” 18

U.S.C, 2518(12).

The distinctive feature of Section 2518(11)(a) is its

authorization of a warrant that does not specify the

particular “place” to be searched. But the analysis

4 The provisions of Section 2518(11) are not a separate

authorization for interceptions, but rather as a description of

circumstances in which a warrant may be secured without

compliance with the requirements of Section 2518(1)(b)(ii) and

(3)(d) “relating to the specification of the facilities from which,

or the place where, the communication is to be intercepted.”

4

4

:

Ne gL ed Sa nt ae ee ee

1]

employed by this Court in United States v. Karo, 468

U.S. 705 (1984), indicates that the Fourth Amendment

does not impose a blanket requirement of advance

identification of the place to be searched. In response

to the government’s concern that it might be difficult

to secure a warrant authorizing monitoring of a

beeper because of the difficulty of predicting the

location of the beeper, the Court explained:

The Government contends that it would be

impossible to describe the “place” to be searched,

because the location of the place is precisely what

is sought to be discovered through the search.

However true that may be, it will still be possible

to describe the object into which the beeper is to

be placed, the circumstances that led agents to

wish to install the beeper, and the length of time

for which beeper surveillance is requested. In our

view, this information will suffice to permit

issuance of a warrant authorizing beeper installa-

tion and surveillance.

Id. at 718. That analysis suggests that the detailed

specification requirements of Section 2518(11)(a)

satisfy the demands of the Fourth Amendment. The

statute requires specification of the information

known to the officers, coupled with an explanation of

why further specificity is impractical. The Constitu-

tion does not bar that form of warrant.®

* In any event, because no court has ever ruled that Section

2518(11)(a) is unconstitutional, the agents were entitled to rely

on those provisions at the time they intercepted the communi-

cations at issue here. Accordingly, suppression of that evi-

dence would not be appropriate. J/linois v. Krull, 480 U.S. 340,

349-355 (1987).

b. Petitioners also contend (Pet. 20-31) that the

court of appeals erred in relying on Franks v. Dela-

ware, supra, in declining to suppress the recording

here notwithstanding the court’s conclusion that the

government violated the provisions of Section 2518 in

the course of obtaining the warrant.°

i. Petitioners’ presentation rests on the proposi-

tion—which they neither discuss nor defend—that

the government’s failure to include the information

about 34 Guild Street violated the “full and complete

statement” requirement of Section 2518(11)(a)(ii). As

discussed above, however, the court of appeals did not

explicitly conclude that the government had violated

that provision. Nor would it have been correct to have

6 The petition refers in passing (Pet. 29) to the court of

appeals’ conclusion (Pet. App. A838) that the government

violated 18 U.S.C. 2518(1)(e) by failing to disclose prior inter-

ception applications with respect to persons who were named in

the present application, but who were not targets. Because the

petition does not address or question, however, the reasons

articulated by the court of appeals for not requiring suppres-

sion because of that violation (Pet. App. A85-A87), the discus-

sion in the text is limited to petitioners’ objections to the

nondisclosure of one possible location of the interception.

In any event, this Court’s decision in United States v.

Donovan, 429 U.S. 413 (1977), strongly supports the court of

appeals’ conclusion that the failure to disclose the prior applica-

tions did not justify suppression. In Donovan, the Court held

that a violation of the provision in 18 U.S.C. 2518(1)(b)(iv)

requiring the government to identify the individuals whose

conversations would be intercepted did not justify suppression

because that provision is not one of “those statutory

requirements that directly and substantially implement the

congressional intention to limit the use of intercept procedures

to those situations clearly calling for the employment of this

extraordinary investigative device.” 429 U.S. at 433-434. That

analysis applies in this case as well.

—_

7+

~~

found a violation. The purpose of the “full and

complete statement” requirement is to explain why it

“is not practical” to specify the place where the

communication is to be intercepted. The information

about 34 Guild Street, although it made it likely that

some communications would be intercepted at that

location, was not material to the question whether

the government needed permission to conduct sur-

veillance at unspecified places. The court of appeals

recognized that the material in the application

included “enough independent information of the

nature of the suspects’ crimes and their evasive

methods to justify issuing the roving order.” Pet.

App. A75. The court of appeals also recognized that

inclusion of the 34 Guild Street information would not

have affected the merits of the application, explaining

that “the information would not have eliminated the

need for a roving order, because the members of the

enterprise were trying to avoid detection, and could

easily have changed the location at the last minute.”

Id. at A76. Accordingly, the government’s failure to

include the information—which identified only one

possible location of the requested surveillance, and in

no way undermined the need for authority to inter-

cept conversations at other places—did not violate the

statute.

ii. Even if the failure to include the information is

treated as a violation of Section 2518(11)(a)(ii), peti-

tioner’s argument that the statute requires suppres-

sion would be incorrect. As this Court repeatedly has

recognized, the statutory suppression remedy set

forth in Section 2518(10)(a) is limited to cases where

the communication was “unlawfully intercepted,” a

term which does not include “every failure to comply

fully with any requirement provided [in the statute ],”

‘

but is instead limited to “a ‘failure to satisfy any of

those statutory requirements that direetly and sub

stantially implement the congressional intention to

limit the use of intercept procedures to those

situations clearly calling for the employment of this

extraordinary investigative device.’ ” U/nited States

vy. Donovan, 429 U.S. 4138, 482-484 (1977) (quoting

L’nited States v. Chavez, 416 U.S. 562, 574-575 (1974);

and United States v. Giordano, 416 U.S, 505, 527

(1974)).

As the Court explained in Donovan, even where a

statutory requirement plays a central role in the

statutory framework, a violation of the requirement

does not justify suppression if the purpose that the

particular procedure was designed to accomplish has

heen satisfied in spite of the error. Hence, in

Donovan the Court concluded that it was not

appropriate to suppress evidence based on the absence

from the application of a complete list of the in

dividuals whose conversations would be intercepted.

The Court explained that “liIn no meaningful sense

can it be said that the presence of that information as

to additional targets would have precluded judicial

authorization of the intercept.” 429 U.S. at 436. In

this case as well, the judgment of the court of appeals

rests on its view that inclusion in the application of

the information about 34 Guild Street would not have

eliminated the need for a warrant or affected the

district court’s decision to issue one. Accordingly,

the statute did not require suppression.

iii. Finally, even if petitioners were correct in

their view that the statute was violated, and that the

transgression infringed a provision for which sup-

pression is a remedy available under Section

2518(10)(a), there would be no need for the Court to

lh

review petitioner’s contention that the court of

appeals erred in relying on Franks for its refusal to

suppress the recording. An inadvertent and immate

rial mistake in an application for a surveillance order

does not render the products of that order inadmissi

ble. The Court’s analysis in Donovan, summarized

above, strongly supports a practical interpretation of

the statute that would take account of this Court’s

decision in Franks. See also Scott v. United States,

A536 U.S. 12%, 139 (1970). Similarly, the courts of

appeals regularly have applied the Franks standard in

determining whether misstatements in applications

for surveillance orders would justify suppression.’

The cases on which petitioners rely involve distinct

questions regarding the applicability to statutory

exclusionary provisions of other rules this Court has

articulated under the Fourth Amendment.* Because

see, e.g., United States v. Cole, 307 F.2d 262, 267-268 (st

(Cir 19%6), cert denied, AX1 T).S. 1069 (1987): linited States vy

(ruerra-Marez, 928 F.2d 665, 670-671 (5th Cir.), cert. denied.

112 S. Ct. 322 (1991); United States v. Garcia, 785 F.2d 214,

221-222 (Sth Cir.), cert. denied, 475 U.S. 1143 (1986): United

States v. Ippolito, 774 F.2d 1482, 1484-1487 (9th Cir. 1985):

United States v. Page, 80% F.2d 723, 728 (0th Cir.). cert

denied, 482 U.S. 918 (1987); see also James G. Carr, The Law of

Klectronic Surveillance. % & Zid 1) A), at 6-56 (2d ed Supp

1994) (“[T]he Franks standard applies to Title III applications

and orders.”)

Compare United States v. Baranek, 902 F.2d 1068. 1071

1072 (6th Cir. 1990) (Fourth Amendment plain-view doctrine

applies by analogy in cases under federal wiretap statute), with

United States v. Spadaccino, 800 F.2d 292, 296 (2d Cir. 1986)

(good-faith exception to the exclusionary rule did not insulate

from suppression evidence obtained in violation of Connecti

cut’s electronic surveillance statute); and United States

Vest, 813 F.2d 477, 481-482 (1st Cir. 187) (suppression appro-

16

there is no disagreement on the applicability of

Franks to statutory exclusionary provisions, there is

no need for review by this Court.

ce. Petitioners Bianco and Pugliano argue (Pet. 52-

63) that the court of appeals erred in concluding that

they lacked standing to challenge the introduction of

the electronic surveillance evidence. That claim is

meritless.°

Section 2518(10)(a)(i) provides that “[a]ny aggrieved

person” may move to suppress electronic surveillance

evidence when “the communication was unlawfully

intercepted.” Section 2510(11) defines “aggrieved

person” as “a person who was a party to any inter-

cepted wire, oral, or electronic communication or a

person against whom the interception was directed.”

As the Court explained in Alderman v. United

States, 394 U.S. 165 (1969), that provision was not

designed to extend standing to all persons who have

been adversely affected by the use of electronic

surveillance evidence. Instead, “[t]he Act’s legis-

lative history indicates that ‘aggrieved person,’ the

limiting phrase currently found in Fed. Rule Crim.

Proc. 41(e), should be construed in accordance with

existent standing rules.” 394 U.S. at 175 n.9. An

individual has standing under those rules only if the

government intercepted “conversations of a peti-

priate where federal wiretap application violated the “innocent

recipient” exception formulated in United States v. Jacobsen,

466 U.S. 109, 113-118 (1984)).

® Moreover, because the court of appeals rejected the claims

advanced by the petitioners who had standing, the standing

claim would alter the judgments against petitioners Bianco and

Pugliano only if the Court granted review of the judgment of

the court of appeals on one of the substantive challenges to

introduction of the evidence and reversed on that basis.

17

tioner himself or conversations occurring on his

premises, whether or not he was present or par-

ticipated in those conversations.” Jd. at 176.

Petitioners Bianco and Pugiliano cannot satisfy

that standard. They were not present during the

induction ceremony, and their conversations accord-

ingly were not recorded. Similarly, neither of them

had any ownership interest in the Guild Street resi-

dence or any other basis for a legitimate expectation

of privacy in it. The decision of the court of appeals

denying Bianco and Pugiliano standing to challenge

the surveillance is correct and does not warrant

review by this Court.

2. Petitioners also contend (Pet. 43-51) that the

court of appeals erred in holding that the warrant for

the search of Failla’s house satisfied the Fourth

Amendment’s particularity requirement.’ Peti-

tioners contend that a warrant that is unduly broad

on its face violates the Fourth Amendment even if the

accompanying affidavit adequately narrows the

search, unless the affidavit is incorporated into the

warrant by reference and is physically attached to the

warrant.

a. In order to prevent government officials from

engaging in “a general, exploratory rummaging in a

person’s belongings,” the Fourth Amendment re-

quires that search warrants contain “a ‘particular

Petitioner Failla was the only defendant who sought to

suppress the items seized during the search of his home. See

Pet. App. All; see also Pet. 13. No claim has been made that

petitioners other than Failla were present at the time of the

search, or that other petitioners had a privacy interest in

Failla’s home. Accordingly, only petitioner Failla has standing

to challenge the search. Rakas v. Illinois, 439 U.S. 128, 138-148

(1978).

18

description’ of the things to be seized.” Coolidge v.

New Hampshire, 403 U.S. 443, 467 (1971). That

particularity requirement “makes general searches

* * * impossible and prevents the seizure of one thing

under a warrant describing another.” Stanford vy.

Texas, 379 U.S. 476, 485 (1965). Whatever the merits

of petitioner’s claim that the warrant in this case was

too broad, the specificity of the affidavit brought the

search within the confines of the Fourth Amendment.

The warrant on its face refers specifically to the

affidavit. Also, as the court of appeals explained, the

search was conducted in conformity with the affidavit,

under the supervision of an individual fully informed

as to the scope of the search outlined in the affidavit.

Pet. App. A21 (“{T]he presence and activity of agent

Hutton, who had read the affidavit and who approved

each seizure, satisfies us that the limitations

included in the affidavit were observed.”); see id. at

All.'' In those circumstances, the particularity

‘oquirement does not require suppression of the

evidence gained from the search.

Petitioners argue (Pet. 43-45) that the decision of

the court of appeals conflicts with a number of

decisions that they describe as holding that an

affidavit can cure vagueness in a search warrant only

if the affidavit is attached to, and incorporated by

reference in, the warrant. A number of courts have

| As petitioners suggest (Pet. 45 n.13), the court of appeals

apparently erred in stating that the affidavit was present at

the search; the record does not indicate whether or not the

affidavit was present at the search. The analysis of the court

of appeals, however, appears to rest on the agents’ compliance

with the limitations set forth in the affidavit, rather than the

physical presence of the affidavit at the search scene. See Pet.

App. A20-A21.

19

looked to those two factors in deciding whether to

consider an affidavit in evaluating the validity of a

warrant.'’* But the purpose of those requirements is

to ensure that both the searchers and the person

whose premises are to be searched are informed of the

scope of the authorized search. Accordingly, several

courts of appeals that have considered cases in which

the search actually was conducted in accordance with

the limitations set forth in an affidavit used to secure

the warrant have declined to hold the search invalid.

United States v. Wuagneux, 683 F.2d 1343, 1351 n.6

(llth Cir. 1982), cert. denied, 464 U.S. 814 (1983);

United States v. Gahagan, 865 F.2d 1490, 1497 (6th

Cir.), cert. denied, 492 U.S. 918 (1989); see 2 Wayne R.

LaFave, Search and Seizure § 4.5(a) at 209 (2d ed.

1987) (if description contained in warrant. is

inadequate, “it is appropriate to look to the descrip-

tion appearing in the warrant application or affidavit

if it is clear that the executing officers were in a

position to be aided by these documents”); see also

United States v. Haydel, 649 F.2d 1152, 1156-1157 (5th

Cir. 1981) (relying on supporting affidavit to cure

ambiguity in warrant even though record did not

clearly indicate that affidavit was attached to

warrant, because the affidavit was available at the

search site and the searching agents were aware of

the scope of the search described in the affidavit),

cert. denied, 455 U.S. 1022 (1982). And none of the

2 See, e.g., United States v. Beaumont, 972 F 2d 553, 560-

563 (5th Cir. 1992), cert. denied, 113 S. Ct. 182] (1993); United

States v. Harris, 903 F.2d 770, 775 (10th Cir. 1990); United

States v. Vaughn, 830 F.2d 1185, 1186 (D.C. Cir. 1987); United

States v. Crozier, 777 F.2d 1376, 1381-1382 (9th Cir. 1985);

United States v. Johnson, 541 F.2d 1311, 1315-1316 (8th Cir.

1976).

20

decisions on which petitioners rely establishes that

any court would have suppressed the results of a

search, like this one, where the searching officers

limited their conduct in accordance with an affidavit

that is specifically referenced in the warrant that

authorized the search.’ Accordingly, petitioners have

'8 The court in United States v. Beau mont, 972 F.2d 558,

560-563 (5th Cir. 1992), cert. denied, 113 S. Ct. 1821 (1993), held

only that a general warrant could not be cured by an affidavit

that merely accompanied the warrant, in the absence of, “at

the very least, a cursory reference to the affidavit upon which

an executing officer may have to rely.” 972 F.2d at 561. The

warrant in this case contained such a reference. See Pet. App.

Al9; see also Beaumont, 972 F.2d at 560 (discussing United

States v. Cook, 657 F.2d 730, 736 (5th Cir. 1981), which upheld

the partial validity of the warrant “because the warrant had

referred to the affidavit and was accompanied by it” (emphasis

omitted)). The Fifth Circuit’s earlier decision in Haydel lends

no support to petitioner’s position, for the reasons explained in

the text.

In United States v. Strand, 761 F.2d 449, 452-454 (8th Cir.

1985), the court stated that a warrant that failed to list the

particular items that were the subject of the search could not

be cured by the affidavit accompanying the warrant because

the warrant did not in any way incorporate the affidavit’s

listing of those items. The opinion in that case, however, does

not indicate that the affidavit was used to limit the scope of the

search. Furthermore, the Eighth Circuit subsequently has

explained that the reason a general warrant cannot be cured by

the specificity of the affidavit is that “the affidavit is neither

part of the warrant nor available for defining the scope of the

warrant.” United States v. Curry, 911 F.2d 72, 76-77 (1990),

cert. denied, 498 U.S. 1094 (1991). Accordingly, it seems likely

that the Eighth Circuit would not require suppression in a

case, like this one, where the affidavit in fact was used to

define the scope of the warrant.

In re Application of LaFayette Academy, Inc., 610 F.2d 1, 4-

5 (1st Cir. 1979), appears to turn on the government’s failure to

NES en RT aca, aa lh plc srwie laud

PbO tI 6 te wih LEN aT the te caticsies

21

not established the existence of a conflict warranting

review by this Court.

b. In any event, even if the court of appeals erred in

upholding the validity of the warrant, suppression of

the fruits of the search would be improper under

United States v. Leon, 468 U.S. 897 (1984), and Mas-

sachusetts v. Sheppard, 468 U.S. 981 (1984), because

the agents acted in good faith in obtaining and execut-

ing that warrant.'* See United States v. Luk, 859 F.2d

667, 677-678 (9th Cir. 1988). Petitioners’ objection is

that the substance of the affidavit was not specifically

repeated in the body of the warrant itself. But here, as

in Sheppard, that aspect of the warrant is ultimately

“inform the person subject to the search and seizure what the

officers are entitled to take.” Jd. at 5. In a case involving a

sealed affidavit like the one here, however, it should be enough

to make the affidavit “available * * * for use in preparing the

motion to suppress,” as was done here. Wuagneuzx, 683 F.2d at

1351 n.6. The First Circuit has not confronted such a case, and

there is little reason to believe that it would resolve that issue

against the validity of the search.

Finally, as suggested by petitioner’s citation (Pet. 44) of

United States v. Crozier, 777 F.2d 1376, 1381-1382 (9th Cir.

1985), the Ninth Circuit has adopted a relatively restrictive

rule in this area. See United States v. Towne, 997 F.2d 537,

547-550 (9th Cir. 1993) (court “remain{s] rigid in [its] insis-

tence” on express incorporation of affidavit and presence of

affidavit at search). But the restrictions imposed by that rule

have relatively little impact on suppression issues, because the

Ninth Circuit has made it clear that it will not suppress

materials seized in searches that do not comply with that rule if

the officers acted in good faith. See id. at 550 n.6 (citing

United States v. Luk, 859 F.2d 667, 677-678 (9th Cir. 1988)).

'4 The court of appeals declined to consider that question

because of its conclusion that the search did not violate the

Fourth Amendment. Pet. App. A23.

22

attributable to the action of the authorizing judge, not

the searching officers. See 468 U.S. at 989-990.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

JO ANN HARRIS

Assistant Attorney General

DERORAH WATSON

Attorney

APRIL 1994