United States v. Bynum

• Decision Date: 06 June 1973
• Docket Number: No. 71 CR 1169.,71 CR 1169.
• Citation: 360 F. Supp. 400
• Parties: UNITED STATES of America, Plaintiff, v. Elvin Lee BYNUM et al., Defendants.
• Court: U.S. District Court — Southern District of New York

360 F. Supp. 400

UNITED STATES of America, Plaintiff, v. Elvin Lee BYNUM et al., Defendants.

No. 71 CR 1169.

United States District Court, S. D. New York.

June 6, 1973.

COPYRIGHT MATERIAL OMITTED

Paul J. Curran, U. S. Atty. S. D. N. Y., by W. Cullen MacDonald, Asst. U. S. Atty., for plaintiff.

Henry J. Boitel, New York City, for defendant Bynum, of counsel to defendant Nedd.

Patrick M. Wall, New York City, for defendants Cordovano, Wright, Birnbaum, Feroldi, Mitchell, Small, Garnett, Dyson and Nedd.

Aaron J. Jaffe, New York City, for defendants Wright, Small, Mitchell and Birnbaum.

Kenneth Salaway, Kew Gardens, N. Y., for defendants Wright, Small and Meli.

Frederick T. Stant, III, Norfolk, Va., for defendants Garnett, Dyson, Feroldi and Nedd.

H. Elliot Wales, Olshan, Grundman & Frome, New York City, for defendants Coniglio, Tuzzolino and Meli.

Frank Lopez, Brooklyn, N. Y., for defendant Altamura by Salvatore Canonico, Corona.

Levis Nedd, pro se.

Herbert I. Handman, New York City, for defendant Bynum.

FINDINGS AND OPINION

POLLACK, District Judge.

This case is presently on appeal from the conviction by a jury of 14 defendants of conspiracy to violate the narcotic laws and the conviction of appellant Nedd of carrying a firearm during the course of that conspiracy.

The government presented evidence at the trial of seven brief conversations which were electronically intercepted by an authorized telephone tap of phones located in the headquarters of the narcotics enterprise. The defendants are contending on their appeal that the management of the wiretap violated the standards for interception of oral conversations over a telephone and that the government consequently overheard conversations unrelated to the authorized purposes of the wiretap, albeit not used on the trial.

After hearing argument, the Court of Appeals, 2 Cir., 475 F.2d 832, remanded the case to the District Court for an evidentiary hearing and findings on the issue whether the electronic surveillance was conducted so as to minimize interception of communications not subject to interception under the statute.¹ Meanwhile, jurisdiction of the matter was retained by the appellate panel.

The required hearings on the inquiry by the Court of Appeals have been duly held in the District Court. The Judge who authorized and supervised the wiretaps (Hon. Anthony J. Travia), the Assistant United States Attorney in charge (Charles B. Updike), a monitoring agent and a narcotics agent who had analyzed the tapped data, as an aid to the Court, were examined and cross-examined. (One of the inspectors in charge, Bitzer, had already been examined and cross-examined on the wiretap at the trial.) The documentary evidence adduced included the wiretap orders, the regular reports to the supervising Judge from the United States Attorney in compliance with the orders, and the logs kept by the monitoring agents.² The reports to Washington as required by statute as well as the inventory and sealing orders and a copy of guidelines issued by the Department of Justice to its attorneys were also introduced. The parties also presented data which really amount to briefs, i. e., such items as the defense analysis of the taps, statistics compiled by the defense, summaries by the defense of selected calls; and contentions of the prosecution, and the analyses made by the prosecution of the evidence.

One fact stands out from the paper weight of all of the foregoing and that is, that the supervising Judge, the government attorney in charge and the agents showed a proper awareness of, sensitivity to and reasonable regard for the right of privacy. They did what under the circumstances was reasonable and understandable in the investigation of this far flung and widely ranging narcotics conspiracy case to ferret out and identify the violators and their part in the crime and the involvement with them of corrupt law enforcement officers. The statutory mandates for the authorization and conduct of wiretaps were legally observed. There was compliance in fact under the circumstances of this case with the statute and the directives from the Judge included in his written orders and verbal instructions to minimize to the extent reasonable the overhearing of unrelated and privileged matter.³

I.

A review of the validity of an electronic surveillance must include a determination of the perspective with which the investigating agents proceeded. The legitimacy of a search and seizure is neither established nor negated by a post-investigation analysis of what was produced by the search and seizure. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). The focus, rather, is on the reasonableness of the procedures employed by the investigators, supra. Essential to a constitutionally permissible intrusion into an individual's protected privacy is the presence of facts and circumstances which provide the investigators with probable cause to believe that individual is implicated in a criminal enterprise. Probable cause must exist as of the time of the intrusion, and the results of the investigation —which naturally informs the hindsight analysis of judges and lawyers —are not to be considered. With wiretaps, however, the degree of probable cause existing during the course of an investigation may fluctuate, since the growing amalgam of information received during the tap more sharply defines the skeletal data, inferences and sophisticated suspicions with which the investigation began.

Sometime in January 1971, Inspector Thomas P. Taylor of the Bureau of Narcotics and Dangerous Drugs (BNDD) came to Assistant United States Attorney Charles B. Updike who was then in charge of the Narcotic Unit in the office of the United States Attorney for the Southern District, with information suggesting that Elvin Lee Bynum was successfully operating a far flung narcotics trade, buying from and selling to numerous unknown co-conspirators, with the affirmative aid, counsel and protection of local and federal law enforcement officers, agents and their supervisors. Bynum's corruption of law enforcement officers as part of his narcotics empire had apparently reached such proportions that BNDD's internal investigations unit, the Office of Inspection, was galvanized to undertake a broad scale inquiry, involving interviews with numerous witnesses and examination of extensive documentary materials.

Moreover, prior investigations had obtained a taped record tending to implicate certain attorneys as potential co-conspirators in Bynum's venture, and tending to show that they were serving to advise Bynum, and those associated with him, how the conspiracy might best be conducted to serve their joint ends.⁴

Bynum's illicit activities reportedly centered in Brooklyn, New York and ranged outward to Boston, Baltimore, Washington, areas of Virginia and Atlanta.

The criminality believed to be included as adjuncts to the acquisition and distribution of narcotics, allegedly involved numerous murders, robberies ("take-offs" of other drug dealers), thefts, possession of stolen property, the use of lethal weapons, bribery and the obstruction of justice.

Bynum's past record included a federal narcotics offense. He was well schooled in narcotic law enforcement techniques including the use of electronic eavesdropping equipment. Latterly he had served as a government narcotics informer through which he had cultivated the acquaintance of narcotics agents, local law enforcement officials, telephone company employees and others. Conversely, the agents were aware of Bynum and how he operated. He was sophisticated in the field and presented a uniquely difficult and subtle law enforcement problem.

The BNDD requested the procurement of authority to "bug" Bynum's Linden Boulevard, Brooklyn premises together with a simultaneous wiretap installation on what was believed to be the only telephone located there. The tandem eavesdropping was to be able to decode otherwise largely indecipherable telephone conversations far sooner and more effectively than was possible by the clumsy and slower traditional methods of analyzing superficially innocent and coded conversation conducted in an argot and of dissecting these with surveillance and follow-up investigations.

Following these discussions with BNDD inspectors, Updike began to formulate a program for oral and wire surveillance and to plan for obtaining authorization for electronic interception.

Updike's decisions concerning the manner in which the surveillance, if authorized, should be executed were reasonably postulated on his perception of the following additional facts and assumptions:

The premises at 855 Linden Boulevard, where the phones subsequently tapped were located, had been identified by government agents as the nerve center of a massive criminal operation. All contemporaneous indications were that nearly everyone who came and went to those premises was criminally involved in the illicit activities. In furtherance of the operation of the enterprise, its members predictably would endeavor to use a telephone for business (communication). While Mae Garnett was known to live in the premises with Bynum's infant son, her use of the telephone was not thought to deviate to any practical extent from the policy of restricting social usage of the telephone.

Updike reasonably predicted certain problems, prospects, and requirements inherent in electronic surveillance and in equipment used therefor. Such postulates affected the plans he devised for the interceptions. The listening post needed to be located near the target premises due to range limitations of the radios available for communication with visual surveillance teams in the field. Use of pen register devices required time to decode the symbols for the number called, and this would impede the listening endeavor whenever simultaneously attempted.

In monitoring telephone communications the foreseeable problems...