U.S. v. Young

• Decision Date: 25 June 1987
• Docket Number: Nos. 353,D,374 and 375,376,458,s. 353
• Citation: 822 F.2d 1234
• Parties: UNITED STATES of America, Appellee, v. Antonio YOUNG, Gustavo Hernandez, Federico Manon, Martin Reyes, and Charles Molina, Defendants-Appellants. ockets 86-1204, 86-1205, 86-1212, 86-1257 and 86-1258.
• Court: U.S. Court of Appeals — Second Circuit

Page 1234

822 F.2d 1234

UNITED STATES of America, Appellee, v. Antonio YOUNG, Gustavo Hernandez, Federico Manon, Martin

Reyes, and Charles Molina, Defendants-Appellants.

Nos. 353, 458, 376, 374 and 375, Dockets 86-1204, 86-1205,

86-1212, 86-1257 and 86-1258.

United States Court of Appeals, Second Circuit.

Argued Jan. 20, 1987.

Decided June 25, 1987.

Maurice H. Sercarz, Brooklyn Heights, N.Y. (Sercarz, Schechter & Lopez, of counsel), for defendant-appellant Young.

George W. Harder, Albany, N.Y. (Harder, Silber & Gillen, of counsel), for defendant-appellant Hernandez.

Robert Rivers, Hempstead, N.Y., for defendant-appellant Manon.

Michael A. Feit, Albany, N.Y. (Feit & Schlenker, of counsel), for defendants-appellants Molina and Reyes.

John J. McCann, Asst. U.S. Atty., N.D.N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., of counsel), for appellee.

Before LUMBARD, KEARSE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

This narcotics appeal presents numerous issues, some of which relate to several or all defendants, and some of which relate to only one. We will first address the common arguments, none of which have merit. Then we will address arguments having individual application, one of which requires reversal of the conviction of defendant Federico Manon. As to the other defendants we affirm.

BACKGROUND

The investigation that led to the arrest and trial of the defendants began in January 1985 when officials of the Drug Enforcement Administration ("DEA") informed the Albany Police Department that an ongoing DEA investigation had implicated Juan George in cocaine transactions. Acting on this information, the Albany police obtained state electronic surveillance orders for George's home and office telephones. After being extended for thirty additional days, these orders expired on March 22, 1985. Based on transcripts of the intercepted conversations, George, his wife Luisa George, Ismael Melendez, Marcos Sarol, Carmen Manon, and the five defendants bringing this appeal were jointly indicted by a federal grand jury on May 15, 1985, on charges of conspiracy to possess with intent to distribute cocaine, 21 U.S.C. Sec. 846, conspiracy to distribute cocaine, 21 U.S.C. Sec. 846, and use of a telephone to facilitate a drug conspiracy, 21 U.S.C. Sec. 843(b).

On June 28, 1985, Judge Miner, then a district judge, denied defendants' pre-trial motions, including a motion to suppress evidence of the intercepted conversations.

Judge Gagliardi began the jury trial on December 2, 1985. Three days later Juan and Luisa George, Ismael Melendez, and Marcos Sarol pled guilty in satisfaction of all counts alleged against them, and on December 9, 1985, all charges against Carmen Manon were dismissed. These events left only the five appealing defendants to continue the trial. On December 13, 1985, the jury convicted these remaining defendants on all counts. Each was sentenced to 60 days imprisonment, 100 hours of community service, and a special assessment of $50. These appeals followed.

DISCUSSION

A. Claims Common to Multiple Defendants.

The defendants join in two common contentions. The first challenges the admissibility

of the transcripts of conversations intercepted by the court-ordered wiretaps on the phones of co-conspirator Juan George. The second challenges the lack of any minority persons on the venire from which the defendants' jury was chosen. Neither argument has merit.

1. Admissibility of Wiretapped Conversations.

Defendants raise two grounds for excluding the intercepted conversations. First, they challenge the adequacy of the affidavits submitted in support of the authorizing orders on the basis that they did not establish that other, normal investigative techniques had been tried or would be futile, as required by 18 U.S.C. Sec. 2518(1)(c). Second, they argue that the federal crimes with which defendants were charged are "offenses other than those specified" in the state wiretap orders and that 18 U.S.C. Sec. 2517(5) therefore required advance judicial approval for use of the wiretaps in the federal grand jury.

a. Adequacy of Supporting Affidavits.

The first ground requires little comment. Defendants argue that the supporting affidavits prepared and submitted to procure the necessary court orders did not show that normal investigative techniques had been tried or were likely to fail. Such a showing is required both by federal law, 18 U.S.C. Sec. 2518(1)(c), and by state law, New York State Criminal Procedure Law, Sec. 700.15(4).

The district court, which is entitled to deference, see United States v. Puglisi, 790 F.2d 240, 241 (2d Cir.) (per curiam ), cert. denied, --- U.S. ----, 107 S.Ct. 106, 93 L.Ed.2d 55 (1986), found that the requirements of 18 U.S.C. Sec. 2518(1)(c) were met and refused to suppress the evidence. We see no reason to disturb this decision. A reading of the affidavit submitted by Detective Sergeant Fargione of the Albany Police Department makes clear that in fact several "normal investigative techniques" had been tried unsuccessfully, and that other such techniques were likely to fail. As the affidavit pointed out, surveillance of George's residence would have been impractical, since such surveillance in a residential neighborhood is likely to "be conspicuous and draw attention to the assigned officers." See United States v. Turner, 528 F.2d 143, 152 (9th Cir.), cert. denied, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975). Similarly, surveillance of his place of business, an office on the seventh floor at a state office building, would have been unsuccessful, because surveillance of the building from the outside would have given little information regarding who had gone to see George, and for what purpose, and interior surveillance of George's office would have been too conspicuous and highly likely to reveal the fact of an on-going investigation.

Techniques other than direct surveillance would also have been unavailing. The Fargione affidavit stated that there were no informants available to infiltrate an undercover police officer into the conspiracy for the purpose of making a controlled buy. Use of a pen register and acquisition of telephone toll records, neither of which "identify the participants to a telephone conversation", would have been unavailing since they "would be unlikely to uncover [George's] partners in crime". United States v. Martino, 664 F.2d 860, 868 (2d Cir.1981), cert. denied, Miller v. United States, 458 U.S. 1110, 102 S.Ct. 3493, 73 L.Ed.2d 1373 (1982). In fact, telephone toll records for George's home phone were pulled for December 1984, but proved useless.

While it is true that other techniques, used in combination, might have borne some fruit, there is no requirement "that any particular investigative procedures be exhausted before a wiretap may be authorized". United States v. Lilla, 699 F.2d 99, 104 (2d Cir.1983). We have previously noted that "wiretapping is particularly appropriate when the telephone is routinely relied on to conduct the criminal enterprise under investigation". United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir.1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976).

b. Corresponding Federal and State Crimes.

Defendants further argue that the intercepted conversations should not have been admitted into evidence because the government failed to comply with the terms of 18 U.S.C. Sec. 2517(5), which requires judicial approval before wiretap evidence can be used in a criminal or grand jury proceeding relating to offenses other than those specified in the initial wiretap order. Section 2517(5) provides:

When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral, or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may * * * be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter.

Defendants contend that the federal charges on which they were tried were "other offenses" from the state law offenses described in the original wiretap order, and that judicial approval was therefore necessary before the evidence could be used against them in the instant federal prosecution. We reject defendants' contention, because the federal offenses charged were not "other offenses" within the meaning of the statute. It is therefore unnecessary to consider whether, as the government alternatively contends, it was sufficient to obtain the judicial approval prior to defendants' trial, but after they had been indicted by the grand jury.

The state-law crimes for which the wiretap authorization was sought were identical to the federal crimes for which defendants were indicted and convicted. The district attorney's applications for wiretaps on George's business and home telephones alleged "probable cause to believe that JUAN J. GEORGE and others yet unknown * * * are committing and are about to commit offenses involving sale of and possession with intent to sell controlled substances, attempt to and/or conspiracy to commit those offenses and use of a telephone to facilitate the commission of those offenses, in violation of Articles 220, 110 and 105 of the Penal Law of the State of New York", and it was for a violation of those sections that County Judge Joseph Harris found sufficient probable cause to justify issuance of the wiretap orders. The state Penal Law sections, of course, correspond exactly to the federal offenses of which defendants were convicted.

Where the only difference between the offenses described in the wiretap authorization and those for which defendants are...