U.S. v. Steinberg

• Decision Date: 10 November 1975
• Docket Number: 1151 and 1200,D,1150,Nos. 1148,s. 1148
• Citation: 525 F.2d 1126
• Parties: UNITED STATES of America, Appellee, v. Stuart STEINBERG et al., Defendants-Appellants. ockets 75--1150, 75--1163, 75--1164 and 75-- 1166.
• Court: U.S. Court of Appeals — Second Circuit

Page 1126

525 F.2d 1126

UNITED STATES of America, Appellee, v. Stuart STEINBERG et al., Defendants-Appellants.

Nos. 1148, 1150, 1151 and 1200, Dockets 75--1150, 75--1163,

75--1164 and 75-- 1166.

United States Court of Appeals Second Circuit.

Argued July 17, 1975.

Decided Nov. 10, 1975.

Stanley S. Arkin, P.C., New York City (Stanley S. Arkin, Mark S. Arisohn, New York City, of counsel), for appellant Steinberg.

William J. Gallagher, The Legal Aid Society, New York City (Sheila Ginsberg, New York City, of counsel), for appellant Capo.

Litman, Friedman & Kaufman, New York City (Lewis R. Friedman, Herman Kaufman, New York City, of counsel), for appellant Kaye.

Stanley L. Siegel, New York City, for appellant Parker.

Paul J. Curran, U.S. Atty., S.D.N.Y. (Michael B. Mukasey, John D. Gordan, III, Asst. U.S. Attys. of counsel), for appellee.

Before MOORE, FRIENDLY and VAN GRAAFEILAND, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Appellants Stuart Steinberg, William Capo, Howard Kaye and James Parker appeal from judgments of conviction entered after a jury in the Southern District of New York found them guilty of conspiracy to violate the federal narcotics laws (21 U.S.C. § 846 (1970)) and, on varying counts, of knowingly using the telephone to cause and facilitate the conspiracy (21 U.S.C. § 843(b) (1970)). ¹ Steinberg and Capo also appeal from their convictions on three substantive counts of distributing and possessing with intent to distribute phencyclidine hydrochloride ('PCP'), a Schedule III controlled substance.

The convictions of Steinberg and Capo are affirmed. Because the evidence was insufficient to link appellants Kaye and Parker with the conspiracy charged, their convictions are reversed.

FACTS

On June 26, 1973, an informant, Ricky Citrola, introduced DEA Special Agent Brian Noone to appellant Steinberg as the representative of a man with money to invest in drugs. Steinberg gave Noone a .21 gram sample of PCP and indicated that he could supply large quantities of the drug. The next day Noone purchased two ounces of PCP for $2,400, and on July 10, one-half pound for $8,000. Appellant Capo was one of the suppliers of the PCP involved in these deliveries.

In various telephone conversations, occurring between July 10 and July 18, Noone and Steinberg discussed a 20-pound PCP transaction and also negotiated the terms of a 50-pound deal for $680,000. A wiretap was then installed on Steinberg's telephone following which Noone called Steinberg and confirmed the 50-pound purchase. Steinberg also agreed to provide a cocaine sample.

On July 24, Steinberg was informed by one of his suppliers that a hold would have to be put on the 50-pound transaction because the supplier's source had been arrested. Steinberg informed Noone of a 'delay' in the PCP deal and suggested proceeding instead with a cocaine sale which had also been discussed.

To his dismay, Steinberg found that the cocaine which he had been planning to sell to Agent Noone was of inferior quality. He therefore called appellant Kaye seeking 50 pounds of the drug. Kaye said he could obtain it in California but informed Steinberg on the next day that he would not 'do' the transaction.

On July 26 the wiretap on Steinberg's phone intercepted a call from appellant Parker to one Sara Werman in which he arranged the purchase of a quarter ounce of hashish oil for $125. Parker told Werman that she should deliver the oil to Steinberg's place and that Steinberg would give her the money if he was not there. Werman dropped the drug off, and later that evening discussed a potential one-ounce transaction with Parker.

During the following week Steinberg expanded his efforts to make a largescale sale to Noone, offering large quantities of seconals and tuinals, hashish, and marijuana, without success.

Adequacy of Wiretap Applications and Orders

Appellants Steinberg and Capo vigorously assail the denial of their motion to suppress the information obtained from the wiretap. They contend that the application for the wiretap order did not contain the requisite '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 . . ..' ² 18 U.S.C. § 2518(1)(c) (1970). See 18 U.S.C. § 2518(3)(c) (1970).

The application, which merely tracked the language of section 2518(1)(c), incorporated by reference the supporting affidavit of Agent Noone. Paragraphs 4 through 9 of that affidavit describe the progress of Noone's investigation, beginning with his introduction to Steinberg and including the three PCP deliveries which had taken place. The affidavit indicates that the two PCP sales had been initiated and arranged by telephone, and that Steinberg, at least upon occasion, contacted his suppliers in this manner. On one of these occasions, Noone heard Steinberg assure them that Noone would not be present when a PCP delivery was made, that Steinberg was aware that the suppliers did not want to meet Noone and that Noone did not want to meet them. The affidavit goes on to describe the arrangements (largely telephonic) which had been made for the 20-pound PCP purchase. Based on Noone's experience, the previous deliveries and Steinberg's representation that he could supply an unlimited quantity of PCP from an out-of-state laboratory, Noone concluded that Steinberg and his suppliers were engaged in major distributions of PCP. Paragraph 11 of the affidavit states:

Normal investigative procedures have nto succeeded in establishing the full extent of the activities conducted by Stuart L. Steinberg related to the purchase or sale of controlled substances, nor have the location and identity of the source of Stuart L. Steinberg's supply been established. Normal investigative procedures reasonably appear to be unlikely to succeed in obtaining the evidence necessary for the following reasons:

A. At this time there is no known undercover access to his supplier and no chance of developing such access because of the covert manner in which Stuart L. Steinberg operates; and

B. My experience and the experience of other Special Agents of the Drug Enforcement Administration has shown that individuals dealing in large quantities of narcotics are particularly covert in their activities and wary of surveillance by Federal and State law enforcement personnel. Such dealers very rarely keep records, deal personally with a very few trusted individuals and isolate themselves from other individuals in the distribution organization.

Although the affidavit provides little factual basis for concluding that normal investigative techniques had not 'suffice(d) to expose the crime,' United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974), paragraphs (1)(c) and (3)(c) of § 2518 are in the disjunctive; and the Government's main reliance is upon the second alternative provided by the statute. ³ We must view the affidavit as a whole and 'in a practical and commonsense fashion,' S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Congressional and Administrative News, p. 2190. While the Government will be well advised in the future to include a more detailed factual statement indicating the inadequacy of other investigative techniques, the affidavit herein did contain enough data to permit the authorizing judge reasonably to conclude that other means would be unlikely to succeed in revealing the scope of Steinberg's operation and his sources of supply.

When one endeavors to prove a negative, it is difficult to be very specific about it; and we are loathe to set impossibly burdensome standards. See United States v. Staino, 358 F.Supp. 852, 856--57 (E.D.Pa.1973); United States v. Falcone, 364 F.Supp. 877, 888--89 (D.N.J.1973). We are satisfied that the Government has substantially complied with the statutory mandate, and we note that on oral argument appellants could advance no logical alternative to wiretapping to ascertain the details of Steinberg's operation. Indeed, wiretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation. Falcone, supra, 364 F.Supp. at 889.

Assuming arguendo that the wiretap application was sufficient on its face, appellant Capo nevertheless contends that he is entitled to a hearing to test the truth of certain statements made therein. To be entitled to such a hearing, there must be 'an initial showing of falsehood or other imposition' on a judicial officer. United States v. Dunnings, 425 F.2d 836, 840 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970).

Capo claims to have made this showing in three different ways. None is persuasive. His claimed 'discrepancy' between Steinberg's open dealings with Noone and Noone's allegation of covert operations was no discrepancy at all insofar as Steinberg's suppliers were concerned. His argument that failure to disclose the true nature of Ricky Citrola's relationship with the Government constituted a misrepresentation by omission is defective in its assumption that Noone recognized Citrola as a source for the information sought to be obtained. The affidavit did not say that there was no known undercover access to Steinberg but rather that there was no known access to Steinberg's suppliers because of his modus operandi. On August 6, well after the date of the Noone affidavit, Steinberg himself indicated that Citrola would have to be introduced to Steinberg's suppliers. Finally, we decline Capo's invitation to find a misrepresentation from Noone's failure to mention that on July 10, 1973, Capo was observed by DEA Agent Jordison entering Steinberg's apartment building. There is no indication that Noone was aware of this fact when he prepared his affidavit nor any evidence that Capo's identity or his role as a supplier was known even to Jordison at the time of the wiretap...