U.S. v. Williams, s. 96-3629
Decision Date | 26 August 1997 |
Docket Number | Nos. 96-3629,96-3661,s. 96-3629 |
Citation | 124 F.3d 411 |
Parties | UNITED STATES of America, v. Salvatore A. WILLIAMS, a/k/a "Sonny." UNITED STATES of America, v. Salvatore C. WILLIAMS, a/k/a "Sal." UNITED STATES of America, v. Adolph WILLIAMS, a/k/a "Junior." , and 96-3666. |
Court | U.S. Court of Appeals — Third Circuit |
Frederick W. Thieman, United States Attorney, Paul J. Brysh (Argued), Office of United States Attorney, Pittsburgh, PA, for Appellee.
Bruce A. Antkowiak (Argued), Greensburg, PA, for Salvatore A. Williams.
J. Alan Johnson (Argued), Swensen, Perer & Johnson, Pittsburgh, PA, for Salvatore C. Williams and Adolf Williams.
Thomas A. Livingston, Plunkett & Cooney, Pittsburgh, PA, for Salvatore C. Williams.
Before: COWEN, ALITO, and SEITZ, Circuit Judges.
OPINION OF THE COURT
Salvatore A. Williams, Salvatore C. Williams, and Adolph Williams (the "defendants") entered conditional pleas of guilty to offenses related to the operation of an illegal gambling business. On appeal, they contest the district court's denial of pretrial motions, including motions to suppress the evidence derived from electronic oral and video surveillance 1 and evidence obtained in a search of Adolph Williams's home. We affirm.
The illegal gambling operation that resulted in the defendants' convictions began in the 1960's. In initially investigating the operation, the Pennsylvania State Police utilized a confidential informant and conducted physical surveillance of an office located at 1420 Fifth Avenue, Pittsburgh (the "Fifth Avenue premises") that was believed to serve as the operation's headquarters. Concluding that these investigative techniques were insufficient, the District Attorney of Allegheny County filed applications in the Superior Court of Pennsylvania under the state Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons.Stat. Ann. §§ 5701-26, seeking authorization for the state police to conduct electronic oral and video surveillance of two rooms of those premises. The applications were supported by an affidavit of two Pennsylvania State Troopers who explained some of the evidence already gathered by other means and the basis for their belief that electronic oral and video surveillance were necessary. Some of the information contained in the affidavit was provided by the confidential informant who had worked within the organization for seven years. The affidavit further stated that the state police were conducting the investigation in conjunction with the Federal Bureau of Investigation. A. 50-124. 2
On June 26, 1991, Judge Justin M. Johnson of the Superior Court signed an order authorizing electronic oral surveillance of the Fifth Avenue premises for a period of 30 days. He denied the request for video surveillance authorization, believing that the state wiretapping statute did not empower a Superior Court judge to authorize video surveillance, but he provided that his orders were "entered without prejudice to the applicant seeking further additional relief in the appropriate Court of Common Pleas." 3 A. 18(d). Accordingly, the next day, the District Attorney filed an application for video surveillance in the Court of Common Pleas of Allegheny County. This application was supported by the same affidavit as the application for electronic oral surveillance previously filed in the Superior Court. Court of Common Pleas Judge Robert Dauer granted the application and authorized video surveillance of the same two rooms for a period of 30 days. After 30 days passed, the District Attorney requested and received extensions for both orders from the respective courts. All electronic oral and video surveillance of the Fifth Avenue premises ended on Friday, August 9, 1991. On Monday morning, August 12, 1991, the tapes of the surveillance were sealed.
In May 1993, the United States Attorney for the Western District of Pennsylvania applied to a federal magistrate judge for a search warrant for the residence of Adolph Williams at 274 Foxcroft Road, Pittsburgh (the "Foxcroft Road residence"). The application was supported by an affidavit executed jointly by a Special Agent of the FBI and a Pennsylvania State Trooper who were involved in the investigation. The affidavit stated that physical surveillance had revealed that an individual associated with the operation took betting slips twice daily from a location on Fifth Avenue, Pittsburgh, to the Foxcroft Road residence. The affidavit related that in an intercepted comment Adolph Williams had said that he would take the gambling proceeds to his home for safekeeping, and the affidavit added that the confidential informant had learned that Adolph Williams had a hiding place in his residence that was used for storing records. On May 25, 1993, the magistrate judge issued the search warrant. The search was conducted on that day and resulted in the seizure of currency, gambling records, and other evidence.
The office of the United States Attorney for the Western District of Pennsylvania presented the case to a federal grand jury, and some of the electronically intercepted evidence was disclosed to the grand jury, even though no court order specifically authorizing such disclosure had been obtained. Some of this same evidence was also disclosed to agents with the Criminal Investigation Division of the Internal Revenue Service. A. 317.
The grand jury returned a 27-count indictment, charging conspiracy and various gambling and income tax offenses. The defendants moved to suppress much of the evidence intercepted through the electronic oral and video surveillance, as well as the evidence seized from the search of the Foxcroft Road residence. The district court initially suppressed evidence derived from the oral and video surveillance on the ground that it exceeded the periods authorized by the state court judges. The government appealed, and we reversed in an unpublished opinion, holding that the district court had misinterpreted the state court orders. United States v. Williams, No. 95-3529 (3d Cir. May 20, 1996). On remand, the defendants all entered conditional guilty pleas that preserved for appeal the district court's denial of their other pretrial motions.
Salvatore A. Williams pleaded guilty to one count of violating 18 U.S.C. § 371 by conspiring to conduct an illegal gambling business in contravention of 18 U.S.C. § 1955(a). He was sentenced to one month of imprisonment and two years of probation. Salvatore C. Williams and Adolph Williams pleaded guilty to conducting an illegal gambling business, in violation of 18 U.S.C. §§ 1955 and 2, and to one count of violating 18 U.S.C. § 371 by conspiring to defraud the United States of wagering tax revenue. They were sentenced to 15-month terms of imprisonment and three-year terms of supervised release, and they were fined $40,000 and $4,000, respectively. The defendants then took this appeal.
On appeal, the defendants contend (1) that the district court erred in refusing to suppress the video surveillance evidence because that surveillance was conducted in violation of the Fourth Amendment; (2) that the evidence seized from Adolph Williams's home should have been suppressed because the warrant was not supported by probable cause; (3) that the charges under 18 U.S.C. § 1955 should have been dismissed because those charges were based on violations of Pennsylvania gambling statutes that violate the Equal Protection Clause; (4) that the district court erred in refusing to suppress the electronically intercepted oral evidence because the Pennsylvania wiretapping statute does not comply with the certain requirements of Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 ("Title III"); (5) that the district court erred in refusing to suppress the electronically intercepted oral evidence because it was disclosed in violation of 18 Pa. Cons.Stat. Ann. §§ 5718 and 5717(a); (6) that the district court erred in refusing to suppress the electronically intercepted oral evidence because there was no necessity for the use of this investigative technique, as is required by 18 Pa. Cons.Stat. Ann. § 5709(3)(vii) and 18 U.S.C. § 2518(1)(c); (7) that the extension of the period of electronic surveillance was unjustified and that the evidence obtained as a result should have been suppressed; and (8) that the district court erred in refusing to suppress the electronically intercepted oral evidence because the tapes were not timely sealed as required by Title III and the state wiretapping statute. 4
We turn first to the defendants' argument that the video surveillance of the Fifth Avenue premises violated the Fourth Amendment and that the evidence resulting from this surveillance should have been suppressed. The defendants do not contend that either Title III or the Pennsylvania wiretapping statute authorizes or prohibits video surveillance. Instead, they base their arguments on the understanding of the governing legal principles set out in United States v. Torres, 751 F.2d 875 (7th Cir.1984). In Torres, the Seventh Circuit held, among other things, that Title III has no application to video surveillance, id. at 880-82; that a federal district court has the authority, either under Federal Rule of Criminal Procedure 41 or by virtue of its inherent powers, to issue a warrant for video surveillance, id. at 877-80; that video surveillance is a search governed by the Fourth Amendment, id. at 882; and that if the government conducts video surveillance in conformity with certain requirements of Title III, including the requirement of judicial certification 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. § 2518(3)(c), then the government has also conformed to the related requirements contained in the Fourth Amendment's warrant...
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