Appeals from convictions in United States District Court for the Eastern District of New York, Mark A. Costantino, J., of conspiracy to forge and utter United States savings bonds stolen from the mails, and forgery of such bonds, on ground that wiretap evidence was illegally obtained.
Moore, Feinberg and Oakes, Circuit Judges.
Paul Labriola, Dawn Slomka and Ralph Principie*fn1 appeal from convictions after a non-jury trial in the United States District Court for the Eastern District of New York, Mark A. Costantino, J., of conspiracy to forge and utter United States savings bonds stolen from the mails in violation of 18 U.S.C. §§ 371, 495, 1708 (all three appellants), and forgery of United States savings bonds in violation of 18 U.S.C. § 495 (Labriola). Labriola was sentenced to two concurrent five-year terms of imprisonment and a $5,000 fine; Principie to four years' imprisonment; and Slomka to three years' imprisonment, suspended on condition that she place herself in a community program. All three appellants argue that their convictions must be reversed because much of the evidence against them was the product of electronic surveillance which was unlawful in a number of respects, and should have been suppressed. 18 U.S.C §§ 2515, 2518(10)(a). We affirm.
Appellants were charged in November 1973 along with nine co-defendants, five of whom have since pleaded guilty, in a 26-count indictment with various counts of forging United States savings bonds and uttering them as true, possession of such bonds stolen from the mails, and conspiracy.*fn2 The indictment was the product of a lengthy investigation by the District Attorney of New York County. To understand the points raised by appellants, it is necessary to trace the course of that investigation.
In June 1972, an underworld figure informed the District Attorney's office that one Joseph Martino had offered to sell him stolen United States postal bonds. The serial numbers of the proffered bonds showed them to be missing from a New York brokerage firm. Martino had told the informer to call him at a certain telephone number, which was listed in the name of the 1234 Club, and ask for "Paul." Acting at the prosecutor's direction, the informer called Martino at that number. In the ensuing conversation, which was recorded, Martino discussed stolen bonds and made statements indicating the existence of co-conspirators, including someone called "Ralph."
On July 5, 1972, the New York Supreme Court, Larry M. Vetrano, J., issued an order authorizing interception of "the telephonic communications of Joe Martino, his co-conspirators, agents and associates," including "Ralph,"*fn3 at the 1234 Club number for thirty days. Interception of communications began on July 11. The officers who monitored the wiretap were instructed not to record privileged or social calls, but otherwise to record all conversations involving Joseph Martino, a person then known to them as "Ralph," anyone who responded to the name of "Paul" and discussed the theft or disposition of securities, or anyone who engaged in conversations about the procurement or disposition of stolen securities. Meanwhile, police officers maintained physical surveillance of the club, in the course of which they learned that Paul Labriola, who had a criminal record involving stolen checks, was a frequent visitor. No later than July 14, the investigators were aware that the "Paul" whose conversations they were recording was not Martino, but Paul Labriola.*fn4
On July 27, the assistant district attorney supervising the investigation sought renewal and expansion of the wiretap order. Justice Vetrano issued a new order which named Martino, Labriola and "Ralph," as well as their co-conspirators, agents and associates, as targets of the investigation; extended until September 7 the wiretapping authority contained in the July 5 order; and included a further provision authorizing electronic surveillance ("bugging") of the 1234 Club. The latter aspect of the order was limited not only by the statutory "minimization" provision requiring the officers not to intercept innocent or privileged conversations*fn5 but also by the additional proviso that conversations taking place after 7:30 P.M. were not to be intercepted.*fn6 While the police apparently respected the first condition, they ignored the second, and throughout the period during which the club was "bugged," interception and recording of conversations continued until midnight or later.
The July 27 order was extended on September 11. From about September 1, however, the conspirators moved their headquarters to another club, and no further conversations at the 1234 Club were recorded. On September 27, an order was obtained authorizing wiretapping of a telephone at the new location. This order was the first in which Ralph Principie was named in full, although the officers had known at least since mid-August, and possibly longer, that Principie was the "Ralph" whose conversations they were recording.*fn7 This order was in turn renewed on October 28, and the authorization finally expired on November 26. Labriola was notified of the electronic surveillance on December 13, but Principie and Slomka never received official notice that their conversations had been recorded, and learned of this for the first time in an informal conversation with an FBI agent at the time of their indictment in November 1973.
Prior to trial, appellants moved to suppress the fruits of the electronic surveillance as illegally obtained. In January and February 1975, the district court held a lengthy evidentiary hearing at which the above facts concerning the investigation were developed. At the conclusion of the hearing, Judge Costantino held that the wiretap evidence was admissible. Although he agreed that appellants had not received timely notice, he held that they had not been prejudiced by the delay. The very brief non-jury trial, at which most of the evidence was stipulated to, followed immediately. Much of this evidence was the product of the challenged eavesdropping.
Identification defects in orders
Both Labriola and Principie contend that the wiretapping orders in this case were invalid because they were not properly identified in the applications and orders as required by law. Under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, applications and orders authorizing electronic interception of conversations must include "the identity of the person, if known, committing the offense and whose communications are to be intercepted." 18 U.S.C. §§ 2518(1)(b)(iv), 2518(4)(a). Cf. N.Y. Crim. Proc. L. §§ 700.20(2)(b)(iv), 700.30(2). Labriola argues that he was "known" within the meaning of the statute by July 14, but was not identified in an order until July 27; Principie that he was known by August 17 at the latest, but not fully identified until the order of September 26.
The leading case interpreting the relevant statutory language is United States v. Kahn, 415 U.S. 143, 39 L. Ed. 2d 225, 94 S. Ct. 977 (1974). In Kahn, an order was obtained authorizing interception of the telephone conversations of Mr. Kahn, a suspected bookmaker, and "others as yet unknown." At trial, Mrs. Kahn argued that wiretap evidence obtained pursuant to this order could not be admitted against her because she was not named in the warrant. A divided panel of the Seventh Circuit agreed with her that although the Government, at the time the wiretap order was applied for, was unaware of her involvement in the crime under investigation, "careful investigation by the government would [have] disclose[d that she was] probably using the Kahn telephones in conversations for illegal activities," and therefore that she was "known" within the meaning of the statute and should have been named in the application and order. United States v. Kahn, 471 F.2d 191, 196 (7th Cir. 1972). The Supreme Court reversed, concluding that
Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that the individual is ...