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UNITED STATES v. DESIST

August 30, 1967

UNITED STATES of America
v.
Samuel DESIST, Frank Dioguardi, Jean Claude LeFranc, Jean Nebbia and Anthony Sutera, Defendants



The opinion of the court was delivered by: PALMIERI

PALMIERI, District Judge.

 Preliminary Statement

 This case, presently sub judice before the Court of Appeals after a trial completed before this Court on July 11, 1966, was remanded by order of that court dated May 29, 1967, "so that the trial judge may conduct a prompt and full hearing to ascertain the Government's use of electronic equipment on the occasions referred to on page 2 of the * * * letter from the United States Attorney" dated April 27, 1967, addressed to the Clerk of the Second Circuit. *fn1" The letter of the United States Attorney *fn2" refers to two instances of electronic eavesdropping: (1) One took place in Columbus, Georgia, on December 18, 1965 (the Avis car rental incident) and provided no evidence of any kind since the equipment malfunctioned, and (2) the second took place between April 25, 1962, and April 1, 1963, and consisted of an electronic listening device used in a business establishment in Miami, Florida (the Case Maria-Dorey surveillance). This will be discussed fully.

 In its order the Court of Appeals directed that "at such hearing the district court will confine the evidence presented by both sides to that which is material to questions of the content of any electronically eavesdropped conversations overheard on those occasions, and of the relevance of any such conversations to petitioners' subsequent convictions". On June 14th the Court of Appeals handed down a supplementary order of which counsel were advised at a conference held on June 14th. *fn3" The order stated, in substance, that the defendants were to be allowed "to explore, in addition to the incidents described in the letter of April 27, 1967 to the Clerk from the United States Attorney, the question of whether any governmental personnel engaged in any other electronic eavesdropping of any other kind which related to this case. * * *"

 At conferences between Court and counsel on June 19th and July 6th, defendants' counsel repeatedly urged that they be given additional time to complete their investigation and on a number of occasions requested the production of approximately 40 witnesses, many of them law enforcement officers of high echelon. After lengthy discussion with counsel, the Court requested the presence of the supervising agent in charge of the Miami, Florida, office of the Federal Bureau of Investigation and the narcotics agent in charge of the investigation of the case in the Atlanta-Columbus area. These witnesses, agents Swinney and Matuozzi, were called as a matter of caution, in order to complete the proof adduced by the Government with respect to the Casa Maria-Dorey surveillance and the Avis car rental incident. In both instances the evidence indicated that there was no relationship whatever between the incident and the proof adduced against the defendants in this case.

 The Casa Maria-Dorey incident related to an investigation by the Federal Bureau of Investigation through its Miami office, which was totally unrelated to any of the evidence in the case. It developed that the defendant Dioguardi participated or appeared to have participated in some of the conversations which were overheard. However, nothing that was said by Dioguardi, and no reference made to him in any of these conversations, had any possible relationship to the evidence in this case. Clerks of the Federal Bureau of Investigation listened to tapes of these conversations and transcribed notes of them. The transcribed notes were quite voluminous and were marked in evidence at the hearing. (Government's exhibits 102 and 103.) However, only the relevant portions, that is, those portions relating to the defendant Dioguardi, were revealed to counsel. (Government's exhibit 103.) These were the portions which reported the conversations in which he participated or the conversations in which it was believed he was one of the speakers. The portions which were not revealed to counsel (Government's exhibits 100 and 102) were ordered sealed by the Court and have been preserved for appellate scrutiny.

 These transcribed notes indicate that there was no relationship between the eavesdropping and the evidence in this case. Indeed they preceded the events to which this case related by approximately two years.

 The Avis rental car episode took place in Columbus, Georgia, on December 18, 1965, shortly before the arrests of the defendants and the heroin seizure which led to the indictment in this case. On this occasion, an apparatus was installed in an automobile rented to the defendant Nebbia by the Avis car rental agency. Through this apparatus the narcotics agents engaged in surveillance of Nebbia hoped to overhear conversations between Nebbia and his co-conspirators. The apparatus did not function. It gave only static and unintelligible noises from which no evidence could be secured. In addition, it should be pointed out that the defendant Nebbia customarily spoke in French. The only French-speaking agent seeking to listen in on the conversations was Agent Kiere, who testified at length at the trial and also testified at the hearing before this Court on June 26, 1967. His testimony, as well as corroborating testimony by Agents Waters, Matuozzi and Selvaggi, provided clear and persuasive proof that the apparatus did not function and that nothing coherent was obtained.

 The only other episode related to eavesdropping on conversations in the room occupied by the defendant Nebbia at the Waldorf-Astoria Hotel in New York City between December 14-18, 1965. This eavesdropping was much bruited at the trial and was fully explored by the defendants both at trial and at in camera hearings during the trial. This matter is the subject of review in the appellate proceedings and needs no elaboration here since this episode was not deemed to be within the purview of the broadened frame of reference as set forth in the order of the Court of Appeals of June 14, 1967. For these reasons the defendants were not permitted to re-explore the Waldorf-Astoria eavesdropping episode.

 In sum, there is no persuasive evidence before this Court that defendants' rights were impinged upon in any way by any electronic eavesdropping activities of the government agents.

 The defendants were given whatever time they requested to complete their investigation and a full opportunity to present evidence indicating a violation of their rights. Evidentiary hearings were held before the Court on June 26, July 11, July 18 and July 25. The government witnesses, whether called by the defense or produced by the Government on its own initiative, or at the Court's request, all proved to be accurate and reliable witnesses, and they supported in various ways the conclusion above stated.

 Subsequent to the Court of Appeals' order of May 29, 1967, the defendants hired an investigator, one John G. (Steve) Broady. As a result of his efforts he interviewed and obtained as defense witnesses two men of advanced years, Mr. Charles B. Brown, former night manager of the Black Angus Motel at Columbus, Georgia, and Mr. Oscar H. Kennington, who is still employed as the day manager at the motel. They testified before this Court on July 18, 1967. Their testimony, construed in the light most favorable to the defendants, would indicate that part of the Government's proof in the principal case was derived from electronic eavesdropping, separate and apart from the Waldorf-Astoria surveillance; that there had been a search of defendant Desist's room by narcotics agents at the Black Angus motel; and that a telephone conversation by Desist in a foreign language, presumably French, had been overheard at the motel switchboard by narcotics agent Waters.

 The testimony of Brown and Kennington was seriously impugned by the Government as a matter of accuracy and several narcotics agents expressly contradicted its purport.

 The written statements purported to have been given by Brown and Kennington to Broady (defendants' exhibits G and H for identification) were used to refresh their recollection and as a basis for impeachment. In a number of instances the written statements appeared to be more favorable to the defendants than the testimony which Messrs. Brown and Kennington gave at the hearings. These statements were not accepted by this Court as independent proof of any probative value apart from the testimony of the witnesses. (See conclusion of law No. 4.) Indeed the defendants in their brief before this Court come very close to questioning the credibility of these witnesses, saying that "the dispositive formulation of the credibility question at this time (as to Brown and Kennington) is not whether through their testimony the defendants have proved unconstitutional electronic eavesdropping, but whether a sufficiently probative indication thereof has been achieved to justify allowing the defendants a further opportunity for more or less plenary hearing." *fn4" This statement, standing alone is more pettifogging than persuasive.

 The Court was frequently confronted by defense demands for procedures which would have amounted to a grandiose fishing expedition. Apparently unmindful of the burden resting upon the accused attacking the propriety of evidence to establish the fact that such evidence was illegally obtained (see conclusion of law No. 5), the defendants sought to make of the hearings a continuing exploration of massive breadth, a grand inquest. Had such exploration been pursued, it would have consumed a very considerable amount of time, to say nothing of the expense to the Government and the serious inconvenience to this Court and to many government agencies.

 However, the Court did give both sides the fullest opportunity to present any evidence they wished. *fn5"

 The Government's proof was forthright and persuasive and established beyond any possible doubt that the evidence against each of the defendants in this case was not tainted. The Assistant United States Attorney in charge of the trial, Mr. William Tendy, was called by the defendants and examined under oath. His testimony alone, coupled with the reasonable inferences to be drawn from it, establishes that no eavesdropping evidence of any kind was used against any defendant in the case, except the carefully examined Waldorf-Astoria surveillance of December, 1965, which is part of the trial record. The defendants have not sought to impugn Mr. Tendy's testimony. Further, it was forcefully corroborated by the twelve government witnesses who testified at the hearings. In the second Nardone case, *fn6" famous because of the "fruit of the poisonous tree" doctrine, Mr. Justice Frankfurter stated:

 
"The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wiretapping was unlawfully employed. . . . [and that] . . . claims that taint attaches to any portion of the Government's case must satisfy the trial court with their solidity and not be merely a means of eliciting what is in the Government's possession before its submission to the jury."

 Here, far from supporting their claims upon any solid basis, the defendants have put forward nothing better than conjecture or surmise, while the Government's proof is clear and persuasive that no portion of its case was tainted by any invasion of the defendants' constitutional rights.

 The findings of fact and the conclusions of law which follow are set forth in amplification of what has already been said, and are intended to demonstrate that there were no eavesdropping incidents of any kind, other than those mentioned, and that none of them tainted the evidence against any of the defendants.

 FINDINGS OF FACT

 Casa Maria-Dorey Surveillance

 1. From April 25, 1962 to April 1, 1963, an electronic eavesdropping device was maintained at a business establishment, known variously as the Casa Maria Restaurant or Dorey's and located at 150 Sunny Isle Boulevard, Dade County, Florida. The manner in which this surveillance came to the attention of the prosecuting officers in this case after the conclusion of the trial was as follows:

 Pursuant to the review procedure initiated by the United States Department of Justice in Schipani v. United States (see finding of fact 19, infra), the Assistant Attorney General, Criminal Division, by memorandum dated January 12, 1967, requested the Director of the Federal Bureau of Investigation to ascertain the nature and extent of any electronic surveillance of any of the defendants in this case. This request was forwarded the same day to Special Agent J. Wayne Swinney of the Miami office of the Federal Bureau of Investigation, supervisor of the criminal intelligence program in the geographical jurisdiction of the Miami office and in charge of the electronic surveillance activities of that office. Agent Swinney was requested to ascertain whether any of the defendants were overheard on any electronic device in the Southern Judicial District of Florida. In response, Special Agent Swinney forwarded the complete logs of the Casa Maria-Dorey surveillance to the United States Department of Justice.

 2. The Government conceded that the Casa Maria-Dorey surveillance was achieved by trespass.

 3. The Casa Maria-Dorey electronic surveillance was not directed against any of the defendants in this case, nor did it lead in any way to any Federal law enforcement activity involving any of them. Its subject was one Ricci, an individual totally unrelated to this prosecution.

 4. On the following dates in 1962, the defendant Frank Dioguardi was positively identified as a participant in the conversations or activities overheard by the Casa Maria-Dorey surveillance:

 
October 12 (GX 2)*
 
October 14 (GX 10)
 
October 30 (GX 11)
 
November 2 (GX 5)
 
November 4 (GX 12)
 
November 6 (GX 6)
 
November 7 (GX 7)
 
November 8 (GX 8)
 
November 30 (GX 9).

 5. On several other occasions in 1962, the defendant Frank Dioguardi, although not positively identified, was thought to be a possible participant in the conversations or activities overheard by the Casa Maria-Dorey surveillance. These occasions were:

 
September 12 (GX 1)
 
October 26 (GX 3)
 
November 1 (GX 4).

 6. At no time were any of the other defendants participants in any conversations or activities overheard during the Casa Maria-Dorey surveillance.

 7. Following regularly established office procedure, the conversations or activities overheard by the Casa Maria-Dorey surveillance on the dates specified in findings of fact 4 and 5 were monitored by clerks in the employ of the Federal Bureau of Investigation, in Miami, Florida. The clerks recorded the activities or conversations overheard on daily logs. The time of the occurrence, and the initials of the auditor were also recorded.

 When the matter overheard did not appear pertinent, only handwritten notes were taken, and were summarized on the log sheets (e.g. the weather; the price of automobiles). Any uncertainty was to be resolved in favor of relevance. The summary would be based solely upon what was overheard and would not contain any other material.

 Where relevant information was revealed the handwritten notes were supplemented by a tape recording of the conversation. Later the clerks would replay the tape, and, comparing it with the handwritten notes, would attempt to obtain a verbatim transcript of the conversation which would then be entered in the log. As soon as the log sheets were typed, the handwritten notes were destroyed pursuant to the regular procedure.

 Any tapes resulting from the installation were retained for a period of seven days and then erased pursuant to the regularly established office procedure. None of the tapes resulting from the Casa Maria-Dorey installation were retained beyond a seven-day period and were all erased no later than April 8, 1963.

 The logs comprise the most complete record kept by the Federal Bureau of Investigation of the conversations and activities overheard by the Casa Maria-Dorey installation.

 8. All of the log sheets resulting from the Casa Maria-Dorey surveillance were produced for the Court's inspection and marked GX 100. The Court has examined all of the log sheets comprising GX 100 and finds that the only defendant overheard during the Casa Maria-Dorey surveillance was Frank Dioguardi, who was overheard only on the dates specified in findings of fact 4 and 5.

 9. The complete log for each of these days was collated and collectively marked GX 102. The specific portion of each of the logs pertaining to Dioguardi were bracketed in ink ...


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