U.S. v. Scott

• Decision Date: 25 July 1975
• Docket Number: 74-2098,Nos. 74-2097,s. 74-2097
• Parties: UNITED STATES of America, Appellant, v. Frank Ricardo SCOTT, a/k/a "Reds," et al. UNITED STATES of America, Appellant, v. Bernis Lee THURMON, a/k/a Benjamin Thornton, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 751

516 F.2d 751

170 U.S.App.D.C. 158

UNITED STATES of America, Appellant, v. Frank Ricardo SCOTT, a/k/a "Reds," et al.

UNITED STATES of America, Appellant, v. Bernis Lee THURMON, a/k/a Benjamin Thornton, et al.

Nos. 74-2097, 74-2098.

United States Court of Appeals, District of Columbia Circuit.

Argued April 23, 1975.

Decided July 25, 1975.

Roger M. Adelman, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Stuart M. Gerson, Asst. U. S. Attys., were on the brief for appellant.

Laurence J. Kaiser, ^* with whom Sherman L. Cohn and Samuel Dash, Washington, D. C. (both appointed by this court), were on the brief for certain appellees.

David E. Schreiber, Washington, D. C., (appointed by this court), was on the brief for appellee Thurmon in No. 74-2098.

John A. Shorter, Jr. and Bernadette Gartrell, Washington, D. C., for appellee Scott.

Before MacKINNON and WILKEY, Circuit Judges, and JAMESON, ^** Senior United States District Judge for the District of Montana.

Opinion for the court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge :

The Government appeals from an order of the District Court suppressing all evidence derived from judicially authorized wiretaps because of a failure to observe the statutory requirement for minimization of the interception of telephone conversations. ¹ The order under review was entered following a remand by this court reversing an earlier order of the District Court which had suppressed the same evidence on identical grounds. United States v. Scott, 164 U.S.App.D.C. 125, 504 F.2d 194 (1974). We hold that the District Court failed to correctly apply the standards set forth in our earlier remand and therefore a reversal of the suppression order is again necessary. Because of the extended period of time which has elapsed since the commission of the offenses in question, we have undertaken a review of the intercepted conversations rather than remanding for additional consideration by the trial court. This study convinces us that suppression of the evidence seized through the wiretaps is not appropriate in this case, and the District Court accordingly should bring appellees to trial as soon as possible.

I

The material facts occurring prior to the initial remand are set forth in this court's opinion in United States v. Scott, supra. The decision of that appeal was held in abeyance pending issuance of the opinion in United States v. James, ² wherein this court established standards for assessing compliance with the minimization requirement. James identified four factors which determine the degree of minimization required in a given case: (1) scope of the criminal enterprise under investigation; (2) location and operation of the subject telephone; (3) Government expectation of the content of the calls; and (4) judicial supervision by the authorizing judge. 494 F.2d at 1019-21.

After James issued, we determined that the District Court had applied an improper standard in reaching its decision to suppress the wiretap evidence in the instant case:

As James and other cases make clear, any minimization determination requires an assessment of the reasonableness of the agents' efforts in light of the purpose of the wiretap and the information available to them at the time of interception. . . .

It appears that the trial court's conclusion that the agents made no attempt to minimize stemmed in large part from its conclusions that they failed to succeed. The court relied heavily upon the fact that some sixty percent of the intercepted conversations appeared to be unrelated to narcotics transactions. . . .

This court's intervening opinion in James indicates that an assessment of the reasonableness of agents' attempts to minimize must be judged on a considerably more particularized basis.

504 F.2d at 198. However, since we concluded that the record did not contain all the facts necessary for an assessment of the reasonableness of the agents' conduct, the case was remanded with the following directions:

The District Court, upon remand, should accept the call analysis and any other evidence that might appear to be of assistance in the resolution of this complicated minimization question. And, after assuring itself of the validity of the evidentiary offerings, it should again assess the reasonableness of the agents' conduct in light of James and the comments contained herein.

504 F.2d at 199.

Following our remand, the District Court held four days of evidentiary hearings, received into evidence the Government's "Call Analysis" ³ and the various reports made during the course of the intercept, and heard testimony by the Special Agent in charge of the investigation and the former Assistant U.S. Attorney who had prepared the Call Analysis. Based on this evidence, the court concluded that the Call Analysis is "an after-the-fact non-validated presentation of counsel for the Government" ⁴ and therefore rejected it in favor of the original characterization by the intercepting agents that 40% of the intercepted calls were narcotic related and 60% were not narcotic related. With respect to the James criteria, the court found that the taps were placed on residential rather than "business" telephones, that the interceptions revealed a criminal operation of lesser scope than originally anticipated, and that the authorizing judge was never informed that the agents were making no attempt to minimize. ⁵ Rather than seeking to identify specific conversations which should not have been intercepted, the court found that the admitted knowing and intentional failure by the monitoring agents to terminate the interception of any conversation rendered their conduct unreasonable and thus suppression of all evidence derived from the wiretaps was necessary.

II

Before analyzing the most recent suppression order, a few general observations about the meaning of the minimization requirement are appropriate. The statute provides that all wiretaps "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception." ⁶ Since interceptions need only be "minimized," Congress quite clearly contemplated that some irrelevant conversations will inevitably be intercepted. To hold that the monitoring agents must make a determination whether to minimize in the course of each individual conversation would be an open invitation to criminals to escape detection by the simple device of devoting the initial part of each call to non-criminal matters. Thus the only feasible approach to minimization is the gradual development, during the execution of a particular wiretap order, of categories of calls which most likely will not produce information relevant to the investigation. Once the monitoring agents have sufficient data to conclude that a particular type of conversation is unrelated to the criminal investigation, the minimization requirement obliges them to avoid intercepting future conversations as soon as they can determine that it falls within that category. Until such categories become reasonably apparent, however, interception of all calls will be justified under the wiretap authorization. ⁷ In addition, even after such a category is developed, it will likely still be necessary to intercept some portion of each call to determine whether it falls into the category being minimized. ⁸

Where neither party to the conversation is believed to be a participant in the criminal activity under investigation, the decision to minimize interception of their calls should be easily reached. Where at least one party is a suspected participant in the criminal conduct, the agents will need to amass considerably more data before they can reasonably conclude that further interception will produce no relevant information. It is of course possible that conversations involving suspected conspirators will deal exclusively with topics other than the conspiracy, but it is unlikely that such conversations will be readily subject to minimization.

III

As we stated in James, the standard of minimization is reasonableness which must be determined from the facts of each case:

The congressional reports accompanying the wiretap statute and decisions interpreting 18 U.S.C. § 2518(5) make it clear that the minimization standard, like the standards traditionally applied to the determination of probable cause, is one of reasonableness which must be ascertained from the facts of a given case. "What is important is that the facts in the application on a case-by-case basis justify the period of time of the surveillance." S.Rep.No.1097, 90th Cong., 2d Sess. 101, U.S.Code Cong. & Admin.News 1968, p. 2190 (1968).

494 F.2d at 1018.

Throughout these proceedings the Government has conceded that its agents did not minimize the interception of any conversations. ⁹ Thus its position has of necessity been that interception of all 384 conversations was reasonable under the facts of this case. The District Court, however, found that the failure to attempt minimization was itself proof that the interceptions were unreasonable:

The admitted knowing and purposeful failure by the monitoring agents to comply with the minimization order was unreasonable. Such conduct would be unreasonable even if every intercepted call were narcotic related.

Conclusions of Law, P 4.

Since the extent of minimization required in a particular case can only be determined during the course of the wiretap, ¹⁰ the District Court was clearly in error in asserting that the agents' behavior would be unreasonable under any circumstances. On the contrary, if every call intercepted had been narcotic related, there would have been no occasion to consider whether it was necessary to minimize. Our decision in James, which also involved a total surveillance, makes it clear that interception of all conversations may be consistent with minimization in appropriate circumstances. ¹¹

The trial court's error here lies in...