United States v. Swan

• Decision Date: 30 July 1982
• Docket Number: Crim. A. No. 82-16.
• Citation: 545 F. Supp. 799
• Parties: UNITED STATES of America, Plaintiff, v. Edwin J. SWAN, Donald J. Delcollo, and Gabriel Menei, Defendants.
• Court: U.S. District Court — District of Delaware

545 F. Supp. 799

UNITED STATES of America, Plaintiff, v. Edwin J. SWAN, Donald J. Delcollo, and Gabriel Menei, Defendants.

Crim. A. No. 82-16.

United States District Court, D. Delaware.

July 30, 1982.

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Joseph J. Farnan, Jr., U. S. Atty., and Peggy L. Ableman, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Joseph W. Benson and Bartholomew J. Dalton of Brandt & Benson, Wilmington, Del., for defendant Edwin J. Swan.

Carl Schnee of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, Del., for defendant Donald J. DelCollo.

Joseph A. Hurley, Wilmington, Del., for defendant Gabriel Menei.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

Defendants, Edwin J. Swan, Donald J. DelCollo, and Gabriel Menei, are charged in a six count indictment with the transmission of bets and wagering information over wire communication facilities while engaged in the business of gambling, in violation of 18 U.S.C. §§ 1084 and 2.¹ (Docket Item "D.I." 1.) Each defendant has filed motions to dismiss the indictment and to suppress evidence which the government intends to use at trial. (D.I. 23, 25, 26, 27, 28 and 34.) In addition, defendant Swan has moved for certain discovery which he claims is necessary to present a viable defense. (D.I. 24.) An evidentiary hearing was held on defendants' motions on June 15, 1982 (D.I. 41), and defense counsel and the government have submitted memoranda on the issues presented therein. (D.I. 38, 39, 42, 43, 46, 47, 48.) This memorandum opinion represents the Court's disposition of these motions.

I. Pre-Indictment Delay

The indictment in this case covers criminal activity which allegedly occurred over a ten-day period, from January 19, 1981 to January 29, 1981. Because the indictment was not returned until April 28, 1982, some 15 months after the last criminal act had purportedly occurred, the defendants argue that the indictment must be dismissed on the ground of prejudicial pre-indictment delay. Collectively, defendants point to three sources of federal authority which allegedly have been transgressed by the 15-month hiatus — the Sixth Amendment right to a speedy trial, the due process clause of the Fifth Amendment, and Rule 48(b), F.R. Cr.P.

The Sixth Amendment Speedy Trial clause merits little discussion. The protections of that clause are activated only when a criminal prosecution has been formally initiated — either by arrest, indictment or other official accusation. United States v. MacDonald, ___ U.S. ___, ___, 102 S.Ct. 1497, 1500, 71 L.Ed.2d 696 (1982); United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). This inescapable conclusion rests on the clear language of the Amendment itself, which speaks only to "criminal prosecutions,"² and a consideration of the purposes which it serves. Unlike the due process clause, whose proscription against inordinate delay is grounded in a concern for the defendant's ability to present an effective defense, the speedy trial guarantee is designed to curtail ancillary, but equally adverse, consequences flowing from the fact of criminal accusations. Its purpose is to "minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." United States v. MacDonald, supra, 102 S.Ct. at 1502. Obviously, these considerations are engaged only after formal charges have been filed or a defendant has been actually restrained by the public act of arrest. United States v. Marion, supra, 404 U.S. at 320, 92 S.Ct. at 463. Since neither of these crucial elements occurred in this case, resort to the Sixth Amendment is unavailing.

Nor can Rule 48(b), F.R.Cr.P., provide a basis for a claim of prejudicial pre-indictment delay. This Rule provides for the dismissal of an indictment, information or complaint "if there is unnecessary delay in presenting the charge to the grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial...." Like the Sixth Amendment Speedy Trial Clause, this rule is implicated only in post-arrest situations, where a formal criminal charge has been lodged against the defendant. It does not apply to a period of delay between the commission of the underlying offense and the commencement of an official criminal prosecution. See United States v. Marion, supra, 404 U.S. at 319, 92 S.Ct. at 462; United States v. Dukow, 453 F.2d 1328, 1330 (3d Cir.), cert. denied sub nom. Crow v. United States, 406 U.S. 945, 92 S.Ct. 2042, 32 L.Ed.2d 331 (1972); Nickens v. United States, 323 F.2d 808, 809 (D.C.Cir.1963), cert. denied, 379 U.S. 905, 85 S.Ct. 198, 13 L.Ed.2d 178 (1964); Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir. 1959).

The only federal source then, which arguably could require dismissal of an indictment in the face of lengthy pre-indictment delay, is the Fifth Amendment due process guarantee. This right, which is "primarily intended to prevent prejudice to the defense caused by the passage of time," United States v. MacDonald, supra, 102 S.Ct. at 1502, may be invoked, however, only if two criteria are met. First, the defendant must show that the pre-indictment delay caused substantial prejudice to his right to a fair trial. Second, the defendant must prove that the delay was an intentional device by the government to gain a tactical advantage over the defendant. United States v. Marion, supra, 404 U.S. at 324, 92 S.Ct. at 465; see United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Neither element has been met in this case. No specific facts have been either alleged or proved to demonstrate actual prejudice to the defendants and there has been no proof adduced whatsoever to demonstrate that the government intentionally delayed the filing of formal charges in this case to gain some advantage over the defendants. Defendants have simply cited the 15-month period, without more, as the basis for their claim. This fact, in and of itself, is legally insufficient to warrant dismissal of the indictment. See United States v. Marion, supra, 404 U.S. at 325-26, 92 S.Ct. at 465-466; United States v. Benson, 487 F.2d 978, 985 (3d Cir. 1973); United States v. Dukow, supra, 453 F.2d at 1330.

II. Suppression of Wiretap Evidence

Defendants have moved to suppress all telephonic recordings obtained pursuant to wiretaps placed on seven telephone lines subscribed to certain of the defendants and one third party not named in the indictment.³ These wiretaps were authorized in three separate orders by Judge Joseph T. Walsh of the Superior Court of the State of Delaware under the provisions of the Delaware Wiretapping and Electronic Surveillance Act, 11 Del.C. § 1336. (D.I. 41, Gov't ex. 1, 2 & 3.) The taps were applied for, and implemented and monitored by, officers of the Wilmington Police Department.

Under federal law, wiretap evidence properly obtained by state officials under the authority of a state electronic surveillance statute may permissibly be used in a federal prosecution, so long as the state statute conforms to the minimum requirements outlined by the federal wire interception statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See 18 U.S.C. § 2516(2). Neither party disputes the fact that the Delaware wiretapping statute is in all material respects virtually identical to Title III. Accordingly, if the wiretap orders were valid under state law, they would likewise be valid under federal law. Because of the congruence between the state and federal statutes, moreover, the propriety of the warrants authorizing the electronic surveillance in this case may be measured by federal statutory standards.

Defendants have attacked the wiretap orders on three separate grounds: First, they claim that the affidavit underlying the initial application for a wiretap, which was also extensively relied upon in the two succeeding applications, failed to demonstrate the requisite probable cause. Second, defendants claim that the government failed to satisfy the "necessity" requirement of Title III, viz., that efforts to obtain incriminating evidence through normal investigative procedures either were unsuccessful, were unlikely to succeed if tried, or were too dangerous to attempt. Finally, defendants challenge the authorization of wiretap interception for the hours from 9:00 a. m. to 10:00 p. m. on grounds of overbreadth, arguing that the facts contained in the affidavit do not support surveillance for such an extended period. These contentions will be addressed in turn.

A. Probable Cause

Under § 2518 of Title III, wire interception may be authorized only if the reviewing judge determines:

(a) There is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in 18 U.S.C. § 2516.⁴

(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception.

* * * * * *

(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

The principles by which this Court must be guided in determining whether probable cause, as outlined above, existed in this case are firmly established. Probable cause must be determined solely on the basis of that evidence initially presented to the magistrate or judge — in this case the facts contained within the four corners of the affidavit submitted in support of the wiretap...