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U.S. v. BURFORD

January 28, 1991

UNITED STATES OF AMERICA
v.
CLEMENT BURFORD, A/K/A "PENKO," A/K/A "BOSS," A/K/A "BILL HURST," ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sand, District Judge.

  OPINION

This criminal action comes before the Court on an indictment against twenty defendants who were allegedly involved in a conspiracy to violate the narcotics laws of the United States. A number of the individuals named in the indictment have entered guilty pleas. Only six defendants remain in the case. There are presently four motions before the Court. First, Ms. Elaine Stewart, Mr. Everton Courtney Smith and Mr. David Jason Morrison move to suppress certain evidence obtained by the government through electronic surveillance. Second, Ms. Stewart moves to be severed from the trial of her co-defendants. Third, Ms. Stewart moves to obtain access to grand jury minutes and related information. Finally, Ms. Stewart challenges the admissibility of consensual recordings. For the reasons stated below, all of defendants' motions are denied.

BACKGROUND

On June 28, 1990, a Grand Jury sitting in the Southern District of New York returned an eight count indictment charging nineteen defendants with participation in an extensive cocaine conspiracy and six defendants with involvement in a marijuana conspiracy. Various other counts charged a number of the defendants with substantive counts of distributing both cocaine and marijuana. The organization, led by Mr. Clement Burford and Mr. Donavan Tulloch, shipped and transported drugs from Jamaica to New York. From New York, the drugs were distributed to various states around the country.

During the course of the investigation, which lasted approximately from August, 1989 to June, 1990, law enforcement officials gathered evidence using both normal investigative techniques and electronic surveillance. The investigation began with physical surveillance and undercover operations and terminated after the use of wiretaps and pen registers. At or after the arrests, law enforcement officers seized U.S. currency, cocaine, crack, firearms and papers related to the narcotics operation. All of defendants' motions are to suppress various evidence the government obtained during the process of investigating the "Burford Operation".

DISCUSSION

I.  Suppression of Evidence Obtained from Electronic
    Surveillance

The government utilized two forms of electronic surveillance in this case. Wiretaps and pen registers were attached to one Maryland telephone and three New York telephones. Standing to challenge evidence obtained through the use of electronic surveillance techniques requires a showing by a defendant that his or her voice was heard on the wire or that his or her telephone was tapped. United States v. Fury, 554 F.2d 522, 525 (2d Cir. 1977). Although the defendants have moved jointly to suppress the evidence obtained through electronic surveillance, the Court will only consider the claims of those defendants that have standing, based on whether they were in fact intercepted.

A.  Wire Taps

The procedural and jurisdictional requirements for obtaining authorization for wiretapping and other forms of electronic surveillance are set forth in the Omnibus Crime Control and Safe Street Acts ("Title III"), 18 U.S.C. § 2510-2521 (1989). Section 2518(3) provides that a "judge may enter an ex parte order . . . authorizing or approving interception of wire, oral or electronic communications within the territorial jurisdiction of the court in which the judge is sitting." For jurisdictional purposes the question is where the interception occurred. Interception is defined in the statute as "the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4).

The Second Circuit has not addressed specifically questions of jurisdiction involved in wiretapping and other forms of electronic surveillance. Case law in this district, however, suggests that for jurisdictional purposes "aural" acquisition means where the communication is actually heard. See United States v. Rodriguez, 734 F. Supp. 116, 120 (S.D.N.Y. 1990). Other courts, although addressing slightly different issues, have concluded that a communication is intercepted both where the original signal is detected and again where it is aurally acquired — that is, where a Drug Enforcement Agent ("DEA") listens to the tapes. See United States v. Shields, 675 F.2d 1152, 1156 (11th Cir. 1982); United States v. Turk, 526 F.2d 654, 658 (5th Cir.) (aural acquisition is to be given a broad reading), cert. denied, 429 U.S. 823, 97 S.Ct. 74, 50 L.Ed.2d 84 (1976).

The underlying policies of Title III support the reasoning and holdings of the above cases. In enacting this statutory scheme the Congress addressed two concerns. First, the statute aims to alleviate the divergent practices among different jurisdictions in seeking and executing wiretap orders. See United States v. Giordano, 416 U.S. 505, 520, 94 S.Ct. 1820, 1829, 40 L.Ed.2d 341 (1973); Adams v. Lankford, 788 F.2d 1493, 1498 (11th Cir. 1986). A second policy of Title III is to protect individual privacy rights. While the Congress recognized the need for the government to use electronic surveillance devices, it was also concerned about abuses to an individual's right to privacy in the home. See Giordano, 416 U.S. at 520, 94 S.Ct. at 1829. Protecting unwarranted intrusion into an individual's privacy is enhanced when orders are issued and wires are intercepted in one jurisdiction.

Applying the statutory language, policies and case law to the instant case, this Court holds that no jurisdictional defect exists. The government intercepted conversations over a Maryland telephone line pursuant to a May 22, 1990 order issued by Judge Carter. All conversations that occurred on this telephone line over a period of a couple of months were monitored by agents of the DEA who were located in New York. The tapped telephone was actually located in Maryland but a "slave" device connected it to a long distance line, established ...


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