United States v. Moeller

• Decision Date: 07 October 1975
• Docket Number: Crim. No. N-75-59.
• Citation: 402 F. Supp. 49
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Charles D. MOELLER et al.

402 F. Supp. 49

UNITED STATES of America v. Charles D. MOELLER et al.

Crim. No. N-75-59.

United States District Court, D. Connecticut.

October 7, 1975.

Peter C. Dorsey, U. S. Atty., William F. Dow, III, Asst. U. S. Atty., New Haven, Conn., for plaintiff.

Theodore I. Koskoff, Bridgeport, Conn., William H. Clendenen, Jr., Dennis E. Curtis, New Haven, Conn., Thomas D. Clifford, Hartford, Conn., Gregory B. Craig, New Haven, Conn., David S. Golub, Stamford, Conn., Rudolph Lion Zalowitz, Hackensack, N.J., Alan Neigher, Andrew B. Bowman, J. Daniel Sagarin, Bridgeport, Conn., for defendants.

MEMORANDUM OF DECISION ON PRE-TRIAL MOTIONS

NEWMAN, District Judge.

In this criminal prosecution arising out of the alleged arson of the Sponge Rubber Products Co. plant in Shelton, Connecticut, scores of pre-trial motions have been filed, three of which require extended discussion since they raise important and troublesome issues.

I

The first set of motions concerns the required scope of the government's response to allegations of wiretapping. Defendants Moeller, Dennis Tiche, Michael Tiche, Just, and Bubar have moved for disclosure of any electronic surveillance. None of these motions alleges anything; they simply make inquiry. In addition, defendants Just, Michael Tiche, and Dennis Tiche have moved to suppress evidence derived from electronic surveillance. These motions allege "on information and belief that the defendant's conversations have been overheard by means of electronic surveillance." Finally, defendant Bubar has also moved to suppress evidence derived from electronic surveillance, but without any allegation that such has occurred.

Presumably the defendants are seeking to invoke 18 U.S.C. § 3504, requiring the government to "affirm or deny" electronic surveillance "upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act . . .."

In this Circuit, the assertion of wiretapping is apparently sufficient to trigger the government's obligation under § 3504. United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974); In re Grusse, 402 F.Supp. 1232 (D.Conn.), aff'd sub nom., United States v. Grusse, 515 F.2d 157 (2d Cir. 1975). But see In re Buscaglia, 518 F.2d 77 (2d Cir. 1975).

To discharge its obligation, the government has submitted several affidavits in which the United States Attorney and other officials deny that any electronic surveillance occurred in the investigation of this case and also affirmatively aver that all the government's evidence has been obtained from "direct" sources. Affidavits have been submitted by F.B. I. agents in New York City, Cleveland, Chicago, Pittsburgh, Memphis, New Haven, and Washington, D. C., the Connecticut state police officer with responsibilities for investigation of the case, and the Shelton police chief. At oral argument, the defendants challenged the sufficiency of these denials, contending that other government agencies, such as the Alcohol, Tobacco, and Firearms Division of the Treasury Department, the Central Intelligence Agency, and the National Security Agency should also have been checked.

The scope of a government check necessary to satisfy the obligation of § 3504 has not been clarified in this Circuit. United States v. Grusse, supra, a civil contempt proceeding against a grand jury witness, approved a check limited to the agency investigating the case, though the concurring opinion of Judge Lumbard urged further inquiries as a "salutary practice." 515 F.2d at 159 n. 1. Broader inquiries have, of course, been made. See United States v. Aloi, 511 F.2d 585, 602 (2d Cir. 1975).

In Grusse this Court was persuaded of the sufficiency of a check limited to the agency that had investigated the case because the slight risk of some undetected wiretapping was outweighed by the grand jury's legitimate interest in the prompt conduct of its business. That factor also weighed heavily with the Court of Appeals. 515 F.2d at 158. A second factor militating against a broader inquiry, relied on in Judge Lumbard's concurring opinion, was the high likelihood that the United States Attorney handling the case and the F.B.I. agent in charge of the investigation would know whether the results of electronic surveillance had been used to gain information on which the questions put to the grand jury witness were based. 515 F. 2d at 159. See also In re Buscaglia, supra, 518 F.2d at 79.

These factors, applicable in the context of challenges to questions put to grand jury witnesses, are not necessarily of equal force in the context of a criminal prosecution, Cf. United States v. Persico, 491 F.2d 1156 (2d Cir. 1974). Of course there is an important interest in prompt trials, but not at the expense of determining whether a defendant's rights have been violated. The governmental interest in promptly obtaining an indictment to initiate a prosecution, when violators may be at large, is greater than the interest in promptly concluding a prosecution of defendants in custody or released on bail. It is also not entirely clear that those with responsibility for investigating and prosecuting a case can be as certain that no results of wiretapping have entered their files and led to evidence as those with the narrower responsibility of framing a set of questions to a particular grand jury witness. In instances where the grand jury investigation is far-reaching, however, this distinction may be marginal or entirely evanescent.

Though this motion arises in a context differing from cases involving grand jury witnesses, I am not persuaded that § 3504 requires a broader search of government agencies than has occurred here. In the first place, the statute does not contemplate a generalized inquiry by every criminal defendant as to whether there has been wiretapping. It gives the right to demand a response only to those who present a claim that evidence is inadmissible. See Lennon v. United States, 387 F.Supp. 561 (S.D.N.Y. 1975). While it is helpful for defense counsel to make their claims ahead of, rather than during, a trial, we must not lose sight of the fact that the statute accords a right to those who have a complaint about some specific item of evidence. These defendants have made no complaint about any evidence. Moreover, in giving the right to demand a response to those challenging specific evidence, a claim normally made during the trial, the Congress would seem to have contemplated situations warranting at least as much speed as is appropriate to grand jury inquiries. Prompt, if somewhat limited, responses should therefore be sufficient.

Secondly, there are no intimations in the recent Court of Appeals' opinions in Grusse and Buscaglia that the affidavits there found adequate would not suffice in a criminal prosecution.

Finally, there is considerable merit in the view of the Ninth Circuit, expressed in only a slightly different context, that "a general claim of wiretapping requires only a response appropriate to such a claim." United States v. See, 505 F.2d 845, 856 (9th Cir. 1974). Unlike the respondents in Grusse, these defendants have alleged no facts whatever to support a belief that wiretapping has occurred. Obviously care must be taken lest too rigorous a test be constructed for assessing the scope of response required by a defendant's claim. The development of increasingly sophisticated techniques of electronic surveillance will lessen the likelihood that beeps, clicks, or other strange sounds will alert a telephone user to the possibility of a tap. If strange noises provided the only basis for a government response of broad scope, a premium would be placed upon undetectable surveillance. However, § 3504 points toward a quite different basis for claiming the possibility of wiretapping —the likelihood that a particular item of evidence, by its nature, probably resulted from electronic surveillance. An adequately supported claim of this sort, at least raising a suspicion that the evidence came from wiretapping, may well require the government to "affirm or deny" on the basis of a comprehensive inquiry of agencies with surveillance capability. An adequate claim that an individual has been the subject of governmental curiosity may suffice to require an inquiry of agencies with intelligence gathering responsibilities. However, a naked allegation that wiretapping has occurred may be sufficient to trigger § 3504's obligation to make some response, but not necessarily an obligation to check the files of government agencies having no apparent connection with a case. To such a claim, the sworn denial by the prosecutor and the investigating agencies should suffice. These agencies, however, should indicate whether reports from any other agencies have been used in the investigation, in which event a response from such other agencies would seem necessary. In this case, the averment in the affidavits that all of the evidence developed in the investigation came from "direct" sources seems sufficient to preclude the risk that reliance was placed on reports of other agencies that may in turn have been developed from electronic surveillance.

I have previously expressed some wonderment as to why the government does not have a central computerized or manual indexing system that would permit it promptly to make a government-wide response to an inquiry about wiretapping, See In re Turgeon, 402 F.Supp. 1239 (D. Conn.1975). But in the absence of a more precise requirement expressed in § 3504, or Fed.R.Crim.P. 16, or the decisions of the Second Circuit, I conclude, with some reluctance, that the scope of the inquiry reflected in the affidavits submitted in this case is sufficient.

Accordingly, the motions to disclose are granted, the government's response is deemed sufficient compliance, and the motions to suppress are denied, no indication of wiretapping having been disclosed. Defen...