United States v. O'NEILL

• Decision Date: 31 May 1974
• Docket Number: No. 73-2124.,73-2124.
• Citation: 497 F.2d 1020
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James J. O'NEILL et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

497 F.2d 1020 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. James J. O'NEILL et al., Defendants-Appellants.

No. 73-2124.

United States Court of Appeals, Sixth Circuit.

Decided May 31, 1974.

COPYRIGHT MATERIAL OMITTED

Reuben M. Payne, Sindell, Sindell, Bourne, Stern & Spero, Cleveland, Ohio, on brief for appellants.

Frederick M. Coleman U. S. Atty., David Margolis, Steven R. Olah, Paul R. Corradini, Special Attys., Crim. Div., U. S. Dept. of Justice, Cleveland, Ohio, on brief for appellee.

Before LIVELY and ENGEL, Circuit Judges, and CECIL, Senior Circuit Judge.

LIVELY, Circuit Judge.

The appellants James J. O'Neill and Richard Boucher were convicted on one count of interstate transmission of wagering information in violation of 18 U. S.C. § 1084. Their appeal is limited to questions that were first raised in the district court on a motion to suppress evidence which emanated from interceptions of telephone conversations made pursuant to an order entered by a United States Judge on April 18, 1972. The motion to suppress was denied following a hearing in the district court.

O'Neill and Boucher conducted an operation in Tonawanda, New York in which they furnished "line" information by telephone to bookmakers and other gamblers, advising them of the point spread and odds being quoted in various parts of the country on athletic contests. They also handled "layoff" bets on horse races for other bookmakers. The investigation which resulted in the indictment and conviction of appellants began some time prior to January 7, 1972. On that date a New York State District Attorney obtained from Justice Mahoney of the Supreme Court of New York an authorization to intercept conversations over a telephone located at Cheektowaga, New York. Neither of the appellants was named in the application for the wiretap order, but the order permitted interception of conversations of "others as yet unknown." The January 7 order contained a number of protective provisions including the following:

(h) That, in the event that unknown suspects are identified during the course of the interception process or if the interception process reveals evidence of crimes which are not specified in this Ex parte Order of Authorization, District Attorney MICHAEL F. DILLON shall, no later than three (3) days after the date of the return, make application, in conformance with the provisions of Section 2517(5) of Title 18, of the United States Code and Section 700.65(4) of the Criminal Procedure Law of the State of New York, for a nunc pro tunc order amending this order to include the newly discovered material; . . .

The January 7 order was amended on January 27, 1972 upon application of District Attorney Dillon supported by an affidavit of the officer in charge of the investigation. The names of three additional persons were included in the January 27 amendment to the order. However, neither of the appellants was named. On February 17, 1972, District Attorney Dillon filed a new application with Justice Mahoney in which the Appellant O'Neill was named as a person whose conversations were to be intercepted, and the location in Tonawanda, New York from which he operated and the telephone number there which was registered in his wife's maiden name were designated for electronic surveillance. The application was supported by the affidavit of the same investigator, and it disclosed that O'Neill's activities had first come to the attention of the police as a result of his making numerous calls to the telephone in Cheektowaga which were intercepted pursuant to the January 7 order. Justice Mahoney granted the wiretap order for the Tonawanda telephone on February 17, 1972 and thereafter the investigators learned from interception of conversations on that telephone that O'Neill was receiving gambling information from parties using a telephone in Bedford Heights, Ohio. On April 18, 1972, the Chief Judge of the United States District Court for the Northern District of Ohio entered an ex parte order which authorized interception of conversations over the Bedford Heights, Ohio telephone. This order was entered in response to an application filed by a representative of the Department of Justice pursuant to authorization by Acting Attorney General Kleindienst. The supporting affidavit which was presented to the district judge incorporated portions of the affidavit which had been filed by the New York investigator in connection with the February 17 order of Justice Mahoney and disclosed that communications had been intercepted pursuant to the previous New York State authorization of February 17.

The first contention of appellants is that the New York authorities violated the terms of the January 7 order by failing to have it amended upon learning the identity of O'Neill. While conceding that it was permissible to intercept conversations of O'Neill as one who was unknown at the time the first wiretap order was granted, appellants maintain that failure to comply with the amendment provisions of that order renders all evidence which flowed from it, either directly or indirectly, tainted and subject to suppression. It was shown that the investigating officers knew of O'Neill's identity as one of the frequent callers to the intercepted telephone at the time they sought an amendment on January 27 and added names of other suspects. It is provided in 18 U.S.C. § 2518(10)(a)(iii) that a motion may be made by one aggrieved for suppression of the contents of a communication or evidence derived therefrom if "the interception was not made in conformity with the order of authorization or approval." While there was no violation of the terms of the federal order, it is contended that violation of the previous state order which provided the information upon which the federal order is based vitiates the federal order as well.

The provision for amendment of the New York order was included, insofar as it referred to the discovery of evidence of crimes not specified therein, in order to comply with 18 U.S.C. § 2517(5) and § 700.65(4) of the Criminal Procedure Law of the State of New York. There appears to have been a split among the lower courts of New York at the time the state court orders with which we are concerned were entered on whether subsequent discovery of the identity of previously unknown suspects required an amendment. This question was settled by the Court of Appeals of New York on July 6, 1972 when it held in People v. Gnozzo, 31 N.Y.2d 134, 335 N.Y.S.2d 257, 286 N.E.2d 706 (1972), cert. denied, sub. nom., Zorn v. New York, 410 U.S. 943, 93 S.Ct. 1373, 35 L.Ed.2d 610 (1973), that the statutory requirement for amendment applies only to the discovery of a different crime and does not require amendment to include the identity of a previously unidentified party. Thus it appears that the failure of the New York District Attorney to obtain an amendment of the January 7 order to include the name of O'Neill did not violate a statute, but at most failed to conform with the terms of the January 7 order.

In United States v. George, 465 F.2d 772, 775 (6th Cir. 1972), this court held that "wire tap evidence secured without regard to the limitation set forth in the authorization order is inadmissible." In that case, the order authorizing the wiretap directed that interception only take place when surveillance had indicated that the persons named in the order were on the premises and should be continued only when it was determined by voice recognition that one of the named persons was using the telephone. It was admitted by the FBI agent in charge of the investigation that he had never seen this order and that no special instructions had been given limiting the interceptions. Furthermore, none of the recording officers knew the voices of the persons named in the order. Appellants argue that our decision in George compels suppression of the evidence objected to in this case. Reliance is also placed on United States v. Cafero, 473 F.2d 489 (3rd Cir. 1973), where it was held that one of the basic safeguards of the federal act authorizing interception of communications is the requirement that the authorizing judge be aware of the activities of those involved in the surveillance and the information which is being produced. It is claimed that the failure of the New York officers to comply with the amendment provision of Justice Mahoney's order "broke the chain of judicial supervision."

No New York case has been cited or found which decides whether the exclusionary rule should be applied to evidence obtained after failure to comply with a requirement of a wiretap order such as that involved in this case. The appellee points out, however, that the same state judge who granted the January 7 order also granted the authorization of February 17. The February 17 authorization was specifically directed to O'Neill with knowledge that O'Neill's identity was discovered as a result of interceptions made pursuant to the January 7 or...