560 F.Supp. 1040 (S.D.Fla. 1982), 82-73, United States v. Harvey

Docket Nº:82-73-Cr-SMA.
Citation:560 F.Supp. 1040
Party Name:UNITED STATES of America, Plaintiff, v. William Joseph HARVEY, et al., Defendants.
Case Date:August 30, 1982
Court:United States District Courts, 11th Circuit, Southern District of Florida
 
FREE EXCERPT

Page 1040

560 F.Supp. 1040 (S.D.Fla. 1982)

UNITED STATES of America, Plaintiff,

v.

William Joseph HARVEY, et al., Defendants.

No. 82-73-Cr-SMA.

United States District Court, S.D. Florida, Miami Division.

Aug. 30, 1982

On Motion to Vacate Restraining Order Feb. 14, 1983.

Page 1041

[Copyrighted Material Omitted]

Page 1042

[Copyrighted Material Omitted]

Page 1043

[Copyrighted Material Omitted]

Page 1044

[Copyrighted Material Omitted]

Page 1045

Stanley Marcus, U.S. Atty., S.D. Fla., by Neil Karadbil, Asst. U.S. Atty., Miami, Fla., for plaintiff.

James Jay Hogan, Joseph Beeler, Miami, Fla., for defendants.

Page 1046

INDEX

NOTE--Some parts of this form are wider than one screen. To view material that exceeds the width of this screen, use the right arrow key. To return to the original screen, use the left arrow key.

I. CONSTITUTIONALITY OF 18 U.S.C. §§ 2516, 2518 .................. pg. 1047

II. ALLEGED INVALIDITY OF ORDER UPON BASIS THAT AU- THORIZATION TO APPLY THEREFOR WAS NOT PERSON- ALLY DELEGATED ................................................ pg. 1048

III. AUTHORIZATION OF F.B.I. AGENTS TO INVESTIGATE DRUG-RELATED OFFENSES ............. pg. 1049

IV. MARIJUANA-RELATED DRUG OFFENSES MAY BE PREDI- CATE RACKETEERING ACTS UNDER RICO ............................. pg. 1050

V. PROBABLE CAUSE FOR THE OCTOBER 20, 1980 ORDER ................. pg. 1050

1. Sufficiency of probable cause in the Affidavit itself....... pg. 1050

2. Scope of RICO............................................... pg. 1053

3. Continuation of future conversations about past bribes, homicides, etc.............................................. pg. 1053

4. Staleness of the probable cause............................. pg. 1054

5. Necessity showing for the order was inadequate (use of alternative investigative techniques........................ pg. 1055

VI. SEALING REQUIREMENTS .......................................... pg. 1057

VII. THE ORDER OF NOVEMBER 20, 1980 WAS ALLEGEDLY IN- VALID ......................................................... pg. 1058

1. Carry-Over Objections....................................... pg. 1058

2. Insufficient probable cause for an extension................ pg. 1058

3. Was the district judge without authority to execute an extension order outside his territorial jurisdiction but operative within his territorial jurisdiction? ............. pg. 1058

VIII. THE ORDER OF DECEMBER 19, 1980 WAS ALLEGEDLY IN- VALID ......................................................... pg. 1058

1. Carry-Over Objections....................................... pg. 1058

2. Prior failure to name Defendant Kay as a target............. pg. 1058

IX. ALLEGED § 2517(5) VIOLATION (DISCLOSURE OF TITLE III INTERCEPT AS TO A § 848 OFFENSE).............................. pg. 1060

1. Section 848 was not an offense other than those specified in the order of authorization or approval under § 2517(5)................................................... pg. 1063

2. The requirement of §2517(5) was met......................... pg. 1066

X. THE EFFECT OF MISSING PAGE 21C ................................ pg. 1067

1. Alleged violations of Title III............................. pg. 1070

2. The allegation of intentional omission and the effect of missing page 21C on the showing of probable cause........... pg. 1073

XI. MINIMIZATION .................................................. pg. 1075

XII. FLORIDA STATE CHAPTER 934 INTERCEPT ........................... pg. 1076

1. Probable Cause.............................................. pg. 1077

2. Lack of Necessity........................................... pg. 1078

3. Improper Authorization...................................... pg. 1078

4. First and Second Extension Orders unlawful.................. pg. 1078

5. No authorization in Florida Statutes to wiretap for marijuana offenses.......................................... pg. 1079

6. Whether § 2517(5) was violated regarding the state wiretap..................................................... pg. 1079

ORDER DENYING MOTIONS TO SUPPRESS TITLE III ELECTRONIC SURVEILLANCE AND EVIDENCE DERIVED THEREFROM AND INCLUDING DENIAL OF MOTION TO SUPPRESS STATE TITLE III WIRE INTERCEPT AND EVIDENCE DERIVED THEREFROM

ARONOVITZ, District Judge.

Defendants WILLIAM JOSEPH HARVEY, THOMAS SIKES and DENNIS KAY 1 addressed Motions to Suppress electronic surveillance and any evidence derived therefrom to a Title III oral intercept of communications of William Joseph Harvey, John Dennis Cason, Robert Jernigan, Bruce Emory Griffin, Wesley Simkins, Mike McCrary, Skip Hope, Arthur Michael Sakell, Joseph William Campbell, Jr., Gary Balough and Parker Peak, at the office of William Joseph Harvey, Defendant, located at 1945 South Dixie Highway, Delray Beach, Florida, a towing business conducted by Delray Towing Service, Inc., of which Harvey was alleged to be president.

The Honorable Eugene P. Spellman, U.S. District Judge, Southern District of Florida,

Page 1047

entered the original order authorizing interception on October 20, 1980, for thirty (30) days (Defendant's Exhibit No. 4); an amended order on October 22, 1980 (Defendant's Exhibit No. 5); an order authorizing continued interception of oral communications for an additional thirty (30) days on November 20, 1980 (Defendant's Exhibit No. 16); and an order continuing interception for an additional thirty (30) days signed on December 19, 1980 (Defendant's Exhibit No. 26). The oral intercept commenced functioning on October 24, 1980, and remained in position and functioning until January 19, 1981.

A multitudinous attack has been made upon this Title III intercept. After reviewing extensively the original motions, all supplements thereto then pending, and the Government's omnibus response, this Court heard testimony and received evidence basically addressed to three (3) evidentiary issues, to-wit:

(1) The adequacy and sufficiency of minimization procedures and implementation;

(2) The effect of missing page 21C of the original affidavit of Harold Copus, Special Agent, F.B.I., not found among the unsealed original documents in this Title III intercept, as it related to the sufficiency of the affidavit itself to establish probable cause and as it related on a Delaware v. Franks [438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667], infra, basis and all issues arising from the omission of Page 21C from the original affidavit; and

(3) The adequacy of disclosure pursuant to 21 U.S.C. § 2517(3) and (5) in terms of a prior Florida state Title III wiretap and the federal Title III wiretap sub judice. Evidence was received with respect to the State Title III disclosure issue.

All other matters raised by the Defendants in these Motions to Suppress were legal issues and were heard extensively in oral arguments. The evidentiary hearings were conducted over a period of four days and oral argument thereon lasted one full day. Thereupon, having now considered the original Motion of William Joseph Harvey, five (5) Supplements thereto, the Motions of Thomas Sikes and Dennis Kay and all Supplements thereto, and considering the joinder therein of all co-defendants who are "aggrieved" persons, the Government's omnibus response, the testimony and evidence adduced and oral arguments, and being otherwise fully advised in the premises, it is thereupon

ORDERED AND ADJUDGED that each and every Motion to Suppress the Title III oral intercept and the evidence derived therefrom, and including Motions to Suppress the Florida Chapter 934 wire intercept and evidence derived therefrom, addressed by each and every Defendant entitled to do so by law is hereby DENIED, each respectively, for the reasons hereinafter set forth.

Findings of Fact and Conclusions of Law are made herein when applicable and required for those matters as to which testimony and evidence were received at an evidentiary hearing.

I. CONSTITUTIONALITY OF 18 U.S.C. §§ 2516, 2518

In its memorandum in support of the Motion to Suppress (p. 23) Defendant Harvey "candidly concedes that most federal and state courts faced with the issue have found Title III (18 U.S.C. § 2510, et seq.) constitutional on its face.... For the purpose of appeal, this issue is once again here raised...." In United States v. Sklaroff, 506 F.2d 837 (5th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975), the Fifth Circuit joined in the holdings of other circuits that Title III meets the constitutional tests for electronic surveillance set forth by the U.S. Supreme Court 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 (1966). See also

Page 1048

United States v. Tortorello, 480 F.2d 764 (2nd Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974). The statute in question is constitutional.

II. ALLEGED INVALIDITY OF ORDER UPON BASIS THAT AUTHORIZATION TO APPLY THEREFOR WAS NOT PERSONALLY DELEGATED

18 U.S.C. § 2516 provides that the Attorney General or any Assistant Attorney General specifically designated by the Attorney General may authorize an application for a wiretap. Here, authorization was given by Assistant Attorney General Philip B. Heymann (in charge of the Criminal Division) pursuant to Order No. 799-78 entered by Attorney General Griffin Bell on August 15, 1978 (Defendant's Exhibit No. 21). In August, 1979, Attorney General Benjamin Civiletti succeeded the Honorable Griffin Bell as Attorney General, although no new Order was issued prior to the wiretap authorization...

To continue reading

FREE SIGN UP