Decision Date12 August 1981
Docket NumberNo. M81-18.,M81-18.
Citation521 F. Supp. 190
CourtU.S. District Court — District of New Hampshire

James H. Leavey, Sp. Asst. Atty. Gen., U. S. Dept. of Justice, Providence, R. I., for defendant.

Mark B. Gombiner, C. Vernon Mason, New York City, Nat. Conference of Black Lawyers, Robert A. Stein, Concord, N. H., for plaintiff.


LOUGHLIN, District Judge.

The caption of this case is misleading for the purposes of this order. The movants are hereinafter referred to as the plaintiffs and the United States of America as defendant in order to avoid confusion. The plaintiffs request the court pursuant to 18 U.S.C. § 2518(8)(d) to make available to them or their counsel for inspection copies of the application for an order pursuant to 18 U.S.C. § 2518 authorizing the interception of oral communications within premises known as the ground floor of 165 Atwells Avenue, Providence, Rhode Island and the order authorizing said interception by Chief Judge Raymond J. Pettine of the United States District Court for the District of Rhode Island dated July 11, 1980. Chief Judge Raymond J. Pettine and Judge Francis J. Boyle have recused themselves and the case has been transferred to the United States District Court for the District of New Hampshire. See order of Frederick R. DeCesaris, United States Magistrate, District of Rhode Island, dated July 2, 1981.

Counsel for defendant voluntarily agreed at a court hearing on July 22, 1981 to furnish copies to plaintiffs' counsel and they received same.

In addition plaintiffs request all applications for extension of time of service of the inventory, any orders, relative thereto, all records, documents, logs, transcripts, tapes, memoranda or other memorializations of the interception of any oral communications pursuant to Chief Judge Raymond J. Pettine's order of July 11, 1980. The defendant opposes plaintiffs' requests for inspection.

Some of the factors are uncontroverted. The application for an order authorizing the interception of oral communications was signed by a Special Agent of the Federal Bureau of Investigation on July 11, 1980. The order authorizing interception or oral communications was signed the same day by Chief Judge Raymond J. Pettine.

It was not until May 29, 1981 that plaintiffs, John F. Ouimette and Dante Sciaria received notice from James H. Leavey, Special Attorney, United States Department of Justice of the following. A copy of form letter is excerpted.

Dear Mr.
In accordance with the Order of the Honorable Raymond J. Pettine, Chief Judge, United States District Court for the District of Rhode Island, and in accordance with the provisions of Title 18, United States Code, Section 2518(8)(d), you are hereby notified:
1. That on July 11, 1980, Chief Judge Pettine issued an order authorizing the interception of oral communications within the premises known as the ground floor, 165 Atwells Avenue, Providence, Rhode Island.
2. The order authorized interception for a period of thirty days.
3. Oral communications were intercepted during the periods July 16, 1980 through July 30, 1980 and August 1, 1980 through August 10, 1980.

Attorney Vincent Oddo of Providence, Rhode Island was the only witness who testified. He graduated from law school in 1980 and was admitted to the bar of the State of Rhode Island in November, 1980. He is associated with Attorney John F. Cicilline in the general practice of law at 165 Atwells Avenue, Providence, Rhode Island.

Attorney Oddo was not at the law offices during the period of the interception of the oral communications.

On June 2, 1981 two or three letters similar to the Ouimette and Sciaria letters were delivered to him between 10 and 11 A.M.

An agreement was made between representatives of the Federal Bureau of Investigation and Attorney Cicilline that thirty letters more or less would be delivered the following day, June 3, 1981 to clients who, to use the vernacular whose communications had been bugged during the intercept period.

A half hour prior to the meeting with the clients on June 3, 1981 Attorney Oddo noticed representatives of Channel 10, a local television station in Providence, Rhode Island who were outside the law offices. Inquiry revealed that they were there to televise the clients as they arrived. When informed of this Attorney Cicilline called the meeting off.

Attorney Oddo also testified concerning the demoralizing effect these events had on the law offices.

The court addresses in the first instance the constitutionality of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20. Reference is made to United States v. Turner, 528 F.2d 143, 158, 159 (9th Cir. 1975). Certiorari Denied December 1, 1975. See 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371. In this case, the appellants argued that, Title III "on its face" permits an invasion of home and office by general warrant, contrary to the command of the Fourth Amendment and the penumbral right of privacy cast by several amendments.

Nine circuits have passed on the constitutionality of Title III. See United States v. Sklaroff, 506 F.2d 837, 840 (5th Cir.), petition for cert. filed, 43 U.S.L.W. 3540 (U.S. Mar. 2, 1975) (No. 74-1249); United States v. Ramsey, 503 F.2d 524, 526-31 (7th Cir. 1974), cert. denied, 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975). United States v. Martinez, 498 F.2d 464, 467-68 (6th Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 639, 42 L.Ed.2d 654 (1974); United States v. James, supra, 494 F.2d 1007 at 1012-13 D.C.D.C.; United States v. Tortorello, 480 F.2d 764, 771-75 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); United States v. Bobo, 477 F.2d 974, 978-82 (4th Cir. 1973); cert. denied sub nom., Gray v. United States, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774 (1975); United States v. Whitaker, 474 F.2d 1246 (3d Cir. 1973), rev'g, 343 F.Supp. 358 (E.D.Pa. 1972), cert. denied, 412 U.S. 950 953, 93 S.Ct. 3014 3003, 37 L.Ed.2d 1003 1006 (1973); United States v. Cafero, 473 F.2d 489, 493-501 (3d Cir. 1973), cert. denied, 417 U.S. 918, 94 S.Ct. 2622, 41 L.Ed.2d 223 (1974); United States v. Cox, supra, 462 F.2d at 1302-04; United States v. Cox, 449 F.2d 679, 683-87 (10th Cir. 1971), cert. denied, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136 (1972). All have held the statute constitutional under the Fourth Amendment. In many of these cases extended consideration has been given to Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1966), and to the safeguards there discussed and held to be essential under the Fourth Amendment. The courts have all concluded that once those specified safeguards are met, the requirements of the Fourth Amendment are also satisfied; that in enacting Title III Congress was aware of the decisions of the Supreme Court in this area and had complied with the standards there set forth.
We agree.

The First Circuit apparently has not passed on the constitutionality of Title III. This court follows the weight of authority as enumerated in United States v. Turner, supra.

Plaintiffs also contend that authorization orders from the office of Attorney General were not proper. The Ninth Circuit answered this question in United States v. Jabara, 618 F.2d 1319, 1327 (9th Cir. 1980).

An individual or his or her counsel may request for their inspection upon filing a motion, such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. 18 U.S.C. § 2518(8)(d).

The intent of Congress, in requiring the service of the inventory, was to prevent the Government from engaging in electronic surveillance upon an individual without that individual ever learning of it, as is made crystal clear by the legislative history of this section:
The intent of the provision requiring the inventory is that the principle of postuse notice will be retained. This provision alone should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. Senate Report No. 1097, 1968 U.S.Code Cong. & Admin.News, p. 2194. Application of United States Authorizing Interception of Wire Communications, 413 F.Supp. 1321, 1327 (E.D.Pa.1976).

The United States District Court for the Eastern District of Louisiana in the case of In the Matter of the Application For An Order Authorizing Interception of Wire and Oral Communications, a 1980 case reported in 495 F.Supp. 282 was presented with a somewhat analogous situation as evidenced in this case.

The movants in that case filed a motion to inspect an application and order authorizing interception of wire and oral communications and to inspect recordings and transcripts of intercepted communications. The government opposed the motion on the basis that mover was not entitled to disclosure of the material sought and that such disclosure would severely compromise an ongoing grand jury investigation.

The court at page 284 stated.

We are of the opinion that in camera examinations are an appropriate means for resolving a conflict between the need of a party for evidence and the government's claim that disclosure is not in the interests of justice or public security. United States v. Brown, 539 F.2d 467, 470 (5th Cir. 1976); United States v. Buckley, 586 F.2d 498, 506 (5th Cir., 1978), cert. den'd, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979).

In response to the court's inquiry counsel for the defendant stated that the Grand Jury investigation of the matters involved in this litigation should be completed by November, 1981 less...

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