533 F.2d 838 (3rd Cir. 1976), 74-1845, United States v. Vento

Docket Nº:Steven VENTO, Appellant in 74-1845, et al.
Citation:533 F.2d 838
Party Name:UNITED STATES of America v.
Case Date:March 16, 1976
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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533 F.2d 838 (3rd Cir. 1976)

UNITED STATES of America

v.

Steven VENTO, Appellant in 74-1845, et al.

Appeal of Adrian MASTRANGELO, in 74-1850.

Appeal of Robert J. MENGINI, in 74-1887.

Appeal of Victor DeLUCA in 74-1945.

Nos. 74-1845, 74-1850, 74-1887 and 74-1945.

United States Court of Appeals, Third Circuit

March 16, 1976

Argued Nov. 20, 1975.

Reargued Jan. 14, 1976.

As Amended April 7, 1976.

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Robert E. J. Curran, U. S. Atty., David J. McKeon, Special Atty., Philadelphia, Pa., Shirley Baccus-Lobel, Kenneth G. Spillias, Attys., Dept. of Justice, Washington, D.C., for appellee.

A. Charles Peruto, Philadelphia, Pa., for appellant Vento.

Edward Reif, Philadelphia, Pa., for appellant Mengini.

Stanford Shmukler, Philadelphia, Pa., for appellant Mastrangelo.

Vincent J. Ziccardi, Philadelphia, Pa., for appellant DeLuca.

Before VAN DUSEN, ADAMS and ROSENN, Circuit Judges.

OPINION

ADAMS, Circuit Judge.

The wiretap provisions in Title III of the Omnibus Crime Control Act create a tension between the efficient pursuit of organized crime and the right of privacy. Title III obliges the courts to measure the permissible use of sophisticated electronic investigative tools against the specific restraints imposed by Congress to avoid undue intrusions upon privacy. This balancing process has engendered a growing literature on the law of electronic eavesdropping. Our decision represents another gloss on that text.

The prosecution of the defendants in this alleged conspiracy to distribute methamphetamine depended in large measure upon evidence from intercepted telephone conversations. Defendants claim that the gathering and use of such evidence against them was infested with error and that it was consequently inadmissible at the trial. 1

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Besides protesting the use of evidence obtained by wire intercept, defendants also charge that the search of defendant DeLuca's car without a warrant was improper, and that the evidence obtained in that search was inadmissible against at least DeLuca and Vento. Two of the defendants urge that there was insufficient evidence to connect them to the general conspiracy and that, therefore, the intercepted statements of their alleged co-conspirators should not have been employed against them. All contend that their convictions were fatally marred because they were denied an opportunity to question jurors about possible prejudice as a result of the supposedly hostile connection between an alternate juror and defendant Vento. Finally, the indictment itself is claimed to be defective for describing methamphetamine as "a Schedule II controlled substance," pursuant to an amendment of the schedules by the Attorney General, whereas the statute as enacted by Congress placed methamphetamine in schedule III.

FACTUAL BACKGROUND

Although the Justice Department had some prior interest in the alleged narcotics activities of Steven Vento, the central figure in this litigation, a serendipitous discovery led to the convictions before us. On June 20, 1973, the Philadelphia Strike Force of the Department of Justice applied to Judge Hannum for an order authorizing the installation of a pen register 2 on the telephone line of Nicholas Gregorio and the interception of conversations over that line. The affidavit accompanying the application contained information that formed the basis for believing that Gregorio and "others yet unknown" were engaged in theft and possession of goods stolen from interstate shipment. The Gregorio wiretap was to further the investigation of these crimes. Judge Hannum authorized the pen register and the wiretap, both to continue for fifteen days or until the accomplishment of the objectives set forth in the application, whichever was earlier. The district court also ordered that reports be submitted on the fifth and tenth days of the surveillance. Tapping of the Gregorio telephone began on June 21, and ended on July 2, the twelfth day. Reports were submitted to Judge Hannum on June 25 and June 29.

The Gregorio wiretap furnished the Strike Force with information that led to the indictment of Gregorio for theft of interstate shipment, but it also resulted in the interception of conversations respecting dealings in controlled substances. The conversations regarding controlled substances were relayed by the F.B.I. to the Drug Enforcement Administration (DEA). At the conclusion of the Gregorio surveillance a warrant for the search of his premises was obtained. While this search did not produce any evidence of value to a prosecution for theft from interstate shipment, the searchers did discover six ounces of methamphetamine in Gregorio's house.

Employing intercepted conversations from the Gregorio wiretap, as well as information obtained from DEA agents and informants, the Strike Force then applied to Judge Newcomer for a wiretap on a telephone located in the home of, and allegedly used by, Vento. In connection with this application, the material from the Gregorio wiretap was utilized without first securing permission from Judge Hannum for its disclosure.

Judge Newcomer authorized a wiretap and the use of a pen register on Vento's telephone line on July 12, 1973, and the monitoring began the same day. A five-day report, though not required by the terms of the order, was submitted on July

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20. The eavesdropping terminated on July 27, but on August 2, at the request of the Strike Force, Judge Newcomer permitted a continuation of the Vento surveillance. The Vento interception lasted from August 2 until August 10, with an undated five-day report submitted at some point.

On the last day of the continued surveillance of Vento's communications, DeLuca was observed entering the Vento home empty-handed and then reappearing with a small brown paper bag. Wiretapped conversations indicated that DeLuca had gone to Vento's house to consummate a transaction in methamphetamine. After he left Vento's house, DeLuca's car was stopped and both he and it were searched. DEA agents discovered in DeLuca's car a paper bag containing several ounces of methamphetamine, worth approximately $16,800 "on the street."

A four-count indictment of the eight defendants, based in part on the Gregorio wiretap, was returned on November 7, 1973. On January 28, 1974, the Strike Force obtained a disclosure order from Judge Hannum to permit the use of the Gregorio wiretap evidence at trial. Subsequently this wiretap evidence was submitted to the grand jury and a supplemental nine-count indictment was returned on January 30, 1974. The eight defendants were charged with conspiring knowingly and intentionally to distribute quantities of methamphetamine, and with knowingly and intentionally using a communications facility, a telephone, to expedite distribution of a controlled substance. In addition, Vento, DeLuca, and Gregorio were charged with distribution and possession of methamphetamine. The original indictment was later dismissed at the request of the government.

Motions to suppress with respect to the Gregorio wiretap, the search of Gregorio's house, the Vento wiretap, and the search of DeLuca's car were all denied.

Trial before a jury began on June 7, 1974, with Judge Green presiding. The prosecution sought to establish a conspiracy to distribute methamphetamine. To this end, testimony concerning more than fifty telephone conversations was introduced by the government. Agents familiar with the voices on the tapes identified the participants, then agents conversant with the language of the narcotics trade interpreted each communication for the jurors. The government also produced evidence of the physical surveillance of the defendants and evidence obtained by the searches and seizures. On June 28, the alternate jurors were dismissed and the case was submitted to the jury. The jury returned a verdict convicting each defendant on all applicable counts.

Weeks after the trial ended, Vento and his lawyer learned that an alternate juror, Mrs. Elizabeth Bewley, might have possessed injurious information about Vento: Vento had been accused, but acquitted, of the murder of Reginald Cullen, who was the brother-in-law of Mrs. Bewley's brother. The defendants suspected that Mrs. Bewley had prejudiced some of the other jurors by conveying this tainted information to them. On July 31 a hearing was held to question Mrs. Bewley and Mrs. Bewley's nephew, Richard Costello, who was identified as the original source of the tip about Mrs. Bewley. After hearing their testimony, Judge Green denied a request by counsel for leave to interrogate the other jurors.

Of the eight defendants, only Vento, DeLuca, Mengini, and Mastrangelo perfected appeals. 2a We affirm their convictions.

WIRETAP EVIDENCE

At the heart of this prosecution is wiretap evidence. There is little reason to believe that the government could have obtained convictions here if the recorded conversations had not been introduced. The defendants object strenuously to almost all steps in the interceptions as well as to the use of the wiretapped conversations. Consideration of these objections requires us to join the continuing review conducted

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by the federal courts of the procedures for authorization and use of wire interceptions. 3

  1. Probable Cause for the Gregorio Interception

    To obtain authorization for an interception of a wire communication, the government must show that:

    (a) there is probable cause for belief that an individual is committing, has committed or is...

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