United States v. Lamonge, 71-1467

• Decision Date: 29 March 1972
• Docket Number: No. 71-1467,71-1760.,71-1467
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul LAMONGE, Defendant-Appellant (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

458 F.2d 197 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Paul LAMONGE, Defendant-Appellant (two cases).

Nos. 71-1467, 71-1760.

United States Court of Appeals, Sixth Circuit.

March 29, 1972.

Charles I. Swartz, Warren, Ohio (Court Appointed), for defendant-appellant.

Ronald G. Scheraga, Department of Justice, Appellate Section, Criminal Div., Washington, D. C., Robert D. Gary, Special Atty., Department of Justice, Cleveland, Ohio, on brief, for plaintiff-appellee.

Before McCREE and KENT, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PER CURIAM.

Appellant was charged in four counts of a ten-count indictment with possession, sale, and delivery of counterfeit Federal Reserve Notes, in violation of 18 U.S.C. §§ 472, 473, and with conspiracy to do so in violation of 18 U.S.C. § 371. At trial, the Government acceded to appellant's motion to dismiss the conspiracy count after the court had excluded from evidence testimony about Government wiretaps employed in the investigation. The jury convicted appellant of the three substantive offenses, and the court imposed concurrent sentences of five years imprisonment on each count.

Appellant listed 23 issues on appeal, only one of which requires discussion. He contends that the court's cautionary instructions were inadequate to cure the prejudicial effects of inadmissible wiretap evidence which had been admitted before proper objection was made.

The United States Secret Service investigation of appellant's activities began in early 1969 as a result of information given to an agent, Robert Knepp, by one Charles DeMoss, who had been serving as a Government informer in an unrelated case. DeMoss informed Knepp that Lamonge had offered to sell DeMoss counterfeit money. On instructions from his superiors to "go ahead and pursue it," Knepp had DeMoss place frequent calls to Lamonge during February and March, 1969, to inquire about the purchase of counterfeit currency. In these conversations the parties employed circumlocutions such as a proposed purchase of "antiques."

On April 2 or 3, 1969, the United States District Court for the Northern District of Ohio issued an undated order authorizing interception of telephone wire communications at two places: at the house of Mario Guerrieri in Youngstown, Ohio, and at the Youngstown business premises known as Satan's Inferno. These wiretaps were continued until April 9 on this authorization. On that date, the court issued a second undated order authorizing the continuation of the wiretaps "previously authorized by the same District Judge on April 3," and additionally authorizing a wiretap at the Guys and Dolls Tavern in Youngstown. The order concluded:

c) Such interception to continue for a period of eight days from the date of this order or until communications shall have been intercepted which reveal the date and exact manner in which MARIO GUERRIERI acquires and distributes counterfeit currency and transfers such counterfeit currency to ROBERT COOPER and to LEON ELDRIDGE, whichever is earlier.

PROVIDED THAT, this authorization to intercept wire — communications shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications that are otherwise not subject to interception under Chapter 119 of Title 18 of the United States Code, and must terminate upon attainment of the authorized objective or, in any event, at the end of eight days from this date.

We observe that the absence of a date on the order made its duration unlimited by its own terms. As such, it apparently authorized a wiretap for an unreasonable length of time which rendered it invalid. See Berger v. New York, 388 U.S. 41, 57, 59-60, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). This is true as well because the order did not comply with 18 U.S.C. § 2518(4) which requires that

each order authorizing or approving the interception of any wire or oral communication shall specify —

. . . . . .

(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

After one postponement, appellant's trial was set for May 10, 1971. On May 7, 1971, the prosecuting attorney filed a motion requesting the issuing judge to amend his wiretap orders by adding the date of issuance nunc pro tunc. The court granted the motion and entered an order amending the first wiretap order by adding "ordered this 2nd day of April, 1969." The second wiretap order, which had authorized continuation of an interception "previously authorized by the same District Judge on April 3, 1969," was amended in the same way to read "ordered this 9th day of April, 1969." The assertion that the date was added nunc pro tunc did not change the fact that the wiretap authorizations were on their face invalid at the time they were used. The evidence obtained through their use was inadmissible.

The Government also failed to comply with 18 U.S.C. § 2518(9) which requires that

the contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.

On April 16, 1971, a defense motion for production of the wiretap documents was filed. The Government agreed, in its response to the motion on April 21, 1971, to produce all orders and papers...