U.S. v. Newman, 82-1182

• Decision Date: 07 May 1984
• Docket Number: No. 82-1182,82-1182
• Citation: 733 F.2d 1395
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur M. NEWMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1395

733 F.2d 1395

UNITED STATES of America, Plaintiff-Appellee, v. Arthur M. NEWMAN, Defendant-Appellant.

No. 82-1182.

United States Court of Appeals Tenth Circuit.

May 7, 1984.

Julius Lucius Echeles, Chicago, Ill. (Frederick F. Cohn and Caroline Jaffe, Chicago, Ill., with him on the briefs), for defendant-appellant.

Brian G. McConaty, Sp. Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., and Robert T. McAllister, Asst. U.S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellee.

Before BARRET, McKAY and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

Defendant, Arthur Newman, appeals his convictions on nine of ten counts of an indictment against him. The jury found defendant guilty of conspiracy to distribute and to possess with intent to distribute various controlled substances in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count 1); possession of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count 2); possession of methaqualone with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 (Count 3); distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (Counts 4, 6, and 7); distribution of methaqualone in violation of 21 U.S.C. Sec. 841(a)(1) (Count 5); attempting to use extortionate means to collect an extension of credit in violation of 18 U.S.C. Sec. 894 (Count 8); and use of a telephone to facilitate a drug offense in violation of 21 U.S.C. Sec. 843(b) (Count 10). The jury acquitted defendant on count 9, obstruction of justice.

I

On August 26, 1980, a federal district judge signed an order permitting federal investigators to place a "bug" in defendant's home and to tap his phone line. On September 25, 1980, the judge extended the time for the interception of communications. Defendant argues that the admission of evidence obtained through wiretapping and bugging violated his rights under the Fourth and Sixth Amendments as well as his rights under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520.

A

First, defendant argues that an appropriate person did not authorize the applications made to the federal district judge. The only persons who may authorize such an application are the Attorney General and "any Assistant Attorney General specially designated by the Attorney General." 18 U.S.C. Sec. 2516(1). Philip B. Heyman, who is described in the applications as "Assistant Attorney General, Criminal Division," authorized the applications at issue here. Defendant complains because neither the applications nor the accompanying affidavit state that the Attorney General specially designated Heyman to authorize the applications. We reject defendant's argument. A wiretap authorization order is presumed proper, United States v. Jabara, 618 F.2d 1319, 1326-27 (9th Cir.), cert. denied, 446 U.S. 987, 100 S.Ct. 2973, 64 L.Ed.2d 845 (1980) and 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 70 (1980), and defendant has offered no evidence to overcome that presumption. See United States v. Kerr, 711 F.2d 149, 150-51 (10th Cir.1983) (Assistant Attorney General Heyman authorized to seek wiretap orders).

B

Federal investigators used results from a pen register in the applications for interception orders. Defendant argues that this was improper because there was not sufficient cause for the authorization of the pen registers. We disagree. The installation and use of a pen register is not a search for purposes of the Fourth Amendment. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Thus, no showing of probable cause--or even "sufficient cause," as defendant suggests--is necessary to justify authorization of a pen register.

C

Defendant argues that the affidavit submitted with the applications for interception does not support the required findings of probable cause. Before a court may issue an order permitting interception, it must determine, on the basis of the facts set out in the application, that

"(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;

(b) there is probable cause for belief that particular communications concerning the offense will be obtained through such interception;

....

(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person."

18 U.S.C. Sec. 2518(3).

Defendant makes two arguments in support of his contention. First, he claims that information in the affidavit about defendant's criminal activity that was supplied by a confidential informant (later revealed to be James Roberts) does not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Under Aguilar and Spinelli, when information from a confidential informant is necessary to a finding of probable cause to believe a crime is being committed, an affidavit for a warrant must allege (1) underlying circumstances from which the informant concluded the facts he related, and (2) underlying circumstances that led the affiant to believe that the informant was credible. The Supreme Court has now abandoned the Aguilar-Spinelli two-pronged test in favor of a "totality of the circumstances" test. Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We need not decide whether the Gates less restrictive rule applies here, however, because the affidavit satisfies the Aguilar-Spinelli requirements. Roberts informed a police officer, Sergeant Leuthauser, about transactions in which he was involved. Roberts derived the information from his own observation of and participation in the transactions. To demonstrate Roberts' credibility, Sergeant Leuthauser stated that Roberts had given him reliable information for more than a year.

Defendant's second attack on the sufficiency of the affidavit is that the affidavit contains contradictory and false statements. The only statement defendant identifies as false is Sergeant Leuthauser's statement that Roberts had given him reliable information for more than a year. At trial, defense counsel stipulated that Sergeant Leuthauser's statement was correct. Defendant's arguments have no merit.

D

Defendant contends that the applications do not comply with 18 U.S.C. Secs. 2518(1)(c) and 3(c). Section 2518(1)(c) requires that an application contain "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." Before approving interception of oral or wire communications a judge must determine that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. Sec. 2518(3)(c).

The affidavit submitted in support of the application described the investigation that had been conducted before the application for wiretap and bugging orders. The investigators had used surveillance and confidential informers to gain information about Newman's involvement in the distribution of drugs as well as his suspected involvement in the interstate transportation of stolen jewelry. The investigation had failed to reveal the source of the drugs, the extent of the drug conspiracy, or the extent of the suspected jewelry conspiracy. This Court has held that the determination of the dimensions of an extensive drug conspiracy justifies the use of electronic surveillance. United States v. Johnson, 645 F.2d 865, 867 (10th Cir.), cert. denied, 454 U.S. 866, 102 S.Ct. 329, 70 L.Ed.2d 168 (1981). The affidavit in this case provided sufficient basis for the judge to make the finding required under Sec. 2518(3)(c).

E

Defendant claims that the investigators violated the interception orders and his Sixth Amendment right to counsel by failing to screen out privileged communications between defendant and his attorney. ¹ Defendant raised this argument at trial. After listening to the tapes that defendant offered in support of his argument, the trial court found that the investigators had not interpreted any privileged communications. On appeal, defendant identifies no specific privileged communications that were intercepted. Thus, we must conclude that the trial court was correct.

F

Defendant argues that the investigators violated the interception orders by continuing to intercept communications for several days after the search of his residence. Under Title III, an order may authorize interception of communications for as long as necessary to achieve the objectives of the interception, but not longer than thirty days. 18 U.S.C. Sec. 2518(5). One objective of the interception of defendant's communications was to identify other members of the drug conspiracy. The search of defendant's residence did not foreclose the possibility that defendant would call or receive calls or visits from as yet unidentified members of the drug conspiracy. We find no violation of Title III in the continued interception after the search.

II

Defendant urges that we remand his case for a hearing to determine whether he was prejudiced by the following situation: Two of defendant's co-defendants, Gina Carriero and Walter Zelinka, requested help from defendant's attorney, Alan Dill, in finding counsel. Dill recommended Rod Snow, who had previously been an assistant United States Attorney in Colorado. Snow apparently entered an appearance on behalf of Carriero and Zelinka but withdrew when he learned that he had authorized an application for the use of a pen...