508 F.2d 867 (7th Cir. 1975), 71-1609, United States v. Quintana

Docket Nº:71-1609 to 71-1611.
Citation:508 F.2d 867
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rogelio QUINTANA et al., Defendants-Appellants.
Case Date:January 13, 1975
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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508 F.2d 867 (7th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rogelio QUINTANA et al., Defendants-Appellants.

Nos. 71-1609 to 71-1611.

United States Court of Appeals, Seventh Circuit

January 13, 1975

Argued Oct. 3, 1974.

Rehearing Denied Feb. 26, 1975.

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Allan A. Ackerman, Sherman C. Magidson, Frederick F. Cohn, Chicago, Ill., for defendants-appellants.

James R. Thompson, U.S. Atty., Gary L. Starkman and William J. Schilling, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, LAY, Circuit Judge, [*] and GRANT, Senior District Judge. [**]

LAY, Circuit Judge.

Defendants Leonides D. Suarez, Rogelio Quintana and Gilberto Alonso appeal from their convictions on various counts of narcotics offenses and conspiracy to distribute narcotics, in violation of 18 U.S.C. 2; 21 U.S.C. 174, and 26 U.S.C. 4705(a). They were convicted by a jury in 1971 in the Northern District of Illinois, the Honorable Bernard M. Decker presiding. We affirm the judgments of conviction of Leonides Suarez and Gilberto Alonso. We reverse the judgment of conviction of Rogelio Quintana on the ground that there is insufficient evidence to sustain the government's burden of proof.

The evidence at trial may be briefly summarized. The investigation which led to defendants' arrest began in Chicago in February 1970, when the Bureau of Narcotics and Dangerous Drugs (BNDD) was informed about a group importing large quantities of heroin and cocaine for distribution in this country. Agents Dominic Petrossi and Harry Fullett assumed undercover roles as underworld figures. In this capacity, the the agents in Chicago by a courier who members of the conspiracy 1 on February 25, 1970, to arrange delivery of drugs to Chicago. On the next day, 1400 grams of high-grade cocaine were delivered to of high-grade cocaine were delivered to was then followed to defendant Suarez's apartment building.

As the investigation proceeded, suspicion centered on Suarez's clothing store as the Chicago hub of the operation. In April 1970, the persons with whom the agents had previously dealt invited the agents to come to the store to meet with

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Suarez. The agents did so and Suarez offered to supply heroin at $25,000 per kilo. He also admitted having held that cocaine sold to the agents on February 26 prior to its delivery to them. Thereafter, the agents continued to purchase kilogram amounts of heroin and cocaine from the group.

On May 18, 1970, Chief Judge Robson of the Northern District of Illinois authorized a wiretap for twenty days on two phones, one at Suarez's home and the other at his clothing store. This order was later extended for fifteen days.

Thereafter the agents discussed further sales with Suarez, but no drugs were delivered until June 18, when the agents purchased a half kilo of heroin from defendants Suarez and Alonso. The same day, the agents arranged to purchase four kilos of cocaine from Alonso. On June 20, Suarez took the agents to a Chicago motel where they paid Alonso $40,000 in exchange for the cocaine. Petrossi then admitted other BNDD agents who arrested Suarez and Alonso.

All three defendants were convicted of conspiracy. Suarez was also convicted on eight substantive counts for drug sales on February 26, May 23, June 18, and June 20. Alonso was convicted on four substantive counts for the June 18 and 20 sales. On appeal, they challenge the use of wiretap evidence on the grounds that the tap was improperly authorized within the Justice Department and was conducted without any attempt to minimize interception of innocent conversation, in violation of Chief Judge Robson's order and the Fourth Amendment. Suarez also claims that (1) the agents illegally coerced him into the May and June sales, (2) that there is no proof of his knowledge of importation of the cocaine, and (3) that the trial court failed to answer the jury's questions properly. Defendants Alonso and Quintana challenge the sufficiency of the evidence connecting them with the conspiracy.

Wire Interceptions

The wiretap in this case was authorized in May 1970. An extension was granted in June 1970. Subsequent to trial, it was disclosed that these wiretaps were approved during the period that then-Attorney General Mitchell's executive assistant, Sol Lindenbaum, approved taps whenever the Attorney General himself was unavailable, in violation of 18 U.S.C. 2516(1). This court remanded the case to the trial judge, the Honorable Bernard Decker, on April 6, 1972, for a further evidentiary hearing on the authorization procedure used in the instant case.

On the basis of affidavits from Mitchell, Lindenbaum, Henry Peterson and a letter from Mitchell to Will Wilson, the Assistant Attorney General for the Criminal Division, Judge Decker on December 15, 1972, found that Mitchell had personally authorized the original application and that Sol Lindenbaum had authorized the extension order. Subsequently, the Supreme Court held, in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), that if a wiretap was in fact approved by the Attorney General, then suppression would not be required merely because the application indicated that Wilson rather than Mitchell was the authorizing official. Id. 416 U.S. at 565, 94 S.Ct. 1849. In a companion case, United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), the Court held that suppression was required where Lindenbaum rather than the Attorney General had given the authorization. Id. 416 U.S. at 508, 94 S.Ct. 1820. The government concedes that in light of Giordano, the extension order is invalid. The question remaining, therefore, is the validity of the original wiretap, which Judge Decker found Mitchell had personally approved.

Defendants argue that the evidence is insufficient to support the finding below that Mitchell personally authorized this wiretap application. First, they argue that the Fifth Circuit has, since the

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hearing on remand, found a closely related tap to be invalid due to approval by Lindenbaum rather than Mitchell. United States v. Robinson, 472 F.2d 973 (5th Cir. 1973) (en banc). Second, defendants now claim that without a statement from Mitchell himself to the effect that he personally reviewed the application in question, the evidence is insufficient to support the finding below.

First, defendants are clearly mistaken if their contention is that the taps found invalid by the Fifth Circuit in Robinson were the same as those with which we are concerned. The Robinson taps were on phones in Miami, rather than Chicago, and the requesting officers, authorization dates and supporting affidavits differ materially from those involved here. In Robinson, Lindenbaum's affidavit admitted that he, rather than Mitchell, reviewed the requests. In the present case, according to Lindenbaum's affidavit, the request to tap the Chicago phones was reviewed by Mitchell himself on May 14, 1970. We conclude that Robinson is not controlling. 2

Defendants likewise challenge the sufficiency of the affidavits as a statement of what part Mitchell took in approving the application. It is true that in Chavez, Mitchell's affidavit did assert that he had personally authorized the tap. United States v. Chavez, 478 F.2d 512, 514 (9th Cir. 1973), rev'd, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Defendants urge that the instant case is the only one in which Mitchell's own affidavit failed to detail his participation, if any, in the particular wiretap in question. On the contrary, at least four circuits have upheld wiretaps where the Attorney General's personal participation was proved, as here, through the affidavit of Lindenbaum and a Mitchell-initialed memorandum to Assistant Attorney General Wilson. See, e.g., United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1016-1018 (1974); United States v. Fiorella, 468 F.2d 688, 690 (2d Cir. 1972), cert. denied, 417 U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974); United States v. Ceraso, 467 F.2d 647, 650-651 (3d Cir. 1972); United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974). In each of these cases, Mitchell either filed no affidavit at all, or, as here, his affidavit failed to state what part he played in authorizing the challenged wiretap. In each case the court nevertheless found

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sufficient proof of Mitchell's personal review of the application.

Chavez did not require any particular form of proof of Mitchell's involvement. Lindenbaum's affidavit would not be insufficient under normal rules of evidence merely because Mitchell himself could have, but failed to, testify as to his part in reviewing this application. The affidavits of Lindenbaum and Mitchell show that Lindenbaum had the opportunity to observe how each application was handled, whether he or Mitchell actually authorized a particular tap. That showing of personal observation of the events to which he testifies makes Lindenbaum a competent witness. C. McCormick, Evidence 10 (2d ed. 1972); 2 J. Wigmore, Evidence 478 (3d ed. 1940). Thus, Judge Decker's reliance on the proof in the district court was not error.

The Invalid Extension Order

The government concedes that the June 10, 1970, order extending the wiretap for 15 days is invalid under United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Eleven conversations intercepted thereunder were used at trial, only three of which are independently admissible. 3 The government urges that the error in admitting the other eight conversations is harmless because the independently...

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