Appendix — United States v. Chavez

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OCTOBER TERM, 1973

No. 72-1319

UNITED STATES OF AMERICA,

—v.—

ON WRIT OF CERTIORARI TO THE

Supreme Court of the United States

UMBERTO JOSE CHAVEZ, ET AL.

Petitioner,

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

INDEX

Relevant docket entries

Letter of authorization

Wiretap application of February 17, 19711 on

„* „ 7

— of Special Agent Berretta of February 18,

5. Order authorizing interception of wire communications

of February 18, 1971

6 Order authorizing use of pen register or touch tones

decoders of February 18, 1971

7. Wiretap application of February 25, 1971

8. Letter of authorization

9. 8 of Special Agent Beretta of February 25,

10. Order authorizing interception of wire communications

of February 25, 1971

II. Order authorizing use of pen register or touch tone

. decoder of February 25, 1971

8 8 8 SRE 8

12. Indictment

18. Motion to suppress wiretap evidence of April 13, 1972__

14. Affidavit of Sol Lindenbaum of February 9, 1972

15. Affidavit of Harold P. Shapiro of February 9, 1972

16. Affidavit of Henry E. Petersen of February 10, 1972

17. Affidavit of John N. Mitchell of April 20, 1972

18. Affidavit of Philip T. White of June 2, 197222

19. Affidavit of Carl LoPresti of June 5, 1972

20. Memorandum and order of the district court of May 30,

1972

21. Order granting certiorari

8 S 8 8 N 2 88 2

wal

CRIMINAL DOCKET

UNITED STATES DISTRICT COURT

CR-71-406 SAW

THE UNITED STATES

vs.

UMBERTO JOSE CHAVEZ

aka PELON

IRENE CHAVEZ

J AMES FERNANDEZ

ANN FERNANDEZ

OLIVIA MIRAMONTES

aka OLIVIA MONTES

JESSE BUSTAMANTE

ARMANDO RAMIREZ

aka MANDO

CARMEN RAMIREZ

DELORES FERNANDEZ

GEORGE APODACA

MARGARET APODACA

VERNON BACA

FILEMON MIRAMONTES

PEDRO ARAUJO

21:178, 174 Conspiracy to Import and Distri-

bute Heroin;

18:1952 Interstate Travel with the intent to

promote a business Enterprise Involving Nar-

cotics.

Three (3) Counts

—

RELEVANT DOCKET ENTRIES

DATE PROCEEDINGS

May 6 Ord. Indictment filed, B/W to issue to the deft.

, (Pedro Araujo) bail $25,000.00, Summons to issue

to all other defts. ret. 6/3/71 GBH

1. Filed Indictment, Issued summons on all defts.

Bench Warrant as to the deft (Pedro Araujo)

Bail $25,000.00 GBH

Jul 9 18. Filed No of Mo for Bill of Particulars on 13

August 71 at 11:00 A.M.

19. Filed Mo for discovery.

20. Filed Mo for Supplemental Bill of Particulars.

9 21. Filed Mo for supplemental Bill of Particulars

as to Umberto Jose

9 22. Filed Points and Auths in suppt of defts mo

for discovery and Inspection

Jul 9 23. Filed No of Mo for discovery on 18 Aug 71 at

11:00 A.M.

24. Filed ORD appointing counsel.

Jul 9 ORD aft hrg-defts Mo for discovery & Mo

for bill of particulars ORD filed Govt response

to mos to be filed by 8/6/71-case con’t to 8/13

at 11:00 AM for plea and mos as to all defts.

Jul 29 27. Filed Govt’s response to defts Mo for Dis-

covery.

29 28. Filed Govt’ts Mo and Memo for discovery.

29 29. Filed Govt’s response to Mo for Defts for bill

of particulars.

DATE

PROCEEDINGS

1971

Dec 15

Feb

79.

81.

ORD: defts Chavez, Chavez, Apodaca, Fer-

nandez, Fernandez, Miramontes, Bustamante,

Ramirez, Ramirez, Fernandez, Apodaca, Baca

pres w/att. all defts Plead NOT Guilty,

Ord, Disc to be completed 20 days before trial,

all motions to be filed 2 weeks before hearing

date, response 1 week before hearing date,

Defts need not appear for motions, Ord: case

set for July trial on 4/3/72 at 9:30, deft

Olivia Miramontes to appear 12/16/71

Filed ORD dismissing Indictment as to File-

mon Miramontes.

Filed No of mo and mo for discovery on

2-38-72 as to George Apodoca.

ORD aft hrg-Apodaca pres w/attny-defts mo

for discovery granted—4-6-72 final day for

hrg mos-case con’t to 5-8-72 at 9:30 am for

jr. trial. SAW

Filed ORD granting mo for discovery of deft

George Apodaca. SAW

Filed pltfs memo of discovery.

Filed ORD re matters of disc not stipulated

to by all parties—all mos DENIED; Govt to

provide agreed disc material no later than 20

days prior to trial; Defts’ mo for Bill of Par-

ticulars is GRANTED as to requests 4, 5 & 6.

All other requests are DENIED. —SAW

Filed deft APODACA’s applic for ord unseal-

ing certain material for incl in Ct file

Filed ORD for unsealing of docs & papers in

possession of Clerk so they may be filed as

part of record in this case —SAW

—

DATE PROCEEDINGS

Mar 7 82. Filed Application of Maurice K. Merten in

supp of ord authorizing interception of wire

communications of Pelone“ et al

83. Filed Application of M. K. Merten in supp of

ord authorizing interception of wire communi-

cations of U. Chavez et al

Filed afdvt of Maurice K. Merten

Filed afdvt of Peter B. Niblo

Filed afdvt of Julius Beretta

Filed ORD ext time to 4-27-72 for filing all

pre-tr mos, responses by 5-4-72; hrg of pre-tr

mos before SAW 5-11-72/2:15; Trial set for

5-30-72 before Judge FREY.

Apr 13 89. Filed deft APODACA’s not. & mo to suppress

evid, 5-11-72/2:15 (w/supptg docs & exhibits

attached)

Apr 27 90. Filed mo by all defts to suppress evidence

(w/pts & auths)

91. Filed deft FERNANDEZ (Dolores) not. &

mo for supp! bill of particulars & for per-

formance of stip discovery by pltf, 5-11-72/

2:15

. Filed defts’ not. & mo to suppress wiretap

evidence, 5-11-72/2:15

. Filed afdvt of serv of deft’s mo to suppress

Filed pltf’s mo for addtl time to file pre-tr

94.

4 97. Filed Govt Response to defts’ mo to suppress

98.

38 82

evidence

Filed Govt’s Opp to deft’s mo to suppress

. Filed ORD: time for filing response to defts’

mo to suppress is ext to 5-9-72 —SAW

DATE

PROCEEDINGS

1972

125.

131.

132.

136.

137.

138.

Filed Pltf's Opp to defts’ mo to suppress

wiretap evidence

Filed clerk’s not. cont’g case from 5-11 to

5-18-72/2:15

Filed Reply to Opp of USA to defts’ mo to

_ suppress

Filed afdvt of serv of Reply to pltf’s opp to

mo to suppress

Filed Reply to Opp of USA to defts’ mo to

suppress (same as docket +1 but on legal

size paper)

Filed Traverse to Gov’t Response to defts’

mo to suppress

ORD: Mo to suppress wiretap evidence—

GRANTED; Mo for Supp! Bill of Particulars

—GRANTED; Mo for related case status

of CR-72-217—GRANTED (CR-72-217 to

trial CR-7 1-406) —SAW

Filed ORD suppressing wiretap evidence &

fruits thereof —SAW

Filed Memo & ORD: wiretap communica-

tions intercepted purs to ords of Ct dtd

2-18-71 & 2-25-71, & fruits thereof, are

suppressed. —SAW

Filed pltf’s Memo of Discovery (afdvts of

Carlo Lo Presti & Phillip T. White attached)

Filed pltf’s not. of appeal from ord suppress-

ing evidence

Mailed not. to counsel & 9th CCA of filing

appeal

Filed Designation of record on appeal.

MADE, MAILED Record on Appeal to 9th

CCA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CR. 71-406-SAW

No. 5

[Filed Mar. 7, 1972, C. C. Evensen, Clerk]

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

APPLICATION

Maurice K. Merten, an Attorney of the Organized

Crime and Racketeering Section, San Francisco Strike

Force, United States Department of Justice, being duly

sworn states:

1) This sworn ee is submitted in support of

an Order authorizing the interception of wire communi-

cations. This application has been submitted only after

lengthy discussions concerning the necessity for such ap-

plication with various officials of the Organized Crime

and Racketeering Section, United States Department of

Justice, Washington, D. C., together with Agents of the

Bureau of Narcotics and Dangerous Drugs.

2) He is an “investigative or law — officer

—of the United States” within the meaning of Section

2510(7) of Title 18, United States Code, that is—he is

an attorney authorized by law to prosecute or partici-

pate in the prosecution of offenses enumerated in Section

2516 of Title 18, United States Code.

3) Pursuant to the powers conferred on him by Sec-

tion 2516 of Title 18, United States Code, the Attorney

General of the United States, the Honorable John N.

Mitchell, has specially designated in the proceeding the

Assistant Attorney General for the Criminal Division of

the United States Department of Justice, The Honorable

Will Wilson, to authorize affiant to make this application

for an Order authorizing the interception of wire com-

— | 7

munications. This letter of authorization signed by the

Assistant Attorney General is attached to this applica-

tion as Exhibit A.

4) This application seeks authorization to intercept

wire communications of Umberto Jose Chavez, also known

as “Pelone”, Lionel Medina Costilla, also known as Danny

Costilla, Jose Ybarra-Rivera, and others as yet unknown,

concerning the offenses enumerated in Section 2516 of

Title 18, United States Code; offenses involving the ille-

gal importation, receipt, transportation, concealment, dis-

tribution, and sale of narcotic drugs not in or from the

original stamped package, and a conspiracy to commit

such offenses, in-violation of Section 174, Title 21, United

States Code, and Sections 4704(a) and 7237(a) of Title

26, United States Code, which have been committed and

are being committed by Umberto Jose Chavez, Lionel

Medina Costilla, Jose Ybarra-Rivera, and others as yet

unknown.

5) He has discussed all the circumstances of the above

offenses with Special Agent Julius Beretta of the San

Francisco, California, office of the Bureau of Narcotics

and Dangerous Drugs, who has directed and conducted

the investigation herein, and has examined the affidavit

of Special Agent Julius Beretta (attached to this appli-

cation as Exhibit B and incorporated by reference here-

in) which alleges facts therein in order to show that:

A. There is probable cause to believe that Umberto

Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera,

and others as yet unknown have committed and are com-

mitting offenses involving the illegal importation, receipt,

transportation, concealment, distribution, and sale of nar-

cotic drugs not in or from the original stamped package

and a conspiracy to commit such offenses in violation of

Section 174, Title 21, United States Code, and Sections

4704(a) and 7237(a) of Title 26, United States Code.

B. There is probable cause to believe that the wire

communications of Umberto Jose Chavez, Lionel Medina

Costilla, Jose Ybarra-Rivera, and others as yet unknown,

concerning these offenses will be obtained through their

interception, authorization for which is herein applied.

In particular, these wire communications will concern:

Umberto Jose Chavez to

as yet unknown outside

quantities of heroin to be

imported into the United States.

2. The communications between Umberto Jose Chavez,

Lionel Medina Costilla, Jose Ybarra-Rivera, and others

as yet unknown both inside and outside the United

States, through which a system of couriers transporting

from the United States-Mexican border to North-

- California is coordinated.

The communications between Umberto Jose Chavez

geographical area of Northern California,

tities of heroin illegally imported into the

656-7178, subscribed to in the name of Umberto Jose

at 220 Carmelita Place, Fremont,

used and is being used by Umberto

i Medina Costilla, Jose Ybarra-Rivera,

yet unknown, in connection with the of-

described in 5(A) above.

ception of wire or oral communications involving any of

the same persons, facility, or place specified herein.

WHEREFORE, your affiant believes that probable

cause exists to believe that Umberto Jose Chavez, Lionel

Medina Costilla, Jose Ybarra-Rivera, and others as yet

unknown, are engaged in the commission of offenses in-

volving the illegal importation, receipt, transportation,

concealment, distribution, and sale of narcotic drugs not

in or from the original stamped package and a conspir-

such offenses in violation of Section 174,

Place, Fremont, California, has been used and is being

used by Umberto Jose Chavez, Lionel Medina Costilla,

Jose Ybarra-Rivera, and others as yet unknown, in con-

nection with the offenses described in 5(A) above, and

that communications of Umberto Jose Chavez, Lionel

Medina Costilla, Jose Ybarra-Rivera, and others as yet

unknown, concerning these offenses will be intercepted to

and from the above described telephone and that normal

investigative procedures reasonably appear unlikely to

succeed.

On the basis of the allegations contained in this appli-

cation and upon the basis of the affidavit of Special Agent

Julius Beretta, Bureau of Narcotics and Dangerous

Drugs, which is attached hereto and made a part thereof,

affiant requests this Court to issue an Order pursuant to

the power conferred on it by Section 2518 of Title 18,

United States Code, authorizing Special Agents of the

Bureau of Narcotics and Dangerous Drugs of the United

States Department of Justice, and Agents of the United

States Customs Agency Service, Bureau of Customs, De-

partment of Treasury, to intercept wire communications

to and from the above described telephone until commu-

nications are intercepted which reveal the manner in

which Umberto Jose Chavez, Lionel Medina Costilla, Jose

Ybarra-Rivera, and others yet unknown, illegally import,

receive, transport, conceal, distribute and sell narcotic

drugs not in or from the original stamped package and

conspire to commit such offenses, in violation of Section

174, Title 21, United States Code, and Sections 4704 (a)

and 7237(a) of Title 26, United States Code, and which

reveal the identity of their confederates, their places of

operation and the nature of the conspiracy involved

therein, for a period of twenty (20) days from the date

of this Order, whichever is earlier.

The affiant also requests that the Court direct that the

Pacific Telephone and Telegraph Company, a communi-

cations common carrier as defined in Section 2510(10) of

Title 18, United States Code, shall forthwith furnish the

applicant and the Bureau of Narcotics and Dangerous

Drugs all information, facilities, and technical assistance

necessary to accomplish the interception unobtrusively and

with a minimum of interference with the services that

such carrier is according the persons whose communica-

tions are to be intercepted, the furnishing of such facili-

ties or technical assistance by the Pacific Telephone and

Telegraph Company to be compensated for by the appli-

cant or the Bureau of Narcotics and Dangerous Drugs at

the prevailing rates.

/s/ Maurice K. Merten

MAURICE K MERTEN

Attorney

Department of Justice

San Francisco, California

Subscribed and sworn before me this 17 day of Febru-

ary 1971

/s/ Oliver J. Carter

United States District Judge

Assistant Attorney General

Criminal Division

DEPARTMENT OF JUSTICE

Washington 20530

Feb. 18, 1971

Mr. Maurice K. Merten

Special Attorney

San Francisco Strike Force

San Francisco, California

Dear Mr. Merten:

This is with regard to your request for authorization

to make application pursuant to the provisions of Section

2518 of Title 18, United States Code, for an Order of

the Court authorizing the Bureau of Narcotics and Dan-

gerous Drugs and the Bureau of Customs, United States

Department of the Treasury, to intercept wire communi-

cations to and from telephone number 415-656-7173, lo-

cated at 220 Carmelita Place, Fremont, California, in

connection with the investigation into possible violations

of Title 21, United States Code, Section 174, and Title

26, United States Code, Sections 4704 and 7237, by Um-

berto Jose Chavez, Lionel Medina Costilla, Jose Ybarra-

Rivera, and others as yet unknown. - __

I have reviewed your request and the facts and cir-

cumstances detailed therein and have determined that

there exists probable cause to believe that Umberto Jose

Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera, and

others as yet unknown have committed, are committing,

or are about to commit offenses enumerated in Section

2516 of Title 18, United States Code, to wit: violations

of Title 21, United States Code, Section 174, and Title 26,

United States Code, Sections 4704 and 7287. I have fur-

ther determined that there exists probable cause to be-

lieve that the above persons make use of the described

facility in connection with those offenses, that wire com-

munications concerning the offenses will be intercepted,

and that normal investigative procedures reasonably ap-

pear to be unlikely to succeed if tried.

Accordingly, you are hereby authorized under the power

specially delegated to me in this proceeding by the Attor-

ney General of the United States, the Honorable John

N. Mitchell, pursuant to the power conferred on him by

Section 2516 of Title 18, United States Code, to make

application to a judge of competent jurisdiction for an

Order of the Court pursuant to Section 2518 of Title 18,

United States Code, authorizing the Federal Bureau of

Narcotics and Dangerous Drugs and the Bureau of Cus-

toms, United States Department of the Treasury, to in-

tercept wire communications from the facility described

above, for a period of twenty (20) days.

Sincerely,

/s/ Will Wilson

WILL WILSON ™.. __

Assistant Attorney General

—

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. 5

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

AFFIDAVIT IN SUPPORT OF APPLICATION

Julius Beretta, Special Agent, Bureau of Narcotics and

Dangerous Drugs, San Francisco Office, United States

Department of Justice, being duly sworn, states:

1) I am a Special Agent with the Bureau of Narcotics

and Dangerous Drugs and have been so employed for

two and one half years, during which I have been as-

signed to the San Francisco, California, Office of the Bu-

reau of Narcotics and Dangerous Drugs, United States

Department of Justice. I am an “investigative or law

enforcement officer—of the United States” within the

meaning of Section 2510(7) of Title 18, United States

Code, that is—I am an officer of the United States who

is authorized by law to conduct investigation of and to

make arrests for offenses enumerated in Section 2516,

Title 18, United States Code.

2) This affidavit. seeks authorization to intercept wire

communications to and from telephone number 415-656-

7178, subscribed to in the name of Umberto Jose Chavez,

and located at 220 Carmelita Place, Fremont, California,

in connection with the commission of certain offenses

enumerated in Section 2516 of Title 18, United States

Code, that is offenses involving the importation, receipt,

transportation, concealment, distribution, and sale of ille-

gal narcotic drugs not in or from the original stamped

package and a conspiracy to commit such offenses in vio-

lation of Section 174, Title 21, United States Code, and

Sections 4704(a) of Title 26, United States Code.

8) I have participated in the investigation of possible

violations of the Federal Drug Laws listed in paragraph

(2) and committed by Umberto Jose Chavez, also known

—

as Pelone“, Lionel Medina Costilla, also known as Danny

Costilla, Jose Ybarra-Rivera, and others as yet unknown.

As a result of my personal participation in these inves-

tigations and from the reports made to me by other Spe-

cial Agents of the Bureau of Narcotics and Dangerous

Drugs and from other law enforcement officers, and their

official reports, of Fremont, California, Union City, Cali-

fornia, and elsewhere, I am familiar with all the circum-

stances of the offenses. On the basis of that familiarity,

I alleged the facts contained in the following numbered

paragraphs show that:

A. There is probable cause to believe that Umberto

Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera,

and others as yet unknown, have committed and are com-

mitting offenses involving the illegal importation, receipt,

transportation, concealment, distribution, and sale of nar-

cotic drugs not in or from the original stamped package

and a conspiracy to commit such offenses, in violation of

Section 174, Title 21, United States Code, and Sections

4704 (a) and 7237 (a), Title 26, United States Code.

B. There is probable cause to believe that wire com-

munications of Umberto Jose Chavez, Lionel Medina Cos-

tilla, Jose Ybarra-Rivera, and others as yet unknown,

concerning these offenses will be obtained through their

interception, authorization for which is herein applied.

In particular these wire communications will concern:

1. The placing of orders by Umberto Jose Chavez to

Jose Ybarra-Rivera and others as yet unknown outside

the United States, for large quantities of heroin to be

illegally imported into the United States.

2. The communications between Umberto Jose Chavez,

Lionel Medina Costilla, Jose Ybarra-Rivera, and others

as yet unknown both inside and outside the United States

through which a system of couriers transporting heroin

from the United States-Mexican border to Northern Cali-

fornia is coordinated.

8. The communications between Umberto Jose Chavez,

Lionel Medina Costilla, and others as yet unknown with-

in the State of California, concerning the distribution,

to a large geographical area of Northern California, of

ad .

large quantities of heroin, illegally imported into the

United States from Mexico.

C. Normal investigative procedures reasonably appear

unlikely to succeed if tried.

D. There is probable cause to believe telephone 415-

656-7173, subscribed to in the name of Umberto Jose

Chavez and located at 220 Carmelita Place, Fremont,

California, has been used and is being used by Umberto

Jose Chavez in connection with the offenses described in

paragraph 3(A) above.

FACTS AND CIRCUMSTANCES

PROBABLE CAUSE TO BELIEVE THAT UMBER-

TO JOSE CHAVEZ IS USING TELEPHONE NUM-

BER 415-656-7173 IN CONNECTION WITH THE

COMMISSION OF OFFENSES INVOLVING THE IL-

LEGAL IMPORTATION, RECEIPT, TRANSPORTA-

TION, CONCEALMENT, DISTRIBUTION, AND SALE

OF NARCOTIC DRUGS NOT IN OR FROM THE

ORIGINAL STAMPED PACKAGE IN VIOLATION OF

SECTION 174, TITLE 21, UNITED STATES CODE,

AND SECTIONS 4704 (a) AND 7237 (a) OF TITLE

26, UNITED STATES CODE.

4) Umberto Jose Chavez, alias Pelone, alias Humberto

Jose Chavez, alias Jose Umberto Chavez, alias Bob Cha-

vez, was born February 27, 1936, in Encinitas, Califor-

nia and is a male of Mexican extraction. He is 5’9” tall,

185 pounds, black hair,,brown eyes, black moustache, and

walks with a pronounced limp. Chavez is further iden-

tified by FBI number 191 720 C, California CII number

1 010 524, Union City Police Department number I67-

0794, and Fremont Police Department number 5765. Cha-

vez has been known to the former Federal Bureau of

Narcotics and present Bureau of Narcotics and Danger-

ous Drugs since April of 1963 as a major narcotics vio-

lator. On April 24, 1963, Chavez was arrested for pos-

session of heroin for sale, possession of heroin, and pos-

session of marijuana. On December 16, 1963 he was sen-

tenced on the possession of heroin for sale and the pos-

. 7

session of marijuana charges, and received a sentence of

nine months in the Alameda County jail, three years

suspended State prison, and three years probation. On

December 18, 1965, Chavez was arrested by local authori-

ties for possession of marijuana. He received a sentence

of 10 days in the Alameda County jail to be served on

the week-ends for this offense. On April 26, 1968, Chavez

was arrested by the Union City Police Department for

possession of heroin for sale and furnishing marijuana

to a minor. He pled guilty to furnishing marijuana to

a minor and was sentenced March 3, 1968 to one year

in the Alameda County jail, three years suspended State

prison, and three years probation. The charge of pos-

session of heroin for sale was dismissed against Chavez

when a female associate pled guilty to the charge. Cha-

vez was also arrested in 1966 and 1970 for failing to

of San Ysidro, California. Chavez resides with his wife

Irene at 220 Carmelita Place, Fremont, California.

5) Lionel Medina Costilla, alias Danny Costilla, is a

Mexican male, born February 16, 1941, in San Marcos,

Texas. He is 5’6” tall, weighs 135 pounds, has a medium

build, black hair and brown eyes. Costilla can further

be identified by Union City Police Department number

J 392463 and social security number 311-34-8075. Cos-

tilla lives at 33537 7th Street, Union City, California

and is employed by the “B” Disposal Company, Fremont,

California. On October 7, 1970, he was arrested for pos-

session of heroin for sale in Union City and this case is

still pending court action. At the time of his arrest, Cos-

tilla had in his possession approximately 18 ounces of

heroin contained in “Trojan” brand rubber prophylactics.

6) Jose Ybarra-Rivera is a male of Mexican extrac-

tion, birth and citizenship. He is approximately 5’8” tall,

170 pounds, balding with gray hair, he is presently re-

siding at 1594 Obregon, Culiacan, Sinaloa, Mexico.

7) Confidential informant number 1, a Mexican citi-

zen and former resident of the Culiacan area, Sinaloa,

has been providing me with information regarding crim-

inal activities since October 1969. The information fur-

nished by informant number 1 has in the past been

reliable and accurate and has been corroborated

my own independent investigations. On one occasion

information furnished by informant number 1 resulted

in the arrest and conviction of an individual for viola-

tion of the Federal Narcotics Laws. Informant number

1 advised me that he has in the past had personal con-

tact with Jose Ybarra-Rivera in Culiacan, Sinaloa;

Mexico, and that on January 18, 1971, he contacted Jose

Ybarra-Rivera and discussed the purchase from him

(Jose Ybarra-Rivera) of kilogram quantities of heroin.

In this conversation Jose Ybarra-Rivera related that he

could supply such quantities of heroin.

8) Rudolpho Ybarra-Rivera, also a resident of Culia-

can, Sinaloa, Mexico, is the brother of Jose Ybarra-

Riverd. On January 18, 1971, Joseph Baca, Assistant

Regional Director, Region No. 14, advised me that on

December 19, 1969, he interviewed David Romero-Perea,

an individual on whom the Bureau of Narcotics and

Dangerous Drugs files show an extensive narcotics rec-

ord. During the course of this discussion, David Romero-

Perea related that Rudolpho Ybarra-Rivera was his

source of supply for narcotics. David Romero-Perea is

presently a Federal fugitive.

9) Sgt. Stannard B. Jensen, Officer in Charge, Vice

Control Section, Fremont Police Department, Fremont,

California, advised me of the following:

A. In April of 1970 a Fremont, California pharmacy

contacted him (Sgt. Jensen) and reported that a male

Mexican was buying an unusually large amount of non-

lubricated “Trojan” brand rubber prophylactics approxi-

mately every 10 days and that this pattern had been

established since March, 1970.

B. When he (Sgt. Jensen) showed the pharmacy em-

ployees a number of photographs of different Mexican-

American suspects, they immediately identified Umberto

Jose Chavez as the purchaser they had reported.

C. From April to August of 1970 this pharmacy con-

tinued to report to him (Sgt. Jensen) each time Umberto

Jose Chavez purchased rubber prophylactics, and as the

investigation continued, the pharmacy employees reported

that a second Mexican male, operating an automobile

N 18

with California license number YAY 355, often accom-

panied Chavez during these purchases. During this pe-

riod this pharmacy reported that Chavez had purchased

1,152 rubber prophylactics.

10) It has been determined through records of the

Department of Motor Vehicles, Sacramento, California,

that California registration YAY 355 is registered in

the name of Lionel Medina Costilla for a 1968 Dodge

Station Wagon.

11) Sgt. Jensen further advised me that on January

12, 1971, he was contacted by another Fremont, Cali-

fornia, pharmacy which reported that a male Mexican

had, on that day, purchased 482 non-lubricated “Shiek”

brand rubber prophylactics and 144 non-lubricated “Tro-

jan” brand rubber prophylactics and that when he (Sgt.

Jensen) showed the pharmacy employees photographs of

Umberto Jose Chavez they identified Chavez as the pur-

chaser of the rubber prophylactics.

12) Through my experiences as a Special Agent of the

Bureau of Narcotics and Dangerous Drugs and my asso-

ciation with other Agents of the Bureau of Narcotics

and Dangerous Drugs, I know that non-lubricated pro-

phylactics are commonly used to package bulk heroin.

13) Sgt. Jensen, Officer in Charge, Vice Control Sec-

tion, Fremont Police Department, Fremont, California,

has also advised me that on October 20, 1970, he (Sgt.

Jensen) was furnished information by confidential in-

formant number 2 who in the past provided information

which, when corroborated by an independent investiga-

tion by him (Sgt. Jensen) had proven accurate and reli-

able and resulted in the arrest of an individual on a

felony narcotic charge, which case is still pending. In-

formant number 2 related that he (informant number

2) had known Umberto Jose Chavez for more than a

year and they had had numerous conversations during

the period July 1970 to August 1970 regarding Umberto

Jose Chavez’s illegal drug activities. During these con-

versations Umberto Jose Chavez related that he received

120 ounces of high grade heroin in approximately three

week intervals, that the heroin is adulterated by him

(Chavez) three times and is packaged in rubber prophy-

lactics, and that it is then distributed in the California

cities of Tracy, Stockton, Sacramento, Oakland, and San

Francisco.

14) On January 6, 1971, Detective Sgt. Kane, Union

City Police Department, Union City, California, advised

me that confidential informant number 3 had provided

him with information regarding criminal activities which

when verified by him (Detective Sgt. Kane) resulted in

the arrest and conviction of an individual for burglary.

15) On January 14, 1971, I contacted Charles Foster,

Under-Sheriff, Siskayou County, who was formerly em-

ployed by the Union City Police Department Union City,

California. Under-Sheriff Foster told me that from 1966

to 1968, while he was a police officer for the Union City

Police Department, informant number 3 had provided

him with information on three different occasions which,

when verified, was found to be true on each occasion and

which aided in the arrest and conviction of three indi-

viduals; one on a felony narcotics charge, one for armed

robbery, and one for a check violation.

16) On January 6, 1971, informant number 3 fur-

nished me with the following information:

A. That he (informant number 3) had, over the past

year, purchased heroin from Umberto Jose Chavez ap-

proximately 100 times and the last purchase he made

was during the period December 20 to 31, 1970.

B. Each time he (informant number 3) purchased

heroin from Chavez it was packaged in non-lubricated

rubber prophylactics.

C. That he (informant number 3) would order the

heroin by calling Umberto Jose Chavez at his (Chavez’s)

residence at Union City, California and the place and

time of the transaction would then be set. When he (in-

formant number 3) and Chavez would meet at the time

and place, Chavez would often deliver the heroin imme-

diately. If immediate delivery was not made, Chavez

would drive him (informant number 3) around in order

to avoid detection and, after a period of time, direct him

(informant number 3) to a location where the heroin

was hidden.

the early part of 1970 Umberto Jose Cha-

(informant number 3) what Chavez

anuary 15, 1971, Detective Sgt. Kane, Union

Department, Union City, California, advised

that he had, on that date, contacted informant num-

been told by informant number 8 that the

time he (informant number 3) had purchased heroin

Chavez, he (informant number 8) had called Cha-

at telephone number 489-0869, and that Chavez peri-

odically had his telephone number changed.

18) From surveillance by Agents of the Bureau of

1152.5

BRS

tely .

phone located at that residence and subscribed to in the

name of Florentino Chavez was assigned the following

numbers: 415-471-1193 changed July 13, 1970 to 415-

471-4288, changed September 17, 1970 to 415-489-0869,

changed January 4, 1971 to, and presently, 415-489-0505.

On or about December 11, 1970, Chavez and his wife

moved from 33642 7th Street, Union City, California,

to 220 Carmelita Place, Fremont, California, but con-

tinued phone service at the Union City address. On De-

cember 18, 1970, service was initiated for telephone num-

ber 415-656-7173 subscribed in the name of Umberto Jose

Chavez and located at 220 Carmelita Place, Fremont,

;

20) The telephone records maintained by the Pacific

Telephone and Telegraph Company, San Jose, California,

were examined relative to telephone number 415-471-1193,

changed to 415-471-4288, changed to 415-489-0869,

to and presently 415-489-0505 and telephone num-

ber 415-656-7173. These records for the period February

11, 1970 to February 5, 1971 (in the case of 415-489-

0505) and December 18, 1970 to February 5, 1971 (in

the case of 415-656-7173), reflect extensive telephone traf-

fic from those numbers to Culiacan, Mexico and Tijuana,

Mexico, and more than fifty collect calls from pay tele-

phones at San Ysidré, Chula Vista, and San Diego, Cali-

fornia to those numbers. In particular the toll records

A. The long distance telephone traffic over telephone

number 415-656-7173, located at 220 Carmelita Place,

Fremont, California, that telephone located in the new

residence of Umberto Jose Chavez which began service

December 18, 1970, is similar to and a continuation of

the long distance telephone traffic previously carried on

over telephone number 415-471-1193 changed to 415-471-

C. Collect calls from unknown pay telephones in San

Ysidro, Chula Vista, and San Diego, California to tele-

phone 415-471-1198, changed to 415-489-4288, changed

to 415-489-0869, changed to and presently 415-489-0505

were interspersed with calls from that telephone to Mex-

ico, and that same pattern is continuing with telephone

415-656-7173.

D. From January 11, 1971 to February 5, 1971, in

excess of 120 multi-message unit calls were placed from

415-656-7173. Multi-message units reflect calls

to surrounding communities.

21) Attached hereto and made a part thereof are the

following appendices which reflect a portion of the long

distance telephone traffic between California and Mex-

ico conducted over telephone 415-471-1193, changed to

415-271-4288, changed to 415-489-0869, changed to and

presently 415-489-0505 and telephone 415-656-7173.

A. Appendix A-1, a chronological list of long distance

telephone traffic between specific Mexican telephones and

telephone number 415-471-1193, changed to 415-471-4288,

changed to 415-489-0869, changed to and presently 415-

489-0505, from February 11, 1970 to February 5, 1971.

B. Appendix B-1, a monthly summary of long distance

telephone traffic between specific Mexican telephones and

those telephones listed in paragraph 21(A) above from

February 11, 1970 to February 5, 1971.

C. Appendix C-1, a summary of long distance calls

between specific Mexican telephones and those telephones

listed in paragraph 21 (A) above for the period Febru-

ary 11, 1970 through February 5, 1971.

D. D-1, a chronological list of collect calls from un-

known pay telephones in San Ysidro, Chula Vista, and

San Diego, California to those telephones listed in 21 (A)

from February 9, 1970 to February 5, 1971.

E. Appendix A-2, a chronogolical list of long distance

telephone traffic between specific Mexican telephones and

telephone number 415-656-7173 from December 18, 1970

to February 5, 1971.

F. Appendix B-2, a monthly summary of long distance

telephone traffic between specific Mexican telephones and

telephone 415-656-7173 from December 18, 1970 to Feb-

ruary 5, 1971.

G. Appendix C-2, a summary of long distance calls

between specific Mexican telephones and telephone 415-

gt for the period December 18, 1970 to February

5, 1 *

H. D-2, a chronological list of collect calls from un-

known pay telephones in San Ysidro, Chula Vista, and

San Diego, California to telephone 415-656-7173 from De-

cember 18, 1970 to February 5, 1971.

22) The Mexican Telephone numbers have been identi-

fied as follows:

A. 908-885-5054 is subscribed to by the La Sonorita

Grocer, Jose Vasquez Burel, Calle 9A, 776 TTE, Groc.,

East Alvert, Colonia Libertad, Tijuana.

B. 903-386-4640

903-386-4641 are both subscribed to by the Reno

Motel, Dr. Longois Manoguin, owner, Camino Ensenada

500 ESQ. GOB. Lugo Davilla, Tijuana. On January 18,

1971, I contacted Joseph Baca, Assistant Regional Direc-

tor, Region No. 14, Bureau of Narcotics and Dangerous

Drugs, who advised me that from his previous assign-

ment in the former Federal Bureau of Narcotics as a

liason officer between that Bureau and the Mexican Fed-

eral Police, and his present position of Assistant Re-

gional Director, he is familiar with the narcotics traf-

fic conducted between the United States and Mexico. Mr.

Baca told me that the Reno Motel is located a short dis-

tance outside of Tijuana, Mexico, and, in investigations

he participated in, served as a meeting place for drug

buyers awaiting shipments of drugs from the interior

of Mexico.

C. 908-385-2267 is subscribed to by Dr. Septimo Men-

— 704 Bojas, C. P. T. O. V. D. Mira, Tijuana.

903-385-6208 is subscribed to by Maria De Jesus

— Calle 4th Street, 494 Tijuana, Mexico. An

examination of Bureau of Narcotics and Dangerous Drugs

intelligence files indicates that this telephone number,

then subscribed to by the same individual and located at

the same address was used in 1962 by Francisco Campos,

at that time considered by the former Federal Bureau

of Narcotics to be the largest marijuana trafficker in

Tijuana, Mexico.

E. 2-0882 is subscribed to by Jose Ybarra-Rivera,

1594 Obregon, Culican, Sinaloa, Mexico.

F. 2-1117 is subscribed to by the Hotel El Gran, 5th

of February Street, Culiacan, Sinaloa, Mexico.

NORMAL INVESTIGATIVE PROCEDURES

REASONABLY APPEAR UNLIKELY TO SUCCEED

23) Based on my knowledge and experience as a Spe-

cial Agent of the Bureau of Narcotics and Dangerous

two occasions Umberto Jose Chavez reported to Mr.

Chavez) in automobiles of a particular model and color.

On both of those occasions I was a participating agent

in the surveillance of Umberto Jose Chavez and the de-

scriptions of the automobiles were accurate.

29) For the reasons set out here and above, all normal

avenues of investigation are closed and it is my belief

that the only reasonable way to develop the necessary

evidence of violations of Title 21, United States Code,

Section 174, and Title 26, United States Code, Sections

4704 (a) and 7287 (a) by those persons named herein

is to intercept wire communications to and from the tele-

phone described in paragraph (2) above.

30) Therefore, based on the facts related above and

my experience as a Special Agent of the Bureau of Nar-

coties and Dangerous Drugs, I believe and have reason

to believe that probable cause allegations in the above

for authorization to

telephone 415-656-71

Fremont, California.

82) The activities to be telephonically covered are be-

lieved to represent a continuing criminal conspiracy. It

is further believed that communications concerning the

offenses enumerated in paragraph 3 (A) will be con-

ducted over the above described telephone. WHEREFORE

because of the existence of the facts and underlying

circumstances of the continuing investigation listed above .

in paragraphs (4) through (28), I submit that the prob-

able cause as submitted in paragraph 3 (A), 8 (B), and

3 (D) exists and that the investigation as set forth

above has failed to provide evidence necessary to sus-

tain prosecution of all involved individuals for violations

of the offenses enumerated in paragraph 3 (A)and that

extensive normal investigative procedures reasonably ap-

pear unlikely to succeed. It is requested, therefore, that

this Court issue an Order authorizing Special Agents

of the Bureau of Narcotics and Dangerous Drugs and

Special Agents of the United States Customs Agency

Service, Bureau of Customs, Department of Treasury, to

intercept wire communications to and from the above

described telephone until communications are intercepted

which reveal the manner in which Umberto Jose Chavez,

Lionel Medina Costilla, Jose Ybarra-Rivera, and others

as yet unknown, import, receive, transport, conceal, dis-

tribute, and sell narcotics drugs not in or from the orig-

inal stamped package in violation of Section 174, Title

21, United States Code, and Sections 4704 (a) and 7237

(a) of Title 26, United States Code, and which reveal

the identities of their confederates, their places of op-

eration, and the na of the conspiracy involved there-

in, or for twenty (20) days from the date of the Order,

whichever is earlier.

Subscribed and sworn to before me this —— day of

1971.

United States Distriet Judge

APPENDIX A-1

Chronological list of long distance telephone traffic be-

tween telephone 415-471-1193, changed 415-471-4288,

changed to 415-489-0869, changed to, and presently 415-

489-0505, subscribed to in the name of Florentino Chavez

and located at 33642 7th Street, Union City, California,

and Mexico from February 11, 1970 to February 5,

1971.

Number 415-471-1193 In Service

DATE AREA CALLED NUMBER CALLED

February 11, 1970 Tijuana, Mexico 903-385-5054

February 12, 1970 Tijuana, Mexico 903-385-5054

March 12, 1970 Tijuana, Mexico 908-385-5054

March 12, 1970 Tijuana, Mexico 903-385-5054

March 15, 1970 Tijuana, Mexico 903-386-4640

March 16, 1970 Tijuana, Mexico 903-385-5054

March 16, 1970 Tijuana, Mexico 903-386-4640

March 19, 1970 Tijuana, Mexico Collect Call From

903-386-4640

March 26, 1970 Tijuana, Mexico 903-385-5054

April 5, 1970 Tijuana, Mexico 908-385-5054

April 17, 1970 Tijuana, Mexico 903-386-4640

April 18, 1970 Tijuana, Mexico 903-386-4640

April 20, 1970 Tijuana, Mexico 903-886-4640

April 20, 1970 Tijuana, Mexico 903-386-4640

April 22, 1970 Tijuana, Mexico 903-386-4640

April 28, 1970 UNKNOWN Collect Call From

Mexico, Telephone

Number Unknown

May 25, 1970 Tijuana, Mexico 903-886-4640

May 25, 1970 Tijuana, Mexico 903-386-4640

May 26, 1970 Tijuana, Mexico 903-386-4640

May 28, 1970 Tijuana, Mexico 903-386-4640

DATE

June 9, 1970

June 12, 1970

June 16, 1970

June 19, 1970

June 25, 1970

July 2, 1970

July 12, 1970

July 18, 1970

July 14, 1970

July 16, 1970

July 19, 1970

July 23, 1970

July 24, 1970

July 25, 1970

July 26, 1970

August 6, 1970

August 12, 1970

August 13, 1970

AREA CALLED NUMBER CALLED

Tijuana, Mexico 903-386-4640

Culiacan, Mexico 2-0882

Tijuana, Mexico 903-386-4640

Tijuana, Mexico 903-886-4640

Tijuana, Mexico 903-386-4640

Tijuana, Mexico Collect Call From

903-885-5054

Tijuana, Mexico 908-385-5054

Tijuana, Mexico 903-385-5054

Tijuana, Mexico Collect Call From

908-885-2267

Tijuana, Mexico Collect Call From

908-885-2267

Number 415-471-1193 Changed to 415-571-4288 on July 13, 1970

Tijuana, Mexico 903-385-5054

Tijuana, — 903-385-5054

Tijuana, Mexico 908-385-5054

Tijuana, Mexico

Tijuana, Mexico Collect Call From

903-386-4640

Tijuana, Mexico 903-386-4640

Tijuana, Mexico Collect Call From

903-386-4640

Tijuana, Mexico 903-386-4640

Tijuana, Mexico Collect Call Fron:

903-386-4640

Tijuana, Mexico 903-386-4640

Tijuana, Mexico 903-385-5054

Tijuana, Mexico 903-386-4640

Culiacan Mexico 2-0382

Tijuana, Mexico

DATE

August 26, 1970

August 27, 1970

September 6, 1970

September 16, 1970

AREA CALLED NUMBER CALLED

Tijuana, Mexico 903-386-4640

Number 415-471-4288 Changed to 415-489-0869 on September 17,

1970

September 17, 1970

September 20, 1970

September 30, 1970

October 1, 1970

October 2, 1970

October 7, 1970

October 18, 1970

October 20, 1970

October 28, 1970

October 24, 1970

October 25, 1970

October 27, 1970

November 6, 1970

November 7, 1970

November 8, 1970

November 9, 1970

November 10, 1970

November 14, 1970

November 16, 1970

November 17, 1970

November 18, 1970

November 19, 1970

November 20, 1970

November 27, 1970

November 28, 1970

Tijuana, Mexico

Culiacan, Mexico

Tijuana, Mexico

Culiacan, Mexico

Tijuana, Mexico

Culiacan, Mexico

Tijuana, Mexico

Culiacan, Mexico

Tijuana, Mexico

Culiacan, Mexico

903-386-4640

Collect. Call From

903-386-4640

21117

903-386-4640

2-1117

903-386-4640

903-385-6208

908-385-6208

903-386-4640

903-385-6208

903-386-4640

Collect Call From

903-386-4640

20382

Collect Call From

21117

903-386-4640

Collect Call From

903-386-4641

2-0382

1970

December 15, 1970

December 16, 1970

AREA CALLED

Tijuana, Mexico

Culiacan, Mexico

Tijuana, Mexico

Culiacan, Mexico

Tijuana, Mexico

NUMBER CALLED»

Number 415-489-0869 Changed to 415-489-0505 January 1, 1971

January 7, 1971

Tijuana, Mexico

903-386-4641

—

APPENDIX A-2

Chronological list of long distance telephone traffic be-

tween telephone 415-656-7173, subscribed to in the name

of Umberto Jose Chavez and located at 220 Carmelita

Place, Fremont, California, and Mexico, for the period

December 18, 1970 to February 5, 1971.

Number 415-656-7178 In Service as of December 18, 1970

DATE AREACALLED NUMBER CALLED

18, 1970 Tijuana, Mexico 908-386-4641

Tijuana, Mexico

December 18, 1970

December 29, 1970

City, Billed To

415-656-7173)

January 7, 1971 Tijuana, Mexico 903-3864641

January 7, 1970 Culiacan, Mexico 20382

January 9, 1971 Tijuana, Mexico 903-386-4641

January 10, 1971 Tijuana, Mexico 903-386-4641

January 27, 1971 Tijuana, Mexico 903-386-4641

January 27, 1971 Tijuana, Mexico 903-886-4641

January 28, 1971 Tijuana, Mexico 903-386-4641

January 29, 1971 Tijuana, Mexico 903-386-4641

January 20, 1971 Tijuana, Mexico 903-886-4641

January 80, 1971 Tijuana, Mexico 1

APPENDIX B-1

Monthly summary of long distance telephone traffic be-

tween telephone 415-471-1193, changed to 415-471-4288,

changed to 415-489-0869, changed to, and presently 415-

489-0505, subscribed to in the name of Florentino Chavez

and located at 33642 7th Street, Union City, California,

and Mexico

February 1970 —5 calls to Tijuana, Mexico 903-385-5054

March 1970 — calls to Tijuana, Mexico 903-385-5054

2 calls to Tijuana, Mexico 903-386-4640

1 call collect from Tijuana, Mexico 903-

886-4640

1 call to Tijuana, Mexico 903-385-5054

April 1970 —1 call to Tijuana, Mexico 903-885-5054

5 calls to Tijuana, Mexico 903-886-4640

1 call collect from Mexico

May 1970 —5 calls to Tijuana, Mexico 903-386-4640

June 1970 —6 calls to Tijuana, Mexico 903-386-4640

1 call to Culiacan, Mexico 2-0382

1 call collect from Tijuana, Mexico 903-385-

5054

July 1970 —7 calls to Tijuana, Mexico 903-385-5054

7 calls to Tijuana, Mexico 908-386-4640

8 calls collect from Tijuana, Mexico 903-

886-4640

2 calls collect from Tijuana, Mexico 903-

385-2267

August 1970 —7 calls to Tijuana, Mexico 903-386-4640

6 calls to Tijuana, Mexico 903-385-5054

1 call to Culiacan, Mexico 2-0882

September 1970—8 calls to Tijuana, Mexico 903-386-4640

1 call to Culiacan, Mexico 2-1117

1 call collect from Tijuana, Mexico 903-386-

4640

October 1970 —7 calls to Tijuana, Mexico 903-386-4640

8 calls to Tijuana, Mexico 903-385-6208

2 calls to Culiacan, Mexico 2-1117

1 call collect from Tijuana, Mexico 903-386-

4640

November 1970 —8 calls to Tijuana, Mexico 903-386-4640

4 calls to Culiacan, Mexico 2-0382

8 calls to Tijuana, Mexico 903-386-4641

2 calls to Culiacan, Mexico 2-1117

1 call collect from Tijuana, Mexico 903-386-

4641

1 call collect from Culiacan, Mexico 2-1117

December 1970 —10 calls to Tijuana, Mexico 903-886-4641

4 calls to Culiacan, Mexico 2-0382

January 1971 —2 calls to Tijuana, Mexico 903-386-4641

APPENDIX B-2

Monthly summary of specific long distance telephone

traffic between telephone 415-656-7178, subscribed to in

the name of Umberto Jose Chavez, and located at 220

Carmelita Place, Fremont, California, and Mexico.

December 1970 —2 calls to Tijuana, Mexico 903-386-4641

1 call to Tijuana, Mexico 903-385-6208

(Called from Union City, California, billed

to 415-656-7173)

January 1971 —11 calls to Tijuana, Mexico 908-886-4641

1 call to Culiacan, Mexico 2-0382

APPENDIX C-

Summary of distance telephone traffic between tele-

phone 415-471-1193, changed to 415-471-4288, changed to

415-489-0869, changed to, and presently 415-489-0505,

J6 ek ane ak eee dian, leaned

at 33642 7th Street, Union City, California, and Mexico,

for the period February 11, 1970 to February 5, 1971.

903-385-5054 —27 telephone calls to Tijuana, Mexico

908-885-5054

1 collect telephone call from Tijuana,

Mexico 908-385-5054

903-386-4640 —50 telephone calls to Tijuana, Mexico

903-386-4640

6 collect telephone calls from Tijuana,

Mexico 908-386-4640

903-386-4641 —15 telephone calls to Tijuana, Mexico

903-386-4641

1 collect telephone call from Tijuana,

Mexico 903-386-4641

903-385-2267 —2 collect telephone calls from Tijuana,

Mexico 903-385-2267

2-0382 —10 telephone calls to Culiacan, Mexico

2-0882

2-1117 —5 telephone calls to Culiacan, Mexico

2-1117

1 collect telephone 2 from Culiacan,

Mexico 2-1117

903-385-6208 —3 telephone calls to Tijuana, Mexico

903-385-6208

Unknown Number—1 collect telephone call from Mexico

APPENDIX C-2

Summary of long distance telephone traffic between tele-

415-656-7178, subscribed to in the name of Um-

— 4 Chaven and located at 220 Carmelita Place,

t, California, and Mexico, for the period De-

aa 18 1970 to February 5, 1971.

908-886-4641 —18 telephone calls to Tijuana, Mexico

908-386-4641

2-0382 —1 telephone call to Culiacan, Mexico

20882

903-385-6208 —1 telephone call to Tijuana, Mexico

903-385-6208 (Called from Union City,

California, billed to 415-656-7173)

APPENDIX D-1

Chronological list of collect telephone calls from unknown

telephones in San Ysidro, Chula Vista and San

California, to telephone — ig changed to

415-471-4288, changed to and tly 415-489-0506,

subscribed to in the name of — Chavez, and

located at 88642 7th Street, Union City, California, for

the period February 9, 1970 to February 5, 1971.

Number 415-471-1198 In Service

Date Collect Telephone Call Received From

February 9, 1970 San Ysidro, California

February 11,1970 San Ysidro, California

February 14, 1970 San Ysidro, California

February 16, 1970 San Ysidro, California

April 21, 1971 San Ysidro, California

April 22, 1970 San Ysidro, California

April 27, 1970 San Ysidro, California

May 15, 1970 San Ysidro, California

June 1, 1970 San Ysidro, California

June 11, 1970 San Ysidro, California

June 18, 1970 San Ysidro, California

June 20, 1970 San Ysidro, California

June 25, 1970 San Ysidro, California

July 1, 1970 San Ysidro, California

July 4, 1970 Chula Vista, California

July 10, 1970 San Ysidro, California

July 11, 1970 San Ysidro, California

Number 415-471-1198 Changed to 415-471-4288 on July 138,

1970

July 26, 1970 Chula Vista, California

July 27, 1970

San Ysidro, California

September 11, 1970

Number 415-471-4288 Changed to 415-489-0869 on Septem-

ber 17, 1970

October 31, 1970

November 4, 1970

November 6, 1970

November 7, 1970

November 10, 1970

November 16, 1970

December 5, 1970

Number 415-489-0869 Changed to 415-489-5050 on January

4, 1971

Collect Telephone Call Received From

San Ysidro, California

Chula Vista, California

San Ysidro, California

Chula Vista, California

San Ysidro, California

Chula Vista, California

San Ysidro, California

Chula Vista, California

San Ysidro, California

Chula Vista, California

San Ysidro, California

San Diego, California

San Ysidro, California

Chula Vista, California

San Ysidro, California

APPENDIX D-2

Chronological list of collect telephone calls from unknown

pay telephones in San Ysidro, Chula Vista and San

Diego, California, to telephone 415-656-7173, subscribed

to in the name of Umberto Jose Chazev, and located at

220 Carmelita Place, Fremont, California, for the period

December 18, 1970, to February 5, 1971.

Number 415-656-7178 In Service as of December 18, 1970

Date Collect Telephone Call Received From

January 1, 1971 San Ysidro, California

January 4, 1971 San Ysidro, California

January 6, 1971 San Ysidro, California

January 11, 1971 San Ysidro, California

January 14, 1971 San Ysidro, California

January 16, 1971 San Ysidro, California

January 25, 1971 San Ysidro, California

January 29, 1971 San Ysidro, California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. 5

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

ORDER AUTHORIZING THE INTERCEPTION

OF WIRE COMMUNICATIONS

TO: Special Agents of the Bureau of Narcotics and

Dangerous Drugs and Special Agents of the United States

Customs Agency Service, Bureau of Customs, Depart-

ment of Treasury.

Application under oath having been made before me by

Maurice K. Merten, an attorney of the Organized Crime

and Racketeering Section of the United States Depart-

ment of Justice, and an “investigative or law enforcement

officer” as defined in Section 2510(7) of Title 18, United

States Code, for an order authorizing the interception of

wire communications pursuant to Section 2510 of Title

18, United States Code, and full consideration having

— given to the matters set forth therein, the Court

A. There is probable cause to believe that Umberto

Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera,

and others as yet unknown, have committed and are com-

mitting offenses involving the illegal importation, re-

ceipt, transportation, concealment, distribution, and sale of

narcotic drugs not in or from the original stamped pack-

age and a conspiracy to commit such offenses, in viola-

tion of Section 174, Title 21, United States Code, and

— 4704(a) and 7237(a) of Title 26, United States

B. There is probable cause to believe that wire com-

munications of Umberto Jose Chavez, Lionel Medina Cos-

tilla, Jose Ybarra-Rivera, and others as yet unknown,

concerning these offenses will be obtained through their

ap — authorization for which is herein applied.

In particular, these wire communications will concern:

1. The placing of orders by Umberto Jose Chavez to

Jose Ybarra-Rivera, and others as yet unknown outside

the United States, for large quantities of heroin to be

illegally imported into the United States.

2. The communications between Umberto Jose Chav-

ez, Lionel Medina Costilla, Jose Ybarra-Rivera, and oth-

ers as yet unknown both inside and outside the United

States, through which a system of couriers transporting

heroin from the United States-Mexican border to North-

ern California is coordinated.

8. The communications between Umberto Jose Chav-

ez and Lionel Medina Costilla, and others as yet un-

known within the State of California, concerning the dis-

tribution, to a large geographical area of Northern Cali-

fornia, of large quantities of heroin, illegally imported

into the United States from Mexico. :

C. Normal investigative procedures reasonably appear

unlikely to succeed if tried.

D. There is probable cause to believe telephone 415-

656-7178, subscribed to in the name of Umberto Jose

Chavez, and located at 220 Carmelita Place, Fremont,

California, has been used and is being used by Umberto

Jose Chavez, Lioné] Medina Costilla, Jose Ybarra-Rivera,

and others as yet unknown, in connection with the of-

fenses described in paragraph (A) above.

WHEREFORE, it is hereby ordered that:

Special Agents of the Bureau of Narcotics and Dan-

gerous Drugs, United States Department of Justice and

Special Agents of the United States Customs Agency

Service, Bureau of Customs, Department of Treasury,

are authorized, pursuant to the application authorized by

the Assistant Attorney General for the Criminal Division

of the United States Department of Justice, the Honor-

able Will Wilson, who has been specially designated in

this proceeding by the Attorney General of the United

States, the Honorable John N. Mitchell, to exercise the

powers conferred on the Attorney General by Section

2516 of Title 18, United States Code, to:

1) Intercept wire communications of Umberto Jose

Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera, and

others as yet unknown, concerning the above described

offenses to and from telephone 415-656-7173, subscribed

to in the name of Umberto Jose Chavez and located at

220 Carmelita Place, Fremont, California.

2) Not automatically terminate the interception

when the described type of communications sought are

first obtained, but that this authority to intercept con-

tinue for a reasonable time thereafter, not to exceed a

total of twenty (20) days from the date of the Order,

— will reveal the manner in which Umberto Jose

vez, Lionel Medina Costilla, Jose Ybarra-Riviera,

and others as yet unknown, illegally import, receive,

transport, conceal, distribute, and sell narcotic drugs not

in or from the original stamped package, and conspire

to commit such offenses, in violation of Section 174,

Title 21, United States Code, and Sections 4704(a) and

7287(a) of Title 26, United States Code, and which will

reveal the identity of their confederates, their places of

operation, and the nature of the conspiracy involved

therein.

PROVIDING THAT, this authorization to intercept

wire communications shall be executed as soon as prac-

ticable after the signing of this Order, shall be con-

ducted in such a way as to minimize the interception of

communications not otherwise subject to interception un-

der Chapter 110 of Title 18, United States Code, and

shall terminate upon obtainment of the authorized ob-

jective, or in any event, at the end of twenty (20) days

from the date of this Order.

It is further ordered, upon request of the applicant,

that the Pacific Telephone and Telegraph Company, a

communications common carrier as defined in Section

2510(10) of Title 18, United States Code, shall forth-

with furnish the Applicant and the Bureau of Narcotics

and Dangerous Drugs all information, facilities, and

technical assistance necessary to accomplish the inter-

ception unobtrusively and with a minimum of interfer-

ence with the services that such carrier is according the

persons whose communications are to be intercepted. The

furnishing of such facilities or technical assistance by

the Pacific Telephone and Telegraph Company to be com-

pensated for by the Applicant or the Bureau of Nar-

cotics and Dangerous Drugs, Department of Justice, at

the prevailing rates.

PROVIDING ALSO, that Maurice K. Merten shall

provide the Court with a report on the 5th, 10th, and

15th days following the date of this Order showing what

progress has been made toward achievement of the au-

ore objective and the need for continued intercep-

on: |

/s/ Oliver J. Carter

United States District Judge

This 18 day of February, 1971 at 10:10 O’Clock A.M.

_ le

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

USE OF PEN REGISTERS OR TOUCH TONE DECODERS

ORDER AUTHORIZING THE USE OF PEN

REGISTERS OR TOUCH TONE DECODERS

TO: Special Agents of the Bureau of Narcotics and

Dangerous Drugs and Special Agents of the United States

Customs Agency Service, Bureau of Customs, Depart-

ment of Treasury.

Affidavit under oath having been made before me by

Julius Beretta, Special Agent of the Bureau of Narcotics

and Dangerous Drugs, United States Department of Jus-

tice, and full consideration having been given to the mat-

ters set forth therein, the Court finds:

A. There is probable cause to believe that Umberto

Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera,

and others as yet unknown have committed and are com-

mitting offenses involving the illegal importation, re-

ceipt, transportation, concealment, distribution, and sale

of narcotic drugs not in or from the original stamped

package and a conspiracy to commit such offenses, in

violation of Section 174, Title 21, United States Code,

and Sections 4704 (a) and 7237 (a) of Title 26, United

States Code.

B. There is probable cause to believe telephone number

415-656-7173, subscribed to in the name of Umberto Jose

Chavez, and located at 220 Carmelita Place, Fremont,

California has been used and is being used by Umberto

Jose Chavez, Lionel Medina Costilla, Jose Ybarra-Rivera,

and others as yet unknown, in connection with the of-

fenses descibed in (A)

WHEREFORE, it is hereby ordered that:

Special Agents of the Bureau of Narcotics and Dan-

gerous Drugs, and Special Agents of the United States

Customs Agency Service, Bureau of Customs, Depart-

ment of Treasury, are authorized to:

A. Install mechanical decices on telephone number

415-656-7178, subscribed to in the name of Umberto

Jose Chavez, and located at 220 Carmelita Place, Fre-

mont, California, which will reveal the telephone num-

bers of all outgoing calls dialed from the above de-

scribed telephone.

B. Continue use of such mechanical devices in opera-

tion until the telephone numbers of all outgoing calls

dialed lead to the identities of the confederates of the

conspiracy involving the importation and distribution of

illegal narcotics, and their places of operation, for a

period of twenty (20) days from the date of this Order,

whichever is earlier.

PROVIDING THAT, this authorization to install and

operate the above described mechanical devices must ter-

minate upon attainment of the authorized objective or,

in the event, at the end of twenty (20) days from the

date of this Order.

/s/ Oliver J. Carter

United States District Judge

February 18, 1971

DATE

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. 6

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

APPLICATION

Maurice K. Merten, an Attorney of the Organized

Crime and Racketeering Section, San Francisco Strike

Force, United States Department of Justice, being duly

sworn states:

1) This sworn application is submitted in support of

an Order authorizing the interception of wire communi-

cations. This application has been submitted only after

lengthy discussions concerning the necessity for such

application with various officials of the Organized Crime

and Racketeering Section, United States Department of

Justice, Washington, D. C., together with Agents of

the Bureau of Narcotics and Dangerous Drugs.

2) He is an “investigative or law enforcement officer

—of the United States” within the meaning of Section

2510 (7) of Title 18, United States Code, that is—he is

an attorney authorized by law to prosecute or partici-

pate in the prosecution of offenses enumerated in Sec-

tion 2516 of Title 18, United States Code.

3) Pursuant to the powers conferred on him by Sec-

tion 2516 of Title 18, United States Code, the Attorney

General of the United States, the Honorable John N.

Mitchell, has specially designated in the proceeding the

Assistant Attorney General for the Criminal Division of

the United States Department of Justice, The Honorable

Will Wilson, to authorize affiant to make this applica-

tion for an Order authorizing the interception of wire

communications. This letter or authorization signed by

the Assistant Atturney General is attached to this ap-

plication as Exhibit A.

4) This application seeks authorization to intercept

wire communications of Pelone“, Jim“, Jessee“,

“Mondo”, “Olivia”, and others as yet unknown, concern-

ing the offenses enumerated in Section 2516 of Title 18,

United States Code; offenses involving the illegal im-

portation, receipt, transportation, concealment, distribu-

tion and sale of narcotic drugs not in or from the orig-

inal stamped package, and a conspiracy to commit such

offenses, in violation of Section 174, Title 21, United

States Code, and Sections 4704 (a) and 7237 (a) of

Title 26, United States Code, which have been com-

mitted and are being committed by Pelone“, “Jim”,

“Jessee”, and “Mondo”, “Olivia”, and others as yet un-

known.

5) He has discussed all the circumstances of the above

offenses with Special Agent Julius Beretta of the San

Francisco, California, office of the Bureau of Narcotics

and Dangerous Drugs, who has directed and conducted

the investigation herein, and has examined the affidavit

of Special Agent Julius Beretta (attached to this appli-

cation as Exhibit B and incorporated by reference here-

in) which alleges facts therein in order to show that:

a. There is probable cause to believe that “Pe-

lone”, “Jim”, “Jessee”, “Mondo”, “Olivia, and others as

yet unknown have committed and are committing of-

fenses involving the illegal importation, receipt, trans-

portation, concealment, distribution, and sale of nar-

cotic drugs not in or from the original stamped package

and a conspiracy to commit such offenses in violation of

Section 174, Title 21, United States Code, and Sections

4704 (a) and 7237 (a) of Title 26, United States Code.

b. There is probable cause to believe that the wire

communications of Pelone“, Jim“, “Jessee”, “Mondo”,

“Olivia”, and others as yet unknown, concerning these

offenses will be obtained through their interception, au-

thorization for which is herein applied. In particular,

these wire communications will concern:

(1) The communications between Pelone“,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet

unknown concerning the availability of heroin illegally

from Mexico to the United States and trans-

ported to Northern California.

(2) The communications between Pelone“,

“Jim”, Jessee“, “Mondo”, Olivia“, and others as yet

unknown relative to the overall operation of an organiza-

tion illegally importing and distributing heroin.

(3) The communications between Pelone“,

“Jim”, “Jesse”, “Mondo”, Olivia“, and others as yet un-

known concerning the method and scope of distribution of

heroin throughout Northern California.

(4) The communications between Pelone“,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet un-

known concerning the place of storage of heroin illegally

into the United States from Mexico.

(5) The communications between Pelone“,

“Jim”, Jesse“, “Mondo”, Olivia“, and others as yet un-

known concerning the number and identity-of the sellers

of the heroin illegally imported into the United States

by these individuals and others.

c. Normal investigative procedures reasonably ap-

pear unlikely to succeed.

d. There is probable cause to believe that telephone

number 415-471-7260 subscribed to in the name of James

Fernandez and located at 1345 G Street, Union City, Cal-

ifornia, has been used and is being used by Pelone“,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet un-

ve in connection with the offenses described in 5(a)

e. |

6) By Court Order dated February 18, 1971, the

Honorable Oliver J. Carter, Chief Judge, United States

Department of Justice, Northern District of California,

authorized the interception of wire communications of

Umberto Jose Chavez, Lionel Medina Costilla, and Jose

Ybarra-Rivera, from telephone number 415-656-7173 for

a maximum of twenty (20) days. Wire communications

have been intercepted from the above-mentioned telephone

from February 18, 1971 up to, and including, the date

of this application. Other than the application made in

support of the Order referred to in this paragraph, no

other application has been made to any Judge for au-

thorization to intercept or for approval of the intercep-

tion of wire or oral communications involving the same

persons, facility or place specified herein.

WHEREFORE, your affiant believes that probable

cause exists to believe that Pelone“, “Jim”, “Jesse”,

“Mondo”, Olivia“, and others as yet unknown, are en-

gaged in the commission of offenses involving the illegal

importation, receipt, transportation, concealment, distri-

bution, and sale of narcotic drugs not in or from the

original stamped package and a conspiracy to commit

such offenses in violation of Section 174, Title 21, United

States Code, and Sections 4704 (a) and 7287 (a) of

Title 26, United States Code, and that telephone num-

ber 415-471-7260, subscribed to in the name of James

Fernandez and located at 1345 G Street, Union City,

California, has been used and is being used by “Pelone”,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet un-

known, in connection with the offenses described in 5

(a) above, and that communications of “Pelone”, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet unknown,

concerning these offenses will be intercepted to and from

the above described telephone and that normal investi-

gative procedures reasonably appear unlikely to succeed.

On the basis of the allegations contained in this appli-

cation and upon the basis of the affidavit of Special

Agent Julius Beretta, Bureau of Narcotics and Danger-

ous Drugs, which is attached hereto and made a part

thereof, affiant requests this Court to issue an Order

pursuant to the power conferred on it by Section 2518 of

Title 18, United States Code, authorizing Special Agents

of the Bureau of Narcotics and

conspire to commit such offenses, in violation of Section

174, Title 21, United States Code, and Sections 4704 (a)

and 7287 (a) of Title 26, United States Code, and which

reveal the identity of their confederates, their places

of operation and the nature of the conspiracy involved

therein, for a period of twenty (20) days from the date

of this Order, whichever is earlier.

The

tions common carrier as defined in Section 2510 (10) of

Title 18, United States Code, shall forthwith furnish the

necessary to accomplish the interception unobtrusively

and with a minimum of interference with the services

that such carrier is according the persons whose com-

munications are to be intercepted, the furnishing of such

facilities or technical assistance by the Pacific Tele-

and Telegraph Company to be compensated for by

the applicant or the Bureau of Narcotics and Dangerous

Drugs at the prevailing rates.

MAuRICE K. MERTEN

Attorney

Department of Justice

San Francisco, California

Subscribed and sworn before me this day of

, 1971.

United States District Judge

Assistant Attorney General |

Criminal Division

DEPARTMENT OF JUSTICE

Washington 20530

Feb. 25, 1971

Mr. Maurice Merten

Special Attorney

San Francisco Strike Force

San Francisco, California

Dear Mr. Merten:

This is with regard to your request for authorization

to make application pursuant to the provisions of Section

2518 of Title 18, United States Code, for an Order of

the Court authorizing the Federal Bureau of Narcotics

and Dangerous Drugs and the Bureau of Customs, United

States Department of the Treasury, to intercept wire

communications to and from telephone number 415-471-

7260, located at 1845 G Street, Union City, California,

in connection with the investigation into possible viola-

tions of Sections 174, 4704(a) and 7237(a) of Titles 21

and 26, respectively, United States Code, by persons iden-

tified only as “Pelone,” “Jim,” “Jesse,” Mondo, “Olivia”

and others as yet unknown.

I have reviewed your request and the facts and eireum-

stances detailed therein and have determined that prob-

able cause exists to believe that persons identified only

as “Pelone,” “Jim,” “Jesse,” “Mondo,” “Olivia” and

others as yet unknown have committed, are committing,

or are about to commit offenses enumerated in Section

2516 of Title 18, United States Code, to wit: violations

of Sections 174, 4704(a) and 7287(a), of Titles 21 and

26, respectively, United States Code. I have further de-

termined that there exists probable cause to believe that

the above persons make use of the described facility in

connection with those 2 that wire communications

concerning the offenses will be intercepted, and that nor-

mal investigative procedures reasonably appear to be un-

likely to succeed if tried.

Accordingly, you are hereby authorized under the pow-

er specially delegated to me in this proceeding by the

Attorney General of the United States, the Honorable

John N. Mitchell, pursuant to the power conferred on

him by Section 2516 of Title 18, United States Code, to

make application to a judge of competent jurisdiction for

an Order of the Court pursuant to Section 2518 of Title

18, United States Code, authorizing the Federal Bureau

of Narcotics and Dangerous Drugs and the Bureau of

Customs, United States Department of the Treasury, to

intercept wire communications from the facility described

above, for a period of twenty (20) days.

Sincerely,

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. 6

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

. AFFIDAVIT IN SUPPORT OF APPLICATION

Julius Beretta, Special Agent, San Francisco Office,

Bureau of Narcotics and Dangerous Drugs, Department

of Justice, being duly sworn, states:

1. I am a Special Agent of the Bureau of Narcotics

and Dangerous Drugs. I have been so employed for two

and one half years and have been assigned to the Bureau

of Narcotics and Dangerous Drugs, San Francisco, Cali-

fornia, Office, for that same period. I am an “investiga-

tive or law enforcement officer—of the United States”

within the meaning of Section 2510 (7) of Title 18,

United States Code, that is—I am an officer of the United

States who is authorized by law to conduct investigations

of and to make arrests for offenses enumerated in Sec-

tion 2516, Title 18, United States Code.

2. This affidavit seeks authorization to intercept wire

communications to and from telephone number 415-471-

7260 subscribed to in the name of James Fernandez, 1345

G Street, Union City, California, in connection with the

commission of certain offenses enumerated by Section

2516 of Title 18, United States Code, that is, offenses

involving the illegal importation, receipt, transportation,

concealment, distribution, and sale of narcotic drugs not

in or from the original stamped package and a conspir-

acy to commit such offenses, in violation of Section 174,

Title 21, United States Code, and Sections 4704 (a) and

7287 (a) of Title 26, United States Code, which have

been committed and are being committed by the indi-

viduals known as Pelone“, Jim“, “Jesse”, “Mondo”,

“Olivia”, and others as yet unknown.

3. By Court Order dated February 18, 1971, the Hon-

orable Oliver J. Carter, Chief Judge, United States De-

partment of Justice, Northern District of California, au-

thorized the interception of wire communications of Um-

berto Jose Chavez, Lionel Medina Costilla, and Jose

Ybarra-Rivera, from telephone number 415-656-7173 for

a maximum period of twenty (20) days. Wire communi-

cations have been intercepted from the above-mentioned

telephone during the period February 18, 1971 up to and

ineluding the date of this affidavit. Other than the ap-

plication made in support of the Order referred to in this

, no other application has been made to any

Judge for authorization to intercept or for approval of

the interception of wire or oral communications involving

any of the same persons, facility, or place specified here-

in. Attached hereto as Exhibit A and made a part there-

of is the affidavit made in support of the Order authoriz-

ing the interception of wire communications from tele-

phone 415-656-7173 referred to above. As a result of my

personal participation in the implementation of Judge

Carter’s order of February 18, 1971, and my reference

to logs of the interceptions made pursuant to that order,

I am familiar with all of the circumstances of the of-

. fenses. On the basis of that familiarity, I allege the

following paragraphs show that:

(a) There is p e cause to believe that persons

identified only as elone“, “Jim”, “Jim”, “Jesse”,

“Mondo”, “Olivia”, and others as yet unknown, have

committed and are committing offenses involving the

illegal importation, receipt, transportation, conceal-

ment, distribution, and sale of narcotic drugs not in

or from the original stamped package and a conspir-

acy to commit such offenses, in violation of Section

174, Title 21, United States Code, and Sections 4704

(a) and 7287 (a) of Title 26, United States Code.

(b) There is probable cause to believe that wire com-

munications of the individuals known only as “Pe-

lone”, Jim“, “Jesse”, “Mondo”, “Olivia”, and others

as yet unknown, concerning these offenses will be

obtained through their interception, authorization

for which is herein applied. In particular, these wire

communications will concern:

(1) The communications between Pelone“,

“Jim”, Jesse“, “Mondo”, “Olivia”, and others

as yet unknown concerning the availability of

heroin illegally imported from Mexico to the

py States and transported to Northern Cali-

(2) The communications between Pelone“,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others

as yet unknown relative to the overall operation

of an organization illegally importing and dis-

tributing heroin.

(3) The communications between Pelone“,

“Jim”, Jesse“, Mondo“, “Olivia”, and others

as yet unknown concerning the method and scope

of distribution of heroin throughout Northern

California.

(4) The communications between Pelone“,

“Jim”, Jesse“, “Mondo”, “Olivia”, and others

as yet unknown concerning the place of storage

of heroin illegally imported into the United

States from Mexico.

(5) The communications between Pelone“,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others

as yet unknown concerning the number and

identity of the sellers of the heroin illegally im-

ported into the United States by these individ-

uals and others.

(e) Normal investigative procedures reasonably ap-

pear unlikely to succeed.

(d) There is probable cause to believe that tele-

phone number 415-471-7260 subscribed to in the

name of James Fernandez and located at 1345 G

Street, Union City, California, has been used and

is being used by Pelone“, Jim“, “Jesse”, “Mondo”,

“Olivia”, and others as yet unknown, in connection

with the offenses described in (a) above.

eee ae

—

FACTS AND CIRCUMSTANCES

PROBABLE CAUSE TO BELIEVE THAT “JIM” IS

UTILIZING TELEPHONE NUMBER 415-471-7260 IN

CONNECTION WITH COMMISSION OF OFFENSES

INVOLVING THE ILLEGAL IMPORTATION, RE-

CEIPT, TRANSPORTATION, CONCEALMENT, DIS-

TRIBUTION, AND SALE OF NARCOTIC DRUGS NOT

IN OR FROM THE ORIGINAL STAMPED PACKAGE

IN VIOLATION OF SECTION 174, TITLE 21, UNIT-

ED STATES CODE AND SECTIONS 4704 (a) AND

7287 (a) OF TITLE 26, UNITED STATES CODE.

4. Telephone number 415-471-7260 is subcribed to by

James Fernandez, and located at 1845 G Street, Union

City, California.

5. The logs of telephone number 415-656-7173 disclose

that:

(a) On February 19, 1971 at 8:07 p.m. a female

called 471-7260 and asked for “Jim”. A male iden-

tified as “Pelone” then replaced the female on tele-

phone 415-656-7173 and spoke to the male who iden-

tified himself as “Jim”. “Pelone” instructed “Jim”

to break down $50,000.00 by five’s, ten’s, and

twenty’s and put it where they put it before they go

down.

(b) On February 19, 1971 at 8:10 p.m. a male

called 471-7260 and instructed the male answering

to call “Louie” and tell him to only take money.

(e) On February 21, 1971 at 3:30 p.m. a male

called 471-7260 and told the male answering that he

wanted “five fifties” and to deliver them to the usual

place.

6. Based upon my experience as a Special Agent of

the Bureau of Narcotics and Dangerous Drugs and my

familiarity with the investigation of Umberto Jose Cha-

vez and his organization, a usual quantity of packaging

of heroin is in prophylactics with the value of $50.00

and that “pieces” refers to ounces of heroin.

7. The logs of telephone number 415-656-7173 further

disclose that:

(a) On February 21, 1971 at 9:17 p.m. a male

called 471-7260 and the male answering told the male

that he had “picked it up from Louie” and

“gave Mondo the 93; plus the 5 you took makes 98”.

b) On February 21, 1971 at 9:20 p.m. a male

called 489-0620 and asked a male identified as

Mondo“ if he received the things, and told him it

would have to hold him for a few days but there

would be more coming.

called 886-9288 and after the female answering com-

plained that she had only received 14 “pieces” in-

stead of 15 “pieces” from “Jim”, the female caller

related that she would only have to pay what “Jim”

wrote in his book.

(d) On February 22, 1971 at 8:41 a.m. a female

called 471-7260 and told the female answering that

if — calls to see Louie“, tell them to go see

Mondo.

(e) On February 22, 1971 at 2:09 p. m. a male called

471-7260 and asked the male identified as Jim“ if

he was ready to go. “Jim” replied that he was get-

ting ready to call and would call back.

(f) On February 22, 1971 at 2:16 p.m. a male iden-

tified as “Jim” called 415-656-7173 and told the male

answering that he (Jim) is supposed to leave at

four and has to be there thirty minutes early. A

meeting was then set between the two where money

was to be exchanged. The location of the place was

_ identified as the dump and the time of the meeting

was 3:00 p.m.

8. On February 22, 1971 at approximately 3:00 p.m.

N beter to tne ae Sin Fernandez arrive

at the Union City dump. Special Agent Art Johnson,

56a

Bureau of Narcotics and Dangerous Drugs, an agent on

surveillance at the Union City dump advised me that on

the above date at shortly after 3:00 p.m. he observed a

male known to him as Umberto Jose Chavez arrive at

that location and meet with Jim Fernandez. Following

this meeting I followed Jim Fernandez to the Oakland

International Airport where he boarded a plane destined

for San Diego, California.

NORMAL INVESTIGATIVE PROCEDURES

REASONABLY APPEAR UNLIKELY TO SUCCEED.

9. The logs of telephone 415-656-7173 further disclose

that:

(a) On February 22, 1971, at 6:42 p.m. a female

called 415-656-7173 and told a male identified as

pelone“ that when a third person left, that third

person took the key to the place where the “chiva”

was kept and she could not get any out. Further

discussions revealed the female caller had present

access to a small amount of chiva.“ “Pelone,” after

instructing the female caller concerning that avail-

able, told her to call him again.

(b) On February 22, 1971, at 7:36 p.m., a female

called 415-656-7173 and told a male identified as

“Pelone” that she was able to open the suitcase. A

sale price was then discussed.

10. I have been advised by Anthony A. Selaya, Special

Agent, Bureau of Narcotics and Dangerous Drugs, who

is fluent in Spanish, that “chiva” is the vernacular for

heroin. Agent Celaya has also advised me that he has

listened to conversations placed from telephone 415-656-

7178 to 415-471-7260 and that from his familiarity with

the voice of the female who often answers 415-471-7260,

the female referred to in 9 (a) and (b) above is the

same female who often answers telephone 415-471-7260.

11. Based upon my knowledge as a Special Agent of

the Bureau of Narcotics and Dangerous Drugs of nar-

cotics cases, and my association with other Special Agents

56 b

who have conducted investigations of illegal narcotics

traffic, normal investigative procedures appear unlikely

to succeed in establishing:

(a) That Pelone“, Jim“, “Jesse”, “Mondo”, Oliv-

ia”, and others as yet unknown are involved in il-

legal narcotic activities in violation of Federal laws;

(b) The full extent of this consparicy to import and

distribute the illegal narcotics imported from Mexico

and transported to Northern California; and

(e) The identity of the co-conspirators, aiders and

abetters of the organization illegally importing and

distributing heroin.

12. The house located at 1345 G Street, Union City,

California is located in a predominantly Mexican-Ameri-

can area in which other members of this organization

reside. Consequently surveillance is practically impos-

sible since Government vehicles and agents can be readily

identified.

18. My experience and the experiences of other Spe-

cial Agents of the Bureau of Narcotics and Dangerous

Drugs has shown that individuals dealing in large quan-

tities of narcotics are particularly covert in their activi-

ties and wary of surveillance by law enforcement per-

sonnel.

14. At this time there is no known undercover access

to Jim Fernandez.

15. For the reasons set out here and above, all nor-

mal avenues of investigation are closed and it is my be-

lief that the only reasonable way to twenty (20) days

from the date of the Order, whichever is earlier.

JULIUS BERETTA

Special Agent, Bureau of

Narcotics and Dangerous

Drugs

San Francisco,

California Office

Subscribed and sworn to before me this day of

, 1971.

United States District Judge

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. 6

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

ORDER AUTHORIZING THE INTERCEPTION

OF WIRE COMMUNICATIONS

TO: Special Agents of the Bureau of Narcotics and

Dangerous Drugs and Special Agents of the United

States Customs Agency Service, Bureau of Customs, De-

partment of Treasury.

Application under oath having been made before me

by Maurice K. Merten, an attorney of the Organized

Crime and Racketeering Section of the United States

Department of Justice, and an “investigative or law en-

forcement officer” as defined in Section 2510 (7) of Title

18, United States Code, for an order authorizing the in-

terception of wire communications pursuant to Section

2518 of Title 18, United States Code, and full considera-

tion having been given to the matters set forth therein,

the Court finds:

a. There is probable cause to believe that “Pelone”,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet un-

known, have committed and are committing offenses in-

volving the illegal importation, receipt, transportation,

concealment, distribution, and sale of narcotic drugs not

in or from the original stamped package and a conspir-

acy to commit such offenses, in violation of Section 174,

Title 21, United States Code, and Sections 4704 (a) and

7237 (a) of Title 26, United States Code.

d. There is probable cause to believe that wire com-

munications of Pelone“, “Jim”, “Jesse”, “Mondo”, “Oli-

via”, and others as yet unknown, concerning these of-

fenses will be obtained through their interception, au-

thorization for which is herein applied. In particular,

these wire communications will concern:

(1) The communications between Pelone“, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet

concerning the availability of heroin illegally imported

from Mexico to the United States and transported to

Northern California.

(2) The communications between “Pelone”, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet unknown

relative to the overall operation of an organization ille-

gally importing and distributing heroin.

(3) The communications between “Pelone”, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet unknown

concerning the method and scope of distribution of heroin

throughout Northern California.

(4) The communications between Pelone“, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet unknown

concerning the place of storage of heroin illegally im-

into the United States from Mexico.

(5) The communications between Pelone“, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet unknown

concerning the number and identity of the sellers of the

heroin illegally imported into the United States by these

individuals and others.

e. Normal investigative procedures reasonably appear

unlikely to succeed.

d. There is probable cause to believe that telephone

number 415-471-7260 subscribed to in the name of James

Fernandez and located at 1345 G Street, Union City, Cali-

fornia, has been used and is being used by “Pelone”,

“Jim”, Jesse“, “Mondo”, Olivia“, and others as yet un-

— in connection with the offenses described in (a)

above.

WHEREFORE, it is hereby ordered that:

Special Agents of the Bureau of Narcotics and Dan-

gerous Drugs, United States Department of Justice and

Special Agents of the United States Customs Agency

Service, Bureau of Customs, Department of Treasury,

are authorized, pursuant to the application authorized by

the Assistant Attorney General for the Criminal Division

of the United States Department of Justice, the Honor-

able Will Wilson, who has been specially designated in

—S..

this proceeding by the Attorney General of the United

States, the Honorable John N. Mitchell, to exercise the

powers conferred on the Attorney General by Section

2516 of Title 18, United States Code, to:

(1) Intercept wire communications of “Pelone”, “Jim”,

“Jesse”, “Mondo”, “Olivia”, and others as yet unknown,

concerning the above described offenses to and from tele-

phone 415-471-7260, subscribed to in the name of James

Fernandez and located at 1345 G Street, Union City,

California.

(2) Not automatically terminate the interception when

the described type of communications sought are first ob-

twenty (20) days from he date of the Order, which will

reveal the manner in which Pelone“, “Jim”, “Jesse”,

“Mondo”, “Olivia”, and others as yet unknown, illegally

age, and conspire tp commit such offenses, in violation

of Section 174, Title 21, United States Code, and Sec-

tions 4704 (a) and 7237 (a) of Title 26, United States

Code, and which will reveal the identity of con-

federates, their places of operation, and the nature of

the conspiracy involved therein.

munications not otherwise subject on

Chapter 119 of Title 18, Uni and

(10) of Title 18, United States Code, i

furnish the Applicant and the Bureau of Narcotics and

Dangerous Drugs all information, facilities, and techni-

cal assistance necessary to accomplish the i

—

3 |

unobtrusively and with a minimum of interference with

the services that such carrier is according the persons

whose communications are to be intercepted.

the furnishing of such facilities or technical assistance

by the Pacific Telephone and Telegraph Company to be

compensated for by the Applicant or the Bureau of Nar-

coties and Dangerous Drugs, Department of Justice, at

the prevailing rates.

PROVIDING ALSO, that Maurice K. Merten shall pro-

vide the Court with a report on the 5th, 10th, and 15th

days following the date of this Order showing what prog-

ress has been made toward achievement of the authorized

objective and the need for continued interception:

„ Oliver J. Carter

United States District Judge

This 25 day of February 1971 at 3:25 O’Clock P.M.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. 6

IN THE MATTER OF THE APPLICATION OF THE UNITED

STATES OF AMERICA FOR AN ORDER AUTHORIZING THE

Use OF PEN REGISTERS OR TOUCH TONE DECODERS

ORDER AUTHORIZING THE USE OF PEN

REGISTERS OR TOUCH TONE DECODERS

TO: Special Agents of the Bureau of Narcotics and

Dangerous Drugs and Special Agents of the United

States Customs Agency Service, Bureau of Customs, De-

partment of Treasury.

Affidavit under oath having been made before me by

Julius Beretta, Special Agent of the Bureau of Narcotics

and Dangerous Drugs, United States Department of Jus-

tice, and full consideration having been given to the

matters set forth therein, the Court finds:

a. There is probable cause to believe that “Pelone”,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet un-

known have committed and are committing offenses in-

volving the illegal importation, receipt, transportation,

concealment, distribution, and sale of narcotic drugs not

in or from the original stamped package and a conspir-

acy to commit such offenses, in violation of Section 174,

Title 21, United States Code, and Sections 4704 (a) and

7237 (a) of Title 26, United States Code.

b. There is probable cause to believe telephone number

415-471-7260, subscribed to in the name of James Fer-

nandez, and located at 1845 G Street, Union City, Cali-

fornia, has been used and is being used by Pelone“,

“Jim”, “Jesse”, “Mondo”, “Olivia”, and others as yet un-

known, in connection with the offenses described in (a)

WHEREFORE, it is hereby ordered that:

Special Agents of the Bureau of Narcotics and Dan-

gerous Drugs, and Special Agents of the United States

0 63

Customs Agency Service, Bureau of Customs, Department

of Treasury, are authorized to:

a. Install mechanical devices on telephone number 415-

471-7260, subscribed to in the name of James Fernandez,

and located at 1345 G Street, Union City, California,

which will reveal the telephone numbers of all outgoing

calls dialed from the above described telephone.

b. Continue use of such mechanical devices in opera-

tion until the telephone numbers of all outgoing calls

dialed lead to the identities of the confederates of the

conspiracy involving the importation and distribution of

illegal narcotics, and their places of operation, for a pe-

riod of twenty (20) days from the date of this Order,

whichever is earlier.

PROVIDING THAT, this authorization to install and

operate the above described mechanical devices must ter-

minate upon attainment of the authorized objective or, in

any event, at the end of twenty (20) days from the date

of this Order.

/s/ Oliver J. Carter

United States District Judge

DATE February 25, 1971

—

JAMES E. RITCHIE

Organized Crime and Racketeering Section

U.S. Department of Justice

450 Golden Gate Avenue, Box 36132

San Francisco, California 94102

(415) 556-0750

Attorney for the Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Criminal No. 71-406 SAW

UNITED STATES OF AMERICA, PLAINTIFF

UMBERTO JOSE CHAVEZ,

also known as Pelon;

IRENE CHAVEZ;

JAMES FERNANDEZ;

ANN FERNANDEZ;

OLIVIA MIRAMONTES,

also known as Olivia Montes;

JESSE BUSTAMANTE;

ARMANDO RAMIREZ,

also known as Mando;

CARMEN RAMIREZ;

DELORES FERNANDEZ;

GEORGE APODACA;

MARGARET APODACA;

VERNON BACA;

FILEMON MIRAMONTES;

and

VIOLATIONS:

21 U.S.C. 173, 174—Conspiracy to Import and

Distribute Heroin.

18 U.S.C. 1952—Interstate Travel with the In-

tent to Promote a Business Enterprise Involv-

ing Narcotics

INDICTMENT

COUNT ONE:

(Title 21, United States Code, Sections 173 and 174)

The Grand Jury Charges: THAT

From on or about the 18th day of February, 1971, the

exact date being to the Grand Jury unknown, and con-

tinuing thereafter to the 27th day of February, 1971,

within the Northern District of California,

UMBERTO JOSE CHAVEZ,

also known as Pelon;

IRENE CHAVEZ;

JAMES FERNANDEZ;

ANN FERNANDEZ;

OLIVIA MIRAMONTES,

also known as Olivia Montes;

JESSE BUSTAMANTE;

ARMANDO RAMIREZ,

also known as Mando;

CARMEN RAMIREZ;

DELORES FERNANDEZ;

GEORGE APODACA;

MARGARET APODACA;

VERNON BACA;

FILEMON MIRAMONTES;

and

PEDRO ARAUJO,

the defendants herein, and an individual known only to

the Grand Jury as John Doe, also known as “Louie”,

named herein as a co-conspirator but not as a defendant,

did wilfully, knowingly and unlawfully conspire together

and with divers other persons whose names are to the

Grand Jury unknown, to violate Sections 173 and 174,

Title 21, United States Code, by conspiring to import

and bring into the United States quantities of the nar-

cotic drug heroin contrary to law, and to receive, conceal,

sell and facilitate the transportation, concealment and

f See

sale of quantities of the narcotic drug heroin which had

been imported and brought into the United States con-

trary to law, knowing that the said narcotic drugs had

been imported and brought into the United States con-

trary to law.

The Grand Jury further charges that in furtherance

of the said conspiracy and to effectuate the objects there-

of, the defendants committed, in the Northern District of

California, the following:

Overt Acts

1. On February 19, 1971, Vernon Baca placed a tele-

phone call to the residence of Umberto Jose Chavez, Fre-

mont, California.

2. On February 22, 1971, James Fernandez departed

by airplane from the Oakland International Airport, Ala-

meda County, California.

3. On February 26, 1971, Ann Fernandez met Olivia

Miramontes in the vicinity of Levine Hospital, Hayward,

California.

4. On February 27, 1971, George Apodaca delivered

an automobile tire to the residence located at 1167 C

Street, Hayward, California.

COUNT TWO:

(Title 18, United States Code, Section 1952)

The Grand Jury Further Charges: THAT

On or about the 24th day of February, 1971, in the

Northern District of California,

UMBERTO JOSE CHAVEZ,

also known as Pelon,

a defendant herein, did use and cause others to use a

facility in foreign commerce, to wit, a telephone, between

the Northern District of California and the Republic of

Mexico, with the intent to promote, manage, establish,

carry on, and facilitate the promotion, management and

carrying on of an unlawful activity, that is, a business

enterprise involving narcotics in violation of Sections

11500, 11500.5, and 11501 of the California Health and

Safety Code, and thereafter, UMBERTO JOSE CHAVEZ,

did perform and cause to be performed acts to promote,

manage, establish and carry on and facilitate the promo—-

tion, management, establishment, and carrying on of the

said unlawful activity, in violation of Title 18, United

States Code, Section 1952.

COUNT THREE:

(Title 18, United States Code, Section 1952)

The Grand Jury Further Charges: THAT

On or about the 22nd day of February, 1971, in the

Northern District of California,

JAMES FERNANDEZ,

a defendant herein, did travel in foreign commerce be-

tween the Northern District of California and the Re-

public of Mexico, with the intent to promote, manage,

establish, carry on, and facilitate the promotion, manage-

ment and carrying on of an unlawful activity, that is,

a business enterprise involving narcotics, in violation of

Sections 11500, 11500.5, and 11501 of the California

Health and Safety Code, and thereafter, JAMES FER-

NANDEZ, did perform and cause to be performed acts

to promote, manage, establish and carry on and facilitate

the promotion, management, establishment, and carrying

on of the said unlawful activity, in violation of Title 18,

United States Code, Section 1952.

A TRUE BILL

s, Donald L. [Illegible]

Foreman

/s/ James L. Browning, Jr.

JAMES L. BROWNING, JR.

United States Attorney

/s, James E. Ritchie

JAMES E. RITCHIE

Attorney in Charge

Organized Crime and Racketeering Section

U.S. Department of Justice

San Francisco, California

JAMES F. HEWITT

Federal Public Defender

EARLE A. PARTINGTON

Assistant Federal Public Defender

450 Golden Gate Avenue, PO Box 36106 .

San Francisco, California 94102

Telephone: 556-7712

Counsel for Defendant George Apodaca

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Criminal No. 71-406 SAW

[Filed Apr. 13, 1972, C. C. Evensen, Clerk]

UNITED STATES OF AMERICA, PLAINTIFF

UMBERTO CHAVEZ, Er AL., DEFENDANTS

NOTI F MOTION AND MOTION TO

8 SS WIRETAP EVIDENCE

TO: THE UNITED STATES ATTORNEY AND MAU-

RICE K. MERTEN, SPECIAL ATTORNEY, DE-

PARTMENT OF JUSTICE:

PLEASE TAKE NOTICE that the defendants by and

through their counsel on the llth day of May 1972 at

2:15 p.m. before the Honorable Stanley A. Weigel will

move this court, and do so move this court, for an order,

pursuant to Rule 41(e) of the Federal Rules of Crimi-

nal Procedure, 18 U.S.C. § 2518(10)a, and all other ap-

plicable law, suppressing the wiretap evidence and the

fruits thereof.

This motion is based upon the files and records of this

case, the files and records of United States v. Eckstein,

et al., N.D. Cal. CR-71-1531 SC, including the wiretap

applications in that case, the attached memorandum of

points and authorities, and any further authorities and

matters which may be raised at argument or other ap-

propriate times.

Dated: April 7, 1972

JAMES F. HEWITT

Federal Public Defender

/s/ Earle A. Partington

EARLE A. PARTINGTON

Assistant Federal Public

Defender

Submitted on behalf of and with authority from all

counsel whose signatures appear upon the attached points

and authorities.

JAMES F. HEWITT

Federal Public Defender

EARLE A. PARTINGTON

Assistant Federal Public Defender

450 Golden Gate Avenue, P.O. Box 36106

San Francisco, California 94102

Telephone: 556-7712

Counsel for Defendant George Apodaca

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Criminal No. 71-406 SAW

UNITED STATES OF AMERICA, PLAINTIFF

UMBERTO CHAVEZ, Er AL., DEFENDANTS.

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF DEFENDANTS’ MOTION TO

SUPPRESS THE WIRETAP EVIDENCE

I. THE INTERCEPTIONS OF WIRE COMMUNI-

CATIONS. WERE NOT MADE IN ACCORD-

ANCE WITH THE PROVISIONS OF 18 U.S.C.

§ 2516 AND 2518.

A. The First Order (Chavez tap)

The material relating to the tap of the Chavez phone

consists of seven documents:

1. A memorandum from Attorney General John Mitch-

ell, dated February 18, 1971, “specially designating”

Assistant Attorney General Will Wilson to exercise the

power to authorize Maurice Merten to apply to this Court

for an order authorizing the interception of wire com-

munications. (Appendix Al)

2. A letter of authorization, dated February 18, 1971,

purportedly signed by Will Wilson, Assistant Attorney

General, to the effect that Wilson had reviewed the “re-

_ i

quest and the facts and circumstances detailed therein”

and concluded that “probable cause” exists to believe

that named persons were violating the narcotics laws, and

a further finding of probable cause to believe that they

will use the described communication facility in connec-

tion with those offenses. The letter continues as follows:

Accordingly, you are hereby authorized under the

power specially designated to me in this proceeding

by the Attorney General of the United States, the

Honorable John N. Mitchell, pursuant to the power

conferred on him by Section 2516 of Title 18, United

States Code, to make application, etc... .

(Appendix A2)

3. An application filed in this court in which it was

stated that pursuant to the powers conferred on him by

Section 2516 of Title 18, United States Code, the Attor-

ney General of the United States, the Honorable John N.

Mitchell, has specially designated in this proceeding the

Assistant Attorney General for the Criminal Division of

the United States Department of Justice, the Honorable

Will Wilson, to authorize affiant to make this application

for an order authorizing the interception of wire com-

munications.” (Appendix A3)

4. The affidavit in support of the application. (Ap-

pendix A4)

5. The two orders of this Court granting the appli-

cation as “authorized by the Assistant Attorney General

for the Criminal Division of the United States Depart-

ment of Justice, the Honorable Will Wilson, who has been

specially designated in this proceeding by the Attorney

General of the United States, the Honorable John N.

Mitchell, to exercise the powers conferred on the Attor-

ney General by Section 2516 of Title 18, United States

Code.” (Appendix A5)

6. The affidavit of Henry Petersen, then a Deputy

Assistant Attorney General in the Criminal Division, re-

lating to the processing of the application. His affidavit

sets forth the following procedure:

a. A request for a wire interception order was made

by the Narcotics Bureau;

b. The Department file is then reviewed by an attor-

ney in the Criminal Division, in this case Philip T. White,

who recommended “favorable action” on the request;

e. White’s superior, William Lynch, approved the rec-

ommendation ;

d. The file then went to Henry Petersen who exam-

ined it and forwarded it to the Office of the Attorney

General, also recommending that the authorization be

granted;

e. After approval by the “Office of the Attorney Gen-

eral,” Henry Petersen signed Will Wilson’s name to a

letter (Appendix A2) authorizing the application to the

court for the wiretap. Will Wilson, the “specially desig-

nated” official, never saw the file. This procedure was

“standard.” (Appendix A6)

7. The affidavit of Sol Lindenbaum, Executive Assist-

ant to the Attorney General, in which Mr. Lindenbaum

states:

With respect to the [Chavez tap], the Attorney Gen-

eral on February 18, 1971, approved the request that

the authorization be given to Maurice Merten to

make application for an interception order . . At-

tached is a copy of the Attorney General's personally

initialled memorandum of that date to Will Wilson

reflecting his favorable action on the request.

(Appendix A7)

From these seven documents it is apparent that, with

deference Mr. Lindenbaum, the Attorney General's

memorand does no more than specially designate“

Will Wilson to exercise the power conferred on the At-

torney General by statute to authorize Merten’s appli-

cation. By implication this authority could have been

used to refuse authorization for the tap. And, pursuant

to this “special designation” Will Wilson found “prob-

able cause” and exercised the delegated power by his

letter of February 18, 1971.

The Attorney General did not assert that he found

probable cause, or that he reviewed the request, or that

he had any knowledge of the case other than that ap-

proval had been recommended. His delegation of Will

Wilson was ministerial, and while he initialled the memo-

randum, it is significant that Sol Lindenbaum also placed

the Attorney General's initials on a similar memoran-

dum (See Appendix A7.)

These facts would bring this case within the holding

of United States v. Robinson, infra. The government will

no doubt attempt to bring this case within United States

v. La Gorga, 336 F.Supp. 190 (W. D. Pa. 1971), wherein

it was held that it made no difference if Will Wilson's

name was signed by Henry Petersen where the Attorney

General personally authorized the submission of an ap-

plication. La Gorga can be distinguished from the pres-

ent case in which the Attorney General did no more than

designate Will Wilson to review the application. Regard-

less of this distinction, La Gorga would seem inconsistent

with Robinson.

B. The Second Order (Fernandez tap)

The material relating to the tap of the Fernandez phone

consists of seven documents:

1. A memorandum from Attorney General John Mitch-

ell, dated February 25, 1971, “specially designating”

Assistant Attorney General Will Wilson to exercise the

power to authorize Maurice Merten to apply to this Court

for an order authorizing the interception of wire com-

munications. (Appendix B1)

2. A letter of authorization, dated February 25, 1971,

purportedly signed by Will Wilson, Assistant Attorney

General, to the effect that Wilson had reviewed the “re-

quest and the facts and circumstances detailed therein”

and concluded that “probable cause“ exists to believe that

named persons were violating the narcotics laws, and a

further finding of probable cause to believe that they

will use the described communication facility in connec-

tion with those offenses. The letter continues as follows:

. Accordingly, you are hereby authorized under the

power specially designated to me in. this proceeding

by the Attorney General of the United States, the

Honorable John N. Mitchell, pursuant to the power

„Mitchell, has specially designated i

the Assistant Attorney General for the Criminal Division

of the United States Department of Justice, the Honor-

cation for an order authorizing the interception of wire

communications.” (Appendix B3)

4. The affidavits in support of the application. (Ap-

pendix B4)

5. The two orders of this Court granting the appli-

cation as “authorized by the Assistant Attorney General

for the Criminal Division of the United States Depart-

ment of Justice, the Honorable Will Wilson, who has been

designated in this proceeding by the Attorney

specially

General of the United States, the Honorable John N.

Mitchell, to exercise the powers conferred on the Attorney

General by Section 2516 of Title 18, United States Code.”

(Appendix B5)

6. The affidavit of Sol Lindenbaum, Executive Assist-

ant to the Attorney General, in which Mr. Lindenbaum

states: i

ts of the statute and also

concluded, from my knowledge of the Attorney Gen-

eral’s actions on previous cases, that he would ap-

prove the request if submitted to him. Because the

Attorney General was not available on this occasion,

I eee

he had given to me to act in the circumstances

that authorization be given to Maurice Mer-

ten to make application for an interception order.

(Appendix A7)

7. The affidavit of Harold P. Shapiro, Deputy As-

sistant Attorney General, Criminal Division, wherein Mr.

Shapiro states he signed Will Wilson’s hame to the let-

ter of authorization (Appendix B2) for the application

for the wiretap. (Appendix B6)

From these seven documents it can be seen that the

followed for approval of the Fernandez tap

was similar to that used in the Chavez tap, with two

major modifications:

Sol Lindenbaum placed John N. Mitchell’s initials on

the memorandum dated February 25, 1971, after con-

cluding that the request satisfied the statute. Linden-

baum stated that the memorandum “approved a request

that authorization be given to Maurice Merten to make

application for an intenception order.” Again, with def-

erence, the memorandum just does not say that. It

simply purports to “specially designate” Will Wilson to

exercise the to authorize the wiretap. By impli-

cation Will Wilson could have refused authorization for

th the designating memorandum of February 25,

„ purported to exercise the power so delegated to

A General. In addition, Harold Sha-

Deputy Assistant Attorney General, signed

's name to the letter of February 25, 1971.

it is apparent that neither the Attorney Gen-

his specially designated Assistant performed the

function required by the statute, that of

and determining whether such

of privacy was justified in the public

This procedure is not in accordance with the

ppeals for the Fifth Circuit has re-

Tanne

cedures set forth in 18 U.S.C. § 2516 and 2518 were not

followed (United States v. Robinson, decided January 12,

1972), copy of which is attached as Appendix C. The

Fifth Circuit held that Congress intended to vest a

“publicly responsible official subject to the political proc-

ess” with the responsibility for giving his “personal at-

tention” to such matters. This view was followed in

United Stathe v. Cihal, 386 F.Supp. 261 (W. D. Pa. 1972),

and United tes v. Aquino, —— F.Supp. —— (E. D.

Mich., Jan. 17, 1972).

“In the instant case, the allegation in the applications

that Will Wilson, the designated official, had reviewed the

requests and found probable cause was simply not true.

It is not clear what the District Court would have done

had it known the true circumstances, but it acted upon

an assurance that a high official as required by statute

had made the threshold determination to request authori-

ty to intercept these private conversations.

The enactment of Title III of the Omibus Crime Con-

trol and Safe Streets Act of 1968, the wiretap provisions,

was not free from difficulty. Strong views were expressed

von both sides of the question. 1968 U.S. Code, Con-

gressional and Administrative News, Vol. 2, pp. 2209-

2309. It was obvious that Congress was concerned about

“rubber stamp” approval of wiretap authorizations. The

dual requirement of executive and judicial determination

prior to such invasions may have been a determining

factor in the passage of the legislation. As the Court

of Appeals said in Robinson, supra:

Congress could justifiably feel it important that the

public know that only an identifiable person subject

to the political process could trigger the unknown,

unseen, unheard intrusion into private affairs that

constitutionally protected against unreasonable

searches, entitled to freedom from self-incriminatory

results, and presumptively innocent.

Since the statutory requirements were not met in this

case, the wiretap order is invalid and the intercepted

wire communications should be suppressed.

Il THE ORDER AUTHORIZING THE WIRETAP

WAS BEYOND THE AUTHORIZATION OF

THE ATTORNEY GENERAL FOR THE

APPLICATION.

From a reading of Section 2516 of Title 18, it is clear

that a dual screening process is required. First, a re-

sponsible Justice Department official must determine that

the procedure is warranted by the particular case. He

must, in order to make this essential determination be

satisfied that the proposed wiretap is related to a specific

offense, that normal procedures are inadequate, and that

statutory limitations are imposed upon the request.

These requirements “go a long way toward guaranteeing

that no abuse will happen.” Senate Report No. 1097,

U.S. Code and Congressional News, Vol. 2, p. 2185.

Secondly, a judicial officer above the magistrate level

(District Court or Court of Appeals, see 18 U.S.C.

§2510(9) (a)) must exercise that detached judgment

essential to meet the demands of the Fourth Amendment,

so that “no greater invasion of privacy [would be] per-

mitted than was necessary under the circumstances.”

Berger v. New York, 388 U.S. 41 at 57, 87 S.Ct. 1878,

at 1882. This aspect of the statute provides for the ju-

dicial order to accommodate the legitimate needs of law

enforcement” by permitting the authorization of the

carefully limited use of electronic surveillance. Katz V.

United States, 389 U.S. 347 at 356, 88 S.Ct. 507, at

514 (1967).

Once the Executive Department, acting through the

statutorily authorized official, has approved a “carefully

limited” request to the Court for a wiretap order, it

would defeat the purpose of the statute to allow the

and discriminate circumstances” were present to meet

States, supra.

Section 2518(1) of Title 18 provides that application

under oath be made to a judge, and that such application

: —

“shall state the applicant’s authority to make such ap-

plication,” and shall include a: N

(b) ... (iii) particular description of the type of

communications sought to be intercepted... .

In the instant case, the authority to make application

was granted by Will Wilson, specially delegated by the

Attorney General. See letters dated February 18, 1971,

and February 25, 1971. (Appendices A2 and B2) The

letters purport to authorize Maurice Merten to make ap-

plication to a judge for an order authorizing drug agents

“to intercept wire communications from a facility de-

scribed . . for twenty days.” (Emphasis supplied) Sig-

nificantly, the letter recites that a broader authorization

was sought, to “intercept .wire communications to and

from” certain telephone numbers. Thus, the Attorney

General limited the authorization to calls from the num-

bers. These letters of authorization were attached to

the formal applications. (Appendices A3 and B3)

Notwithstanding the “carefully limited” scope of the

aouthorization, application was made to the court for an

order authorizing the interception of wire communica-

tions “to and from” certain numbers.

That this question of “to and from” is significant to the

government as well as to the defense, it is only necessary

to look at United States v. Eckstein, et al., N.D.Cal. CR-

71-1531 SC dismissed February 18, 1972, in which five

letters of authorization

Acting on the application “authorized by the Assistant

Attorney General for the Criminal Division of the United

States Department of Justice, the Honorable Will Wilson,

who has been specially designated in this proceeding by

the Attorney General.. , the court authorized wire-

taps “to and from” the facility clearly in excess of the

executive authorization.

For these additional reasons, all wire communications

to to the specified telephone should be suppressed.

III. CONCLUSIONS

The entire area of electronic eavesdropping is a sensi-

tive one. It augers the police state our forefathers sought

to prohibit; and a future we must protect. The leg-

islative history of Title III of the Safe Streets Act sup-

ports the conclusion that Congress was aware of the po

tential for abuse in blanket power to wiretap. When

such a power is exercised, it must be with circumspection

consistent with this legislative purpose. Here the Con-

gress’ fears were realized. The “specially designated” As-

sistant Attorney General, Will Wilson, “did not examine

either file or expressly authorize either application.” (See

affidavits of Harold Shapiro, Appendix B6, and Henry

Petersen, Appendix A6.) The applications were handled

routinely in accordance with “standard procedures.” The

Court was told that Will Wilson, the special designee,

had reviewed the files. He had not. Additionally the

orders applied for and granted were in excess of the

scope of the invasion approved. The Fourth Amendment

that statutes such as this be interpreted strictly.

Only by literal compliance can this most serious of in-

trusions into man’s privacy be controlled. Any relaxation

—

of these self-imposed restraints can only weaken the

Constitutional protections in this important area.

Accordingly, the conversations intercepted pursuant to

the instant orders and all information obtained there-

from should be suppressed.

DATED: April 6, 1972

Respectfully submitted,

/s/ William L. Osterhoudt /s/ Murray B. Petersen

2 Defendant —— Defendant

Attorney for or

Vernon Baca Dolores

/s/ Andre T. Laborde /s/ Claude O. Allen

T. LABORDE Attorney for Defendant

Attorney for Defendant Jesse

/s/ Earle A.

/s/ Peter G. Keane EARLE A. PARTINGTON

PerTer G. KEANE Attorney for Defendant

Attorney for Defendant George

Ramirez

/s/ Clinton W. White

9 — = Attorney po —

‘AUL ALVARADO

Attorney for Defendant Olivia Miramontes

James Fernandez

/s/ James Giller

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

UNITED STATES OF AMERICA

GEORGE A TOD ACA

AFFIDAVIT

District of Columbia:

Sol Lindenbaum being duly sworn deposes and says:

At the times of the acts related in this affidavit I was

and I am now the Executive Assistant to the Attorney

General of the United States. I assist the Attorney

General in the review of various matters which require

his personal attention such as opinions, interpretations,

decisions of the Board of Immigration Appeals, applica-

tions for pardon and other forms of Executive clemency,

antitrust complaints, contracts, agreements, and proposed

offers in compromise. See Title 28, Code of Federal Reg-

ulations, Section 0.6.

The Attorney General has refrained from designating

any Assistant Attorney General to authorize, without his

the making of an application for an order

permitting the interception of wire or oral communica-

tions under Title 18, United States Code, Section 2516

(1). Rather, the Attorney General has required that all

requests for such authorization be referred to him for

consideration. In the normal course of my duties, I re-

view such requests and make recommendations to the At-

torney Generai thereon. I have routinely reviewed such

requésts since February 1969 and, accordingly, have be-

come familiar with the applicable statutory requirements

and the actions taken by the Attorney General on such

16, 1971, and February 25, 1971, the

Criminal Division of the Department of Justice addressed

to the Attorney General requests for approval of authori-

zation to apply for interception orders with respect to

certain telephones in California. The first request re-

lated to a telephone in Fremont, California, allegedly

used by Umberto Jose Chavez and others. The second re-

lated to a telephone in Union City, California, allegedly

used by a person identified only as Pelone“ and others.

In each instance, the request was accompanied by copies

of the proposed affidavit, application, and order, as well

as a recommendation for approval from the Criminal

Division.

With respect to the first, the Attorney General on

February 18, 1971, approved the request that the authori-

zation be given to Maurice Merten to make application

for an interception order with respect to the mentioned

telephone in Fremond, California. Attached is a copy

of the Attorney General’s personally initialed memoran-

dum of that date to Will Wilson reflecting his favorable

action on the request.

In the second instance, I reviewed the submitted ma-

terial, concluded that the request satisfied the require-

ments of the statute and also concluded, from my know

edge of the Attorney General’s actions on previous cases,

that he would approve the request if submitted to him.

Because the Attorney General was not available on this

occasion, I approved the request pursuant to the authori-

zation which he had given to me to act in the circum-

stances and caused his initials to be placed on 4 memo-

randum to Will Wilson. The memorandum approved a

request that authorization be given to Maurice Merten to

make application for an interception order. A copy of

this memorandum is attached.

/3/ Sol Lindenbaum

Sot LINDENBAUM

Executive Assistant to the

Attorney General of the

United States

Subscribed and sworn to before me this 9th day of

February, 1972.

/a/ Audrey Anne Crump

My Commission Expires August 31, 1976

2 |

Form DJ-150

(Ed 4-26-65)

UNITED STATES GOVERNMENT DEPARTMENT OF JUSTICE

MEMORANDUM

TO : Will Wilson DATE: Feb. 18, 1971

Assistant Attorney General

Criminal Division JNM:PTW:irt

oM : John N. Mitchell

Attorney General

/s/ J. N. M.

suBJECT: Interception Order Authorization

This is with regard to your recommendation that au-

thorization be given to Maurice K. Merten of the Crimi-

on to make application for an Order of the

urt under Title 18, United States Code, Section 2518,

“permitting the interception of wire communications for

a twenty (20) day period to and from telephone number

415-656-7178, located at 220 Carmelita Place, Fremont,

Pursuant to the power conferred on me by Section 2516

of Title 18, United States Code, you are hereby specially

designated to exercise that power for the purpose of au-

thorizing Maurice K. Merten to make the above-described

application.

Form DJ-150

(Ed 4-26-65)

UNITED STATES GOVERNMENT DEPARTMENT OF JUSTICE

MEMORANDUM

TO : Will Wilson DATE: Feb. 25, 1971

Assistant Attorney General

Criminal Division JNM :CLL:skh

FROM : John N. Mitchell

Attorney General

V J. N. M.

SUBJECT: Interception Order Authorization

This is with regard to your recommendation that au-

thorization be given to Maurice Merten of the Criminal

Division to make application for an Order of the Court

under Title 18, United States Code, Section 2518, per-

mitting the interception of wire communications for a

twenty (20) day period to and from telephone number

415-471-7260, located at 1845 G Street, Union City, Cali-

fornia, in connection with the investigation into possible

violations of Title 21, United States Code, Section 174

and Title 26, United States Code, Sections 4704(a) and

7237 (a) by persons identified only as “Pelone,” “Jim,”

“Jesse”, “Mondo,” “Olivia” and others as yet unknown.

Pursuant to the powers conferred on me by Section

2516 of Title 18, United States Code, you are hereby

specially designated to exercise those powers for the pur-

pose of authorizing Maurice Merten to make the above-

described application.

net TS

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

UNITED STATES OF AMERICA

GEORGE APODACA

AFFIDAVIT

District of Columbia:

Harold P. Shapiro, being duly sworn, deposes and says:

At the times of the events related in this affidavit, I

was a Deputy Assistant Attorney General in the Crimi-

nal Division of the United States Department of Justice.

This affidavit describes the processing within the Crim-

inal Division of the Department of Justice of a request

for authorization to make application to a Federal Court

for a wire interception order with respect to a certain

telephone in Union City, California, allegedly used by a

person identified only as “Pelone” and others.

The formal request for authorization to apply for the

25, 1971. Prior to action on the request, the Department

file, which included copies of the proposed affidavit, ap-

plication, and order, was reviewed in a special Unit of

the Organized Crime and Racketeering Section of the

Criminal Division by an attorney whose primary func-

tion was to review the entire matter for form and sub-

stance with particular emphasis on assuring strict ad-

herence to the meee statutory, judicial and Constitu-

tional standards. attorney of that Unit handling the

requests, Carl LoPresti, and his supervisor, Philip T.

White, reviewed the file and recommended favorable ac-

tion on the request. The file was then submitted for re-

view to Edward T. Joyce, a Deputy Chief of the Organ-

ized Crime and Racketeering Section, who recommended

approval of its request and sent it to me. I examined the

file and forwarded it to the Office of the Attorney General

with a detailed recommendation that the authorization be

granted. Following approval in the Office of the Attorney

General, the Criminal Division dispatched the letter dated

February 25, 1971, to Maurice Merten advising him that

he was authorized to present the application to the court.

I signed Will Wilson’s name to the letter of February

25, 1971, in accordance with the authorization of Will

Wilson and the standard procedures of the Criminal Divi-

sion, I regarded the signing of Will Wilson’s name as a

ministerial act, because Will Wilson had authorized me

to sign his name to and dispatch such a letter of author-

ization in — 2 in which the request had been

— pon in the Office of the Attorney Gen-

Wilson die did not examine the files or expressly

authorize an. applications, Attached is a copy of Will

Wilson’s t of September 15, 1971, respecting an

— thay letter dated June 16, 1969, in which he

stated that he had authorized me to sign letters of this

nature.

% Harold P. Shapiro

HAROLD P. SHAPIRO

oy Assistant Attorney

Criminal Division

February, 1972.

/8/ Audrey Anne Crump

My Commission Expires August 31, 1976

AFFIDAVIT ©

District of Columbia:

Will Wilson, Assistant Attorney General of the United

States, being duly sworn, states:

I am Assistant Attorney General in charge of the Crim-

inal Division of the United States Department of Justice

and have been since January 1969.

1 have authorized Deputy Assistant Attorney General

E. Petersen and Deputy Assistant Attorney Gen-

eral Harold Shapiro to sign my name to letters of author-

ization for application to United States District Courts

for orders under Title 18, United States Code, Section

2518, after such application had been approved by the

Attorney General.

The letter authorizing William G. Earle to make an

application to the court for an interception order with

a to certain telephones commonly used by Martin

Jesse Sklaroff at Miami International Airport was

signed for me by Mr. Petersen pursuant to my author-

ization. A copy of the carbon copy of this letter pres-

ently in 8 of the Department of Justice is attached

as t 1.

7%, Will Wilson

WILL WILSON

Assistant Attorney General

Criminal Division

Subscribed and sworn to before me this 15th day ot

Sept., 1971.

/a/ Audrey Anne Crump

My Comm. Expires 8/31/76

TW art June 16, 1969.

tional Airport near the entrance to Concourse 2 between

United and Northwest Airlines counters, carrying phone

numbers 691-9981, 691-9566, 691-9797, and 691-9528.

I have reviewed your request and the facts and cir-

„ Agent Ed-

erated in Section 2516 of Title 14 United States Code,

to wit: violations of Section 1084 of Title 18, United

to believe that the above person will make use of the

described facilities in connection with that offense, that

wire communications concerning the offenses will be in-

tercepted, and that normal investigative procedures are

unlikely to succeed or are too dangerous to be used.

Accordingly, you are hereby authorized under the pow-

er specially delegated to me in relation to the above

described offenses by the Attorney General pursuant to

power conferred on the Attorney General by Section

6, Title 18, United States Code, to make application

to a judge of competent jurisdiction for an order pursu- .

ant to Section 2518 of Title 18, United States Code,

authorizing the Federal Bureau of Investigation to inter-

cept wire communications from the facilities described

Sincerely,

WILL WILSON

Assistant Attorney General.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

UNITED STATES OF AMERICA

GEORGE APODACA

AFFIDAVIT

Henry E. Petersen, being duly sworn, deposes and says:

I am Assistant Attorney General in charge of the

Criminal Division. At the times of the events related

in this affidavit, I was a Deputy Assistant Attorney Gen-

eral in the Criminal Division, United States Department

of Justice. }

This affidavit describes the processing within the Crim-

inal Division of the Department of Justice of the request

for authorization to make application to a Federal Court

for a wire interception order pertaining to a certain

telephone in Fremont, California, allegedly used by

Umberto Jose Chavez and others. f

The formal request for authorization to apply for a

wire interception order in this matter was made by the

Director of the Bureau of Narcotics and Dangerous

Drugs on February 12, 1971. Prior to action on the re-

quest, the Department file, which included copies of the

proposed affidavit, application, and order, was reviewed

in a special Unit of the Organized Crime and Racketeer-

ing Section of the Criminal Division by an attorney whose

primary function was to review the entire matter for

form and substance with particular emphasis on assur-

ing strict adherence to the required statutory, judicial,

and Constitutional standards. The attorney handling the

matter, Philip T. White, of that Unit reviewed the file

and recommended favorable action on the request. The

file was then submitted for review to William S. Lynch,

Chief of the Organized Crime and Racketeering Section,

who recommended approval. The file was then sent to me.

„% aan

I examined the file and forwarded it to the Office of the

Attorney General with a, detailed recommendation that

the authorization be granted. Following approval in the

Office of the Attorney General, the Criminal Division

dispatched the letter dated February 18, 1971, to Maurice

K. Merten advising him that he was authorized to

present the application to the court.

I si Will Wilson’s name to the letter of February

18, 1971, accordance with the authorization of Will

Wilson and the standard procedures of the Criminal Divi-

sion. I regarded the signing of Will Wilson’s name as a

ministerial act, because Will Wilson had authorized me

to sign his name to and dispatch such a letter of authori-

zation in every instance in which the request had been

favorably acted upon in the Office of the Attorney Gen-

eral. Will Wilson did not examine either file or ex-

pressly authorize either application. Attached is a copy

of Will Wilson’s affidavit of September 15, 1971, respect-

ing an authorization letter dated June 16, 1969, in which

he stated that he had authorised me to sign letters of

this nature.

/3/ Henry E. Petersen

HENRY E. PETERSEN

Assistant Attorney General

Criminal Division

Subscribed and sworn to before me this 10th day of

February, 1972.

/s/ Audrey Anne Crump

My Commission Expires August 31, 1976

Will Wilson, Assistant Attorney General of the United

States, being duly sworn, states:

I am Assistant Attorney General in charge of the

Criminal Division of the United States Department of

Justice and have been since January 1969.

I have authorized Deputy Assistant Attorney General

Henry E. Petersen and Deputy Assistant Attorney Gen-

eral Harold Shapiro to sign my name to letters of au-

thorization for application to United States District

Courts for orders under Title 18, United States Code,

Section 2518, after such application had been approved

by the — General.

letter authorizing William G. Earle to make an

to the court for an interception order with

certain telephones commonly used by Martin

Sklaroff at Miami International Airport was

Mr. Petersen pursuant to my authori-

the carbon copy of this letter presently

Department of Justice is attached as

and

ati

/s/ Will Wilson

/ WILL WILSON

Assistant Attorney General

Criminal Division

Subscribed and sworn to before me this 15th day of

Sept., 1971.

/s/ Audrey Anne Crump

My Commission Expires August 31, 1976

92 |

Typed: June 9, 1969

WW :PTW:irt June 16, 1969.

Mr. William G. Earle,

Post Office Box 4139,

160 Northeast Fourth Street,

Miami, Fla.

Dear Mr. Earle: This is with regard to your request

for authorization to make application pursuant to the

provisions of Section 2518 of Title 18, United States

Code, for an order of the court authorizing the Federal

Bureau of Investigation to intercept wire communications

to and from four pay telephones at the Miami Interna-

tional Airport near the entrance to Concourse 2 between

United and Northwest Airlines counters, carrying phone

numbers 691-9981, 691-9566, 691-9797, and 691-9528.

I have reviewed your request and the facts and cir-

cumstances detailed in the affidavit of Special Agent Ed-

win J. Sharp and have determined that probable cause

exists to believe that Martin Sklaroff, Jess Sklaroff, and

others are engaged in the commission of.an offense enum-

erated in Section 2516 of Title 18, United States Code,

to wit: violations of Section 1084 of Title 18, United

States Code, and a conspiracy to violate this statute. I

have further determined that there exists probable cause

to believe that the above person will make use of the

described facilities in connection with that offense, that

wire communications concerning the offenses will be in-

tercepted, and that normal investigative procedures are

unlikely to succeed or are too dangerous to be used.

Accordingly, you are hereby authorized under the pow-

er specially delegated to me in relation to the above

described offenses by the Attorney General pursuant to

the power conferred on the Attorney General by Section

2516, Title 18, United States Code, to make application

to a judge of competent jurisdiction for an order pursu-

ant to Section 2518 of Title 18, United States Code,

authorizing the Federal Bureau of Investigation to inter-

cept ‘wire communications from the facilities described

Sincerely,

WILL WILSON

Assistant Attorney General.

—

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

UNITED STATES OF AMERICA

GEORGE APODACA, et al.

AFFIDAVIT

District of Columbia:

John N. Mitchell, being duly sworn, deposes and says:

I held the office of Attorney General of the United

States from January 21, 1969, through March 1, 1972.

On February 18, 1971, I approved a request for au-

thority to apply for an interception order in this case

and personally initialed a memorandum of that date re-

flecting my favorable action on the request. I have ex-

amined the original of this memorandum and certify

that it bears my initials which were personally aifixed

by me on February 18, 1971. Attacked is a copy of my

personally initialed memorandum of that date reflecting

my favorable action on the request. i

My memorandum of approval in this case constituted a

notification to the Assistant Attorney General of the

Criminal Division that the discretionary action of ap-

proving the request to make application to the court for

an interception order was taken by me.

—

/s/ John N. Mitchell

JOHN N. MITCHELL

Subscribed and sworn to before me this 20th day of

April, 1972. *

/s/ Audrey Anne Crump

My Commission Expires August 31, 1976

Form DJ-150

(Ed 4-26-65)

UNITED STATES GOVERNMENT DEPARTMENT OF JUSTICE

MEMORANDUM

TO : Will Wilson DATE: Feb. 18, 1971

Assistant Attorney General

Criminal Division NM: PTW art

From : John N. Mitchell

Attorney General

J. N. u.

SUBJECT: Interception Order Authorization

This is with regard to your recommendation that au-

thorization be given to Maurice K. Merten of the Crimi-

nal Division to make application for an Order of the

Court under Tide 18, United States Code, Section 2518,

tting the interception of wire communications for

a twenty (20) days period to and from telephone number

415-656-7173, located at 220 Carmelita Place, Fremont,

California, in connection with the investigation into pos-

sible violations of Title 21, United States Code, Section

174, and Title 26, United States Code, Sections 4704 and

7237, by Umberto Jose Chavez, Lionel Medina Costilla,

Jose Ybarra-Rivera, and others as yet unknown.

Pursuant to the power conferred on me by Section 2516

of Title 18, United States Code, you are hereby specially

designated to exercise that power for the purpose of au-

thorizing Maurice K. Merten to make the above-described

application.

—

95 4

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

UNITED STATES OF AMERICA

GEORGE APODACA, ET AL.

AFFIDAVIT

District of Columbia:

Philip T. White, being duly sworn, deposes and says:

This affidavit recites my knowledge concerning tlie

preparation of the memorandum addressed from John N.

Mitchell to Will Wilson, dated February 18, 1971. Sub-

ject: Interception order authorization, a copy of which

is attached.

I have no independent recollection regarding the prep-

aration of the memorandum described above. However,

the symbols appearing in the upper right hand corner of

the memorandum signify that I composed the text of the

memorandum and that my secretary, Lorraine R. Taylor,

typed it. |

My signed initials on the file copy indicate that I ex-

amined and approved the memorandum on or prior to

February 18, 1971.

/s/ Philip T. White

PHILIP T. WHITE

ae and sworn to before me this 2 day of June,

/8/ Jo Ann M. Hall

My Commission Expires January 1, 1977

—

Form DJ-150 =

(Ed 4-26-65)

UNITED STATES GOVERNMENT DEPARTMENT OF JUSTICE

MEMORANDUM

TO : Will Wilson DATE: Feb. 18, 1971

Assistant Attorney General

Criminal Division INM: PTW irt

FROM : John N. Mitchell

Attorney General

V JN. M.

SUBJECT: Interception Order Authorization

This is with regard to your recommendation that au-

thorization be given to Maurice K. Merten of the Crimi-

nal Division to make application for an Order of the

Court under Title 18, United States Code, Section 2518,

permitting the interception of wire communications for

a twenty (20) day period to and from telephone number

415-656-7173, located at 220 Carmelita Place, Fremont,

California, in connection with the investigation into pos-

sible violations of Title 21, United tSates Code, Section

174, and Title 26, United States Code, Sections 4704 and

7237, by Umberto Jose Chavez, Lionel Medina Costilla,

Jose Ybarra-Rivera, and others as yet unknown.

Pursuant to the power conferred on me by Section 2516

of Title 18, United States Code, you are hereby specially

designated to exercise that power for the purpose of au-

thorizing Maurice K. Merten to make the above-described

application.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

UNITED STATES OF AMERICA

GEORGE APODACA, ET AL.

AFFIDAVIT

Carl LoPresti, being duly sworn, deposes and says:

This affidavit recites my knowledge concerning the

preparation of the memorandum addressed from John N.

Mitchell to Will Wilson, dated February 25, 1971. Sub-

ject: Interception order authorization, copy attached.

I have no independent recollection regarding the prep-

aration of the memorandum described above. However,

the symbols appearing in the upper right hand corner

of the memorandum signify that I probably prepared the

text of the memorandum and that a secretary, Sandra

K. Hauschild, typed it.

My signed initials on the file copies indicate that I

examined and approved the memorandum on or prior to

February 25, 1971.

/s/ Carl LoPresti

CARL LOPRESTI

Subscribed and sworn to before me this 5th day of

June, 1972.

/s/ Lillian M. Fries

Notary Public

LILLIAN M. Fries, Notary Public

Pittsburgh, Allegheny County, Penna.

My Commission Expires July 17, 1973

Form DJ-150

(Ed 4-26-65)

UNITED STATES GOVERNMENT DEPARTMENT OF JUSTICE

MEMORANDUM

TO : Will Wilson DATE: Feb. 25, 1971

Assistant Attorney General

Criminal Division JNM:CLL:skh

FROM : John N. Mitchell

Attorney General

/af J. N. M.

SUBJECT: Interception Order Authorization

This is with regard to your recommendation that au-

thorization be given to Maurice Merten of the Criminal

Division to make application for an Order of the Court

under Title 18, United States Code, Section 2518, per-

mitting the interception of wire communications for a

twenty (20) day period to and from telephone number

415-471-7260, located at 1345 G Street, Union City, Cali-

fornia, in connection with the investigation into possible

violations of Title 21, United States Code, Section 174

and Title 26, United States Code, Sections 4704(a) and

7237(a) by persons identified only as “Pelone,” “Jim,”

“Jesse,” “Mondo,” “Olivia” and others as yet unknown.

Pursuant to the powers conferred on me by Section

2516 of Title 18, United States Code, you are hereby

specially designated to exercise those powers for the pur-

pose of authorizing Maurice Merten to make the above-

described application.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

Cr. No. 71-406 SAW

[Filed May 31, 1972, C. C. Evensen, Clerk]

UNITED STATES OF AMERICA, PLAINTIFF

v8.

UMBERTO JOSE CHAVEZ, IRENE CHAVEZ, JAMES FERNAN-

pEz, ANN FERNANDEZ, OLIVIA MIRAMONTES, JESSE

BUSTAMANTE, ARMANDO RAMIREZ, CARMEN RAMIREZ,

DELORES FERNANDEZ, GEORGE APODACA, MARGARET

APODACA, VERNON BACA, DEFENDANTS

MEMORANDUM AND ORDER

Defendants are charged with violating Federal nar-

coties laws (21 U.S.C. 88 173, 174 and 18 U.S.C. § 1952).

The question now before the Court concerns the legality

of two telephone wiretaps (hereafter the “Chavez wire-

tap” and the “Fernandez wiretap”*), which plaintiff

admits were key sources of evidence against defendants.

Defendants move to suppress all evidence gained

through the wiretaps, claiming that plaintiff failed to

comply with the governing requirements of the Omnibus

Crime Control and Safe Streets Act of 1968, 18 U.S.C.

§ 2510, et seq.

That statute evinced the decision of Congress that tele-

phone wiretapping is, in certain circumstances, necessary

to curb criminal activity. To insure that rights guar-

anteed by the Fourth Amendment would not be abused by

such tapping, various safeguards were included. Two are

The “Chaves wiretap” as initiated pursuant to an order (dated

February 18, 1972) of the Honorable Oliver J. Carter, Chief Judge

of the Northern District of California.

2 The “Fernandez wiretap” was initiated pursuant to an order

of Chief Judge Carter dated February 25, 1972.

100

relevant to the question now before the Court. The first

provides (in 18 U.S.C. § 2516):

The Attorney General, or any Assistant Attorney

General specially designated by the Attorney General,

may authorize an application to a Federal judge

for, and such judge may grant in conformity with

section 2518 . . . an order authorizing or approving

the interception of wire or oral communications

It will be noted that two separate matters are covered.

The Section, for one thing, empowers the Attorney Gen-

eral or any Assistant Attorney General specially desig-

nated by him to authorize application to a Federal judge

for approval of a wiretap and, for another, it empowers

the Attorney General specially to designate any Assist-

ant Attorney General to authorize such an application.

It should also be noted that authorizing an application

is no mere ministerial act. Under the statute, authori-

zation calls for the exercise of discretion as to whether

or not any application should be made.

This careful delineation as to who could authorize an

application and the réquirement for applications to be

authorized were intended to insure that only “a publicly

responsible official subject to the political process” could

exercise the discretion as to whether or not application

should be made to a Federal “judge for permission to

wiretap. Senate Report 1097, 1968 U.S. Code Cong. &

85. See United States v. Robinson,

5th Cir., Jan. 12, 1972) at 5-6. For a

more complete review of the statutory history, see United

States v. Focarile, Cr. No. 70-0483-M (D. Md., Feb. 22,

1972). A previously proposed bill had provided that any

officer of the Department of Justice or any United States

Attorney specially ee nae could authorize such appli-

101

power to decide whether or not to authorize an applica-

on. As Herbert J. Miller, Jr., then Assistant Attorney

General, Criminal Division, Department of Justice, testi-

fied, the advantage of the § 2516 over § 4(b) of S. 1495

is that the former gives “greater assurance of a respon-

v. Focarile, supra, at 35. [Iln itself,“ the Senate Re-

port states, “[§ 2516] should go a long way toward

ing that no abuses will happen.” 1968 US.

Code Cong. & Adm. News at 2185.

The second relevant statutory provision states (in 18

US.C. § 2518):

(1) Each application for an order authorizing or ap-

proving the interception of a wire or oral com-

munication . . . shall state the applicant’s authority

to make such application. Each application shall

include the following information:

(a) the identity of the investigative or law

enforcement officer making the application, and

the officer authorizing the application;

(4) Each order authorizing or approving the in-

terception of any wire or oral communication shall

(d) the identity of the agency authorized to

intercept the communications and of the person

authorizing the application; [emphasis added].

This plainly requires that both (1) the application to

the Court for authorization to wiretap and (2) the order

of authorization identify the “authorizing” officer.

The designated requirements are far more than tech-

nicalities. They are vital to the statutory scheme by

which Congress intended to insure that wiretapping re-

main a closely regulated procedure, amenable to public

102

and Congressional scrutiny. As the Court stated in

United States v. Focarile, supra, at 40-41:

those others to whom the contents of his order would

(see § 2518(4) (d), § 2518 (8) (d), and

§ 2519(1) (f)). Knowledge by the judge, by the per-

sons to whom the contents of the order would ulti-

mately be disclosed, and Congress and the public as

The evidence from plaintiff itself shows that the man-

dates of Congress were not met as to either of the wire-

103

Pursuant to the power conferred on me by Section

2516 of Title 18, . . . you are hereby specially desig-

nated to exercise that power for the purpose of au-

thorizing Maurice K. Merton [a Special Attorney of

the Department of Justice] to make the above-de-

scribed application.

Although the language of the memorandum appears to

designate Mr. Wilson as the Assistant Attorney General

to be vested with the discretion to authorize application

for the wiretap, the affidavit of Mr. Mitchell, filed here-

in, declares that he intended the memorandum to be his

own authorization for the application. Affidavit of John

Mitchell, filed May 4, 1972.“ The memorandum was then

forwarded, with the appropriate file to the office of Mr.

Will Wilson. Mr. Wilson, however never examined the

file. Mr. Henry Petersen, an assistant to Mr. Wilson,

performed the alleged “ministerial act” of signing Mr.

Wilson’s name to a letter addressed to Maurice K. Mer-

ten, authorizing application to a Federal judge. Affidavit

of Henry E. Petersen, filed Feb. 11, 1972.

Subsequently, an application for approval of the wire- -

tap was submitted to the Honorable Oliver J. Carter,

Chief Judge of this District. The application, signed

by Mr. Merten, states, without qualification:

. . . the Attorney General . . . has specially desig-

nated in the proceeding the Assistant Attorney Gen-

eral... , The Honorable Will Wilson, to authorize

affiant to make this application for an Order author-

izing the interception of wire communications. This

letter of authorization signed by the Assistant At-

torney General is attached to this application.

Chief Judge Carter, appropriately relying on this clear

language, approved the application and accordingly stated

in his order that the application had been,

* For present purposes, the Court assumes that the Memorandum

to Will Wilson constitutes an authorization under § 2516 and does

not reach defendants’ contentions (1) that the Memorandum is

insufficient on its face to constitute an authorization and (2) that

the affidavit is so inconsistent with the wording of the memorandum

as to throw doubt on its credibility.

able on this occasion, I approved the request pur-

suant to the authorization which he had given to me

to act in the circumstances and caused his initials

to be placed on a memorandum to Will Wilson.

The memorandum was then delivered to Mr. Wilson’s

office, where, as in the case of the Chavez wiretap, a sub-

ing Mr. Wilson’s name to a letter authorizing applica-

ion to a Federal judge. Again, Mr. Wilson never ex-

amined the application. Affidavit of Harold P. Shapiro,

filed February 11, 1972.

The application to Chief Judge Carter for the Fernan-

dez wiretap states:

. . . the Attorney General. . . has specially desig-

nated in the proceeding the Assistant Attorney Gen-

eral . . , The Honorable Will Wilson, to authorize

affiant to make this application for an Order author-

izing the interception of wire communications. This

letter of authorization signed by the Assistant At-

torney General is attached to this application. . .

Chief Judge Carter approved the application, stating in

his order, that the application had been:

authorized by the Assistant. Attorney General . . .,

the Honorable Will Wilson, who has been specially

designated in this proceeding by the Attornew Gen-

eral . . ., to exercise the powers conferred on the

Attorney General by Section 2516.

By plaintiffs own admission, it is clear that in the

case of both wiretaps: (1) Chief Judge Carter was mis-

informed by plaintiff as to the name of the individual who

had authorized application; and (2) the only individual

named in the application had never examined it, much less

exercised discretion to authorize it. No clearer evidence

could be adduced to show complete frustration of the op-

portunity for Congressional and public scrutiny required

by the statute as a means to protect Fourth Amendment

rights. The applications for these wiretaps (as well as

the orders relying on them) erroneously show that they

were authorized by the same man. In fact, neither of the

individuals who authorized the applications was in any

way identified to Chief Judge Carter, Congress or the

public. Evidence secured through the wiretaps must there-

fore be suppressed for failure to follow the Congressional

mandate set out in 38 2518 (1) (a) and 2518 (4) (d).

United States v. Focarile, supra, at 46-48; United States

v. Casale, Cr. No. 14927 (M.D. Pa., April 8, 1972).

In to the Fernandez wiretap, the government

also admits that neither the Attorney General nor a

specially designated Assistant Attorney General ever

authorized the application. Where rights so fundamental

as those protected by the Fourth Amendment are con-

cerned, non-compliance with a federal statute intended to

protect those rights cannot be excused. Good faith simply

is not sufficient. United States v. Robinson, supra; United

States v. Cihal, 336 F. Supp. 261 (W.D. Pa. 1972);

United States v. Aquino, 888 F. Supp. 1080 (E.D. Mich.

1972); United Sattes v. Baldassari, 388 F. Supp. 904

(M.D. Pa. 1972).

IT IS HEREBY ORDERED that the wiretap communi-

cations intercepted pursuant to the orders of Court dated

February 18, 1971, and February 25, 1971, and the

fruits thereof, are suppressed.

Dated: May 30, 1972.

/s/ Stanley A. Weigel

Judge

107

SUPREME COURT OF THE UNITED STATES

No. 72-1319

UNITED STATES, PETITIONER

UMBERTO JOSE CHAVEZ, ET AL.

ORDER ALLOWING CERTIORARI—Filed May 21, 1973

The petition herein for a writ of certiorari to the United

States Court of Appeals for the Ninth Circuit is granted.

* . 6. covennuent remsrine orice; 1073 soeses 696

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