535 F.2d 697 (2nd Cir. 1976), 794, United States v. Marion

Docket Nº:794, Docket 75-1408.
Citation:535 F.2d 697
Party Name:UNITED STATES of America, Appellee, v. Isadore MARION, Appellant.
Case Date:May 07, 1976
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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535 F.2d 697 (2nd Cir. 1976)

UNITED STATES of America, Appellee,


Isadore MARION, Appellant.

No. 794, Docket 75-1408.

United States Court of Appeals, Second Circuit

May 7, 1976

Argued March 5, 1976.

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Oscar B. Goodman, Las Vegas, Nev. (Elliot A. Taikeff, New York City, of counsel), for appellant.

Carl M. Bornstein, Sp. Atty., U. S. Dept. of Justice, New York City (Thomas J. Cahill, Acting U. S. Atty., for the Southern District of New York, John C. Sabetta, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before KAUFMAN, Chief Judge, and SMITH and ANDERSON, Circuit Judges.


To guard against the realization of Orwellian fears and conform to the constitutional standards for electronic surveillance operations elaborated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Title III imposes detailed and specific restrictions upon both the interception of wire and oral communications, and the subsequent use of the fruits of such interceptions, in an effort to ensure careful judicial scrutiny throughout. We are called upon to determine whether one of Title III's strictures requiring subsequent judicial approval for the incidental interception of communications relating to offenses other than those specified in an initial wiretap authorization, 18 U.S.C. § 2517(5) applies with equal force to wiretaps conducted under state auspices. For the reasons explicated herein, we conclude

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that § 2517(5) must control our decision, rather than the counterpart provision of New York's wiretapping statute, and that the Government failed to comply with that section before utilizing the intercepted communications in federal grand jury and criminal proceedings.


A brief overview of the facts relevant to this appeal will help to place the issues raised in their proper context. On December 20, 1973 and January 8, 1974, Isadore Marion appeared before a federal grand jury of the Southern District of New York under a grant of use immunity, 18 U.S.C. §§ 6001-03. He was questioned on the basis of two conversations intercepted and recorded pursuant to eavesdropping warrants issued by a Justice of the New York State Supreme Court on February 3 (the "Lounge order") and March 15, 1972 (the "Delmonico order"). The "Lounge order" authorized electronic surveillance of a telephone at Jimmy's Lounge in Manhattan for the interception of communications relating to various state offenses, including grand larceny by extortion, felonious assault, and conspiracy to commit these crimes, N.Y. Penal Law, Arts. 155, 120, 105. The "Delmonico order", for the telephone of a suite in the Delmonico Hotel, authorized interception of calls relating, inter alia, to the state offense of possession of dangerous weapons, N.Y. Penal Law, Art. 265.

In the first conversation, intercepted pursuant to the "Lounge order," Marion asked one Vincent Tortora to "mess up" seven or eight trucks belonging to a New Jersey carter named Capasso. 1 In his December 20 testimony before the grand jury, Marion admitted that he initiated this plan in order to influence Capasso in a pending corporate vote, but repeatedly asserted that he could not recall the nature of that vote. Though Tortora had offered in the course of the conversation to do the dirty deed as a favor, Marion told him to charge for his services but to "be fair though, 'cause there's good people involved too." In his grand jury testimony, however, he stated that no one other than he and Tortora had been involved and gave an explanation for his request that Tortora exact a fee that was less than wholly convincing.

The second intercepted conversation, recorded pursuant to the "Delmonico order" between Marion and Jack Denero, involved arrangements for delivery of an "unregistered" "thing" to Marion in Las Vegas. In his December 29 grand jury appearance, Marion acknowledged that they were discussing an unregistered pistol but gave several inconsistent reasons why he wanted the weapon. 2 In his January 8 testimony, after declining a proffered opportunity to correct or change his prior testimony, he gave yet another reason that he had sought the pistol in order to sell it in Las Vegas. 3

On the basis of the inconsistency between this last declaration and the December 20 statements, Marion was indicted by a federal grand jury for perjury, 18 U.S.C. § 1623(c) (Count 1). His allegedly false and evasive testimony concerning his purpose in seeking the pistol, and less than wholly forthright answers about the truck-wrecking project, constituted the predicate for two counts of obstruction of justice, 18 U.S.C. § 1503 (Counts 2 and 3).

Before trial, Marion moved to have the indictment dismissed because evidence derived from the state authorized electronic interceptions had been presented to the federal grand jury in violation of 18 U.S.C. § 2517(5). 4 Specifically, he averred that no

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application had been made to a judge of competent jurisdiction to obtain authorization for use of the contents of the intercepted communications prior to their presentation to the grand jury. Judge Conner rejected the contention that § 2517(5) had been violated as "totally without foundation" and denied the motion to dismiss the indictment.

After a four-day trial before Judge Conner and a jury in the Southern District of New York, Marion was convicted on all three counts. The Government's proof at trial consisted almost in its entirety of pertinent portions of Marion's testimony before the grand jury on the two dates in question and the tapes of the two intercepted conversations. Judge Conner, on November 20, 1975, suspended imposition of sentence and placed Marion on probation for concurrent terms of three years as to each count.


"Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices." Berger v. New York, 388 U.S. 41, 63, 87 S.Ct. 1873, 1885, 18 L.Ed.2d 1040, 1054 (1967). Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., attempts to heed the Supreme Court's admonitions as it prohibits, in all but a few instances, the interception and disclosure of wire or oral communications. Where the interception may provide evidence of specified serious crimes, however, such activities may be permitted pursuant to the Act's stringent and detailed procedures designed to restrict electronic intrusions into privacy. Under certain circumstances the Attorney General of the United States or the corresponding state or local prosecuting attorney, where further authorized by state statute may apply to a judge of competent jurisdiction for an order authorizing such interceptions. § 2516(1), (2). The application must specify the offense for which evidence is sought. § 2518(1)(b)(i). And before granting the application the judge must determine, inter alia, that probable cause exists for believing that "communications concerning that offense" will be obtained, § 2518(3)(b), and that other investigative procedures either have been tried and failed, or reasonably appear to be unlikely to succeed (or too dangerous) if attempted. § 2518(3)(c). Finally, the judge's order approving the interception of any wire or oral communication must provide a specific "statement of the particular offense to which it relates." § 2518(4)(c).

Communications intercepted in accordance with the procedures set forth in Title III, and evidence derived therefrom, may be disclosed and used in federal or state criminal and grand jury proceedings unless the communication "relat(es) to offenses other than those specified in the order of authorization or approval . . . ." § 2517(5). In such instances, a subsequent application must be made to a judge of competent jurisdiction who shall thereupon determine the good faith of the original application before permitting disclosure or use of the incidentally intercepted communications.

Such subsequent application would include a showing that the original order was lawfully obtained, that it was sought in good faith and not as subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order.

S.Rep. 1097, 90th Cong., 2d Sess., at 12, quoted in 2 U.S.Code Cong. & Adm.News, pp. 2112, 2189 (1968); H.Rep. 488, 90th Cong., 1st Sess., at 100.

The framers of Title III presumably intended by this requirement to prevent evasion of the several restrictions upon original

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applications (e. g., showing of probable cause, enumerated serious crime, ineffectiveness of other investigatory techniques as to that offense). Otherwise, the applicant could easily name one crime while in fact he may have anticipated intercepting evidence of a different crime for which the prerequisites could not be satisfied. Such "subterfuge searches", in addition to their dissonance with Title III, would indeed run afoul of the Fourth Amendment. Without a judge's determination of inadvertence, Title III authorization might rapidly degenerate into what Justice Clark recently termed "the electronic equivalent . . . of a 'general search warrant.' " United States v. Brodson, 528 F.2d 214 (7th Cir. 1975).


These general considerations help to guide our resolution of the specific question posed by this appeal: whether subsequent judicial approval was required by § 2517(5) before communications intercepted pursuant to state court authorized wiretaps could be used in the federal grand jury and criminal proceedings. Before reaching that decision, however, we must...

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