United States v. Lanza, Crim. No. 71-83.

• Decision Date: 10 October 1972
• Docket Number: Crim. No. 71-83.
• Parties: UNITED STATES of America v. Joseph Louis LANZA, also known as Joe Lanza, et al.
• Court: U.S. District Court — Middle District of Florida

349 F. Supp. 929

UNITED STATES of America v. Joseph Louis LANZA, also known as Joe Lanza, et al.

Crim. No. 71-83.

United States District Court, M. D. Florida, Orlando Division.

October 10, 1972.

Bernard H. Dempsey, Jr., Asst. U. S. Atty., Tampa, Fla., for the United States.

Walter G. Arnold, Jacksonville, Fla. and Edwin C. Cluster, Ocala, Fla., for Roy Thaggard Boyd.

James S. Byrd, Orlando, Fla., for Phillip C. Riffe.

Donald R. Corbett, Orlando, Fla., for Donald Miles.

Clinton A. Curtis, Jack P. Brandon, Lake Wales, Fla., for Vincent M. Razzano.

Leo W. Haley, Orlando, Fla., for James C. Britt, Peggy Ann Britt and Carrie Wise.

Edward R. Kirkland, Orlando, Fla., for Lee Massey, and William Anderson Fox.

Richard C. Langford, Lakeland, Fla., for Lillian Lockett, Janie Simon, Lee Lockett, Leroy Johnson, Mary Williams, Catherine Williams, Thelma McClary, James Ned Weaver, Gertrude Norman, Leola Ellis, Margaret Pressley, Joe Glover, Ruth Glover, Lula Mae Giles, Maggie Smith, Eddie Holland, and John Ray Simon.

Arnold D. Levine, Tampa, Fla., for John Newton Fountain.

David M. Porter, Orlando, Fla., for Ida Wall Silas, James Crabtree, Samuel Eugene White, William Ralph Strawder, Eloise Graham, Eddie Mitchell and Louis Constantino.

Frank Ragano, Tampa, Fla., for Joe Louis Lanza and Anne Fusco.

Richard S. Rhodes, Orlando, Fla., for Morris Engle, Richard Mercier, and Charles Edward McCuen.

James M. Russ, Orlando, Fla., for Donald B. Smith.

Michael Sigman, Orlando, Fla., for Morris Solomon Bort, Ester Cobbin McGee, and Louis B. Pacheco.

Dan R. Warren, Daytona Beach, Fla., for John Narducci, and Bruce O'Malley.

Andrew A. Welch, Orlando, Fla., for Henry A. Finkelstein, Matthew Smith, Frank Del Rosso, Robert Steve Shellhorn, Orville Johnson, III and Larry Gonzales.

ORDER

TJOFLAT, District Judge.

On March 30, 1972, this Court entered an Order denying in part the motion of the sixty defendants in this organized crime gambling prosecution to suppress the evidence obtained through court-ordered wiretaps.¹ Subsequently, at a hearing on April 20, 1972, in Jacksonville, Florida, the parties concluded their evidence and arguments on the motion to suppress. Accordingly, this Order will dispose of the remaining issues relating to the wiretap evidence.

Initially, the defendants argue that the tape recordings of the wire intercepts are inadmissible because the government failed to furnish the tapes to the judge who entered the intercept order to be sealed pursuant to 18 U.S.C. § 2518(8)(a).² The testimony discloses that two tape recorders were used to simultaneously record each intercepted communication. One recorder contained the "original" tape which was replaced every day with a fresh tape. At the end of the day, the "original" was immediately removed to another recorder where a "duplicate" or "copy" was made; the original was then sealed. The second recorder contained a "work-tape" which was left on the recorder and not replaced until it was full. The defendants' position is that this "work-tape" is subject to the same seal requirements as the original tape. They argue that, whenever the original recorder malfunctioned, the work-tape would be the only one containing the recorded intercept. The evidence does show that one or both of the recorders malfunctioned at various times. Although there is no evidence of it in the record, the Court will assume, for purposes of argument, that the work-tape contains one or more evidentiary conversations not included in the original. The question to be resolved is the effect on the admissibility of the wiretap evidence as a whole. The sealing requirement of 18 U.S.C. § 2518(8)(a) is susceptible of two interpretations. The absence of the seal on one portion of a wire intercept can either bar the admissibility of the entire intercept or just that portion lacking the seal. If, for example, ten tapes were made on ten days and only nine were sealed, the question posed is whether Section 2518(8)(a) would bar the admission of one or all of the tapes.

According to the record in this case, the typed transcripts of conversations and trial tapes (containing the conversations the government planned to introduce in evidence) were made from the duplicate tapes, which were copied from the originals. There is no showing that anyone ever listened to or transcribed the work tapes or that any evidence was sought to be introduced at trial which was not on the original tapes under judicial seal. Under these circumstances, it cannot be said that any of the unsealed evidence prejudiced the defendants in any way. It is unnecessary to decide whether sealed conversations must be excluded from evidence when it is shown that unsealed conversations, pertinent or supplemental thereto, were recorded on work tapes while the original recorder was inoperative.

Next, the defendants contend that the Florida Department of Law Enforcement failed to conduct the wiretap pursuant to 18 U.S.C. § 2518(5)³ so as to minimize the interception of communications not subject to lawful interception, that is, conversations either non-pertinent to the investigation or privileged. Defendants rely on United States v. Scott, 331 F.Supp. 233 (D.D.C.1971), for the proposition that the interception of non-pertinent calls requires the suppression of all intercepted communications. In Scott, virtually all calls were monitored and recorded and 60% of the calls were later determined to be non-pertinent. The Court's holding, however, was not that 60% was too many non-pertinent calls to satisfy the statute, but that the failure of the agents to make any attempt whatever to minimize the interception of the calls did not meet the statutory requirements.

The statute does not prohibit the interception of non-pertinent calls; rather it requires the agents to conduct the wiretap so as to minimize such interception. When, as in Scott, this mandate is so blatantly ignored, the proper result is the suppression of the entire intercept. On the other hand, where non-pertinent calls are intercepted despite the agents' effort at minimization, only the unauthorized interceptions should be suppressed. United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa. 1971); United States v. King, 335 F. Supp. 523 (S.D.Cal.1971); United States v. Perillo, 333 F.Supp. 914 (D. Del.1971); United States v. Leta, 332 F. Supp. 1357 (M.D.Pa.1971).

In the case at bar, the agents intercepted 4,098 phone calls during the course of the six wiretaps. Of this number the government represents that 1,265 or 31% of the calls were of an evidentiary nature and 1,066 calls or 26% were recorded non-pertinent calls. 944 or 23% of the total calls were terminated non-pertinent calls, that is, the agents terminated the recording after hearing enough of the conversation to determine that the subject matter was in fact non-pertinent. Finally, there were 823 calls, or 20% of the total, which resulted in busy signals, no answers, wrong numbers, and the like.

The evidence in this record establishes that the agents were instructed to make a determination as to the subject matter of each call and to terminate privileged or non-pertinent communications. This is precisely what occurred on 944 calls. There are also instances on the tapes of clearly evidentiary conversations being terminated when the discussion turned from gambling to unrelated and non-pertinent matters. This is further evidence of the agents' awareness of and attentiveness to the requirement of minimization. Of the recorded non-pertinent conversations, a substantial portion of those were conversations which were too short to allow the agent to make a determination as to content or subject matter.

The Court has listened to all of the tapes and examined the transcripts and monitoring logs and is fully satisfied that the agents made every reasonable effort to conduct the intercept so as to minimize the interception of non-pertinent and privileged conversations. In this respect, the requirements of the law were fully satisfied.

Another ground cited by defendants in support of their motion to suppress is...