The opinion of the court was delivered by: BRYAN
Frederick van PELT BRYAN, District Judge:
At the conclusion of a six-week trial before me, the jury returned the following verdicts:
As to defendants Grant, E. Holder, Brown, Ellington, Logan, McBride and C. Holder, guilty of (1) conspiracy to violate the narcotics laws, 21 U.S.C. Section 846, and (2) the use of a telephone to further such violations, 21 U.S.C. Section 843(b).
As to defendant Abraham, guilty of (1) conspiracy to violate the narcotics laws; (2) use of a telephone to further such violations and (3) continuous dealings in narcotics in concert with 5 or more other persons as to whom he acted as organizer, manager or supervisor, 21 U.S.C. Section 848.
As to defendant Sisca, (1) guilty of conspiracy to violate the narcotics laws and (2) not guilty of the use of the telephone to further such violations.
As to defendant Hoke, guilty of conspiracy to violate the narcotics laws.
During the course of the trial tapes of 21 conversations carried on over the telephone listed in the name of defendant Carol Holder, 20 conversations over the telephone listed in the name of defendant Margaret Logan, and one conversation on the telephone listed in the name of defendant Lavern McBride were introduced in evidence by the prosecution and played before the jury. These conversations had been intercepted pursuant to wiretap orders issued by a Judge of the County Court of Westchester County in the case of the Holder tap, and by a Justice of the New York Supreme Court, Bronx County, in the case of the Logan and McBride taps. The intercepted communications in evidence were a significant part of the prosecution's case.
The Jury was selected and sworn on January 16, 1973. On January 24, 1973, well after the taking of testimony was under way, counsel representing Errol Holder moved for the first time to suppress all conversations intercepted over the Holder telephone upon the ground of a claimed "failure to minimize the interception of communications not otherwise subject to interception." Thereafter, similar motions were made with respect to conversations intercepted under the Logan and McBride wiretaps. These motions were joined in by all defendants who had participated in the various conversations admitted in evidence. A hearing was requested as to the facts of minimization.
The Government opposed the motions, both on the ground that they were made too late and the defendants had waived their rights to make them, and on the merits. Decision was reserved until the conclusion of the trial. After the jury had returned its verdict, evidentiary hearings were held to determine such facts with respect to the minimization claims as had not been brought out during the trial and thus to complete the record on the subject. The motions to suppress are now before me for decision.
The interception of wire communications and authorizations therefor are governed by Chapter 119 of Title 18 U.S. Code. Section 2518(5) of that chapter provides that every order for interception of a wire communication
shall contain a provision that the authorization to intercept . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter. . . .
The New York Criminal Procedure Law, which "virtually tracks the language" of Chapter 119,
contains a provision to the same effect. New York Criminal Procedure Law § 700.30(7).
The wiretap orders issued in this case contained such provision.
The moving defendants contend that these provisions of the interception orders were not complied with and that the intercepted conversations should therefore be suppressed.
The evidence adduced at the trial established a widespread and complicated conspiracy among the defendants and others to distribute heroin and cocaine on a large scale. The conspiracy was a narcotics distribution operation by which drugs were obtained from major wholesalers and passed on to retailers for retail sale. Operations were largely in Manhattan, the Bronx and southern Westchester. The evidence primarily concerned operations over a period from mid-August to mid-December, 1971.
Heroin in quantities as large as 8 kilograms (at $26,000 per kilo) were purchased periodically from major wholesalers by defendant Abraham, who appears to have been the key man and organizer of the operation. The other conspirators played various roles, as links with wholesalers, distributors, supervisors or participants in cutting mill operations, couriers and contact people.
Lengthy and intensive investigation by law enforcement officers, both state and federal, established the connections between the co-conspirators, numerous meetings and arrangements between them in furtherance of the conspiracy, and its objectives and its method of operation. The investigation resulted in the seizure, pursuant to search warrant, of large quantities of narcotic drugs, adulterants, dilutants, packaging materials and paraphernalia, cash, data concerning financial transactions, and weapons, in apartments and houses occupied by various of the defendants; a raid pursuant to search warrant on a cutting mill in full operation and the arrest of six women who were engaged in diluting and packaging heroin and cocaine for retail distribution, and the arrest of several defendants and co-conspirators, with large quantities of narcotics in their possession.
There are two issues presented here:
1. Did the defendants waive any rights to move to suppress the intercepted conversations for failure to minimize by not making such motions before trial?
2. Are the defendants or any of them
entitled to suppression of the intercepted conversations admitted in evidence for failure to comply with the minimization provisions of the statute and the wiretap orders?
18 U.S.C. § 2518(10)(a) mandates that a motion "to suppress the contents of any intercepted wire or oral communication . . . shall be made before the trial, hearing or proceeding, unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion."
It cannot be disputed that no pretrial motion on the ground of failure to minimize was made in the case at bar.
The indictment in this case was filed on October 16, 1972. Defendants were arraigned on October 30, 1972. The case was then assigned to me and defendants were given the usual 10 days for motions, which was extended until November 21, 1972. Trial was initially set for January 3, 1973 but was postponed at the defendants' request until January 16, 1973. Some 8 pretrial conferences and hearings were held prior to trial, to dispose fully of pretrial motions and issues.
On November 8, 1972 the Government advised the defendants in writing that, among other things, "all tapes of conversations electronically recorded under Court order" would be available to defendants for inspection and copying. Thereafter, a voluminous exhibit (Ex. 59 at trial), containing the wiretap orders involved on these motions and the papers supporting them together with the logs which had been made of the Holder tap, was served on the defendants by the Government. After some delay, counsel for defendants began the process of listening to the tapes and listened to a large sample of them.
Motions to suppress the Holder and Logan interceptions were filed on November 16, 1972 and to suppress the McBride interceptions on November 20 and December 7, 1972. These suppression motions were made on a variety of grounds, including lack of probable cause for the issuance of the wiretap orders. But there is not the slightest question that no claim was made, or even suggested, in the moving papers that there had been a failure to comply with minimization requirements or that this was a ground for suppression. These pretrial suppression motions were all denied by the Court on December 18, 1972.
At a pretrial conference of December 27, 1972, held primarily to determine whether the trial, then set for January 3, 1973, should be adjourned at defendants' request, it was apparent that Mr. Gallina and his associates, representing defendants Sisca, Abraham, Logan, Hoke, E. Holder and Grant, and also acting in this regard for other defendants, had listened to a substantial portion of the tapes -- more than enough, in fact, to have a good knowledge of what they contained. Defendants also had copies of the log of the Holder tap, contemporaneously made by officers who had monitored the interception, which were quite sufficient to indicate any basis there was for the failure of minimization claim. At this conference, Mr. Gallina stated that from the listening which had been done, "We also discovered, to our chagrin, that the agents of the police who executed the warrants did not follow the directives of the warrant, did not follow the directive of federal law and that is minimization."
The Court directed: "Now, if, for example, you have any affirmative evidence which you claim presently justifies the suppression of anything, any of the taped materials, it seems to me quite clear that it ought to be raised forthwith." (Minutes of Dec. 17, 1972, at 24-25)
The request for an adjournment was on the basis that defense counsel desired further time to continue listening to the tapes on the minimization and other questions. After a further pretrial conference on Dec. 29, 1972, the Court granted an adjournment ...