U.S. v. Barletta

• Decision Date: 08 December 1977
• Docket Number: Nos. 75-1530,75-1532,s. 75-1530
• Parties: 2 Fed. R. Evid. Serv. 676 UNITED STATES of America, Appellee, v. Joseph BARLETTA, Appellant. UNITED STATES of America, Appellee, v. Thomas FONTANELLO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 985

565 F.2d 985

2 Fed. R. Evid. Serv. 676

UNITED STATES of America, Appellee, v. Joseph BARLETTA, Appellant.

UNITED STATES of America, Appellee, v. Thomas FONTANELLO, Appellant.

Nos. 75-1530, 75-1532.

United States Court of Appeals Eighth Circuit.

Submitted April 15, 1977.

Decided June 23, 1977.

Rehearing Denied Dec. 8, 1977.

Wilbur L. Pollard and Jerome F. X. Waterman, Kansas City, Mo., for appellants; Norton & Pollard, Inc., Kansas City, Mo., on brief for appellant Barletta.

Gary Cornwell, Atty., Dept. of Justice, Crim. Div., Kansas City, Mo., for appellee; Bert C. Hurn, U.S. Atty., Gary Cornwell, Sp. Atty. and Edward D. Holmes, Sp. Atty., U.S. Dept. of Justice, Kansas City, Mo., on brief.

Before VOGEL, Senior Circuit Judge, and LAY and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

In 1975 Joseph Barletta and Thomas Fontanello, along with Nicholas Civella, Anthony Thomas Civella and Frank Anthony Tousa, were convicted in the United States District Court for the Western District of Missouri ¹ of having unlawfully conspired to violate 18 U.S.C. §§ 1084 and 1952. ² Their convictions resulted from their involvement Section 2518(1)(b)(iv) provides that an application for intercepting authority must identify "the person, if known, committing the offense and whose communications are to be intercepted." And § 2518(4)(a) provides that the order granting such authority must identify "the person, if known, whose communications are to be intercepted." Those requirements are generally referred to as the "identification requirements" of the Act, and a person is "known" and must be identified if at the time of the application and order the government had probable cause to believe that the person was committing the offense and that his communications were likely to be intercepted. United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

in a large scale illegal bookmaking gambling operation in Kansas City prior to 1970. The government's case against the five men consisted largely of tape recordings of telephone conversations that had been intercepted under an authorizing order issued by District Judge Collinson pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq.

Insofar as here pertinent, § 2518(8)(d) provides that within a reasonable time but not later than ninety days after the expiration of the period for which an interception is authorized the judge issuing the authorizing order shall cause to be served on the persons named in the order, "and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice," an inventory which shall include notice of (1) the fact of the entry of the order; (2) the date of the entry and the period of authorized interception; and (3) the fact that during the period wire or oral communications were or were not intercepted. On a showing of good cause the judge may extend the time for the service of inventories. On motion of an interceptee the judge "may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice."

The requirements set out in § 2518(8)(d) are generally called the "inventory requirements." It will have been observed that an inventory must be served on all persons identified in the authorizing order and must be served on additional persons whose communications have been intercepted if the authorizing judge in the exercise of his discretion determines that such persons ought to be served. Obviously, as far as discretionary inventories are concerned, an issuing judge must depend upon government prosecutors to advise him as to whose communications have been intercepted so that the judge can determine who should be served with discretionary inventories.

All of the defendants in this case filed various pretrial motions including motions to suppress the wiretap evidence. Barletta and Fontanello contended, among other things, that the evidence should have been suppressed as to them because of the failure of the government to cause them to be served with discretionary inventories under § 2518(8)(d).

The motions to suppress and other motions were denied. Thereafter the defendants waived trial by jury. The case as against the Civellas, Tousa and Barletta was submitted on stipulations of fact. Fontanello joined in the stipulations to some extent, but insisted that the issue or issues with respect to which he had not stipulated be tried to the court without a jury.

The district court found all of the defendants guilty and sentenced them to imprisonment, and all of them appealed.

When the case reached us the state of the law was one of uncertainty, and there was a sharp conflict in authority as to the effect to be given to a failure of the government to comply literally or substantially with the identification or the inventory requirements of the Act. And at that time there was pending in the Supreme Court on certiorari a review of the decision of the Court of Appeals for the Sixth Circuit in United States v. Donovan, 513 F.2d 337 (6th Cir. 1975), cert. granted, 424 U.S. 907, 96 S.Ct. 1100, 47 L.Ed.2d 310 (1976).

This court took the position that substantial compliance with the requirements in question was sufficient, but that a failure on the part of the government to substantially comply with the requirements called for suppression of the evidence in question. We found that there had been substantial compliance in the case of the Civellas and Tousa, and we affirmed their convictions. However, we found that discretionary inventories had never been served on Barletta and Fontanello, who had not been identified to the district court as persons whose communications had been intercepted, and we concluded that the evidence as to them should be suppressed. Since it was obvious that without the wiretap evidence the government could not convict either of those defendants, we directed that judgments of acquittal be entered in their favor. We found it unnecessary to consider the claim of Fontanello that the evidence against him, even if admissible, was insufficient to sustain his conviction. United States v. Civella, 533 F.2d 1395 (8th Cir. 1976).

As to Barletta and Fontanello, the government applied to the Supreme Court for certiorari. On January 18, 1977 the Supreme Court decided the Donovan case, United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977), and thereafter it vacated our judgment as far as Barletta and Fontanello were concerned, and remanded the case for further consideration in the light of Donovan. United States v. Barletta, 430 U.S. 902, 97 S.Ct. 1168, 51 L.Ed.2d 578 (1977).

The case is now before us on that remand. Supplemental briefs have been filed on behalf of Barletta, Fontanello and the government, and the case as to those defendants has been reargued.

The Supreme Court held in Donovan, among other things, that a failure on the part of the government to comply substantially with the identification or inventory requirements of the Act does not necessarily call for a suppression of evidence obtained as a result of authorized interceptions, but indicated that in some circumstances suppression may be required.

The government contends here that Donovan dictates that the convictions of Barletta and Fontanello be reinstated and affirmed. The defendants contend that this case is distinguishable from Donovan, and that we should adhere to our original decision. And Fontanello renews his contention that the evidence against him was insufficient to convict.

The historical facts of the case are fully set out in our original opinion and need not be restated in detail.

On January 7, 1970 Judge Collinson authorized that a telephone listed in the name of Frank Anthony Tousa be tapped and conversations recorded during a period between January 8 and January 18. The phone was tapped and numerous conversations were recorded including certain conversations between Barletta and Tousa and one conversation between Fontanello and Tousa.

Under § 2518(8)(d) inventories of the interceptions should have been served on interceptees not later than April 18, 1970. On March 27, 1970 Judge Collinson ordered inventories served on the Civellas and Tousa and certain other persons not including Barletta and Fontanello, and the inventories were placed in the hands of the marshal for service. For an unexplained reason the inventories were not served on or prior to April 18. Tousa was served on April 23 and the Civellas were served on May 1.

Three successive indictments were returned in the case, each replacing its predecessor. The first was returned in October, 1970; the second was returned in March, 1971; and the final indictment was returned in October, 1971. Barletta and Fontanello were not charged in the first or second indictment.

During pretrial proceedings following the return of the third indictment, Barletta and Fontanello in fact received the information that they would have received had discretionary inventories been served on them as provided by § 2518(8)(d); and the taped recordings of the intercepted communications Despite the somewhat belated service of the inventories on the Civellas and Tousa, we, as indicated, held that there had been substantial compliance with the statute. In reaching a different result as to Barletta and Fontanello, we said:

were made available to all of the defendants, including Barletta and Fontanello.

A quite different situation is presented with respect to Barletta and Fontanello. As to them, no effort was made to comply with the inventory requirements of the statute and those defendants received no notice of the interceptions of their communications until the third indictment was returned nearly two years after the authorized wiretap...