U.S. v. Licavoli

• Decision Date: 13 September 1979
• Docket Number: No. 77-1381,77-1381
• Citation: 604 F.2d 613
• Parties: 4 Fed. R. Evid. Serv. 1452 UNITED STATES of America, Plaintiff-Appellee, v. Peter LICAVOLI, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 613

604 F.2d 613

4 Fed. R. Evid. Serv. 1452

UNITED STATES of America, Plaintiff-Appellee, v. Peter LICAVOLI, Sr., Defendant-Appellant.

No. 77-1381.

United States Court of Appeals Ninth Circuit.

Sept. 13, 1979.

Robert J. Hirsh, Hirsh, Shiner & Polis, P. C., Tucson, Ariz., argued, for defendant-appellant.

Kevin F. O'Malley, Special Atty., Phoenix, Ariz., argued, David G. Knauss, Asst. U.S. Atty., on brief, for plaintiff-appellee.

Appeal from the United States District Court for the Tucson District of Arizona.

Before WRIGHT and HUG, Circuit Judges, and INGRAM, ^* District Judge.

HUG, Circuit Judge:

Peter Licavoli, Sr. appeals his conviction for receiving stolen goods in violation of 18 U.S.C. § 2315. Licavoli contends that the district court should have suppressed evidence obtained through the use of electronic surveillance devices. He also argues that the court committed reversible error in several trial rulings concerning the admissibility or sufficiency of evidence and in other aspects of the conduct of the trial. We affirm the conviction.

I. The Investigation and Trial

In March 1976, a federal judge authorized agents of the Federal Bureau of Investigation to install electronic surveillance devices in the office of an art gallery owned and operated by Licavoli. The F.B.I. had presented evidence to the court tending to show that the surveillance was necessary to their investigation of allegations that Licavoli was acting as a broker in several transactions involving stolen diamonds. A finding of probable cause that Licavoli was dealing in stolen diamonds was supported by an affidavit prepared and submitted to the court by the F.B.I.; the substance of the affidavit was based on information obtained by the F.B.I. from two confidential informants whose identities have remained undisclosed. Pursuant to the authorization order, F.B.I. agents installed a wiretap on Licavoli's office phone and placed an electronic listening device within the office to intercept room conversations.

The initial authorization order was issued on March 18, 1976, and expired by its terms at the end of twenty days from that date. The F.B.I. terminated electronic surveillance under the initial order on April 6 and applied for an extension order. On April 9, the authorizing judge issued an order extending his authorization of electronic surveillance for an additional twenty days.

In April 1976, Donald Mason, an undercover agent for the F.B.I., engaged in a series of negotiations with Licavoli for the purchase of diamonds believed by the F.B.I. to be stolen property. In a telephone conversation during this period, Licavoli informed Mason that he had acquired a valuable painting, the "Lucretia," that he wished to sell. ¹ At a meeting in Licavoli's gallery office, Licavoli showed to Mason two newspaper articles that clearly stated that the Lucretia had been stolen almost a year earlier from the home of its owner, Charna Signer, in Ohio. With the aid of the electronic listening device planted in Licavoli's office, the F.B.I. recorded two room conversations, one involving Licavoli and his daughter and the other involving Licavoli and an associate, Ron Walker, that tended to show that Licavoli had notice of the theft of the Lucretia. Mason subsequently told Licavoli that he had found a buyer for the painting and paid Licavoli $500 as a down payment. Shortly thereafter, a search warrant was issued, and federal agents seized the Lucretia from Licavoli's art gallery.

On the basis of Licavoli's involvement with the Lucretia, a federal grand jury indicted Licavoli on a charge of knowingly receiving stolen property valued in excess of $5,000 and constituting a part of interstate commerce, in violation of 18 U.S.C. § 2315. No charges were brought on Licavoli's dealings with allegedly stolen diamonds.

At trial, Licavoli presented three major defenses: (1) the Lucretia was not stolen; rather, it was the object of a conspiracy by Charna Signer and others to defraud the insurer of the painting; (2) the Lucretia is not valued in excess of $5,000; and (3) the painting had come to rest in Arizona and therefore was not a part of interstate commerce. The jury rejected Licavoli's defenses and returned a verdict of guilty. Licavoli was sentenced to a prison term of eighteen months and fined $10,000.

II. Issues Presented for Review

With respect to Licavoli's contention that the fruits of electronic surveillance should have been suppressed, the following issues are raised:

1. Are the orders authorizing electronic surveillance facially invalid because they authorized the F.B.I. to enter Licavoli's office surreptitiously to install, maintain and remove electronic surveillance devices?

2. Did the trial court err in failing to grant an evidentiary hearing concerning the reasonableness of the surreptitious entry?

3. Do the authorization orders inadequately specify the suspected criminal conduct to which the intercepted conversations are expected to relate?

4. Did the trial court err in failing to order, on its own motion, an evidentiary hearing on the question of the adequacy of the minimization of electronic surveillance?

5. Was Licavoli entitled to an evidentiary hearing on his allegation that a Government affidavit supporting the F.B.I.'s application for the authorization orders contained material misrepresentations?

With respect to the conduct of the trial, the following issues are raised:

1. Did the Government fail to establish a proper foundation for the admission into evidence of an expert appraisal of the value of the Lucretia?

2. Did the trial court commit plain error in admitting into evidence testimony of Licavoli's collateral misconduct relating to his dealings with allegedly stolen diamonds?

3. Did Walker retain his privilege against self-incrimination at trial even though he had testified to relevant matters before the grand jury?

4. Did the trial court err in refusing to allow Licavoli to call as witnesses persons who would have invoked their privilege against self-incrimination and refused to testify?

5. Is the evidence insufficient to support a finding that the Lucretia was part of interstate commerce when Licavoli received the painting?

III. Suppression of the Fruits of Electronic Surveillance

We first turn to Licavoli's contentions that the F.B.I. engaged in illegal electronic surveillance of his gallery office, and that the evidence derived from the surveillance should have been suppressed. We are concerned here with the requirements of both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (1976).

Title 18 U.S.C. § 2515 prohibits the receipt into evidence of the contents of a communication, or evidence derived therefrom, if the disclosure would be in violation of Title III. The grounds on which a motion to suppress may be brought are set forth in § 2518(10)(a). At the time of Licavoli's trial, that section provided in part:

Any aggrieved person . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the ground that

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

Section 2518(1)-(8) sets forth the procedures that must be followed and the requirements that must be met to obtain a valid authorization order for electronic surveillance and to engage in the lawful interception of communications.

Over the objections of the defense, the Government introduced at trial recordings of the two intercepted conversations that tended to show that Licavoli knew that the Lucretia was stolen. Although other evidence was introduced on the question of Licavoli's state of mind, we will assume that the admission of the recorded conversations was material to the outcome of the case, and we thus reach the merits of Licavoli's arguments.

A. Authorization of Surreptitious Entry to Plant the Listening Device

The initial court order authorizing electronic surveillance and the extension order each authorized the F.B.I. to "enter (Licavoli's office) surreptitiously for the purpose of installing, maintaining, and removing" electronic listening devices. Licavoli contends that Title III does not permit surreptitious entry to plant a listening device and that the authorization and extension orders thus are facially invalid. In the alternative, he argues that if surreptitious entry is permitted by Title III, both Title III and the Fourth Amendment require specific court authorization for surreptitious entry, and the authorization order and extension order in this case are overly broad.

Title III is silent on the question of the authority of the courts to authorize break-ins or surreptitious entry for the purpose of installing eavesdropping devices. The question whether the power to authorize surreptitious entry can be implied from the explicit statutory grant of power to authorize the interception of communications, which sharply divided the circuits, has now been authoritatively answered by a recent decision of the Supreme Court, Dalia v. United States, 441 U.S. 238, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). In Dalia, the Court held that Congress intended to confer power upon the courts to authorize covert entries for the purpose of implanting listening devices and that the "Fourth Amendment does not prohibit Per se " such covert entries. 441 U.S. at 248, 99 S.Ct. at 1689, 60 L.Ed.2d at 187. ² The Court further held that because it is "implicit in bugging authorizations" that covert enter may be necessary for the installation of surveillance equipment, a Title III electronic surveillance order need not include a specific authorization to enter covertly the premises described in the order. 441 U.S. at 258, 99 S.Ct....