The opinion of the court was delivered by: Sand, District Judge.
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.
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".
I. Suppression of Evidence Obtained from Electronic
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
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,