MATTER OF INTERCEPTION OF WIRE & ORAL COM.[KATTAR]

Citation682 F. Supp. 669
Decision Date23 March 1988
Docket NumberMisc. No. 85-51-D.
PartiesIN THE MATTER OF ... THE INTERCEPTION OF WIRE ... AND ORAL COMMUNICATIONS ... [GEORGE T. KATTAR]
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire

Gary C. Crossen, Sp. U.S. Atty., Concord, N.H., Ralph D. Gants, Asst. U.S. Atty., Boston, Mass., for plaintiff.

Joseph F. Gall, Sr., Nashua, N.H., James B. Krasnoo, Boston, Mass., Steven M. Gordon, Concord, N.H., Michael Avery, Boston, Mass., Martin L. Gross, Concord, N.H., E. Susan Garsh, Boston, Mass., for defendant.

MEMORANDUM OPINION

DEVINE, Chief Judge.

Globe Newspaper Company ("Globe") seeks access to materials currently sealed pursuant to orders of this Court. Such materials were generated in the course of applications for and authorizations of electronic surveillance. The larger part of such surveillance was of the type authorized by the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, codified at Title 18, United States Code sections 2510-2520.1

Named as subjects of the electronic surveillance were George T. Kattar and a number of other individuals. The Government, Mr. Kattar, and his sons object to the access requested by Globe.2 The issues thus presented, deriving from statutory construction and judicial decisions well covered in the memos filed by the respective parties, render unnecessary further hearing. Local Rule 11(g).3

Title III of the Omnibus Act "represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression." United States v. Upton, 502 F.Supp. 1193, 1196 (D.N.H. 1980). The "protection of privacy was an overriding Congressional concern" in the enactment of the statute. Gelbard v. United States, 408 U.S. 41, 48, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972). And "invasion of privacy is not over when an interception occurs, but is compounded by disclosure in court or elsewhere." United States v. Vest, 813 F.2d 477, 481 (1st Cir. 1987).

Title III "is an extremely complex statute." In re Globe Newspaper Co., 729 F.2d 47, 55 (1st Cir.1984). Its structure was designed to meet these expressed concerns. Electronic surveillance may be sought only with respect to certain enumerated criminal offenses. 18 U.S.C. § 2516. Application for its use must be authorized by high-ranking officials of the Department of Justice, id., and the application must contain details of the suspected offenses and reasons as to why other investigative procedures have not been or are not being utilized, 18 U.S.C. § 2518(1)(a)-(f). When issued, authorization is limited to periods of thirty days, 18 U.S.C. § 2518(5), extensions of which may be had only on applications as detailed as the original, 18 U.S.C. § 2518(5). The Court may (and ordinarily does) require progress reports at intervals selected by it. 18 U.S.C. § 2518(6).4

On expiration of the surveillance order or its extensions, the recordings of interceptions must be sealed by direction of the authorizing judge and preserved for a period of ten years. 18 U.S.C. § 2518(8)(a). Disclosure of the contents of such intercepts is limited to investigative or law enforcement officers in performance of their official duties, including testimony at hearings. 18 U.S.C. § 2517. The disclosure of sealed orders and applications for electronic surveillance is limited to a showing of good cause. 18 U.S.C. § 2518(8)(b). Such orders and applications are also to be maintained for a period of ten years. Id.

Moreover, privacy is not the only factor which a court must weigh when faced with a request for access to sealed electronic surveillance materials. The Government has an interest in protection of its methods and sources of criminal investigation. Where, as here, the statute of limitations has not run, the sealed materials might well come into play with respect to future prosecutions. It is well established that the Government is not required to disclose sensitive investigative techniques. United States v. Cintolo, 818 F.2d 980, 1002 (1st Cir.), cert. denied, ___ U.S. ___, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

The materials here sought were compiled roughly in the calendar period between July 1985 and April 1986.5 In the latter month, as a result of interception of information with respect to offenses other than those specified in the authorizations, 18 U.S.C. § 2517(5),6 a search warrant issued. That warrant was directed to certain premises located in Meredith, New Hampshire, which were known to be occupied by Mr. Kattar.

On execution, the warrant uncovered a large number of firearms. Subsequently, the grand jury in this federal district indicted Mr. Kattar, charging him with a number of federal firearms offenses. Mr. Kattar was subsequently sentenced on his entry of pleas of guilt to a number of counts of that indictment. Although as a defendant he was granted access to the surveillance materials, he did not choose to challenge same by motion to suppress or otherwise.

The Court has refreshed its recollection by reviewing the voluminous materials produced by the electronic surveillance. A fairly large number of individuals whose conversations were intercepted were apparently involved in criminal offenses of the type specified in the applications. A smaller number of individuals were apparently involved in criminal offenses not so specified. A much larger number of interceptees (approximating triple the total number of the aforesaid categories) appeared to have no involvement whatsoever in criminal offenses of any type.

Globe suggests it is entitled to the disclosure of the materials sought because they are "judicial documents" within the meaning of the decision of Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986). In that case, at issue was the right of media access to the California statutory proceeding of preliminary hearing, described by the Supreme Court as "often the final and most important step in the criminal proceeding." Id., 106 S.Ct. at 2742-43. In contrast, absent waiver, all prosecutions of felonies in the federal court system must commence by means of indictment returned by the grand jury. U.S. Const., amend. V; Rule 7, Fed. R.Crim.P. Secrecy of proceedings is, of course, a hallmark of a grand jury. Rule 6(e), Fed.R.Crim.P. The reasons for such secrecy are well stated in the following oft-quoted language:

`(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witness who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.'

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n. 10, 99 S.Ct. 1667, 1673 n. 10, 60 L.Ed.2d 156 (1979) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954)).

If, of course, a party subject to electronic surveillance seeks suppression of the fruits thereof, the media will then be afforded the opportunity to seek access to the suppression proceedings. Matter of New York Times Co., 828 F.2d 110 (2d Cir.1987). In such circumstances, the court in determining what, if any, portion of the proceedings may be closed "must weigh the competing interests of the parties and the public and structure a remedy that gives the maximum protection to the rights of both." In re Globe Newspaper Co., supra, 729 F.2d at 56.

Here, the electronic surveillance materials sought are not properly characterized as "judicial proceedings" of the type at issue in Press-Enterprise Co. v. Superior Court, supra. Rejecting the argument of Globe that Press-Enterprise derogates from the findings of the Eighth Circuit in Appeal of Kansas City Star, 666 F.2d 1168 (8th Cir.1981), I find that the issues before me are to be resolved in accordance with the findings in that decision. There, a newspaper and a broadcast network both sought access to electronic surveillance of a felon had while the subject was in prison. Vacating an order of the trial court granting such access, the appellate court held that the requirement of "good cause" or the unsealing of applications and orders for electronic surveillance provided in 18 U.S. C. § 2518(8)(a) and (b) equated with "a need for disclosure" and required "consideration by the courts of the privacy of other people which might be affected by the disclosure." Id. at 1176. As neither a suppression hearing nor a need for disclosure was proven, the court held that the documents should remain under seal. Id.

In National Broadcasting Co. v. United States Dept. of Justice, 735 F.2d 51 (2d Cir.1984), NBC sought access to electronic surveillance materials to aid in its defense of a libel action. Some of the requested materials had been used by the Government in a prior criminal trial. The Government opposition was grounded on the great number of interceptees, few of whom had been investigated, and the fact that the wiretap applications contained descriptive data regarding confidential informants. Ruling that Title III should not be considered a vehicle for private discovery, the Court said, in relevant part:

Under Title III, with few exceptions not here relevant, no one other than the government can lawfully engage in wiretapping and it therefore is not so unusual that only the government can enjoy its fruits. Beyond that, the government is in a position to make a judgment whether disclosure of the intercepted evidence will or will not be in accordance with
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    ...reasoning. See United States v. Blagojevich, 662 F. Supp. 2d 998, 1001-1003 (N.D. Ill. 2009); In re Interception of Wire & Oral Communc'n [George T. Kattar], 682 F. Supp. 669, 673 (D.N.H. 1988); United States v. Nelson, No. 10-23-32, 2011 WL 305005, at *2 (M.D. Fla. Jan. 28, 2011). That is ......

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