U.S. v. Agrusa

• Decision Date: 26 August 1976
• Docket Number: No. 76-1036,76-1036
• Citation: 541 F.2d 690
• Parties: UNITED STATES of America, Appellee, v. Salvatore Ross AGRUSA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 690

541 F.2d 690

UNITED STATES of America, Appellee, v. Salvatore Ross AGRUSA, Appellant.

No. 76-1036.

United States Court of Appeals,

Eighth Circuit.

Submitted April 12, 1976.

Decided July 6, 1976.

Rehearing and Rehearing En Banc Denied Aug. 26, 1976.

Sloan R. Wilson, Kansas City, Mo., for appellant.

Philip J. Adams, Jr., U. S. Dept. of Justice, Kansas City, Mo., for appellee; Bert C. Hurn, U. S. Atty., Kansas City, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and WEBSTER, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

Defendant Agrusa appeals his conviction of engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. § 922(a)(1). The case was tried to the court, ¹ trial by jury having been waived. ² Each of the contentions asserted by defendant on appeal concerns certain wire and oral communications which were intercepted by the Government in purported compliance with the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and other applicable law. We review at the outset the procedures leading to, and the nature of, the interceptions.

On February 28, 1974, the Government submitted a sworn application to Judge Hunter ³ seeking authority to intercept wire and oral communications of defendant and others at defendant's place of business in Independence, Missouri. The application asserted there was probable cause to believe that violations of 18 U.S.C. §§ 659, 2315 and 371 ⁴ had occurred and that the other requisites for the desired court order had been satisfied. Accompanying the application were an authorization for the application, dated February 27, 1974, and signed by then Attorney General William B. Saxbe, and an affidavit by an FBI agent, hereinafter discussed, setting forth the results of investigations to that date and purportedly establishing the factual basis upon which the application was predicated.

In an order dated February 28, 1974, Judge Hunter made specific findings that (1) probable cause existed to believe that defendant and others had violated the provisions of 18 U.S.C. §§ 659, 2315 and 371, (2) probable cause existed to believe that particular wire and oral communications concerning the alleged offenses could be obtained through the desired interceptions, and (3) normal investigative procedures had either been tried without success and reasonably appeared unlikely to succeed if continued or reasonably appeared unlikely to succeed if tried. The order authorized the Government to intercept wire and oral communications at defendant's place of business until such time as specified material facts were discovered or for a period of twenty days from the date of the order, whichever was shorter, provided that all Pursuant to this order, the parties stipulated, "the bug . . . was placed in the defendant's body shop, by a Government agent, without the defendant's permission, after regular business hours and at a time when the body shop was closed and locked."

interceptions were executed as soon as practicable and that they were conducted so as to minimize the interception of communications not otherwise permitted under Title III. The order also required the Government to provide progress reports to the court on three specified days within the maximum of twenty days authorized. Additionally, and of considerable importance to this appeal, the order authorized the Government "to make secret and, if necessary, forcible entry any time of day or night which is least likely to jeopardize the security of this investigation, upon the premises . . ., in order to install and subsequently remove whatever electronic equipment is necessary to conduct the interception of oral communications in the business office of said premises."

Subsequently, after the interception of communications tending to implicate the defendant in the firearms violation of which he was convicted below, the Government sought from the district court a supplemental order authorizing the use of these intercepted communications before the grand jury and at the trial in this case. This supplemental order, which the court entered, was required under the provisions of 18 U.S.C. § 2517 since the firearms offense is not among the offenses listed in 18 U.S.C. § 2516 for which wire and oral interceptions are permitted in the first instance. ⁵

The district court, without substantial comment, denied a motion to suppress, and transcripts of the intercepted communications were introduced in evidence at trial. The court, in an unreported memorandum opinion, found the defendant guilty. Defendant was sentenced to a term of four years, to be served concurrently with a prior sentence in another case.

On appeal defendant's contentions relate in each instance to the validity of the interceptions. We treat his contentions in the following order:

I. The Government's application for authorization to intercept did not state probable cause for the issuance of the order nor did it comply with the particularity requirements of Title III.

II. The Government's application for authorization to intercept did not adequately explain why other investigative procedures could not have been employed, as required by Title III.

III. The court order authorizing the interceptions did not comply with the minimization requirements of Title III.

IV. The court's supplemental order under 18 U.S.C. § 2517 was improper.

V. The district court could not, consistently with the Fourth Amendment and other applicable law, authorize a forcible and surreptitious intrusion into the defendant's place of business for the purpose of installing the electronic surveillance device.

VI. The Fifth Amendment proscribes the use of defendant's own intercepted statements against him.

We reject each of the above contentions and affirm the conviction.

I-IV

Defendant initially asserts that the Government's application did not establish probable cause under the Fourth Amendment and did not comply with the particularity requirement of 18 U.S.C. § 2518(1)(b)(i). ⁶ The contention is without Defendant next contends that the affidavit failed to contain "a full and complete statement as to whether or not other investigative procedures (had) been tried and failed or why they reasonably appear(ed) to be unlikely to succeed if tried or to be too dangerous", as required by 18 U.S.C. § 2518(1) (c). See also 18 U.S.C. § 2518(3)(c). ⁷ Aside from the fact that defendant did not raise this issue until his reply brief, see United States v. Campbell, 524 F.2d 604, 608 (8th Cir. 1975), we fully agree with the district court that the affidavit contained the required statement. The affidavit recited, inter alia, that the Government's informants were unwilling to testify for fear of reprisals against them and their families, that the Government had been and would be unable to obtain additional details of the illicit transactions which would be essential to a successful prosecution because the defendant and his collaborators possessed longstanding expertise in avoiding apprehension, that conventional searches and seizures would not yield such essential information as whether certain goods were stolen (since shippers and retailers frequently do not keep detailed records of their merchandise) or whether they were stolen from interstate commerce, and that infiltration was a dangerous and likely unsuccessful investigative technique because defendant was a knowledgeable member of the Kansas City criminal community. We recently discussed 18 U.S.C. §§ 2518(1)(c) and (3)(c) in United States v. Daly, 535 F.2d 434, 437-39 (8th Cir. 1976). Although we continue to recognize Congress' concern that wire and oral surveillance be restricted to situations where normal investigative techniques are unlikely to succeed or too dangerous, we conclude here, as we did there, that the district court properly found that the alternative means were inadequate.

merit. The application was supported by a nineteen page affidavit exhaustively relating information supplied by five informants, each of whom but one had a prior history of reliability. The information, which included numerous specific instances, some corroborated in various details, revealed a pattern of dealing in stolen goods which can only be described as extensive. It tended to link defendant with organized crime in Kansas City. In part, it raised serious question whether defendant was conducting a legitimate business at all. In sum, it established probable cause to believe that violations of 18 U.S.C. §§ 659, 2315, and 371 had occurred, were occurring, or would occur, and it complied with § 2518(1)(b)(i). Defendant's contention that the affidavit contained hearsay is similarly unavailing. Where, as here, there is a substantial basis for crediting the hearsay, it will not vitiate the finding of probable cause. Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Kleve, 465 F.2d 187 (8th Cir. 1972). We have carefully reviewed the affidavit and conclude that it amply complies with the Fourth Amendment and the statute.

Defendant's third contention asserts that the Government did not comply with one of the minimization provisions of 18 U.S.C. § 2518(7). ⁸ The Government correctly observes that the application of § 2518(7) is limited to situations where a specified emergency exists and the Government seeks to intercept for a brief period without prior court authorization. That section has no application here. However, we treat defendant's contention as in substance raising Defendant's fourth contention concerns the order which the district court entered pursuant to 18 U.S.C. § 2517. ¹⁰ He complains that "Judge Hunter never authorized the interception of such communications concerning the specific charge of firearms, but rather the general charges of stealing and fencing goods stolen from interstate shipments." This...