UNITED STATES of America v. Joseph E. CAFERO A/k/a Ernie, Appellant in No. 72-1577, Et Al. Appeal of Dominick VINCIGUERRA, A/k/a Dom, in No. 72-1578
UNITED STATES of America v. Joseph E. CAFERO A/k/a Ernie, Appellant in No. 72-1577, Et Al. Appeal of Dominick VINCIGUERRA, A/k/a Dom, in No. 72-1578
2d 489
Application for the court-ordered telephonic interception was made by the FBI
and supported by affidavits of two informers, one of whom had been providing
information to the FBI "for a period exceeding four years, such information
resulting in two Federal convictions in the gambling field and 20 local
gambling arrests." It was averred that the second informant had consistently
provided Philadelphia police with trustworthy information, and that both
informants obtained their information from personal observations and from
Cafero himself.2 The court order authorized interception for fifteen days subject
to earlier termination if the objectives were attained. The wiretap began on
January 17, 1970, and terminated seven days later on January 24, 1970. Within
ninety days of this termination, the government requested a postponement of
the filing of the inventory required by 18 U.S.C. Sec. 2518(8)(d). On April 21,
1970, a court order authorized such a postponement for thirty days. The
inventory was filed on May 12, 1970, within the authorized postponement
period.3 At trial, appellants made appropriate motions to suppress the evidence
on grounds properly noticed in these appeals.
Before this court, appellants have the advantage of the thoughtful opinion of
Chief Judge Joseph S. Lord, III, in United States v. Whitaker, 343 F.Supp. 358
(E.D.Pa.1972), in which Title III was held unconstitutional. Appellants rely
heavily upon this opinion in mounting their constitutional attack. Bound by
pronouncements of the Supreme Court, the Whitaker court accepted as bedrock
the principles enunciated in Lopez v. United States, 373 U.S. 427, 83 S.Ct.
1381, 10 L.Ed.2d 462 (1963); Osborn v. United States, 385 U.S. 323, 87 S.Ct.
429, 17 L.Ed.2d 394 (1966); 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 (1967). Thus, Whitaker does not accept in ipsis verbis the
theory that there may never be constitutionally permissible eavesdropping.4
Rather, Whitaker holds that the statutory procedures of Title III do not comport
with the rigid requirements for constitutionally permissible court-supervised
interceptions as formulated by the Supreme Court.
5
This formulation was perhaps best expressed by Justice Stewart in Katz, supra,
389 U.S. at 355, 88 S.Ct. at 513:
6
[U]nder
sufficiently "precise and discriminate circumstances," a federal court may
empower government agents to employ a concealed electronic device "for the
narrow and particularzied purpose of ascertaining the truth of the . . . allegations" of
a "detailed factual affidavit alleging the commission of a specific criminal offense."
Osborn v. United States, 385 U.S. 323, 329-330, 87 S.Ct. 429.
7
II.
9
10
11
2. Title III was found to lack specific guidelines restricting the executing
officer's discretion. "It is left to the executing officers to determine when they
have learned enough details concerning enough people about the offense in
question so that they should and must stop their interception because the
authorized objective has been attained. . . . While Title III is a significant
improvement from the New York statute found unconstitutional in Berger, it
still lodges too much discretion in the executing officers to comply with the
Constitution." 343 F.Supp. at 367.
12
3. Finally, Whitaker found that Title III "provides for unreasonable searches
and seizures by not requiring prompt notice after authorized surveillance has
been completed to those people whose conversations have been intercepted."
343 F.Supp. at 368.1.
13
Initially, we do not agree with the Whitaker court's observation that "Title III's
intrusion is not 'precise' nor 'carefully circumscribed' nor 'very limited."' 343
F.Supp. at 365. Section 2518(1)(b) provides that the application must contain
"a full and complete statement of the facts and circumstances . . . of the type of
communications sought to be intercepted." The application must contain details
of the particular offense, and "a particular description of the nature and location
of the facilities" where the interception is to be made. 18 U.S.C. Sec. 2518(1)
(b). Moreover, after considering the application, the judge may issue an
intercept authorization only after making the specific findings required by
section 2518(3), including the existence of probable cause, and must include in
the authorization:
19
20
Confronted with the argument that the intrusion authorized by Title III is not
sufficiently "precise," "circumscribed" or "limited," the Tenth Circuit
responded succinctly and, in our view, properly: "As we view it, Congress was
seeking to deal realistically with highly complex problems in accordance with
the demands of the Constitution. We are unable to say that the product fails to
satisfy the Constitution. Every effort has been made to comply with the
requirements of Berger and Katz. Section 2518(4) of Title III is as precise and
discriminate in its approach as are the demands of Berger and Katz." United
States v. Cox, 449 F.2d 679, 687 (10th Cir. 1971), cert. denied, 406 U.S. 934,
92 S.Ct. 1783, 32 L.Ed.2d 136 (1972).
21
22
23a judge exercised certain discretionary powers which the Act gives him, the order
If
may not violate the Fourth Amendment. The difficulty, though, is precisely that
those powers are discretionary and not mandated. It follows that the Act does not
command a constitutional order; it permits an unconstitutional one.
24
25
25
We do not agree with this interpretation of the Act. Section 2518(4)(e) must be
interpreted in light of section 2518(5) which provides:
26 order entered under this section may authorize or approve the interception of any
No
wire or oral communication for any period longer than is necessary to achieve the
objective of the authorization, nor in any event longer than thirty days. . . . Every
order and extension thereof shall contain a provision that the authorization to
intercept . . . must terminate upon attainment of the authorized objective, or in any
event in thirty days.
27
28
Thus, the offensive autocracy of the calendar condemned in Berger has been
supplanted by judicial authority in the first instance, by the right of sua sponte
judicial review at any time, and by the expiration of statutory authority to
continue the interception once the objective has been achieved. Carte blanche is
given no one. Executing officers are not free to intercept beyond attainment of
their objective for an hour, a day, seven days, or twenty-nine days. They are
allotted time to achieve an objective, period. Should they intercept beyond this
time, they have violated the Act.
29
authorization. Accordingly, we reject the Whitaker rationale and align this court
squarely with the other circuits which have addressed this issue. In United
States v. Cox, 462 F.2d 1293, 1303 (8th Cir. 1972), the court said:
30 do not, however, read Osborn, Katz and Berger as holding that only "rifle shot"
We
eavesdrops are constitutionally permissible. . . .
31
Obviously
an electronic search extending over a period of time will encompass
overhearing irrelevant conversations, but the search of a building will likewise
involve seeing and hearing irrelevant objects and conversations. [See Berger, supra,
388 U.S. at 108, 87 S.Ct. 1873, 18 L.Ed.2d 1040] We therefore reject the assertion
that only single-conversation interceptions are constitutionally permissible, and we
agree with the Tenth Circuit [United States v. Cox, supra, 449 F.2d 679] that Berger,
Katz and Osborn do not indicate the contrary. We read those opinions as saying that
"adequate judicial supervision or protective procedures" [Berger, supra, 388 U.S. at
60, 87 S.Ct. 1873, 18 L.Ed.2d 1040] such as are required by this Act provide the
reasonableness which the Fourth Amendment requires.
32
2.
33
The Whitaker court found "too much discretion in the executing officers to
comply with the Constitution." 343 F.Supp. at 367. This conclusion is closely
related to that court's prior conclusion that Title III permits continuous extended
interceptions of the type held unconstitutional in Berger. However, "[t]he
dragnet nature of the New York law [in Berger] resulted not only from the
duration of the warrant, but also from the failure to confine the investigator's
latitude with . . . various safeguards. . . ." United States v. Cox, supra, 462 F.2d
at 1303. Thus, it appears that this conclusion was prompted by the Whitaker
court's interpretation of section 2518(4)(e) as subjecting automatic termination
to the authorizing judge's discretion under section 2518(5), rather than making
it mandatory. As heretofore discussed, we have concluded otherwise. Title III
allows the executing officer considerably less discretion than the New York
statute in Berger. No longer can the officer continue surveillance without
effective judicial supervision. If surveillance is improperly continued after the
authorization has terminated, such surveillance is unlawful and subject to
suppression. 18 U.S.C. Sec. 2518(10)(a).
34
35
36
3.
37
Finally, the Whitaker court found Title III deficient "by not requiring prompt
notice after authorized surveillance has been completed to those people whose
conversations have been intercepted." 343 F.Supp. at 368. "While the question
of post-search notice is admittedly a novel question under the Fourth
Amendment, considering a heritage which does not include secret searches, we
find a violation because '[t]he Amendment is to be liberally construed and all
owe the duty of vigilance for its effective enforcement lest there shall be
impairment of the rights for the protection of which it was adopted.' Go-Bart
Importing Company v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75
L.Ed. 374 (1931)." 343 F.Supp. at 369.
38
For support of this novel proposition, the court did not rely on Berger or its
progeny. Instead, it reasoned: "Secret searches by definition reach the outer
limits of what is permissible under the Fourth Amendment, but then to delay
notice to the subject of the search for a substantial period of time because it
might hamper an investigation is in our view well beyond the bounds of the
Constitution." 343 F.Supp. at 369.
39
Sec. 2518(8)(d), it does not guarantee disclosure to him of the inventory, nor
does it provide mandatory notice to persons not named in the order, although
the issuing judge may so direct. But the "secret search" argument is quite
another thing. Indeed, the Supreme Court has already ruled that a secret
electronic surveillance may comport with the Fourth Amendment. Lopez,
Osborn, Berger and Katz, supra.
40
41
In the context of electronic surveillance, we are aware that this court has held
that a "complete and deliberate failure to file any inventory" is not merely a
failure in a "ministerial" aspect of the surveillance. United States v. Eastman,
465 F.2d 1057 (3d Cir. 1972). In suppressing evidence in Eastman, we pointed
out that "[t]he touchstone of our decision on this aspect of the case at bar is not
one in which an inventory was delayed but rather is one in which specific
provisions of Title III were deliberately and advertently not followed." 465 F.2d
at 1062. Suppression was mandated by 18 U.S.C. Sec. 2515 which "imposes an
evidentiary sanction to compel compliance with the other prohibitions of the
chapter." 1968 U.S.Code Cong. and Admin. News, p. 2184. In United States v.
La-Gorga, 336 F.Supp. 190 (W.D.Pa.1971), Judge Weis distinguished the case
of delay in filing notice after the surveillance had been completed from the
facts of Eastman. We believe this distinction is relevant here for it points out
that in Eastman the failure to comply with the provisions of Title III was begun
in the authorization stages of that surveillance and persisted throughout the
entire procedure. The authorizing judge in Eastman expressly "waived" the post
search notice provisions of Title III at the time he authorized the interception.
La-Gorga and Eastman make it clear, therefore, that the suppression in Eastman
was statutorily mandated by its peculiar facts. Furthermore, any Fourth
Amendment overtones of Eastman result not from post-search ministerial delay
or error, but from a deliberate attempt initiated prior to the search to avoid
procedures mandated following the search.
42
It would appear that in the literal context of the Fourth Amendment, postsearch
notice of an electronic interception may properly relate only to the issue of
"reasonableness" in the conduct of "searches and seizures." It is established
federal practice that a traditional search warrant be returned to the issuing
magistrate, F.R.Cr.P. 41(c), that the warrant may be executed and returned only
within ten days after its date, that the person from whom or from whose
premises the property was taken be given a copy of the warrant and a receipt,
that an inventory be made which accompanies the return, and that the issuing
authority upon request deliver a copy of the inventory to the person from whom
the property was taken. F.R.Cr.P. 41(d). The unique nature of oral surveillance
precludes utilization of identical procedures. Title III requires that an inventory
be filed within a reasonable time but not later than ninety days after the filing of
the application for an order. This inventory must include notice of the (1) fact
of the entry of the order, (2) the period of interception, and (3) whether actual
interception took place. Upon motion, the issuing court may make available
such portions of intercepted communications "as the judge determines to be in
the interest of justice." 18 U.S.C. Sec. 2518(8)(d).
43
We do not share the Whitaker court view that this procedure lacks the degree of
promptness required by the Constitution. As we have observed, the
constitutional standard for searches and seizures relating to both tangible
objects and communications is the reasonableness of the governmental action.
Only unreasonable searches and seizures are beyond the constitutional pale. A
statute which requires an inventory to be filed within "a reasonable time"
cannot, without more, be said to offend this test. If, in a given case, there is
undue delay, that contention may be pressed in an appropriate averment
alleging non-compliance with the statute. The vice of unreasonable delay is a
factor to be measured within the contours of the statute, and should not be used
to shape those contours into an unconstitutional form. Simply stated, the
Congressional mandate places a premium on reasonable notice of the inventory.
If this is found lacking, then there has been no compliance. Clearly, however,
courts should exercise great care in granting extensions beyond the ninety-day
period for the filing of inventories.
44
interception, which Title III leaves to the discretion of the issuing court "as the
judge determines to be in the interest of justice." Where there has been an
improper denial of an appropriate motion for inspection, traditional safeguards
of due process and orderly trial procedures exist to afford sufficient protection.
As an abstract proposition, it may be desirable to mandate the inspection in all
instances, but where there are oral interceptions there must be fealty to the
concept of privacy.8 Because any inspection is a publication, there must be
concern for, if not concession to, the rights of those parties who figure or
participate in the intercepted conversations, but who were not named in the
order. It was the Congressional wisdom to entrust the inspection, and therefore
publication, to the courts as the subject of judicial decision. The parameters of
"the interest of justice" within the statutory schema and the Federal
Constitution remain to be fashioned on a case-by-case basis. For our immediate
purposes we decide only that the Congressional decision to entrust this
inspection to the judicial process is not offensive to the Fourth Amendment.
The New York procedure condemned in Berger did not "provide for a return on
the warrant thereby leaving full discretion in the officer as to the use of seized
conversations of innocent as well as guilty parties." Berger v. New York, supra,
388 U.S. at 60, 87 S.Ct. 1873, 1884, 18 L.Ed.2d 1040. We conclude that this
objection has been adequately negated by the provisions of Title III.
45
For these reasons, we reject the holding of United States v. Whitaker that Title
III is unconstitutional, and thereby place ourselves in agreement with courts of
appeals and district courts which have adjudicated the constitutionality of Title
III.9
III.
46
47
Appellants contend that the indictment listed 19 overt acts involving telephone
calls none of which were specifically stated to be interstate. Proof at trial
showed that 6 of the telephone calls in which Cafero received the "number"
were transmitted within thirty minutes of the availability of the race results
from Florida.12 From this evidence, the government requested the jury to draw
the inference that these calls were interstate. The jury was repeatedly instructed
that they must find an interstate telephone call by a member of the conspiracy
in order to convict. We are satisfied that the jury properly weighed the evidence
and drew the appropriate inference. Moreover, we are satisfied with the
disposition of this point by Judge Fullam.13
V.
48
49
Florida law prohibits the dissemination of race results less than one-half hour
after the completion of each race except for the feature race. 16 Fla.Stat.Anno.
550.35 (1) (2)
We find that the issuing judge made proper findings of probable cause, 18
U.S.C. Sec. 2518(3), meeting the requirements of Aquilar v. Texas, 378 U.S.
108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S.
410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); and United States v. Singleton, 439
F.2d 381, 383-385 (3d Cir. 1971)
Upon review of the record we find that the issuing judge did not abuse his
discretion in finding good cause for the extension of time. Because the
inventory was in fact filed, the doctrine of United States v. Eastman, 465 F.2d
1057 (3d Cir. 1972), is not applicable. See, pp. 500-501, infra
4
"A wiretap can take up to several days or longer to install. Other forms or
devices may take even longer. The provision [Sec. 2518(5)] is intended to
recognize that each case must rest on its own facts." Senate Report, 1968
U.S.Code Cong. and Admin.News, at p. 2192
See also United States v. Averell, 296 F.Supp. 1004 (E.D.N.Y.1969) (two and
one-half year delay in filling warrant return and inventory)
Title III has as its dual purpose (1) protecting the privacy of wire and oral
communications, and (2) delineating on a uniform basis the circumstances and
conditions under which the interception of wire and oral communications may
be authorized. To assure the privacy of oral and wire communications, title III
prohibits all wiretapping and electronic surveillance by persons other than duly
authorized law enforcement officers engaged in the investigation or prevention
of specified types of serious crimes, and only after authorization of a court
order obtained after a showing and finding of probable cause
Senate Report, 1968 U.S.Code Cong. and Admin.News, at p. 2153.
In accord with our holding are United States v. Cox, 462 F.2d 1293 (8th Cir.
1972); United States v. Cox, 449 F.2d 679 (10th Cir. 1971). All of the other
district court cases hold that Title III is constitutional. United States v. Focarile,
340 F.Supp. 1033 (D.Md.1972); United States v. LaGorga, 336 F.Supp. 190
(W.D.Pa.1971); United States v. King, 335 F.Supp. 523 (S.D.Cal.1971); United
States v. Lawson, 334 F.Supp. 612 (E.D.Pa.1971); United States v. Becker, 334
F.Supp. 546 (S.D.N.Y.1971); United States v. Perillo, 333 F.Supp. 914
(D.Del.1971); United States v. Leta, 332 F.Supp. 1357 (M.D.Pa.1971); United
States v. Scott, 331 F.Supp. 233, 238-241 (D.D.C.1971); United States v.
Cantor, 328 F.Supp. 561 (E.D.Pa.1971); United States v. Sklaroff, 323 F.Supp.
11
Mr. Henderson were technically incorrect, any possible error was cured by the
disclosure of the other wiretap by the affidavit incorporated in the application.
12
13