United States v. James

• Decision Date: 04 February 1974
• Docket Number: 72-1488,71-1215,72-1489,72-1483,71-1192,71-1216.,71-1193,No. 71-1168,71-1168
• Citation: 494 F.2d 1007
• Parties: UNITED STATES of America v. Leon JAMES, Appellant. UNITED STATES of America v. Enrico TANTILLO, Appellant. UNITED STATES of America v. Robert VERDEROSA, Appellant. UNITED STATES of America v. Lawrence W. JACKSON, Appellant. UNITED STATES of America v. Carl W. BROOKS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

494 F.2d 1007 (1974)

UNITED STATES of America v.Leon JAMES, Appellant.

UNITED STATES of America v.Enrico TANTILLO, Appellant.

UNITED STATES of America v.Robert VERDEROSA, Appellant.

UNITED STATES of America v.Lawrence W. JACKSON, Appellant.

UNITED STATES of America v.Carl W. BROOKS, Appellant.

Nos. 71-1168, 72-1489, 71-1192, 72-1488, 71-1193, 72-1483, 71-1215, 71-1216.

United States Court of Appeals, District of Columbia Circuit.

Argued December 12, 1972.

Decided February 4, 1974.

Rehearing Denied April 15, 1974.

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Edward J. Cull, Washington, D.C., with whom George M. Coburn, Washington, D.C. (both appointed by this Court) was on the brief, for appellant in Nos. 71-1168and72-1489.

Joel M. Finkelstein, Washington, D.C., with whom James L. Rider, Washington, D.C., was on the brief, for appellants in Nos. 71-1192, 72-1488, 71-1193and72-1483.

John A. Shorter, Jr., Washington, D.C., with whom William A. Bonders was on the brief, for appellants in Nos. 71-1215and71-1216.

Roger E. Zuckerman and James L. Lyons, Asst. U.S. Attys., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Theodore Wieseman, Robert E. L. Eaton, Jr., Asst. U. S. Attys., were on the brief for appellee.

Before WINTER,^* Circuit Judge for the Fourth Circuit, and MacKINNON and ROBB, Circuit Judges.

ROBB, Circuit Judge:

The appellants and Carmine Paladino and Mary Davis, both now dead, were indicted for conspiracy to sell narcotics in violation of 26 U.S.C. §§ 7237(b)and4705(a), and conspiracy to receive and conceal narcotic drugs, knowing them to have been illegally imported.21 U.S.C. § 174.¹Jackson, Tantillo, Paladino, Verderosa and James were also indicted for substantive violations of the narcotics laws.All except James were convicted of conspiracy and of various substantive offenses.James was convicted of certain substantive offenses, but acquitted of conspiracy by direction of the court.²

The case for the government depended upon evidence of telephone communications and conversations intercepted and recorded by agents of the Bureau of Narcotics and Dangerous Drugs (Bureau).The interceptions were authorized by District Judge William B. Jones, pursuant to 18 U.S.C. §§ 2510-2520(1970).

The communications intercepted by the government agents took place over two telephones, one, listed as 582-9265, located at 201-53rd Street, S.E., Washington, D. C., Apartment 2, and the other, listed as 399-3695, at 3676-A Hayes Street, N.E., Washington, D. C., Apartment 301.On July 9, 1969 Judge Jones entered an order authorizing the interception of communications over telephone 582-9265.Interception commenced on July 11, 1969 and continued, pursuant to the order of July 9 and an extension of authority granted by Judge Jones, until August 19.On August 1, 1969 Judge Jones authorized the interception of communications over telephone 399-3695.Interception under this authority began on August 1 and continued until August 19.

During the periods when the intercepting devices were in place government agents recorded all communications over the two telephones.Many of the communications were put in evidence before the jury and were the basis of the government's case.From this evidence the jury was justified in finding that the appellant Jackson was in the business of selling narcotic drugs in the City of Washington, and that arrangements for the purchase, sale and delivery of drugs were made over the two telephones.More than 5,000 telephone calls were intercepted, 70% of which related to the sale or purchase of narcotics.The jury was also justified in finding that the appellants Tantillo and Verderosa, who lived in New York, were Jackson's suppliers.

I.CONSTITUTIONALITY

The appellants contend that the statute under which their conversations were intercepted, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520(1970), is unconstitutional on its face.We reject this contention without replowing the ground which has been thoroughly and ably covered by many other courts.SeeUnited States v. Tortorello, 480 F.2d 764(2d Cir.1973), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86(1973);United States v. Cafero, 473 F.2d 489(3d Cir.1973), petition for cert. filed, 42 U.S.L.W. 3018(Mar. 26, 1973);United States v. Bobo, 477 F.2d 974(4th Cir.1973), petition for cert. filed sub nom., United States v. Gray, 42 U.S.L.W. 3167(Aug. 2, 1973);United States v. Cox, 462 F.2d 1293(8th Cir.1972);United States v. Cox, 449 F.2d 679(10th Cir.1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136(1972).

II.VALIDITY OF THE COURT ORDERS

By a motion to suppressthe appellants attacked the orders of the District Court authorizing the interception of their telephone communications.They contended that there was no probable cause for the issuance of the District Court's order and that the procedures in other ways failed to comply with the requirements of the statute.After pretrial hearings, lasting for twenty-one days, District Judge Robinson denied the motion.We think he was right.

The underpinning of the application for wiretap authorization was an affidavit of Special Agent John F. Cody of the Bureau of Narcotics and Dangerous Drugs, United States Department of Justice.The affidavit recited that Lawrence Jackson was well known to Bureau agents as a major violator of the narcotics laws, although he had no record of narcotics convictions.He had been the subject of a continuing investigation by the Bureau since 1966 but efforts to make a case against him had failed because of the "tight security" under which he operated and which enabled him to identify the Bureau's undercover agents.He had no legitimate means of support but owned a 1969Lincoln Continental sedan, dressed in expensive clothes and spent money lavishly.

An informer, referred to in the affidavit as SE-2-9-0011, but later identified as George Lewis, told Agent Cody that Jackson was one of the largest wholesale narcotics dealers in the Washington area.He volunteered his services in making a case against Jackson.³His reliability had been demonstrated when his information and services enabled the Bureau to make four cases against major violators in the Washington area.In these cases Lewis, in company with Bureau agents, made seven purchases of high-quality heroin.

On June 17, 1969 Lewis telephoned Jacksonat 399-3695.Cody monitored the call with Lewis' permission.A woman who answered the telephone said that Jackson was at "the 582 number" which she could not disclose without Jackson's permission.When Lewis called the woman back she told him that the number was 582-9265 and that if Jackson asked how he obtained the number to say she had given it to him.Lewis then called 582-9265 and was told by a man who answered that Jackson was not there but was at 396-9755.Reachedat 396-9755, listed to a barbershop, Jackson offered to sell Lewis for $1500 an ounce of heroin that could "stand nine cuts".Lewis agreed to buy a half ounce for $750 and this transaction took place on June 19.The half ounce of heroin proved to be 88.5% pure.Although a Bureau agent accompanied Lewis to the meeting with Jackson, and surveillance by other agents was attempted, "Jackson made three check turns and one U-turn in an obvious effort to detect a surveillance"(Cody Affidavit¶ 8) and then took Lewis alone to the point where the narcotics were secreted, approximately five blocks from the meeting point.

On June 23 Lewis telephoned 582-9265, Agent Cody again monitoring the call with Lewis' permission.A man who answered the telephone said Jackson was not there but he was usually there every day to receive telephone calls and generally arrived around 2:00 P.M.The following morning Lewis reached Jackson at the 399 number and arranged to purchase an ounce of heroin of the same purity as that purchased on June 19.Later that day, in the presence of Agent Wilder, Jackson sold Lewis 23.500 grams of 65.2% pure heroin.The price was $1500.Although Agent Wilder was able to witness the sale, Jackson told Lewis that he would not sell any heroin to strangers and that Wilder should not be included in any future transactions.Agent Cody, who was in the vicinity of the transaction, observed several men believed to be associates of Jackson who were touring the area, apparently searching for surveillance teams.Directly after this transfer of heroin Jackson drove to 201-53rd Street, S.E. where the 582-9265 telephone was located.

The affidavit of Agent Cody recited further that by subpoena to the Chesapeake and Potomac Telephone Companyhe learned that the telephone number 582-9265 was listed to Richard M. James at the 53rd Street, S.E. address.The records reflected that on January 27, 1969 three toll calls were made from this telephone to XXX-XXX-XXXX; on January 30 there was one such call, one on February 8 and one on February 13.There were two calls to XXX-XXX-XXXX on February 14, five on February 18 and one on April 17.The telephone number XXX-XXX-XXXX was listed to Amelia Rendon, 201 Coke Street, Laredo, Texas.

Laredo, Texas was known to Cody as the main point on the Texas border for the smuggling of contraband and narcotics from Mexico to the United States.On June 26, 1969 Cody was informed by Special Agent Thormalen of the Bureau's San Antonio office that his office had received information to the effect that Rendon of Coke Street, Laredo, was a courier of narcotics from Mexico to Chicago and Washington, and that Rendon was associated with a well-known narcotics smuggler by the name of Marshallino Meriz.Meriz, according to Bureau files, was associated with one Francisco Flores, alias Poncho, a Mexican born in Laredo, who was operating a restaurant in Washington, D. C. Flores had been under investigation by the Bureau and was suspected of being a major...