The opinion of the court was delivered by: BRAMWELL
BRAMWELL, District Judge.
The within matters are before this Court by way of various defendant motions to dismiss the underlying indictment. This indictment rests upon facts which can be briefly summarized as follows.
In 1975, in the wake of a major fiscal crisis, the State of New York sought ways to improve the financial stability of the State. One such measure utilized was a review of the New York State Medicaid Program
which was enacted and is partially funded pursuant to the Federal Medical Assistance Program.
During this review by the New York State Legislature, a proposal was made which advocated elimination of various optional medicaid services from the state program. Among such services contemplated to be excised from medicaid funding were podiatric services.
At the time this proposal was under legislative consideration, a joint state and federal investigation uncovered a scheme whereby certain persons allegedly sought to illegally influence officials of New York's Executive and Legislative branches not to eliminate podiatric services from New York's Medicaid Program. This scheme ostensibly included an attempt to bribe a New York public official in order to influence his decision to secure the future federal and state funding of podiatric services.
The defendants herein are alleged to have participated in this scheme.
On February 9, 1977 a two count indictment was handed up which charged the defendants
with numerous violations of federal law.
Under Count One of the indictment, all thirteen defendants are charged with conspiracy to defraud the United States in violation of section 371 of Title 18 of the United States Code.
More specifically, Count One alleges that the defendants conspired to defraud the federal government in connection with the performance of its lawful governmental functions by obstructing and hindering the Department of Health, Education and Welfare (hereinafter HEW) from properly administering and distributing federal funds pursuant to the Medical Assistance Program and, furthermore, by depriving the government of the faithful and honest participation of the State of New York in the Medicaid program. As part of the conspiracy, it is alleged that the defendants agreed to defraud the United States of its right to have federal funds distributed fairly and impartially and of its right to have New York Executive and Legislative officials render an impartial and honest decision regarding the proposal to eliminate podiatric services from the state's Medicaid program. As a further part of this conspiracy, Count One claims that the defendants agreed to raise $100,000 to be used to bribe a public official of New York in order to influence his decision with respect to the legislative proposal then under consideration.
Count Two of the indictment charges four of the defendants
with violations of Sections 2
of Title 18 of the United States Code in that they allegedly employed facilities in interstate commerce to commit the crime of bribery in violation of Section 200.00 of the New York State Penal Law.
The defendants, individually and in conjunction, have raised various objections to the instant indictment. As to Count One, the defendants contend that the offense charged fails to state a cognizable offense under the laws of the United States, that it fails to allege the essential elements of a conspiracy to defraud the United States, and is impermissibly vague in that it omitted to name the public official who allegedly was to be bribed.
The defendants who are charged under Count Two of the indictment further attack the indictment as being legally insufficient on the ground that Count Two does not adequately allege the essential elements of a violation of section 1952 of Title 18 of the United States Code. These defendants further contend that Count Two contains insufficient allegations of interstate activity to establish a violation of section 1952.
Finally, all of the defendants seek a dismissal of the indictment on the ground that it violates the Federal Wiretap Statute, 18 U.S.C. § 2510 et seq. (1970). Relying on the Second Circuit's decision in United States v. Marion, 535 F.2d 697 (2d Cir. 1976), the defendants argue that certain wiretap and eavesdropping evidence obtained during the joint investigation was submitted to the federal grand jury in violation of section 2517(5) of Title 18 of the United States Code. The defendants thus conclude that the indictment must be dismissed.
In the alternative to dismissal of the entire indictment or a particular count contained therein, four of the defendants move for suppression of all wiretap conversations in which they were involved on various grounds including failure to name said defendant in the wiretap order, failure to promptly amend said orders to include unrelated crimes, failure to promptly seal the intercepted conversations, and failure to properly minimize. Furthermore, defendant DeCicco moves for inspection of the Grand Jury minutes. Finally, several of the defendants have also moved for severance.
DEFENDANTS' MOTION TO DISMISS COUNT ONE OF THE INDICTMENT
Count One of the indictment charges the defendants with conspiracy to defraud the United States in violation of section 371 of Title 18. As previously noted, the defendants have interjected a variety of contentions which they argue necessitate a dismissal of this count.
The defendants' primary contention is that Count One fails to set forth a cognizable offense against the United States. This contention is predicated on a variety of arguments. First, the defendants contend that the decision whether to eliminate podiatric services from the New York State Medicaid Program was wholly within the jurisdiction of the Executive and Legislative branches of New York. The defendants then point out that no federal agency or public official was directly involved in this decision, and, thus, no federal offense could have been committed. The defendants also maintain that the functions and administration of HEW are separate and independent from any action taken by state officials. Furthermore, the defendants argue that no federal interest was involved which could be defrauded since no legal relationship or responsibility existed between the state officials and HEW with respect to the proposed legislation. Finally, the defendants claim that no official act of a public servant was to be illegally influenced and that no federal funds were either diverted or dependent on the outcome of the proposed legislation. After careful consideration of all of these arguments advanced by the defendants, the Court finds them to be without merit.
To begin with, it appears that the defendants have misconstrued the meaning of the conspiracy to defraud clause of section 371 of Title 18. Furthermore, it appears that the defendants have failed to perceive the pervasive involvement of the federal government in New York State's Medicaid Program. Consequently, the defendants have failed to recognize the vital interest that the federal government has in maintaining the integrity of a state program.
Turning first to the issue of whether the acts alleged in Count One of the indictment fall within the terms of the conspiracy to defraud clause of section 371 of Title 18, it is necessary to initially examine the seminal decision of Hammerschmidt v. United States, 265 U.S. 182, 44 S. Ct. 511, 68 L. Ed. 968 (1924), which analyzed the nature and meaning of this clause. In this case, the Supreme Court stated:
[conspiracy] to defraud the United States means primarily to cheat the government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the government shall be subjected to property or pecuniary loss by the fraud, but only that its official action and purpose shall be defeated by misrepresentation, chicane, or the overreaching of those charged with carrying out the governmental intention.
Id. at 188, 44 S. Ct. at 512 (emphasis supplied). Here, there can be no question that the alleged conspiracy encompassed a "means that [is] dishonest" and that the result impairs, obstructs, and defeats the lawful functions of HEW, and thus the United States. See United States v. Johnson, 383 U.S. 169, 172, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966); Haas v. Henkel, 216 U.S. 462, 479, 30 S. Ct. 249, 54 L. Ed. 569 (1910).
Even the briefest reading of the Medical Assistance Program created by subchapter XIX of the Social Security Act of 1935, 42 U.S.C. § 1396 et seq. (1970), as amended 42 U.S.C. § 1396 et seq. (Supp. V 1975), clearly shows the close relationship which exists between the federal government through HEW and the State of New York. Cf. United States v. Beasley, 550 F.2d 261 (5th Cir. 1977). HEW was and is involved in the planning, establishment, maintenance and revision of the New York Medicaid Program. For example, the Act establishes minimum standards for the medicaid programs of participating states which must be met before a state program receives federal funds. 42 U.S.C. § 1396 et seq. (1970), as amended 42 U.S.C. § 1396 et seq. (Supp. V 1975). Once a plan is adopted by a state, the Secretary of HEW must approve the plan based upon relevant federal statutes and regulations. 45 C.F.R. §§ 201.2, 201.3 (1976). After such an approval, the federal government is obligated to expend federal funds to pay a percentage of the cost of the state program. See 42 U.S.C. § 1396b (1970), as amended 42 U.S.C. § 1396b (Supp. V 1975).
Moreover, comprehensive review of the state program is mandated by federal statute. See 45 C.F.R. § 201.10(a) and (c) (1976). If a state is found in non-compliance with the federal statute, federal funds can be withheld, 42 U.S.C. § 1396c (1970); 45 C.F.R. § 201.6 (1976). Any revision of or amendment to a state plan must be reviewed by HEW and approved by the Secretary. 42 U.S.C. § 1396a (1970), as amended 42 U.S.C. § 1396a (Supp. V 1975); 45 C.F.R. § 201.3 (1976). Finally, the Secretary is empowered to promulgate regulations which are necessary for the proper and efficient operation of state plans. 45 C.F.R. § 205.30 (1976).
Thus, while it is true that the Act gives the states "considerable discretion and latitude in devising their Medicaid Plans," District of Columbia Podiatry Society v. District of Columbia, 407 F. Supp. 1259, 1263 (D.D.C.1975), the Act envisages a "scheme of cooperative federalism," Doe v. Beal, 523 F.2d 611, 616 (3d Cir. 1975) (en banc). To say that no federal interest is involved or that no federal agency action was dependent on state action totally misconceives the nature and purpose of Medicaid. Cf. Beasley, supra at 270-71.
Count One of the indictment specifically charges the defendants with conspiring to defraud the federal government by obstructing and hindering HEW from properly administering and distributing federal funds pursuant to the Medical Assistance Program and of depriving the federal government of New York's honest participation in this program. As stated in the applicable statute, this program was enacted
[for] the purpose of enabling each State, as far as practicable under the conditions in such State, to furnish (1) medical assistance on behalf of families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services . . . [There] is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this subchapter [which] shall be used for making payments to States which have submitted, and had approved by the Secretary of Health, Education, and Welfare, State plans for medical assistance.
42 U.S.C. § 1396 (Supp. V 1975) (emphasis supplied). It is therefore clear that the conspiracy charged in Count One would enable the defendants to continue as recipients of federal medicaid funds and thus had the effect of hindering and obstructing a lawful and highly meritorious federal program. Moreover, it had the effect of depriving the federal government of New York's impartial and honest participation in the federal program. The success of the alleged conspiracy would render it improbable that an unbiased decision would be made as to elimination or retention of podiatric services in the New York Program. A federal interest was, therefore, directly implicated. See Beasley, supra; United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826, 96 S. Ct. 41, 46 L. Ed. 2d 42 (1975); United States v. Sweig, 316 F. Supp. 1148, 1155-56 (S.D.N.Y.1970), aff'd, 441 F.2d 114 (2d Cir.), cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971).
Turning next to the defendants' argument that no official act of a federal public servant was to be corruptly influenced and that no relationship existed between the state officials and HEW, it is apparent that the defendants fail to recognize the responsibility lodged in the state officials with respect to the proposed legislation. United States v. Johnson, 337 F.2d 180 (4th Cir. 1964), aff'd, 383 U.S. 169, 86 S. Ct. 749, 15 L. Ed. 2d 681 (1966), involved an indictment which charged various defendants, including two Congressmen, with conspiracy to defraud the United States. As part of the conspiracy, Congressmen were paid to speak in Congress and to persuade officials of the Justice Department to postpone and ultimately dismiss criminal actions pending against one of the defendants therein. In holding that the indictment was not defective, and in relying on Hammerschmidt, the Court noted that the government had the right not to have official business of the Department of Justice interfered with and obstructed. Similarly, the Court found that the government also had a right to have Congressmen free from corruption and not to be deprived of their faithful, loyal and conscientious services. Id. 337 F.2d at 184-86. Though the convictions of the Congressmen were reversed given their Congressional privilege, id. at 186-92, judgment as to the individual defendants was affirmed, id. at 192. While state legislators are involved herein, the Court finds Johnson to be highly persuasive in viewing the instant indictment. Here, the alleged conspiracy had the effect of interfering with the lawful and proper administration of HEW rather than the Department of Justice. Similarly, the government was deprived of the faithful, loyal and conscientious services of officials, although they were state rather than federal, who were charged with a duty of administering a state program that is inextricably entwined with the federal program. Moreover, state officials were to be influenced through a bribe, a means that is dishonest. Id. at 186. Thus, the revision of the Medicaid Program had a direct effect on the federal government, which was equally as direct as that resulting from the alleged corruption in the Justice Department.
Also on point is the recent Second Circuit decision of United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826, 96 S. Ct. 41, 46 L. Ed. 2d 42 (1975). There, the defendants planned to bribe an employee of the New York City Model Cities Program which was funded and supervised in large part by the Department of Housing and Urban Development (HUD). In affirming the defendant's conviction for violation of the conspiracy to defraud clause of section 371, the Court stated: "[an] agreement that might defraud the federal government in its functions at sometime in the future " was sufficient to support a conspiracy to defraud. Id. at 664 (emphasis supplied). This was true despite the fact that the relationship between the city official and HUD was at best somewhat tenuous. Id. at 662-63. After stating that the essence of the conspiracy was the corrupt agreement to defraud the United States, the Court further noted that as to this charge, the official did not have to be a federal public official. Id. at 663.
Moreover, the Court held that the government has the right to expect the "unprejudiced judgment" of the city official and that any conspiracy to corruptly influence that official would "to some extent . . . subvert the Model Cities Program, and hence the objectives of the United States . . . ." Id. at 663-64 n. 4.
Of similar import was the decision in Harney v. United States, 306 F.2d 523 (1st Cir. 1962), where the Court stated that
it is enough to show a scheme whereby through fraud federal funds in normal course [are] diverted from their true and lawful object. . . .
No lesser effect would have resulted here by the successful completion of the alleged conspiracy. The government had the right to expect that New York's decision to continue Medicaid funds for podiatric treatment would not be connected or influenced by a bribe.
The conspiracy had the direct and immediate effect of "subverting" the Medicaid Program, and, thus, the objectives of the United States. Moreover, the decision to continue such services had the direct effect of committing federal funds in the future, thereby diverting the funds "from their true and lawful object." See also Beasley, supra; United States v. Thompson, 366 F.2d 167 (6th Cir. 1966); Harney, supra; United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y.1970), aff'd, 441 F.2d 114 (2d Cir.) cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971).
As to the defendants remaining contentions regarding Count One, the Court finds them unavailing. As to defendants' contention that the indictment does not state the elements of a conspiracy to defraud, a simple reading of the indictment reveals that these elements are stated. See Roberts v. United States, 416 F.2d 1216, 1220 (5th Cir. 1969); Cross v. United States, 392 F.2d 360, 362 (8th Cir. 1968). Thus, the indictment adequately apprises the defendants of the nature of the crime charged.
The defendants further argue that Count One merely charges a conspiracy to commit bribery in violation of New York law and is thus insufficient for the following related reasons. They claim, first, that it fails to set forth the elements of bribery under New York law; second, that it fails to name the public servant to be bribed; and finally, that it fails to allege that the defendants sought to influence a public servant in his official capacity or that said official had authority to act on Medicaid matters.
Even the most casual reading of the indictment indicates that Count One does not charge as a substantive offense the giving of bribes, nor does it charge a conspiracy to give bribes. Instead, Count One charges an explicit conspiracy to defraud the United States, "the scheme of resorting to bribery being averred only to be a way of consummating the conspiracy." United States v. Manton, 107 F.2d 834, 839 (2d Cir. 1938), cert. denied, 309 U.S. 664, 60 S. Ct. 590, 84 L. Ed. 1012 (1940). Conspiracy to defraud the federal government is prohibited by section 371 and can be violated without reference to whether the crime is consummated, Del Toro, supra 513 F.2d at 663-64, or whether the state law has also been violated, Beasley, supra 550 F.2d at 271. The indictment is sufficient if it indicates that the defendants knew the objective of the conspiracy, agreed to it, and committed an overt act in furtherance thereof. See, e.g., Blumenthal v. United States, 332 U.S. 539, 556-57, 68 S. Ct. 248, 92 L. Ed. 154 (1947); United States v. Crosby, 294 F.2d 928, 945 (2d Cir. 1961), cert. denied, 368 U.S. 984, 82 S. Ct. 599, 7 L. Ed. 2d 523 (1962). Similarly, in Williamson v. United States, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278 (1907), the Supreme Court upheld an indictment which charged a conspiracy to suborn perjury despite the fact that the persons to be suborned were unnamed and the times and places not particularized. Id. at 446-48, 28 S. Ct. 163; see Sanchez v. United States, 341 F.2d 379 (1st Cir. 1975); Llamas v. United States, 226 F. Supp. 351 (E.D.N.Y.1963), aff'd, 327 F.2d 657 (2d Cir. 1964); cf. United States v. Gallishaw, 428 F.2d 760, 763 (2d Cir. 1970).
In United States v. Rosenblatt, 554 F.2d 36 (2d Cir. 1977), the Second Circuit recently reviewed the conspiracy to defraud clause of section 371. There the Court stated that "[the] law of conspiracy requires agreement as to the 'object' of the conspiracy." This, however, did not require proof that the defendants "agreed on the details of their criminal enterprise . . . [only] that the 'essential nature of the plan' must be shown." Id. at 38. However, it is clear from Rosenblatt that an indictment under the conspiracy to defraud clause of section 371 must plead the fraudulent scheme in its particulars. Id. at 42. In the instant case, this has been adequately done. Here, the indictment charges in detail the alleged agreement entered into by all defendants, the object of the alleged conspiracy and the criminal conduct contemplated. As previously noted, elaboration as to state law or the identity of the public servant to be bribed is unnecessary.
Cf. Beasley, supra.
In view of the cases discussed and the clear and significant federal interest in the New York Medicaid Program, and given the fact that the indictment sufficiently alleges the crime of conspiracy, Count One of the indictment properly invokes federal jurisdiction under section 371 and defendants' motion to dismiss this count must therefore be denied.
DEFENDANTS' MOTION TO DISMISS COUNT TWO OF THE INDICTMENT
As previously noted, Count Two of the indictment charges four defendants with a violation of section 1952 of Title 18, commonly known as the Travel Act. See note 12 supra. As with Count One, defendants claim that Count Two fails to invoke federal jurisdiction. Specifically, the defendants contend that the alleged interstate activity consisting of two telephone calls between New York "played no part or [only] a minimal, marginal part in furtherance of the . . . alleged crime." They thus conclude that Count Two fails to state a cognizable offense under section 1952. Defendants further argue that Count Two must be dismissed as being impermissibly vague and also because it fails to allege the necessary elements of the crime charged. In advancing these contentions, the defendants rely on the fact that the indictment merely tracks the language of section 1952, fails to specify the public official in question, and fails to set forth the essential elements of bribery under New York law. Again, the Court rejects the defendants' assertions in all respects.
In support of their position that the interstate activity was marginal and in no way furthered the unlawful activity, defendants rely on Rewis v. United States, 401 U.S. 808, 91 S. Ct. 1056, 28 L. Ed. 2d 493 (1971), its two progeny, United States v. Altobella, 442 F.2d 310 (7th Cir. 1971) and United States v. McCormick, 442 F.2d 316 (7th Cir. 1971) (per curiam), United States v. Archer, 486 F.2d 670 (2d Cir. 1973) and United States v. Judkins, 428 F.2d 333 (6th Cir. 1970). In Rewis, certain defendants operated a lottery in Florida which was frequented by out-of-state customers who were also defendants therein. Significantly, the Supreme Court noted that there was no evidence that the operator defendants had at any time crossed state lines in connection with the lottery's operation. 401 U.S. at 810, 91 S. Ct. 1056, 28 L. Ed. 2d 493. In reversing the convictions, the Court stated that the legislative history "[reveals] that § 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one state while operating or managing illegal activities located in another." Id. at 811, 91 S. Ct. at 1059. The Court also noted "§ 1952 strongly suggests that Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State." Id. at 812, 91 S. Ct. at 1059.
Altobella involved the extortion of a Philadelphia victim during a Chicago business trip. As in Rewis all the defendants' activities occurred solely in Chicago. However, the extortion did involve the cashing by the victim of a personal check drawn on a Philadelphia bank. Use of the mails was thus required for the check to clear. 442 F.2d at 311-12. The Altobella Court concluded "when both the use of [an] interstate facility and the subsequent act are as minimal and incidental as in this case, we do not believe a federal crime has been committed." Id. at 315. In McCormick the sole interstate effect was the placing by the defendants of an advertisement in a local newspaper which was distributed by the mails to numerous out of state residents. 442 F.2d at 317. The Court stated:
[the] role played by the interstate mailings was "a matter of happenstance" and "minimal and incidental" to the operations of the illegal lottery. As in Rewis and Altobella the interstate activities . . . were the acts of others and were not actively sought or made part of the illegal activity of the accused. . .. [Defendants] neither "used" nor "caused to be used" any interstate facility as an instrumental part of his illegal operations.
Id. at 318 (emphasis supplied).
Based on the above review of Rewis, Altobella and McCormick, major differences among them and the instant case become readily apparent. As the Second Circuit stated in United States v. Kahn, 472 F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982, 93 S. Ct. 2270, 36 L. Ed. 2d 958 (1973),
[the] common thread through each of these decisions is that the defendants themselves engaged in no interstate activities, and that the total interstate travel aspect of the enterprises was either marginal or unforeseen. Indeed, the Rewis court left open the question of whether proof of active solicitation of an interstate clientele might come within the Act, and cited with explicit approval cases where the statute was applied to individuals whose agents or employees crossed state lines in furtherance of an illegal activity.
Id. at 285 (emphasis supplied). In the instant case, the defendants themselves used interstate facilities in furtherance of the illegal scheme. It was neither marginal nor incidental but constituted a central part of and greatly facilitated the defendants' overall plan. The fact that considerable intrastate activity also occurred does not alter the applicability of the Travel Act. See United States v. LeFaivre, 507 F.2d 1288 (4th Cir. 1974), cert. denied, 420 U.S. 1004, 95 S. Ct. 1446, 43 L. Ed. 2d 762 (1975); United States v. McLeod, 493 F.2d 1186 (7th Cir. 1974); United States v. DeSapio, 435 F.2d 272 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S. Ct. 2170, 29 L. Ed. 2d 166 (1971).
Defendants' other arguments with respect to Court Two must also be rejected. The mere tracking of the language of section 1952 does not render the indictment legally insufficient. E.g., United States v. Levine, 457 F.2d 1186, 1189 (10th Cir. 1972). United States v. Nichols, 421 F.2d 570, 573-74 (8th Cir. 1969); Turf Center, Inc. v. United States, 325 F.2d 793, 796 (9th Cir. 1963); see, e.g., United States v. Trotta, 525 F.2d 1096, 1099 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976), United States v. Cohen, 518 F.2d 727, 732-33 (2d Cir.), cert. denied, 423 U.S. 926, 96 S. Ct. 270, 46 L. Ed. 2d 252 (1975); United States v. Salazar, 485 F.2d 1272, 1277 (2d Cir. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1579, 39 L. Ed. 2d 882 (1974); United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968), cert. denied, 394 U.S. 933, 89 S. Ct. 1205, 22 L. Ed. 2d 463 (1969).
Similarly, failure to set forth the elements of bribery under New York laws also does not render the indictment insufficient. Such a contention was categorically rejected by the Seventh Circuit in United States v. Rizzo, 418 F.2d 71 (7th Cir. 1969), cert. denied, 397 U.S. 967, 90 S. Ct. 1006, 25 L. Ed. 2d 260 (1970). There the Court stated:
[the] gravamen of a charge under Sections 371 and 1952 is the violation of federal law. As it relates to the substantive counts, the offense is the use of an interstate facility, with the intent to promote or further an unlawful activity in violation of state law, and the performance of some act designed to promote or further that illegal purpose. Reference to state law is necessary only to identify the type of unlawful activity in which the defendants intended to engage.
It is not necessary to allege the elements of the state substantive offense intended to be committed, or that the unlawful objective intended was accomplished.
Id. at 74 (emphasis supplied); see United States v. Pomponio, 511 F.2d 953, 957 (4th Cir.), cert. denied, 423 U.S. 874, 96 S. Ct. 142, 46 L. Ed. 2d 105, 96 S. Ct. 143 (1975); United States v. Corallo, 413 F.2d 1306, 1320 (2d Cir. 1969); McIntosh v. United States, 385 F.2d 274, 276 (8th Cir. 1967).
From this also flows the conclusion that it is likewise unnecessary to name in the indictment the public official who was the alleged object of the bribe.
The instant indictment arose out of a joint investigation conducted by the King's County District Attorney's Office, the New York City Police Department and the United States Attorney's Office for the Eastern District of New York. At various times during the investigation, a series of wiretap and eavesdropping orders were authorized by four State Supreme Court judges on application of the King's County District Attorney. These orders permitted the interception of conversations relating to bribery of public officials and conspiracy to commit this act in violation of the New York Penal Law, sections 200.00, 200.10, 105.05.
No federal offense was alleged in these orders.
Subsequent to the expiration of these wiretap orders, the United States Attorney for the Eastern District of New York sought and obtained an amendment of the state orders pursuant to 18 U.S.C. § 2517(5). Each amendment order was signed by the state judge who had initially authorized the state intercept order. The amendments permitted the interception of communications relating to five federal offenses: interference with interstate commerce by threats or violence, 18 U.S.C. § 1951 (1970); interstate travel or transportation in aid of racketeering enterprises, 18 U.S.C. § 1952 (1970); fraud by wire, 18 U.S.C. § 1343 (1970); aiding and abetting in the commission of the aforementioned offenses, 18 U.S.C. § 2 (1970); and conspiracy to commit the above offenses, 18 U.S.C. § 371 (1970). The intercepted communications were later presented to the federal grand jury that returned the instant indictment.
The defendants have moved to dismiss the indictment, or alternatively to suppress the interceptions, on the ground that the wiretap evidence was submitted to the grand jury in violation of 18 U.S.C. § 2517(5) (1970).
In support of this contention, the defendants primarily rely on the recent Second Circuit decision in United States v. Marion, 535 F.2d 697 (2d Cir. 1976), which substantially altered the previous judicial interpretation and application of § 2517(5). See id. at 708 (Anderson, J., dissenting). Based on Marion, the defendants contend that the indictment must be dismissed because (1) a separate federal wiretap order was not obtained; (2) the amendment to the state orders was not obtained "as soon as practicable"; (3) any use of the interceptions to prove violations of the conspiracy to defraud clause of section 371 is improper since section 2516 of Title 18 does not specifically authorize interception of communications relating to that offense; and (4) the interceptions were improperly submitted to the grand jury in that the amendment orders failed to specify the conspiracy to defraud clause of section 371.
Before turning to each of these arguments, the background and purpose of the federal wiretap legislation is to be noted. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (1970), embodies comprehensive federal legislation in the area of wiretapping and electronic surveillance. The Act was enacted to conform with the constitutional requirements for electronic surveillance set forth by the Supreme Court in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In accordance with the Berger-Katz admonition, Title III authorizes the interception of oral and wire communications only in the investigation of specified serious crimes, 18 U.S.C. § 2516(1) & (2) (1970), and only after prior judicial approval has been obtained. Such approval is obtainable only after compliance with Title III's strict procedures, 18 U.S.C. § 2518 (1970), see United States v. Giordano, 416 U.S. 505, 513, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974); Gelbard v. United States, 408 U.S. 41, 46, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972); Marion, supra at 700. Thus, the Act establishes "the minimum standard against which the interception in question must be judged." Marion, supra at 701; see S.Rep. No. 1097, 90th Cong., 2d Sess., at 12, quoted in 2 U.S.Code Cong. & Admin.News, pp. 2112, 2187 (1968). Unless authorized by Title III, all interceptions of wire and oral communications are prohibited. See Gelbard, supra, 408 U.S. at 46, 92 S. Ct. 2357.
Sections 2515 and 2517 of Title III, 18 U.S.C. §§ 2515, 2517 (1970), form an integral part of the Title III scheme. See Gelbard, supra 408 U.S. at 50, 92 S. Ct. 2357; Marion, supra at 706; United States v. Brodson, 528 F.2d 214, 215-16 (7th Cir. 1975). Section 2515 provides that the contents of electronic surveillance, and any derivative evidence thereby obtained, may not be used at a criminal trial or before any grand jury "if the disclosure of that information would be in violation of this chapter." This section thus establishes an evidentiary prohibition designed to enforce the limitations imposed by Title III on electronic surveillance. Gelbard, supra 408 U.S. at 48-50, 92 S. Ct. 2357; S.Rep. No. 1097, supra at 96, quoted in 2 U.S.Code Cong. & Admin. News, supra at 2184. If the requirements of Title III are followed, however, section 2517 authorizes the use and disclosure of intercepted communications, 18 U.S.C. § 2517(1)-(3) (1970), unless the intercepted communication "[relates] to offenses other than those specified in the order of authorization or approval . . . .", 18 U.S.C. § 2517(5) (1970). In the latter instance, a second application must be made "as soon as practicable", id., to a judge of competent jurisdiction. This judge must determine the good faith of the original wiretap application before authorizing disclosure and use of the "other" offenses. Marion, supra at 700; Brodson, supra at 216.
With this general overview in mind, the defendants' contentions can now be properly examined. Since the defendants' "as soon as practicable" argument and their separate federal order contention apply to both the section 371 and the section 1952 counts, these will be addressed initially.
With respect to the allegation that the amendment to the state order was not obtained "as soon as practicable", it is important to note that the Second Circuit has stated that this requirement is to be viewed "in a common-sense fashion." Marion, supra at 707. Here, the amendment was obtained approximately three months after expiration of the initial wiretap orders. While such a delay may be improper under certain circumstances, this Court finds no error under the instant facts. Decisions which have analyzed the above requirement have all involved use of the "communications relating to offenses other than those specified in the [initial] order of authorization or approval" prior to obtaining judicial approval for the disclosure. See Marion, supra at 707-08; Brodson, supra at 215. This is not the case here since the state court authorization permitting disclosure of the intercepted communications as evidence of possible federal offenses was obtained prior to disclosure of the seized conversations. Under these circumstances, the defendants can show no prejudice since prior to the use of the interceptions, a judge of competent jurisdiction had favorably passed on the good faith and the legality of the initial orders. Therefore, the Congressional intent behind section 2517(5) was served and the procedure followed herein conformed with the underlying purpose and requirements of Title III. To hold otherwise would be to exalt form over substance.
See United States v. Vento, 533 F.2d 838, 855 (3d Cir. 1973).
Defendants next contend that the Second Circuit's decision in Marion requires a separate federal disclosure order under the facts of this case. Such an approach, however, represents an excessively restrictive interpretation of Marion. There, in the context of a joint federal ...