Appeal from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, convicting defendant after a verdict on both conspiracy and substantive counts for sending threatening mail for purposes of extortion in violation of 18 U.S.C. §§ 371 and 876. Affirmed.
Feinberg and Van Graafeiland, Circuit Judges, Dooling,*fn* District Judge.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from a judgment convicting defendant on both conspiracy and substantive counts for sending threatening mail for purposes of extortion in violation of 18 U.S.C. §§ 371 and 876. We affirm.
On June 30, 1973, defendant mailed to the Concord Hotel a xerox copy of an anonymous letter in which he threatened to put LSD in the hotel's water supply unless $320,000 in old one-hundred dollar bills was paid in a specified manner. The letter cautioned against calling in the FBI and warned that it was not intended as a hoax. Following defendant's eventual arrest, he insisted that the plot was in fact planned as an "expose" of the FBI and was intended as a hoax. The jury was not convinced.
In preparation for his get-rich-quick scheme, defendant had rented a safe deposit box at the East New York Savings Bank on 64th Street and Third Avenue in New York City. In it, he kept the original of the extortion letter, and towards it he headed with the $320,000 which had been left for him as directed in a rest room of the Grand Central Station. Upon arrival at the bank, defendant and his cohorts discovered that the money was fake. They also discovered a transmitting device concealed in the bag which, unknown to them, was not functioning. The money quickly found its way to the bottom of the Hudson River.
The jury was entitled to conclude that it was at this time that the plan to "expose" the FBI was born. A letter threatening disclosure of its "bungling" was sent to the FBI; cryptic newspaper advertisements were placed or attempted to be placed, and reporters receptive to this type of "exposure" were contacted.
When one of these columnists asked to see the original letter, defendant telephoned from Philadelphia to one of his cohorts in New York City and requested him to secure the letter from the safe deposit box. When the cohort arrived at the bank, he was arrested by the FBI who had staked it out.
Appellant now asserts as error the alleged inadequacy of the government's affidavits negating the use of illegal wiretaps, and its refusal to disclose the identity of the individual who furnished the FBI with information which led it to the bank.
The original affidavits submitted by the FBI stated, among other things, that "no one identifiable as John Calvin Van Orsdell, born August 23, 1933, was the subject of a direct electronic surveillance by the Federal Bureau of Investigation". The affidavit also stated that defendant's conversation relative to the money-drop was "consensually monitored" and that, other than this, "John Calvin Van Orsdell was never monitored by any other electronic device of the Federal Bureau of Investigation nor was an electronic surveillance maintained on premises which were known to have been owned, leased or licensed by him".
When defendant's counsel expressed dissatisfaction with the above quoted phrase concerning "direct" electronic surveillance of "John Calvin Van Orsdell", a further affidavit was submitted which stated in part:
"It was not my intention to equivocate in any manner whatsoever through the use of the word 'direct' in paragraph two of my original affidavit dated October 11, 1974.
"I previously made a careful and diligent search of appropriate records of the Federal Bureau of Investigation and determined that no one identifiable as John Calvin Van Orsdell or any one by his known aliases, including Crayola, was ever monitored by any electronic device of the Federal Bureau of Investigation."
Although appellant made no further protest in the District Court concerning the sufficiency of these affidavits, he now argues anew in this ...