Bova v. United States

• Decision Date: 28 April 1972
• Docket Number: Docket 72-1367.,No. 793,793
• Citation: 460 F.2d 404
• Parties: Application of Andrew T. BOVA et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

460 F.2d 404 (1972)

Application of Andrew T. BOVA et al., Appellants, v. UNITED STATES of America, Appellee.

No. 793, Docket 72-1367.

United States Court of Appeals, Second Circuit.

Argued April 11 and 13, 1972.

Decided April 28, 1972.

Salten Rodenberg, Buffalo, N. Y., for appellants.

Robert C. Stewart, Atty., U. S. Dept. of Justice (C. Donald O'Conner, Acting U. S. Atty., W. D. N. Y., and Martin D. Boudreau, Atty., U. S. Dept. of Justice, of counsel), for appellee.

Before FRIENDLY, Chief Judge, and SMITH and OAKES, Circuit Judges.

FRIENDLY, Chief Judge:

By two orders in the spring of 1971, pursuant to 18 U.S.C. § 2518(3), the District Court for the Western District of New York authorized the tapping of certain telephones, not on premises occupied by the appellants, Bova, Carbone and Divizio (hereinafter "the witnesses"), on the basis of applications by the United States showing probable cause to believe that the premises were being used for the conduct of a gambling business prohibited by 18 U.S.C. § 1955. The taps yielded, among other things, conversations of the three appellants. They were later subpoenaed to testify before a grand jury, the Government conceding that most of the questions to be asked were the fruit of the wiretaps. They moved for suppression, under 18 U.S.C. § 2518(10) (a), on grounds hereafter stated. In consequence of various delays unnecessary to detail, the motions remained undecided when the grand jury returned an indictment in United States v. Joseph M. Fino, et al., Cr. 1971-143, against nine defendants, none of whom were the witnesses — although the latter were named as co-conspirators. Subsequently, without ruling on the suppression motions, Judge Curtin granted the Government's request for transactional immunity, see 18 U.S.C. § 2514, for each of the witnesses in order to protect their Fifth Amendment rights, and directed them to testify before the grand jury, which was still sitting. The witnesses nonetheless refused to answer any questions, asserting their right of privacy under the Fourth Amendment, and the Government made application to Judge Curtin for a contempt order. Before the application could be decided, the Government requested that the suppression motions be transferred to Chief Judge Henderson, who was to preside at the Fino trial, which ultimately was scheduled to begin on April 11, 1972. The request was granted,¹ and the contempt application was formally dismissed. Before final argument to Judge Henderson on the suppression motions, the witnesses were served with trial subpoenas. Many objections to the wiretaps were advanced — that one of the interception orders had not been properly limited; that, because of use of the preposition "from," the other order authorized only the interception of outgoing calls whereas the witnesses' were incoming; that the procedures within the Department of Justice for processing the applications were defective for lack of personal participation by any officer specifically authorized by Congress;² and that the affidavits on which the orders were made were insufficient insofar as they relied on the presumption with respect to probable cause created by 18 U.S.C. § 1955(c), which was alleged to be unconstitutional. Chief Judge Henderson overruled all these objections in an opinion dated April 4, 1972.³

The witnesses promptly filed a notice of appeal and moved for an expedited hearing and an interim order restraining the United States Attorney from directing any, questions to them based upon intercepted telephone conversations should they be called to testify at the Fino trial. The Government countered with a motion to dismiss for lack of appellate jurisdiction. On hearing our motion calendar on April 11, we deferred ruling on the Government's motion, set the appeal for argument on April 13, and requested the Government to refrain from calling the witnesses or otherwise developing the intercepted conversations until that time. Further study convinced us that the motion to dismiss should be granted. On April 13 we directed entry of an order to that effect and announced that an opinion would be filed as soon as practicable.

Insofar as appellants' grievance relates to the subpoenas requiring them to testify, the want of the finality essential to appealability under 28 U.S.C. § 1291 has been settled since Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906). Requisite finality is not attained until the witness refuses to respond to the subpoena and the court asserts its authority to enforce compliance by way of a contempt order. The Supreme Court has not manifested the slightest tendency to relax Alexander. Rather it has extended the ruling to refusal to quash subpoenas to witnesses summoned to produce documents before a grand jury, Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940), and to denial of a motion to suppress the evidentiary use of material alleged to have been illegally seized, even though the motion preceded indictment, Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962), or was made in a district other than that of indictment, United States v. Koenig, id. Save as modified by statute to permit appeals by the Government in certain instances,⁴ this doctrine has remained in full effect but for one judicially recognized exception of uncertain scope. This is where, as said in Carroll v. United States, 354 U.S. 394, 404 and n. 17, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442 (1957), "the emphasis is on the return of property rather than its suppression as evidence." (Italics in original). The bounds of the exception are illustrated, although not much illumined, by such cases as Perlman v. United States, 247 U.S. 7, 12-13, 38 S.Ct. 417, 62 L.Ed. 950 (1918), and Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921).⁵

In Di Bella the Court stiffened the phraseology that had been used in Carroll, saying: "Only if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant can the proceedings be regarded as independent." 369 U.S. at 131-132, 82 S.Ct. at 660 (citations omitted). In its most recent expression enforcing the Alexander-Cobbledick-Carroll-Di Bella rule, the Court spoke somewhat more generally, "Only in the limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims have we allowed exceptions to this principle," United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). However, it gave as examples only the hypothetical case put in Di Bella and a reference to Perlman.

Appellants' argument why their appeal comes within the exception begins with the premise that, in contrast to the cases we have summarized, the Government very likely is not dependent on their testimony to prove the contents of the intercepted conversations. The Government may bypass contempt proceedings and call the agents who conducted the interceptions to testify as to the substance of appellants' conversations. The agents' recollections will be supported by tapes and logs. Such testimony will be admissible, for example, if, as often occurs in gambling prosecutions, the conversations are not within the hearsay rule, see United States v. Costello, 352 F.2d 848, 853-855 (2 Cir. 1965), rev'd on another ground sub nom. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), or come within the exception for declarations in furtherance of a conspiracy. Hence, appellants say, a holding of unappealability will mean that information damaging to their personal lives will have been publicly revealed and the right of privacy guaranteed them by the Fourth Amendment will have been irreparably invaded without opportunity for appellate review of the decision sustaining the wiretap orders.

If the exception to the Alexander-Cobbledick-Carroll-Di Bella line of cases relates only to the return of property, appellants' argument clearly fails. Telephone conversations are not "property" in the ordinary meaning of language, nor is there any effective method for their "return." It is obviously impossible to excise and surrender to the appellants the memories of the agents who conducted the interceptions, and the tapes and logs, as tangible items, are the Government's property, not the appelants'. None of the dissenters in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), asserted that telephone conversations were property; the three Justices who held the Fourth Amendment to be applicable to wiretaps argued rather that the Amendment protected against the Government's intercepting private oral communications as fully as it did against the seizure of property. See, e. g., dissenting opinion of Mr. Justice Brandeis, 277 U. S. at 473-474, 478, 48 S.Ct. 564; dissenting opinion of Mr. Justice Butler, 277 U.S. at 487-488, 48 S.Ct. 564. And it was on that ground that Olmstead was overruled in Katz v. United States, 389 U.S. 347, 351-353, 88 S.Ct. 507, 19 L. Ed.2d 576 (1967).

We do not believe that the statement quoted from United States v. Ryan, supra, 402 U.S. at 533, 91 S.Ct. 1580, a decision which held the denial of relief there at issue to be unappealable, was intended to broaden the exception previously recognized.⁶ However this may be, our task is the limited one of determining the appealability of an order denying relief under a statute enacted by Congress three years before Ryan. When Congress enacted 18 U.S.C. § 2518 as part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, it thus could properly have assumed that the statements in Carroll and Di Bella marked the limits of cases wherein persons authorized to move for suppression under § 2518(10) (a) would be permitted to appeal from an order of denial. Compare Alderman v. United States, 394 U.S. 165, 175 n. 9, 89 S.Ct....