U.S. v. Masciarelli

• Decision Date: 01 September 1976
• Docket Number: No. 1269,D,1269
• Citation: 558 F.2d 1064
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raymond D. MASCIARELLI and Lawrence Schultz, Defendants-Appellees. ocket 77-1129
• Court: U.S. Court of Appeals — Second Circuit

Page 1064

558 F.2d 1064

UNITED STATES of America, Plaintiff-Appellant, v. Raymond D. MASCIARELLI and Lawrence Schultz, Defendants-Appellees.

No. 1269, Docket 77-1129.

September Term, 1976.

United States Court of Appeals, Second Circuit.

Argued June 6, 1977.

Decided June 29, 1977.

Dante M. Scaccia, Syracuse, N. Y. (Love Balducci & Scaccia, Syracuse, N. Y., of counsel), for defendant-appellee, Masciarelli.

James P. Shanahan, Syracuse, N. Y., for defendant-appellee, Schultz.

Arthur A. Chalenski, Jr., Asst. U. S. Atty., Syracuse, N. Y. (Paul V. French, U. S. Atty. for the Northern District of New York, Syracuse, N. Y., of counsel), for plaintiff-appellant.

Before MANSFIELD, TIMBERS and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

Pursuant to an order of authorization issued under 18 U.S.C. § 2518 by Judge Edmund Port of the Northern District of New York, the F.B.I., from April 11 through April 25, 1974, wiretapped a telephone used by appellee Raymond D. Masciarelli in Binghampton, New York. The order, designated MP-16, stated that there was probable cause to believe that the phone was being used "in violation of Article 225 of the Penal Law of the State of New York and thereby in violation of Section 1955 of Title 18" ¹ and in violation of the conspiracy statute, 18 U.S.C. § 371. MP-16 authorized wire interceptions relating to these gambling offenses for a maximum of 15 days and required the government to provide fifth and tenth day reports to the court pursuant to 18 U.S.C. § 2518(6).

During the first five days of the wiretap, the government intercepted a total of 283 calls, of which 275 were related to operation of a gambling business. One intercepted conversation was between defendant Lawrence Schultz in Akron, Ohio, and defendant Masciarelli (using the alias Ray Mills) in Binghamton, in which Masciarelli agreed to purchase from Schultz "line" information used for the purpose of setting "point spreads" in sports betting. The government summarized this conversation, noting the location of each of the parties, ² in its Fifth Day Report to Judge Port, who thereupon approved continuation of the wiretap.

After being presented with tapes of the intercepted conversations, a federal grand jury on November 18, 1974, handed down one indictment charging Masciarelli and On November 9, 1976, Judge Port dismissed the indictment in a decision from the bench, relying on United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), and our decision in United States v. Marion, 535 F.2d 697 (2d Cir. 1976). Although indicating that he would have decided the case differently if "writing on a clean slate," Judge Port felt "obliged" to follow Marion's reasoning that communications relating to crimes not set forth in the order of authorization, "whether or not they also relate to specified crimes," 535 F.2d at 706, cannot be used as evidence of an unspecified offense unless judicial approval is obtained by the government through a timely subsequent application. Judge Port refused to find that his authorization to continue the wiretap after reading the Fifth Day Report complied with § 2517(5), since that report, although it disclosed the contents of the Akron-Binghamton conversation and that it was interstate in character, failed to mention that it would be evidence of a § 1084 offense as well as of the authorized § 1955 offense. From this order the government appeals.

                nine others with operating a gambling business in violation of 18 U.S.C. § 1955, and another indictment charging Masciarelli and Schultz with interstate transmission of wagering information in violation of 18 U.S.C. § 1084.  3  Masciarelli and Schultz moved to dismiss the § 1084 indictment on the grounds that the interstate conversation, although it related to a violation of § 1955 as specified in the court's order, related to a violation of § 1084, which was not so specified, and the government had failed to obtain "as soon as practicable" a finding by Judge Port, as required by 18 U.S.C. § 2517(5), 4 to the effect that the "contents were otherwise intercepted in accordance with the provisions" of the federal wiretap authorization laws and an approval by him of its use other than in relation to a § 1955 prosecution.  Defendants argued that since the government failed to comply with the requirements of § 2517(5), exclusion of the conversation and dismissal of the indictment was mandated by § 2515, 5 which prohibits the receipt by a grand jury or at trial of any intercepted communication disclosed in violation of the intercept laws, or any evidence derived therefrom
                

DISCUSSION

In enacting § 2517(5) as part of the comprehensive wiretap provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2515, et seq., Congress sought to balance two conflicting principles. ⁶ One is the necessity of protecting Fourth Amendment and privacy rights, which require scrupulous particularity as to the circumstances and reasons for an electronic search before permitting it to be authorized by the courts as a means of insuring that its scope will be limited and its invasion of privacy minimized. See Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); United States v. Marron, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). It was recognized that unless stringent detail were required the government might obtain an overly broad wiretap authorization for one offense as a pretext for gaining information with respect to offenses for which probable cause could not be established or for which wiretap authorization would be unavailable. ⁷ The countervailing principle is that where a law enforcement officer lawfully engaged in a search for evidence of one crime inadvertently comes upon evidence of another crime the public interest militates against his being required to ignore what is in plain view. Harris v. United States, 331 U.S. 145, 155, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Eisner, 297 F.2d 595, 597 (6th Cir. 1962). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (warrantless search). In permitting court authorization for electronic interceptions in investigations into certain types of crime, Congress provided that the court authorization must specify the offenses in connection with which the permission was granted and, should the law enforcement officer, in the course of conducting the authorized interception, come across communications relating to offenses other than those specified in the order of authorization or approval, he must obtain the authorization or approval of a court of competent jurisdiction as soon as practicable before the communications might be used in connection with the unspecified offense. 18 U.S.C. § 2517(5).

The government argues that there was no necessity in the present case to obtain authorization and approval under § 2517(5) for the Akron-Binghamton conversation in issue because it did in fact relate to the offense specified in the original order of authorization, clearly evidencing an important element of the conduct of an illegal gambling business in violation of 18 U.S.C. § 1955, which led to the grand jury's filing of an indictment against Masciarelli and others charging violation of that statute. The government contends that it therefore cannot be said that its application for the wiretap order in connection with its investigation into violations of § 1955 was a pretext. It urges that Congress, in using the phrase in § 2517(5), "communications relating to offenses other than those specified in the order of authorization or approval" intended it to apply only where the communications did not relate to the offenses specified in the order.

Were this a case of first impression appellants' interpretation might be persuasive. However, we are confronted with our own decision in United States v. Marion, 535 F.2d 697 (2d Cir. 1976), which repeatedly cites with approval the Seventh Circuit's decision in United States v. Brodson, 528 F.2d 214 (7th Cir. 1975). Both decisions interpret § 2517(5) as requiring that supplemental court approval promptly be obtained for conversations relating to an offense unspecified in the original wiretap authorization even though the communications also relate to offenses that were specified in that order. Confronted with these decisions the government asks us to overrule Marion or in the alternative to distinguish it on the ground that the unspecified offense there was, unlike that in the present case, substantially dissimilar to the offense specified in the original wiretap authorization. We find it unnecessary to take either of these courses in the present case for the reason that Judge Port, in authorizing continuation of the interceptions after being advised in detail of the interstate conversation in issue, gave sufficient approval to satisfy the requirements of § 2517(5).

Congress intended that judicial approval of the interception of evidence relating to unauthorized offenses might retroactively be granted pursuant to § 2517(5) upon a showing that

"the original order was lawfully obtained, that it sought in good faith and not as a subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order." S.Rep. 1097, supra at 2189.

Where these conditions have been satisfied, nothing in the statute requires that the supplemental court authorization be express rather than implied. Indeed, in United States v. Tortorello, 480 F.2d 764, 781-83 (2d Cir. 1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1974), we decided that an implied authorization or approval would satisfy the requirements of § 2517(5). In that case the government had obtained a wiretap authorization under New York State law for a variety of state offenses, including grand larceny. During the course of carrying out the authorized interception the government uncovered a large-scale...