In The Matter of A Warrant Authorizing The Interception of Oral Communications, Etc. Appeal of William J. Cintolo, 708 F.2d 27, 1st Cir. (1983)

708 F.
2d 27
In the Matter of A WARRANT AUTHORIZING THE

INTERCEPTION OF
ORAL COMMUNICATIONS, etc.
Appeal of William J. CINTOLO.
No. 82-1881.
United States Court of Appeals,

First Circuit.
Argued April 8, 1983.
Decided May 31, 1983.
William J. Cintolo, pro se.

Wendy S. Collins, Sp. Atty., Dept. of Justice, Boston, Mass., with whom
William F. Weld, U.S. Atty., and Jeremiah T. O'Sullivan, Sp. Atty., Dept.
of Justice, Boston, Mass., were on brief, for the United States.
Before HAYNSWORTH, * Senior Circuit Judge, BOWNES and
BREYER, Circuit Judges.
PER CURIAM.
Appellant is the acknowledged target of a federal grand jury proceeding, and

one of the subjects of court-authorized electronic surveillance of a certain
apartment in Boston. As provided by statute, once the government finished its
surveillance, the court told appellant that he had been overheard. See 18 U.S.C.
Sec. 2518(8)(d). He moved to inspect the surveillance records pursuant to that
statute, which states that the district court judge
2 in his discretion make available to such person or his counsel for inspection
may
such portions of the intercepted communications, applications and orders as the
judge determines to be in the interest of justice.
3
Appellant argued that, since he is an attorney, the government might have

intercepted privileged attorney-client communications; he said he needed to
inspect the documents, to prevent privileged materials from being placed before
the grand jury. The district court examined the relevant records in camera and
concluded that there was no improper interception. It found that the
government had intentionally turned off the monitoring devices whenever an
apparently privileged communication began. The court concluded that
4 importance of assuring the grand jury's investigation remains secret outweighs
the
Attorney Cintolo's interest in discovering at this time the contents of his intercepted
communications.
5
Appellant first asserts a general point, namely, that he cannot prove that
privileged communications were intercepted unless he can see the government's
records. His practical problem arises, however, from the fact that Congress
resolved the "secrecy/impropriety" dilemma to which he points by authorizing a
district court to examine the records in camera and "in his discretion" to decide
the issue. See 18 U.S.C. Sec. 2518(8)(d). This procedure has been endorsed by
the courts, see, e.g., In re Lochiatto, 497 F.2d 803, 808 (1st Cir.1974) (Sec.
2518(10)); Application of the United States for an Order Authorizing
Interception of Oral Communications At the Premises Known as Calle
Mayaguez 212, Hato Rey, Puerto Rico, 545 F.Supp. 1271, 1273 (D.P.R.1982);
Application of the United States for an Order Authorizing Interception of Wire
and Oral Communications, 495 F.Supp. 282, 284 (E.D.La.1980); Application of
the United States for an Order Authorizing Interception of Wire
Communications, 413 F.Supp. 1321, 1333 (E.D.Pa.1976); and in general it is
the recommended method by which to resolve disputes over confidentiality. In
re John Doe Corp., 675 F.2d 482, 490 (2d Cir.1982). Appellant has received
whatever benefits Sec. 2518 provides him, and he alleges no specific facts
suggesting any abuse. Indeed, since he received from the district court the dates
and times when he was "present on the premises being monitored," it would not
be as difficult as appellant claims for him to make specific allegations to this
court of invasion of the lawyer-client privilege, if any such invasions have
taken place.
Moreover, even if it should later turn out, contrary to the district court's finding,
that the government did invade the lawyer-client privilege, Cintolo's clients can
refuse to answer questions from the grand jury based on privileged material, see
United States v. Calandra, 414 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d
561 (1974); they can move to dismiss the indictment, see, e.g., United States v.
Rasheed, 663 F.2d 843, 853-54 (9th Cir.1981); and any such evidence would be
excluded at trial, see Fed.R.Civ.P. 501. See also 18 U.S.C. Secs. 2515, 2518(5);
Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978)
(suppression authorized where government fails to comply with requirement
that interception of noncriminal matter be minimized). We find no abuse of
discretion by the district court in refusing to allow defendant to inspect the

government's records.
7
Appellant makes one other claim of error. He argues that the district court
should have heard the evidence of several reporters, whom he had subpoenaed
to testify about newspaper and television stories they had written. He claims
that if these unwilling witnesses had been forced to testify, he could have
shown that the government had already breached the secrecy of its
investigation by "leaking" stories to the press; hence, the need for secrecy in his
case presumably would be diminished.
Appellant, however, did not explain to the court precisely how these witnesses
would help him. The press stories themselves presumably could have been
made available to the judge and would likely have revealed the maximum
extent (and thus the relevance) of any "leak." Moreover, appellant did not claim
that the government had leaked information specifically about him. Under
these circumstances, appellant, at a minimum, should have specified what he
believed the witnesses would say and why their testimony would be material.
See Cohen v. United States, 378 F.2d 751, 760-61 (9th Cir.1967). Instead, he
relied upon conclusory allegations. We therefore find no error in the decision of
the district court not to allow Cintolo to call his reluctant press witnesses.
For these reasons, the decision of the district court is
10
Affirmed.
Of the Fourth Circuit, sitting by designation

In The Matter of A Warrant Authorizing The Interception of Oral Communications, Etc. Appeal of William J. Cintolo, 708 F.2d 27, 1st Cir. (1983)

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In The Matter of A Warrant Authorizing The Interception of Oral Communications, Etc. Appeal of William J. Cintolo, 708 F.2d 27, 1st Cir. (1983)

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708 F.

In the Matter of A WARRANT AUTHORIZING THE

United States Court of Appeals,

William J. Cintolo, pro se.

Appellant is the acknowledged target of a federal grand jury proceeding, and

Appellant argued that, since he is an attorney, the government might have

discretion by the district court in refusing to allow defendant to inspect the

For these reasons, the decision of the district court is

Of the Fourth Circuit, sitting by designation

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