U.S. v. Webster

Decision Date15 January 1981
Docket NumberNos. 79-5204 and 79-5240,s. 79-5204 and 79-5240
Citation639 F.2d 174
Parties, 7 Fed. R. Evid. Serv. 998 UNITED STATES of America, Appellee, v. Walter R. WEBSTER, a/k/a Gangster, a/k/a Mr. G, Appellant. UNITED STATES of America, Appellee, v. Walter R. WEBSTER, a/k/a Gangster; a/k/a Mr. G.; a/k/a G, Appellant. UNITED STATES of America, Appellee, v. Richard ADAMS, a/k/a Mr. Richard, Appellant. UNITED STATES of America, Appellee, v. Norma THOMPSON, Appellant. UNITED STATES of America, Appellee, v. Boysie ASH, Appellant. UNITED STATES of America, Appellee, v. Victoria WILLS, Appellant. UNITED STATES of America, Appellee, v. John V. CHRISTIAN, a/k/a Wolf, Appellant. UNITED STATES of America, Appellee, v. Herbert Leon JOHNSON, a/k/a Herb, Appellant. to 79-5246.
CourtU.S. Court of Appeals — Fourth Circuit

Kenneth L. Thompson, New York City (George L. Russell, Jr., Baltimore, Md., on brief), for appellant Adams.

Benjamin Lipsitz, Baltimore, Md., for appellant Johnson.

Harold I. Glaser, Baltimore, Md. (Lawrence A. Arch, Baltimore, Md., on brief), for appellants Webster and Thompson.

Howard L. Cardin, Baltimore, Md., on brief, for appellant Ash.

Mark Lee Phillips, Kensington, Md., on brief, for appellant Wills.

Stanley H. Miller, Baltimore, Md., on brief, for appellant Christian.

Glenn L. Cook, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., on brief), for appellee United States.

Before WINTER, BUTZNER and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Appellants seek to overturn their convictions on a wide variety of charges related to a conspiracy to distribute illegal drugs. Of the many issues raised on appeal, the only ones requiring substantial discussion concern (a) the legality of certain wiretaps, (b) the constitutionality of part of 21 U.S.C. § 848, the so-called "Kingpin" statute, (c) the proper construction of 18 U.S.C. § 1962(c) (part of the Racketeer Influenced and Corrupt Organizations ("RICO") statute), (d) the propriety of the district court's refusal to admit polygraph evidence in a related nonjury trial of defendant Webster, and (e) the sufficiency of the evidence to convict appellants.

I.

Substantially all of the evidence in the trial consisted of either the contents or the fruits of wiretaps which were placed on telephones pursuant to ex parte orders issued on May 10, June 9, and June 21, 1978, by a judge of the Supreme Bench of Baltimore City. Defendants attack the statute under which the orders were issued, the sufficiency of the applications for the orders, and the propriety of playing tapes of the intercepted calls to undercover informants who were cooperating with law enforcement officers.

A. The Validity of the Maryland Statute

Defendants spent substantial portions of their brief and argument attacking the validity of the Maryland statute under which, defendants stated, the order allowing the taps had been issued. According to defendants, that statute remained in effect through June 30, 1978, and deviated so much from the provisions of 18 U.S.C. §§ 2510-2520 (1976) that federal law barred the use as evidence of information obtained under the authority of the Maryland Act. See 18 U.S.C. § 2515 (1976); J. Carr, The Law of Electronic Surveillance 31-32 (1977). At argument, strangely enough, the United States attempted to support the challenged Maryland statute, although in its Brief the government had correctly pointed out that the statute which defendants were attacking had been replaced, effective July 1, 1977, with a statute which tracks the federal statute practically verbatim. See Md.Cts. & Jud.Proc.Code Ann. §§ 10-401 to -412 (1980). Since none of the wiretaps in this case had been ordered prior to May 10, 1978, defendant's federal constitutional attack on the Maryland law (as well as on any claimed nonfulfillment of the requirement of compliance with the federal wiretap statute) represents no more than misdirected effort.

B. Sufficiency of the Applications for the Taps and the Accompanying Affidavits

Both the federal and the Maryland wire interception statutes require an issuing judge to determine, on the basis of the application for the wiretap, that probable cause exists to believe that (1) an individual is committing, has committed, or is about to commit one of several offenses enumerated in Md.Cts. & Jud.Proc.Code Ann. § 10-406 or 18 U.S.C. § 2516 (1976) (both of which include dealing in narcotics), (2) particular communications concerning that offense will be intercepted by the wiretap, and (3) the target facilities will be used in connection with the offense. In addition, each statute requires (4) a showing either that normal investigative procedures were unsuccessful or reasonably appear to be unlikely to succeed if tried or to be too dangerous. See Md.Cts. & Jud.Proc.Code Ann. § 10-408(c)(1)-(4) (1980); 18 U.S.C. § 2518(3) (a)-(d) (1976). The defendants challenge the sufficiency of the applications for the wiretaps in each of these respects. As Judge Young's Order denying the Motion to Suppress is thorough and well reasoned, our discussion can be substantially abbreviated.

1. Probable cause to believe that the targets had committed or were committing or about to commit certain offenses.

The affidavits on which the May 10, 1978 surveillance order was based are almost textbook examples of how to conform to the constitutional requirements articulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The expertise and credibility of both the affiants and the three informants are established in great detail, and the actual observations of the affiants and the informers are reported in even greater detail, enabling the neutral magistrate to form his or her own conclusions regarding the existence vel non of probable cause.

For instance, one target of the May 10, 1978 wiretap was heard taking the orders for drugs, another was seen exchanging cocaine for stolen goods, a third was heard offering to sell cocaine and describing the large amounts he buys and sells, and a fourth was seen distributing cocaine. There were, therefore, ample grounds for the judge to have found probable cause that certain individuals had committed or were committing certain crimes. See Md.Cts. & Jud.Proc.Code Ann. § 10-408(c)(1) (1980); 18 U.S.C. § 2518(3)(a) (1976).

2. Probable cause with respect to the target phones.

There was also probable cause to believe that the target telephones had been used in connection with the commission of the relevant offenses. For example, informants reported drug related conversations that had occurred on the Springdale Avenue telephone and on the West Baltimore Street telephone.

Defendants claim that, even conceding that the telephones had been used in connection with the offenses, there was insufficient grounds for probable cause to believe at the time of the surveillance order that the target phones were being used or were about to be used in connection with the offenses. Defendants base this contention on two grounds. First, they assert that the substantial period of time which had elapsed between the actual observations regarding the target telephones and the subsequent request for the surveillance order removed the basis for believing narcotics sales continued. Second, defendants argue that the statements in the affidavit that the target individuals had begun to be suspicious that they were being observed by the police and had begun a variety of precautions served notice to the issuing tribunal that criminal activity "might have been" halted by the time the warrant was issued. Neither argument is valid.

We agree that otherwise reliable information which has become stale cannot provide the sole basis for a finding of probable cause. See United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973). However, the affidavit described numerous instances of both recent and continuing use of the target telephones to conduct illegal drug transactions. For instance, less than a month before the wiretap application, one informant reported overhearing two narcotics-related conversations originating from a target telephone. If the informant's observation had provided the single isolated basis of probable cause, perhaps then we would be called upon to determine whether such a showing complied with the staleness standard. However, the extensive drug business described in the affidavit indicated a continuing enterprise. Moreover, subsequent investigation conducted prior to the wiretap application provided additional confirmation that the target phones were used to conduct illegal drug business. For instance, long distance records subpoenaed from the telephone company and matched with Drug Enforcement Administration records containing telephone numbers of known or suspected drug traffickers resulted in three "hits." Where an affidavit "properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant." United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972). Therefore, neither the lapse of time nor the conceded suspicion of the target individuals was sufficient for the probability of continued inculpatory use of the phones to fall below the level required for probable cause. 1

The facts presented in the affidavit provided sufficient grounds for the judge to have found probable cause both that the sought-after communications would be obtained through the interception and that the target phones were facilities which were being and were about to be used in connection with the commission of narcotics offenses. See Md.Cts. & Jud.Proc.Code Ann. § 10-408(c)(2), (4) (1980); 18 U.S.C. § 2518(3)(b), (d) (1976). Assuming that the goal of the surveillance was to seek evidence regarding higher-ups in the drug...

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