U.S. v. Pierorazio

• Decision Date: 31 May 1978
• Docket Number: Nos. 77-1626,77-1632,s. 77-1626
• Parties: UNITED STATES of America v. Frank PIERORAZIO, Appellant. UNITED STATES of America v. Jesse CAPPS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 48

578 F.2d 48

UNITED STATES of America v. Frank PIERORAZIO, Appellant.

UNITED STATES of America v. Jesse CAPPS, Appellant.

Nos. 77-1626, 77-1632.

United States Court of Appeals, Third Circuit.

Argued March 27, 1978.

Decided May 31, 1978.

Stanford Shmukler, Philadelphia, Pa., for appellant Pierorazio.

Michael A. Seidman, Philadelphia, Pa., for appellant Capps.

Joel M. Friedman, Philadelphia, Pa., Attorney in Charge, Philadelphia Strike Force, William G. Otis, William C. Brown, Attys., Dept. of Justice, Washington, D.C., for appellee.

Before HUNTER, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

Defendants Frank Pierorazio and Jesse Capps were charged in a thirteen count indictment with one count of conspiracy to distribute methamphetamine (a Schedule II controlled substance) in violation of 21 U.S.C. § 846, and with several counts ¹ of violating 21 U.S.C. § 843(b) by using a communication facility to facilitate the felony of possession and distribution of controlled substances (in violation of 21 U.S.C. § 841(a)), and of attempts to so possess and distribute (in violation of 21 U.S.C. § 846). After their first jury trial in January, 1977 ended in a hung jury, Pierorazio and Capps were retried on the conspiracy count, and Pierorazio was retried on two counts of violating 21 U.S.C. § 843(b). ² The Government's evidence at trial consisted almost entirely of tape recorded telephone conversations intercepted under court order, and of expert testimony interpreting those conversations. The jury returned a verdict of guilty on all counts, and the district court entered judgments of conviction accordingly. Capps was sentenced to a two year term of imprisonment followed by a Special Parole term of two years. Pierorazio was sentenced to a three and one-half year term of imprisonment, followed by two years Special Parole, on the conspiracy count, and the same sentence on each substantive count, to be served concurrently with each other and with the sentence on the conspiracy count. Both defendants appealed.

I

Pierorazio argues on appeal that his convictions under 21 U.S.C. § 843(b), using a communications facility in the facilitation of certain felonies under subchapters I and II of Chapter 13, Title 21, United States Code, may not be sustained. He contends that the evidence adduced by the Government is insufficient to show actual distribution or possession, and that an actual accomplished distribution or possession must be proved in order to support a conviction for facilitation under § 843(b). In other words, it is Pierorazio's position that proof of an underlying inchoate crime, such as attempt or conspiracy to distribute controlled substances or to possess controlled substances with intent to distribute, does not suffice to support a facilitation conviction under § 843(b), and that proof of an underlying actual, consummated substantive offense is necessary. Assuming arguendo that the evidence is insufficient to show actual distribution or possession with intent to distribute, and at best is sufficient to show a conspiracy or an attempt to distribute or possess with intent to distribute we must nevertheless reject appellant's contention. ³

The predecessor of 21 U.S.C. § 843(b) was former 18 U.S.C. § 1403(a) (repealed Pub.L. 91-513, Title III, § 1101(b)(1)(A), Oct. 27, 1970, 84 Stat. 1292). That section provided:

(a) Whoever uses any communication facility in committing or in causing or facilitating the commission of, or in attempting to commit, any act or acts constituting an offense or a conspiracy to commit (various substantive narcotics offenses) shall be imprisoned not less than two and not more than five years, and, in addition, may be fined not more than $5,000. Each separate use of a communication facility shall be a separate offense under this section.

Thus, it was a federal crime to use a communications facility: (1) "in committing" any of the specified narcotics offenses; (2) "in causing or facilitating the commission" of any of those offenses; (3) "in attempting to commit" any of those offenses; and (4) in "a conspiracy to commit" any of those offenses.

Section 1403(a) was repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, and was replaced by a revised version, Pub.L. 91-513, Title II, § 403(b), 84 Stat. 1263, codified at 21 U.S.C. § 843(b). That section provides:

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.

Appellant's argument focuses on the fact that Congress, in revising the communication-facilitation statute at issue here, omitted the language "or in attempting to commit (the specified criminal acts)", and the language "or a conspiracy to commit (the specified offenses)." He urges in this regard that we accept the reasoning of United States v. Leslie, 411 F.Supp. 215 (D.Del.1976), and United States v. Harrington, Slip Op., Crim. No. 77-86 (E.D.Pa. Feb. 23, 1978). The district courts in those cases held that Congress, by omitting the language found in former 18 U.S.C. § 1403(a) relating to attempt and conspiracy, yet by closely tracking the language of § 1403(a) in other respects, intended to restrict 21 U.S.C. § 843(b) to the facilitation of consummated crimes, and accordingly intended to omit from that statute the facilitation offense when the underlying felony consisted merely of the inchoate crimes of attempt or conspiracy. See 411 F.Supp. at 216-17. ⁴

We cannot accept the analysis contained in Leslie and Harrington. We believe that the approach in those two cases ignores the plain language of the statute as well as the fact that 21 U.S.C. § 846 was passed contemporaneously with the passage of § 843(b) and the repeal of former 18 U.S.C. § 1403(a). ⁵

Section 843(b) makes criminal the use of a telephone "in committing, or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter (subchapter I) or subchapter II of this chapter (Chapter 13 of Title 21)." Included within subchapter I is § 846, which makes it a felony for a person to attempt or conspire to commit any offense defined in subchapter I (such as distribution or possession with intent to distribute, defined as offenses in § 841). In other words, attempt to distribute a controlled substance, conspiracy to distribute a controlled substance, attempt to possess a controlled substance with intent to distribute it, and conspiracy to possess a controlled substance with intent to distribute it, are all felonies under provisions of subchapter I. As such, they are plainly included within the terms of § 843(b). We can discern nothing in the legislative history, ⁶ nor has any policy been advanced, which would call for a different result. ⁷ Hence, the fact that particular language found in former § 1403(a) was thereafter omitted from § 843(b) does not persuade us that Congress intended to preclude a § 843(b) facilitation conviction where the underlying felony is attempt or conspiracy under § 846.

In sum, we hold that proof of an underlying inchoate crime, such as attempt or conspiracy under § 846, is sufficient to sustain a facilitation conviction under § 843(b). It is therefore not necessary that an actual, consummated distribution be shown. In reaching this result, we are in accord with all other courts of appeals which have considered this question. E. g., United States v. Losing, 560 F.2d 906 (8th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977); United States v. Rodriguez, 546 F.2d 302 (9th Cir. 1976); United States v. Turner, 528 F.2d 143, 165 (9th Cir. 1976), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977); United States v. Steinberg, 525 F.2d 1126 (2d Cir.), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1975). See United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976), cert. denied, 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); United States v. Sisca, 503 F.2d 1337 (2d Cir. 1974) (both Sisca and Kirk affirmed § 843(b) convictions where the underlying felony was conspiracy under § 846; neither discussed the question presented here). See also United States v. Jones, 545 F.2d 1112 (8th Cir. 1976), cert. denied, 97 S.Ct. 814, 55 L.Ed.2d 814 (1977).

Thus the district court did not err in denying Pierorazio's pre- and post-trial motions in this respect.

II

Appellants Pierorazio and Capps have raised several other contentions on appeal. Specifically, they claim (1) that the interception of telephone communications by Government agents violated federal law in several respects, viz, that the warrants for the two authorized interceptions failed to establish probable cause; that the wiretap applications failed to establish that normal investigative techniques had been tried or appeared unlikely to succeed; and that the integrity of the tapes had not been preserved since they were not properly sealed or promptly filed with the court;

(2) that the trial judge erred in failing to grant a judgment of acquittal at the close of the first trial;

(3) that the evidence was insufficient to show the existence of a conspiracy to possess and distribute methamphetamine, as charged in the indictment;

(4) that the trial court erred in permitting the jury to listen to tape recorded conversations of persons other than defendants, relating to incidents...