U.S. v. Gigante, 1116
| Citation | 538 F.2d 502 |
| Decision Date | 22 June 1976 |
| Docket Number | D,No. 1116,1116 |
| Parties | UNITED STATES of America, Appellant, v. Mario GIGANTE et al., Defendants-Appellees. ocket 76-1128. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Barbara J. Ambler, Sp. Atty., U. S. Dept. of Justice, New York City (Robert B. Fiske Jr., U. S. Atty., Southern District of New York, New York City, on the brief, James A. Moss, Asst. U. S. Atty., New York City, of counsel), for appellant.
Barry I. Slotnick, New York City, for defendants-appellees Mario Gigante and Thomas Villanova.
Arnold E. Wallach, New York City (Peter Peluso, New York City, for defendant-appellee Davy Tregcagnoli, Fredrick S. Goldstein, for defendant-appellee Benjamin Raugi, Robert Blossner, New York City, for defendants-appellees Frank Formosa and Joseph Palermo, on the brief).
Irving Anolik, New York City, for defendants-appellees Joseph Sarcinella, Joseph Denti, Vito Di Salvo, Danny Cilenti, Gerald Giangregorio and Nicholas Longo.
Armende Lesser, New York City, for defendant-appellee Vincent Landolfi.
Before KAUFMAN, Chief Judge, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
Justice Brandeis tellingly observed almost 50 years ago that "writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping." Olmstead v. United States, 277 U.S. 438, 476, 48 S.Ct. 564, 571, 72 L.Ed. 944 (1928) (dissenting). Mindful of this potential danger, Congress, in enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., prescribed specific and detailed procedures to ensure careful judicial scrutiny of the conduct of electronic surveillance and the integrity of its fruits. We are called upon to determine whether the Government's conceded failure to punctiliously observe one of those procedures the requirements of 18 U.S.C. § 2518(8)(a) that wiretap evidence be presented for judicial sealing "immediately" upon the expiration of the authorizing order which produced them requires the suppression of the evidence when judicial supervision of such sealing is delayed. In light of the statute's clear language, and the serious peril it was designed to avert, our answer must be in the affirmative.
A brief narration of the facts underlying this appeal will aid in understanding the issues presented. On November 10, 1972, the Organized Crime and Racketeering Strike Force applied to then-District Judge Gurfein of the Southern District of New York for authorization to intercept conversations carried over a Bronx telephone, as part of its investigation of illegal gambling operations allegedly conducted through "gambling wirerooms". These rooms, it was alleged, were nerve centers to which those placing bets telephoned their wagers on the outcome of various equestrian and athletic contests. In addition, the wirerooms exchanged "line information" (the current odds on a sporting event), and, when an unusually large sum was wagered, reduced their risk by dividing the bet among several establishments a practice known to the trade as "laying off".
The conversations were monitored by a team of FBI agents, under the supervision of Special Agent Richard Nalley, and recorded simultaneously on two tape recorders. At the end of each shift, the monitoring agent placed one tape, which he designated the "original", in a box. The carton was thereupon sealed with evidence tape, labelled, dated and initialed by the agent. The duplicate tapes were turned over to Agent Nalley, with a "chain of custody" form attached to the box containing the "original", indicating this transfer and any other conveyance. 1
Of paramount concern in this appeal, however, is the Government's egregious delay in seeking judicially-supervised sealing of the tapes as required by the statute. Section 2518(8)(a) of Title 18 mandates the presentation of wiretap-derived evidence to the judge who initially authorized the interceptions, "immediately upon the expiration of the order or extensions thereof." 2 The judge then directs the manner of sealing and storing the recorded communications. The first wiretap order expired on November 24, 1972, but Nalley and James Dougherty, the Special Attorney supervising the investigation, did not return any tapes to Judge Gurfein until sometime in December. Although Nalley later testified 3 that Judge Gurfein had personally sealed and initialed a box containing the recordings, no judicial order was signed, nor was any record of the proceeding preserved.
The Strike Force continued its investigation, obtaining a series of six subsequent orders authorizing electronic surveillance of nine telephones in the Bronx, Manhattan, and Queens. But, in each instance, there were grave delays in returning the tapes to the authorizing judge for directions on sealing and custody. To illustrate, we cite the orders under discussion, relevant dates, and the delays involved:
Date Date of
Date of District Wiretap Order Court-Directed
Wiretap Order Judge Expired Sealing Delay
------------- -------- ------------- -------------- ------------------
Nov. 30, 1972 Motley Dec. 14, 1972 Jan. 8, 1974 12 months, 15 days
Dec. 8, 1972 Gurfein Dec. 23, 1972 Jan. 7, 1974 12 months, 15 days
Dec. 27, 1972 Carter Jan. 10, 1973 Jan. 7, 1974 11 months, 28 days
Feb. 7, 1973 Tyler Feb. 22, 1973 Jan. 7, 1974 10 months, 16 days
Mar. 7, 1973 Ward Mar. 22, 1973 Jan. 7, 1974 9 months, 16 days
Apr. 13, 1973 Bartels Apr. 27, 1973 Jan. 8, 1974 8 months, 12 days
The Government has provided no explanation whatsoever for this proscrastination. 4 When Dougherty left the Strike Force in June of 1973, the tapes remained in a locked filing cabinet without having received any judicial attention. Not until more than a year after the first of these six wiretaps had been authorized did the new supervising attorney discover that the tapes had not been presented to the appropriate district judges for sealing. Finally, on January 7 and 8, 1974, judicial orders for sealing and custody were belatedly obtained from the issuing judges for the recordings derived from the six wiretap authorizations.
On January 28, 1975, Mario Gigante and twenty-four others were indicted for conducting an illegal gambling business and conspiracy to commit that offense. 18 U.S.C. §§ 1955, 371. Prior to trial, scheduled to begin on March 1, 1976, 20 of the 25 defendants moved to suppress the wiretap evidence. On February 2, 1976, after a one-day evidentiary hearing at which Agent Nalley testified, Judge Griesa granted their motion, holding that the long delay in obtaining judicial sealing of recordings made pursuant to the last six wiretap authorizations mandated their suppression under § 2518(8)(a). He also held that tapes derived from the first order should be disallowed in view of the absence of a formal judicial order or record of proceedings regarding the judicial sealing, and because of the indefinite date of judicial sealing. The Government immediately appealed from Judge Griesa's order, pursuant to 18 U.S.C. § 2518(10)(b).
We recently had occasion to observe that Congress, in enacting Title III's sharply detailed restrictions on electronic surveillance, intended to "ensure careful judicial scrutiny throughout" the process of intercepting and utilization of such evidence. United States v. Marion, 535 F.2d 697, 698, No. 75-1408 (2d Cir. May 7, 1976).
The immediate sealing and storage of recordings of intercepted conversations, under the supervision of a judge, is an integral part of this statutory scheme. Section 2518(8)(a) was intended "to insure that accurate records will be kept of intercepted communications". S.Rep. 1097, 90th Cong., 2d Sess., quoted in 2 U.S.Code Cong. & Ad.News, 2112, 2193 (1968). Clearly all of the carefully planned strictures on the conduct of electronic surveillance, e. g., the "minimization" requirement of § 2518(5), would be unavailing if no reliable records existed of the conversations which were, in fact, overheard. Maintenance of the integrity of such evidence is part and parcel of the Congressional plan to "limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974). Moreover, it plays a "central role in the statutory scheme". Id. at 528, 94 S.Ct. at 1832. See also, United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).
The Government has conceded that the requirements of § 2518(8)(a) have not been met. Nor is it disputed that failure to comply with that subsection is a ground for suppression of recorded evidence. 5 Rather, the Government argues that this is not a case where the "Draconian" sanction of suppression is warranted, since the appellees have been unable to present any evidence of actual tampering with the tapes.
To demand such an extraordinary showing, however, would vitiate the Congressional purpose in requiring judicial supervision of the sealing process. Tape recorded evidence is uniquely susceptible to manipulation and alteration. Portions of a conversation may be deleted, substituted, or rearranged. Yet, if the editing is skillful, such modifications can rarely, if ever, be detected. The judicial sealing requirement, therefore, provides an external safeguard against tampering with or manipulation of recorded evidence. The sealed tapes become "confidential court records" 6 and cannot be unsealed in the absence of a subsequent order. When these safeguards are compared with the haphazard procedures employed in this case, 7 the wisdom of Congress becomes manifest.
Moreover, the plain language of the statute requires that this evidence be suppressed. Section 2518(8)(a)...
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