United States v. London

• Decision Date: 26 February 1976
• Docket Number: Crim. No. B-75-099.
• Citation: 424 F. Supp. 556
• Parties: UNITED STATES of America v. Robert Reubin LONDON et al.
• Court: U.S. District Court — District of Maryland

424 F. Supp. 556

UNITED STATES of America v. Robert Reubin LONDON et al.

Crim. No. B-75-099.

United States District Court, D. Maryland.

February 26, 1976.

COPYRIGHT MATERIAL OMITTED

Jervis S. Finney, U. S. Atty., James E. Anderson and Marsha A. Ostrer, Asst. U. S. Attys., Baltimore, Md., for plaintiff.

Harold I. Glaser, Baltimore, Md., for defendants Robert Reubin London, Julius Cottman and Rufus H. Jones.

Michael Kaminkow, Baltimore, Md., for defendant Maceo Clerkly.

MEMORANDUM AND ORDER

BLAIR, District Judge.

After having been convicted by a jury of conducting an illegal gambling business as proscribed by 18 U.S.C. § 1955 (1976 Supp.), Robert Reubin London a/k/a Fifi London, Julius Cottman, and Rufus Jones have moved for a judgment of acquittal or in the alternative for a new trial pursuant to Federal Rule of Criminal Procedure 33.¹ Maceo Clerkly, who was found guilty by the court on the same charges after a trial on stipulated facts, has moved for a new trial.²

Defendants present several grounds in support of their motions. Specifically, they contend that:

1. The court improperly admitted into evidence tape recordings of conversations overheard at 1202 North Charles Street, Baltimore, Maryland, defendant London's place of business, since such recordings were obtained in violation of Title III of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. §§ 2510 et seq. (1970 & 1976 Supp.));

2. The court improperly did not allow defendants to introduce evidence pertaining to the FBI's alleged harassment of the defendants;

3. The court improperly instructed the jury with respect to "layoffs" and with respect to the legality of the wiretaps;

4. The applications for interception of wire and oral communications were legally insufficient; and

5. The court lacked jurisdiction since the two Assistant United States Attorneys who tried the case did not live within the District of Maryland, in contravention of Title 28, U.S.C. § 545(a) (1968).

Each of these grounds will be considered in turn.

I

The government's evidence produced at trial and proffered at the stipulated fact trials in this case consisted in large part of tape recordings of conversations intercepted at 1202 North Charles Street, Baltimore, Maryland, defendant London's place of business. These conversations were intercepted by means of an eavesdropping device pursuant to court Order. Misc. No. 936 (Aug. 13, 1974). The Order authorized interception for a maximum of twenty days with progress reports to be supplied to the court every five days. The Order included a directive that the interception of the communications be conducted so as to minimize the interception of conversations not subject to interception under Chapter 119 of Title 18. For a variety of reasons, defendants argue that the tapes obtained through this Order should not have been admitted into evidence.

Testimony at trial in this case indicated that in installing the electronic device at 1202 North Charles Street, FBI agents manipulated the door lock with "burglar type" tools, placed two microphones in separate locations, and then made a key to fit the outside office door's lock. Defendants argue that in violation of their right to privacy this entrance was unauthorized either by defendant London or by the court Order. This allegedly illegal entrance, defendants contend, so tainted the taped conversations obtained through the authorized interception as to render them a fruit of the poisonous tree and inadmissible as evidence. While conceding the installation to have been clandestine, the government argues that requiring defendant London's permission prior to installation would have defeated the investigatory purpose of the electronic eavesdropping. The government maintains that the clandestine entry into Mr. London's office was lawful in execution of the intercept Order.

Clearly, FBI agents were not obliged to obtain the consent of defendant London prior to installation of the electronic intercept. After articulating the myriad dangers posed by organized crime, the legislative history of the Omnibus Crime Control and Safe Streets Act, Title III of which provides for electronic interception, states:

Organized criminals must hold meetings to lay plans. Where the geographical area over which they operate is large, they must use telephones. Wiretapping and electronic surveillance techniques can intercept these wire and oral communications. This is not, however, the whole situation. More than the securing of an evidentiary substitute for live testimony, which is not subject to being eliminated or tampered with by fear or favor, is necessary. To realize the potential possible from the use of criminal sanctions, it will be necessary to commit to the system more than legal tools. Time, talent, and personnel are required. Nevertheless, no amount of time, talent, or personnel — without the necessary legal tools — will work, and authorized wiretapping and electronic surveillance techniques by law enforcement officials are indispensable legal tools.

1968 Code Cong. & Ad. News 2112, 2161 (90th Cong., 2d Sess.). See also id. at 253. Implicit in this Congressional recognition of the usefulness of electronic interception is the common sense realization that such interception, if it is to be effective, must be covert. Cf. Katz v. United States, 389 U.S. 347, 355 n.16, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Buckhanon, 374 F.Supp. 611, 613-15 (D.Minn.1973).

The question remains then whether the installation was accomplished lawfully under the court Order authorizing the interceptions. After determining that probable cause existed that the premises at 1202 North Charles Street were being used in conjunction with an illegal gambling business violative of federal law, Judge Young ordered that the FBI was authorized under Title III to "intercept oral communications of Robert `Fifi' London . . . occurring in the office space located in the basement of 1202 North Charles Street . . . ." Misc. No. 936 (Aug. 13, 1974). Necessarily concomitant to and envisioned in the court order, this court believes, was the covert installation of the recording devices. At the outset, it should be noted that there was no general search or seizure at the time of the installation, rather the FBI agents simply entered the premises, hid the microphones and left. In so entering, the agents' sole purpose was effectuation of the court order. Realistically, this intrusion was no greater than the interceptions themselves, which were judicially authorized after a finding of probable cause. Also, even if the FBI's entry was unauthorized, which this court does not believe or hold, the taped conversations would still be admissible since they stemmed from an authorized electronic surveillance, and hence, could not be said to be fruits of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).³

Defendants more vigorously contend that the FBI failed to properly minimize its interception of the conversations at 1202 North Charles Street. Judge Young's Order provided, pursuant to 18 U.S.C. § 2518(5) (1970):

. . . this authorization to intercept oral communications shall be executed as soon as practicable after signing of this order and 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, United States Code, and must terminate upon attainment of the authorized objective, or in any event, at the end of twenty (20) days from the date of the installation of the listening device, whichever is earlier.

Misc. No. 936.

At trial, the FBI agents' testimony established that, with the exception of one privileged conversation between defendant London and his lawyer, whenever defendants London or Genco or Albert Isella were present at 1202 North Charles Street, all conversations were monitored by FBI agents. Only those conversations which the agents believed pertinent to gambling were recorded.⁴ The defendants assert that the court order authorizing the interception, while generally requiring minimization, lacked specific directives and that the FBI agents therefore intercepted a substantial number of personal and business conversations irrelevant to federal criminal charges in contravention of Title III. See 18 U.S.C. § 2518(5) (1970). On this basis, defendants seek suppression of the tapes, judgment of acquittal or a new trial where the tapes would not be admitted into evidence.⁵

In enacting Title III of the Omnibus Crime Control and Safe Streets Act, Congress clearly was concerned that improper interception of communications protected by the right to privacy should be curtailed. See 1968 Code Cong. & Ad. News 2112, 2154-56 (90th Cong., 2d Sess.). To protect this right of privacy, Congress enacted 18 U.S.C. § 2518(5) (1970) which provides in relevant part:

Every order . . . shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . .

Additionally, Congress enacted a statutory exclusionary rule to insure that improperly intercepted communications should not be received into evidence. Title 18, U.S.C., § 2515 (1970) provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

These minimization strictures thus require that

. . . the intercept procedure shall be conducted in such a way as to reduce to the

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