United States v. Williams , 124 F.3d 411 ( 1997 )

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
8-26-1997
United States v. Williams
Precedential or Non-Precedential:
Docket
96-3629,96-3661
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Recommended Citation
"United States v. Williams" (1997). 1997 Decisions. Paper 208.
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Filed August 26, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 96-3629, 96-3661,
and 96-3666
UNITED STATES OF AMERICA
v.
SALVATORE A. WILLIAMS,
a/k/a "Sonny"
SALVATORE A. WILLIAMS,
Appellant No. 96-3629
UNITED STATES OF AMERICA
v.
SALVATORE C. WILLIAMS,
a/k/a "Sal"
SALVATORE C. WILLIAMS,
Appellant No. 96-3661
UNITED STATES OF AMERICA
v.
ADOLPH WILLIAMS,
a/k/a "Junior"
Adolph Williams,
Appellant No. 96-3666
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(Criminal Action Nos. 95-00092-4, 95-00092-1,
95-00092-2)
Argued June 16, 1997
Before: COWEN, ALITO, and SEITZ, Circuit Judges
(Opinion Filed: August 26, 1997)
Frederick W. Thieman
United States Attorney
Paul J. Brysh (Argued)
Office of United States Attorney
633 United States Post Office
& Courthouse
Pittsburgh, PA 15219
Attorneys for Appellee
Bruce A. Antkowiak (Argued)
31 North Main Street
Greensburg, PA 15601
Attorney for Salvatore A. Williams
J. Alan Johnson (Argued)
Swensen, Perer & Johnson
Two PNC Plaza
Suite 2710
Pittsburgh, PA 15222
Attorney for Salvatore C. Williams
and Adolf Williams
Thomas A. Livingston
Plunkett & Cooney
600 Grant Street
Suite 3000
Pittsburgh, PA 15219
Attorney for Salvatore C. Williams
2
OPINION OF THE COURT
ALITO, Circuit Judge:
Salvatore A. Williams, Salvatore C. Williams, and Adolph
Williams (the "defendants") entered conditional pleas of
guilty to offenses related to the operation of an illegal
gambling business. On appeal, they contest the district
court's denial of pretrial motions, including motions to
suppress the evidence derived from electronic oral and
video surveillance1 and evidence obtained in a search of
Adolph Williams's home. We affirm.
I.
The illegal gambling operation that resulted in the
defendants' convictions began in the 1960's. In initially
investigating the operation, the Pennsylvania State Police
utilized a confidential informant and conducted physical
surveillance of an office located at 1420 Fifth Avenue,
Pittsburgh (the "Fifth Avenue premises") that was believed
to serve as the operation's headquarters. Concluding that
these investigative techniques were insufficient, the District
Attorney of Allegheny County filed applications in the
Superior Court of Pennsylvania under the state Wiretapping
and Electronic Surveillance Control Act, 18 Pa. Cons. Stat.
Ann. SS 5701-26, seeking authorization for the state police
to conduct electronic oral and video surveillance of two
rooms of those premises. The applications were supported
by an affidavit of two Pennsylvania State Troopers who
explained some of the evidence already gathered by other
means and the basis for their belief that electronic oral and
video surveillance were necessary. Some of the information
contained in the affidavit was provided by the confidential
informant who had worked within the organization for
_________________________________________________________________
1. We use the phrase "electronic oral surveillance" as shorthand for the
interception of wire, electronic, or oral communications within the
meaning of Title III of the Omnibus Crime Control and Safe Streets Act
of 1968, 18 U.S.C. SS 2510-20, and the Pennsylvania Wiretapping and
Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. SS 5701-26.
3
seven years. The affidavit further stated that the state
police were conducting the investigation in conjunction with
the Federal Bureau of Investigation. A. 50-124. 2
On June 26, 1991, Judge Justin M. Johnson of the
Superior Court signed an order authorizing electronic oral
surveillance of the Fifth Avenue premises for a period of 30
days. He denied the request for video surveillance
authorization, believing that the state wiretapping statute
did not empower a Superior Court judge to authorize video
surveillance, but he provided that his orders were"entered
without prejudice to the applicant seeking further
additional relief in the appropriate Court of Common Pleas."3
A. 18(d). Accordingly, the next day, the District Attorney
filed an application for video surveillance in the Court of
Common Pleas of Allegheny County. This application was
supported by the same affidavit as the application for
electronic oral surveillance previously filed in the Superior
Court. Court of Common Pleas Judge Robert Dauer granted
the application and authorized video surveillance of the
same two rooms for a period of 30 days. After 30 days
passed, the District Attorney requested and received
extensions for both orders from the respective courts. All
electronic oral and video surveillance of the Fifth Avenue
premises ended on Friday, August 9, 1991. On Monday
morning, August 12, 1991, the tapes of the surveillance
were sealed.
In May 1993, the United States Attorney for the Western
District of Pennsylvania applied to a federal magistrate
judge for a search warrant for the residence of Adolph
Williams at 274 Foxcroft Road, Pittsburgh (the "Foxcroft
Road residence"). The application was supported by an
_________________________________________________________________
2. "A." denotes the one-volume Appendix submitted by Salvatore A.
Williams.
3. Under the state wiretapping statute, an application for authorization
to conduct electronic audio surveillance must be made to a judge of the
Superior Court, see 18 Pa. Cons. Stat. Ann.S 5708. Judge Johnson
apparently concluded that his authority under the state wiretapping
statute did not extend to video surveillance and that an application to
conduct such surveillance should therefore be made to a judge of the
Court of Common Pleas, the state trial-level court.
4
affidavit executed jointly by a Special Agent of the FBI and
a Pennsylvania State Trooper who were involved in the
investigation. The affidavit stated that physical surveillance
had revealed that an individual associated with the
operation took betting slips twice daily from a location on
Fifth Avenue, Pittsburgh, to the Foxcroft Road residence.
The affidavit related that in an intercepted comment Adolph
Williams had said that he would take the gambling
proceeds to his home for safekeeping, and the affidavit
added that the confidential informant had learned that
Adolph Williams had a hiding place in his residence that
was used for storing records. On May 25, 1993, the
magistrate judge issued the search warrant. The search
was conducted on that day and resulted in the seizure of
currency, gambling records, and other evidence.
The office of the United States Attorney for the Western
District of Pennsylvania presented the case to a federal
grand jury, and some of the electronically intercepted
evidence was disclosed to the grand jury, even though no
court order specifically authorizing such disclosure had
been obtained. Some of this same evidence was also
disclosed to agents with the Criminal Investigation Division
of the Internal Revenue Service. A. 317.
The grand jury returned a 27-count indictment, charging
conspiracy and various gambling and income tax offenses.
The defendants moved to suppress much of the evidence
intercepted through the electronic oral and video
surveillance, as well as the evidence seized from the search
of the Foxcroft Road residence. The district court initially
suppressed evidence derived from the oral and video
surveillance on the ground that it exceeded the periods
authorized by the state court judges. The government
appealed, and we reversed in an unpublished opinion,
holding that the district court had misinterpreted the state
court orders. United States v. Williams, No. 95-3529 (3d
Cir. May 20, 1996). On remand, the defendants all entered
conditional guilty pleas that preserved for appeal the
district court's denial of their other pretrial motions.
Salvatore A. Williams pleaded guilty to one count of
violating 18 U.S.C. S 371 by conspiring to conduct an illegal
gambling business in contravention of 18 U.S.C.S 1955(a).
5
He was sentenced to one month of imprisonment and two
years of probation. Salvatore C. Williams and Adolph
Williams pleaded guilty to conducting an illegal gambling
business, in violation of 18 U.S.C. SS 1955 and 2, and to
one count of violating 18 U.S.C. S 371 by conspiring to
defraud the United States of wagering tax revenue. They
were sentenced to 15-month terms of imprisonment and
three-year terms of supervised release, and they were fined
$40,000 and $4,000, respectively. The defendants then took
this appeal.
On appeal, the defendants contend (1) that the district
court erred in refusing to suppress the video surveillance
evidence because that surveillance was conducted in
violation of the Fourth Amendment; (2) that the evidence
seized from Adolph Williams's home should have been
suppressed because the warrant was not supported by
probable cause; (3) that the charges under 18 U.S.C.S 1955
should have been dismissed because those charges were
based on violations of Pennsylvania gambling statutes that
violate the Equal Protection Clause; (4) that the district
court erred in refusing to suppress the electronically
intercepted oral evidence because the Pennsylvania
wiretapping statute does not comply with the certain
requirements of Title III of the federal Omnibus Crime
Control and Safe Streets Act of 1968, 18 U.S.C.SS 2510-
2520 ("Title III"); (5) that the district court erred in refusing
to suppress the electronically intercepted oral evidence
because it was disclosed in violation of 18 Pa. Cons. Stat.
Ann. SS 5718 and 5717(a); (6) that the district court erred
in refusing to suppress the electronically intercepted oral
evidence because there was no necessity for the use of this
investigative technique, as is required by 18 Pa. Cons. Stat.
Ann. S 5709(3)(vii) and 18 U.S.C. S 2518(1)(c); (7) that the
extension of the period of electronic surveillance was
unjustified and that the evidence obtained as a result
should have been suppressed; and (8) that the district
court erred in refusing to suppress the electronically
intercepted oral evidence because the tapes were not timely
sealed as required by Title III and the state wiretapping
statute.4
_________________________________________________________________
4. The first four arguments are raised in the joint brief submitted on
behalf of Salvatore C. Williams and Adolph Williams; citations to "Jt.
Br."
6
II.
We turn first to the defendants' argument that the video
surveillance of the Fifth Avenue premises violated the
Fourth Amendment and that the evidence resulting from
this surveillance should have been suppressed. The
defendants do not contend that either Title III or the
Pennsylvania wiretapping statute authorizes or prohibits
video surveillance. Instead, they base their arguments on
the understanding of the governing legal principles set out
in United States v. Torres, 751 F.2d 875 (7th Cir. 1984). In
Torres, the Seventh Circuit held, among other things, that
Title III has no application to video surveillance, id. at 880-
82; that a federal district court has the authority, either
under Federal Rule of Criminal Procedure 41 or by virtue of
its inherent powers, to issue a warrant for video
surveillance, id. at 877-80; that video surveillance is a
search governed by the Fourth Amendment, id. at 882; and
that if the government conducts video surveillance in
conformity with certain requirements of Title III, including
the requirement of judicial certification that"normal
investigative procedures have been tried and have failed or
reasonably appear to be unlikely to succeed if tried or to be
too dangerous," 18 U.S.C. S 2518(3)(c), then the government
has also conformed to the related requirements contained
in the Fourth Amendment's warrant clause, 751 F.2d at 882.5
No party in this appeal contests any of these principles,
and therefore we will assume their validity for present
purposes.
_________________________________________________________________
refer to that joint brief. The final four arguments are raised in the
brief
filed on behalf of Salvatore A. Williams; citations to "SAW Br." refer to
his
brief. Each brief incorporates by reference the arguments raised in the
other.
5. Other courts of appeals have taken a similar approach. See United
States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994); United States v. Mesa-
Rincon, 911 F.2d 1433, 1437 (10th Cir. 1990); see also United States v.
Koyomejian, 970 F.2d 536, 542 (9th Cir.), cert. denied, 506 U.S. 1005(1992); United States v. Cuevas-Sanchez, 821 F.2d 248, 252 (5th Cir.
1987); United States v. Biasucci, 786 F.2d 504, 510 (2d Cir.), cert.
denied, 479 U.S. 827 (1986).
7
A. The defendants contend that the video surveillance in
this case was "unreasonable" within the meaning of the
Fourth Amendment because the nature of the crimes under
investigation did not justify the use of such an intrusive
investigative technique. In making this argument, the
defendants rely on certain statements in Torres . While
upholding the video surveillance in that case, which
targeted "safe houses" in which it was believed that a
terrorist group was assembling bombs, the Torres court
wrote:
The usual way in which judges interpreting the Fourth
Amendment take account of the fact that searches vary
in the degree to which they invade personal privacy is
by requiring a higher degree of probable cause (to
believe that the search will yield incriminating
evidence), and by being more insistent that a warrant
be obtained if at all feasible, the more intrusive the
search is. But maybe in dealing with so intrusive a
technique as television surveillance, other methods of
control as well, such as banning the technique outright
from use in the home in connection with minor crimes,
will be required, in order to strike a proper balance
between public safety and personal privacy. That
question is not before us, but we mention it to make
clear that in declining to hold television surveillance
unconstitutional per se we do not suggest that the
Constitution must be interpreted to allow it to be used
as generally as less intrusive techniques can be used.
751 F.2d at 882-83 (emphasis added) (citations omitted).
Relying on these remarks, the defendants maintain that
their offenses were not sufficiently serious to justify video
surveillance. However, the video surveillance in this case
was not conducted in a "home," and the order authorizing
the video surveillance was based on a finding that the
defendants had committed, were committing, and would
continue to commit first-degree felonies, which are
punishable by imprisonment for up to 20 years.6 Thus,
_________________________________________________________________
6. The video surveillance authorization order referred to violations of 18
Pa. Cons. Stat. Ann. S 911 (which pertains to"corrupt organizations" and
8
even the equivocal and limited Torres dicta does not
support reversal.
We note that every court of appeals that has addressed
video surveillance has held that video surveillance
conforming to the standards set out in Title III is
constitutional, and we have found no case that suggests
that the application of these standards depends upon the
nature of the crime or crimes under investigation. Title III
standards were applied in every case, covering a range of
crimes from counterfeiting to drug distribution to
loansharking. E.g., Falls, 34 F.3d 674 (conspiracy to
distribute cocaine, distribution of cocaine, and related
charges); Koyomejian, 970 F.2d 536 (money laundering);
Mesa-Rincon, 911 F.2d 1433 (counterfeiting); Cuevas-
Sanchez, 821 F.2d 248 (possession of marijuana with intent
to distribute); Biasucci, 786 F.2d 504 (loansharking). For
these reasons alone, we reject the defendants' argument
here.
Moreover, we are skeptical of the defendants' general
suggestion that a judicial officer, in deciding whether to
issue a search warrant or in reviewing the issuance of a
search warrant, should take into account his or her own
evaluation of the seriousness of the felony or felonies under
investigation. Other than the Torres dicta, the defendants
cite no authority that provides any support for this
proposition. In considering the reasonableness of a search
or seizure, it is sometimes appropriate for a court to
balance "the public interest and the individuals's right to
personal security free from arbitrary interference by law
officers." United States v. Brignoni-Ponce , 422 U.S. 873, 878
(1975); see also Maryland v. Wilson, 117 S. Ct. 882, 885
(1997). But it does not follow that a judicial officer, in
weighing the public interest, may properly take into
account his or her personal opinion regarding the need for
_________________________________________________________________
is a first-degree felony) and a conspiracy to commit that offense (and
others), 18 Pa. Cons. Stat. Ann. S 903, which is also a first-degree
felony.
See 18 Pa. Cons. Stat. Ann. S 905(a). Afirst-degree felony is punishable
by imprisonment for not more than 20 years. 18 Pa. Cons. Stat. Ann.
S 1103(1). The order also referred to one misdemeanor, a violation of 18
Pa. Cons. Stat. Ann. S 5512, which concerns illegal lotteries.
9
or the importance of the criminal provisions that appear to
have been violated. Like other citizens, judicial officers
differ in their views regarding the seriousness of certain
criminal offenses. If judicial officers were permitted to take
their personal opinions on these matters into account in
deciding whether a particular search was reasonable, the
meaning of reasonableness under the Fourth Amendment
would vary significantly depending on the particular
judicial officer before whom the question was presented.
The defendants here characterize their gambling offenses
as relatively benign, and there are undoubtedly those who
would agree with this characterization. But that view of
illegal gambling is not universal. In enacting Title III,
Congress thought that gambling offenses were sufficiently
serious to include them among the crimes in the
investigation of which it is permissible to employ
wiretapping and bugging, investigative techniques that
result in a serious invasion of personal privacy. See 18
U.S.C. S 2516(1)(c) (permitting federal wiretapping or
bugging to investigate illegal transmission of wagering
information and operation of gambling enterprises); and id.S 2516(2) (permitting state wiretapping and bugging to
investigate gambling offenses). Congress also has made it a
felony, punishable by up to five years' imprisonment, to
conduct, finance, manage, supervise, direct, or own all or
part of an illegal gambling business. 18 U.S.C.S 1955. And
Congress has designated violations of this provision as
predicate offenses under the money laundering statute, id.S 1956, and the RICO statute, id.S 1961, which carry even
more substantial penalties. In treating gambling offenses in
this way, Congress has plainly concluded that certain
gambling offenses are serious crimes,7 and it is not for us
to review the correctness of this evaluation.
_________________________________________________________________
7. In reaching this conclusion, Congress was undoubtedly influenced by
its recognition that gambling has historically provided a major source of
revenue for organized crime groups. See President's Commission on
Organized Crime, The Impact: Organized Crime Today 12-13 (1986);
President's Commission on Law Enforcement Administration of Justice,
The Challenge of Crime in a Free Society 188 (1967); cf. The National
Gambling Impact Study Commission Act, Pub. L. 104-169, 110 Stat.
1482 (1996) (establishing federal commission to conduct a
comprehensive study of the social and economic impacts of gambling in
the United States).
10
In sum, we reject the defendants' argument that the
video surveillance in this case violated their Fourth
Amendment rights on the ground that the offenses under
investigation were insufficiently serious to justify the use of
this intrusive investigative tool.
B. The defendants next assert that the video
surveillance of the Fifth Avenue premises failed to meet
Title III's requirement that "normal investigative procedures
have been tried and have failed or reasonably appear to be
unlikely to succeed if tried or are too dangerous." See 18
U.S.C. S 2518(3)(c). Specifically, the defendants argue that
the application was defective because it did not state why
electronic oral interception could not have been used before
resorting to video surveillance. As a result, they argue that
the video surveillance violated the Fourth Amendment as
well.
In Title III cases, courts have consistently held that 18
U.S.C. S 2518(3)(c) does not require the government to
exhaust all other investigative procedures before resorting
to electronic surveillance. See United States v. Barnes, 47
F.3d 963, 965 (8th Cir. 1995); Falls, 34 F.3d at 682; Mesa-
Rincon, 911 F.2d at 1443; United States v. Apodaca, 820
F.2d 348, 350 (10th Cir.), cert. denied, 484 U.S. 903 (1987);
United States v. Webster, 734 F.2d 1048, 1055 (5th Cir.),
cert. denied sub nom., Hoskins v. United States, 469 U.S.
1073 (1984). Rather, it is sufficient if there is evidence that
"normal investigative techniques . . . reasonably appear to
be unlikely to succeed if tried." 18 U.S.C. S 2518(3)(c). "The
government need only lay a `factual predicate' sufficient to
inform the judge why other methods of investigation are not
sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d
Cir.) (quoting United States v. Armocida, 515 F.2d 29, 38
(3d Cir.), cert. denied sub nom., Conti v. United States, 423
U.S. 858 (1975)); cert. denied sub nom., Hauser v. United
States, 506 U.S. 956 (1992). Furthermore, in determining
whether this requirement has been satisfied, a court "may
properly take into account affirmations which are founded
in part upon the experience of specially trained agents."
United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir.
1989); see also United States v. Landmesser, 553 F.2d 17,
20 (6th Cir.), cert. denied, 434 U.S. 855 (1977). "The
11
government's showing is to be `tested in a practical and
commonsense fashion.' " McGlory, 968 F.2d at 345 (quoting
United States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976)).8
Since the defendants contend that the Fourth
Amendment should be held to require compliance with 18
U.S.C. S 2518(3)(c) in video surveillance cases, we see no
reason why the rules developed in cases in which that
provision is directly applicable should not be applied here
as well, and it appears that other courts of appeals in video
surveillance cases have taken on this approach. Our review
of those cases shows that the inadequacy of other
investigative techniques has been proven by demonstrating
such factors as the inability of a confidential informant to
gather additional information, the futility of electronic oral
surveillance where the crime was being committed in
silence, the use of evasive tactics by the investigation's
targets, and the difficulty of penetrating an organization
with a secretive nature and a propensity towards violence.
For example, in Falls, the affidavit stated that a
government informant who had been successful in getting
information in the past would no longer be helpful because
she was not privy to the drug distribution group's sources,
the extent of the operation, or its method of distributing the
proceeds. 34 F.3d at 677. The affidavit further stated that
her access to the group's meeting place was limited by
safety concerns. Id. The affidavit named and discussed a
total of seven investigative techniques that had been tried
or appeared too dangerous or unlikely to succeed in light of
the drug conspiracy's secretive nature and propensity
towards violence. Id. at 683. These affirmations were held
to be sufficient to demonstrate the inadequacy of other
investigative techniques. Id.In Mesa-Rincon, the government submitted an affidavit
asserting that audio surveillance was not feasible because
the crime, counterfeiting, could be committed without oral
communication and because the noise of the printing
presses drowned out any conversation. 911 F.2d at 1444.
The affidavit also stated that interrogation and infiltration
_________________________________________________________________
8. Our standard of appellate review is plenary. United States v. McGlory,
968 F.2d at 345.
12
of the operation were not viable alternatives, because either
technique would have aroused suspicion and prevented the
successful completion of the investigation. Id. In addition,
the affidavit asserted that a traditional search would
likewise have been unfruitful, because it was "quite likely
that the key evidence of actual counterfeit bills might not
be found." Id. at 1445. Under these circumstances, the
court held that the government had satisfactorily
demonstrated that other investigative techniques were
inadequate. See also Biasucci, 786 F.2d at 511 (affidavit
sufficient because it showed that some confidential sources
refused to testify, the undercover agent was not permitted
to be present at alleged loansharking transaction and at
meetings at the defendants' business premises, interviews
with victims were not feasible, search warrants and grand
juries were not expected to produce significant evidence,
and prior victims would be unlikely to testify for fear of
reprisals); Torres, 751 F.2d at 877 (affidavit sufficient
because it showed that FBI had reason to believe that the
people involved in the bomb construction operation, fearing
that they might be bugged, played the radio loudly when
they were speaking to one another, spoke in code, and built
the bombs in silence).
In the instant case, the affidavit stated that execution of
a search warrant was unlikely to succeed because it would
reveal the facts of the investigation to the targets. A. 55.
The affidavit noted that the probable cause affidavit would
have to be attached to the warrant when it was executed
and that this would cause the targets to take defensive
measures, which would impede the progress of the
investigation. A. 55. The affidavit also stated that since
organizations such as the one involved in this case are
highly suspicious of unfamiliar persons, the use of another
confidential informant would not have been fruitful. A. 56.
The affidavit stated that the confidential informant who had
been used previously, as well as physical surveillance and
the gathering of law enforcement intelligence information,
had been utilized to the fullest extent possible and that any
further use of such techniques might result in discovery. A.
59. The affidavit noted that the organization transacted its
business in private and via cellular phones, making it
difficult to investigate the organization and learn the
13
identities of upper echelon figures. A. 57-60. The affidavit
noted that the informant had said that some type of
electronic detection equipment might have been installed to
alert the targets to surveillance attempts. A. 58. Finally, the
affidavit stated:
Video surveillance is being requested in order to
further assist in identifying those subjects involved in
this alleged criminal activity. As enumerated within
this affidavit, there have been occasions where
numerous persons have been observed within the
building at one time. Video surveillance will enable
investigators to identify those subjects intercepted,
rather than attempting identification through less exact
means such as voice exemplars. In addition, video
surveillance will disclose any non-verbal criminal
activity, such as any actual "settle up" of monies
between those subjects monitored in this investigation.
A. 62. We believe that the affidavit provided a sufficient
"factual predicate" for a finding that "normal investigative
techniques" (i.e., techniques other than video surveillance)
were unlikely to succeed. We also conclude that the
affidavit, read in a "practical and commonsense fashion,"
sufficiently showed the need for video surveillance. There
was probable cause to believe that what was occurring at
the premises was the actual operation of an illegal gambling
business, not simply conversations about or in furtherance
of that business. Thus, as was the case in Mesa-Rincon,
audio surveillance alone was not likely to disclose the
identities of all of the participants and what they were
doing. While it would not be advisable to use the
application as a model in future video surveillance cases,
we hold that it satisfies constitutional requirements under
the circumstances here. We therefore affirm the district
court's denial of defendants' suppression motion on this
ground.
III.
The defendants argue that the search of the Foxcroft
Road residence belonging to Adolph Williams violated the
Fourth Amendment because the information used to
14
establish probable cause was stale and remote. The
defendants contend that very little of the information
contained in the supporting affidavit demonstrated a nexus
between the gambling operation and the Foxcroft Road
residence, and they argue that any information suggesting
such a connection was obtained from a confidential
informant who ceased working for the principals in the
mid-1980's. Thus, the defendants contend, the information
was stale.
Probable cause is determined by a "totality-of-the-
circumstances analysis," under which a magistrate judge
must "make a practical, commonsense decision whether,
given all the circumstances set forth in the affidavit before
him . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place."
Illinois v. Gates, 462 U.S. 213, 238 (1983). In reviewing
such a determination, our role is quite limited. We must
simply decide whether the magistrate judge had a
substantial basis for concluding that probable cause
existed. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.
1993), cert. denied, 510 U.S. 1177 (1994). Therefore, "a
reviewing court is to uphold the warrant as long as there is
a substantial basis for a fair probability that evidence will
be found." Id. (footnote omitted).
The supporting affidavit to a search warrant application
must be read in its entirety and in a common sense and
nontechnical manner. Id. at 1206. The affidavit need not
contain direct evidence that proof of wrongdoing would be
present at the premises. Id. at 1207. "Instead, probable
cause can be, and often is, inferred by `considering the type
of crime, the nature of the items sought, the suspect's
opportunity for concealment and normal inferences about
where a criminal might hide [the] property.' " Id. (quoting
United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.
1993)). The focus should be on what the affidavit includes,
rather than on what it does not include. Id. at 1208.
The age of the information supporting a warrant
application is a factor that must be considered in
determining probable cause. United States v. Harvey, 2
F.3d 1318, 1322 (3d Cir. 1993). If information is too old, it
may have little value in showing that contraband or
15
evidence is still likely to be found in the place for which the
warrant is sought. Id. Age alone, however, does not
determine staleness. "The likelihood that the evidence
sought is still at the place to be searched depends on a
number of variables, such as the nature of the crime, of the
criminal, of the thing to be seized, and of the place to be
searched." United States v. Tehfe, 722 F.2d 1114, 1119 (3d
Cir. 1983), cert. denied sub nom., Sanchez v. United States,
466 U.S. 904 (1984). "[W]hen an activity is of a protracted
and continuous nature, `the passage of time becomes less
significant.' " Id. (quoting United States v. Harris, 482 F.2d
1115, 1119 (3d Cir. 1973)). Thus, when the criminal
activity has been going on continuously for years, staleness
is of less concern. Id. at 1120 (staleness did not negate
probable cause in drug trafficking conspiracy that had been
going on for several years).
In this case, the gambling operation began in the 1960's
and continued through the 1990's. In light of its long and
continuous operation, staleness is less important in the
probable cause analysis. See Tehfe, 722 F.2d at 1120. The
affidavit submitted in support of the warrant application
contained information, obtained from the confidential
informant and from physical surveillance, that suggested
that gambling evidence would be found at the Foxcroft
Road residence. The affidavit also related various
electronically intercepted statements made at the Fifth
Avenue premises that indicated that evidence would likely
be found at the Foxcroft Road residence.
The confidential informant, who had worked with the
defendants for several years until the mid-1980's, reported
that he knew of secret hiding places in the residence. Jt.
App. 499.9 He also reported that Adolph Williams had once
told him about a hidden room in the basement of the house
that was used to conceal records. Jt. App. 499. The
informant stated that he knew through conversations with
other individuals involved in gambling that Adolph Williams
was still running the operation. Jt. App. 499. Electronic
surveillance conducted in July 1991 revealed that Salvatore
_________________________________________________________________
9. "Jt. App." refers to the appendix submitted on behalf of Salvatore C.
Williams and Adolph Williams.
16
C. Williams expressed concern about leaving money at the
Fifth Avenue premises, and Adolph Williams stated that he
would take the money home with him. Jt. App. 494.
Physical surveillance conducted between December 1992
and April 1993 revealed that an individual took a pouch
believed to contain numbers slips on a twice-daily basis
from a gym located on Fifth Avenue to another location and
then to the Foxcroft Road residence, where he would stay
for up to one hour. Jt. App. 501-05. Thus, the surveillance,
which ended in April 1993, indicated that the suspected
criminal activity continued until at least a few weeks before
the search was conducted on May 25, 1993. The fact that
evidence of the suspected criminal activity continued up
through the last weeks before the search strongly suggests
that the information in the affidavit was not stale.
In light of the protracted nature of this criminal
enterprise, we conclude that the magistrate judge had a
substantial basis for concluding that there was probable
cause to believe that records, numbers slips, or large
amounts of money would be found at the Foxcroft Road
residence. As the government points out, "[t]he primary
evidence sought was records, which are generally created
for the very purpose of preservation." Govt. Br. at 45. The
informant's information regarding a secret room in the
basement also provided support for a probable cause
finding, since it is likely that the use of such a permanent
and specialized feature would continue for a lengthy period.
Furthermore, the daily movement of an individual with a
bag from a Fifth Avenue location to the Foxcroft Road
residence strongly suggested that the contents of that bag,
believed to be gambling receipts, might be found at the
residence. For these reasons, we see no basis for
overturning the magistrate judge's probable cause
determination.
Moreover, even if we held that probable cause was
lacking, suppression of the evidence obtained pursuant to
the warrant would not be justified under United States v.
Leon, 468 U.S. 897 (1984). Although the defendants
maintain that the affidavit in this case was "so lacking in
indicia of probable cause as to render official belief in its
existence entirely unreasonable," id. at 923 (citation
17
omitted), that argument is patently wrong. We therefore
affirm the district court's denial of defendants' motion to
suppress the evidence obtained as a result of the search of
the Foxcroft Road residence.
IV.
The defendants argue that the district court should have
dismissed counts one and two of the indictment on equal
protection grounds. These counts charged that the
defendants conspired to and did in fact violate 18 U.S.C.
S 1955 by conducting a gambling business in violation
of a Pennsylvania statute, 18 Pa. Cons. Stat. Ann.S 5514,
that prohibits "pool selling," "bookmaking," and related
activities. The defendants contend that this Pennsylvania
statute violates the Equal Protection Clause because it
prohibits some forms of gambling while other state laws
authorize other forms of gambling such as the state lottery.
Taken together, the defendants maintain, these laws create
a disparity of treatment between "entities which engage in
state-authorized gambling" and "entities which engage in
gambling not authorized by the state." Jt. Br. at 36. The
defendants contend that 18 Pa. Cons. Stat. Ann.S 5514 is
subject to strict scrutiny because it "impinges upon the
exercise of certain fundamental rights," namely,"the right
to hold specific private employment," "the right to enter
contracts," and "the right of association for economic and
social reasons." Id. at 36. The defendants argue that the
only interest ever served by 18 Pa. Cons. Stat. Ann.S 5514
was "preventing the inflammation of the gambling instinct,"
that the Commonwealth no longer views this as an
important interest and indeed now has an interest in
"encouraging the gambling instinct" (id. at 29), and that
therefore 18 Pa. Cons. Stat. Ann. S 5514 cannot survive any
degree of equal protection scrutiny.
Before addressing the merits of defendants' equal
protection argument, we must determine the standard that
governs our analysis. "[A]s a general matter, economic and
social legislation is subject to rational basis review, under
which a law need only be rationally related to a legitimate
state interest." Tolchin v. Supreme Court of New Jersey, 111
F.3d 1099, 1113 (3d Cir. 1997) (internal quotations
18
omitted). However, suspect classifications, such as those
based on race, national origin, or alienage, and
"classifications affecting fundamental rights are given the
most exacting scrutiny." Clark v. Jeter, 486 U.S. 456, 461
(1988) (citation omitted). Such laws must be "suitably
tailored to serve a compelling state interest." City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985);
see also Artway v. Attorney General of New Jersey , 81 F.3d
1235, 1267 (3d Cir. 1996).
For equal protection purposes, "fundamental rights"
include such constitutional rights as the right of interstate
travel, Shapiro v. Thompson, 394 U.S. 618 (1969), the right
to vote, Bullock v. Carter, 405 U.S. 134 (1972), rights
guaranteed by the First Amendment, Williams v. Rhodes,
393 U.S. 23 (1968), and the right to procreate, Skinner v.
Oklahoma, 316 U.S. 535 (1942). See Massachusetts Bd. of
Retirement v. Murgia, 427 U.S. 307, 312 n.3 (1976) (per
curiam). However, the rights asserted by the defendants
here do not qualify for strict scrutiny.
As noted, the defendants claim that 18 Pa. Cons. Stat.
Ann. S 5514 affects their "right to hold specific private
employment." However, it is settled that laws restricting
access to specific types of private employment are subject
to only rational basis review. See, e.g., Leis v. Flynt, 439
U.S. 438, 444 n.5 (1979) (practice law); Schware v. Board
of Bar Examiners, 353 U.S. 232 (1957) (same); Williamson
v. Lee Optical of Oklahoma, Inc., 348 U.S. 483 (1955) (fitting
or duplicating eyeglass lenses); Kotch v. Board of River Port
Pilot Comm'rs, 330 U.S. 552 (1947) (pilotage of vessels); see
also Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir. 1987)
("The Constitution does not create fundamental interests in
particular types of employment."). Thus, we cannot subject
18 Pa. Cons. Stat. Ann. S 5514 to strict scrutiny on this
basis.
Nor is strict scrutiny justified on the ground that this
provision affects the defendants' right to enter into
contracts (whether wagering contracts or other contracts
related to the operation of a gambling business) or on the
ground that it affects their "right of association for
economic and social reasons." Jt. Br. at 29. All laws
restricting access to particular types of private employment
19
have these effects. For example, in Williamson , a state
statute permitted only licensed optometrists and
opthamologists to fit or duplicate eyeglass lenses. Not only
did this law affect the ability of persons not within the
favored groups to obtain this particular type of private
employment, but it also affected their ability to enter into a
variety of contracts, such as contracts of employment to fit
or duplicate lenses and contracts with customers for the
fitting or duplication of lenses. Likewise, the law challenged
in Williamson affected the ability of persons not in the
favored groups to associate with others for the purpose of
fitting or duplicating lenses. Yet the Supreme Court
subjected the law at issue in Williamson to only rational
basis review. See 348 U.S. at 489. We are therefore
persuaded that this same standard of review applies here.
Under this standard, "a law need only be rationally
related to a legitimate state interest," Tolchin, 111 F.3d at
1113 (internal quotation omitted), and 18 Pa. Cons. Stat.
Ann. S 5514 easily satisfies this requirement. In prohibiting
certain gambling activities but not others, Pennsylvania
lawmakers could have rationally concluded that the
prohibited activities are particularly undesirable-- because
they have an increased tendency to encourage self-
destructive behavior, because they are especially
susceptible to the dishonest practices and organized crime
connections that have historically plagued the gambling
business, or for other reasons. As the Court wrote in
Williamson:
Evils in the same field may be of different dimensions
and proportions, requiring different remedies. Or so the
legislature may think. Or the reform may take one step
at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind. The
legislature may select one phase of one field and apply
a remedy there, neglecting the others.
348 U.S. at 489 (citations omitted); see also Commonwealth
v. Hainsey, 550 A.2d 207, 209 (Pa. Super. Ct. 1988)
(rejecting argument that enforcement of 18 Pa. Con. Stat.
Ann. S 5514, prohibiting pool selling and bookmaking, is
unjust because the Commonwealth promotes the state
lottery and condones wagering at rack tracks; S 5514 was
20
"enacted as a legitimate exercise of legislative authority.").
We conclude that S 5514 is rationally related to a legitimate
state interest, and we therefore reject the defendants' equal
protection challenge.
V.
The defendants next argue that the oral evidence
electronically intercepted from the Fifth Avenue premises
should have been suppressed because the Pennsylvania
statute under which the authorization was obtained does
not comply with 18 U.S.C. S 2518. The defendants contend
that the state statute is deficient in that it permits a law
enforcement officer to swear out the supporting affidavit
used to establish that there is probable cause for the
interception and that other investigative procedures are
inadequate. The defendants maintain that the federal
statute requires "the attorney for the government" to make
such assertions. SAW Br. at 12. This distinction is critical,
the defendants contend, because approval and oversight by
government attorneys provides an `administrative check' to
avoid arbitrary invasions of privacy rights by government
officials." Id. at 13.
The defendants' argument is based on a misreading of
the relevant provisions of Title III. When an order
permitting electronic interception of wire or oral
communications is sought in federal court, the application
must be authorized by certain high-ranking Justice
Department officials, 18 U.S.C. S 2516(1), but the
application need not be made by a government attorney.
Section 2518(1) provides in pertinent part:
Each application for an order authorizing or approving
the interception of a wire, oral, or electronic
communication under this chapter shall be made in
writing upon oath or affirmation to a judge of
competent jurisdiction and shall state the applicant's
authority to make such application. Each application
shall include the following information:
(a) the identity of the investigative or law enforcement
officer making the application, and the officer
authorizing the application;
21
(b) a full and complete statement of the facts and
circumstances relied upon by the applicant, to justify
his belief that an order should be issued, including (i)
details as to the particular offense that has been, is
being, or is about to be committed, (ii) . . . a particular
description of the nature and location of the facilities
from which or the place where the communication is to
be intercepted, (iii) a particular description of the type
of communications sought to be intercepted, (iv) the
identity of the person, if known, committing the offense
and whose communications are to be intercepted;
(c) a full and complete statement as to whether or not
other investigative procedures have been tried and
failed or why they reasonably appear to be unlikely to
succeed if tried or to be too dangerous . . .
18 U.S.C. S 2518 (emphasis added).
As is evident from the highlighted language, S 2518 does
not require that an application be made by an attorney;
instead, such an application may be made by an
"investigative or law enforcement officer." Nor does S 2518
require a statement by a government attorney regarding the
attorney's belief that an interception order should be
issued; instead, the statute requires a statement regarding
the applicant's belief that such an order should be issued,
as well as "a full and complete statement" (by someone,
presumably including the applicant) as to the inadequacy of
other investigative techniques. Thus, there is no textual
requirement that an attorney for the government make
these statements, as the defendants contend.
The defendants cite no case law supporting the
proposition that a law enforcement officer's affidavit is
insufficient in a case in which federal court approval for
wiretapping or bugging is sought, and we have found no
such case. To the contrary, affidavits sworn out by law
enforcement officers have been held to be sufficient. See,
e.g., United States v. Kahn, 415 U.S. 143, 144 n.1 (1974)
(affidavit of FBI special agent); United States v. Falls, 34
F.3d 674, 676 (8th Cir. 1994) (affidavit of FBI special
agent); United States v. Ashley, 876 F.2d 1069, 1071 (1st
Cir. 1989) (affidavit of DEA special agent).
22
The Pennsylvania statute pursuant to which the
application in this case was made provides:
Each application for an order of authorization to
intercept a wire or oral communication shall be made
in writing upon the personal oath or affirmation of the
Attorney General or a district attorney of the county
wherein the interception is to be made and shall
contain all of the following:
(1) A statement of the authority of the applicant to
make such application.
(2) A statement of the identity and qualifications of
the investigative or law enforcement officers or agency
for whom the authority to intercept a wire or oral
communication is sought.
(3) A sworn statement by the investigative or law
enforcement officer who has knowledge of relevant
information justifying the application, which shall
include:
(i) The identity of the particular person, if known,
committing the offense and whose communications are
to be intercepted.
(ii) The details as to the particular offense that has
been, is being, or is about to be committed.
. . .
(iv) A showing that there is probable cause to
believe that such communication will be committed on
the wire communication facility involved or at the
particular place where the oral communication is to be
intercepted.
. . .
(vii) A particular statement of facts showing that
other normal investigative procedures with respect to
the offense have been tried and have failed, or
reasonably appear to be unlikely to succeed if tried or
are too dangerous to employ.
18 Pa. Cons. Stat. Ann. S 5709 (emphasis added). Thus,
under the Pennsylvania scheme, the application must be
23
made by the Attorney General or a district attorney and
must be supported by an affidavit of a law enforcement
officer.
As we have noted, when a federal court order is sought,
18 U.S.C. S 2518(1) does not require that a government
attorney execute the affidavit used to establish probable
cause and the inadequacy of other investigative techniques,
and we are not persuaded that Title III demands anything
more when an application is made to a state court. Under
18 U.S.C. S 2516(2), such an application must be made by
a state's "principal prosecuting attorney" or by "the
principal prosecuting attorney of any political subdivision
thereof," and the judge may grant the application"in
conformity with" S 2518. We do not interpret this provision
to require that an attorney make the statement supporting
probable cause or the inadequacy of other investigative
techniques. See United States v. Smith, 31 F.3d 1294, 1298
(4th Cir. 1994) (affidavit of police officer), cert. denied, 115
S. Ct. 1170 (1995); United States v. Homick, 964 F.2d 899,
903 (9th Cir. 1990) (affidavit of detective); United States v.
Young, 822 F.2d 1234, 1237 (2d Cir. 1987) (affidavit of
state police detective).
Furthermore, it is apparent that when the Attorney
General of Pennsylvania or a district attorney submits an
application to a state court and relies on an affidavit of a
law enforcement officer, the Attorney General or district
attorney, as an officer of the court, is implicitly representing
that it is his or her belief that there is probable cause for
the surveillance and that other investigative techniques are
inadequate. To be sure, the Attorney General or district
attorney makes that implicit representation in reliance on
the law enforcement officer's affidavit, but the same type of
reliance would almost certainly occur even if the Attorney
General or district attorney were to execute the affidavit.
Statements made by an affiant submitted in support of a
warrant may be based on information provided by others,
see Illinois v. Gates, 462 U.S. at 238, and it is unrealistic
to expect that a state attorney general or district attorney
will routinely acquire sufficient firsthand information about
the grounds for a warrant application so as to be able to
base his or her affidavit on anything other than information
24
relayed by field investigators and their supervisors. Thus,
we do not agree with the defendants that the Pennsylvania
scheme eliminates an important "administrative check."
VI.
The defendants contend that electronically intercepted
evidence from the Fifth Avenue premises was disclosed to a
federal grand jury in violation of provisions of the
Pennsylvania Wiretapping and Electronic Surveillance
Control Act, 18 Pa. Cons. Stat. Ann. SS 5717(a) and 5718,
and that therefore this evidence should have been
suppressed.10 As we understand the defendants' argument,
it runs as follows. The order signed by the Superior Court
judge authorized the interception of conversations relating
to certain state offenses, viz., "offenses involving Corrupt
Organizations, 18 Pa. C.S. S 911; Lotteries, 18 Pa. C.S.
S 5512; and/or Conspiracy to commit the aforesaid
violations in violation of 18 Pa. C.S[.] S 903." Jt. App. 80.
Under 18 Pa. Cons. Stat. Ann. S 5718, when an authorized
interception of wire or oral communications intercepts
"communications relating to offenses other than those
specified in the order of authorization," these
communications and evidence derived from them may be
disclosed before a federal grand jury only if an application
to a court is made and the court makes certain findings "in
advance of such disclosure." Here, the government
_________________________________________________________________
10. The defendants also contend that evidence was improperly disclosed
to agents of the Internal Revenue Service's Criminal Investigation
Division, but the defendants do not explain the basis for this argument.
Under 18 U.S.C. S 2517(1), the Pennsylvania State Troopers authorized
by court order to intercept oral communications were permitted to
disclose the contents "to another investigative or law enforcement officer
to the extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or receiving the
disclosure." See United States v. Iannelli , 477 F.2d 999, 1001 (3d Cir.
1973) ("These Internal Revenue Service agents are investigative or law
enforcement officers within the meaning of 18 U.S.C. S 2510(7) and
disclosure was appropriate to the performance of their duties."), aff 'd,
420 U.S. 770 (1975). Therefore, based on the brief treatment given to the
issue of disclosure of evidence to IRS agents in the defendants' briefs,
we
see no ground for holding that this disclosure was improper.
25
acknowledged that portions of the intercepted
communications were presented to a federal grand jury
without a prior authorization order. See Govt. Br. at 18-19.
Based on these facts, the defendants argue that this
disclosure violated 18 Pa. Cons. Stat. Ann. S 5718, that
suppression was required under Commonwealth v. Hashem,
584 A.2d 1378 (Pa. 1991), and that this state rule of
suppression is applicable in this federal case because "a
Title III type interception conducted under State law and
proposed to be used in a federal court must meet any state
standards which are `more demanding than federal ones' in
the district in which the offer is made." SAW Br. at 14-15
(quoting United States v. Geller, 560 F. Supp. 1309, 1312
(E.D. Pa. 1983), aff 'd, 745 F.2d 49 (3d Cir. 1985) (table)).
It appears that the defendants are arguing that Title III
requires suppression when communications are intercepted
pursuant to a state statute and are subsequently disclosed
in violation of state law. However, it is also possible that the
defendants are arguing that the suppression remedy
provided by state law is directly applicable under these
circumstances in a federal case. We will therefore address
both arguments.
A. In considering the question of suppression under
federal law, two statutory provisions must be taken into
account. The first, 18 U.S.C. S 2515, states:
Whenever any wire or oral communication has been
intercepted, no part of the contents of such
communication and no evidence derived therefrom may
be received in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a
State, or a political subdivision thereof if the disclosure
of that information would be in violation of this chapter.
Id. (emphasis added). The second, 18 U.S.C.S 2518 (10)(a)
provides, in pertinent part, as follows:
Any aggrieved person in any trial, hearing, or
proceeding in or before any court, department, officer,
agency, regulatory body, or other authority of the
United States, a State, or a political subdivision
26
thereof, may move to suppress the contents of any wire
or oral communication intercepted pursuant to this
chapter, or evidence derived therefrom, on the grounds
that --
(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.
The Supreme Court has explained the relationship
between these two provisions. In United States v. Giordano,
416 U.S. 505, 524 (1974), the Court wrote that "[w]hat
disclosures are forbidden [under S 2515], and are subject to
motions to suppress, is . . . governed by S 2518(10)(a)."
Thus, evidence may be suppressed only if one of the
grounds set out in S 2518(10)(a) is met. Moreover, " `[not]
every failure to comply fully with any requirement provided
in Title III would render the interception of wire or oral
communications "unlawful" ' " underS 2518(10)(a)(i). United
States v. Donovan, 429 U.S. 413, 433 (1977) (quoting
United States v. Chavez, 416 U.S. 562, 574-75 (1974)).
Rather, suppression is mandated "only for 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.' " Donovan, 429 U.S. at 433-34 (quoting
Giordano, 416 U.S. at 527).
Construing these statutory provisions, our court held
more than 20 years ago that Title III does not prescribe
suppression as a remedy for a disclosure violation. United
States v. Iannelli, 477 F.2d 999, 1001 (3d Cir. 1973), aff 'd,
420 U.S. 770 (1975). We wrote that "the suppression
remedy specified in 18 U.S.C. S 2518(10) applies to
unlawful interceptions. A civil remedy applies to unlawful
disclosures. 18 U.S.C. S 2520." Id.; see also United States v.
Vento, 533 F.2d 838, 855 (3d Cir. 1976). Other courts of
appeals have reached the same conclusion. See, e.g., United
States v. Barnes, 47 F.3d 963, 965 (8th Cir. 1995); Resha
v. United States, 767 F.2d 285, 288 (6th Cir. 1985) ("we
27
construe S 2518 to permit suppression of evidence only if
that evidence was derived from unlawful, improper or
unauthorized interceptions of wire or oral communications.
It does not authorize suppression for disclosures of such
information, even if they violate S 2517.") (emphasis in
original), cert. denied, 475 U.S. 1081 (1986).11
Iannelli and Vento are binding on us here, and in any
event we see no basis for questioning their reasoning. The
section of Title III governing suppression, 18 U.S.C.
S 2518(10), sets out three grounds for suppression, and
none of these grounds applies to evidence that is
intercepted lawfully but that is later disclosed improperly.
For improper disclosure, Title III instead authorizes a civil
remedy. See 18 U.S.C. S 2520(a).12
If the defendants based their argument on an alleged
violation of federal nondisclosure requirements, the
authorities cited above would be directly controlling, but
the defendants have attempted to weave their way around
these obstacles by contending that suppression is required
because a state nondisclosure provision was violated and
because the Pennsylvania Supreme Court held in Hashem
that evidence disclosed in violation of that provision must
be suppressed. The defendants point out that under 18
U.S.C. S 2516(2), an authorization order signed by a state
_________________________________________________________________
11. We are not persuaded by the defendants' reliance on United States v.
Marion, 535 F.2d 697, 703-04 (2d Cir. 1976), and United States v.
Brodson, 528 F.2d 214 (7th Cir. 1975). Insofar as these cases
suppressed evidence based on violations of the nondisclosure restrictions
in 18 U.S.C. S 2517(5), these decisions are contrary to controlling
precedents of our court.
12. This provision provides, in pertinent part, as follows:
Except as provided in section 2511(2)(a)(ii), any person whose
wire,
oral, or electronic communication is intercepted, disclosed, or
intentionally used in violation of this chapter may in a civil
action
recover from the person or entity which engaged in that violation
such relief as may be appropriate.
18 U.S.C. S 2520(a) (emphasis added). The exception set out in 18 U.S.C.
S 2511(2)(a)(ii) applies to "providers of wire or electronic communication
service" and certain persons associated with them. It thus has no
application here.
28
judge must be "in conformity with [18 U.S.C.S] 2518 . . .
and with the applicable State statute," and the defendants
rely on cases holding that suppression is required in federal
court when state officers intercept communications in
violation of the applicable state statute. See United States v.
Butz, 982 F.2d 1378, 1383 (9th Cir.), cert. denied, 510 U.S.
891 (1993); United States v. Vario, 943 F.2d 236, 244 (2d
Cir. 1991), cert. denied, 502 U.S. 1036 (1992); United States
v. Bascaro, 742 F.2d 1335 (11th Cir. 1984), cert. denied sub
nom., Hobson v. United States, 472 U.S. 1017 (1985);
United States v. Brown, 872 F.2d 385, 388-90 (11th Cir.),
cert. denied, 493 U.S. 898 (1989).
We are not persuaded by the defendants' attempts to
circumvent Iannelli and Vento. We understand these
precedents to rest on the proposition that 18 U.S.C.
S 2518(10)(a) sets out the exclusive grounds for suppression
under Title III but omits any reference to disclosure
violations. Since this provision makes no mention of federal
or state disclosure violations, we see no basis for holding
that this provision authorizes suppression for state, but not
federal, disclosure violations.
Whether the Pennsylvania courts would have ordered
suppression under Hashem makes no difference. We will
discuss below the question whether the Pennsylvania
suppression rule is directly applicable in this federal case.
At present, we are addressing the question whether federal
law requires suppression, and the defendants have not
called to our attention any provision of Title III that requires
or authorizes the suppression of evidence in federal court
simply because a state court would have ordered
suppression as a remedy for a violation of the state
disclosure provision. Nor are we aware of any such federal
statutory provision. Without such a provision, we see no
basis for holding that federal law requires suppression here
simply because the Pennsylvania courts might have
required suppression in a state prosecution. Accordingly,
we hold that federal law does not require suppression of the
evidence that, according to the defendants, was unlawfully
disclosed.
B. We therefore turn to the question whether
Pennsylvania law of its own force requires suppression in
29
this case. It clearly does not. "It is a general rule that
federal district courts will decide evidence questions in
federal criminal cases on the basis of federal, rather than
state, law." United States v. Rickus, 737 F.2d 360, 363 (3d
Cir. 1984); see also, e.g., United States v. Stiver, 9 F.3d 298(3d Cir. 1993), cert. denied, 510 U.S. 1136 (1994); United
States v. Shaffer, 520 F.2d 1369, 1372 (3d Cir. 1975), cert.
denied sub nom., Vespe v. United States, 423 U.S. 1051(1976); United States v. Armocida, 515 F.2d 49, 52 (3d Cir.),
cert. denied, 423 U.S. 858 (1975). Moreover, the relevant
state statutory provision, 18 Pa. Cons. Stat. Ann.S 5721(a),
does not purport to govern federal cases. It provides that a
motion to suppress may be made "in any trial, hearing, or
other adversary proceeding in or before any court or other
authority of this Commonwealth." 18 Pa. Cons. Stat. Ann.
S 5721(a) (emphasis added).
For these reasons, assuming for the sake of argument
that evidence was disclosed in violation of state law, we
hold that the district court did not err in refusing to
suppress that evidence.13
VII.
The defendants next argue that the electronically
intercepted oral evidence from the Fifth Avenue premises
should have been suppressed because the affidavit did not
indicate that normal investigative procedures would be
inadequate, as required by 18 U.S.C. S 2518(3)(c). The
defendants maintain that the confidential informant could
have been further utilized in lieu of electronic surveillance.
As we have stated, the affidavit submitted with the oral
surveillance application was the same as that submitted
with the video surveillance application, the sufficiency of
_________________________________________________________________
13. The government makes two additional arguments in support of its
position on this issue. It argues that the disclosed communications were
relevant to the state offenses listed in the interception order and that
the
state judge implicitly authorized disclosure to federal authorities by
granting an extension of the interception order and granting an order
authorizing postponement of service of inventory. Because we conclude
that suppression is not an available remedy for unlawful disclosure, we
do not reach these arguments.
30
which has already been discussed. See supra Part II(B).
Accordingly, we will not address this argument again at this
point. We note only that the informant had ceased working
for the organization approximately six years before the
affidavit was prepared, and therefore the probability of his
continued effectiveness as an informant was low.
VIII.
Defendants additionally challenge the affidavit in support
of the extension of the oral interception order for the Fifth
Avenue premises, arguing that there was no basis to
conclude that continuing the interception would produce
any additional information. Extensions require the same
showing as an initial application. 18 U.S.C. S 2518(5).
Thus, the same determinations as to probable cause and
the inadequacy of other investigative procedures must be
made. Id. S 2518(3).
The affidavit submitted in support of the extension
request stated that continued interception was needed
because successful interception of conversations had been
limited due to background radio noise. A. 131. The affidavit
also stated that it was believed that the defendants were
playing the radio for the purpose of thwarting the attempt
by police to listen to conversations. Id. However, the
affidavit added that those conversations that were audible
indicated that defendants were involved in an illegal
gambling operation. Id. The affidavit further stated that one
of the participants in the operation, Louis Esposito, whose
telephones had previously been wiretapped, was
approached by police in an attempt to gain his cooperation
in investigating defendants. A. 140. Shortly after the
interview, the affidavit revealed, Esposito informed Adolph
Williams of the interview and told him that the police were
investigating the operation. Finally, the affidavit stated that
the police had attempted further physical surveillance of
the Fifth Avenue premises but that surveillance teams had
reported that many of the targets were using evasive
tactics, such as circling the block, switching lanes, and
running red lights after waiting for the green light to turn
red, in order to prevent anyone from following them
through the intersection. A. 145. The affidavit indicated
31
that investigators were in the process of determining
whether a mobile tracking device would assist in the
surveillance of key targets and that the investigators were
also exploring the feasibility of aerial surveillance. A. 145-
46.14 Based on these representations, we believe the
government made an adequate showing of probable cause
and lack of alternative investigative means to justify the
extension of the surveillance order. We therefore hold that
the district court's denial of defendants' motion to suppress
evidence obtained during the extension was proper.
IX.
Finally, the defendants argue that the electronically
intercepted oral evidence from the Fifth Avenue premises
should have been suppressed because the tapes were not
sealed in accordance with federal and state law. The
interception ended on Friday, August 9, 1991, but the
tapes were not sealed until Monday, August 12, 1991. The
district court found that the tapes were sealed as soon as
practical after the intervening weekend and denied the
motion to suppress.
_________________________________________________________________
14. The affidavit states:
Your affiants believe that while there has been progress throughout
the course of this interception, that a further period of
interception
will be required to identify the relationships and responsibilities
of
the parties already identified and to identify other participants
in
this organization. As previously stated, this investigation is
unusual
in that many of the subordinate parties had not been previously
identified as to identity and also as to activity. Due to the short
and
abrupt nature of the majority of the conversations intercepted to
date, further interceptions are necessary to be able to establish
beyond a reasonable doubt, the sources of the cash which is flowing
through this building. Because of the nature of the conversations,
much of the evidence will be of a circumstantial nature. This is
especially true because of the documented efforts of these
individuals to avoid detection by: evasive tactics, including their
driving patterns; playing of loud music within the area of
interception, and shredding of physical evidence such as those
papers believed to contain documentation as to the amount of
money which flows through this organization.
A. 148-49.
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Federal and Pennsylvania law require the sealing of
recordings "[i]mmediately" upon the expiration of the
surveillance order or any extensions of such order. See 18
U.S.C. S 2518(8)(a); 18 Pa. Cons. Stat. Ann.S 5714(b).
Section 2518(8)(a) contains "an explicit exclusionary
remedy for noncompliance with the sealing requirement."
United States v. Ojeda Rios, 495 U.S. 257, 263 (1990). If
the tapes are not immediately sealed upon expiration of the
order, the government must not only explain why a delay
occurred but must also explain why the delay was
excusable. Id. at 264-65. The term "[i]mmediately" means
that the tapes should be sealed either as soon as practical
after the surveillance ends or as soon as practical after the
final extension order expires. United States v. Vastola, 915
F.2d 865, 875 (3d Cir. 1990), cert. denied, 498 U.S. 1120(1991). If the tapes were sealed as soon as practical, our
inquiry ends, and the order denying the motion to suppress
must be affirmed. United States v. Carson, 969 F.2d 1480,
1491 (3d Cir. 1992). If the tapes were not sealed promptly
enough, we must ask whether the government provided an
objectively reasonable explanation for the delay. Id.In Carson, 969 F.2d at 1488, we held that the sealing of
certain recordings was immediate within the meaning of the
statute where the surveillance was completed at the end of
one week and tapes were sealed at the beginning of the
next week. One order expired on Wednesday, May 12, 1982,
and the tapes were sealed on Monday, May 17, 1982. We
held that "[w]hen the intervening weekend is considered,
there is no indication in the record that the tapes were not
sealed as soon as was practical," and we therefore held that
those tapes were sealed "immediately." Id. at 1498. A
second order expired on Thursday, December 16, 1982,
and the tapes were sealed on Wednesday, December 22,
1982. We held that since the gap included an intervening
weekend, those tapes were also sealed "immediately." We
accordingly did not reach the issue of whether the
government's delay was excusable with respect to either
order.
Here, the government learned that the issuing judge, for
whom a progress report had been prepared for the purpose
of sealing the tapes, was out of town and would be
33
unavailable to seal the tapes on Friday, August 9, 1991, the
day the extension would expire. Therefore, on Wednesday,
August 7, a request was made for a substitute judge to be
appointed, and Judge Kate Ford Elliot was assigned to the
case. On Thursday, August 8, the assistant district attorney
spoke with Judge Elliot and requested to seal the tapes on
Saturday, August 10. Judge Elliot told him that Monday,
August 12 would be adequate to seal the tapes, and on
Monday, August 12, the tapes were sealed.
We conclude that the tapes were sealed "immediately" for
the purpose of the statutory sealing requirement. Under the
holding of Carson, where the surveillance ends on Friday
and the tapes are sealed on the following Monday, the
sealing is immediate in light of the intervening weekend.
Furthermore, even if the Monday sealing were not deemed
to be immediate, the assistant district attorney's reliance on
the judge's decision to wait until Monday was certainly
reasonable, and consequently the delay was excusable. The
assistant district attorney had previously arranged for a
substitute judge in order to comply with S 2518(8)(a) and
had deferred to that judge's decision to seal the tapes the
following Monday. We believe it would be unreasonable to
expect the attorney to seek out a third judge to seal the
tapes after Judge Elliot had told him that waiting until
Monday would be sufficient.
X.
For the reasons explained above, we affirm the judgments
against the defendants.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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