U.S. v. Smith, Nos. 82-1678

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before CAMPBELL, Chief Judge, COFFIN, BOWNES and BREYER; COFFIN
• Citation: 726 F.2d 852
• Parties: UNITED STATES of America, Appellee, v. Claudius SMITH, Defendant, Appellant. UNITED STATES of America, Appellee, v. Franklin A. SHEARER, Defendant, Appellant. UNITED STATES of America, Appellee, v. Jessie WOODBURY, Defendant, Appellant. UNITED STATES of America, Appellee, v. Charles ROMANO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Carlos TORRES, Defendant, Appellant. UNITED STATES of America, Appellee, v. Veronica DeJESUS, a/k/a Ronnie, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edward GABREE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joanne AMADO, a/k/a "JO", Defendant, Appellant. UNITED STATES of America, Appellee, v. Fay HULLUM, Defendant, Appellant. UNITED STATES of America, Appellee, v. Kathy AMADO, a/k/a "Kim", Defendant, Appellant. UNITED STATES of America, Appellee, v. Clarence VARISTE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lanier GRIFFIN, a/k/a "Jitters", Defendant, Appellant. UNITED STATES of America, Appellee, v. Rhonda WASHINGTON, Defendant, Appellant. UNITED STATES of America, Appellee, v. Edward DeJESUS, a/k/a "Tony", Defendant, Appellant. UNITED STATES of America, Appellant, v. Norman AMADO, Defendant, Appellee. UNITED STATES of America, Appellee, v. Mattie LEDBETTER, a/k/a "Theresa", Defendant, Appellant. to 82-1687, 82-1689 to 82-1691, 82-1732, 83-1613 and 83-1686.
• Docket Number: Nos. 82-1678
• Decision Date: 17 January 1984

Page 852

726 F.2d 852 UNITED STATES of America, Appellee,
v.
Claudius SMITH, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Franklin A. SHEARER, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Jessie WOODBURY, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Charles ROMANO, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Carlos TORRES, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Veronica DeJESUS, a/k/a Ronnie, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Edward GABREE, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Joanne AMADO, a/k/a "JO", Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Fay HULLUM, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Kathy AMADO, a/k/a "Kim", Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Clarence VARISTE, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Lanier GRIFFIN, a/k/a "Jitters", Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Rhonda WASHINGTON, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Edward DeJESUS, a/k/a "Tony", Defendant, Appellant.
UNITED STATES of America, Appellant,
v.
Norman AMADO, Defendant, Appellee.
UNITED STATES of America, Appellee,
v.
Mattie LEDBETTER, a/k/a "Theresa", Defendant, Appellant. Nos. 82-1678 to 82-1687, 82-1689 to 82-1691, 82-1732,
83-1613 and 83-1686. United States Court of Appeals,
First Circuit. Jan. 17, 1984.

Page 854

James W. Lawson, Boston, Mass., with whom Lillian A. Wilmore, Oteri, Weinberg & Lawson, Walter Prince, Brown & Prince, William Homans, Homans, Hamilton, Dohmen & Marshall, David P. Twomey, Dwyer & Murray, Boston, Mass., Brian T. Callahan, Medford, Mass., John Bonistalli, Carhart & Bonistalli, George Gormley, Alice A. Hanlon, Richard Glovsky, Hanify, King & Glovsky, Alan D. Rose, Joseph Keefe, Nutter, McClennen & Fish, William Shaw McDermott, McDermott & Rizzo, Frances Robinson, David & Baker, Law Offices of Willie J. Davis, Boston, Mass., and John Cicilline, Providence, R.I., were on brief, for Edward Gabree, et al.

Andrew Good, Boston, Mass., by appointment of the Court, for Lanier Griffin, a/k/a "Jitters".

John B. Lawlor, Jr., Boston, Mass., with whom Moos & Lawlor, Boston, Mass., was on brief, for Norman Amado.

Jacob Laufer, New York City, with whom Bornstein & Laufer, New York City, was on brief, for Charles Romano.

Michael J. Liston, Boston, Mass., and Palmer & Dodge, Boston, Mass., on brief, for Mattie Ledbetter, a/k/a "Theresa".

Tobin N. Harvey and Dennis J. Kelly, Asst. U.S. Attys., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., Robert S. Mueller, Asst. U.S. Atty., Chief, Crim. Div., and E. Sydney Hanlon, Asst. U.S. Atty., San Francisco, Cal., were on brief, for the U.S.A.

Paula J. DeGiacomo, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti,

Page 855

Atty. Gen., Frederick W. Riley, Chief, Crim. Bureau, and Barbara A.H. Smith, Chief, Crim. Appellate Div., Boston, Mass., were on brief, for intervenor Attorney General.

Before CAMPBELL, Chief Judge, COFFIN, BOWNES and BREYER, Circuit Judges.

OPINION EN BANC

COFFIN, Circuit Judge.

These multiple appeals from drug conspiracy convictions resulted in reversals by a panel of our court, which found that a section of the Massachusetts wiretap statute, Mass.Gen.Laws Ann. ch. 272, Sec. 99 F(1), identifying officials empowered to apply for wiretap warrants, afforded less procedural protection than did the comparable section of the federal statute, 18 U.S.C. Sec. 2516(2). A petition for rehearing en banc was granted, the panel's opinion withdrawn, supplemental briefs submitted, and reargument had. We now decide that the Massachusetts statute, supplemented by the procedures required by the Massachusetts Supreme Judicial Court in Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975), does not conflict with or diminish federal requirements and is thus not facially invalid. Because of the particular circumstances relating to the authorizations of the wiretaps in these cases and because of the failure to follow a procedure specifically recommended in Vitello we remand to the district court for further findings. As for the remaining issues raised we see no reversible error.

I. Validity of Authorization for Wiretaps

A. Facts

Evidence leading to the conviction of the sixteen appellants now before us arose from a joint investigation conducted by federal agents of the Drug Enforcement Administration, members of the Boston Police Drug Control Unit and officers assigned to the Organized Crime Division of the Suffolk County District Attorney's Office in Massachusetts. Crucial evidence, indicating defendants' participation in an illegal heroin distribution network, was collected by electronic surveillance of five telephone numbers in Norfolk and Suffolk counties. Recordings of the intercepted conversations, along with the results of visual surveillance, were presented to a federal grand jury, which returned an indictment charging nineteen defendants with a conspiracy to "knowingly and intentionally possess with intent to distribute and to distribute quantities of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code, Section 841(a)(1); all in violation of Title 21, United States Code, Section 846".

Before trial defendants filed consolidated motions to suppress the evidence obtained via wiretaps and to dismiss the indictments; these motions were denied. After fifteen of the defendants waived their right to a jury trial, their cases were submitted to the district court solely on the basis of stipulations of facts. On July 7, 1982, the district court denied each of the defendants' motions for judgment of acquittal, and found each guilty of the conspiracy charged in the indictment. Two defendants, Franklin Shearer and Gail Barber, chose to proceed by jury trial and were found guilty.

Of these seventeen, fifteen have appealed from the July 7, 1982 judgments of conviction (the Claudius Smith cases). The two remaining defendants of the nineteen indicted had become fugitives. One of these, appellant Norman Amado, was subsequently taken into federal custody. On June 30, 1983, he filed a motion to suppress, adopting the motion that had been submitted in the stipulated facts trial. On July 15, 1983 the government filed additional material, not earlier submitted, in the form of extensive affidavits and exhibits of District Attorney Flanagan and Assistant District Attorney Crossen detailing the procedures followed by them in obtaining the five wiretap warrants at issue. The panel's decision in the Claudius Smith cases having been issued on June 30, 1983, the district court, on July 27, 1983, allowed Norman Amado's motion to suppress and to dismiss "on the basis

Page 856

of" the panel's opinion that the wiretaps should have been suppressed. The government appealed. Both this appeal and those in the Claudius Smith cases are now before us.

The first issue concerns the propriety of admitting into evidence some 400 pages of transcribed conversations gained from several thousand telephone calls intercepted between November 6, 1981 and February 4, 1982 pursuant to basic applications for judicial authorization to intercept five telephones and amendments and renewals of such applications. The essential procedure involved, first, a letter of designation to Assistant District Attorney Gary Crossen, signed by the District Attorney, Newman Flanagan, empowering the former "to make application pursuant to Massachusetts General Laws, Chapter 272, Section 99, for a warrant and any renewals thereof, to intercept wire communications to and from" a designated telephone number. The second step was an application, signed by Crossen, containing specific supporting information. The application was then presented to Massachusetts Superior Court Justice McGuire, who issued the necessary warrants.

Subsequent to the consideration of the Claudius Smith appeals by our court's panel, the government, as we have noted, filed in the Norman Amado case voluminous material further detailing the procedure followed in connection with the wiretaps. Affidavits from District Attorney Flanagan and Assistant District Attorney Crossen averred that substantial discussion with and consideration by the district attorney of the need for a wiretap preceded each letter of designation, that the district attorney was kept advised continually of progress and problems, that he approved all requests for amendments and renewals of authority. The Amado case record further reveals, in addition to the letters of designation and five applications, numerous applications for renewals and for amendments. These latter kinds of applications were signed, as in the case of the basic applications, only by Assistant District Attorney Crossen. The five applications for renewals recited that each had been authorized by the district attorney. No such recitation appeared in the fourteen applications for amendments. We have collected data concerning the date and authorized coverage of applications, renewals, and amendments in a tabulation in the Appendix. ¹

B. Validity of the Massachusetts Statute, Mass.Gen.Laws Ann. ch. 272, Sec. 99 F(1)

We need not dwell long on basic presuppositions--that the objectives of federal legislation controlling electronic surveillance are to protect privacy, to establish uniform standards not only on a federal level but in a state or county governing the authorization of interceptions, and to ensure adherence to these standards through centralizing responsibility in top level state and county prosecutors who can be held accountable for departures from preestablished policy; and that, so long as federal standards are not jeopardized or eroded, state regulation is not proscribed but rather is specifically contemplated. 18 U.S.C. Sec. 2516(2).

The specific dispute in...