The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D.J.:
All defendants move to suppress the results of electronic interceptions made pursuant to the following seven electronic surveillance orders:
(a) The December 15, 1981 order issued by Judge Haight authorizing a wiretap on telephone numbers 926-9494 and 926-6673, located at 245 West 139th Street, Manhattan, the location of the Black Acupuncture Advisory Association of North America (BAAANA). This will be referred to herein as the "First BAAANA Tap".
(b) The January 14, 1982 order of Judge Haight authorizing a thirty-day extension of the tap on the two BAAANA phones described in (a), (the "Second BAAANA Tap").
(c) The February 13, 1982 order of Judge Weinfeld authorizing a second thirty-day extension of the tap on the two BAAANA phones described in (a), (the "Third BAAANA Tap").
(d) The March 1, 1982 order of Judge Haight authorizing a wiretap on telephone number 242-0702 in Apartment 2L, 85 Barrow Street, Manhattan, wiretaps on two public pay phones, telephone numbers 243-8722 and 243-8378, located near 85 Barrow Street, and a microphone "bug" placed inside Apartment 2L at 85 Barrow Street (the "First Barrow Street Tap and Bug").
(e) The March 15, 1982 order of Judge Haight authorizing a third thirty-day extension of the tap on the two BAAANA phones described in (a), (the "Fourth BAAANA Tap").
(f) The April 1, 1982 order of Judge Haight authorizing a thirty-day extension of the electronic surveillance at 85 Barrow Street (the "Second Barrow Street Tap and Bug").
(g) The April 16, 1982 order of Judge Haight, authorizing a fourth thirty-day extension of the tap on the two BAAANA phones described in (a), (the "Fifth BAAANA Tap").
Title III provides for authorization of electronic surveillance if, on the basis of the facts submitted to the court,
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
18 U.S.C. § 2518(3). Defendants argue that all the wiretap orders violated this statute and the Constitution in several respects. To address defendants' contentions and the government's response, I will examine each wiretap order in turn.
Defendants contend that this wiretap order is defective for both statutory and constitutional reasons.
(a) the order exceeded the Attorney General's authorization.
Authorization for all electronic surveillance must be obtained from the "Attorney General, or any Assistant Attorney General specially designated by the Attorney General." 18 U.S.C. § 2516(1). Assistant Attorney General D. Lowell Jensen, Chief of the Criminal Division in the Department of Justice provided the requisite authorization for the first BAAANA Tap. In his authorization, however, Jensen stated that "in supervising the interception . . . care should be exercised to avoid intercepting any communications of a person under criminal charges or indictment which pertains to his culpability in relation to the charges or indictment or the strategy that he contemplates employing in his defense." December 15, 1981 Authorization of Assistant Attorney General Jensen at 2. Defendants claim that Jensen thus imposed a limitation on the interception, a limitation that was not carried over into the government's wiretap application, nor into Judge Haight's electronic surveillance order. Thus, defendants assert, the wiretap order that issued was improperly broader than authorized. I find defendants' construction of Jensen's authorization strained. The words "care should be exercised" are cautionary and not restrictive.
Moreover, these cautionary words were carried over into AUSA Moritz's monitoring instructions to the agents. Therefore, I hold that the surveillance order is consistent with the requisite Attorney General authorization.
(b) Jensen was not empowered to authorize the wiretap application.
Defendants claim that Jensen's authority to provide wiretap authorization expired with the exit of the Carter administration and its Attorney General, Benjamin Civiletti. On February 27, 198l, however, William French Smith, Attorney General for the Reagan Administration, explicitly continued the authority of the Assistant Attorney General in charge of the Criminal Division by Order Number 934-81. Affidavit of AUSA Moritz, Exhibit D, section 2. The ability of Jensen, therefore, to authorize the instant surveillance orders remained intact.
(c) The orders failed to particularize the conversations to be intercepted.
Defendants assert that inadequate particularization of the conversations to be intercepted rendered the surveillance orders invalid. See 18 U.S.C. § 2518(4)(c); Application of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1979). The surveillance order provided for interception of communications relating to:
offenses of murder, in violation of 18 U.S.C. § 2113(e); bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); and offenses involving murder and robbery; unlawful use of explosives, in violation of 18 U.S.C. § 844; interference with commerce by threats or violence, in violation of 18 U.S.C. § 1951; interstate or foreign travel or transportation in aid of racketeering enterprises, in violation of 18 U.S.C. § 1952; theft from interstate shipment, in violation of 18 U.S.C. § 659; interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314 and 2315; conspiracy to commit the above offenses, in violation of 18 U.S.C. § 371, as well as receiving income from a pattern of racketeering activity, in violation of 18 U.S.C. §§ 1962 and 1963, [and these interceptions were intended to obtain] inter alia: evidence of the above-stated offenses, including evidence of the identities of other participants in the offenses, the locations of participants in the offenses, some of whom are presently federal fugitives, the manner in which the offenses and illegal racketeering activities are conducted, specific plans for the escapes of presently incarcerated participants, other locations utilized in furtherance of those offenses and activities, and the distribution of the contraband and monies utilized in and obtained through said offenses and activities.
In determining whether such an order is sufficiently particularized, the Second Circuit has advocated a pragmatic approach requiring consideration of all of the papers submitted in support of the order. United States v. Tortorello, 480 F.2d 764, 780 (2d Cir.), cert. denied, 414 U.S. 866, 38 L. Ed. 2d 86, 94 S. Ct. 63 (1973). These papers must contain identification of a specific crime or series of crimes, and a description of the general nature and type of the anticipated conversations. "It is virtually impossible, [however,] for an applicant to predict exactly what will be said concerning a specific crime. The order must be broad enough to allow interception of any statements concerning a specified pattern of crime."
Both the instant order and the accompanying "minimization" instructions although "couched in general terms," sufficiently detail and limit the purpose and duration of the types of conversations to be intercepted to pass muster under the Fourth Amendment.
"When, as here, a continuing course of criminal conduct is involved, a wiretap order must necessarily be framed flexibly enough to permit interception of 'any statements concerning a specified pattern of crime.'" United States v. Steinberg, 525 F.2d 1126, 1131 (2d Cir. 1975), cert. denied, 425 U.S. 971, 48 L. Ed. 2d 794, 96 S. Ct. 2167 (1976) (citations omitted). The present situation also allegedly involves a "continuing course of criminal conduct." Furthermore, the Second Circuit previously has found similarly-worded warrants constitutionally valid. See, e.g., Tortorello, 480 F.2d at 778-89 (order permitting interception of conversations constituting evidence of "the crimes of Burglary, Forgery as a felony, Possession of Forged Instruments as a felony, Possession of Forgery Devices, Grand Larceny in the First Degree, Criminal Possession of Stolen Property in the First Degree, and conspiracy to commit said crimes"), Steinberg, 525 F.2d at 1131-32 (order permitting the interception of communications "which reveal the details of the scheme . . . to distribute, deliver and possess with intent to distribute and otherwise illegally deal in narcotics . . . and the identity of [named interceptee's] confederates, their places of operation and the nature of the conspiracy"); United States v. Principie, 531 F.2d 1132, 1139 (2d Cir. 1976), cert. denied, 430 U.S. 905, 51 L. Ed. 2d 581, 97 S. Ct. 1173 (1977) (upholding order which authorized interception of conversations relating to the "procurement and disposition of stolen securities" constituting "Grand Larceny in the Second Degree, Criminal Possession of Stolen Property in the First Degree, and Conspiracy to commit said crimes"). For these reasons, therefore, I find the order was sufficiently particularized.
(d) The government failed to show that alternative investigative methods were inadequate.
An electronic surveillance order may be issued only after a finding that "normal investigative techniques have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(3)(c). Defendants assert that the affidavits in support of the wiretap application did not set forth sufficiently the inadequacy of alternative investigative techniques. I disagree.
Maxwell's affidavit in support of the wiretap application describes the failure of physical surveillance, informants, and undercover agents to obtain the information sought by wiretap. Physical surveillance was hampered by the acupuncture clinic's mid-block location, and the subjects' alleged use of countersurveillance techniques.
Moreover, physical surveillance of meetings outside the clinic, or of suspects entering the ...