UNITED STATES of America v. Pasquale FALCONE et al. Appeal of Pasquale FALCONIO in No. 73-2013. Appeal of Wally BERGER in No. 73-2109.
Nos. 73-2013, 73-2109
United States Court of Appeals, Third Circuit
September 30, 1974
Certiorari Denied Feb. 24, 1975
505 F.2d 478
See 95 S.Ct. 1338, 1339. See also, D.C., 364 F.Supp. 877.
Kenneth J. McGuire, Stein, Bliabliss & Goldman, Newark, N. J., for appellant, Pasquale Falconio.
Graham Roskein, Newark, N. J., for appellant, Wally Berger.
Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
OPINION OF THE COURT
HANNUM, District Judge.
Appellants, Pasquale Falconio1 and Wally Berger, were convicted in the United States District Court for the District of New Jersey on multiple counts of conspiracy to import2 and distribute3 heroin, violations of the Travel Act,4 and use of interstate facilities in the furtherance of these conspiracies.5
The Government‘s proof at trial revealed that the appellants participated in a scheme to smuggle twenty pounds of heroin into the United States from Canada. The scheme was foiled by Royal Canadian Mounted Police working in league with United States authorities.
This appeal alleges numerous grounds for reversal of the convictions below.
I. WIRETAP VIOLATIONS
Appellants contend that damaging evidence introduced at trial and obtained through the interception of telephonic communications (wiretaps) should have been suppressed.6 Eight reasons are assigned for this contention: the federal wire interception statute,
We note at the outset that this Court has held the federal wire interception statute,
AUTHORIZATION
The appellants contend that the wiretaps in the instant case were not properly authorized since the Attorney General‘s signature was affixed by Sol Lindenbaum, his Executive Assistant.
In Giordano, the Court held that Title III does not permit the authorization of wiretap applications by the Attorney General‘s Executive Assistant, and that evidence secured through wiretaps so authorized should be suppressed.10
In Chavez, the Court held that misidentifying the Assistant Attorney Gen-
It is clear from a reading of these cases that the important consideration is not whose name appears on the authorization, and certainly not who signed the authorization. Rather, the important consideration is who actually granted the authorization for the wiretaps.12
Turning to the instant case, Sol Lindenbaum, Executive Assistant to the Attorney General, signed the name of the then Attorney General, Richard G. Kleindienst, to the authorization for the wiretap.13 This act, however, was preceded by a telephone conversation between Lindenbaum and the Attorney General during which the former advised the latter of the contents of a memorandum, recommending that the authorization be granted, prepared by the Assistant Attorney General in charge of the Criminal Division, Henry Peterson.14 The Attorney General approved the request and directed Mr. Lindenbaum to sign the Attorney General‘s name to the authorization and to inform the Assistant Attorney General of the approval.15 Three days later the Attorney General, himself, entered a file memorandum verifying the verbal authorization he had given to Mr. Lindenbaum.16
From these facts, viewed in the light of Giordano and Chavez, we conclude that the authorization here was proper. Crucial to this conclusion is the fact that the Attorney General, fully aware of the facts of the specific case, had personally authorized the wiretap.
PROBABLE CAUSE
The appellants contend that probable cause was lacking for the issuance of the order for the wiretaps. In support of this contention, appellants submit that Berger v. New York, 388 U. S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1966) require a more vigorous degree of probable cause for a wiretap than ordinarily required for a search warrant, and that this more vigorous degree of probable cause was lacking. We reject this submission and, in addition, hold that the facts contained in the wiretap applications meet the standards for what constitutes probable cause. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
Probable cause is not a matter of degree. Although Berger and Katz call for extra vigilance in the supervision of electronic eavesdroрping,17 neither case separates probable cause into degrees. Moreover, no special probable cause requirement can be found in the statutory scheme.
PEN REGISTER
The next question presented for resolution is whether a separate order authorizing the use of a pen register18 is
In the instant case, the Government, after securing an order for a wiretap on Falconio‘s telephone, installed both a tape recorder and a pen register. Separate authorization for the pen register was never obtained. Appellants contend that the use of the pen register under these circumstances requires suppression of evidence so obtained. For the reasons which follow we find this contention unpersuasive.
The threshold issue is whether use of a pen register is subject to the provisions of
The next issue to be determined is whether
Nor must we decide, under the facts of this case, what authorization is necessary when a pen register is used alone.22 However, when used in conjunction with a wiretap, we conclude that an order permitting interception under Title III for a wiretap provides sufficient authorization for the use of a pen register, and no separate order for the latter is necessary. Thе reasoning for this conclusion is based on an analysis of the operation of a pen register.
A telephone number is only a symbol for a series of electrical impulses. When a telephone number is dialed from a wiretapped phone, the pen register and
We hold for the aforementioned reasons that where a valid wiretap order has issued, use of a pen register is comprehended within the terms of that order.
DELAY IN SEALING THE TAPES
Appellants finally contend that the wiretap evidence should not have been admitted because it was not promptly sealed as required by
There is no doubt but that the tapes were not sealed in accordance with the statute.26 However, it does not follow therefrom that the evidence obtained must be suppressed.27 As in United States v. Giordano, supra, and United States v. Chavez, supra, we must look to the statutory scheme to determine if Congress has provided that suppression is required for this procedural error.
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”
Paragraphs (ii) and (iii) are inapplicable because the sealing requirement is statutory and not part of the order. Therefore, if suppression is required, we must find it in paragraph (i). United States v. Giordano, supra, holds that paragraph (i) includes every “failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.” 416 U.S. at 527, 94 S.Ct. at 1832.
Viewed in this framework, the issue becomes whether the sealing requirement limits the use of interception procedures?
The legislative history reveals that the sealing requirement was intended to insure the integrity of the tapes after interception. (Emphasis supplied). 1968 U.S.Code Cong. & Adm. News, p. 2193-2194. The sealing requirement is in nowise “to limit the use of interception procedures . . .”
A second consideration strongly supports this conclusion.
In United States v. Poeta, 455 F.2d 117 (2d Cir. 1972), cert. denied, 406 U.S. 948, 92 S.Ct. 2041, 32 L.Ed.2d 337 (1972), police confusion over the appliсable law was held a sufficient explanation to overcome the absence of a seal. Here administrative delay may also be a satisfactory explanation. The crucial factor, however, is the integrity of the tapes themselves. This fact must be proved to the trial judge. In the case at bar, after an extensive pre-trial hearing and evidence at trial the court below made a specific finding of fact that the tapes had not been tampered with.28
Therefore, all we hold is that where the trial court has found that the integrity of the tapes is pure, a delay in sealing the tapes is not, in and of itself, sufficient reason to suppress the evidence obtained therefrom.
We hasten to add that this holding, of course, does not deprecate the importance of the sealing requirement. Certainly, it should be complied with in all respects. As this case so aptly demonstrates, compliance would have avoided considerable uncertainty and delay.
II. TRIAL ERRORS
In addition to the alleged violations in the gathering of evidence, appellants alleged that the trial court committed reversible error at trial and at sentencing.
At trial, testimony was admitted to the effect that appellant, Falconio, had been previously involved in a separate heroin transaction not the subject matter of this case. Appellant contends that this testimony should not have been admitted since it was evidence only of prior criminal conduct.
Although inadmissible to show a mere propensity or disposition to commit crime, evidence of other crimes is admissible to show one‘s intent, plan, scheme, design, or modus operandi. United States v. Todaro, 448 F.2d 64 (3d Cir. 1971), cert. denied, 404 U.S. 1040, 92 S.Ct. 924, 30 L.Ed.2d 732 (1972); United States v. Carter, 401 F.2d 748 (3d Cir. 1968), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1969); United States v. Stirone, 262 F.2d 571 (3d Cir. 1958), rev‘d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Without commenting in detail, the evidence complained of showed an intent on the part of Falconio to sell heroin to one of his coconspirators, and, further, showed a preexisting business relationship between the two, evidence highly probative of the existence of a conspiracy. Moreover, since the evidence indicated that Falconio owed this co-conspirator $30,000.00 from the previous narcotics transaction, the evidence was probative to show motive for the subsequent narcotics transaction for which he was prosecuted. Thus, there being sufficient grounds for the admission of this evidence, there is no error.
Next appellants allege that the trial court erred when it failed to grant their motion for a mistrial following a question propounded by the Government Attorney and directed to one of its witnesses. Specifically, the Government
Objection to this question was sustained and the jury was instructed to disregard it.29 In addition, the court made inquiry to determine whether any jurors had been prejudiced by this reference. A review of the record makes clear that an appropriate instruction was given and a mistrial was not required in these circumstances.
Finally, appellant, Falconio, сontends that the trial judge should have recused himself before sentencing. In this regard, he filed an affidavit pursuant to
For a motion to recuse to be granted, the affidavit must allege bias or prejudice from a source other than the Court proceedings in the case, United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966); Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761 (1967). As we said in United States v. Thompson, “The facts [in the affidavit] must show the bias is personal, as opposed to judicial, in nature.” Appellant did not allege in his affidavit that the trial judge‘s bias was extrajudicial. An allegation of “judicial” bias is not grounds for a motion to recuse. United States v. Thompson, 483 F.2d 527, 529 (3d Cir. 1973). The motion was properly denied.
The Court finds the remaining contentions in this appeal without merit. The Court also finds that the trial was fair and free of error. Thus, the convictions оf the appellants, Falconio and Berger, must be and are affirmed.
ROSENN, Circuit Judge (dissenting).
I respectfully dissent because I believe that the Government‘s inability to provide a “satisfactory explanation” for its failure to have the recordings sealed “immediately” by the court requires that the recordings be suppressed in accordance with the language of the statute,
Two wiretaps are involved in this case. The first, the Fort Lee wiretap, was authorized by Judge Lacey of the District Court of New Jersey on August 28, 1972. The authorization was valid for twenty days, and successive twenty-day extensions were granted on September 15 and October 5. The wiretap was removed on October 16, although the final еxtension did not expire until October 25. Nevertheless, the tapes were not presented to the court for sealing until December 1, forty-five days after the removal of the wiretap.
The second wiretap, the Philadelphia wiretap, was authorized by Judge Davis of the Eastern District of Pennsylvania on November 30, 1972. The initial fifteen-day authorization was extended for an additional fifteen days on December 15. Actual surveillance terminated on December 15, and the authorization expired on December 30. However, the tapes were not presented to the court for sealing until January 30, 1973, also forty-five days after the removal of this wiretap.
Congress clearly intended that violation of the
I therefore turn to the question of whether the Government has provided the “satisfactory explanation” for the protracted delays in sealing the tapes which is a “prerequisite” to their admissibility into evidence.5 The Government‘s asserted explanation for the delay in sealing the tapes was that “the tapes were used to make a comрosite tape and to transcribe certain of the tapes.” Brief for Appellee at 27.
I do not believe that this is in any sense a “satisfactory” explanation within the contemplation of the statute. The Government‘s witnesses testified at trial that there was always a “back-up recorder” simultaneously activated with the primary recorder by the lifting of the telephone receiver. Except for such occasions when one or the other of the machines malfunctioned, therefore, two recordings were made of all intercepted conversations. There was thus a duplicate tape available from which the Government could have made a composite tape and transcribed the conversations. The Government has not offered any reason why it could not have immediately submitted one of the sets of tapes for sealing and used the other set to make the composite tape.
Even were all or some of the conversations recorded on only a single set of tapes, the Government‘s delay of over a month in sealing the tapes is inexcusable. The penultimate sentence of
The only case of which I am aware which treats the question of what constitutes a “satisfactory explanation” for delayed sealing of tapes under
We are satisfied that the delay of the police in delivering the tapes for sealing was entirely excusable in light of the wording of the New York statute. No claim is made that the tapes were altered or that the appellant was in any way prejudiced by the delay. 455 F.2d at 122.
In the instant case, unlike Poeta, the Govеrnment does not and could not contend that there is any ambiguity in the explicit statutory requirement that the tapes be “immediately” sealed. The delays in sealing the tapes were about a month and one-half in each instance in contrast to the 13 days in Poeta. Moreover, in contrast to Poeta, the defendants in the instant case did raise the possibility at the suppression hearing that certain of the tapes had been altered, although the district court found this contention to be without merit.6 I believe, therefore, that Poeta does not provide support for the majority‘s position.
The majority appears to hold that even though the Government may not have provided a satisfactory explanation for the delay in sealing the tapes in this case, the tapes were properly admitted into evidеnce because of the district court‘s finding of fact that the tapes had not been tampered with before being sealed. This rationale would appear to excuse even a total failure by the Government to seal the tapes and a total failure by the Government to provide an explanation for the lack of a seal.
I do not believe that this rationale, which is in effect a “harmless error” rule, can be the stirrup upon which the Government can mount its effort to avoid the consequences of its failure to comply with the explicit statutory requirement that the tapes be immediately sealed. I find support for this view in the recent cases of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), and, United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). In those cases the Supreme Court dealt with the question of what constitutes an “unlawful” interception which must be suppressed under
where there is a failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the
use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device. 416 U.S. at 527, 94 S.Ct. at 1832.
In the instant case, there is no need to apply this standard because
I recognize that adoption of my position as expressed in this dissent would put to naught in this case considerable investigative and prosecutorial effort by the Government, as well as considerable judicial effort expended in the lengthy hearings and trial in the district court. Moreover, I am aware that some charge courts with unjustifiably expanding the rights of the accused beyond the parameters intended by Congress or by the framers of the Constitution. In this case, however, it is Congress that has expressly spoken in fаvor of protecting an accused whose conversations have been secretly recorded. It is Congress that has in its wisdom expressly stated that under the circumstances before us the recorded conversations may not be admitted into evidence. The principle of protecting a citizen from the possibilities of altering or tampering with his intercepted conversation recorded by secret devices is so precious that it should not be diluted by any inclination to excuse the Government from its own serious dereliction. The Supreme Court‘s recent holding in Giordano that wiretaps which were not personally authorized by the Attorney General, as specifically requirеd by statute, must be suppressed, affected 60 cases, 626 defendants and immeasurable effort and expense on the part of the Organized Crime Section of the Criminal Division of the Justice Department. See United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849 (1974) (Douglas, J., concurring and dissenting). Nonetheless, the Supreme Court required adherence to the terms of the Congressional statute. We can do no less in this case. I would therefore reverse the convictions at issue on this appeal.
Notes
(8)(a) The contents of any wire or oral communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire or oral communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders. They shall not be destroyed except upon an order of the issuing or denying judge and in any event shall be kept for ten years. Duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517 of this chapter for investigations. The presence of the seal provided for by this subsection, or a satisfactory explanation for the absencе thereof, shall be a prerequisite for the use or disclosure of the contents of any wire or oral communication or evidence derived therefrom under subsection (3) of section 2517.
The court found that there was “no basis at all in the entire record” to doubt the testimony of the Government agent in charge of the case that there was no tampering with the tapes.