U.S. v. Losing

• Decision Date: 10 August 1977
• Docket Number: 76-1045,Nos. 76-1040,s. 76-1040
• Parties: UNITED STATES of America, Appellee, v. Russell V. LOSING, Jr., Appellant. UNITED STATES of America, Appellee, v. Donald Ray FEICK, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 906

560 F.2d 906

UNITED STATES of America, Appellee, v. Russell V. LOSING, Jr., Appellant.

UNITED STATES of America, Appellee, v. Donald Ray FEICK, Appellant.

Nos. 76-1040, 76-1045.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1976.

Resubmitted March 14, 1977.

Decided Aug. 10, 1977.

Irl B. Baris and Kenneth H. Graeber, St. Louis, Mo., on supplemental brief, for Donald Ray Feick.

Bernard Steinger, Clayton, Mo., for appellants.

Barry A. Short, U.S. Atty. and Richard E. Coughlin, Asst. U.S. Atty., St. Louis, Mo., on supplemental brief, for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and HENLEY, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

These direct criminal appeals are now before us for plenary review following proceedings in the district court pursuant to our order of partial remand dated July 30, 1976. United States v. Losing, 539 F.2d 1174 (8th Cir. 1976). We affirm.

In our prior opinion we held that defendants-appellants Donald Ray Feick and Russell Victor Losing, Jr., were entitled to an evidentiary hearing for the purpose of determining whether a Government wiretap complied with the minimization requirement of 18 U.S.C. § 2518(5). The district court has conducted the hearing and has certified to us its findings of fact and conclusions of law, dated January 20, 1977, to the effect that the wiretap complied with the stated requirement. The parties have filed supplemental briefs with respect to the January 20 order.

We also consider additional contentions advanced by the defendants when the appeal was originally submitted and not considered in our prior opinion. These are:

II. The affidavit in support of the wiretap application failed to show that normal investigative procedures had been tried and failed, as required by 18 U.S.C. § 2518(1)(c).

III. Cross-examination of key Government witness Joseph Cranage was improperly restricted at trial.

IV. Defense motions for severance should have been granted.

V. There was insufficient evidence to sustain a conviction.

A number of the pertinent facts are set forth in our prior opinion and need not be repeated here. To the extent that additional facts are pertinent to the issues remaining for consideration, we relate them in due course.

I.

The minimization hearing required under our order of partial remand was conducted by the district court on September 9, 1976. The Assistant United States Attorney and the drug enforcement agent who supervised the intercept were both extensively examined and cross-examined at the hearing. Copies of reports to Judge Regan, who authorized the wiretap initially, were introduced into evidence, as were the daily reports prepared by the supervisory agent and the log book prepared by the monitoring agents. The original tapes were similarly available to the court and the parties.

After considering the entire record, the district court found the following facts: (1) the supervising attorney gave detailed instructions to the agents who operated the wiretap that all calls of a privileged nature or " innocuous" in content were to be minimized (2) the agents actually minimized between 79 and 81 calls; (3) the total number of completed calls was 1208, of which approximately 400 were drug-related and a very substantial number of those remaining were less than two to three minutes in length ¹; (4) written reports, containing a breakdown of the number of calls received, their nature, and whether they were minimized, were given to Judge Regan at five-day intervals; and (5) the objectives of the intercept had not been achieved in full when it was terminated on December 27, 1974, upon disconnection of the target telephone. The district court further noted that sixteen persons were ultimately indicted and at least fifty considered for indictment, that identifying the various voices and interpreting the language of the drug business presented considerable problems for the monitoring agents, and that the defendants "often mixed business with pleasure" during their telephone conversations.

Confronted with the above facts, the court below concluded:

In this context it must be concluded that the Government's efforts at minimization were more than sufficient. In fact, as the supervising agent testified, some conversations which were minimized in part were found later to be drug-related. Certainly, some conversations were recorded that were completely "innocuous." However, considering the total number of calls intercepted and the scope of the investigation, those "innocuous" calls were far too few in number to affect the validity of the intercept.

The factfindings detailed above are supported by substantial evidence and are not clearly erroneous, and the legal conclusion just quoted is fully consonant with the principles set forth in our prior opinion, 539 F.2d at 1180-81. The district court properly determined that the wiretap in this case complied with the minimization requirement of 18 U.S.C. § 2518(5). ²

II.

Eighteen U.S.C. § 2518(1)(c) requires that an application for an order authorizing the interception of a wire communication include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Defendants contend that the wiretap application in this case, presented to Judge Regan on December 13, 1974, failed to comply with this requirement.

As noted in our prior opinion, the central figure in the drug conspiracy under investigation was Joseph Cranage. The affidavit which accompanied the wiretap application in this case explained that the Government's primary interest was to determine Cranage's source or sources of supply of controlled substances, his method of delivery and distribution, and the location or locations where his immediate supply of drugs was kept. According to the affidavit a prior wiretap of Eugene Kirk and others ³ had revealed that Cranage was being supplied with heroin by Kirk but that Cranage had additional sources of supply for cocaine, which the Kirk wiretap had not revealed. The affidavit similarly explained that exhaustive physical surveillance and extensive records checks, details of which were related in the body of the affidavit, had proved unproductive in uncovering the desired facts. The affidavit further related that attempts to consummate an actual purchase from Cranage would likely have been futile, since Cranage would in all probability seek to ascertain the would-be purchaser's true identity prior to any sale; in any event, even if a purchase were completed, it would not disclose Cranage's distribution network.

The pertinent standards under 18 U.S.C. § 2518(1)(c) have been set out on several recent occasions by this court. United States v. Jackson, 549 F.2d 517, 537 (8th Cir. 1977); United States v. Matya, 541 F.2d 741, 745 (8th Cir. 1976); United States v. Daly, 535 F.2d 434, 438 (8th Cir. 1976); United States v. Kirk, 534 F.2d 1262, 1274 (8th Cir. 1976). In United States v. Daly, we said:

We recognize that Congress intended these sections to restrict wiretaps to those which are necessary as well as reasonable. But Congress did not require the exhaustion of "specific" or "all possible" investigative techniques before wiretap orders could be issued. Congress prohibited wiretapping only when normal investigative techniques are likely to succeed and are not too dangerous. "Merely because a normal investigative technique is theoretically possible it does not follow that it is likely." Sections 2518(1)(c) and 2518(3)(c) are only designed to ensure that wiretapping is "not to be routinely employed as the initial step in criminal investigation" and " * * * to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." The Government's showing must, of course, be tested in a "practical and commonsense fashion." And as in other suppression matters, considerable discretion rests with the judge to whom the wiretap application is made.

535 F.2d at 438 (citations omitted).

The wiretap application in this case complied with 18 U.S.C. § 2518(1)(c).

III.

The primary Government witness at trial was Joseph Cranage. According to his own testimony, Cranage had been a large-scale distributor of heroin. He had, prior to the trial below, pled guilty to three counts of using a telephone in furtherance of a drug conspiracy, had been sentenced to three-year concurrent terms, and had been paroled after eleven months. He had been assured that he would not be further prosecuted for past drug crimes, notwithstanding the fact that he was named in twenty-five counts of the indictment in this case, including the conspiracy count. He had also been given assurances of Government assistance in relocating and sustaining himself for a short time. All of these matters were thoroughly brought out on direct and especially cross-examination, and the jury was accordingly well aware of the witness' character and his reasons for testifying.

Notwithstanding the wide latitude given to defense counsel to explore the above matters on cross-examination, defendants claim that the cross-examination was improperly restricted. The primary basis for this contention is the district court's refusal to allow questioning concerning Cranage's possible participation in the murder of a Government informant. Out of the presence of the jury, defense counsel was permitted to voir dire the witness for the purpose of determining whether any deals had been made with the Government in connection with the alleged murder. When the voir dire proved unproductive in disclosing any such deals, the court ruled that questioning about the witness' speculative involvement in a murder would not be permitted, but that defense counsel remained free to examine the witness concerning any deals he had made...