U.S. v. Bellosi

• Citation: 501 F.2d 833,163 U.S.App.D.C. 273
• Decision Date: 28 June 1974
• Docket Number: No. 73-2223,73-2223
• Parties: UNITED STATES of America, Appellant v. Joseph A. BELLOSI, a/k/a Joe Stanford, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 833

501 F.2d 833

163 U.S.App.D.C. 273

UNITED STATES of America, Appellant v. Joseph A. BELLOSI, a/k/a Joe Stanford, et al.

No. 73-2223.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1974.

Decided June 28, 1974.

E. Lawrence Barcella, Jr., Asst. U.S. Atty., with whom Earl J. Silbert, U.S. Atty., and John A. Terry and John E. Drury, III, Asst. U.S. Atty., were on the brief, for appellant.

Roger E. Zuckerman, Washington, D.C., with whom John A. Shorter, Jr., Washington, D.C., Thomas R.Dyson, Jr., Alexandria, Va., and James L. Lyons, Cincinnati, Ohio, were on the brief, for appelles.

Before WRIGHT, ROBINSON and MacKINNON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

Appellees have been charged with various criminal offenses relating to illegal gambling operations. ¹ Their indictment was based at least in part on evidence obtained through interception of telephone communications. Prior to trial appellees moved to have this evidence suppressed. The District Court granted their motion on the basis of 23 D.C.Code 547 (1973) and 18 U.S.C. 2518 (1970) which prescribe the procedure by which District of Columbia and United States law enforcement authorities may obtain requisite judicial authorization for interception of wire and oral communications. The District Court found that the Government, in securing approval for the interceptions from which the incriminating evidence was derived, had failed to conform to the mandate of 23 D.C.Code 547(a)(5) and 18 U.S.C. 2518(1)(e) that applications for judicial authorizations of wire interceptions include a full disclosure of 'all previous applications' for judicial authorization of interceptions 'involving any of the same persons, facilities, or places specified in the application.' ²²

On this appeal the Government advances three attacks on the District Court's decision. First, while admitting that it purposely did not disclose in its applications the fact that one of the targets thereof had also been a target of an earlier application, the Government contends that it did not violate Sections 547(a)(5) and 2518(1)(e) because the prior application related to a narcotics investigation completely separate from the gambling investigation which produced the incriminating interceptions in suit. Second, the Government argues that, even if it was not in compliance with Sections 547(a)(5) and 2518(1)(e), suppression of the evidence obtained from the thus tainted interceptions was an inappropriate remedy. And third, the Government maintains that in any event only the appellee-defendant who was named as an object of the undisclosed interception should have standing to move for a suppression order. Guided by the Supreme Court's recent decision in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), we reject each of the Government's arguments and affirm the challenged suppression.

I

The facts of this case relevant to our decision can be briefly and simply set forth. On or about July 29, 1971 the Government, in connection with a local narcotics investigation, obtained authorization from United States District Judge George L. Hart, Jr., pursuant to Section 2518, for wire interception of a pay telephone located in the Jet Liquor Store. The Government stated in its application to Judge Hart that this interception was directed at three individuals, one of whom was appellee Warren Cooper.

Within the next few months the Metropolitan Police Department initiated a second investigation of Warren Cooper and certain other individuals for suspected illegal gambling operations. As part of this investigation the Government, pursuant to Section 547, submitted to Chief Judge Harold H. Greene of the Superior Court of the District of Columbia on November 15, 1972 a request for authorization to intercept communications from an apartment telephone on Second Street, S.E. Though the submission named Warren Cooper as one of the targets of the wire interception for which authorization was sought, it did not inform Chief Judge Greene of the prior application to Judge Hart in 1971 to intercept communications of Warren Cooper through the Jet Liquor Store telephone.

The Government does not deny on appeal that its omission of any reference to the 1971 application in its November 15, 1972 application to Chief Judge Greene was intentional. Apparently concerned that the Jet Liquor Store interception involving appellee Cooper might be deemed violative of the Fourth Amendment and that it might be in some way connected with the gambling investigation, ³ the Government made the deliberate and unilateral determination that Chief Judge Greene did not need to be aware of the prior application in making his decision whether to authorize the Second Street, S.E. interception. In making that determination the Government was fully aware of Section 547(a)(5)'s requirement that an application for judicial authorization of a wire interception disclose 'all previous applications * * * made to any judge for authorization to intercept * * * wire or oral communications involving any of the same persons, facilities, or places specified in the application.' The Government attempted to circumvent this language without making any overtly false statements by averring in its application that no previous applications had been made for authorization of wire interceptions involving any of the same facilities or places. ⁴ It made no statement concerning previous applications for interceptions involving any of the same persons.

Chief Judge Greene granted the Government's request for authorization of the Second Street, S.E. interception. Evidence obtained from this interception moved the Government to expand its gambling investigation of Cooper and the other suspects. During the next several weeks it requested and obtained from Chief Judge Greene, pursuant to Section 547, authorization for interception of communications from a telephone in an apartment on 12th Street, N.E. as well as for an extension of the wiretap on the Second Street, S.E. telephone. The Government, pursuant to Section 2518, also obtained from Judge Hart in January 1973 approval for an interception of communications from a telephone in a 42nd Street, N.E. apartment. Although Warren Cooper remained one of the targets of these additional wire interceptions, in none of the applications did the Government disclose the existence of the prior Jet Liquor Store application directed against Cooper.

It was not until June 25, 1973 at a pretrial hearing in this case that the Government finally advised defense counsel of the Jet Liquor Store wiretap and the fact that through its use over 100 telephone calls relating to gambling operations had been intercepted. Having been so informed, the defenants moved to suppress the evidence derived from the later wire interceptions targeted against Warren Cooper, the applications for which did not disclose that he had been a named target in a prior application. The Government's appeal here is from the District Court's grant of this motion.

II

The Government concedes that the words of Sections 547(a)(5) and 2518(1)(e) seem to constitute a broad command which was transgressed by the failure to disclose the Jet Liquor Store application. However, the Government asks this court to transform Sections 547(a)(5) and 2518(1)(e) into more limited prescriptions which were not violated in this case and which the Government argues adequately fulfill the congressional purpose in enacting these provisions. The Government maintains that Congress enacted the requirement that applications for wire interception authorizations include a statement of facts concerning previous applications involving any of the same persons, facilities, or places solely to prevent law enforcement officials from shopping from one judge to the next until they obtain the approval they must have to conduct an interception. The Government reasons that this congressional purpose is adequately served by a requirement that applications for judicial authorizations of interceptions disclose previous applications only if they were part of the same investigation and that the statute should be so interpreted. Since the Jet Liquor Store interceptions were conducted in a narcotics investigation independent of the gambling investigation which led to the authorization of the incriminating interceptions here, were we to accept the Government's theory we might be able to reverse the District Court's suppression order. However, we are constrained to reject the invitation to place such a limiting gloss on the clear language of Sections 547(a)(5) and 2518(1)(e).

Section 2518(1), after which Section 547(a) was fashioned for District of Columbia law enforcement, is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 211-225, 18 U.S.C. 2510-2520 (1970). The 'fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance' by its enactment of Title III 'is strictly to limit the employment of those techniques of acquiring information,' Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972), to conform with the commands of the Fourth Amendment as articulated by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To effectuate that policy, 'Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions.' Gelbard v. United States, supra, 408 U.S. at 46, 92 S.Ct. at 2360.

One of these 'stringent conditions'-- that applications for judicial approval of wire interceptions to be conducted by federal...