789 F.2d 1492 (11th Cir. 1986), 83-5102, United States v. Van Horn

Docket Nº:83-5102, 84-5138.
Citation:789 F.2d 1492
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marion VAN HORN, Scott Bertelsen, Gary Balough, Dennis Kay, Robert Van Horn, Dennis Cason, Thomas Sikes, John Crosby Bertelsen, Joseph William Campbell, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. William Joseph HARVEY, a/k/a Billy, Defendant-Appellant.
Case Date:May 23, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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789 F.2d 1492 (11th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marion VAN HORN, Scott Bertelsen, Gary Balough, Dennis Kay,

Robert Van Horn, Dennis Cason, Thomas Sikes, John

Crosby Bertelsen, Joseph William

Campbell, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee,

v.

William Joseph HARVEY, a/k/a Billy, Defendant-Appellant.

Nos. 83-5102, 84-5138.

United States Court of Appeals, Eleventh Circuit

May 23, 1986

As Amended on Denial of Rehearing and Rehearing En Banc July 25, 1986.

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Richard Harris, Neil Karadbil, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee in 83-5102.

Paul D. Lazarus, Nurik, O'Donnell & Lazarus, Lauderdale, Fla., for Scott Bertelsen.

David Goodhart, Goodhart & Rosner, Paul M. Rashkind, Miami, Fla., for Thomas Sikes.

Paul M. Rashkind, Miami, Fla., for J.C. Bertelsen.

Ronald A. Dion, Entin, Schwartz, Dion & Sclafani, North Miami Beach, Fla., for M. Van Horn, R. Van Horn, Dennis Kay, Dennis Cason, Gary Balough, Scott Bertelsen & Joseph William Campbell.

James J. Hogan, Miami, Fla., George Robert Blakey, Notre Dame Law School, Notre Dame, Ind., for defendants-appellants.

Neil Karadbil, Ft. Lauderdale, Fla., Jon May, Linda Collins Hertz, Richard Kamp, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee in 84-5138.

Appeals from the United States District Court for the Southern District of Florida.

Before FAY and KRAVITCH, Circuit Judges, and HENLEY [*], Senior Circuit Judge.

KRAVITCH, Circuit Judge:

Ten different defendants challenge their convictions under various charges stemming from a marijuana importation and distribution ring. 1 The ring, masterminded by appellant William Joseph Harvey, operated between 1978 and 1982. Harvey ran the operation from his office at the Delray Towing Service, a business he owned in Delray Beach, Florida. The organization used speedboats to transport marijuana from large freighters into the United States, and then distributed the marijuana.

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There is no contention that the evidence was not sufficient to show the participation of all of the appellants in the conspiracy. The prosecution, however, relied on evidence obtained by electronic surveillance of Harvey's office at Delray Towing. All of the appellants challenge the legality of the surveillance and contend that the evidence should not have been admitted. The district court conducted an evidentiary hearing and, after long and careful consideration, denied the appellants' motion to suppress the evidence. United States v. Harvey, 560 F.Supp. 1040 (S.D.Fla.1982). The propriety of this decision is the main focus of this appeal.

I. ADMISSIBILITY OF THE ORAL INTERCEPT EVIDENCE

Background

On October 17, 1980, the government applied to the district court for an order authorizing interception of oral communications in Harvey's office at Delray Towing. The application was supported by an affidavit of Stephen Gillman, an Assistant United States Attorney, and Harold C. Copus, an agent of the Federal Bureau of Investigation (FBI). On October 20, the district court entered an order authorizing interception for thirty days; the district court entered orders extending the interception period on November 20 and again on December 19. The listening device functioned from October 24, 1980 until January 19, 1981.

The district court's authority to authorize the electronic surveillance involved in this case is found in Title III of The Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. Secs. 2510-2520. Title III sets forth numerous requirements the government must meet before surveillance may be authorized, 18 U.S.C. Sec. 2518(1), the findings the district court must make, 18 U.S.C. Sec. 2518(3), and requirements for the district court's authorization order. 18 U.S.C. Sec. 2518(4). Title III contains its own exclusionary rule under which the appellants all have standing to challenge the surveillance. 18 U.S.C. Sec. 2518(10). The appellants raise numerous potential deficiencies in the district court's authorization.

  1. Necessity of Electronic Surveillance Under 18 U.S.C. Sec. 2518(1)(c).

    An application for interception must contain

    a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.

    18 U.S.C. Sec. 2518(1)(c). Appellants contend that the two affidavits supporting the government's October 17, 1980, application are little more than "boilerplate." They argue that alternative investigative techniques were available, namely, ordinary surveillance, execution of a search warrant of Delray Towing, an undercover "sting" operation, and a grand jury investigation with immunity for witnesses.

    The necessity requirement is designed to ensure that electronic surveillance is neither routinely employed nor used when less intrusive techniques will succeed. United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974); United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974). The affidavit need not, however, show a comprehensive exhaustion of all possible techniques, but must simply explain the retroactive or prospective failure of several investigative techniques that reasonably suggest themselves. United States v. Alonso, 740 F.2d 862, 868 (11th Cir.1984), cert. denied, --- U.S. ---- 105 S.Ct. 928, 83 L.Ed.2d 939 (1985); United States v. Hyde, 574 F.2d 856, 867 (5th Cir.1978). Judged by these standards, we believe the affidavit in this case was sufficient.

    With respect to the utility of ordinary surveillance techniques, Agent Copus' affidavit sets forth numerous facts showing that they had been attempted and had failed. The affidavit also explains the failures. The affidavit states that surveillance of actual marijuana off-load operations was impossible because of anti-surveillance techniques employed by Harvey. These techniques included use of a helicopter, night scopes and listening devices, and central

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    command of the various small vessels from a larger vessel. In addition, it is obvious that the government was not seeking to catch one or two small vessels with marijuana, but to expose the entire conspiracy. The affidavit also sets forth the reasons why surveillance of the headquarters at Delray Towing was impossible. According to the affidavit, to the west of Delray Towing was the city dump; to the east a parking lot for a night club that was frequented by members of the ring and owned by Harvey's father; to the north a garage, to which agents could not obtain access without disclosing the investigation; to the south, the nearest point from which surveillance could be conducted was a half mile away. Harvey also conducted security procedures at Delray Towing; indeed, one attempt at surveillance from a building approximately one-half to one mile away was discovered by Harvey. Finally, the affidavit states that even if ordinary surveillance were practical, it could only lead to evidence that members of the conspiracy were meeting, and not to direct evidence of criminal activity.

    The affidavit explained that a search of the premises at Delray had been considered and rejected because it was not believed that there was sufficient physical evidence there to reveal the entire conspiracy or to successfully prosecute its members.

    With respect to a "sting" operation, the affidavit indicates that the informants upon which the government was relying feared for their lives because of threats from Harvey. The affidavit also states that government agents had tried and failed to gain introduction to Harvey. The affidavit asserts that such attempts would endanger the lives of undercover agents and informants. Appellants contend that the affidavit is incredible in this respect because the FBI had informants with knowledge of the conspiracy. The contention is frivolous: that the informants may have known of the conspiracy does not mean Harvey would have trusted them. Moreover, the affidavit explained that these persons feared for their lives.

    Agent Copus' affidavit further states that he had discussed the possibility of a grand jury investigation with the Assistant United States Attorney. The affidavit explains that such an investigation was rejected because the necessary witnesses were members of the conspiracy and would not voluntarily testify, and that it had been impossible to determine the roles of various members of the conspiracy in order to judge who should be afforded immunity.

    With respect to the danger to informants posed by either a sting operation or a grand jury investigation, we note that the affidavit asserts that one informant directly refused to testify out of fear, another source relayed death threats that Harvey had made against potential informants, another witness had been beaten and received death threats, one member of the conspiracy was left at a hospital with bullet wounds which he refused to explain and another person was threatened with death. The affidavit therefore presents a pattern of threats and a presence of danger to witnesses and agents. This existence of danger is one of the justifications for electronic surveillance. 18 U.S.C. Sec. 2518(1)(c). The appellants argue that the fears alleged in the affidavit are belied by the fact that witnesses testified at trial. Again, this contention is frivolous; that witnesses were willing to testify in court after the FBI had broken the conspiracy and arrested its members does not indicate that they would have been willing to do so at the time...

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