intrusiveness. It also disputes the amount of minutes that certain calls were monitored. Resolution of these issues must await an evidentiary hearing or the submission of evidence at trial.
E. LACK OF PROBABLE CAUSE FOR THE WARRANTS
Claimants next argue that the eavesdropping warrant was not based on probable cause. They contend that all the drug-related information offered about Munson by three unidentified informants was so old (5 months to over a year) as to be stale and that no basis for their allegations against Munson was provided. New York courts have held that warrant affidavits concerning information months old must show that the information is current and not stale. See People v. Loewel, 50 A.D.2d 483, 378 N.Y.S.2d 521, 525-26 (4th Dep't 1976), aff'd, 41 N.Y.2d 609, 394 N.Y.S.2d 591, 363 N.E.2d 316 (1977).
At the outset, we reject claimants' staleness arguments. The information provided by the three informants ran from April 1990 through January 1991. The wiretap warrant was secured in June 1991. Given the continuous nature of drug conspiracies and the alleged activities of Munson which appeared ongoing, we do not find that the five or six month gap rendered the information stale and necessarily defeats the finding of probable cause. See U.S. v. Rowell, 903 F.2d 899, 903 (2d Cir. 1990) (warrant application made two years after information obtained).
In addition, claimants stress that none of the affidavits provided anything but conclusory allegations (e.g., "Joseph Munson regularly gets marijuana from Arizona and Florida.") with no specific details, dates, or personal knowledge. Nor did the warrant application detail why the officer concluded that the informant's allegations were credible. In short, they argue that nothing separates the informants' affidavits supporting the warrant application from rumors and speculation.
When assessing probable cause on a motion to suppress state-issued wiretap evidence, a reviewing court must accord substantial deference to the finding of an issuing judicial officer that probable cause existed. U.S. v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993). The question becomes whether the issuing judicial officer had a substantial basis for the finding of probable cause. Id. In making this determination, a district court must apply the totality-of-the-circumstances test outlined in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), despite the existence of a stricter state standard for admissibility. See U.S. v. Rowell, 903 F.2d at 902. A court must determine whether the wiretap application satisfied the requirements of the federal wiretap statute, 18 U.S.C. § 2518, as applied by the totality-of-the-circumstances probable cause standard. Wagner, 989 F.2d at 71. Prior convictions, and Munson had two, are relevant to the assessment of probable cause. Id. at 73.
The key question in assessing probable cause based upon an informant's information is whether the information is reliable. Id. at 72. Reliability can rest on the informant's track record of providing reliable information or if it is materially corroborated by independent evidence. Id. at 72-73.
Claimants characterization of the Affidavit as mere speculation and rumor is not quite accurate. As we discussed earlier, besides the general allegations of drug activities, the Martin Affidavit provides details concerning associates and buyers involved in claimant's drug activities. Through information offered by informants, it also details aspects of Munson's alleged drug operations including the telephone numbers for a private telephone and pager that were used to sell drugs, the storage of drugs at Decatur Road garage, and names of certain sources of Munson's drugs. The Affidavit also details Munson's contacts with certain individuals suspected of drug activities, often using the telephone at the Munson residence. Calls by Munson to individuals identified by the informants as co-conspirators was documented by pen register data. This tended to corroborate the informants' information. Id. at 74.
In addition, CI-3 participated in a monitored drug-related telephone conversation with Munson, purchased drugs from Munson during a monitored transaction, and allegedly obtained a sample of marijuana from Munson at his Lovers Lane residence during a partially monitored transaction. Further, CI-3's statements that he purchased drugs from Munson and CI-2's statement that he was a competitor of Munson in drug distribution, made against their penal interests, also tend to indicate their reliability. See Rowell, 903 F.2d at 903.
It is our rough impression that probable cause existed for the wiretap warrant. More importantly, claimants at present have not offered sufficient reason or evidence to justify overruling the state court's determination of probable cause. The state court found the informants sufficiently reliable. The present record does not cast any substantial doubt on the basis for its finding. Claimants' dismissal motions are denied on this ground.
F. DISCLOSURE VIOLATIONS
Claimants also challenge the use of the wiretap evidence because it was provided to the U.S. Attorney's Office for use in a civil forfeiture action. They contend that use of evidence collected pursuant to a state court-authorized wiretap is limited to those uses permitted by C.P.L. § 700.65(1)-(4), and disclosure to government attorneys for a civil action is not specified.
As claimants noted earlier, federal law governs the post-intercept use of wiretap evidence. See Vario, 943 F.2d at 244. Section 2517(3) of Title 18 provides:
Any person who has received, by any means authorized by this chapter, any information concerning a wire or oral communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath of affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.
Section 2517(1) allows disclosure of wiretap evidence by any investigative or law enforcement officer to "another investigative or law enforcement officer to the extent such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." Since receipt and use of wiretap evidence is plainly appropriate for Assistant United States Attorneys prosecuting a civil forfeiture proceeding, disclosure of wiretap evidence to them would seem covered by § 2517(1).
Claimants argue that an Assistant United States Attorney ("AUSA") working on a civil forfeiture does not fall within the definition of "investigative or law enforcement officer." We do not agree. Section 2510(7) defines "investigative or law enforcement officer" as "any officer of the United States . . . . who is empowered by law to conduct investigations of or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses."
AUSAs, whether working on criminal or civil matters, certainly fall within this definition. Regardless of the actual division of work within the United States Attorneys Office, there is no doubt that all AUSAs are empowered to investigate, prosecute, or at least participate in a criminal prosecution. Section 2510(7) does not distinguish on the basis of what type of case an attorney happens to be working on at a given time.
Claimants recognize that this court has found admissible state authorized wiretap evidence in a federal civil forfeiture action. See U.S. v. 35 Fulling Avenue, Tuckahoe, New York, 772 F. Supp. 1433 (S.D.N.Y. 1991). In 35 Fulling Avenue, the court ruled that the federal statute authorizing disclosure of wiretap evidence, 18 U.S.C. § 2517,
covered the disclosure of state-authorized wiretap evidence in federal court. 772 F. Supp. at 1436-37.
Without explicitly saying so, it would appear that the court's decision rested on some notion of supremacy of the federal disclosure statute over the state statute. The court stated, "This Federal Statute is a part of the paramount law of the nation and is adequate to cover the use of the electronic surveillance in the manner said to have taken place in this case." Id.4
Claimants argues that this holding was erroneous because the evidence was obtained pursuant to a state warrant and state law governs the disclosure of state authorized wiretap evidence. As we noted above, post-intercept use of state-authorized wiretap evidence in federal court would be governed by federal law. Claimants' argument is thus unavailing. The disclosure of the wiretap evidence did not violate the federal wiretap laws.
G. GRAND JURY INDICTMENT
Claimants contend that evidence showing that Munson was indicted by a grand jury in New York must be suppressed because the People used duplicate, unsealed tape recordings before the grand jury. This, say claimants, violated C.P.L. § 700.65(3) which requires that all tapes presented to a grand jury must be properly sealed. The government apparently presented duplicate, unsealed tapes without permission from the court when the original tapes had been sealed by court order. Only original, sealed tapes may be used before a grand jury. The failure to do so taints the indictment itself, argue claimants, and thus the indictment should not stand as evidence in the forfeiture action.
Once again, despite recognizing the holding such cases as United States v. Sotomayor, 592 F.2d 1219, 1226 (2d Cir.), cert. denied, 442 U.S. 919 (1979), claimants seek to apply state law to the post-intercept sealing procedures and use of wiretap evidence. "Rules pertaining to the admissibility of evidence are ordinarily governed by the law of the forum." Id. at 1225. The Sotomayor court then held that the sealing requirements are post-intercept procedures relating solely to the preservation of evidence to which state law is not binding in federal court. Id. at 1226. We follow this course.
Claimants recognize that 18 U.S.C. § 2517(3) permits disclosure "in any proceeding held under the authority of the United States." Courts have held that a grand jury proceeding is covered by this provision. See, e.g., United States v. Marion, 535 F.2d 697, 707 (2d Cir. 1976). The purpose of sealing requirements is obviously to insure the integrity of the tapes. United States v. Diana, 605 F.2d 1307 (4th Cir. 1979), cert. denied, 444 U.S. 1102, 62 L. Ed. 2d 787, 100 S. Ct. 1067 (1980). When unsealed tapes are challenged, the government has an opportunity to provide a "satisfactory explanation" for the failure to seal. See id.
The government maintains that no tampering or adulteration occurred (the tapes were recorded from the originals daily, placed in a vault, and turned over to the district attorney's office when the monitoring finished). It is certainly possible that the procedures actually used by the government satisfied the purpose of the sealing requirement and did not represent a deliberate evasion of the sealing requirements to secure some tactical advantage. If so, exclusion of the wiretap evidence would not be necessarily required. See id. Resolving such issues is beyond the purview of a motion to dismiss. Moreover, claimants have offered nothing to suggest any tampering or alteration of the tapes occurred. At this point, they have not demonstrated any likelihood of suffering any prejudice that would justify holding the tapes or the indictment inadmissible.
H. POST-ARREST STATEMENTS
Claimant Munson argues that Munson's post-arrest statement must be suppressed because no knowing and intelligent waiver of his Miranda rights was made. He points out that no written waiver was made and the government has not indicated that Munson was advised of his rights or that a knowing waiver was made. Claimant contends that a hearing is required pursuant to 18 U.S.C. § 3501(a) at which the government must show the statements' admissibility.
In his supporting affidavit, Senior Investigator Allen states that Munson was advised of his constitutional rights under Miranda before he made his post-arrest statements. See Allen Aff., PP 19-20.
The voluntariness of Munson's post-arrest statements and whether he was advised of his constitutional rights are clearly factual issues not subject to resolution on a motion to dismiss. However, nothing suggests that the warning was insufficient or the statements were made involuntarily. If such an issue is raised by claimant Munson, perhaps it will require resolution at an evidentiary hearing or at trial when the court can assess the evidence concerning these issues. For the moment, however, they form no grounds for dismissal or suppression of the indictment as evidence.
I. CONSTITUTIONALITY OF 19 U.S.C. § 1615's BURDEN OF PROOF
Lastly, claimant Munson argues that the burden of showing by probable cause that property having a nexus with illegal drug activity violates claimant's due process rights under the fifth amendment. Confining this argument to the forfeiture of his home, claimant urges that a clear and convincing evidence standard be set for forfeiture of a personal residence.
Claimant concedes that the Second Circuit considered such a challenge in U.S. v. 228 Acres of Land, 916 F.2d 808, 814 (2d Cir. 1990), cert. denied, 498 U.S. 1091 (1991), and rejected the argument. Despite claimant's efforts to show other districts adoption of the clear and convincing standard for comparable statutes, we follow the Second Circuit's ruling. Section 1615 is not unconstitutional because of its probable cause standard. We refuse to dismiss the complaint on such grounds.
As a final matter, we deny claimant Robbins' motion to dismiss based upon the innocent owner defense. The government alleges that the proceeds of drug transactions were used to purchase the Decatur property. On a motion to dismiss, we assume the truth of that allegation. The status of Robbins as an innocent owner is bound up with factual questions that may be resolved on a motion for summary judgment at the conclusion of discovery, or perhaps at trial.
For the foregoing reasons, we deny the claimants' motions to dismiss in all respects.
Dated: White Plains, New York.
August 16, 1993.
GERARD L. GOETTEL