U.S. v. John

Decision Date06 January 1975
Docket Number72-1581 and 72-1594,72-1566,Nos. 72-1565,s. 72-1565
Citation508 F.2d 1134
PartiesUNITED STATES of America, Appellee, v. Nick JOHN, Appellant. UNITED STATES of America, Appellee, v. Victor PADRATZIK, etc., Appellant. UNITED STATES of America, Appellee, v. Charles BERNSTEIN etc., Appellant. UNITED STATES of America, Appellee, v. Steve LEKOMETROS, etc., Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Irl Baris, Newmark & Baris, St. Louis, Mo., and Merle L. Silverstein, Clayton, Mo., for appellants.

Mervyn Hamburg, Atty., App. Section, Crim. Div., Dept. of Justice, Washington, D.C. for appellee.

Before Mr. Justice CLARK, * HEANEY, Circuit Judge, and SCHATZ, District Judge. **

HEANEY, Circuit Judge.

Victor Padratzik and Charles Bernstein were found guilty of violating 18 U.S.C. 1952 1 and of a conspiracy to violate the statute. Nick John and Steve Lekometros were found quilty of a conspiracy to violate the same statute. Evidence obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. 2510-2520) was essential to the government's case. Thirteen points of error are assigned on review; each will be discussed separately. We affirm.

I. THE CONSTITUTIONALITY OF 18 U.S.C. 1952.

Appellants assert, without supporting argument, that 18 U.S.C. 1952 is violative of the First, Fifth, Sixth and Tenth Amendments to the United States Constitution. This naked assertion of unconstitutionality is insufficient to warrant judicial review. United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). Moreover, we have upheld the constitutionality of the section in prior cases. See, e.g., United States v. Nichols, 421 F.2d 570 (8th Cir. 1970); Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev'd on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Bass v. United States, 324 F.2d 168 (8th Cir. 1963).

II. THE CONSTITUTIONALITY OF 18 U.S.C. 2515-2518.

Appellants also attack the constitutionality of 2515-2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. They invite us to reconsider United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), where we found Title III to be constitutional. We decline the invitation.

III. WHETHER THE GOVERNMENT'S FAILURE TO CORRECTLY IDENTIFY THE OFFICER WHO IN FACT AUTHORIZED APPLICATIONS FOR WIRETAP ORDERS PURSUANT TO 18 U.S.C. 2518(1)(a) REQUIRES SUPPRESSION OF THE WIRETAP EVIDENCE.

This issue was decided adversely to the appellants in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Here, as in Chavez, the application for the order authorizing the interception of wire communications misidentified the officer authorizing the application in violation of 18 U.S.C. 2518(1)(a). 2 At trial, it was established, by affidavit, that then Attorney General John Mitchell was the officer who in fact gave the authorization to apply for the order. 3 The Supreme Court in Chavez held that the initial misidentification, although improper, did not render the interceptions conducted under the order unlawful and subject to supression. It reasoned that 2518(1)(a) does not play a role in the regulatory scheme of Title III sufficient to justify the remedy of suppression when its provisions are violated. United States v. Chavez, supra, 416 U.S. 578-580, 94 S.Ct. 1857-1858, 40 L.Ed.2d at 394-395. See also United States of America v. Eugene Schaefer, et al., 510 F.2d 1307 (8th Cir. 1974); United States of America v. Steve Thomas, et al., 508 F.2d 1200 (8th Cir. 1974); United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. cox, supra.

Appellants request further that the case be remanded for an evidentiary hearing to challenge Mr. Mitchell's sworn statement that the authority to apply for the wiretap order was given before the order issued. 4 We deny the request. We have held that the Supreme Court has approved the procedure followed here. See United States v. Brick, supra, 502 F.2d at 227 (Bright, J., concurring). 5

IV. WHETHER THE POSTPONEMENT OF THE SERVICE OF THE NOTICE AND INVENTORY PURSUANT TO 2518(8)(d) OF THE ACT REQUIRES SUPPRESSION OF THE WIRETAP EVIDENCE.

During the course of the government's investigation between January 8, 1971 and May 14, 1971, four orders authorizing the interception of wire communications were issued. The investigation terminated with the arrest of the appellants on June 19, 1971. Only the first order, issued January 8, 1971, became subject to the notice and inventory requirements of 18 U.S.C. 2518(8)(d) 6 before the investigation terminated. 7 In order to preserve the effectiveness of the continuing investigation, the government applied for and received on April 22, 1971 and May 21, 1971, two successive orders of postponement of the service of the notice and inventory for the first wiretap order. The appellants assign this as error.

We emphasize that the inventory requirements were not ignored here. See United States v. Eastman, 465 F.2d 1057 (3rd Cir. 1972). Post-use notice must always be given by the issuing judge. United States v. Wolk, 466 F.2d 1143, 1146 (8th Cir. 1972). The notice here was received by the appellants after their arrest. Issue is taken only with the postponement of the notice and inventory which caused the service to occur more than ninety days after the termination of the first wiretap order.

Title III requires that an order of postponement be based upon 'good cause.' 18 U.S.C. 2518(8)(d). Here, the postponement was found by the District Court to be necessary for the continued effectiveness of the government's investigation. This reason has been held sufficient to satisfy the 'good cause' requirement. United States v. Manfredi, 488 F.2d 588, 602 (2nd Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Lawson, 334 F.Supp. 612, 616 (E.D.Pa.1971). See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Electronic Surveillance, 'Approved Draft 1971' at 161.

* * * On an ex parte showing of good cause, the serving of the inventory may be, not dispensed with, but postponed. For example, where interception is discontinued at one location, when the subject moves, but is reestablished at the subjects new location, or the investigation itself is still in progress, even though interception is terminated at any one place, the inventory due at the first location could be postponed until the investigation is complete. * * *

Senate Report No. 1097, 2 U.S.Code Cong. & Admin.News, p. 2194 (1968).

Moreover, we are satisfied, after reviewing the record, that the court below did not err in finding the facts sufficient to support the reason given. At least one of the persons affected by the first wiretap order was also affected by the other wiretap orders. It was probable that notice of the first order would have undermined the effectiveness of the subsequent orders. The completed wiretaps had produced evidence of a large scale gambling operation. Also, the preservation of the integrity of the subsequent orders was likely to result in the continued interception of incrimination communications. The postponement here was not improper.

V. WHETHER THE GOVERNMENT'S EXECUTION OF THE WIRETAP ORDERS DISREGARDED THE MINIMIZATION MANDATE OF 2518(5) OF THE ACT.

Appellants challenge, for the first time, the manner in which the government executed the wiretap orders. They assert that the government's continuous surveillance of the home telephones without regard to whether the persons suspected of illegality were on the premises 8 was violative of the minimization requirements of 18 U.S.C. 2518(5). 9 The government does not contest the factual assertions; it justifies its procedure thusly:

* * * A similar condition (to minimize surveillance) placed upon appellants' private lines would have been inappropriate because it would have prevented the agents from conducting a surveillance of pertinent calls actually intended for appellants, and because it would have impaired their rightful task to ascertain the identity of others believed to be involved in the conspiracy and the full extent of the book-making scheme.

We are not entirely satisfied with the justification given by the government. It may open the door wider than the Fourth Amendment permits. We do not decide in this case, however, whether the minimization requirements of 18 U.S.C. 2518(5) have been exceeded because the appellants failed to raise the issue below and such failure precludes review of this Court. Brooks v. United States, 500 F.2d 103, 105 (8th Cir. 1974); 18 U.S.C. 2518(10)(a). Moreover, because the attendant facts were not fully developed below, review pursuant to our discretionary power to recognize plain error is impossible. See United States v. Wright, 466 F.2d 1256, 1259 (2nd Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973). Whether the minimization requirements of Title III have been disregarded is a question that can be answered only after a review of the facts and circumstances of each case. What is excessive in one case may be appropriate in another. United States v. Cox, supra, 462 F.2d at 1300. See United States v. Manfredi, supra; United States v. Lanza, 349 F.Supp. 929 (M.D.Fla.1972). We leave to the appropriate occasion review of this question.

VI. THE GOVERNMENT'S FAILURE TO RECORD THE ENTIRETY OF EACH COMMUNICATION INTERCEPTED.

The appellant's second attack on the government's execution of the wiretap orders is also raised for the first time in this Court. They charge that the government violated 18 U.S.C. 2518(8)(a) which requires, inter alia, that the recording of the intercepted communications 'shall be done in...

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