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United States v. Todisco

decided: May 22, 1981.


Appeals from judgments of conviction entered in the Southern District of New York, Robert J. Ward, District Judge, of violations of the federal narcotics laws. Affirmed.

Before Moore, Timbers and Meskill, Circuit Judges.

Author: Per Curiam

Appellants were convicted on various counts of a fifteen count indictment which charged them with conspiracy, and the distribution, possession and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2 (1976). All appellants except D'Angelo pled guilty following the denial of their motions to suppress certain evidence, but preserved their right to appeal from the denial of their pre-trial motions. D'Angelo was convicted following a jury trial. From the judgments of conviction*fn1 entered on February 4, 1981, Robert J. Ward, District Judge, all appellants have appealed. For the reasons below, we affirm the convictions of all appellants on all counts.

The indictment followed a four month investigation by 65 agents of the Drug Enforcement Administration (DEA). The investigation concluded on September 3, 1980, at which time a $900,000, 3 kilogram, heroin sale was slated to take place in several installments. The sale had been negotiated between undercover DEA agents and appellants and their associates. To the extent relevant to the issues on appeal, the details of that investigation will be set forth below. For convenience, we shall rule upon the issues raised on appeal by referring to the events before, on and after September 3, 1980.

1. Events Before September 3, 1980

We hold that no search warrant was required for the installation of two "pen registers" on appellant Todisco's telephones. Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). We are not persuaded by appellant's effort to distinguish the Smith case on the ground that the pen register there was installed with the assistance of the telephone company. First, the Court in Smith held that the telephone company was acting as an agent of the police for Fourth Amendment purposes. Id. at 739, n.4. Moreover, the Court's reasoning-that the installation of a pen register is not a Fourth Amendment search-applies with equal force to this case. In any event, appellants did not move for the suppression of the evidence obtained from the pen register and have not attempted to justify their delay. Their claim, even if it were meritorious, has been waived. United States v. Rollins, 522 F.2d 160, 165 (2 Cir. 1975), cert. denied, 424 U.S. 918, 47 L. Ed. 2d 324, 96 S. Ct. 1122 (1976).

There was ample probable cause to support the wiretaps on Todisco's telephone. They were authorized by Chief Judge Weinstein in the Eastern District of New York on August 7, 1980, and were extended by Judge Nickerson of the same court on August 26, 1980. Aside from the deference properly accorded to the determination by the issuing judge that there was probable cause, United States v. Perry, No. 79-1047, slip op. 6749, 6772 (2 Cir. Feb. 9, 1981), we hold, viewing the supporting affidavits as a whole and in a practical and common sense manner, United States v. Steinberg, 525 F.2d 1126, 1130 (2 Cir. 1975), cert. denied, 425 U.S. 971, 48 L. Ed. 2d 794, 96 S. Ct. 2167 (1976), and in light of the ongoing investigation, that there was probable cause. Todisco, a known narcotics dealer, had numerous contacts with individuals who were selling large quantities of heroin to undercover DEA agents. The pen register had disclosed numerous calls to other known narcotics dealers. Todisco also was seen publicly with known dealers. While these contacts, as appellants suggest, are subject to an innocent interpretation when viewed in isolation, in view of the ongoing investigation and the close proximity in time between many of the contacts and the known sales, we hold that there was probable cause to believe that Todisco was involved.

We also hold that the affidavits adequately alleged that normal investigative procedures had been or would be ineffective. The affidavits did disclose the standard investigative techniques which had been employed and the paucity of evidence which had resulted, or could be expected to result, therefrom. United States v. Vazquez, 605 F.2d 1269, 1282 (2 Cir.), cert. denied, 444 U.S. 981, 62 L. Ed. 2d 408, 100 S. Ct. 484 (1979). Appellants' observation that the language employed in the affidavit in this regard resembled that used in another case is irrelevant, especially since there is no claim that the assertions are untrue or do not apply to the facts herein.

We also hold that the application was properly authorized. Order No. 799-78 clearly was adequate to empower the Assistant Attorney General of the Criminal Division, Philip Heymann, to authorize the application. In re Weir, 520 F.2d 662, 667 (9 Cir. 1975). There is no question here, as there was in United States v. Giordano, 416 U.S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974) (relied upon by appellants), that the Assistant Attorney General did not actually sign the memorandum approving the application. There is no requirement that the authorizing official must recite his reasons for approving a recommended wiretap application. We decline appellants' invitation to hold that the district court erred in refusing to hold a full evidentiary hearing based on appellants' unfounded speculation.

Finally, with respect to the events before September 8, 1980, we hold that the district court's finding of fact that the "August 8, 1980" date on the order authorizing the wiretaps was a ministerial error and therefore insignificant, was not clearly erroneous.

2. Events on September 3, 1980

We hold that the warrantless arrest of Todisco in Apartment 3C at 610 Waring Avenue was lawful. There can be no doubt that, under the precedents in this Circuit, the district court did not err in refusing to suppress the "fruits" of that arrest, including the evidence uncovered in the subsequent search of the apartment. United States v. Campbell, 581 F.2d 22, 26 (2 Cir. 1979); United States v. Reed, 572 F.2d 412, 424 (2 Cir. 1978), cert. denied, 439 F.2d 913 (1978). Todisco was known to be engaged in a serious crime at the time of his arrest. One of his cohorts had just been arrested with a gun. And, most compellingly, Todisco was in a position to destroy substantial evidence of his guilt. Appellants' assertions that the DEA agents somehow "manufactured" these events are belied by the facts. The agents had no way of knowing, before the events occurred, that Todisco, at the time of the arrests, would be secreted with a large quantity of heroin waiting for co-appellant Vallone to return. While an arrest warrant could have been obtained before September 3, we decline, on the fact of this case, to interfere with the discretion accorded narcotics agents to determine when they will make an arrest. See United States v. Santiago, 327 F.2d 573 (2 Cir. 1964). That is especially so here, where there simply is no basis for the claims of appellants.

Since the arrest of Todisco, and the entry subsequent to his arrest, were lawful, there is no question that the search of Apartment 3C, pursuant to a warrant issued on September 3, 1980, also was lawful.

Appellants' claims regarding the warrantless arrest of appellant Sferrazza, and the search of the Zambuto residence subsequent to that arrest, also are without merit. Based on the wiretap evidence, and the DEA agents' observations of the meeting between Sferrazza and Todisco on the morning of the September 3 heroin sale, the agents clearly had probable cause to arrest Sferrazza. In the district court Sferrazza unequivocally withdrew his claim that the warrantless arrest in the Zambuto residence somehow violated his Fourth Amendment rights. He ...

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