U.S. v. Bailey, s. 78-1623

• Citation: 607 F.2d 237
• Decision Date: 01 October 1979
• Docket Number: 78-1625 and 78-1682,Nos. 78-1623,s. 78-1623
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Otha C. BAILEY, Sr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Major MOSS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Lee WHITNEY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 237

607 F.2d 237

UNITED STATES of America, Plaintiff-Appellee, v. Otha C. BAILEY, Sr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Major MOSS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Lee WHITNEY, Defendant-Appellant.

Nos. 78-1623, 78-1625 and 78-1682.

United States Court of Appeals,

Ninth Circuit.

Oct. 1, 1979.

Rehearing Denied in Nos. 78-1623 and 78-1682 Nov. 9, 1979.

John M. Darrah, Seattle, Wash., J. Hartly Newsum, Nuxoll & Newsum, Bellevue, Wash. (argued), Francis J. Diskin, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Daniel H. Smith, Smith, Kaplan & Whithey, Seattle, Wash., for defendants-appellants.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY and ELY, Circuit Judges, and FITZGERALD, ^* District Judge.

FITZGERALD, District Judge:

Otha C. Bailey, Sr., Jimmie Lee Whitney, and Major Moss appeal from judgments of conviction following a jury trial with six co-defendants, not parties to this appeal. The jury found Bailey, Whitney, Moss and four other defendants ¹ guilty of conspiracy to possess with intent to distribute heroin and cocaine. ² In addition to conspiracy, Whitney was convicted of two counts of possession with intent to distribute heroin and cocaine ³ and four counts of knowingly and intentionally using a communications device to facilitate the conspiracy. ⁴ Besides conspiracy, Bailey was convicted of five counts of knowingly and intentionally distributing heroin, ⁵ and thirty-eight communications counts, and Moss was convicted of eleven counts of using a communication device to facilitate the conspiracy. We affirm the convictions of Bailey and Whitney, and reverse the conviction of Moss.

Over a period of one and a half years, commencing in 1976, the Drug Enforcement Administration (DEA) conducted an investigation centered on Otha C. Bailey, Sr., who was suspected of being the hub of a narcotics distribution system in the Seattle area. In April 1976, a search of Seafair Moving and Transfer, a business operated by Bailey and co-defendant Bonnie Faye Williams, uncovered narcotics paraphernalia and heroin residue on the premises. A court authorized touch-tone decoder was installed on Seafair's telephone line on February 15, 1977, and the suspects were placed under surveillance. In March and April 1977, a government informant was used to make five heroin buys from Bailey's organization.

Through the use of surveillance, touch-tone decoders, and information gained from the informant, the following pattern of distribution emerged. Bonnie Faye Williams would accept orders to buy narcotics; a call then would be made from Seafair to Daniels' answering service. Daniels operated two cleaning establishments known as "Dun-Rite" and "Nu Way." After receiving the call, Daniels would visit Seafair, from which location Bonnie Williams would soon depart to make delivery of the narcotics. Various "code words" were used when referring to the drug transactions.

Following one transaction between Bonnie Williams and the DEA informant, Bailey was observed meeting with Williams. Bailey was then followed to a bank where he deposited cash, including one prerecorded bill which the informant had passed to Williams at the drug sale.

An interview with an informant in San Diego identified Whitney as the source of Bailey's heroin supply, and a check of telephone records revealed calls placed over a period of months between Whitney's San Diego telephone numbers and the Seafair number. The touch-tone decoder at Seafair also established contacts to the telephones of Howard Bible and Major Moss, and to an after-hours establishment where Moss was employed as a cook.

Based in part on the foregoing information, a court-ordered wiretap was obtained to intercept incoming and outgoing calls from the telephone at Seafair.

This appeal raises two main issues: Whether the government's applications for court orders authorizing the wiretap on Bailey's business telephone complied with statutory requirements, and whether the evidence admitted at trial was sufficient to establish the participation of Moss in the single over-all conspiracy. In addition, appellants raise the issue of whether DEA agent Fitzgerald's expert opinion testimony regarding code words used in narcotics transactions constituted reversible error.

I. THE EXPERT TESTIMONY

At trial, over objection of defendants, DEA agent Dennis Fitzgerald testified for the government as an expert witness regarding the meaning and use of code words and commonly used phrases in drug transactions. ⁶ The trial judge disallowed questions regarding specific alleged code words used by defendants in their recorded conversations to refer to drugs and drug traffic. ⁷ The judge allowed the case agent to testify to the interpretation of general "street language" terms used in drug activity. The agent's testimony was therefore restricted to interpretation of commonly used drug jargon, and did not constitute an interpretation of the meaning of the telephone conversations themselves. ⁸ We hold it was clearly within the trial judge's discretion to admit Fitzgerald's testimony as an expert. Appellants additionally argue that as case agent, Fitzgerald's opinion lacked objectivity. Such an argument goes to the weight of Fitzgerald's testimony but it does not make the evidence inadmissible. United States v. Smith, 519 F.2d 516, 521 (9th Cir. 1975).

II. THE WIRETAP

A court-ordered wiretap of Seafair's telephone was authorized on August 15, 1977, resulting in the recording of hundreds of telephone calls between August 15 and September 9, 1977. At trial the government played tape recordings of numerous telephone calls between defendants which served to implicate them in a narcotics enterprise. The appellants contend the wiretap was illegal on a number of grounds.

Appellants' contention that the wiretaps statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ⁹ is unconstitutional on its face as violative of the Fourth Amendment must be rejected in light of United States v. Turner, 528 F.2d 143, 158-159 (9th Cir. 1975), Cert. denied sub nom. Lewis v. United States, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975), Sub nom. Hackett v. United States, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1976), which squarely held Title III to be constitutional under the Fourth Amendment.

Alternatively, appellants argue that the government's application for a wiretap authorization was inadequate in two respects. First, appellants contend that the government's application was Pro forma, and that the authorizing officer ¹⁰ improperly relied upon the representations made in the affidavits of the investigating officer rather than undertaking an independent examination. Second, appellants contend that the evidence should have been suppressed because normal investigative techniques had proved highly successful and therefore the necessity requirement of 18 U.S.C. § 2518(1)(c) was not met. ¹¹

A. Authorization

A government attorney, having received authorization from then Assistant Attorney General Benjamin Civiletti, submitted the application for a wiretap to the district court. The application contained a description of the purpose, probable cause, and necessity for the wiretap, and was supported by a 32-page affidavit of the investigating officer which contained a detailed factual history of the investigation up to that time, including names, dates, locations, and information obtained through touch-tone decoders, surveillance, and undercover transactions.

The district judge, on August 15, 1977, authorized use of the wiretap for 20 days. The wiretap authorization was extended on September 2, 1977 for another 10 days or until the information sought from the wiretap was obtained, whichever first occurred. The extension application was authorized by Assistant Attorney General John Harmon, and was supported by affidavit of the investigating officer with summaries of the information obtained from the wiretap and a description of the goals remaining in the investigation. On September 9, 1977, the wiretap was terminated.

The contention that the government's two applications were Pro forma must be rejected. The applications contained an exhaustive description of the investigation and outlined the information to be sought through the wiretap on Bailey's business telephone. It need not be shown that the authorizing official had knowledge independent of the affidavit or made specific findings of fact. United States v. Martinez, 588 F.2d 1227, 1233 (9th Cir. 1978). "Once a proper authorizing officer is properly identified . . . thereby fixing on him the responsibility for a particular authorization, the basis of which . . . he gave the authorization is not . . . subject to review for compliance with § 2516(1)." United States v. Turner, supra at 151. It is not necessary to show that the Attorney General reached his decision only after evaluation of the factual foundation for the recommendation upon which he relies. We conclude that the government's applications were sufficiently detailed, supported by an adequate affidavit, and properly authorized.

B. Necessity

The "necessity" requirement exists to limit the use of wiretaps because of their highly intrusive nature and to "assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Wiretaps are not to be used routinely as the first step in criminal investigations. United States v. Giordano,416 U.S. 505, 515, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). However, the necessity requirement is also to be interpreted in a practical and commonsense fashion, and need not therefore be used only as a last resort. United States v. Martinez, supra at 1231; United States v....