The opinion of the court was delivered by: Sand, District Judge.
The wiretap that is being challenged in this motion is that
which was connected to the Maryland telephone. Mr. Everton
Smith, the defendant remaining who was heard on this wire, is
the only individual with standing to challenge the wiretap
Mr. Smith advances both a statutory and a constitutional
argument in support of his claim that the evidence gathered
from the wiretap should be suppressed. Specifically, he alleges
that Judge Carter of the Southern District of New York, who
issued the surveillance order, had no jurisdiction to authorize
"seizure" of information from a telephone located in Maryland.
For the reasons discussed below, Mr. Smith's motion is denied.
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
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 by the government, to route all calls to the "wire
room" located in the Southern District of New York where they
were heard and recorded.
This Court believes that Judge Carter had the authority to
issue the May 22, 1990 order and finds no basis for suggesting
that any jurisdictional defects arise from the electronic
devices utilized by the government. The term "[i]ntercept", as
defined in the statute, does not require the eavesdropper or
issuer of the wiretap order to be located in the same
jurisdiction as the tapped line. Since the information was
actually heard in a wire room in New York through the use of a
"slave" device, the interception occurred in this jurisdiction.
This result is in keeping with the statutory
language and the underlying policy concerns of Title III. In a
case such as this one, which involves wiretaps in two states,
abuses involving privacy rights are more difficult to monitor
if different courts are issuing wiretap orders.
The defendant advances two arguments in support of his motion
that the May 22, 1990 order issued by Judge Carter was beyond
the court's territorial jurisdiction and that all evidence
obtained from the surveillance should be suppressed. First,
relying on Weinberg v. United States, 126 F.2d 1004 (2d Cir.
1942), defendant urges that under Art. III, Section 2 and the
Sixth Amendment of the United States Constitution, a district
court is without power to issue search warrants or wiretap
orders that reach beyond the territorial limits of its
district. While Weinberg does stand for the proposition that as
a general rule search warrants must be used in the jurisdiction
where they are issued, we find this argument unpersuasive as
applied to electronic surveillance. Search warrants are issued
to permit seizure of tangible physical evidence which is, by
definition, in only one location. Wiretaps, in contrast,
involve seizure of transitory intangible evidence. This is not
a situation where Judge Carter authorized a seizure of the
telephone in Maryland, as would be the analogous situation to
the fact pattern in the Weinberg case. Rather, these were
conversations that began in Maryland and were aurally acquired,
or seized, in New York.
Defendant's second argument, based on issues of statutory
interpretation, suggests that the determinative question is
where the slave device is located. Defendant argues that under
the statutory language of 18 U.S.C. § 2510(4), which requires
"acquisition . . . through the use of any electronic device or
mechanical device", the seizure occurred in Maryland because
the slave device was used in Maryland and not New York.
Therefore, defendant argues that Judge Carter had no
jurisdiction to issue the order. This interpretation of section
2510(4) gives a new meaning to the statutory language that is
not supported by the legislative history or case law.
Jurisdiction vests either in the location where the
conversations are actually heard or where the mechanical device
is inserted. Therefore defendant Smith's motion to exclude the
evidence is denied.
B. Pen Registers
Once again, Mr. Smith is the only defendant with standing to
challenge the pen register surveillance because he is the only
defendant affected by the pen registers at issue. The
government used pen registers for both the Maryland and
Brooklyn telephones. In this motion, however, the only
challenge is to the use of pen registers for the Maryland
telephone based on jurisdictional defects. Mr. Smith, in
essence, advances the same jurisdictional arguments against the
government's use of pen registers as those urged to suppress
information obtained from the wiretaps.
The installation and use of pen registers is controlled by
Section 3123 of Title 18, which allows courts to "enter an
ex parte order authorizing the installation and use of a pen
register within the jurisdiction of the court . . ." Unlike the
wire tapping statute, where significant issues of privacy are
at stake, this law is "intended merely to safeguard against
purely random use of this device." United States v. Hallmark,
911 F.2d 399, 402 (10th Cir. 1990).
Applying this statute to the present case, this Court
believes that an appropriate government official applied to a
United States Magistrate for a valid order that was within his
scope to issue. The telephones that the government monitored
were in Brooklyn and Maryland but the pen register devices were
physically located in New York. The pen register for the
Brooklyn telephone was located on the New York wire that the
DEA had established to conduct surveillance of Mr. Burford's
Mount Vernon home. The device for the Maryland telephone was
actually in the DEA headquarters in Manhattan. Since the pen
registers in both instances were "installed and used" in New
York, even though one of the telephones was located in
Maryland, this Court finds no jurisdictional defect. For these
reasons, defendant Smith's motion to suppress the evidence
obtained from the use of pen registers is denied.
C. Timeliness of sealing "Burford-2" audio recording of
The "Burford-2" intercepted tapes were one set of wiretaps
that the government collected during the investigation of the
"Burford Operation." Mr. Smith is again the only remaining
defendant who was intercepted on these particular tapes and as
such is the only individual with standing to challenge the
timeliness of the sealing. The defendant argues that the
government did not seal the tapes within the required time
period and as such the tapes are inadmissible.
The Second Circuit has clearly outlined the analysis for
considering the timeliness of sealing audio recordings obtained
through electronic surveillance. The applicable statute,
18 U.S.C. § 2518(8)(a), requires that the fruits of an electronic
surveillance order be turned over to the issuing judge for
sealing "[i]mmediately upon the expiration of the period of the
order." Without the seal or a legitimate explanation, the tapes
are not admissible into evidence. United States v. Massino,
784 F.2d 153, 156 (2d Cir. 1986). Any delay in sealing beyond two
days requires a "satisfactory explanation" by the government.
See United States v. Vazquez, 605 F.2d 1269, 1274 (2d Cir.),
cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408
There is no bright line rule for determining whether the
government has met its burden of providing a satisfactory
explanation for any delay in sealing tapes. Courts have
considered a variety of factors, depending on the type of case,
the length of the investigation and whether there was any
evidence of bad faith by the government. See Vazquez, 605 F.2d
at 1279 (shortage of qualified personnel to translate
conversations, equipment shortages and necessity to duplicate
explained delay ranging from seven to thirteen days); United
States v. McGrath, 622 F.2d 36, 43 (2d Cir. 1980) (need to
transport tapes from Binghampton to Albany excused three to
eight day delay).
In this case, the government finished the wiretaps late on
Friday afternoon of June 15, 1991. Because Judge Carter was
unavailable on the next business day, Monday, June 18, 1991,
the government made an application to Judge Louis L. Stanton,
the Part One judge in the Southern District of New York. By
3:30 p.m. on June 18th, Judge Stanton ordered that the 59 tapes
from the Burford-2 phone be sealed and held in the custody of
the Drug Enforcement Administration. The tapes were then sealed
in the presence of Judge Stanton. Since the government sealed
the tapes on the first business day after the surveillance was
terminated, there is no legitimate basis for excluding the
tapes from evidence.
D. Adequacy of normal investigative procedures and need for
Since this portion of the motion is a challenge to the
investigative techniques used by the government, any defendant
who was heard on any wiretap has standing to challenge the
procedures employed. Defendants Elaine Stewart, Everton
Courtney Smith and David Morrison move to suppress the evidence
obtained from the wires on the ground that normal investigative
procedures were not exhausted. Implicit in the argument is that
Judge Carter abused his discretion in issuing the wiretap
orders based on an inadequate showing by the government of a
need to use electronic surveillance. We find this argument
Before a court may grant the government permission to
intercept a wire or any other oral communication it must be
shown, by a "full and complete statement as to whether or not
other investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed if tried
. . ." 18 U.S.C. § 2518(1)(b). The Supreme Court has held that
this requirement is "simply designed to assure that wiretapping
is not resorted to in situations where traditional
investigative techniques would suffice to expose the crime."
United States v. Kahn,
415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983 n. 12, 39 L.Ed.2d 225 (1974).
Traditional surveillance techniques need not be exhausted if it
is reasonable to assume that they are "impractical or costly
and inconvenient." United States v. Lilla, 699 F.2d 99, 102 (2d
Cir. 1983). Nonetheless, electronic surveillance, with its
accompanying implications for individual privacy, may not be
used routinely without some showing of need by law enforcement.
See United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct.
1820, 1826, 40 L.Ed.2d 341 (1974).
The federal statute does not require that any particular
investigative procedures be exhausted, but rather that the
showing be tested "in a practical and common sense fashion."
S.Rep. No. 1097, 90th Cong., 2d Sess. 101, reprinted in 1968
U.S. Code Cong. & Ad.News 2112, 2190. See United States v.
Hinton, 543 F.2d 1002, 1011 (2d Cir.) (in major New York City
drug conspiracy, ongoing nonwiretap surveillance had become
increasingly unsuccessful), cert. denied, 429 U.S. 980, 97
S.Ct. 493, 50 L.Ed.2d 589 (1976); United States v. Fury,
554 F.2d 522, 530 (1977) (subjects "difficult to tail because they
were very careful and constantly changing routes"); Vazquez,
605 F.2d at 1282 (interviewing informants, conducting physical
surveillance and checking bank, telephone and other records
showed that normal investigative techniques were exhausted). In
each of these cases the courts granted an order to use
electronic surveillance even though the use of a wiretap was
not absolutely the last resort.
In the present action the government made applications for
wiretap orders to Judge Carter which were supported by the
affidavits of special agents Timothy Corley and Adele Hanay. In
his affidavit, Mr. Corley, to demonstrate the inadequacy of
normal investigative techniques, describes a number of problems
that law enforcement encountered in infiltrating this criminal
enterprise. First, there was the difficulty of using physical
surveillance as a successful investigative means. For example,
Mr. Clement Burford would conduct meetings in a cloak room,
making it impossible to overhear conversations or conduct
surveillance. Further, observation posts were not available at
the Burford residence in New York due to the layout of the
buildings. ¶ 142(a). Pen registers and telephone toll records,
although useful to the investigation, only showed that
conversations occurred and offered no assistance as to who was
involved in the conspiracy. ¶ 142(c). Similarly, the use of
informants had been unhelpful. Undercover agents and informants
had not been able to infiltrate the high levels of the
organization or identify sources or supplies. ¶ 142(e)(f). Ms.
Adele Hanay in her affidavit identified the same types of
Defendants argue that important privacy issues were at stake
and that the government misled Judge Carter, especially in
suggesting that informants were not making any progress in
identifying how the Burford organization was operating.
Further, defendants urge that physical surveillance was
possible and that the government was gaining valuable
information about the operation. Even if what the defense
alleges is partially correct, there is no requirement that the
government exhaust any particular investigative procedure
before a wiretap may be authorized. The facts presented to this
Court fully support the requirement that traditional
investigative techniques must be exhausted. The defendants'
motion is denied.
It is well settled law in this Circuit that to have standing
to challenge improper minimization during a wiretap executed by
the government, that a defendant must show a direct privacy
interest. Fury, 554 F.2d at 526. The primary way to show a
direct injury to a privacy interest is to establish a
possessory or proprietary interest in the premises on which the
subject telephone is located. See Hinton, 543 F.2d at 1011-12
n. 13 ("only those persons who have a privacy interest in the
residence in which the tapped phone is located have standing");
Rodriguez, 734 F. Supp. at 123. The only telephones involved in
this investigation were in the homes of Mr. Burford
and Mr. Tulloch. None of the remaining defendants have any
possessory or proprietary interest in these properties.
Consequently, we shall not address this contention any further.
The only defendant moving to sever her trial from that of her
co-defendants is Ms. Stewart. In essence she urges that she is
less culpable than her co-conspirators and will be prejudiced
by a joint trial. Citing Fed.R.Crim.P. 14, Ms. Stewart suggests
that "justice requires" a separate trial. For the reasons
stated below, Ms. Stewart's motion to sever is denied.
Under Fed.R.Crim.P. 8(b), multiple defendants may be joined
for trial "if they are alleged to have participated in the same
act or transaction or in the same series of acts or
transactions constituting an offense or offenses." A conspiracy
charge "provides a common link and demonstrates the existence
of a common plan" for purposes of Rule 8(b). United States v.
Bernstein, 533 F.2d 775, 789 (2d Cir.), cert. denied,
429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). If, however, a
joinder of parties will be prejudicial to either the government
or a defendant, the court at its discretion may order separate
trials. Fed.R.Crim.P. 14.
In this instance, every remaining defendant in the case is
charged in the conspiracy count of the indictment.
Specifically, it is alleged that Ms. Stewart negotiated and
attempted to purchase cocaine for leaders of the conspiracy in
April and May, 1990. As a result, if this Court were to grant
Ms. Stewart's severance motion virtually all of the evidence
admitted in the joint trial would be admissible against her in
a separate trial as acts of her co-conspirators in furtherance
of the conspiracy. United States v. Bari, 750 F.2d 1169, 1177
(2d Cir. 1984). Ms. Stewart may have been a less active member
of the conspiracy, but nonetheless she is alleged to be a fully
Furthermore, this Court finds no overriding prejudice to the
defendant by the joinder such that she would be denied a
constitutionally fair trial. United States v. Burke,
700 F.2d 70, 83 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78
L.Ed.2d 85 (1983); United States v. Nersesian, 824 F.2d 1294,
1303 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98
L.Ed.2d 380 (1987) (to prevail, a defendant must establish that
a miscarriage of justice will occur). For these reasons, and on
the basis of judicial economy, Ms. Stewart's motion to sever is
III. Entitlement to Grand Jury Minutes
Again, this motion is made only by Ms. Stewart. Based on
Fed.R.Crim.P. 6(e), Ms. Stewart argues that the evidence before
the grand jury was not legally sufficient to establish
"commission of any of the offenses with which she is being
charged or any lesser included offense." E. Smith Br. at 5.
Further, Ms. Stewart suggests the indictment is "overly broad,
vague and failed to pinpoint with any accuracy the defendant's
action . . . which would constitute the crimes charged."
Id. To resolve what she suggested was an ambiguity in the
evidence used to indict her, Ms. Stewart requests the use of
grand jury minutes. For the reasons discussed below, Ms.
Stewart's motion is denied.
In the absence of any showing of "particularized need, or a
gross and prejudicial irregularity influencing the grand jury,
or some similar compelling reason," a defendant's motion to
have the Court inspect the grand jury minutes should be denied.
United States v. Cummings, 49 F.R.D. 160, 161 (S.D.N.Y. 1969);
United States v. Mechanik, 475 U.S. 66, 75, 106 S.Ct. 938, 944,
89 L.Ed.2d 50 (1986) (O'Connor, J., concurring) ("grand jury
proceeding is accorded a presumption of regularity, which
generally may be dispelled only upon particularized proof of
irregularities in the grand jury process"). Before a court will
disrupt the traditional secrecy surrounding grand jury
proceeding, a defendant must show evidence of an irregularity
and not merely make a statement on information and belief.
United States v. Wilson, 565 F. Supp. 1416, 1436-37 (S.D.N Y
The defendant has offered no proof of irregularities before
the Grand Jury in this case. Without articulating any factual
basis, Ms. Stewart claims "upon information and belief . . .
the indictment was based on incompetent and insufficient
evidence" that was lacking in "substantial or rationally
persuasive evidence submitted to the grand jury." E. Stewart
Br. at 6. On this basis, Ms. Stewart urges that she is entitled
to inspect the grand jury minutes. Id. at 7. Given the
presumption of validity of grand jury proceedings and the
defendant's failure to present particularized proof of
wrongdoing by the government, her motion for discovery of grand
jury matters is denied.
IV. Consensual Recordings
This final portion of the motion is brought by Ms. Stewart.
Her argument that the consensual recordings obtained by the
government should be suppressed is without merit. It is well
settled law that oral communication is excepted from the Title
III requirements of prior judicial authorization when "one of
the parties to the communication has given prior consent" to
the interception. 18 U.S.C. § 2511(2)(c); United States v.
Amen, 831 F.2d 373, 378 (2d Cir.), cert. denied, 485 U.S. 1021,
108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). In this case the
confidential informant was cooperating with the government. The
informant who met Ms. Stewart in April and recorded their
conversation was the same person she met in May to purchase
cocaine. The informant's continuing cooperation with the
government and knowledge of the recording is tantamount to his
consent to record conversations he had with Ms. Stewart.
Therefore, the motion to suppress the evidence obtained from
these conversations is denied.
For the reasons above, all motions to suppress are denied.
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