The opinion of the court was delivered by: SWEET
In an omnibus motion, all defendants in this multicount indictment alleging a pattern of racketeering activity and securities fraud and bankruptcy fraud conspiracies in connection with the operation of the Westchester Premier Theatre (the "Theatre") have moved, pursuant to Rule 41(b), Fed.R.Crim.P., and 18 U.S.C. § 2518(10)(a), for an order suppressing evidence obtained as a result of electronic surveillance authorized by five court orders:
a. An order signed March 10, 1977 by the Honorable Malcolm Lucas of the Central District of California ("Order # 1");
b. An order signed April 8, 1977 by Judge Lucas ("Order # 2");
c. An order signed May 5, 1977 by the Honorable Whitman Knapp of the Southern District of New York ("Order # 3");
d. An order signed June 21, 1977 by Judge Knapp ("Order # 4"): and
e. An order signed June 28, 1977 by Judge Knapp ("Order # 5").
The defendants have moved to suppress this wiretap evidence on the basis of the affidavits relied upon by the courts for issuance of the orders, failure of the Government to minimize properly the interception of nonpertinent communications, improper security surrounding the making and storage of tapes prior to sealing and failure to amend properly the orders.
In addition, defendant Weisman has moved to dismiss the indictment against him on the ground that the Government improperly utilized testimony Weisman had given in prior proceedings under an alleged grant of immunity. Weisman has also moved to suppress certain post-arrest statements made by him which the Government is alleged to have improperly obtained.
This court held hearings on August 8, 9, 10, 11, 28 and 29 with regard to factual issues raised by these motions. For the reasons stated below, defendants' motion to suppress evidence obtained through the five court ordered wiretaps is denied. The motions of defendant Weisman are granted with respect to certain statements and denied as to others.
The background of this action, including the allegations of the Indictment, have been set forth in this court's opinion of August 26, 1978 and will not be repeated here. As part of the Government's investigation of the alleged illegal activities which resulted in the instant Indictment, five wiretap orders, two in California and three in New York, were obtained and it is the fruits of these wiretaps which the defendants seek to exclude in this case.
I. Defendants' Motions to Suppress Wiretap Evidence.
The Sufficiency of the Affidavits.
The five wiretap orders were all issued pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, whose purpose "was effectively to prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order" in certain circumstances. United States v. Giordano, 416 U.S. 505, 514, 94 S. Ct. 1820, 1826, 40 L. Ed. 2d 341 (1974). Central to this regulatory scheme is the requirement under 18 U.S.C. § 2518(3)
that a court issuing an intercept order must make the following specific findings. First, it must determine that probable cause exists in three distinct contexts: (a) an individual has or is about to commit an enumerated offense;
(b) communications concerning that offense will be obtained through such interception; and (c) the communication facilities intercepted are being used in connection with the commission of the offense by such individual. Second, the issuing court must determine that it is reasonably unlikely that normal investigative techniques would succeed if tried or would be too dangerous.
Defendants challenge the evidence obtained as a result of these wiretaps on two principal grounds. First, they challenge the sufficiency of the affidavits of the Government agents upon which the courts relied in issuing the wiretap orders as failing to establish the requisite probable cause. Second, they assert the affidavits failed to establish a need for electronic surveillance under Section 2518(3). Before turning to the specific objections, the background and scope of each of the court-authorized wiretaps will be set forth.
Background of the Wiretaps.
In Order # 1, Judge Lucas authorized the interception of wire communications over two telephones located at the home of defendant Marson. In so doing, Judge Lucas found there was probable cause to believe that Marson and others (not including any defendants in this case) were committing various state and federal crimes constituting a pattern of racketeering in connection with the supply of cleaning materials to Las Vegas hotels by a Las Vegas cleaning supply and service company; that there were communications over Marson's telephones concerning these activities; and that there was no reasonable likelihood that normal investigative procedures would be successful.
Judge Lucas' findings were based upon the affidavit of Special Agent Melvin L. Flohr of the Federal Bureau of Investigation ("FBI"), dated March 10, 1977.
The factual basis of Agent Flohr's affidavit is premised upon three confidential informants (denoted as Source One, Source Two and Source Three) who relayed, through other FBI agents, the substance of conversations had with, and observations of, Marson and others named in the order. Information obtained from these sources as set forth in Agent Flohr's affidavit alleged that cleaning supply and service contracts would be obtained from these hotels through threats to call outstanding loans or otherwise to cause problems at the hotels. Additionally, it was indicated that future cleaning supply and service contracts from other companies and state agencies would be obtained improperly. These sources also indicated that Marson used his residence telephones in seeking to accomplish these ends. All three sources were alleged to have had a history of credibility and trustworthiness.
In Order # 2, Judge Lucas authorized continued interception of communications over Marson's two telephones, finding probable cause to believe that individuals named in Order # 1 and six others were committing the same criminal violations alleged in Order # 1 constituting a pattern of racketeering activity which extended to the operations of an employee welfare benefit plan and improper means to collect extensions of credit; that wire communications concerning these offenses were occurring over Marson's telephones and that there was no reasonable likelihood that normal investigative procedures would succeed. Again, Judge Lucas based these findings upon the affidavit of Agent Flohr, dated April 18, 1977. Agent Flohr based the assertions in his affidavit upon information relayed to him through other FBI agents from Source Two and upon information gleaned from conversations intercepted under Order # 1. In particular, the affidavit alleged that intercepted conversations demonstrated that Marson stated he would send a "message" to an individual who owed him money in order to secure immediate repayment. Source Two informed FBI personnel that attempts were being made to obtain contracts for services by improper means. Intercepted conversations confirmed attempts by Marson and others to interest others in this effort. Source Two also reported that Marson and others continued to use threats or improper inducements to obtain contracts.
Judge Knapp issued Order # 3, authorizing the interception of wire communications over eight telephones located at the Theatre and one telephone at the Scarsdale, New York residence of defendant DePalma. Judge Knapp found reasonable cause to believe that Martin Eisner and defendants Marson, DePalma, Weisman and Cannatella were defrauding Theatre creditors and that Marson, DePalma and Eisner were engaged in a pattern of racketeering activity constituting bankruptcy fraud and the interstate transportation of stolen property. Judge Knapp further found that communications concerning these activities were occurring over the telephones to be tapped and that there was no reasonable likelihood that normal investigative procedures would succeed. Order # 3 was based upon the affidavit of Special Agent Charges B. Walker of the FBI, sworn to on May 5, 1977. The factual assertions in Agent Walker's affidavit were premised upon information obtained through other FBI personnel, from conversations Source Two had with Marson and upon telephone conversations intercepted under Orders # 1 and # 2 which, according to the Government, corroborate the information given by Source Two. Specifically, Source Two asserted that he had been informed by Marson that Marson and DePalma had been skimming money out of the Theatre's operations from concessions and ticket sales which were not reported on the Theatre's books and that as a result of Chapter XI proceedings, the presence of auditors at the Theatre had made this skimming operation more difficult. Source Two also asserted Marson and DePalma had daily telephone contact concerning this scheme. Telephone conversations intercepted pursuant to Orders # 1 and # 2 were cited by the Government as indicating that Marson and others were removing or attempting to remove money from the Theatre pending Chapter XI proceedings; that moneys were being skimmed from Theatre revenues; and that Marson and Weisman discussed the filing of a false financial statement for the Theatre.
Order # 4, authorizing the continued interception of communications over DePalma's residential telephone, was issued by Judge Knapp upon a finding that probable cause existed to believe that the same individuals named in Order # 3 plus one "Richie", believed to be defendant Richard Fusco, were committing the same criminal violations set forth in Order # 3; that conversations concerning these activities were occurring over DePalma's telephone and that there was no reasonable likelihood that normal investigative procedures would be successful. Judge Knapp's order was based upon the affidavit of Special Agent Robert Tolan, dated June 21, 1977, which in turn relied upon two confidential informants, denoted as Source One and Source Two.
Source One relayed through other FBI agents the substance of conversations he had had with a reputed figurehead in organized crime concerning loans made to a party connected with the Theatre at substantial rates of interest. Such loans would then be repaid out of Theatre proceeds. Source Two related, through other FBI agents, the substance of conversations with, and observations of, Weisman, DePalma and Fusco which indicated that these parties were systematically skimming large sums of money from the Theatre. Both Source One and Source Two were alleged to be reliable. In addition, Agent Tolan relied upon conversations intercepted pursuant to Order # 3 concerning various methods by which Marson, DePalma and others were attempting to recoup their investments in the Theatre pending the Chapter XI proceedings and past attempts to obtain proceeds of Theatre sales which were not recorded in Theatre books.
Order # 5, authorizing the interception of a Theatre telephone and a second telephone at the DePalma residence, was issued by Judge Knapp upon a finding of probable cause to believe that the subjects named in Order # 4 were committing the violations set forth in Orders # 3 and # 4; that communications concerning these activities were occurring over those telephones; and that there was no reasonable likelihood that normal investigative procedures would succeed. In support of Order # 5, the Government submitted the affidavit of FBI Special Agent Joseph Keating, dated June 28, 1977. Agent Keating's affidavit repeated much of the same information contained in Agent Tolan's affidavit, but in addition set forth information obtained from Source Two concerning the regular use made by DePalma of his second residential telephone and of his private line at the Theatre in connection with the criminal activities stated in the order. Agent Keating's affidavit also relied upon conversations intercepted pursuant to Order # 2, indicating that these two additional lines were used by DePalma for the criminal activity stated in the order.
Marson and Pacella, Fusco and Cannatella seek to suppress the evidence obtained as a result of the wiretaps on the basis that the orders are not supported by either probable cause or a particularized need under Title III.
Additionally, these defendants assert that the issuance of Order # 1 was invalid under Title III and thus interceptions from Order # 1 may not be used to establish probable cause for subsequent applications. 18 U.S.C. § 2515. See, Wong Sun v. United States, 371 U.S. 471, 491, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), United States v. Wac, 498 F.2d 1227, 1232 (6th Cir. 1974).
In ascertaining whether the Government has provided sufficient probable cause to a court issuing an order of electronic surveillance, a finding of probable cause made by the issuing court on the basis of detailed affidavits "is entitled to deference by a reviewing court." United States v. Londono, 553 F.2d 805, 810 (2d Cir. 1977). See also Aguilar v. Texas, 378 U.S. 108, 111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); In re Persico, 362 F. Supp. 713 (E.D.N.Y.1973). Additionally, affidavits submitted in support of court orders for electronic surveillance must be viewed by the court as a whole and "in a practical and commonsense fashion." United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), Cert. denied, 425 U.S. 971, 96 S. Ct. 2167, 48 L. Ed. 2d 794 (1976), citing S.Rep.No.1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Ad.News, pp. 2112, 2190. See also United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); United States v. Schwartz, 535 F.2d 160, 163 (2d Cir. 1976), Cert. denied, 430 U.S. 906, 97 S. Ct. 1175, 51 L. Ed. 2d 581, Reh. denied, 430 U.S. 976, 97 S. Ct. 1669, 52 L. Ed. 2d 371 (1977). Of course, probable cause cannot be made out by affidavits which are purely conclusory; an affidavit stating an affiant's or informant's belief that probable cause exists must recite the underlying circumstances upon which that belief is based. United States v. Ventresca, supra, 380 U.S. at 108-109, 85 S. Ct. 741.
The Lack of Probable Cause
All of the defendants assert that the wiretaps were issued upon an insufficient showing by the affiants of probable cause.
Because Order # 1 relies most heavily upon informant information, defendants' attack is concentrated primarily upon assertions that the various informants, whose testimony was utilized in Agent Flohr's twenty-eight page affidavit to establish probable cause, were unreliable. Additionally, the defendants assert that much of the information supplied by these informants was stale and thus should not have been relied upon in determining probable cause.
In Aguilar v. Texas, supra, the Court set forth a two-pronged test to evaluate affidavits based upon informant information: (1) the affidavit must state in sufficient detail the underlying circumstances upon which the informant bases his information; and (2) the informant must be credible or the information must be reliable. 378 U.S. at 114, 84 S. Ct. 1509. See also Franks v. Delaware, 437 U.S. 154, 164 98 S. Ct. 2674, 2681, 57 L. Ed. 2d 667 (1978); Spinelli v. United States, 393 U.S. 410, 416, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). Although courts are often called upon to make "fine judgments . . . to determine whether an affidavit states facts sufficient to show probable cause" for issuance of a wiretap order, See United States v. Karathanos, 531 F.2d 26, 29 (2d Cir.), Cert. denied, 428 U.S. 910, 96 S. Ct. 3221, 49 L. Ed. 2d 1217 (1976), Agent Flohr's affidavit and its use of three confidential sources meets the Aguilar test.
Agent Flohr's affidavit adequately set forth the underlying circumstances which formed the basis of the informants' information. All three sources based their information upon statements and admissions made to the sources by Marson and others named in Order # 1 which indicated the use of threats and other improper methods to obtain supply and service contracts. Moreover, through personal observations by Source Two, it was established that Marson used the telephone numbers named in the order to achieve these ends.
In such circumstances, personal observation by the informant is sufficient to establish both the reliability of the information, United States v. Rollins, 522 F.2d 160, 164 (2d Cir. 1975), Cert. denied, 424 U.S. 918, 96 S. Ct. 1122, 47 L. Ed. 2d 324 (1976), as well as probable cause to believe that the telephones were used for the asserted purposes, United States v. Finn, 502 F.2d 938, 941 (7th Cir. 1974).
Moreover, to the extent possible, the information given by the sources was corroborated by the independent accounts of the sources themselves, by independent investigation by FBI personnel of telephone records, as well as through public documents and interviews. More specifically, allegations that Marson used his home telephones to participate in the operations were supported by an examination of telephone toll records which indicated that numerous telephone calls were made between Marson's residence and others named in the order. Examinations of public documents revealed the existence of loans and the sale of certain supplies to several Las Vegas hotels. Public records also disclosed that one of the principals named in the order was an officer of a company involved in such sales. Finally, FBI interviews with other sellers revealed a pattern of threats and interference with their business position. Taken as a whole, Agent Flohr's affidavit is sufficient to establish probable cause. United States v. Esposito, 423 F. Supp. 908, 911 (S.D.N.Y.1976).
Finally, each of the informants had a history of furnishing truthful and reliable information. United States v. Esposito, supra. Source One and Source Two furnished information to the FBI for twelve and nine years, respectively, which led to numerous arrests and convictions as well as the recovery of substantial amounts of property. Source Three was stated to have supplied information for several years leading to numerous arrests and the recovery of substantial amounts of property. All three sources had a history of corroboration by physical and court-ordered electronic surveillance. These circumstances established the credibility of the sources.
Defendants also challenge the continued use in Agent Flohr's affidavit of multiple hearsay. Almost without exception, each of the informants' reports, upon which the Government relied to establish probable cause, was based upon conversations had with individuals in the order, which conversations were reported to an FBI agent and were in turn conveyed to Agent Flohr. Multiple hearsay does not automatically make an affidavit insufficient to supply probable cause; rather, the central issue remains whether the informant's information received in the totality of circumstances can reasonably be said to be reliable. United States v. Fiorella, 468 F.2d 688, 691 (2d Cir. 1972), Cert. denied, 417 U.S. 917, 94 S. Ct. 2622, 41 L. Ed. 2d 222 (1974). Where a substantial basis exists for crediting the hearsay, the finding of probable cause will not be invalidated. United States v. Agrusa, 541 F.2d 690, 694 (8th Cir. 1976), Cert. denied, 429 U.S. 1045, 97 S. Ct. 751, 50 L. Ed. 2d 759 (1977). Here, all three confidential sources were demonstrated to have been credible and reliable. It has been recognized in this circuit that although the use of multiple hearsay in such cases "is not to be encouraged", given the circumstances of this case, "and the fact that the middle man in the hearsay chain was a named FBI agent . . . the affidavit provides probable cause for the wiretap order." United States v. Fiorella, supra, 468 F.2d at 691-2.
A more difficult problem is presented by the use in Agent Flohr's affidavit of what is contended by the defendants to be "stale" information. In particular, defendants attack the use made by Agent Flohr of information obtained from Source One almost nine months prior to the application for Order # 1 relating to Marson's connection with the scheme for obtaining contracts improperly. Also attacked is Agent Flohr's use of information obtained from Source Two some six weeks prior to application for Order # 1, relating to Marson's involvement and the use of Marson's two residential telephones concerning the scheme.
In Sgro v. United States, 287 U.S. 206, 53 S. Ct. 138, 77 L. Ed. 266 (1932), the Court held that proof of probable cause "must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time." 287 U.S. at 210, 53 S. Ct. at 140. However, the Court noted that "(w)hether the proof meets this test must be determined by the circumstances of each case." Id. at 210-211, 53 S. Ct. at 140. Thus, although probable cause must exist at the time application for court-ordered surveillance is made, "(t)he question of the staleness of probable cause depends more on the nature of the unlawful activity alleged in the affidavit than the dates and times specified therein." United States v. Harris, 482 F.2d 1115, 1119 (3d Cir. 1973). In United States v. Johnson, 461 F.2d 285, 287 (10th Cir. 1972), the court noted that "the vitality of probable cause cannot be quantified by simply counting the number of days between the occurrence of the facts relied upon and the issuance of the affidavit. . . . (W)here the affidavit properly recites facts indicating activity of a protracted and continuous nature, a source of conduct, the passage of time becomes less significant." See also United States v. Hyde, 574 F.2d 856, 865 (5th Cir. 1978) (issue of staleness "must be examined more liberally when a continuing pattern of criminal activity is alleged"). Agent Flohr's affidavit indicates the participation of Marson and others in the establishment and operation of the scheme to obtain contracts improperly over a nine-month period, confirmed in part by the FBI's own investigation over the period. Because of the nature of this protracted and continuous operation, and the obvious sensitivity of the investigation necessary to obtain confirmation of the scheme, this court does not find the information given by Source One and Source Two to be stale to the point of requiring suppression. See United States v. Harris, supra, 482 F.2d at 1119; United States v. Fina, 405 F. Supp. 267, 274-275 (E.D.Pa.1975).
In attacking the absence of probable cause in the remaining orders, the defendants have laboriously dissected into minute detail the lengthy affidavits submitted in support of those orders. Notwithstanding, there is no reason to disturb the findings of probable cause made by Judge Lucas and Judge Knapp in the remaining orders.
As stated in Marson's brief, Agent Flohr's forty-three page affidavit of April 18, 1977, submitted in support of Order # 2, relies almost entirely upon evidence obtained as a result of Order # 1, which has been found to have been validly based on probable cause. Considering both the information accrued as a result of Order # 1 and the information recounted in Agent Flohr's affidavit, ample evidence was presented to justify Judge Lucas' finding of probable cause with respect to Order # 2. Intercepted communications of Marson and others named in Order # 2 concerned interference with commerce by threats or violence, bribery, solicitation to influence the operations of a benefits plan and improper means to collect extensions of credit. Of course, intercepted conversations may be used to establish probable cause for the renewal of a wiretap order. United States v. Fury, 554 F.2d 522, 530-31 (2d Cir.), Cert. denied, 433 U.S. 910, 97 S. Ct. 2978, 53 L. Ed. 2d 1095 (1977). Moreover, Source Two, whose credibility has already been established, confirmed the use of improper means to obtain contracts through personal conversations with Marson. Finally, the intercepted conversations themselves provide ample proof of the use of Marson's telephones to achieve these ends. Agent Flohr's affidavit also demonstrates that continuation of Order # 1 was required in order to further identify and define the roles of individuals in the scheme uncovered in intercepted conversations under Order # 1, and thus meets the requisites of Section 2518(1)(f).
Similarly, Agent Walker's twenty-six page affidavit, submitted in support of Order # 3, and which relies primarily upon confidential informants and communications intercepted pursuant to Orders # 1 and # 2, is attacked for lack of probable cause in its assertion that the parties named in the order were committing offenses including interstate transportation of stolen property, bankruptcy fraud and racketeering. Again, probable cause has been established. Intercepted communications indicated that Marson, DePalma and others attempted to falsify financial records at the Theatre and attempted to remove money from the Theatre through "gimmicks" which would not be discovered by Theatre auditors. Source Two, whose credibility has already been considered, advised Walker through another FBI agent that in conversations with Marson, Marson admitted "skimming money off the top" from Theatre operations with DePalma's assistance and these proceeds were forwarded to Marson in California. Moreover, Source Two stated that DePalma called Marson daily from the Theatre or his residence to keep Marson advised of Chapter XI proceedings involving the Theatre and of attempts to get money out of the Theatre. Source Two's statements are reliable, having been corroborated by intercepted conversations and, to the extent possible, independent FBI investigation. For example, an examination of public records indicated that the Theatre had recently filed Chapter XI proceedings. In addition, telephone company records indicated several calls between Marson and the Theatre. Previously intercepted conversations established DePalma's role in the operation of the Theatre and his attempts to remove money from the Theatre during the pendency of the Chapter XI proceedings. Moreover, the intercepted conversations also set forth the role of Marson and Cannatella in attempting to remove money from the Theatre and the attempts of Marson and Weisman to conceal such activities from Theatre creditors.
Finally, Cannatella's claim that there was no probable cause for believing that the Theatre phones would be used for criminal conversations is refuted both by Source Two's statement that DePalma called Marson daily from the Theatre and by communications intercepted pursuant to Orders # 1 and # 2 which indicated that Theatre telephones were being used for discussions concerning a false Theatre financial statement and the desire to run the Theatre into bankruptcy in order to avoid paying creditors.
Agent Tolan's twenty-eight page affidavit in support of Order # 4 also sufficiently establishes probable cause to continue for a thirty-day period electronic surveillance on DePalma's residential telephone. Conversations intercepted as a result of Order # 3 demonstrate probable cause that Marson, DePalma, Eisner, Weisman and Cannatella were participating in offenses involving bankruptcy fraud; that Marson and DePalma were participating in offenses involving interstate transportation of stolen property; and that Marson, DePalma and Eisner were participating in offenses involving racketeer-influenced and corrupt organizations. Moreover, it was established through intercepts made pursuant to Order # 3 that conversations concerning these activities took place over DePalma's residential telephone. Specifically, intercepted conversations showed that during the pendency of the Chapter XI proceedings sums of money were being diverted from proceeds of the Theatre to pay selected individuals including Marson, DePalma, Weisman and Cannatella. There was also evidence that certain Theatre tickets were sold without reporting the proceeds on the Theatre's books and records. A confidential informant, described by Agent Tolan as Source One, connected DePalma with Theatre operations and with loans made to DePalma by organized crime figures. Because meetings between DePalma and organized crime figures were corroborated by FBI surveillance and because of Source One's history of reliability, Source One's information passes muster under the Aguilar test.
Finally, Agent Tolan's affidavit demonstrated the need for continued surveillance over DePalma's telephone under Section 2518(1)(f). Although significant amounts of information regarding the activities in Order # 4 had been gleaned from Order # 3, the full extent and scope of the criminal activity had not been uncovered. Individuals who had been mentioned by those named in the order were not fully identified, nor were their full roles in the Theatre operation known. As observed by Agent Tolan, only the tip of the iceberg of criminal activity had been uncovered. Accordingly, extension of the wiretap on DePalma's telephone was warranted.
Similarly, Agent Keating's thirty-four page affidavit established sufficient probable cause for the issuance of Order # 5 which authorized electronic surveillance over a telephone at the Theatre and over a second telephone at the DePalma residence. Agent Keating's affidavit repeated much of the information given in Agent Tolan's affidavit which established probable cause that the named subjects were participating in criminal activity in connection with the Theatre's operation. Additionally, Agent Keating's affidavit established the requisite probable cause that an additional telephone at the DePalma residence and a Theatre telephone were used for this purpose. Several intercepted conversations referred to the use of these telephone lines by DePalma, and FBI investigators confirmed the telephones were subscribed to by DePalma and the Theatre, respectively.
Accordingly, no reasons have been presented to disturb the findings of Judge Lucas and Judge Knapp that sufficient probable cause existed to issue the wiretaps authorized by Orders # 1 through # 5.
The Availability of Alternative Investigatory Techniques.
Section 2518(3)(c) also requires that a finding that normal investigative procedures reasonably appear unlikely to succeed if tried or to be too dangerous. Defendants Marson, Cannatella, Pacella and Fusco attack the findings made before the issuance of each wiretap order on this basis.
It has already been observed in this circuit that:
the purpose of these "other investigative techniques" requirements "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques." Moreover, the required showing is to "be tested in a practical and commonsense fashion." In short, the requirement is "simply designed to assure that wiretapping is not resorted to in situations where traditional investigation techniques would suffice to expose the crime."
United States v. Fury, supra, 554 F.2d at 530 (citations omitted). As stated by the court in United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977):
(An) affidavit is not insufficient because it did not prove beyond a shadow of a doubt that ordinary techniques will fail or that their use will result in a loss of life or some equivalent disaster. The standard of reasonableness should be employed in measuring the affidavit against the statutory requirements.
Thus, for an affidavit to be invalid under Section 2518(1)(c), there must be more than "the remote possibility that other investigative paths might lead to the desired evidentiary result." United States v. Baker, 443 F. Supp. 526, 530 (S.D.N.Y.1977).
Measured against these standards, the court finds Agent Flohr's affidavit submitted in support of Order # 1 sufficiently demonstrated the reasonable unlikelihood of success of alternative methods. Agent Flohr's affidavit recounted the difficulty of personal surveillance on Marson's home by reason of its secluded and carefully guarded location.
All three confidential sources stated they would not testify because of fear for their own personal safety and, if granted immunity, Sources Two and Three would not be able to give direct testimony against those who control Marson's activities. Infiltration of the group named in the order was attempted by undercover agents but this proved fruitless; although other infiltration was to be attempted through the establishment of a competitive company vis-a-vis the Las Vegas cleaning supply and service company, this was considered dangerous and only of limited value in view of the fact that no source could provide information that documentary evidence existed which could be used against the individuals.
In the circumstances related by the Flohr affidavit, no logical alternative is apparent or has been alleged to ascertain the details of the operation or Marson's connection with it. Moreover, where, as here, it appears Marson's telephone was routinely relied upon to conduct the business of the scheme wiretapping is particularly appropriate. See United States v. Steinberg, supra, 525 F.2d at 1130. Accordingly, Flohr's affidavit passes statutory muster under Section 2518(1)(c).
Similarly, Agent Flohr's affidavit in support of Order # 2 sufficiently demonstrates the reasonable likelihood that alternative investigatory techniques would not succeed. Physical surveillance was of only limited utility in view of the caution with which the participants conducted their affairs in public and could do no more than confirm the comings and goings of the participants. Infiltration was attempted but proved insufficient to acquire evidence beyond the lower levels of the operation. Moreover, the participants often conferred with each other in guarded language and the identity of possible ...