U.S. v. Fury
| Decision Date | 27 June 1977 |
| Docket Number | D,716,Nos. 738,s. 738 |
| Citation | 554 F.2d 522 |
| Parties | UNITED STATES of America, Appellee, v. Thomas FURY and John Quinn, Appellants. ockets 76-1506, 76-1512. |
| Court | U.S. Court of Appeals — Second Circuit |
David W. McCarthy, Mineola, N.Y. (McCarthy & Dorfman, Mineola, N.Y., of counsel), for appellant Fury.
Evseroff & Sonenshine, Brooklyn, N.Y. (William Sonenshine, Brooklyn, N.Y., of counsel), for appellant Quinn.
Alvin A. Schall, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (David G. Trager, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.
Before FEINBERG, GURFEIN and MESKILL, Circuit Judges.
John Quinn and Thomas Fury appeal from judgments of conviction in the United States District Court for the Eastern District of New York (Pratt, D. J.). They each pleaded guilty to the charge of conspiracy to transport stolen motor vehicles in interstate commerce in violation of 18 U.S.C. § 371 after the District Court denied their motions to suppress. 1 Both were sentenced to three years imprisonment. Quinn is free on bail pending appeal and Fury is serving a state sentence, upon the termination of which the federal sentence will begin.
The sole question on appeal is whether the District Court erred in denying the motions of appellants to suppress conversations intercepted in the course of a court-ordered wiretap on appellant Fury's telephone. 2
The facts do not appear to be in dispute. Pursuant to an investigation into auto thefts, the District Attorney's Office in Nassau County obtained from Justice Altimari, on March 15, 1974, an order for a wiretap for thirty days on the telephone of Myron Schnell in Commack, New York. No renewals or extensions were requested. The wiretap terminated on April 16 and Justice Altimari signed an order sealing the tapes of the intercepted conversation on May 1, 1974.
While the Schnell wiretap was in operation, conversations to which appellant Fury was a party were intercepted. Fury had not been named in the Schnell wiretap order. In July, 1974 he was notified in writing that his conversations had been intercepted during the Schnell tap.
In April, 1974, the Queens County District Attorney applied for a wiretap on Fury's telephone. In support of this application, the District Attorney submitted the affidavit of a New York City detective who had been investigating Fury and others with respect to the crimes of grand larceny and criminal possession of stolen property. Also supporting the wiretap application was the affidavit of a Nassau County detective. The detective interpreted certain conversations intercepted during the Schnell wiretap and to which Fury had been a party as indicating criminal activity. The transcripts were attached to the affidavit.
On April 26, 1974, a New York State Supreme Court Justice (Dubin, J.) granted the application and issued the order for a wiretap on Fury's telephone in Queens County. This time Fury was named in the order as a "target" of the tap.
Justice Dubin's order authorized a wiretap for thirty days. Two thirty-day extensions of this order were subsequently obtained and the wiretap ended on July 25, 1974. On July 31, 1974 Supreme Court Justice Leonard Fine issued an order sealing the tapes of the intercepted conversations.
Both Quinn and Fury were overheard during the Fury wiretap. Fury was served with notice of the tap on April 1, 1975 after Justice Dubin had twice postponed the service of notice upon application of the District Attorney. Quinn was never formally notified under the New York statute that his conversations had been intercepted during the Fury wiretap. He was notified, however, on February 20, 1976, by the United States Attorney's Office through his attorney.
Appellants contend that the seizure of Fury's conversations obtained pursuant to the "Schnell order" was illegal, requiring their suppression as well as the suppression of "evidence derived therefrom." With respect to the Schnell tap, they argue: (1) that there was a failure by the monitoring officers during the Schnell wiretap to "minimize" the interception of non-pertinent conversations; (2) that Assistant District Attorney Edward Margolin was not a proper "applicant" under the statute to apply for the wiretap warrant; (3) that the recordings of conversations seized during the wiretap were not timely sealed; and (4) that appellant Fury was not timely served with notice of the wiretap.
Having thus claimed that the Schnell order was invalidly issued and improperly executed, appellants contend that the Fury wiretap, which, as noted, was obtained in part on the basis of conversations intercepted during the Schnell wiretap, should have been suppressed as "fruit of the poisonous tree." See Wong Sun v. United States, 371 U.S. 471, 487-88, 87 S.Ct. 903, 17 L.Ed.2d 842 (1963). The Fury wiretap is attacked directly, moreover, upon the following grounds: (1) that it was not established that normal investigative techniques had been tried and failed; (2) that the two extension orders were not supported by "present probable cause"; and (3) that there was untimely sealing and service of notice of the tapes of conversations intercepted during the Fury wiretap.
We agree with the government's contention that Quinn has no standing to challenge the Schnell wiretap. Under both New York State and federal law only an "aggrieved person" has standing to challenge the validity of a wiretap. 3 New York Criminal Procedure Law ("CPL") § 710.20; 18 U.S.C. § 2518(10) (a). An aggrieved person is one who has had his conversations intercepted during the wiretap, or is a person against whom the wiretap was directed. CPL § 710.10(5); 18 U.S.C. § 2510(11).
Quinn was not named in the Schnell wiretap order and he was not a party to any conversation intercepted during that tap. Since he is not an "aggrieved person," he cannot challenge the Schnell tap directly by seeking to suppress information derived from it. In consequence, he cannot challenge it indirectly by seeking to suppress evidence from the Fury tap on the ground that the Fury tap was authorized in part on the basis of information from the Schnell tap. Wong Sun v. United States, 371 U.S. 471, 491-92, 87 S.Ct. 903, 17 L.Ed.2d 842 (1963); United States v. Wright, 524 F.2d 1100, 1102 (2d Cir. 1975). See United States v. Tortorello, 533 F.2d 809, 815 (2d Cir. 1976). But, of course, Quinn has standing to challenge the Fury tap on grounds unrelated to the Schnell tap, since his conversations were overheard during that later tap.
Fury, on the other hand, has standing as an aggrieved person to challenge both the Schnell and Fury wiretaps. See New York Civil Practice Law and Rules ("CPLR") § 4506(2). Fury does not have standing, however, to raise the issue of improper "minimization" during the Schnell tap. That is because the tap on Schnell's phone and the failure to minimize the conversations intercepted is an invasion of Schnell's privacy, not Fury's. United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972); People v. Fiorillo, 63 Misc.2d 480, 481, 311 N.Y.S.2d 574 (Montgomery Cty.Ct.1970). See Alderman v. United States, 394 U.S. 165, 171-76, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Hinton, 543 F.2d 1002, 1011, n. 13 (2d Cir. 1976).
Consequently, since neither Quinn nor Fury has standing to raise any claim of failure to minimize the Schnell tap interceptions, we shall not address that contention further.
Fury's second challenge to the Schnell wiretap order is directed to the application made by the Office of the Nassau County District Attorney. He contends that Edward Margolin, then the Chief Assistant District Attorney, was not a proper "applicant" for an eavesdropping warrant within the meaning of the New York Criminal Procedure Law.
Subdivision 2(a) of CPL § 700.20 states that the application for an eavesdropping warrant must set forth the identity of the "applicant", and must contain a statement of the applicant's authority to make the application. "Applicant" is defined in subdivision 5 of CPL § 700.05 in pertinent part as a "district attorney" or if the district attorney is "actually absent or disabled . . . that person designated to act for him and perform his official function in and during his actual absence or disability."
In the Schnell wiretap application Margolin stated that he was the Acting District Attorney of Nassau County, that the District Attorney was out of the State, and that he was proceeding under the authority of § 702 of the New York County Law (McKinney 1972). At this time there was on file in the County Clerk's Office a memorandum dated June 10, 1974 and signed by the District Attorney which designated, "in order of succession," Margolin and another Assistant District Attorney as "duly authorized deputies or emergency interim successors for the office of District Attorney." The designation was made pursuant to § 2216(3) of the County Government Law of Nassau County (Cum.Supp.1976) providing for the continuity of government in the event of an enemy attack or public disaster. The memorandum indicated it had also been sent to the County Executive and County Comptroller.
Another memorandum, dated April 9, 1971, and addressed to the County Executive, again designated Margolin the "Chief Assistant District Attorney," and two other Assistant District Attorneys as "Acting District Attorneys" and "duly authorized deputies or emergency interim successors." The designation was again made pursuant to § 2216 of the County Government Law of Nassau County (Cum.Supp.1976).
Fury claims that Margolin was not a proper "applicant" under CPL § 700.05(5) because these designations did not comply with the requirements of § 702 of the New York County Law. Subdivision 4 of § 702...
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