U.S. v. Ashley, 88-1834

• Decision Date: 27 February 1989
• Docket Number: No. 88-1834,88-1834
• Citation: 876 F.2d 1069
• Parties: UNITED STATES of America, Appellant, v. Melvin ASHLEY, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1069

876 F.2d 1069

UNITED STATES of America, Appellant, v. Melvin ASHLEY, Defendant, Appellee.

No. 88-1834.

United States Court of Appeals First Circuit.

Heard Feb. 27, 1989.

Decided June 13, 1989.

Edwin J. Gale, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for, U.S.

Robert D. Watt, Jr., Providence, R.I., by appointment of the Court, for defendant, appellee.

Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and FUSTE, ^* District Judge.

FUSTE, District Judge.

Defendant/appellee Melvin Ashley ("Ashley") and others were charged with various offenses, including conspiracy to possess and distribute cocaine. During the course of the prior investigation, Judge Francis J. Boyle authorized the interception of conversations over a telephone utilized by co-defendant Edward A. D'Alessio ("D'Alessio"). Judge Boyle approved the wiretap based upon an extensive affidavit by Daniel J. McCarthy ("McCarthy"), a 22-year veteran Special Agent of the Drug Enforcement Administration ("DEA"). ¹ In the course of trial, Ashley's motion to suppress the tape recordings and any fruits of the electronic surveillance was granted by Judge Raymond J. Pettine. ² The trial court ruled that the government affidavit failed to demonstrate that investigative means other than wiretapping would be inadequate, as required by sections 2518(1)(c) and (3)(c) of Title 18 of the United States Code. The government appeals the district court's grant of Ashley's motion to suppress the wiretap evidence. It contends that the trial court erred by finding that the affidavit was insufficient to uphold the wiretap order issued by Judge Boyle. For the reasons set forth below, we reverse the trial court's suppression order.

I

We begin by examining the standards for issuing a wiretap in the first instance. The procedure for interception of wire communications is set forth under chapter 119 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. ³ Among the statutory hurdles that the government must clear in order to secure authorization for a wiretap are sections 2518(1)(c) and (3)(c) which require a showing that other investigative means would not suffice. Basically, the government is required to "make a reasonable, good faith effort to run the gamut of normal investigative procedure before resorting to means so intrusive as electronic surveillance of telephone calls." United States v. Hoffman, 832 F.2d 1299, 1306-07 (1st Cir.1987). Section 2518(1)(c) states the requirement that a wiretap application must include:

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

18 U.S.C. Sec. 2518(1)(c). Moreover, section 2518(3)(c) of the same statute mandates that the issuing judge determine, based on the facts submitted by the applicant, that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec. 2518(3)(c). See 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 issuing judge must independently conclude, based upon the affidavit, that the antecedent efforts were adequate in order to comply with section 2518(3)(c). See United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977).

As the Supreme Court has stated, sections 2518(1)(c) and 2518(3)(c) are "simply designed 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. at 153 n. 12, 94 S.Ct. at 983 n. 12; accord, United States v. Abou-Saada, 785 F.2d 1, 11 (1st Cir.), cert. denied, 477 U.S. 908, 106 S.Ct. 3283, 91 L.Ed.2d 572 (1986). Prior to granting authorization for a wiretap, the issuing court "must satisfy itself that the government has used normal techniques but it has encountered difficulties in penetrating a criminal enterprise or in gathering evidence--to the point where (given the statutory preference for less intrusive techniques) wiretapping becomes reasonable." United States v. Abou-Saada, 785 F.2d at 11. Accordingly, the government is not required to show that other methods have been wholly unsuccessful. Id. Nor is the government forced to run outlandish risks or to exhaust every conceivable alternative before requesting authorization for electronic surveillance. United States v. Hoffman, 832 F.2d at 1306.

However, bare conclusory statements that normal techniques would be unproductive, based solely on an affiant's prior experience, do not comply with the requirements of section 2518(1)(c). See id.; United States v. DiMuro, 540 F.2d 503, 510-11 (1st Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977). Nevertheless, the issuing court may properly take into account affirmations which are founded in part upon the experience of specially trained agents. See United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.1977) (prior experience of agents relevant in determining whether other investigative procedures unlikely to succeed), cert. denied, 434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977); United States v. Rodriguez, 606 F.Supp. 1363, 1368 (D.Mass.1985) (same); cf., United States v. Hoffman, 832 F.2d at 1306 (court may weigh experience of agents in balance in assessing probable cause for issuance of wiretap). The authorizing court is also not precluded from referring to the nature of the alleged crimes in its evaluation of the sufficiency of the affidavit as to the required showing of antecedent efforts. See United States v. Scibelli, 549 F.2d at 227. Furthermore, in reviewing the adequacy of prior investigatory methods, the craftiness and wariness of the intended targets is a significant factor to be considered by the court in its determination of whether to authorize electronic surveillance. See id. The government affidavit is adequate if it satisfies the burden that it indicate a "reasonable likelihood" that alternative techniques would fail to expose the crime. United States v. Abou-Saada, 785 F.2d at 12.

II

It is clear that the issuing court and any later reviewing courts must test the government's recital of antecedent investigatory methods in a "practical and commonsense" manner. See United States v. Hoffman, 832 F.2d at 1307; United States v. Scibelli, 549 F.2d at 226-27; United States v. Rodriguez, 606 F.Supp. at 1368 (same standard for district court facing suppression motion); S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, at 2190. The term "reviewing" court has more than one meaning, depending upon the particular procedural setting. Once an authorization for a wiretap has been issued, that determination may be reviewed by a district court in the context of a suppression motion, and then again by an appellate court. This case requires us to discuss the standards to be employed by the reviewing courts in each instance.

The issuing judge has the initial role of "reviewing" the wiretap application. As we discussed above, the issuing judge has an independent obligation under section 2518(3)(c) to make a determination that the affidavit illustrates sufficient antecedent investigatory efforts. See United States v. Scibelli, 549 F.2d at 226. We proceed to clarify the role of the trial judge to "review" the sufficiency of the wiretap affidavit under 2518(1)(c) and the issuing judge's determination of sufficiency pursuant to 2518(3)(c). In the instant case, the district judge who reviewed the wiretap application for purposes of Ashley's suppression motion at trial was not the same judge who authorized the wiretap. In Scibelli, the same district judge who initially authorized the wiretap served as the trial judge and was thus also responsible for the decision as to possible suppression of the evidence obtained as a result of the electronic surveillance. See id. In that case when we stated that the "district judge reviewing the application [has] an independent obligation" to determine if the affidavit complies with section 2518(3)(c), we were referring to the district court in its initial function as the authorizing or issuing court. Id. The fact that section 2518(3)(c) refers to the issuing judge is plain from reading section 2518(3) in its entirety. Accordingly, a district judge reviewing the sufficiency of a wiretap application in the context of a suppression motion is not bound by the "independent" review standard set forth in section 2518(3)(c).

It remains for us to limn the standard applicable at the district court level in the context of a suppression motion based on the claimed facial inadequacy of the affidavit's rendition of antecedent efforts. As we stated above, the issuing court looks to the facts as submitted in the affidavit to determine whether the government has fulfilled its burden to illustrate that other investigative procedures would be inadequate. See 18 U.S.C. Sec. 2518(3)(c). We point out that in the instant case, neither the trial court nor this court is faced with any allegations of factual inadequacies or misrepresentations in the government's wiretap application. Compare, United States v. Cole, 807 F.2d 262, 267-68 (1st Cir.1986) (district court holds hearing to determine whether factual omissions from wiretap application are material pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)), cert. denied, 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987). It follows that in consideration of a suppression motion which challenges the issuing court's finding that the government's affidavit facially satisfied the statutory requirements, the reviewing court must also take the facts as stated in the affidavit. Under these circumstances, both the district...