United States v. Smith, Crim. No. 82-0044-C.
| Decision Date | 24 May 1984 |
| Docket Number | Crim. No. 82-0044-C. |
| Citation | 587 F. Supp. 653 |
| Court | U.S. District Court — District of Massachusetts |
| Parties | UNITED STATES of America, Plaintiff, v. Claudius SMITH, et al., Defendants. |
Walter Prince, Brown & Prince, Boston, Mass., for Claudius Smith.
Martin Leppo, Boston, Mass., for Edward De Jesus.
Robert P. Leighton, Morton Katz, New York City, for Romano.
Edward Panzer, New York City, Brian T. Callahan, Medford, Mass., for Torres.
John Bonistalli, Carhart, Bonistalli & McCarthy, Boston, Mass., for Veronica De Jesus.
Paul O'Rourke, Boston, Mass., for Haynes.
Alan D. Rose, Joseph K. Keefe, Nutter, McClennen & Fish, Boston, Mass., for Amado.
Frank G. Kelleher, Boston, Mass., for Barber.
Richard Glovsky, Boston, Mass., for Hullum.
W. Hurly, Wendie Gershengorn, William Homans, Homans, Hamilton, Dahmen & Marshall, Boston, Mass., for Shearer.
Andrew Good, Boston, Mass., for Griffin.
John B. Lawlor, Boston, Mass., for De Jesus et al.
Wm. Shaw McDermott, McDermott & Rizzo, Boston, Mass., for Variste.
David Twomey, Dwyer & Murray, Boston, Mass., for Woodbury.
Michael J. Liston, Palmer & Dodge, Boston, Mass., for Ledbetter.
Brackett Denniston, John H. LaChance, Dennis Kelly, Thomas J. Curley, Jr., Tobin Harvey, Boston, Mass., for the U.S.
This case came before this Court for a hearing after a remand entered by the Court of Appeals for the First Circuit in this case and fifteen other cases consolidated with it for appeal. United States v. Smith, 726 F.2d 852 (1st Cir.1984). In its unanimous en banc opinion, the Court of Appeals determined that "there must be further exploration in the district court of the existence and extent of authorizations specifically given by the district attorney" for the wiretap warrant applications in this case. 726 F.2d at 859-60. This Court held a hearing for that purpose on April 24, 1984, at which the defendants were represented by thirteen attorneys.1 The government called as witnesses Suffolk County District Attorney Newman Flanagan and his former Assistant District Attorney, Gary Crossen. The two witnesses were sequestered prior to the hearing. Only two defense attorneys took advantage of the "opportunity to test the sufficiency of the government's documentation" by cross-examining the District Attorney, and only one attorney elected to cross-examine Assistant District Attorney Crossen. 726 F.2d at 860. The Court then specifically inquired of the defense attorneys present whether any one of them had any additional cross-examination questions for Mr. Flanagan or Mr. Crossen, and all indicated that they did not. Defendants offered no evidence of their own at the hearing.
The scope of this Court's inquiry at the April 24th hearing was limited to resolving whether the state officials who applied for the wiretap warrants in this case complied with M.G.L. c. 272, § 99 F(1), which provides:
The attorney general, any assistant attorney general specially designated by the attorney general, any district attorney, or any assistant district attorney specially designated by the district attorney may apply ex parte to a judge of competent jurisdiction for a warrant to intercept wire or oral communications.
The requirements of § 99 F(1), as set forth by the Court of Appeals in United States v. Smith, include not only those contained in the statutory text adopted by the legislature, but also the supplementary requirements imposed by the Massachusetts Supreme Judicial Court in Commonwealth v. Vitello, 367 Mass. 224, 327 N.E.2d 819 (1975). In Vitello, the Supreme Judicial Court read into § 99 F(1) the following specific requirements:
United States v. Smith, 726 F.2d at 857-58. (Citations omitted). This Court must now determine whether these requirements have been met in this case.
Defendants argue in their post-hearing memorandum of law that this Court may not consider post hoc testimony in reaching its decision. I rule that there is no merit in defendants' contention. As the government accurately and succinctly points out in its post-hearing brief:
Defendants' argument in this regard is extraordinarily far-fetched in light of: (a) the nature of the issue remanded by the First Circuit; (b) the en banc Court's characterization of the "particularistic and detailed factual inquiry" to be undertaken by this court, 726 F.2d at 860; (c) the en banc Court's own consideration of "post hoc" affidavits in the course of its opinion; and (d) the numerous and unanimous federal court opinions endorsing "post hoc" clarification by affidavit or otherwise of application-authorization inquiries. See, e.g., United States v. Chavez, 416 U.S. 562 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974).
It should also be noted that defendants' contention is based on state law; this Court's review is being conducted under federal standards set by federal law. Accordingly, the Court will make its determination based on the record of the case as if stood on appeal plus the evidence offered at the April 24th hearing.
On the basis of the testimony of the government's two witnesses — Newman Flanagan, District Attorney for Suffolk County, and Gary Crossen, former Assistant District Attorney — I find the following facts. I find that Assistant District Attorney Crossen brought five initial wiretap applications and five renewal applications to District Attorney Flanagan for his examination. For each original application, District Attorney Flanagan was given the affidavit, the application, the warrant and the special designation letter. The identical documentation, minus the special designation letter, was provided to Mr. Flanagan for each renewal application. I find that, on each of these ten occasions, District Attorney Flanagan fully examined the documents submitted to him. I find that, on several occasions, Mr. Flanagan was initially dissatisfied with the contents of the documents and, consequently, revisions were made by Mr. Crossen. I find that, with respect to each of the five original applications and five renewal applications, District Attorney Flanagan determined that the proposed use of electronic surveillance was consistent with his overall unwritten policy regarding wiretaps.
I find that, after he made a determination with respect to each proposed initial and renewal wiretap application in this case, District Attorney Flanagan informed Mr. Crossen that he approved the proposed application and that he authorized Mr. Crossen to present the application to the court. I find that in the case of nine of the ten applications Mr. Flanagan personally communicated this information to Mr. Crossen and executed the special designation letters. With regard to the fifth initial application, however, I find that District Attorney Flanagan was outside the Commonwealth when he made his determination. Consequently, the District Attorney's approval was conveyed to Mr. Crossen by First Assistant District Attorney Paul Leary upon instruction from the District Attorney. Mr. Leary, acting pursuant to orders from Mr. Flanagan, executed the special designation letter authorizing Mr. Crossen to apply for the fifth initial wiretap. I further find that Mr. Crossen was fully aware and conscious of the fact that he had no authority to apply for a wiretap warrant on his own without such direct approval from District Attorney Flanagan; and I find that Mr. Crossen never did so as to any wiretap involved in this case.
I find that, as a matter of policy, an assistant district attorney supervising a wiretap investigation is instructed to provide District Attorney Flanagan with reports as to developments in the case on...
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