# Petition for Writ of Certiorari — Cunningham v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 862

## Text

Supreme Court, U.S.
‘7 rFELEeP

~ 97-88 JUL 1 4 1997

OFFICE OF THE CLERK
No. 97-

IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1997

REX W. CUNNINGHAM, JR.,
THOMAS FERRIS, and BRIAN HOYLE

Vv.

UNITED STATES OF AMERICA,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
AND APPENDIX

Wendy Hanna Sibbison
Counsel of Record

26 Beech Street
Greenfield, MA 01301
(413) 772-0329

Attomev for Petitioners

July 11, 1997

QUESTIONS PRESENTED

1. (a) Can a facially deficient electronic surveillance warrant
under Title III's particularity provisions, 18 U.S.C. §§ 2518(4)(b) and
(c), be corrected by importing judge-made exceptions to the Fourth
Amendment’s exclusionary rules into Title III’s exclusionary rules, 18
U.S.C. §§ 2515, 2518(10)(a)?

(b) In reversing the district court’s Title III suppression order on
legally novel grounds not raised below, did the court of appeals exceed

its “plain error” jurisdiction set forth in United States v. Olano, 507

U.S. 725 (1993)?

2. Was it objectively unreasonable for a state prosecutor to delay
sealing electronic surveillance materials in 1992 for the sole reason
that he had "never read the federal statute" and had "never heard of"

United States v. Ojeda Rios, 495 U.S. 257 (1990)?

TABLE OF CONTENTS'
CURES TINGS PUREE oe cc cee cw ecsececes i
LAST GP ALD: PRO bons oe ee ree ahs lin
| er ee re) er ere iil
TABLE OF AUTHORITIES.............. rete eee iv
RRR. 2 os eee eel eee eae l
ti i oo ret l
FES CO ns 65k en ee eee Sh 2
STATUTES DOUG VE ical screed see een cee an se 2
STATERGENT OF Ties Ge oo os es ee ee ween le a 3
REASONS FOR GRANTING THE WRIT ................ 6

I. Whether courts may incorporate judge-made Fourth
Amendment jurisprudence into Title III's statutory exclusionary
rules presents an important question of federal law on which the
courts of anponis ave tp GUNG ac cds kc dansnensesdvesdcies 6

a. Based on dictum from a single, inapposite case from the D.C.
Circuit, the panel held that violations of central provisions of Title

III do not always require suppression................... 6
, LIST OF ALL PARTIES
The caption of the case in this court contains the names of all parties to
this petition.

ul

b. Based on a single, inapposite Fourth Amendment case, the
court of appeals mistakenly concluded that a facially defective
Title III warrant may be saved by extrinsic evidence of the
knowledge of the issuing judge and executing officer........ 8

II. In reversing the district court on legally novel grounds not
raised below, the court of appeals acted outside the scope of its
"plain error" jurisdiction as circumscribed in United States v.
SY GI MEP EEPEED oo nce ccaveedessovcesvescere 13

III. A state prosecutor's ignorance-of-federal-law excuse is not an
‘objectively reasonable" explanation for a seven-day sealing delay
under United States v. Ojeda Rios, 495 U.S. 257 (1990)...... 14

I a 16

INDEX TO APPENDIX

A. Opinion of the United States Court of Appeals for the First
Ne eee nc le oi hh gy % ne. pide s Al-Al3

B. Order of the United States Court of Appeals for the First Circuit
denving petition for rehearing.......................... Al4

C. Memorandum and Order of the United States District Court
allowing motion to suppress evidence........... _... .AL5-Ad44

D. Order of the United States District Court denving the government's
motion for reconsideration........................ A45-A47

E. Memorandum and Order of the United States District Court
reaffirming suppression order on reconsideration....... . A48-A5 1

ill

TABLE OF AUTHORITIES

Federal Cases

Boi Selim, :

codes Montini ;

Keating v. Sec. of Health and

ah I ss aye cag ee Bbw veel o Peale 13

Macau Shemttt
nk og bla oes Hee ee 10 n.5

Thomas v. Am,
WO, POPUNOIIODS 5 oa ccc ven vunvecccvsuavsiuns 13

United States v. Abrams,
615 F.2d 541 (Ist Cir. 1980)...................... 0... 11

SE OT. oe. 8
T2 F.3d 9 (2d Cir _, ee 14
889 F.Supp.177

Wb tees cee: 10
“85 F.3d 1305 (8th Cir. AID 5.5 0a tN, 14

United States v, Baranek,
903 F.2d 1068 (6th Cir. 1990)........................ 10

United States v. Bianco,
998 F.2d 1112 (2nd Cir. 1993),

cert. denied,
S11 US, O60 (1908). ... 0... ec ccc ec cece es 910n.5

IV

808 Fad Soa tle Ge 1986)... 5, 7n3,8,9,11,12
416 US. 562 (1974). 6,704
113 F.3d 289 (Ist Cir. 1997).
867 F.2d 36 (Ist Cir. 1989)... 9
429US. 413 (1977)... 6,8
771 F. Supp. 1266
(D. Mass. 1991) ara a' pias S/n ade ea eee ned eee 10
938 F.2d 502 (2nd Cir. 1976). 15

A16US SS Fee, 5, ei ot eae 7,8,12

uate |

"= GO6 Fad 11S ee Ci PG oo bel ee 8

v0 Fd 66d ie 97). I4

519 F.2d 1068 (Sth Cir. 1975).

‘cert, denied, 424U.S.909(1976).. 8
wd68 US. 897 (1984) BON, aa ee 9-12
~~

We ink lons
SP MOW ae 1996). ‘3
United States v. Moore

41 F.3d 370 (8th Cir. 1994)... 7

BDL 24860 (Ist Cit 1987) ooo ces vecevee 15,16
P98 US 287 (1990). eco cease 4-16
ems07 US. 725 (1993) Veer ore eee nee 13,14

Ree lon
vm 6ld F24 lst Cir 1980) E cukwavuey vate nee eee r
v0 F24292 2nd Cit 1986). occ cease 0
vs 26 F.2d 14700 Cir Tc, ROR ee koe 7
So ae ”
crs oe

‘cert denied, 493 US. 821 (1989). ce 7
GTR F 24 376 (it Cit 1982). eee 13

United States v. Vest,
SiS F.20 477 (tet Car. 1967)... ec ceenwtavcases 9

United States v. Vigi,
515 F.2d 290 (6th Cir.),

cert, denied,
423 U.S. 912 (1975)... ccc ee 7

United States v. Ward,
808 F. Supp. 803
(S.D. Ga. 1992)... 000 ee. eT a 10 n.5

United States v. Webster,
84 F.3d 1056 (8th Cir. 1996)... .................2.... 14

State Cases

Chan v. State,

552 A.2nd 1351

(MS. App. 1989)..................0.00......... 10 n.5

367 Mass. 224(1975),.......__- ere ee ee eee we) 16
State v, Garcia,

547 So.2d 628 (Fla. 1989)... 10 n.5
State v. Neisler,

655 So. 2d 252 (La. 1995),.......__. -10n5

STATUTES
28 U.S.C. § 1254(1)... 2 2
USL. 8DNS..........;....... Ee tras en 12
18 U.S.C. § 2518(3)...... 7n.2
redid cte t,o xen, TOE 4-6
18 U.S.C. § 2518(8Mfa)... 5,15
I8 U.S.C. § 2518(10Ma)....... Pel naa ee 3,6,12,15
IS U.S.C. § 2520(d)...... 0. 12
MISCELLANEOUS

S. Rep. No. 1097. 90th Cong.,

2d Sess., 1968

U.S.C.C.A.N. 2153,2191........ Pepe.

Fed. R.Crim.P.520).................
Clifford S. Fishman.

. 13.13 n.9

a L111 n.6
James G. Carr,
$6.3A (1996 Supp.)................... 1111.6

Vii

Senate Report (Judiciary Committee)
No. 1097 at 96, 1968 U.S.
Code Cong. & Admin. News

eS ere cs sos ck chee see eee eeeaee 12
2 LaFave, Search and Seizure,

es ba ea pues ww eek 11
Sutherland Statutory Construction,

ee Me ME esc sa wins oa c8 oe Ova eek 12

Vili

IN THE SUPREME COURT OF THE UNITED STATES
: October Term, 1997

REX W. CUNNINGHAM, JR.,
THOMAS FERRIS, and BRIAN HOYLE

Petitioners,

We

UNITED STATES OF AMERICA.
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

REX W. CUNNINGHAM, JR., THOMAS FERRIS AND
BRIAN HOYLE respectfully petition for a writ of certiorari to review
the judgment and opinion of the United States Court of Appeals for the
First Circuit reversing an order of the United States District Court,
District of Massachusetts, suppressing evidence.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the First

Circuit is published as United States v. Cunningham, 113 F.3d 289

(Ist Cir. 1997). It is Appendix A to this petition. The Order of that
court denying a petition for rehearing is Appendix B. The order of the
United States District Court, District of Massachusetts, allowing
petitioner's motion to suppress evidence is Appendix C. That court’s
denial of the government's motion for reconsideration is Appendix D.
Its refusal to change its suppression order after reconsideration is
Appendix E.

JURISDICTION

The judgment of the court of appeals was entered on May 19,
1997. Its order denying Petitioners’ petition for rehearing was entered
on June 4, 1997. Petitioner invokes this court's jurisdiction under 28
U.S.C. § 1254(1)(1997).

STATUTES INVOLVED

Title III of the Omnibus Crime Control and Safe Streets Act
of 1968. Pub.L. 90-351, codified at 18 U.S.C. §§ 2510-2521, as
amended by Pub. L. No. 99-508 (1986), provides, in pertinent part:

§ 2515. Prohibition on use as evidence of intercepted wire or
oral communications.

Whenever any wire or oral communication has been intercepted,
no part of the contents of such communication and no evidence
derived therefrom may be received in evidence in any trial ... in or
before any court of the United States ... if the disclosure of that
information would be in violation of this chapter.

§ 2518. Procedure for interception of wire, oral or electronic
communications.
**
(4) Each order authorizing or approving the interception of any
__ wire. oral. or electronic communication under this chapter
shall specify--
*** x

(b) the nature and location of the communications facilities as
to which. or the place where, authority to intercept is granted:
[and]

(c) a particular description of the type of communication
sought to be intercepted. and a statement of the particular offense
to which it relates[.]

***

(10)(a) Any aggrieved person in any trial ... before any court ...
of the United States ... may move to suppress the contents of any
Wire or oral communication intercepted pursuant to this chapter.
or evidence derived therefrom, on the grounds that--

(i) the communication was unlawfully intercepted;

(1i) the order of authorization or approval under which it was
intercepted is insufficient on its face: or

(iui) the interception was not made in conformity with the order of
authonzation or approval.

STATEMENT OF THE CASE

The opmions below contain all the facts and rulings relevant to the
issues presented in this petition. A2-A4, Al5-A22. A45-A46, A50-
A351. We summarize those facts and rulings.

Between May 20, 1992. and November |, 1992, possessed of
electronic surveillance orders issued by a Massachusetts Superior
Court judge, state police monitored the defendants’ oral
communications by means of a bug installed in Mr. Cunningham's
Springfield place of business, Dillon's Tavern. The United States
sought to use this state-gathered evidence in the present RICO
prosecution.

On Mav 17, 1996, the district court (Freedman, S.J.) granted the
defendants’ motion to suppress this evidence on the grounds that the
primary order. on which all subsequent orders depended, was
"insufficient on its face." 28 U.S.C. § 2518(10)(a)(ii). A42-A43.

The government filed an interlocutory appeal and, on May 19,
1997. a panel of judges reversed the suppression order. On June 4.
1997. petitions for rehearing and for rehearing in banc were denied.

The motion to suppress was grounded solely in Title III's statutory
exclusionary rules. 18 U.S.C. §§ 2515, 2518(10)(a). and not on any
judge-made exclusionary rules applicable to Fourth Amendment
violations.

Every judge who has reviewed this Order concluded that it is
facially defective. since an objective reader could not reasonably

determine whether it authorized a wiretap or a bug.
The district court ordered the Dillon's interceptions and all
derivative evidence suppressed because:

[the court] cannot state that a reasonably prudent officer. reading
the warrant with some diligence, would conduct the mental
gymnastics that the government undertakes in eighteen pages of
rationalizing and conclude that oral interception, and not wire
interception, was authorized. . . .

Nor does the court believe that the sloppy wording . . . amounts
to a mere technical violation of Title II. Rather. the Court cannot
help but to wonder whether [the issuing judge] was misled as to
the tvpe of communications which were to be intercepted. .
A.D.A. Picknally's application contained numerous references to
wire communications.... Moreover, District Attorney Bennett's
attestation at the end of the application declared, "The proposed
use of electronic surveillance relative to telephones (413) 531-
4994 and (413) 531-3188 is consistent with the overall policy
followed in Hampden County to eliminate this type of illegal
gaming combine. ." Finally, the Court cannot accept that [the
issuing judge] fully understood that the surveillance was limited
to oral communications in light of the fact that she ordered New
England Telephone Company to provide law enforcement
personnel the technical assistance they needed in regard to the
telephone at Dillon's Tavern with assigned number (413) 739-
9212. A42.

As a preliminary matter, the appellate panel agreed that the
primary order was facially defective, as follows:

By referring randomly to oral communications and wire
communications or wiretaps. the warrant is garbled on the verv
questions posed by [18 U.S.C. §§ 2518(4)(b) and (c)]. Taken as
a whole--but taken alone and without extrinsic evidence--the
warrant does not tell the objective but ignorant reader just what

interceptions are to be targeted. .. [T]he confusion is serious.
and despite the government's linguistic acrobatics, this is not a
warrant that we would deem adequate if it were signed by a judge
and executed by a police officer having no other knowledge of the
background and objectives... . [S]tanding alone, the bare
inconsistent words of the warrant fail to create reasonable
assurance that the signer or reader would know Just what was
intended. A4-A9.

The panel thus recognized that the order lacked particularity both
as to "the nature. . .of the communications facilities as to which. .
authority to intercept is granted" and as to "the type of communication
sought to be intercepted." 18 U.S.C. $§ 2518(4)(b) and (c).

Applying the reasoning of a single Fourth Amendment case--

, 808 F.2d 864 (Ist Cir. 1986)--to Title III's

exclusionary rules, the panel found that this facially defective order.
lacking the requisite Statutory particularity, was nonetheless
acceptable under Title III because of its conclusion (contrary to that
of the district court, A42) that "the judge and the executing officer
knew what had been proposed and authorized." A8-Al 1.

Additionally, the panel created this significant and far-reaching
new Title [II law under the rubric of “plain error." A6-A7.

It also endorsed a seven-day sealing delay based solely on a state
prosecutor's confessed ignorance of this court's jurisprudence. 18
U.S.C. § 2518(8)a). Al3, A36.

REASONS FOR GRANTING THE WRIT

I. Whether courts may incorporate judge-made Fourth
Amendment jurisprudence into Title III's statutory exclusionary
rules presents an important question of federal law on which the
courts of appeals are in conflict.

a. Based on dictum from a single, inapposite case from the
D.C. Circuit, the panel held that violations of central
provisions of Title III do not always require suppression.

Congress provided for mandatory suppression of intercepted oral
communications where, as here, “the order of authorization or
approval under which it was intercepted is insufficient on its face." 18
U.S.C. § 2518(10)(a)(ii).

The court of appeals recognized that this order "standing alone"
and "without extrinsic evidence" was deficient since it did "not tell the
objective. . . reader just what interceptions [were] to be targeted." A8-
A9. This problem is "serious," the court realized; but for certain
extrinsic evidence, it held that "this is not a warrant that we would
deem adequate." A5, A8.

In holding that the issuing judge's and executing officer's
knowledge rescued a facially bad Title II] order, the panel
misapprehended the law surrounding Title III's exclusionary rules.

In addition to the provisions requiring suppression for facially
deficient orders. these rules also require suppression when a
"communication was unlawfully intercepted." 18 USC. §
2518(10\a)i). This subsection requires suppression for all violations
of provisions which "play ‘a central, or even functional, role in
guarding against unwarranted use of wiretapping or electronic
surveillance." United States v. Donovan, 429 U.S. 413, 437 (1977),
quoting United States v. Chavez, 416 U.S. 562, 578 (1974). Title Ill
demands "strict adherence” to its central provisions. Donovan, supra,
at 440.

As the district court noted, the government has never disputed that
Section 2518(4)(b) is such a central provision of Title III, A43 n.7.

and the court of appeals evidently concluded that Section 2518(4)(c)
was likewise "intended to play a central role in the statutory scheme.”
United States v, Giordano, 416 U.S. 505, 528 (1974). A7-A8. By all
previous caselaw, suppression was thus proper here.

Nonetheless, relying on Fourth Amendment jurisprudence--in
which the court of appeals had once deemed it permissible to look
outside the four corners of an ordinary search warrant for
particularity’—it rewrote that portion of Title III requiring suppression
where an order is "insufficient on its face." 18 U.S.C. §
2518(10Xa)(ii). The statute does not mean what it says, the decision
holds: instead, it means that an order "insufficient on its face" with
respect to particularity can be made sufficient with extrinsic evidence.

No other court of appeals has ever held that a facial deficiency in
a Title [Il order which violates central particularity provisions can be
cured by extrinsic evidence. Contrast, United States v. Moore, 41
F.3d 370, 374-376 (8th Cir. 1994) (absence of judge's signature on
Title If order was mere "technical defect" since central provision of
the statute requires judicial approval. which was given, and does not
require a signed order): United States v. Traitz, 871 F.2d 368, 379
(3rd Cir.), cert. denied, 493 U.S. 821 (1989) (failure to identify Justice
official who authorized application. Chavez*-type defect): United
States v. Swann, 526 F.2d 147. 149 (9th Cir. 1975) (Chavez-tvpe

defect): United States v. Joseph, 519 F.2d 1068, 1070 (5th Cir. 1975),
cert, denied, 424 U.S. 909 (1976) (same): United States v. Vigi, 515
F.2d 290, 293 (6th Cir.), cert. denied, 423 U.S. 912 (1975) (same);

“This is indisputably correct. Cf. S. Rep. No. 1097, 90th Cong., 2d Sess.,
1968 U.S.C.C.A.N. 2153, 2191 (analogous provisions of § 2518(3) "are intended
to meet the test of the Constitution that electronic surveillance techniques be used
only under the most precise and discriminate circumstances, which fully comply
with the requirement of particularity”).

"United States v. Bonner, 808 F.2d 864 (Ist Cir. 1986)

“United States v. Chavez, 416 U.S. 562 (1974) (wiretap application
misidentified authonzing Justice official suffered trom mere “technical detect” and

did not violate "central provision").

United States v. Acon, 513 F.2d 513, 517-519 (3d Cir. 1975) (same)

The court of appeals’ decision rested on the legally mistaken belief
that "violations of even . . . central requirements [of Title III] do not
mandate suppression if the government demonstrates to the court's
satisfaction that the statutory purpose has been achieved despite the
violation.” A8-A9, quoting United States vy. Johnson, 696 F.2d 115,
121 (D.C. Cir. 1982).

This is a novel and legally unsupported statement of Title III law.

The language from Johnson is dictum: Johnson concerned
electronic surveillance authorized under the District of Columbia
Code. not Title III. 696 F.2d at 116-117. The statutes contain
significant differences. Id. at 122 n.45.

Not another federal court in the country has ever suggested. even
in dictum. that there are circumstances under which "violations of
even. . . central requirements fof Title III] do not mandate
suppression.” All this court's jurisprudence is to the contrary. United
States v. Donovan, 429 U.S. 413, 433 n.22 (1977): United States v.
Giordano, 416 U.S. 505, 524-528 (1974).

On this basis alone, certiorari is appropriate.

b. Based on a single. inapposite Fourth Amendment case, the
court of appeals mistakenly concluded that a facially defective
Title III warrant may be saved by extrinsic evidence of the
knowledge of the issuing judge and executing officer.

Based on United States v. Bonner, 808 F.2d 864 (Ist Cir. 1986),
the court of appeals held that a Title III order lacking the requisite

Statutory particularity does not require suppression if extrinsic
evidence shows that the judge and the executing officer both knew the
true intent of the order. While purporting not to reach the issue, A8-
All. the court of appeals thus injected a new. hybrid "good faith"
exception into Title [II's exclusionary rules.

The court misapprehended the law in several respects.

First. the court's importation of Fourth Amendment law into Title
[II goes bevond any ordinary "good faith" exception to the statute's
exclusionary rules. As the district court properly held. even if a

Fourth Amendment "good faith" exception were incorporated into Title
III, it would not apply here since "no officer reading the facially
defective warrant could have reasonably presumed it to be valid."
A51; United States v. Leon, 468 U.S. 897 (1984): Massachusetts v.
Sheppard, 468 U.S. 981, 988 (1984).

Second, Bonner’s judge-made Fourth Amendment law is
inapposite to Title III's exclusionary rules. Assuming arguendo that
the Fourth Amendment permits a reviewing court to look outside the
four comers of a search warrant for particularity as to the place to be
searched, this is not germane to the proper inquiry: Congress’ intent in
drafting Title [I's exclusionary rules. This court has repeatedly held:

[T]he availability of the suppression remedies for these statutory,
as Opposed to constitutional violations . . . turns on the provisions
of Title III rather than the judicially fashioned exclusionary
rule aimed at deterring violations of Fourth Amendment rights.

United States v. Donovan, 429 US. 413, 433 n.22 (1977),
emphasis added: accord, United States v. Chavez, 416 US. 562,
574-575 (1974): United States v. Giordano, 416 U.S. 505, 524-

529 (1974).

Because Title III's exclusionary rules include no good faith
exception, this same court of appeals has "refus[ed] to apply a good-
faith exception to allow . . . illegally-obtained evidence [under Title
III] to be used at trial." United States v. Curzi, 867 F.2d 36, 44-45
n.8 (1st Cir. 1989). The First Circuit has also refused to incorporate
into Title III's exclusionary rules the "innocent recipient" exception
derived from Fourth Amendment law and set forth in United States v.
Jacobsen, 466 U.S. 109, 113-118 (1984). United States v. Vest, $13
F.2d 477, 481-482 (1st Cir. 1987).

Other courts of appeals are in conflict on whether Fourth
Amendment jurisprudence can be grafted onto Title III's statutory
exclusionary rules.

In United States v. Bianco, 998 F.2d 1112 (2nd Cir. 1993), cert.
denied, 511 U.S. 1069 (1994), the Second Circuit affirmed the lower
court's incorporation of the good faith prong of the Franks test into

Title III's exclusionary rules. Id. at 1127-28, affirming a Connecticut
district court's adoption of United States v. Ferrara, 771 F. Supp.
1266, 1304-05 (D. Mass. 1991). A judge in the Southern District of
New York has now extrapolated from Bianco that "even in light of the
statute's exclusionary rule, the good faith exception to the probable
cause requirement, as set forth in Leon, should also apply to wiretap
warrants. United States v. Ambrosio, 889 F. Supp. 177, 188
(S.D.N.Y. 1995).*

On the other hand, a different panel of the same court refused to
incorporate the Fourth Amendment good faith exception announced in
United States v. Leon, 468 U.S. 897 (1984) into a state wiretap
statute, after careful statutory construction. United States v.
Spadaccino, 800 F.2d 292, 296 (2nd Cir. 1986).

A panel of the Sixth Circuit split on another Fourth Amendment-
Title III question. United States v. Baranek, 903 F.2d 1068, 1071-
1072 (6th Cir. 1990) (incorporating good faith "plain hearing"
exception into Title III's exclusionary rules, based on Coolidge v. New
Hampshire, 403 U.S. 443 (1971)); and Id. 1072-1073 (Jones, J.,
dissenting) (urging strict construction of Title III's exclusionary rules).

The commentators. too, sharply disagree on whether Title III's
exclusionary rules include a Fourth Amendment-derived good faith

exception. Clifford S. Fishman, Wiretapping 2nd Eavesdropping §

‘In Bianco the Second Circuit did not squarely address the applicability
of Leon to Title III's exclusionary rules. The District Court below had found Leon
applicable. 771 F. Supp. at 1297-98.

Other District Courts have disagreed, finding no good faith exception in
Title I. United States v. Ward, 808 F. Supp. 803, 807-808 (S.D. Ga. 1992),
United States v. McGuinness, 764 F. Supp. 888, 897 n.2 (S.D.N.Y. 1991); United
States v, Orozco, 630 F. Supp. 1418, 1521-22 (S.D. Cal. 1986); City of Oakland by
Kuhn v. City of Detroit, 610 F. Supp. 364, 369, n.10 (D. Mich. 1984).

A number of state courts have also refused to apply Fourth Amendment
good faith exceptions to state statutory exclusionary rules. State v. Neisler, 655 So.
2d 252, 267-270) (La. 1995). State v. Garcia, 547 So.2d 628, 629 (Fla. 1989), Chan
v, State, 552 A.2nd 1351, 1360 (Md. App. 1989) (dictum). See also, Id. at 1358
(dictum: Title [II's exclusionary rule “invulnerable to good faith exception").

10

eked

pal ih Mal ale tat Py ;

22:5(a) (1996) (Leon "good faith" exception to probable cause
requirement inapplicable to Title III); James G. Carr. The Law of
Electronic Surveillance, § 6.3A (1996 Supp.) (Leon applicable to Title
III).°

Bonner is also factually inapposite. There, although the street
address of the place to be searched was omitted from the warrant, the
premises were nonetheless sufficiently described so that police were
left with no unconstitutional discretion about where they might search.

Here, similarly, the balance of the order left no doubt about where
the interception was to take place.’ Instead, it lacked particularity as
to what was to be intercepted or seized: wire or oral communications.

Even under Fourth Amendment jurisprudence, where, as here, a
warrant lacks particularity as to what may be seized, a reviewing court
may not consider an unincorporated, unattached affidavit, nor is the
executing officer's subjective knowledge or belief relevant. United
States v. Roche, 614 F.2d 6, 8 (Ist Cir. 1980): United States v.
Abrams, 615 F.2d 541, 544 (1st Cir. 1980): 2 LaFave, Search and
Seizure, 559-560 (1996).

The necessary inquiry here, which the First Circuit failed to
conduct, was to determine Congressional intent. There is no evidence
that Congress ever intended any expansion of Fourth Amendment

“Judge Carr's analysis of the 1986 amendments to Title II, from which he
concludes that Congress grafted a broad good faith exception onto Title II's
exclusionary rules, is based on an inattentive reading of the amendments. His
argument, based on the addition of § 2518( 10Xc), fails to reckon with the fact that
this section concerns only “electronic communications,” which are distinct from
“oral communications” and “wire communications” under Title MI, 18 U.S.C. §
2510 (1), (2) and (12); and that Congress expressly did not amend Title II's main
exclusionary rules, §§ 2515, 2518(10 a), to include "electronic communications.”
Congress obviously intended that “electronic communications” be treated with less
caution than oral and wire communications. See Fishman, supra, §§ 22.4, 22.5(a).

‘The Order authorized interception to occur within “Dillons Tavern’
which is located within a concrete type structure located at || Tapley Street in the
City of Springfield at the corner of Tapley Street and St. James Avenue... ." A4-
AS.

1]

jurisprudence into Title III's exclusionary rules and substantial
evidence to the contrary.

In 1968, Congress stated its intent that its statutory exclusionary
rule would "reflect existing law." Senate Report (Judiciary
Committee) No. 1097 at 96, 1968 U.S. Code Cong. & Admin. News
2112, 2185; United States v. Giordano, 416 U.S. 505, 528-529 and
n.17 (1974). It would thus be surprising if Congress intended a
retroactive reading of an unusual (and factually inapposite) Fourth
Amendment case--United States v. Bonner, 808 F.2d 864 (ist Cir.
1986)--into this provision .

Further, in 1986—after both Leon and Franks narrowed the Fourth
Amendment exclusionary rule--Congress amended 18 U.S.C. §
2520(d) of Title I1I* and expressly provided for a good faith defense
"against any civil or criminal action brought under this chapter or any
other law." 18 U.S.C. § 2520(d). By contrast, it did not enact any
new good faith exception to Title III's exclusionary rules, 18 U.S.C.
§§ 2515, 2518(10)(a). Sutherland Statutory Construction, § 47.23
(5th ed. 1992). -

The line separating the statutory exclusionary rules controlled by
Congress from the judicially-crafted Fourth Amendment exclusionary
rule is a paradigm for the core principle of separation of powers and
must remain inviolate.

Certiorari is thus necessary to preserve the separate integrity of
the courts and Congress and to foster a unified system of law
throughout the federal courts on an important federal question.

*P_L. 99-508, Title I, § 103, 100 Stat. 1854 (1996).

12

II. In reversing the district court on legally novel grounds not
raised below, the court of appeals acted outside the scope of its
“plain error" jurisdiction as circumscribed in United States y.
Olano, 507 U.S. 725 (1993).

As the court of appeals acknowledged, the government never
argued below—before the magistrate judge or the district court judge--
that the order could be saved by extrinsic evidence of the judge's or
executing officer's knowledge: on the contrary, the government had
pushed hard for an analysis limited to the order’s "four corners." A5-
A6.

Until this case, the court of appeals had consistently held that the
failure to comply with Rule 3(b) of the Rules for United States
Magistrates in the United States District Court for the District of
Massachusetts "precludes review" in the court of appeals. United
States v. Mitchell, 85 F.3d 800, 803 (1st Cir. 1996); Keating v. Sec.
of Health and Human Services, 848 F.2d 271, 275 (Ist Cir. 1988):
Borden v, Sec, of Health and Human Services, 836 F.2d 4, 6 (Ist Cir.
1987); United States v. Vega, 678 F.2d 376, 379 (Ist Cir. 1982).

By the present decision, the court decided that an issue defaulted
under Rule 3(b) may be considered under the "plain error" standard of
Fed. R. Crim. P. 52(b).? A7. Thomas v. Am, 474 U.S. 140, 155 and
n.15 (1985).

In ruling that a facially defective Title III order, violating central
provisions of the statute, may be cured by extrinsic evidence, the court
of appeals misapplied this standard of review. An error is only "plain"
if it is "obvious" and "clear under current law." United States v,
Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L. Ed.2d 508, 518-519
(1993).

As shown in the first section of this petition, the panel's view of
Title [II law is hardly "obvious." Its belief that violations of central
provisions of Title III do not always require suppression is based on
dictum in a single case from another circuit and is contrary to this

’Rule 52(b) provides: “Plain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court."

13

court's-and all other circuit courts’--jurisprudence. Its belief that the
knowledge of the judge and executing officer can save a defective Title
III warrant from suppression is based on a single Fourth Amendment
case from the First Circuit, which has refused in other cases to import
Fourth Amendment law into Title III's exclusionary rules. The court
itself acknowledged that the "Bonner argument is not intuitively
evident." A7.

We are aware of no other decision, from any court of appeals,
which interprets Olano to allow creative law-making in this manner.
United States v. Jones, 108 F.3d 668,671, 1997 U.S. App. LEXIS
4617, 8-9 (6th Cir.) (plain error inapplicable where caselaw is

sparse," "divergent and conflicting"); United States v. Alli-Balogun,
72 F.3d 9, 12 (2nd Cir. 1995) (plain error inapplicable "when the
Supreme Court and this court have not spoken on the subject, and the
authority in other circuit courts is split"), followed in United States v.
Thompson, 82 F.3d 849, 854-856 (9th Cir. 1996) (plain error
inapplicable "[b]ecause of the circuit split, the lack of controlling
authority, and the fact that there is at least some room for doubt about
the outcome of this issue"); United States v. Baumgartner, 85 F.3d
1305, 1308 (8th Cir. 1996) and United States v. Webster, 84 F.3d
1056, 1066-1067 (8th Cir. 1996) (plain error applicable where law
made "clear" by U.S. Supreme Court after trial).

Because the court of appeals lacked jurisdiction to reverse the
district court, certiorari is urgently needed.

III. A state prosecutor's ignorance-of-federal-law excuse is not an
"objectively reasonable" explanation for a seven-day sealing delay

under United States v. Ojeda Rios, 495 U.S. 257 (1990).

On April 8, 1992, seven days after the final order terminated, the
original tape recordings were delivered to the judge and sealed.

The state prosecutor testified that the sole reason he waited seven
davs was because the Massachusetts electronic surveillance statute did
not require sealing and allowed him "a minimum of seven davs.
probably more" to make his return. At the time, he testified, he was
"not familiar with Title III;" had "never read the federal statute" nor

14

tried to find out what the federal sealing requirements were: and had
“never heard of" the Supreme Court's decision on Title III's sealing
requirements, United States v. Ojeda Rios, 495 U.S. 257 (1990).

The district court excused the delay here for the following reason,
accepted by the court of appeals, A12-13:

Trooper Alben acknowledged that the tapes could have been
prepared and returned within a day or two. . . . However, the
retum was not made for seven days because of law enforcement
personnel's belief that the law entitled them to a full seven days.
. . [SJeven days is the outside limit [for return under the
Massachusetts statute], and the government was within this
timeframe. . . Equally compelling is the fact that "in responding
sluggishly to his. . . responsibilities vis-a-vis presentation of the
evidence for judicial sealing [the prosecutor] acted in ignorant
bliss and negligently, but . . he was not consciously or deliberately
failing to perform his duty, nor was he acting in bad faith. See
(United States v.] Mora, 821 F.2d 860, 870 (Ist Cir. 1987). .
The integrity of the tapes was unaffected: the tardiness neither
benefitted the government nor disadvantaged the defendants: and
there was no deliberate flouting of the law. See Id; cf. United
States v. Gigante, 538 F.2d 502, 504-507 (2nd Cir. 1976). A35-
A36.

The district court and the panel thus relied on legal standards
which are no longer applicable.

This court has now ruled, "To hold that proof of nontampering is
a substitute for a satisfactory explanation is foreclosed by the plain
words of the sealing provision." Ojeda Rios, supra, at 264-265.

Further, the prosecutor's "ignorant bliss"--i.e., his subjective good
faith—-was also legally beside the point: the legal issue was whether his
excuse was "objectively reasonable at the time of the delavs." Ojeda
Rios, supra, at 266 (1990); 18 U.S.C. § 2518(8)(a).

In establishing a reasonable excuse for the delay. the government
was "required to prove. . . that its interpretation [of the law] was
objectively reasonable at the time." Id. at 266. The prosecutor's belief

15

that he had a grace period of seven days or more was just not
"objectively reasonable" in April, 1992. It was then elementary that
Title III governs state prosecutions. 18 U.S.C. § 2518(10)(a). State
and federal caselaw had already warned prosecutors against reading
the Massachusetts statute "as sanctioning a delay. . .if it is practicable
that a return be made before expiration of the seven-day period."
Commonwealth v. Vitello, 367 Mass. 224, 267, 327 N.E. 2d 819, 844

(1975): United States v. Mora, 821 F.2d 860, 863-867 (Ist Cir.
1987). This court had left no room for doubt that Title III required

prosecutors to seal wiretap materials "immediately" or risk
suppression. Ojeda Rios, supra.

It is an affront to federal law to accept a state prosecutor's
careless ignorance of Title III and Supreme Court jurisprudence--
especially in the sensitive area of electronic surveillance--as an
"objectively reasonable” basis for violating it.

Certiorari is thus appropriate on this point as well.

CONCLUSION

For each of the foregoing reasons, Petitioners pray that this Court
grant their petition for a writ of certiorari to review the judgment and
opinion of the United States Court of Appeals for the First Circuit
reversing the allowance of their motion to suppress.

Respectfully submitted,

Wendy Hanna Sibbison
Counsel of Record

26 Beech Street
Greenfield, MA 01301
(413) 772-0329

Attomey for

Rex W. Cunningham, Jr.
Thomas Ferris, and
Bnan Hoyle

16

APPENDIX A

UNITED STATES OF AMERICA, Appellant,

Vv.
REX W. CUNNINGHAM, et al, Defendants, Appellees.
No. 96-1828

UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT

1997 U.S. App. LEXIS 11632
113 F.3d 289
May 19, 1997, Decided

PRIOR HISTORY: APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE _ DISTRICT OF
MASSACHUSETTS. Hon. Frank H. Freedman, Senior U.S. District

Judge.
DISPOSITION: Reversed.
COUNSEL: Wendy Sibbison for appellees.

Todd E. Newhouse, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for the United
States.

JUDGES: Before Boudin, Circuit Judge, Bownes, Senior Circuit
Judge, and Lynch,
Circuit Judge.

OPINION BY: BOUDIN

Al

In the district court, the defendants in this criminal case moved to
suppress evidence as illegally seized and, based on the magistrate
judge's report, the district court granted the motion. The government
filed an interlocutory appeal from the suppression order. We reverse.

I.

In late February 1992, Carmen Picknally, an assistant district
attorney in Hampden County, Massachusetts. applied to the state
Superior Court for a warrant, pursuant to Mass. Gen. Laws ch. 272,
sec. 99(F). to authorize the interception of telephone calls to or from
two specified cellular car telephone numbers. The car telephones in
question were located in cars controlled by
defendant Rex W. Cunningham, Jr., and the offenses under
investigation were suspected violations of state anti-gambling statutes.
Mass. Gen. Laws ch. 271, sec. 17.

A supporting 109-page affidavit by state trooper Timothy Alben
described evidence that Cunningham had used threats in attempting to
collect gambling debts for bets that he had taken. The affidavit also set
forth information from five confidential informants about a
large-scale gambling organization allegedly controlled by
Cunningham. including specifics as to how the organization worked,
the names of employees, telephone numbers, and the location of
records and cash.

On February 28, 1992, Justice Constance Sweeney, of the state
Superior Court, issued the requested warrant. and signed ancillary
orders directed to two carriers. Several incriminating calls were
intercepted between Cunningham and others and were described in
another affidavit of Alben in support of a requested extension sought
by Picknally on or about March 17, 1992. Justice
Sweeney granted the requested extension. Surveillance of the two
telephones ended on April 1, 1992. On April 17, 1992, Picknally
applied to the Superior Court for a new warrant, this time (according
to the application's caption) "authorizing the interception of oral
communications of .. . Cunningham within an establishment known
as Dillons (sic) Tavern.” The application identified Dillon's Tavern at
a street address in Springfield, Massachusetts, and said that it was on
property controlled by Cunningham and his relatives. Incorporating a

A2

new Alben affidavit, the application referred to loansharking, Mass.
Gen. Laws ch. 271, sec. 49, as well as gambling, as suspected
offenses. Although the caption referred to interception of oral
communications "within . . . Dillons (sic) Tavern," the first paragraph
described the application as one for a warrant "to intercept certain
wire and oral communications," and there are later references to
“wiretaps” and, separately, to "oral communications . . . within Dillons
(sic) Tavern.” The affidavit also asked for authority for Alben to make
secret entries into Dillon's Tavern "for the purpose of installation and
activation of oral interception devices." This application, it appears,
was a poorly edited markup of the original wiretap application.
Immediately below Picknally's signature was a paragraph signed
by the district attorney for the county, saying that he had reviewed the
application and affidavit and that the proposed use of electronic
surveillance relative to two specified telephone numbers was consistent
with county policy. The two listed telephone numbers were the cellular
telephone numbers specified in the original application. Apparently the
paragraph had been copied from the original warrant application
without change.

The supporting Alben affidavit, this time 62 pages in length but
attaching the original affidavit as well, described Cunningham's
caution in using the telephone and provided reasons for believing that
Cunningham and others were using Dillon's Tavern for meetings in aid
of gambling and loansharking. The affidavit described Cunningham's
regular use of a particular table in Dillon's Tavern to conduct his
business. It also explained why oral interceptions were needed to
supplement other evidence.

Alben's affidavit did not contain the confusing jumble of
references to wiretaps and oral communications that marred the
Picknally application. It asked for approval to intercept oral
communications within Dillon's Tavern, specifying that interception
would be limited to only such times that physical surveillances of this
DILLONS TAVERN and Rex W. CUNNINGHAM Jr. can
reasonable (sic) place CUNNINGHAM within this location and that
interceptions will take place only at or near the particular table within
the dining area which has been identified within this affidavit as being

A3

consistently used by CUNNINGHAM or his associates.

It also asked approval to enter Dillon's Tavern to install technical
equipment to achieve the interceptions.

The warrant signed by Justice Sweeney had a caption similar to
the application, specifically referring to interception of oral
communications: but--like the application--the warrant also referred
confusingly to wire communications. It approved the secret entry to
install equipment, and imposed various safeguards. The warrant was
extended numerous times, and assault and battery was added as a
suspected offense. Surveillance ended on November 1, 1992. By then
125 cassette tapes had been accumulated and were sealed by the
Superior Court.

On April 21. 1995, a federal grand jury in Springfield indicted
Cunningham on RICO violations, loansharking, illegal gambling
activities, and conspiracy to commit those offenses, 18 U.S.C. secs. 2,
892. 894. 1955, and 1962 (c)and(d). Co-defendants Brian Hoyle and
Thomas Ferris were charged with loansharking conspiracy. Most of
the evidence against Cunningham, and all of the evidence against the
co-defendants, derived from the electronic surveillance and from
searches conducted under state-court issued warrants at various sites
shortly before the surveillance terminated.

By joint motion filed on December 15, 1995, the defendants
moved to suppress materials acquired by electronic surveillance under
Title II of the Omnibus Crime Control and Safe Streets Act of 1968.
18 U.S.C. secs. 2510-20. That statute governs interception of both
wire communication and oral communication, laying down detailed
standards and procedures. Id. secs. 2516-18. It also provides for
exclusion from evidence of interceptions taken in violation of the
statute. Id. sec. 2515. After a two-day evidentiary hearing, including
testimony from Picknally, Alben, and Hampden County District
Attorney William Bennett, the magistrate judge issued a report on
March 28. 1996. In it, he recommended that the motion to suppress be
allowed as to all electronic interceptions of conversations at Dillon's
Tavern. He said that the confusion in the warrant meant that it did not
comply with statutory requirements as to specificity, 18 U.S.C. sec.
2518(4), nor--assuming a good faith exception existed--was reliance

Ad

on the warrant objectively reasonable.

On May 17, 1996, the district court approved the magistrate
judge's recommendation. Its analysis tracked that of the magistrate
judge and his rejection of a "good faith" defense was adopted by cross
reference. In memoranda dated June 13 and July 12, 1996, the district
court addressed two successive government motions for
reconsideration but stood by its earlier conclusion. The government
then brought the case to us by interlocutory appeal. 18 U.S.C. sec.
3731.

II.

On review of a suppression order, we defer to the factfinder's
findings of raw fact unless clearly erroneous, and we consider issues
of law de novo. United States v. Morris, 977 F.2d 677, 680 (Ist Cir.
1992). In the past, there has been deference accorded to the factfinder’s
judgment in applying general standards to particular known facts; but
the Supreme Court has recently stressed our responsibility, in a related
Fourth Amendment context, to review "mixed questions" from an
independent vantage. Omelas v. United States, 134 L. Ed. 2d 911, 116
S. Ct. 1657, 1663 (1996) (reasonable suspicion and probable cause).

The government offers two alternative reasons for reversal. The
first is its claim that the warrant adequately, although not perfectly.
identified oral communications as its target--especiallv since Justice
Sweeney and Trooper Alben as executing officer knew that this was
its purpose. The second argument is that the so-called good-faith
exception of United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677,
104 S. Ct. 3405 (1984), is available under the statute in this case and
applies on the present facts.

At the threshold, defendants object that neither basis for appeal
was sufficiently preserved. Because we consider only the first ground
on the merits, our discussion of this threshold objection is similarly
limited. To decipher that objection, it is necessary to understand how
the government's defense of its warrant evolved on the path from the
magistrate judge to the district court and finally to us.

Before the magistrate judge, the government defended its warrant
on the ground that, analyzing the wording in detail, the errors were
technical or clerical. The government did not expressly assert that the

A5

personal knowledge of the authorizing judge and executing officer
were pertinent; but, the magistrate judge touched obliquely on the
issue, saying that the government's "excuse" would, if accepted, "allow
agents to conduct searches so long as they understood what was
intended by the orders which their attorneys drafted for signatures bv
the court.”

In its district court brief, the government again analyzed the
warrant's language, arguing that it referred several times to
interception of oral communications at Dillon's Tavern and that no
reasonable officer would read it to approve wiretaps, especially
because no telephone numbers were listed in the warrant. The
government did not mention the knowledge of the judge or executing
officer: indeed, in its first petition for reconsideration, the government
complained that the district court had looked "beyond the four corners
of the warrant."

The government's first attempt to emphasize what Justice Sweeney
and Trooper Alben knew at the time came only in its appellate brief
where, for the first time, it also cited to United States v. Bonner, 808
F.2d 864 (1st Cir. 1986), and similar cases making such knowledge
relevant. Whether this new emphasis is a separate "ground" or merely
a new twist, the government clearly did not offer it below and instead
steered the magistrate judge and district court toward a strict linguistic
analvsis of the warrant. If these judges erred, it was surely error
"invited" by counsel.

But whether we should ignore Bonner is a more difficult question.
The government sought timely review of the magistrate judge's ruling,
and it filed a timely appeal to us from the district court's ruling. True,
local rules war that failing to list grounds for reviewing the
magistrate judge's report may be fatal;' but we do not read this
warning to counsel as preventing a reviewing court--where timely

1 Compare Rule 3(b), Rules for U.S. Magistrates in U.S. District Court in
Massachusetts with Thomas v. Am, 474 U.S. 140, 146 & n.4, 88 L. Ed. 2d 435,
106 S. Ct. 466 (1985) (declining to treat such rules as jurisdictional). See generallv
ISA C. Wright, et al., Federal Practice and Procedure sec. 3901.1, at 42 (2d ed.
1992).

A6

review is sought at each stage—from noticing on its Own arguments not
developed below.

The ability of a reviewing court to decide the case properly is
fundamental. Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S. Ct.
2868.49 L. Ed. 2d 826 (1976). Indeed, the rules expressly preserve
our ability to notice "plain errors" that affect "substantial rights," Fed.
R. Crim. P. 52(b), especially where failure to do so would work a
substantial injustice. United States v. Olano, 507 U.S. 725, 123 L. Ed.
2d 508, 113 S. Ct. 1770 (1993): see also Johnson v. United States, S.

Ct., 1997 WL 235136 (U.S. May 12, 1997). The threat of substantial
injustice is not limited to the interests of defendants. United States v.
Krynicki, 689 F.2d 289, 292 (Ist Cir. 1982).

In this case, Bonner and similar decisions show that the issue of
knowledge is not wholly distinct from the claim of clerical error;
whether an error is forgiven as clerical depends, at least in some
situations, on whether in context it actually threatened privacy
interests; and this in tum may be affected by the executing officers’
knowledge. The Bonner argument is not intuitively evident; but it is
"plain" enough once the cases are consulted.

A final reason for refusing to cabin the analvsis here is that the
defendants are not prejudiced, because their ability to meet the
government's Bonner argument is not affected by the delay. The
knowledge of the state judge and executing officer is readily inferred
from documents and from testimony taken at the magistrate judge
hearing, where defense counsel cross-examined the witnesses.
Defendants have not pointed to any evidence lost or foregone due to
the government's tardiness in making its knowledge argument.

Il.

Turning then to the merits, we face at the outset a statutory ban
on use in court of the contents of an intercepted wire or oral
communication, or "evidence derived therefrom,” where disclosure
would violate Title III. 18 U.S.C. sec. 2515. There is no violation if
the interception was "authorized by" Title III. Id. sec. 2517. The
authorizing provisions, 18 U.S.C. secs. 2516-18, elaborately set forth
the crimes to be investigated, the application process for authorizing
orders, and the standards to be met.

A7

Pertinent here is 18 U.S.C. sec. 2518(4), which governs each
order authorizing an interception and requires that the order specify
five different items. Three items (subsections (a), (d) and (e)) are not
in dispute: the identity of the target, the identity of the agency and the
authorizing official, and the time period. The other two items which
must be included are as follows: (b) the nature and location of the
communications facilities as to which, or the place where, authority to
intercept is granted; [and] (c) a particular description of the type of
communication sought to be intercepted, and a statement of the
particular offense to which it relates[.]

The defendants invoked both provisions; the magistrate judge and
the district judge focused upon (b), as the government seeks to do here.
In truth, we think that both provisions need to be read together. Their
thrus. ‘isregarding the final clause of (c), is to identify the type of
communication and to narrow the targeted communications by location
of "facilities" (e.g., identifying a particular telephone) or "place" (e.g.,
where a "bug" is to be located to intercept oral communications).

In a literal sense, the warrant does describe both type and place:
it refers expressly to oral communications and to Dillon's Tavern. But
this is an extreme example of missing the forest for the trees. By
referring randomly to oral communications and wire communications
or wiretaps, the warrant is garbled on the very questions posed by
subsections (b) and (c). Taken as a whole—but taken alone and without
extrinsic evidence—the warrant does not tell the objective but ignorant
reader just what interceptions are to be targeted.

Now, the extent of confusion is a matter of degree. Any reader can
see that the warrant has been misdrafted; whether a reasonable (but
otherwise uninformed) _ police officer would solve the puzzie correctly
is probably a matter of percentages. In all events, the confusion is
serious, and despite the government's linguistic acrobatics, this is not
a warrant that we would deem adequate if it were signed by a judge
and executed by a police officer having no other knowledge of the
background and objectives.

The inadequacy is not because of any high likelihood that an
otherwise uninformed officer would tap a telephone or would intercept
Cunningham's oral communications at some other location than

A8

Dillon's. No telephone number is given in the body of the warrant, and
no other "place" of interception is mentioned. Rather, standing alone,
the bare inconsistent words of the warrant fail to create reasonable
assurance that the signer or reader would know Just what was
intended.

But this is not the end of the story. The Supreme Court has made
clear that suppression is not automatically required for every Title III
violation; rather, as a sister circuit summed up the Supreme Court's
precedents in United States v. Johnson, 225 U:S. App. D.C. 33, 696
F.2d 115, 121 (DC. Cir. 1982), "violations of even .. . central
requirements do not mandate suppression if the government
demonstrates to the court's satisfaction that the statutory purpose has
been achieved despite the violation. See also
Donovan, 429 U.S. 413, 433-34, 50 L. Ed. 2d 652. 97 S. Ct. 658
(1977); United States v. Chavez, 416 U.S. 562, 574-75, 40 L. Ed. 2d
380, 94 S. Ct. 1849 (1974).

Title III is designed to protect privacy interests similar to those
reflected in the Fourth Amendment. Whether or not Leon's good faith
exception should be interpolated into the statute--an issue we do not
decide--Fourth Amendment precedent is highly relevant in deciding
whether an authorizing order is valid and whether a defect in wording
is of a kind that threatens the central interests sought to be protected.
Indeed, the Supreme Court itself has relied upon Fourth Amendment
precedent in implementing Title III. Dalia v. United States, 441 U.S.
238, 254-59, 60 L. Ed. 2d 177, 99 S. Ct. 1682
(1979).

A substantial body of Fourth Amendment precedent akin to
Bonner, representing most circuits, permits a reviewing court to
consider the knowledge of the officials who approved the warrant and
executed it. The reason is fairly straightforward: such knowledge may,
on particular facts, show that there was in fact no real threat to
legitimate privacy interests. Examples include the judge approving the
warrant but forgetting to sign, or the warrant's omission of an address

A9

known both to the judge and executing officer.”

In calling such mistakes "clerical," courts do not mean that they
are all unimportant typographical errors. What is meant is that they
are wording mistakes introduced by accident or lack of care rather
than wilfully or with a sinister purpose. Cases like Bonner often
involve, and forgive, very serious clerical mistakes, depending upon
the risk that they posed in fact. E.g., Bentley, 825 F.2d at 1109
(personal knowledge of officers saved warrant that listed wrong office
number). In this sense, the term "clerical" is highly misleading.

Such an approach is not cost free. In an individual case, a defect
may pose no threat (we will show that this is so here); but exclusion
of evidence in that case will still make the police more careful next
time and so may prevent a different mistake that does pose such a
threat. But there are costs either way: excluding reliable evidence and
possibly freeing the guilty is also a cost. And cases like Bonner
represent a balance between competing objectives. In any event, such
is the law of this circuit and many others. _ In sustaining the warrant
in this case. we rely upon two major elements. First, the flaw in this
case, although serious, was a discrete set of clerical mistakes in a
process that in all other important respects complied with the statute.
An application to a judge was made; it demonstrated probable cause
and other requisites for the interceptions proposed; it identified place
and type (although in a confusing language), a warrant was signed;
and the authorizing judge and executing officer knew just what they
were doing. Second, because the judge and the executing officer
knew what had been proposed and authorized, there was no
substantial threat that this officer would intercept communications
other than as authorized. Thus, despite the seriously confusing

2 See, e.g., United States v. Brown, 49 F.3d 1162, 1168-69 (6th Cir. ), cert.
denied, 133 L. Ed. 2d 301, 116 S. Ct. 377 (1995), United States v. Owens, 848
F.2d 462, 465 (4th Cir. 1988). United States v. Bentley, 825 F.2d 1104, 1109 (7th
Cir.), cert, denied, 484 U.S. 901, 98 L. Ed. 2d 198, 108 S. Ct. 240 (1987), United
States v. Tumer, 770 F.2d 1508, 1511 (9th Cir. 1985). An extensive collection of
federal cases, by circuit, is contained in 84 Geo. L.J. 717, 734 n.78 (1996). Some
additional case authority, including state cases, is contained in 2 LaFave, Search
and Seizure sec. 4.5(a) (3d ed. 1996).

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language, the error here presented far less of a threat to civil liberties
than, say, a facially coherent warrant that mistakenly inverted the
numbers of a street address and was executed by an officer who did
not know the actual address.

It is the combination of these two elements that, as in Bonner,
persuades us that the warrant should be treated as valid and, as in
Johnson, that "the statutory purpose [of Title ITI] has been achieved
despite the violation." 696 F.2d at 121. And, as always, substantial
compliance and risk from error are matters of degree. Knowledge
would not save the interception if, for example, Alben had made out
the affidavit but then neglected to present it to a judge to secure
judicial approval. Similarly, nothing in what we say offers any
comfort to an officer who fails to comply with the true object of the
warrant.

It is also worth stressing that the knowledge of Justice Sweeney
and of Trooper Alben are established by a paper-trail record that was
created before the search. The affidavits submitted to secure the
telephone taps and then to authorize oral interceptions show beyond
serious dispute just what the judge and the executing officer
understood. The hearing record before the magistrate judge does help
knit the events together, but there is no threat here of recollections
being invented after the event.

This hard evidence lessens, although it does not eliminate, the
problems associated with any resort to personal knowledge. But proof
of the knowledge possessed by the police is the critical issue for most
warrantless arrests and searches, e.g., Chambers v. Maroney, 399
U.S. 42, 47-48, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970); and, of
course, knowledge is scrutinized in warrant cases as well where (for
example) there is a charge of fabrication or of invented information.

The Supreme Court's cases do express a special concern where
subjective motivation rather than knowledge is involved. Thus, the
Court has held as a matter of law that malignant motive is irrelevant
where objectively reasonable conduct is proved to make out a defense
of governmental qualified immunity, Anderson v. Creighton, 483 U.S.
635, 641, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), or where
probable cause exists but a search is challenged as pretext. Whren v.

All

United States, 135 L. Ed. 2d 89, 116 S. Ct. 1769, 1774 (1996). But
the special concerns about overturning reasonable conduct because of
bad motive have nothing to do with this case.

One final word on this issue is in order. Where, as here, the
government seeks to rescue a defective warrant based partly on
knowledge of the judge or officer, the burden is upon it to prove such
knowledge--just as it would be the defendant's burden if the warrant
were facially valid but sought to be impugned by proof of perjury. It
is fortunate for the government that in this case, the evidence is
overwhelming and available from the existing record. This piece of
luck does not make the mishandling of the matter look any more
attractive.

IV.

The defendants advance an alternative ground for upholding the
suppression of the Dillon's Tavern tapes. They claim that the
government failed to comply with the sealing requirement of Title III,
18 U.S.C. sec. 2518(8)(a), with respect to the cellular phone tapes.
And, since the Dillon's Tavern surveillance derived from this allegedly
tainted evidence, defendants say that it must be suppressed. Id. sec.
2515. The district court ruled that the brief delay in sealing was not
material.

The statute authorizing an interlocutory appeal from an order of
suppression, 18 U.S.C. sec. 3731, gives only the government a right
to appeal, and for good reason. If evidence is suppressed, the
government cannot appeal the suppression order after trial for double
jeopardy reasons, whereas the defendant(if convicted) can always
appeal from the district court's earlier refusal to suppress.

It is well-established that appellate courts can uphold a judgment
based on a ground rejected by the district court. This general principle
has been applied to section 3731 appeals. United States v. Moody,
485 F.2d 531, 534 (3d Cir. 1973). But the government objects in this
case that the defendants’ alternative ground would not only support the
order suppressing the Dillon's Tavern tapes but also undermine the
different order declining to suppress the cellular phone tapes. Thus, it
argues that the alternative ground is really a Trojan-horse effort to
review an unappealable order.

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The argument is clever but unpersuasive. The fact that the sealing
issue may have implications for two different orders does not prevent
us from considering that issue so far as it pertains to a reviewable
order. The cases cited by the government, e¢.g., United States v.
Shameizadeh, 41 F.3d 266, 267 (6th Cir. 1994), are not on point.
Indeed, if we thought that the suppression order were clearly valid, but
on a ground different than that offered by the district court, it would
be bizarre to overturn it.

In this instance, however, the magistrate judge and the district
court amply justified their action in treating the brief sealing delay as
"satisfactorily explained." 18 U.S.C. sec. 2518(8)(a). See United
States v. Ojeda Rios, 495 U.S. 257, 265, 109 L. Ed. 2d 224, 110S.
Ct. 1845 (1990). There was no bad faith by the police, no claim of
alteration to the tapes, and no other prejudice even suggested. Given
these circumstances and the brevity of the delay, we think no extended
discussion is required in this case.

Reversed,

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APPENDIX B

UNITED STATES OF AMERICA, Appellant,
V.
REX W. CUNNINGHAM, et al, Defendants, Appellees.
No. 96-1828
Before

Tortuella, Chief Judge
Bownes, Selya, Boudin, Stahl and Lynch, Circuit Judges

ORDER OF THE COURT

Entered: June 4, 1997

The panel of judges that rended [sic] the decision in this case
having voted to deny the petition for rehearing and the suggestion for
the holding of a rehearing en banc having been carefully considered by
the judges of the Court in regular active service and majority of said
judges not having voted to order that the appeal be heard or reheard by
the Court en banc.

It is ordered that the petition for rehearing and the suggestion for
rehearing en banc be denied.

By the Court
WILLIAM N. NG, CLERK

By Janice M. O’Neil
Chief Deputy Clerk

[cc. Messrs. Sibbison, Silver, St. Clair, Chaitowitz, Stern
and Newhouse]

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APPENDIX C

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

UNITED STATES OF AMERICA )Crim No.
v. )95-30009-FHF
)
REX W. CUNNINGHAM. JR.., )
BRIAN HOYLE, and )
THOMAS FERRIS, )
Defendants )

MEMORANDUM AND ORDER

May 17, 1996
FREEDMAN, S.J
I. INTRODUCTION

Defendants Rex Cunningham, Brian Hoyle, and Thomas Ferris
("defendants") filed a joint motion to suppress wire and oral
communications intercepted by electronic surveillance. Magistrate
Judge Kenneth P. Neiman ("Magistrate Judge") issued a report and
recommendation that the Court grant the motion to suppress in part
and deny it in part. See Report and Recommendation With Regard to
Defendants’ Joint Motion to Suppress Wire and Oral Communications
Intercepted by Electronic Surveillance (D. Mass. March 28, 1996)
(Neiman, U.S.M.J.) ("Report and Recommendation"). Defendants and
the United States of America ("the government") object to various
portions of the Report and Recommendation.

II. FACTUAL AND PROCEDURAL HISTORY

The parties do not contest the Magistrate Judge's summation of
the factual background of the case. As a result, the Court will
adopt that summation for purposes of this Memorandum and Order.
Cf 28 U.S.C. § 636(b)(1) (district court judge reviews de novo
those sections of a magistrate judge's report and recommendation to
which a party has specifically objected):

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A hearing on Defendants’ motion was held over the
course of three days, two of which entailed the presentation
of witnesses. The Government and Defendants, through
counsel, stipulated to the following documentary evidence:
(I) exhibits submitted by Defendants in three volumes . . .
(hereinafter
"Vol. _, at __"): (ii) four affidavit exhibits attached to the
Government's memorandum in opposition to the motion to
suppress . . . ; (iii) the Government's affidavit of Trooper
Timothy P. Alben. together with exhibits attached thereto . .
_, and, (iv) four exhibits introduced by Defendants during the
course of the hearing... .

A. Cellular Telephone Intercepts

On February 28, 1992, upon application of Carmen
Picknally. specially designated Assistant District Attorney of
the Hampden District ("A.D.A. Picknally"), Associate Justice
Constance M. Sweeney, of the Superior Court Department of
the Trial Court of Massachusetts, issued a warrant, pursuant
to Massachusetts General Laws c. 272, [section] 99(F),
authorizing the interception of wire communications over
cellular telephones number (413) 531-4994 and (413) 531-
3188, located within motor vehicles in the possession of or
under the control of Defendant Rex W. Cunningham. Jr.
("Cunningham"), with regard to violations of [Massachusetts
General Laws c. 271, section 17], illegal gaming. Vol. III, at
649. Related orders were issued to Metromobile Cellular
Telephone Service and New England Telephone. Vol. III, at
649B-649C. A.D.A. Picknally’s application, Vol. III, at 650,
was supported by the affidavit of Massachusetts State Police
Trooper Timothy P. Alben ("Trooper Alben"), Vol. III, at

666, et seq.

As part of his affidavit, Trooper Alben described the tale
of a Springfield attorney, Steve Linial ("Linial"), who

Al6

vread>

EE

apparently owed thousands of dollars in gambling losses to
Cunningham, and how Cunningham used threats in an
attempt to collect. Vol. III, at 688-89. Linial's own
statement—which included details on how he placed bets with
Cunningham and, later, with other persons, and on the
methods Cunningham used to try to collect on the debt. Vol.
III, at 666 and Attachment | thereto (starting after 774)--
became part of the state's ongoing investigation into illegal
gaming in Springfield. At the time Linial came forward,
Cunningham had prior state gaming convictions. Vol. III. at
687-88.

Trooper Alben's affidavit described how, in 1991, police
received information from five separate confidential
informants about a large scale gaming organization allegedly
controlled by Cunningham. Three of the informants provided
details about the organi-zation and Cunningham, including
how the organization worked, the names and addresses of
various employees and their roles in the organization,
telephone numbers over which bets could be placed, the
location of gaming records, and two locations where
Cunningham allegedly kept large amounts of cash. Vol. III,
at 689-94, 695-703. The other two informants provided
corroborating details about the scope and operation of the
organization, including the location of an illegal card game,
the connections between this game and organized crime and
illegal sports betting. Vol. III, at 703-05.

Intelligence from these informants led to further
investigations by the police, who discovered the corporate
structure of Rexco. Inc., a corporation controlled by
Cunningham, the name of the "contact" person for the
corporation, Richard Stambovsky, the telephone records of
two of Cunningham's alleged employees, Brian Collins and
Robert LaFountain. documentary connections between these
individuals and Cunningham and two more alleged

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employees, Timothy Adams and Ronald Geagan, and
addresses and telephone numbers showing associations
among these individuals and Cunningham. Vol. III, at 707-
15. Additionally, the informants confirmed that four persons
arrested in 1991 for gaming offenses worked for
Cunningham's organization. Vol. III, at 715-22 and
Attachment 2 thereto, at 5. Further information was obtained
through direct surveillance by police of a party and golf
tournament allegedly organized by Cunningham in honor of
Adolfo Bruno, a person described by [Trooper Alben] as
having RICO and state gaming convictions. Vol. III, at 722-
26.

Trooper Alben's affidavit also describes how
investigating officers subpoenaed the records of two cellular
telephones used by Cunningham. The records yielded
hundreds of telephone numbers dialed between August, 1991,
and January, 1992. together with a list of the most frequently
dialed numbers. Some of the individuals subscribing to these
numbers had gaming or RICO convictions, and some of the
locations were associated with past gaming convictions and
had been the subject of past search warrants. Vol. III, at
726-61.

On or about March 17, 1992, A.D.A. Picknally
submitted an application, Vol. III, at 783-97, seeking an
extension of the initial warrant, supported by another
affidavit of Trooper Alben. Vol. III, at 798-817. In his
affidavit, Alben asserted that the two cellular telephones had
been monitored for thirteen days, fourteen hours a day,
resulting in the interception of twenty-one complete calls. Of
these. he asserted that three were "of an incriminating nature
relating to the designated offense of illegal gaming or
conspiracy to commit illegal gaming offenses." Vol. III, at
803.

Alg

a v—_"

cea

The first "incriminating" call, intercepted on March 4,
[1992], between Cunningham and a Brian Collins, was
alleged to be "heavily cloaked in covert terms and hidden
meanings,” which Trooper Alben interpreted as follows:

[I]t is my opinion that the above referenced telephone
conversation . . . is focused around money that is
owed to this organization by an individual who is
referred to as "that kid" and "my friend."
CUNNINGHAM iis telling COLLINS that this
individual should have half the money by tomorrow
and the balance by Saturday and he explicitly tells
COLLINS that if he doesn't meet this criteria that
COLLINS "knows what to do." CUNNINGHAM
further tells COLLINS that if there is difficulty to
“just put him to the side." The conversation displavs
a supervisorv/subordinate relationship between
CUNNINGHAM AND COLLINS im that
CUNNINGHAM is clearly giving COLLINS
directions as to how to handle this matter.

Vol. III, at 805-06. The second call, intercepted on March
12, 1992, between Cunningham and a person identified as
"Brian," was summarized by Trooper Alben as follows:

Rex explains to Brian the details of some event this
afternoon in which he, CUNNINGHAM, and others
were attempting to (sic) invoke physical violence
against a group of people at some unknown location.
CUNNINGHAM explains that a traffic accident
occurred nearly which [sic] resulted in the police
appearing which allowed these persons to escape. . .

Vol. III, at 807. The third intercepted call, on March 16,
revealed that the alleged purpose of this foiled event was "to

Al9

intimidate ‘crack’ dealers." Vol. III, at 808 and 812-13. The
only other intercepted conversations cited by Trooper Alben
in support of the extension application were (1) a message
left by Cunningham for a Joe Marino that the accountant had
some work for Tuesday and that he should call Felix; and (2)
a conversation between Cunningham and a Frank about
money owed by Frank to Cunningham. Vol. III, at 808-09,
810-11.

A.D.A. Picknally's application for the extension asserted
that there was probable cause to believe that Cunningham and
others named in the application, together with other unknown
persons, were committing offenses involving gaming (M.G.L.
c. 271, § 17), usury (M.GLL. c. 271, § 49), assault and
battery by means of a dangerous weapon (M.G_L. c. 265, §
15A) and conspiracy to commit the same. Vol. III, at 784.
The designated offenses set forth in the initial warrant did not
include usury and assault and battery by means of a
dangerous weapon. Judge Sweeney granted the application
for an extension on March 17, 1992, finding that there was
probable cause to believe that the offenses were being
committed. Vol. III, at 775.

Electronic surveillance of the two cellular telephones
terminated on April 1, 1992. No further extensions were
sought. Seven days later, on April 8, 1992, the original tape
recordings, pen register tapes and daily logs were delivered to
Judge Sweeney, who caused them to be sealed and turned
them over to the custody of Trooper Alben. Trooper Alben
then delivered the sealed items to the office of the chief justice
of the Superior Court. Vol. III, at 821A-H. See M.G.L. c.
272, § 99N(1).

B. Dillon's Tavern Intercept/[s]
On Apmi 17, 1992, A.D.A. Picknally applied for a

A20

= ese

warrant authorizing the interception of communications of
Cunningham and others occurring within an establishment
known as Dillon's Tavern. Vol. I, at 8. The supporting
affidavit from Trooper Alben relied in part on evidence
obtained directly and indirectly from the prior cellular
telephone interceptions. Vol. I, at 81-82. That same day,
Judge Sweeney issued a Warrant and Order, the import of
which is at issue at this time, that referred to both oral and
wire communications and authorized the interception of
communications involving illegal gaming and usury. Vol. I,
at |. A separate order directed the New England Telephone
Company to provide "such technical assistance as is
necessary [to] accomplish the oral interceptions of the
communications from this stated location unobtrusively and
with a minimum of interference with the service that you are
according to the telephone customers." Vol. I, at 7A.

On May 14, 1992, A.D.A. Picknally applied to Judge
Sweeney for an order granting the state an additional seven
days to make secret entry into Dillon's Tavern to install the
necessary interception equipment. Vol. I, at 86. As set forth
in the supporting affidavit of Trooper Alben, the state police
were unable to install the necessary equipment within the time
permitted by the April 17, 1992 warrant. Vol. I, at 88.
Judge Sweeney granted the application for additional time
and gave the State Police until May 24, 1992 to install such
equipment. Vol. I, at 85.

After the interception equipment was installed in Dillon's
Tavern and interception had begun, A.D.A. Picknally applied
for ten consecutive extensions of the warrant. Vol. I, at 102.
144, 198, 242, 292: Vol. II at 350, 405, 464, 534, 589. Each
application for a subsequent extension was accompanied by
an affidavit of Trooper Alben setting forth the results of the
prior interceptions. Judge Sweeney granted each application
for an extension. As with the initial warrant, the first four

A21

extension warrants authorized the interception of
communications involving illegal gaming and usury. Vol. I,
at 94, 136, 190, 234. The fifth through tenth extension
warrants authorized, in addition, the interception of
communications involving assault and battery by means of a
dangerous weapon. Vol. I, at 284: Vol. II, at 342, 397, 456,
526, 581.

Pursuant to the tenth extension, surveillance at Dillon's
Tavern terminated on November 1, 1992. Four days later, on
November 5, 1992, 125 cassette tapes and all documents
relative to the surveillance at Dillon's Tavern were returned
to Judge Sweeney. That same day, the Chief Justice of the
Superior Court ordered the materials sealed in his office in
Boston. Vol. II, at 642LL.

C._Indictment

On Apnil 21, 1995, a grand jury sitting in the Federal
District of Massachusetts, Springfield Division, returned an |
indictment charging Cunningham with RICO and RICO i
conspiracy, 18 U.S.C. § 1962© and (d), as well as
loansharking and loansharking conspiracy, 18 U.S.C. §§ 892
and 894. Co-Defendants Brian Hoyle ("Hoyle") and Thomas
Ferns ("Ferris") were charged with loansharking conspiracy.

Report and Recommendation at 2-9.
Ill. STANDARD OF REVIEW

A district court reviews de novo those portions of a magistrate |
judge's report and recommendation to which a party has specifically |
objected. 28 U.S.C. § 636(b)(1)(C). Upon review, the court may
accept, reject or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate judge with
instructions. Id.

A22

IV. DISCUSSION

Before the Court is defendants’ motion to suppress the evidence
obtained as a result of the surveillance of the two cellular telephones
and at Dillon's Tavern. As stated above, the Magistrate Judge
recommended that the Court grant defendants’ motion in part and deny
it in part. Specifically, he recommended that the evidence obtained as
a result of the surveillance at Dillon's Tavern should be suppressed,
while the evidence obtained as a result of the cellular telephone
interceptions should stand. Objections to the Magistrate Judge's
rulings have been lodged regarding both batches of evidence--the
cellular telephone intercepts and the Dillon's Tavern intercepts—so the
Court will review each lot of evidence separately, while considering
the parties otfections as they arise.

A. Ihe Interception of Communications Over the Two Cellular
Telephones

Defendants raise various objections to the Magistrate Judge's
recommendation that their motion to suppress be denied with respect
to the interception of communications over the two cellular telephones.
The Court will address their objections, seriatim.

1. “Necessity” Requirement

The procedures for interception of wire, oral or electronic
communications is set out in 18 U.S.C. § 2518 ("section 2518").'
Each application for an order authorizing an interception must contain

a full and complete statement as to whether or not other
investigative procedures have been tried and failed or why
they reasonably appear to be unlikely to succeed if tried or to
be too dangerous. . . .

l While the evidence at issue in this case was obtained by Massachusetts
law enforcement personnel under state warrants, defendants’ motion to suppress is
analyzed under federal law since this is a federal prosecution. See United States
v. Sutherland, 929 F.2d 765, 771 (1st Cir.), cert. denied, 502 U.S. 822 (1991).

A23

18 U.S.C. § 2518(1)(c). Moreover, the judge issuing the order must
make an independent determination that this standard has been met.
18 U.S.C. § 2518(3)(c). These safeguards are "designed to assure that
wiretapping is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime." United
States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989), quoting United

States v. Kahn, 415 U.S. 143, 153 n.12 (1974).
Here, defendants object to the Magistrate Judge's reasoning that

the warrant application and affidavit supporting it need not show that
conventional investigative techniques "have been wholly
unsuccessful." See Defendants' Objections to Report and
Recommendation with Regard to Defendants’ Joint Motion to
Suppress Wire and Oral Communications Intercepted by Electronic
Surveillance (Docket no. 84) ("Defendants' Objections") at 2.
Defendants also assert that the Magistrate Judge erred in determining
that Trooper Alben's affidavit, filed in support of the wiretap
application, showed the limitations, inutility, or unavailability of other
investigative techniques. See id. Lastly, defendants object to the
Magistrate Judge's conclusion that the facts detailed in the application
were more than adequate to support Judge Sweeney's determination
that normal investigatory procedures reasonably appeared to be
unlikely of further success. See id, at 3.

In support of their objections, defendants maintain that the
traditional investigatory techniques employed by law enforcement
personnel had been "extraordinarily successful." See id, at 4. Steve
Linial detailed Cunningham's gaming operation while confidential
informants kept the police apprised of Cunningham's moves. See id.
at 4-5. Officers executed "a slew of search warrants, found a pile of
gaming evidence, and arrested a slew of people allegedly working for
Cunningham." [d, at 5-6.

The Court rejects defendants’ objections. The First Circuit has
declared:

Nor is the government forced to run outlandish risks or to

exhaust every conceivable alternative before requesting

authorization for electronic surveillance. ... [T]he issuing
court may take into account affirmations which are founded

A24

in part upon the experience of specially trained agents. .. .

Ashley, 876 F.2d at 1072 (internal citations omitted). Moreover, the
authorizing court may consider the nature of the alleged crimes as well
as the craftiness and wariness of the intended targets when deciding
whether to authorize electronic surveillance. See id, at 1072-73.

According to his affidavit, Trooper Alben had extensive
experience investigating illegal gaming and organized crime. See Vol.
Il, at 666-70. He understood, and conveyed to Judge Sweeney via his
affidavit, the intricacies of an illegal gaming hierarchy. See Vol. III,
at 670-81. Trooper Alben's affidavit Suggested that the targets of the
investigation were savvy, having been under scrutiny for years. See
Vol. III, at 682-89. In fact, as defendants acknowledged in their
memorandum, notwithstanding the heat that was coming down on
Cunningham, Alben's affidavit "showed that he was continuing to
conduct business as usual." See Defendants' Objections at 5-6.

Because of the layers allegedly involved in the organization here.
the Court believes that any criminal activity was "inherently difficult
to detect and present[ed] formidable problems in pinning down the
participants and their roles[; therefore] investigative personnel must be
accorded some latitude in choosing their approaches." See United
States v. David, 940 F.2d 722, 728 (1st Cir. 1991), cert. denied, 504
U.S. 955 (1992). To this end, Trooper Alben expressly dismissed, for
various reasons, alternative investigatory techniques. These included
locating witnesses to testify against defendants. placing an undercover
officer into the organization, interviewing subjects of the investigation.
and empaneling a grand jury. See Vol. Ill, at 767-69. And while
other techniques had been employed with some success--subpoenaing
telephone records, conducting physical surveillances and spot checks,
executing search warrants--Trooper Alben acknowledged that these
were insufficient to ensure conviction for the criminal activities under
investigation. See Vol. III, at 769-71: see also David, 940 F.2d at
727-28 (government must make reasonable, good faith effort to run
gamut of normal investigative techniques).

In sum, the Court concludes that Trooper Alben's affidavit
sufficiently indicated "a ‘reasonable likelihood’ that alternative

A25

techniques would fail to expose the crime." Ashley, 876 F.2d at 1073.
Accordingly, Judge Sweeney's findings that, "Normal investigative
procedures either have been tried without success or reasonably
appear unlikely to succeed if tried" were well-supported. See Vol. III
at 645, 777. Therefore, section 2518's necessity requirement was met.

2. Interception of Other Crimes

Illegal gaming and conspiracy to commit the same were the
offenses specified in the original warrant of February 28, 1992. See
Vol. III, at 646. The Magistrate Judge found that the interception of
evidence of crimes not named in the original warrant was incidental to
the lawful interception of evidence of illegal gaming and conspiracy.
Report and Recommendation at 17. Defendants object to this finding.
See Defendants’ Objections at 6. Also, defendants contest the
Magistrate Judge's conclusion that Judge Sweeney was informed of the
essential facts of the unspecified violations when A.D.A. Picknally
sought an extension of the warrant on March 17, 1992, and Judge
Sweeney therefore implicitly found that the contents of the "other
offense" conversations were intercepted in accord with Title III.
See id. at 6-7. In addition, defendants oppose the Magistrate Judge's
rejection of their argument that the extension warrant could not
constitute retroactive judicial approval since the extension warrant
itself was defective. See id.

In support of their objections, defendants argue that none of the
conversations intercepted during the period of the February 28, 1992
warrant had anything to do with gaming. See id, at 7. For example,
the police intercepted a conversation on March 4, 1992 concerning
collecting money owed on a debt. See Vol. III, at 804-05. Defendants
maintain that nowhere in the conversation is there any indication—
cloaked, veiled, covert or otherwise--that the debt was connected with
gaming. See Defendants' Objections at 8. Trooper Alben's attempt to
connect the conversation with gaming, so defendants assert, is
extremely tenuous. See id.

Continuing, conversations dated March 12, 1992 and March 16,
1992 involved, by Trooper Alben's own statement, an attempt by
Cunningham "to intimidate ‘crack’ dealers and keep them away from"
a particular location in Springfield. See Vol. III, at 807-08. Again,

A26

defendants challenge Trooper Alben's effort to connect. this
conversation to gaming: "[T]he fact that [Cunningham] can organize
and deploy persons quickly for the sole intent in [sic] assaulting and
intimidating others for some obvious self interest is consistent with
activities surrounding _ illegal gaming and _‘loansharking.”"
See Defendants' Objections at 8: see also Vol. III, at 808.

There was a March 13, 1992 interception, which, according to
defendants, has no relevance. See Defendants’ Objections at 9. In the
March 13, 1992 conversation, Cunningham leaves a message for Joe
Marino to pick up some work on Tuesday from "Dickie the
accountant" and to "call Felix." See Vol. III, at 808-09. F inally, there
was a March 14, 1992 intercepted conversation dealing with a debt.
Defendants observe that Trooper Alben conceded that the conversation
Suggests practices consistent with loansharking, an offense for which
officers did not have authority to wiretap. See Vol. III, at 810-11.
Trooper Alben's attempt to connect this conversation to gaming--
loansharking "is a practice which is commonly employed by persons
who are involved in the upper levels of organized illegal gaming
enterprises"—is, in defendants’ words, "hardly enough to bring it within
the scope of the warrant." See Vol. Il], at 811-12; Defendants'
Objections at 9.

The Court believes that defendants’ arguments miss the point.
Defendants focus on the intercepted communications’ relation to
gaming, the targeted offense. However, provided certain safeguards
are met, Title III clearly allows for the interception of crimes other
than those specified in the warrant:

Congress intended that evidence relating to unauthorized

offenses should be given retroactive judicial approval under

[18 U.S.C_] section 2517(5) if the "original [wiretap warrant]

was lawfully obtained,

.. . Was sought in good faith and not as a subterfuge search,

and that the communication was in fact _ incidentally

intercepted during the course of a lawfully executed order."

United States v. McKinnon, 721 F.2d 19, 22 (Ist Cir. 1983)

(emphasis supplied) (quoting S. Rep. No. 1097, 90th Cong., 2d Sess.

A27

reprinted in 1968 U.S. Code Cong. & Admin. News 2112, 2189).
Here, there is no suggestion that the warrant in question, authorizing
investigation of gaming, was a subterfuge designed merely to sanction
an investigation of loansharking, usury, assault and battery, or any
other crime. In fact, any intimation that the warrant was a subterfuge
is non-sensical since extortion is an enumerated offense for which law
enforcement personnel could have sought a warrant in the first
instance. See 18 U.S.C. § 2516(1)(f); see also United States v.
London, 66 F.3d 1227, 1234 (Ist Cir. 1995), cert. denied, 64
U.S.L.W. 3704 (1996); 18 U.S.C. §§ 891-894 (defining extortionate
credit transaction as combination of usury and violence).

As for whether the communications regarding non-targeted
offenses were intercepted incidentally to a lawfully executed order, the
Court concludes that they were. The First Circuit has declared that
something need not be unanticipated to be incidental. See McKinnon,
721 F.2d at 22-23. Evidence of crimes other than those authorized in
a wiretap warrant are intercepted incidentally when they result from
a bona fide investigation of crimes specified in a valid warrant. See
id. at 23. Here, because the warrant authorizing the interception of
gaming communications was valid, the interception of communications
regarding other crimes was incidental. See United States v. Gambale,
610 F. Supp. 1515, 1531 (D. Mass. 1985).

The Court's analysis does not end there. Whether non-targeted
crimes were intercepted incidentally to a lawful warrant is only half
the question. The government may only disclose the contents of the
incidentally intercepted offenses when the interception is subsequently
approved or authorized by a judge of competent jurisdiction. 18
U.S.C. § 2517(5). Specifically, Title [II provides that when law
enforcement personnel, while engaged in authorized surveillance.
intercept

communications relating to offenses other than those specified

in the order of authorization or approval, the contents and

evidence derived therefrom . . . may be used . . . when

authorized or approved by a judge of competent jurisdiction
where such judge finds on subsequent application that the
contents were otherwise intercepted in accordance with the

A28

provisions of this chapter. Such application shall be made as
soon as practicable.

18 U.S.C. § 2517(5). The judicial finding that the interception was
otherwise in accord with Title III may be implicit, such as when a
judge “grants a renewal of a wiretap after being advised of the
essential facts of the unspecified violation." McKinnon, 721 F.2d at
23-24. In other words.

[T]he disclosure in subsequent affidavits to the issuing judge
of material facts constituting or clearly relating to other
offenses satisfies the Government's obligation to seek judicial
authorization for the disclosure and use of evidence
inadvertently intercepted.

London, 66 F.3d at 1235 (quoting McKinnon, 721 F.2d at 24).
Judge Sweeney gave implicit authorization here. The extension

warrant expressly found probable cause to believe that usury and
assault and battery by means of a dangerous weapon were occurring;
whereas the original warrant only cited probable cause regarding
gaming and conspiracy to commit gaming. Compare Vol. III, at 775-
76 with Vol. III, at 643-44. Moreover, when the government sought
the March 17, 1992 extension, Trooper Alben's attached affidavit
advised the court of interceptions suggesting loansharking:

These above stated practices of paying money to third parties,
leaving money at various locations (with Lori, at Dillons and
at the Orange Cafe) is consistent with the practices of
loansharking. ... This conversation lends itself to believe
that probable cause exists to believe this is a loansharking or
usury situation. .. .

Vol. Ill, at 811. Additionally, transcripts of the recorded
conversations, and Trooper Alben's interpretation of the conversations.
were before Judge Sweeney when she reviewed the application for the
extension warrant. Vol. III, attachments starting after 817: cf.

A29

Gambale, 610 F. Supp. at 1531 (judge need not engage in
conversation-by-conversation analysis when authorizing disclosure
under section 2517(5)).

At bottom, the Court finds that the interception of crimes not
specified in the February 28, 1992 warrant was incidental to the
lawful interception of evidence relating to gaming and conspiracy to
commit gaming. Also, the Court believes that Judge Sweeney was
informed of the essential facts regarding the non-targeted offenses
when she issued the extension warrant on March 17, 1992, so she
implicitly found the incidental intercepts to be in compliance with Title
III. As for defendants’ claim that the extension warrant could not
constitute retroactive judicial approval pursuant to section 2517(5)
because the extension warrant itself was invalid, the Court turns to
consider that now.

3. The Extension Warrant

Finding probable cause to exist with respect to gaming, usury, and
assault and battery by means of a dangerous weapon, Judge Sweeney
issued an extension warrant on March 17, 1992. See Vol. Ill, at 775-
76. The Magistrate Judge concluded that Judge Sweeney was justified
in finding probable cause, and defendants now object to the Magistrate
Judge's conclusion. See Report and Recommendation at 21; see also
Defendants’ Objections at 10. Also, defendants take issue with the
Magistrate Judge's statements that,

First. given the initial affidavit, a fair inference could well
have been drawn by Judge Sweeney that the debt collection
concerned a gambling debt. Second, even if the conversations
intercepted during the period of the February 28, 1992
warrant did not pertain to gaming, such a conclusion would
not preclude a finding of probable cause with respect to
gaming for the extension warrant.

Report and Recommendation at 21-22; see Defendants’ Objections at
10.

Defendants hinge their argument on the fact that the original
cellular telephone interceptions vielded no evidence of gaming. See

A30

Supra (discussing intercepts dated March 4, 1992: March 12, 1992;
March 13, 1992; March 14, 1992: March 16, 1992). They contend
that since Cunningham did not discuss gaming during the period of
time covering the first warrant, there was no probable cause to
continue to eavesdrop in an effort to intercept gaming conversations.
See Defendants’ Objections at 11. While defendants’ position is
attractive, the Court is not convinced.

Section 2518 requires that extension warrants, like original
surveillance warrants, can be issued only if the judge determines that

(a) there is probable cause for belief that an individual is
committing, has committed, or is about to commit a
particular offense enumerated in [Title III];

(b) there is probable cause for belief that particular
communications concerning that offense will be obtained
through such interception:

(d) . . . there is probable cause for belief that the facilities
from which, or the place where, the wire, oral or electronic
communications are to be intercepted are being used, or are
about to be used, in connection with the commission of such
offense, or are leased to. listed in the name of, or commonly
used by such person.

18 U.S.C. § 2518(3): see also 18 U.S.C. § 2518(5) (referring to
subsection (3) for extension warrants). The quantum of probable
cause needed in the electronic surveillance context is the same as that
for a standard search warrant. See United States v. Gambino, 734 F.
Supp. 1084, 1097 (S.D.N.Y. 1990). Therefore, review of the law that
has developed with respect to search warrants, in general, is
instructive. See id, at 1098.

Probable cause is "a fluid concept--turning on the assessment of
probabilities in particular factual contexts--not readily, or even

A31

usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462
U.S. 213, 232 (1983). Probable cause consists of facts and
circumstances that would lead a reasonably prudent person to believe
that criminal activity was afoot. See Beck v. Ohio, 379 U.S. 89, 91
(1964). The existence of probable cause is to be determined in a
pragmatic, non-technical way based on the totality of the
circumstances. See Gates, 462 U.S. at 230-32. The reviewing court's
task is to "ensure that the magistrate had a substantial basis for
concluding that probable cause existed." Id, at 238-39. The
determination of whether probable cause existed is to be given "great
deference" on review. Id, at 236.

Judge Sweeney had a substantial basis for concluding that
probable cause existed. As discussed earlier, Trooper Alben's
affidavit contained written transcripts of intercepted conversations
which, in the Court's view, establish probable cause by themselves.
For example, the following dialogue between Cunningham ("RC") and
Brian Collins ("BC") would lead a reasonably prudent person to
believe criminal activity was afoot:

RC: See, I figure like more than half by tomorrow
... balance Saturday.

BC: Well, I should have three quarters in my hand by
tomorrow.

RC: OK . . . If you don't you know what to do.

BC: Right .. . Oh Yea.

RC: I mean... that's... ya know... we're hoking

.. . we're letting him slide on the rest.

BC: He said there should be no .. . difficulty.

RC: No, but if there is, just put him to the side.

A32

Pe ee ee aa

Vol. Ill, at Attachment B (after pg. 817). Another conversation
between Cunningham ("RC") and "Brian" further suggests illegal
activity:

Brian: Nothing happened this afternoon{?]
RC: Well we went there, we had it perfect.
Brian: What happened{?]

RC: Well we followed them around the corner,
right[?]

Brian: Ya.

RC: And ah had them perfect, we gave them a
couple of good .... We were going to grab one and
bang him.

Vol. III, at Attachment C (starting after 817). Fortunately for the
"them" in this dialogue, a traffic accident ensued, bringing the police
and foiling Cunningham's attempts to "grab one and bang him."

The Court need not continue, as these conversations alone suggest.
at a minimum, the use of violence to secure money from people. When
considering the rest of Trooper Alben's affidavit, there was more than
ample evidence to merit a finding of probable cause regarding usurv
and assault and battery by means of a dangerous weapon.

And, the fact that the original wiretap revealed little in the way of
illegal gaming is not, to defendants’ disappointment, dispositive.
Rather, "the past success of the wiretap is but one factor in
determining whether probable cause continued to exist that evidence
might be gathered in the future." Gambino, 734 F. Supp. at 1104.
Trooper Alben's affidavit in support of the extension warrant
expressly incorporated by reference his affidavit in support of the
original warrant. Vol. III, at 801. The facts and circumstances
detailed in his original affidavit sufficiently established probable cause

A33

to believe that illegal gaming was occurring, and those facts and
circumstances applied with equal force at the time of the extension
warrant. See United States v. Rivera, No. 90-CR-137, 1990 WL
153969, *3 (N.D.N.Y.) ("[A]s the first warrant was adequately
supported by probable cause. the evidence obtained as a result of the
extension warrant will not be suppressed"). Given all the
circumstances in this case, when Judge Sweeney issued the March 17,
1992 extension warrant, probable cause existed with respect to
gaming, usury, and assault and battery by means of a dangerous
weapon.

4. Sealing of the Evidence

The wiretaps on the cellular telephones ended on April 1, 1992.
Seven days later, on April 8, 1992, the tape recordings of the
intercepted conversations, the pen register tapes, and the daily logs
were presented to, and sealed by, Judge Sweeney. Defendants argued
before the Magistrate Judge that the seven-day delay was a violation
of section 2518(8)(a), thereby requiring suppression. See Report and
Recommendation at 22. The Magistrate Judge disagreed, and now
defendants object to the Magistrate Judge's reasoning and conclusion.
Id, at 25-26; Defendants’ Objections at | 1-16.

Section 2518(8)(a) provides, in pertinent part:

Immediately upon the expiration of the period of the order, or
extensions thereof, such recordings shall be made available to
the judge issuing such order and sealed under his directions.
... The presence of the seal provided for by this subsection,
or a satisfactory explanation for the absence thereof, shall be
a prerequisite for the use or disclosure of the contents of any
wire, oral, or electronic communication or evidence derived
therefrom. . . .

In construing this subsection, including its self-contained exclusionary
tule. the Supreme Court has concluded that it “applie(s] to a delay in
sealing, as well as to a complete failure to seal, tapes." United States

v. Ojeda Rios, 495 U.S. 257. 264 (1990).
Because the Massachusetts electronic surveillance statute does not

A34

require sealing, the Supreme Judicial Court ("SJC") has held that
sealing "should be utilized in order to conform the State provision to
that of [section] 2518(8)(a)." Commonwealth v. Vitello, 367 Mass.
224, 267-68, 327 N.E.2d 819, 844 (1975). Further, in order to
reconcile the federal statute's requirement that, on expiration of the
order, tapes must be made "immediately" available to the issuing judge
with the state statute's requirement that return be made "within seven
days,” the SJC has held, "[S]even days is the outside limit on return of
the warrant and is not to be read as sanctioning a delay in return if it
is practicable that a return be made before expiration of the seven-day
period.” Id. Compare 18 U.S.C.

§ 2518(8)(a) with Mass. Gen. Laws ch. 272, § 99(M). Responsivelyv,
the First Circuit has stated that, "[T]here is no untenable conflict
between the state scheme and the federal scheme." United States v.
Mora, 821 F.2d 860, 863 n.3 (Ist Cir. 1987).

Where, as here, sealing is other than immediate, the recordings
and all derivative evidence must be suppressed unless the government
can establish a "satisfactory explanation" for the delay. 18 U.S.C. §
2518(8)(a). In this regard, the government must first show, by clear
and convincing evidence, that the tapes have not been compromised.
See Mora, 821 F.2d at 867. Then the government must "explain not
only why a delay occurred but also why it is excusable." Ojeda Rios,
495 U.S. at 265. In clearing this hurdle, the government must
establish that it has acted in good faith; that is, the government cannot
have benefitted unduly from the delay, and the delay cannot have
prejudiced the defendants. See Mora, 821 F.2d at 868. Finally, the
Court also considers the length and the cause of the delay. See id, at
868-69.

Here, there is no suggestion that the tapes were sullied. Nor do
defendants contend that the delay prejudiced them or unduly benefitted
the government. As for the length of the delay, seven davs elapsed
before the seal was affixed. As stated above, although this length of
time is not to be sanctioned if an earlier return is practicable, seven
days is the outside limit. See Vitello, 367 Mass. at 267-68. 327
N.E.2d at 844; see also Mora, 821 F.2d at 863 n.3.

The Court turns to what it believes is the dispositive factor, the

A35

cause of the delay. In this case, Trooper Alben acknowledged that the
tapes could have been prepared and returned within a day or two. See
Hearing Before Magistrate Neiman, Dated February 29, March 1,
March 6, 1996, Log II, at 395 (hereinafter "Log __, at __"). However,
the return was not made for seven days because of law enforcement
personnel's belief that the law enabled them to a full seven days. See
Log I, at 192 (A.D.A. Picknally believed he had seven days to return
the tapes for sealing).

Defendants maintain that the government's excuse for the delay,
a belief that it had seven days to make the return, must be rejected
because it was not objectively reasonable at the time. See Ojeda Rios,
495 U.S. at 266. That is, caselaw clearly established that a delay
should not be sanctioned if an earlier return is practicable. See
Vitello, 367 Mass. at 267, 327 N.E.2d at 844. However, the Court
reiterates that seven days is the outside limit, and the government was
within this timeframe. See id, Equally compelling is the fact that,

in responding sluggishly to his . . . responsibilities vis-a vis
presentation of the evidence for judicial sealing, [A.D.A.
Picknally] acted in ignorant bliss and negligently but . . . he
was not consciously or deliberately failing to perform his
duty, nor was he acting in bad faith.

See Mora, 821 F.2d at 870 (internal quotations omitted).

In the end, the Court believes that the seven-day delay in seeking
the judicial seal does not necessitate suppression. The integrity of the
tapes was unaffected; the tardiness neither benefitted the government
nor disadvantaged the defendants; and there was no deliberate flouting
of the law. See id.; cf, United States v. Gigante, 538 F.2d 502, 504-
07 (2d Cir. 1976) (suppression ordered when delays ranged from eight
to twelve months).°

In sum, the Court concludes that the evidence gathered as a result

2 Defendants also argue that the government failed to comply with the
sealing procedures in regard to the Dillon's Tavern intercepts. The Court will
address this issue, infra, when reviewing the Dillon's Tavern surveillance.

A36

ee ee a ee ee ee ee ee ee - ~ .

of the interception of communications over the cellular telephones
comported with Title III. Defendants’ motion to suppress that
evidence will, therefore. be denied.

ey enn ee pant

Defendants raised various challenges to the legality of the Dillon's
Tavern intercepts. In reviewing defendants’ attacks, the Magistrate
Judge concluded that Title [I's particularity requirements, as provided
in section 2518(4)(b), were not met. See Report and Recommendation
at 36-40. Therefore, he recommended that the interceptions recorded
as a result of the April 17, 1992 warrant. and its ten extensions, be
suppressed. See id, at 40, 48. The government has filed timelv
objections to the Magistrate Judge's recommendation of suppression.’
See Government's Objections to Magistrate Judge's Report and
Recommendation with Regard to Defendants’ Joint Motion to
Suppress Wire and Oral Communications Intercepted by Electronic
Surveillance ("Government's Objections").

1. Particularity Requirements

Section 25 18(4)(b) states:

Each order authorizing or approving the interception of anv
wire, oral, or electronic communication under this chapter
shall specifv—-

the nature and location of the communications facilities as to
which, or the place where, authority to intercept is granted. .

In analyzing these requirements, the Magistrate Judge found that the
April 17, 1992 warrant failed to adequately describe "the nature . . .

3 Defendants have also objected to various findings of the Magistrate Judge
in regard to the Dillon's Tavern interceptions. However, the Court will only address
these objections if it does not adopt the Magistrate Judge's recommendation of
suppression.

A37

of the communications facilities as to which . . . authority to intercept
is granted." See Report and Recommendation at 36.‘ In particular,
the Magistrate Judge concluded that it was unclear whether the
warrant authorized the interception of oral communications occurring
inside Dillon's Tavern or of wire communications occurring over a
telephone inside Dillon's Tavern. See id, at 36-40. The government
objects to these findings.

Although the government objects to the Magistrate Judge's
conclusion, the government agrees with the standard of review
announced by the Magistrate Judge. See Government's Objections at
3-4. The Magistrate Judge reasoned that a court reviewing a warrant
through the lens of section 2518(4)(b) should use an objective
standard:

The Court must look at the warrant to determine if a

reasonably prudent law enforcement officer, reading the

warrant with some diligence, would understand . . . the nature
and location of the communication facilities or the place
where communications were to be intercepted, as required by

18 U.S.C. [section] 2518(4){b). Nothing should be left to the

discretion of the officer executing the warrant.

Report and Recommendation at 35 (citing Marron v. United States,
275 U.S. 192, 196 (1927)). The government urges the Court to apply
this standard and determine that the warrant does indeed sufficiently
particularize the nature of the communication facilities as to which
authority to intercept was granted. See Government's Objections at 4-
5.

The Court turns to the warrant. Its title is unambiguous:

IN RE: THE APPLICATION OF THE HAMPDEN

4 The Magistrate Judge also found that the warrant adequately
particulanized the type of communication sought to be intercepted. See Report and
Recommendation at 35-36; see also Vol. I, at 4-5 (authorizing interception of
communications relating to various offenses). Moreover, he determined that the
warrant sufficiently detailed the location of the communication facilities which
were to be the subject of the electronic surveillance. See Report and
Recommendation at 36; see also Vol. I, at 4 (detailing location of Dillon's Tavern).

A38

COUNTY DISTRICT ATTORNEY FOR AN ORDER
AUTHORIZING THE INTERCEPTION OF ORAL

COMMUNICATION OF REX W. CUNNINGHAM JR

AND OTHERS KNOWN AND UNKNOWN WITHIN AN
ESTABLISHMENT KNOWN AS DILLONS TAVERN

Vol. I, at | (emphasis added). Moreover, the warrant clearly speaks
of oral communications. See Vol. I. at 1-7. That is, the warrant was
sought to authorize "the interception of oral communications:"
probable caused existed to believe that “oral communications"
regarding named offenses would be obtained; and "these oral
communications will concern the details of the [illegal gambling]
system... ." Vol. I, at 1-2.

However, after page two of the warrant, there is no further
mention, at least explicitly, of oral communications. Instead, wire
communications appears. "[T]he interception of communications from
these telephones will provide evidence of these violations." Vol. I, at
3. Further on, the warrant expressly orders the Hampden County
District Attorney and law enforcement officers to "proceed forthwith
. . . With the necessary interception equipment to intercept wire
communications of Rex W. Cunningham Jr." Vol. I, at 4. Later,
"{T]his authorization to intercept wire communications shall be
executed as soon as practicable... ." Vol. I. at 5. Finally, the
penultimate sentence of the warrant orders that A.D A. Picknally shall
keep Judge Sweeney apprised of the progress that has been made
towards the goal "of this wiretap... ." Vol. I, at 7.

The government rightly contends that, notwithstanding these
references to wire communications, other language in the warrant is
consistent with oral interception. For example, the warrant states.
"There is probable cause to believe that Dillons Tavern and locations
within Dillons Tavern are being used by Rex W. Cunningham Jr. _ .
“" Vol. I, at 2-3. Similarly, the title of the warrant speaks of
interceptions "within an establishment known as Dillons Tavern."
Vol. I, at 1. The government maintains that oral communications
occur at or “within” a certain location while wire communications

A39

occur over specified telephone lines.’ See Government's Objections at
9.

Continuing, the government points to the warrant's language that
cavesdropping was limited to "such time that physical surveillances
place Rex W. Cunningham within said building involved in
communications with others known and unknown. ___" See
Government's Objections at 12: see also Vol. I, at 4. If the warrant
were directed at wire communications, the argument goes, this
limitation would not have dealt with observations of Cunningham
merely conversing at Dillon's Tavern, but rather would have been
further limited to times when C unningham was inside Dillon's Tavern
using a telephone. See Government's Objections at 12. Likewise, the
government claims that if a wire intercept were intended, the warrant's
order that "the identities of all parties who communicate within this
establishment shall be reduced to writing . . ." would have specified
communications over telephones. See Government's Objections at 15-
16: see also Vol. I, at 6A. And, the government looks to the warrant's
restriction that "interceptions are to occur only at those times when
police surveillances can place Rex W. Cunningham Jr. at the location
known as Dillons Tavern where the intercepting device is installed."
Vol. I, at 6. "[W]here the intercepting device is installed" clearly, in

5 A comparison of the definitions of wire communications and oral
communications seems to bear out the government's distinction. Wire
communications is defined, in part, as

any aural transfer made in whole or in part through the use of
facilities for the transmission of communications by the aid of
wire, cable, or other like connection between the point of origin
and the point of reception... .

18 U.S.C. § 2510(1). Oral communications is defined, in part, as
any oral communication uttered by a person exhibiting an

expectation that such communication is not subject to
interception under circumstances justifying such expectation.

18 U.S.C. § 2510(2).

the government's view, references Dillon's Tavern.

Perhaps the government's sharpest arrow is its asseveration that
the warrant here is simply inconsistent with a warrant authorizing a
telephone tap. First, the warrant contains a lengthy description of the
location of Dillon's Tavern. Vol. I, at 4. Such wording, the
government argues, is only necessary for an oral intercept since the
Statute requires a description of the "place where, authority to intercept
is granted." See Government's Objections at 10; see also 18 U.S.C.
§ 2518(4)(b). For wire intercepts, the government continues, the
Statute mandates specification of "[T]he nature. ___ of the
communications facilities as to which _. authority to intercept is
granted." See Government's Objections at 10-11: see also 18 U.S.C.
3 2518(4)(b). The nature of the communications facilities, the
government asserts, is the telephone number of the targeted wire. See
Government's Objections at 10-11. The warrant here was devoid of
any telephone numbers.
Next, the government juxtaposes the Dillon's Tavern warrant with
the warrant authorizing the cellular telephone intercepts. There. the
language merely stated that surveillance was authorized for,

wire communications of Rex W. Cunningham Jr and others

yet unknown. occurring over the telephone numbered (413)

531-4994 and (413) 531-3188, which are located within

motor vehicles in the possession of or under the control of

Rex W. Cunningham ... .

Vol. III, at 646. Again. the government maintains that no description
of the location of the telephones is necessary when tapping a
telephone. See Government's Objections at 11. Rather, the telephone
number alone suffices. Moreover. when tapping the cellular
telephones. like with all telephone taps, entry into the car where the
cellular telephones were located was not necessary. See Vol. III. at
646. Here. however. the warrant authorized a secret entry into
Dillon's Tavern "in order to install the necessary interception
equipment." Vol. I. at 4.

After review, the Court has no doubt that the law enforcement
personnel intended to secure a warrant authorizing an oral intercept.

Ad]

However, the Court reiterates that the warrant is to be reviewed to
determine what a reasonably prudent law enforcement officer, reading
the warrant with some diligence, would understand that he was
authorized to intercept, oral communications or wire communications.
Although the Court agrees with most of the reasoning proffered by the
government, it cannot state that a reasonably prudent officer, reading
the warrant with some diligence, would conduct the mental gymnastics
that the government undertakes in eighteen pages of rationalizing and
conclude that oral interception, and not wire interception, was
authorized. In fact, Trooper Alben--certainly a reasonably prudent
law enforcement officer--testified that, in regard to the application for
the warrant, "I don't deny the fact that the words become confusing."
Log II, at 398. The Court sees no less confusion with the warrant
itself.

Nor does the Court believe that the sloppy wording--what the
government labels “clerical errors"--amounts to a mere technical
violation of Title III. Rather, the Court cannot help but to wonder
whether Judge Sweeney was misled as to the type of communications
which were to be intercepted. Cf United States v. Shields, 783 F.
Supp. 1058, 1087 (N.D. Ill. 1991) (any deficiency was minimal
because situation at hand was not type where issuing judge was
misinformed or misled). Although Trooper Alben's affidavit may not
have spoken of wire intercepts, A.D.A. Picknally's application
contained numerous references to wire communications. See Vol. I.
at 8-21. Moreover, District Attorney Bennett's attestation at the end
of the application declared, "The proposed use of electronic
surveillance relative to telephones (413) 531-4994 and (413) 531-3188
is consistent with the overall policy followed in Hampden County to
eliminate this type of illegal gaming combine. . . ."° See Vol. I, at 21.
Finally, the Court cannot accept that Judge Sweeney fully understood
that the surveillance was limited to oral communications in light of the
fact that she ordered New England Telephone Company to provide law
enforcement personnel the technical assistance they needed in regard

6 This declaration was clearly “cut and pasted” from the application for the
warrant for the cellular telephone intercepts. See Vol. III, at 664.

A42

to the telephone at Dillon's Tavern with assigned number (413) 739-
9212. See Vol. I, at 7A.

At bottom then, the Court concludes that the April 17, 1992
warrant authorizing electronic surveillance at Dillon's Tavern did not
satisfy Title III's particularity requirements. Therefore, defendants’
motion to suppress the evidence obtained as a result of the April 17,
1992 warrant, as well as the derivative evidence obtained as a result
of the ten extension warrants, will be granted.’ See 18 U.S.C. §
2518(10)(a) (if motion to suppress is granted, contents from
intercepted communications, or evidence derived therefrom, shall be
treated as having been obtained in violation of Title III).

2. Remaining Issues

Because the Court will grant defendants’ motion to suppress with
regard to the Dillon's Tavern intercepts, it need not reach defendants’
alternative arguments--lodged in the form of objections to the Report
and Recommendation--that the sealing of the tapes of the intercepts
was improper

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1059%3A1. Public record. Not legal advice.