U.S. v. Williams, s. 76-1169

• Decision Date: 22 June 1978
• Docket Number: 76-1406,Nos. 76-1169,76-1356,76-1355,s. 76-1169
• Citation: 188 U.S.App.D.C. 315,580 F.2d 578
• Parties: UNITED STATES of America v. George WILLIAMS, Jr., Appellant. UNITED STATES of America v. Rosa L. SUMPTER, Appellant (two cases). UNITED STATES of America v. Lussia REIN, Appellant. UNITED STATES of America v. James A. LINCOLN, Appellant. UNITED STATES of America v. Mary L. LINCOLN, Appellant. UNITED STATES of America v. Michele E. LINCOLN, Appellant. UNITED STATES of America v. Albert LINCOLN, Appellant. UNITED STATES of America v. Norris DuBOSE, Appellant. UNITED STATES of America v. Thelma DuBOSE, Appellant. , and 76-1635 to 76-1637.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 578

580 F.2d 578

188 U.S.App.D.C. 315

UNITED STATES of America v. George WILLIAMS, Jr., Appellant.

UNITED STATES of America v. Rosa L. SUMPTER, Appellant (two cases).

UNITED STATES of America v. Lussia REIN, Appellant.

UNITED STATES of America v. James A. LINCOLN, Appellant.

UNITED STATES of America v. Mary L. LINCOLN, Appellant.

UNITED STATES of America v. Michele E. LINCOLN, Appellant.

UNITED STATES of America v. Albert LINCOLN, Appellant.

UNITED STATES of America v. Norris DuBOSE, Appellant.

UNITED STATES of America v. Thelma DuBOSE, Appellant.

Nos. 76-1169, 76-1355, 76-1356, 76-1406, and 76-1635 to 76-1637.

United States Court of Appeals District of Columbia Circuit.

Argued March 23, 1977.

Decided April 12, 1978.

As Amended June 22, 1978.

Appeals from the United States District Court for the District of Columbia (D.C.Crim.Action Nos. 75-82, 76-33 and 75-227).

Fred Warren Bennett, Washington, D. C., (appointed by this court) for appellant in No. 76-1169.

Roger E. Zuckerman, Washington, D. C., with whom James L. Lyons, Jack Sinclair, Fred W. Bennett and Edward O'Connell, Washington, D. C., were on the brief, for appellants in Nos. 76-1355, 76-1356, 76-1406, 76-1635, 76-1636, 76-1637, 76-1638, 76-1639 and 76-1640.

Larry C. Willey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Robert Richard Chapman, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before McGOWAN, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Appellants were indicted on an assortment of charges stemming from their alleged participation in a gambling operation. ¹ After they sought unsuccessfully to suppress conversations monitored by judicially authorized wiretaps, ² they waived jury trials and were variously convicted on the basis of stipulated facts, thus preserving for appellate consideration their suppression claims. Finding no error in the District Court's ruling thereon, we affirm.

I

For about five years prior to 1974, ³ appellants' gambling business was the target of federal scrutiny through the use of informants and surveillance by agents of the Federal Bureau of Investigation. ⁴ Intelligence thus derived fostered the belief that a house on Seventh Street, Northwest, in the District of Columbia was the locus of a numbers operation, ⁵ and the FBI, by the District Court's authorization, installed pen registers on two telephones therein. ⁶ About two months later, on information gleaned to that point, authority to intercept communications over one of these lines was conferred. ⁷ After cessation of that wiretap, ⁸ approval for electronic surveillance of two telephones at a house on Landover Road, in Maryland, was obtained. ⁹ Search warrants were subsequently executed at District and Maryland locations where the FBI believed the operation was progressing. ¹⁰

Indictments followed, ¹¹ and appellants soon filed pretrial suppression motions. After two days of hearings, the District Court deferred consideration of one motion and denied the remainder, ¹² and after a further hearing rejected the deferred motion. ¹³ In this court, appellants contend that access to the conversations overheard in 1974 on the Seventh Street and Landover telephone lines was tainted by nine concededly illegal wiretappings conducted between 1970 and 1973. They also argue that the applications for the Seventh Street and Landover interceptions were defective under Title III of the Omnibus Crime Control and Safe Streets Act of 1969. ¹⁴ Thus they challenge on both grounds the court's refusal to ban the use of evidence derived by electronic surveillance at the Seventh Street and Landover locations. We now examine, in turn, these assertions of error. ¹⁵

II

The illegality of the nine 1970-73 wiretaps is not in dispute, for each has already been the subject of a judicial declaration to that effect. ¹⁶ The disagreement is over whether the Seventh Street and Landover wiretaps were similarly unlawful by reason of linkage to those transpiring before. ¹⁷ We need not reach this dispute, however, because we ultimately hold that the District Court properly concluded that appellants failed to establish their standing to benefit from any error inhering in the earlier monitoring.

Before an accused may be heard to complain that prosecution evidence should be suppressed because it was come by illegitimately, he must first make out his standing, which generally entails a demonstration that his own interests were affected by the challenged search or seizure. ¹⁸ With particular regard to electronic eavesdropping, the accused must show that it was directed at Him, that the Government intercepted His conversations or that the wiretapped communications occurred at least partly on His premises. ¹⁹ Unless he can establish one of these events, it is legally irrelevant that the surveillance was unlawful. And this rule remains true even if acquisition of the questioned evidence was not the direct result of unlawful conduct but instead was the fruit of the proverbial poisonous tree. ²⁰ Thus, it was incumbent upon each appellant seeking to contend that the earlier unlawful wiretaps tainted the later ones at Seventh Street and Landover and the evidence therefrom to show that the prior misconduct made possible an interception of his conversations or a breach of the privacy of his premises. ²¹

It is clear, however, that to facilitate an accused's effort to demonstrate that evidence employable against him is contaminated by illegal surveillance previously conducted, the Government, upon request, must "affirm or deny the occurrence of the alleged unlawful act." ²² And where, as here, it is unquestioned that there has been electronic eavesdropping and that it was unlawful, the pertinent response is one indicating whether the accused himself was victimized thereby. If the Government answers in the affirmative, the accused is entitled to examine the records incorporating the contents of any monitored conversation that he has standing to attack. ²³

Appellants sought records of eight of the 1970-73 wiretaps, ²⁴ asserting that one or more appellants had been overheard on them. The District Court directed each appellant whose conversations allegedly had been intercepted to file an affidavit delineating the circumstances supporting the claim, ²⁵ and only two undertook to do so. ²⁶ Appellant James Lincoln averred:

I have search my recollection to the best of my ability and can state the following. Certain persons said to be targets of wire interceptions listed as numbers 4 and 8 above were known to me during the period in which the illegal taps were operative. I spoke with them during this period and spoke with them by telephone. Because of the lapse of time, I cannot now recollect the telephone numbers that were involved, and accordingly I am unable in good conscience to aver with certainty that I spoke to the individuals in question over the illegally tapped telephone numbers. On the basis of my memory, however, I have set forth above, I believe that possibility is a substantial one. ²⁷

Appellant Rosa L. Sumpter filed an almost identical affidavit, differing essentially only in its allegation that she might have spoken over wiretapped lines 1, 2, 3, 5, 6 and 7 those which Lincoln had not mentioned. ²⁸ The Government, in turn, submitted letters from a responsible official of the Department of Justice stating that neither Lincoln nor Sumpter had been "monitored by any electronic device of the Federal Bureau of Investigation," ²⁹ or of either of six other federal agencies. ³⁰

In light of the Government's positive denial, appellants failed to carry their threshold burden of demonstrating that any of their conversations were intercepted, ³¹ and they urge neither of the other two traditional grounds of entitlement to records of wiretapped communications for use at a taint hearing. ³² Rather, they insist that the tapes and transcripts of the 1970-73 electronic surveillance must be provided to enable them to traverse the Government's denial. We disagree.

When the Government responds in the affirmative, the accused, as we have seen, may demand records only of monitoring of his own conversations, implicating his own premises or aimed at him. ³³ Because the Government states flatly that none of the eight wiretaps in question here involved monitoring of conversations of those types, appellants necessarily are seeking an audit of all of the intercepted conversations, which according to their own count number in the thousands and cover a period of several years. ³⁴ By that technique, individuals whose rights, according to the Government, have not been infringed would gain far greater access to evidence in the Government's possession than would an accused whose rights concededly were violated. Indeed, the curious logic of appellants' stance would require the Government, after the most unequivocal denial of an interception, routinely to bare the content of any wiretapped conversation to any accused who can claim that he just might have been overheard.

Appellants have pointed to no case wherein, despite a Government denial that electronic eavesdropping has affected an accused's protected interests, a court has ordered that records thereof be turned over to the accused to facilitate his proof of standing. On the contrary, it is well settled that an accused has "no right to rummage in government files," ³⁵ and that to "elicit ( ) what is in the Government's possession before its submission to the jury" he "must satisfy the trial court with (the) solidity" of his claim. ³⁶ Put another way, "tenuous claims (are not) sufficient to justify the trial court's indulgence of inquiry into the legitimacy of evidence in the Government's possession." ³⁷ We have, then, hewed to the view that the Government's denial must generally be accepted as...