United States v. LaGorga

Decision Date28 December 1971
Docket NumberNo. 71-017 Crim.,71-017 Crim.
Citation336 F. Supp. 190
PartiesUNITED STATES of America v. John J. LaGORGA et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Richard L. Thornburgh, U. S. Atty., Samuel J. Orr, III, Asst. U. S. Atty., Pittsburgh, Pa., for plaintiff.

James K. O'Malley, Pittsburgh, Pa., for LaGorga and Frangis.

David O'Hanesian, Pittsburgh, Pa., for Zemarel.

Samuel J. Reich, Pittsburgh, Pa., for Menas.

Stanley Greenfield, Pittsburgh, Pa., for Ager.

Harold Gondelman, Pittsburgh, Pa., for Berent.

OPINION

WEIS, District Judge.

All the defendants have been indicted for various gambling activities alleged to be in violation of 18 U.S.C. §§ 2, 371, 1084, 1952. They have filed Motions to Suppress Evidence consisting of intercepted telephone messages secured by the Federal Bureau of Investigation in accordance with Orders of Court issued pursuant to 18 U.S.C. § 2510 et seq.

The attack upon the wiretap evidence is based upon the following contentions:

1. The statute is unconstitutional;
2. The statute was not followed because:
a) There was no showing of probable cause to justify the issuance of the Order;
b) The Government failed to file written reports with the authorizing judge within the 5 day interval set out in the Order;
c) The Government failed to file an inventory within the prescribed time, not having complied with the requirement until some 9 days after the expiration date on one intercept Order;
d) Letters bearing the signature of Will Wilson, an Assistant Attorney General, authorizing the applications for Court Orders were in fact signed by someone else, not in the category of those authorized by § 2516(1);1 3. There was a violation of the Court Order in:
a) The interception of certain specific conversations under circumstances not authorized by the Order;
b) A failure on the part of the Government agents to minimize the interception of nonrelevant communications.
CONSTITUTIONALITY

Counsel for the defendants argue vigorously that the wiretapping provisions of the Omnibus Crime Control Act of 1968 are unconstitutional. We note, however, that the Supreme Court of the United States in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 indicated that wiretapping under certain circumstances could be constitutionally permissible. Congress specifically considered these two cases in enacting the applicable statute in 1968. See 2 U.S.Cong. & Adm.News 1968, p. 2112.

Many of the arguments defendants press with respect to unconstitutionality of wiretapping generally are really concerned more with the policy and the undesirability of such a practice. There is no question that there was and is strong opposition to the very idea of the invasion of privacy necessarily involved with wiretapping.2 On the other hand, those who are in favor of the practice, while recognizing the disadvantages, rely upon the necessity for electronic surveillance as a weapon in the struggle against organized crime.3 It would not be appropriate to set out the arguments pro and con, it being sufficient to note that this, in reality, is a controversy which attracted the attention of Congress for many years, was thoroughly explored by that body, and was a subject of numerous hearings, compilation of data and testimony of experts on both sides.

In determining the necessity of the legislation, Congress found that "Organized criminals make extensive use of wire and oral communication in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice." 82 Stat., p. 211, § 801(c), 18 U.S.C.A. § 801(c).

While there was not unanimity among the members of Congress and the wire interception provisions of the Omnibus Crime Control Act were passed only over bitter dissent, nevertheless for this Court the debate has ended and the statute has become the law of the land.

In view of the history of this legislation and its reliance upon the Supreme Court guideposts, we feel its constitutionality has been prima facie established. The only appellate decision on the point to this time is United States v. Cox, 449 F.2d 679 (10th Cir. 1971), which upheld the validity of the Act. A number of District Courts have come to this same conclusion and none has ruled adversely. We see no utility to set out at length here what would be repetitious of the opinions in United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970), United States v. Sklaroff, supra, United States v. Cantor, 328 F.Supp. 561 (E.D. Pa.1971), United States v. Scott, 331 F.Supp. 233 (D.C.D.C.1971), United States v. Donlon, 331 F.Supp. 979 (D.C. Del.1971), United States v. Perillo, 914 F.Supp. 333 (D.C.Del.1971). We join the courts which have rejected the attack of unconstitutionality.

On March 8, 1970 Bruce Burns, a special attorney of the Justice Department, filed an application for an Order authorizing interception of wire communications, accompanied by an extensive affidavit of Special Agent Thomas G. Forsythe of the Federal Bureau of Investigation. Judge Herbert P. Sorg of this Court, on finding that probable cause had been shown, issued an Order authorizing interceptions of telephone calls at the home of defendant Jack Frangis and required that a report was to be provided the Court on the fifth and tenth day thereafter advising what progress had been made. The authorization was to be in effect for a maximum time of fifteen days or until communications were obtained which revealed the manner in which:

"Jack Frangis and others as yet unknown participate in the illegal use of interstate telephone facilities for the transmission of bets and betting information and in aid of a racketeering enterprise (gambling) and which revealed the identities of his confederates, their places of operation, and the nature of the conspiracy involved therein . . ."

Monitoring ceased at the end of the fifteen day period but on May 19, 1970 another Order was signed by Judge Wallace S. Gourley authorizing further interceptions, not only those over the two telephones at the Frangis home, but also those of a Francis A. Zemarel and a partial surveillance of phone conversations at the Health Club at the Quality Court East Motel, East McKeesport, Pennsylvania. Authorization to intercept at the latter location was limited to situations when either Jack Frangis or Francis A. Zemarel was present in the motel and was one of the parties to a telephone conversation. Again, progress reports were required on the fifth and tenth day following the date of the Order.

Both Court Orders required that the surveillance "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under Chapter 119 of Title 18 of the United States Code. . ."4

Following indictments and arraignments, defendants filed a number of motions, including those requesting suppression.

An evidentiary hearing on the latter motions was held in this Court after counsel for the defendants had been given an opportunity to review the tapes and transcripts of the intercepted communications.

PROBABLE CAUSE

The affidavit accompanying the application for the interception on both occasions set out in great detail the background of gambling operations, the history of the participation of Frangis and Zemarel in such enterprises over a period of many years, their associations with out of town gamblers, the necessity for data on the odds for bets on various athletic events, accounts of the activities of the defendants from a number of informants who were admitted gamblers, and results of current surveillances by the Federal Bureau of Investigation.

We think that the application and accompanying affidavits fully justified the issuing judges in finding that there was probable cause to believe that violations of Federal law were occurring. Similar affidavits passed judicial scrutiny in United States v. Cantor, supra, and United States v. Perillo, supra. The offenses were among those enumerated in the statute. See 18 U.S.C. § 2516(1) (c), (g).

REPORTS NOT IN WRITING

The wiretapping statute § 2518(6) reads:

"Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require." Emphasis supplied.

It developed at the hearing that no written reports had been submitted to either Judges Sorg or Gourley but that on the dates set, Bruce A. Burns, the special attorney assigned to the case, had orally advised the two judges that the objectives had not yet been achieved. The attorney did not enumerate the specific number of calls intercepted in any report to the two judges. Clearly, the statute does not insist that these reports be in writing nor by its terms does it specifically require any reports at all. The matter is one for the discretion of the issuing judge and we therefore find no error in the use of oral reports rather than those in writing. While the defendants point out that the guidelines prepared by the Justice Department speak of written reports, such a requirement does not have binding force as law. It would seem, however, in light of the objections raised in this case to the use of oral reports that it would be better practice in the future to have communications submitted in writing as departmental policy apparently now urges.

DELAY IN FILING INVENTORY

With respect to the complaint that one of the inventories was not served until nine days after the specified date, again we find no prejudicial conduct of such dimension as to require us to suppress the evidence.

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