U.S. v. Scully
| Citation | 546 F.2d 255 |
| Decision Date | 24 May 1976 |
| Docket Number | 74-1887,74-1888 and 74-1886,Nos. 74-2479,74-2295,74-1891,s. 74-2479 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Joseph Michael SCULLY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Cirilo Mitchell BASAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Robert Mitchell MACEDO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Steven James SANCHEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. George Enos CABRAL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Terrance Eugene MACEDO, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
John C. Emerson, Special Atty. U. S. Dept. of Justice (argued), San Francisco, Cal., for plaintiff-appellee.
Donal D. Cummins (argued), of Cummins, Holmes & O'Day, San Francisco, Cal., for defendant-appellant in Nos. 74-1886 and 74-1887.
Martin D. Lurie (argued), of Hamar & Lurie, San Francisco, Cal., for defendant-appellant in No. 74-1888.
Richard B. Mazer (argued), San Francisco, Cal., for defendant-appellant in No. 74-1891.
Sydney N. Tanner (argued), San Francisco, Cal., for defendant-appellant in No. 74-2295.
Timothy H. Power (argued), San Francisco, Cal., for defendant-appellant in No. 74-2479.
Before MERRILL and TRASK, Circuit Judges, and LUCAS, * District judge.
Appellants are six criminal defendants originally indicted along with 18 others for involvement in a heroin distribution ring. Thirteen of the original defendants pleaded guilty; the charges against four were dismissed; one is a fugitive. The remaining six, appellants here, were each convicted of one or more violations of federal narcotics laws for their part in the ring. They raised numerous issues on their appeals which were consolidated here.
Special Agent Sherrington of the Office of Drug Abuse Law Enforcement (then a part of the Bureau of Narcotics and Dangerous Drugs) conducted an undercover investigation of defendant Robert Macedo's drug activities from November 1972 through January 1973. During this period he made six purchases of heroin from Macedo or from Macedo's apparent intermediary.
In discussions with Sherrington, Macedo stated that he sold 10 to 24 ounces of heroin each day at a profit of $100 per ounce; that customers called him on the telephone and placed their orders for heroin; and that customers came to his residence to pick up their purchases.
As a result of this investigation the government applied for and was granted permission by United States District Judge Spencer Williams in order NDC-31 on January 31, 1973, to tap Macedo's telephone for 20 days. The application named Robert Macedo and Joseph Scully as the persons "known" to be engaged in the illegal heroin operation in violation of 18 U.S.C. § 2518(1)(b)(iv). Scully's role was disclosed in the affidavit in support of the application by means of information from an informant and information that Scully was present in Macedo's home at the time of one of the heroin sales to Sherrington. No other persons were named as "known." The order directed that there be reports to Judge Williams every 5 days on the progress being made. There was a further provision that there be a minimization of interceptions.
On February 14, 1973, the tap was concluded when Macedo moved to a new address. On February 20, 1973, Judge Williams approved another order, NDC-32, which authorized interception of conversations on Macedo's new telephone number and on Scully's phone number. Robert Macedo and Scully were again the only persons named as "known." These taps occurred between February 21, 1973, and March 12, 1973. Five-day reports and minimization were required under this order.
On March 13, 1973, Judge Williams approved order NDC-34 which permitted interception of conversations for 10 days on Scully's telephone, the interception of conversations on defendant Basas' phone, and the placement of a microphone at Basas' residence. Named as "known" were Macedo, Scully, and Basas. The Basas tap and bug were supported in part by information obtained by interceptions pursuant to the first two orders. Five-day reports and minimization were required.
On March 29, 1973, the government began arresting the members of the heroin ring as disclosed by the taps, purchases of heroin, and other facts. At this time, pursuant to search warrant, the residences of Robert Macedo and defendant Steven Sanchez were searched. Heroin and other contraband were seized at each location.
Prior to trial the district court considered various motions by defendants. After a hearing, the court found that the government should have named defendant Jewett Schetter in applications for NDC-32 and NDC-34 as an individual "known" to be engaged in the criminal enterprises. It ordered the incriminating wiretaps suppressed as to him, and the government dismissed the indictment. The court further ruled that defendant Scully with whom Schetter spoke in the intercepted calls lacked standing to raise in his own defense the violation of Schetter's rights. In a similar manner, the court ruled that three of the appellants who talked with Nancy Macedo, Robert's wife, lacked standing to assert in their defense the alleged violation of her rights by failure to name her as "known" in the application; Nancy Macedo had pleaded guilty.
A number of the appellants contended that they were "known" to be engaged in the illegal activity at the time the government filed its various applications and thus should have been named. The district court found that appellants had failed to meet their heavy burden of proof and declined to suppress the wiretaps.
The court also held a hearing on whether there was proper "minimization" of interception of innocent calls. The court limited the hearing to an examination of the instructions given by the two supervising attorneys and the agent in charge to the monitoring agents. No inquiry into the procedures actually followed on individual calls was permitted. The district court had before it all the tapes, transcripts, and a number of affidavits of the monitoring agents.
After a 7-week trial, the jury returned guilty verdicts against all defendants on all charges, except that it found Robert Macedo guilty on one count of a lesser included offense.
We consider first the principal issue raised, the alleged violations of the wiretapping statute. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197 (codified at 18 U.S.C. §§ 2510-2520), makes it a crime to willfully intercept any wire or oral communication except under certain specific circumstances or to willfully disclose or use the contents of any intercepted wire or oral communication except under regulated conditions. 18 U.S.C. §§ 2516-2519 detail the circumstances under which interceptions of wire or oral communications may be made and used. The principal thrust of appellants' argument is directed toward establishing that the government failed to comply with controlling statutes for wiretaps and the use of the information thereby obtained. This is not the first occasion upon which this subject has been examined by us. See United States v. Turner, 528 F.2d 143 (9th Cir. 1975); United States v. Swann, 526 F.2d 147 (9th Cir. 1975).
Robert Macedo and Scully contend there was no probable cause to name them in the NDC-31 order. The affidavit discloses the Macedo-Sherrington conversations and the purchases of heroin from Macedo and Macedo's apparent intermediary. These facts provided abundant probable cause to believe Macedo was conducting a large-scale heroin distribution ring using his telephone as a means of communication.
The affidavit also states that a confidential informant whose reliability had been demonstrated in arrests or convictions and the seizure of heroin in two prior cases generally linked Scully to illegal heroin sales. There is further related an incident in which a local police officer purchased heroin from an Amelia Miranda. Scully met Miranda in a shopping center, entered her car, drove off and parked at a dead end street, returned in the vehicle to the shopping center with Miranda, stepped out of the car, and left the scene. Miranda then passed an object on to an individual who in turn sold it to the police agent. The object was 22 ounces of heroin. In a similar manner, Scully on one occasion appeared at the Robert Macedo residence and quickly left. A short time later Sherrington purchased heroin from Macedo's apparent intermediary. These facts supply probable cause to believe that Scully was involved in the heroin distribution scheme.
Section 2518(3)(c) provides that a judge may give approval to a wiretap request if he determines "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous . . .." See also 18 U.S.C. § 2518(1)(c). The fact that Agent Sherrington was successful in making purchases from Macedo is relied upon by appellants to argue that further undercover work rather than wiretaps should have been followed. But according to the affidavits in support of the wiretaps, undercover work alone was not the complete solution to the crimes then being committed or to the identification of the perpetrators. Some of the conspirators worked principally by telephone, and ordinary surveillance could not have made them known or developed evidence by which their complicity could be established in court. Some of the informants refused to testify, and thus, without means of confirmation, their disclosures would be useless. In addition, given the extremely secretive methods used by drug dealers in general and Macedo in...
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