The opinion of the court was delivered by: WEIS
This case presents an illustration of the many complexities involved in the legislation enacted by Congress in recent years in efforts to combat organized crime.
The defendants have been indicted for conspiracy and violations of various gambling statutes of the United States. Much of the evidence which the Government intends to produce consists of facts uncovered by the use of a court authorized wiretap on telephones at the Iannelli residence located in one of the suburbs of Pittsburgh, Pennsylvania.
An evidentiary hearing has been held and a transcript of the telephone conversations overheard, as well as a copy of the tape recording, have been furnished to defense counsel.
The defendants have filed a plethora of pretrial motions -- they allege:
1. The statute authorizing wiretapping, 18 U.S.C. § 2510 et seq., is unconstitutional;
2. The request for the court order for intercepting telephone communications was not properly authorized;
3. There were illegal disclosures of the contents of intercepted telephone conversations;
4. The FBI utilized an unauthorized wiretap;
5. An order of utilization under 18 U.S.C. § 2517 was secured by misrepresentation;
6. The application for the interception order was tainted by a prior illegal tap;
7. That 18 U.S.C. § 1955, a gambling statute, is unconstitutional;
8. That searches of premises owned by various defendants were based upon inadequate cause;
9. That the conspiracy count represents duplication of the offenses outlawed by 18 U.S.C. § 1955 and, hence, should be dismissed;
10. That bills of particulars and discovery should be ordered.
The constitutionality of the wiretapping statute has already been passed upon by this court and nothing further need be said on that subject at this time. See, United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971). The same considerations, however, with respect to irrelevant calls prevail in this case as in the LaGorga matter and the same provisions will apply to prevent further dissemination of the irrelevant material contained in the phone conversations, that is, an order impounding the nonincriminatory interceptions to preserve privacy.
The purpose of this particular provision is to prevent the Government from carrying on a continuing surveillance without alerting those who would be the subject of the interceptions. In all, inventories were sent to some twenty-one persons, including eight of the named defendants. This is adequate coverage to effect the result intended by the Act. In any event it seems likely that Bruno and the others became aware of the intercept in this case when their acquaintances were served.
Defendants assert that the Government failed to secure the authorization required by 18 U.S.C. § 2516(1) in that the letter attached to the application purportedly signed by Will Wilson, an Assistant Attorney General, was in fact never read, signed, dictated or approved by him. However, the prosecution contends that a memorandum issued by the Attorney General, and initialed by him, constitutes sufficient authorization within the terms of the statute. A similar situation prevailed in the LaGorga case where a like memorandum was held sufficient. We hold to the same effect in this case.
This case is different from United States v. Cihal, 336 F. Supp. 261 (W.D. Pa. 1972), where neither the Attorney General nor an Assistant Attorney General ever authorized the wiretap. In the Cihal case the only person who authorized the interception was the Executive Assistant to the Attorney General, a person not empowered by the terms of the Act to direct the use of wiretapping and consequently the court ordered suppression.
In United States v. Aquino, 338 F. Supp. 1080 (E.D. Mich. 1972), the United States District Court for the Eastern District of Michigan sustained an order for an original wiretap but ordered suppression of the extension. The original interception was found to be within the law when a memorandum initialed by the Attorney General formed part of the request for application. The extension, however, did not contain such authorization and it appeared that again only the Executive Assistant to the Attorney General had passed on the application.
Similarly, in United States v. Robinson, (5th Cir. 1/12/72), 468 F.2d 189, suppression was ordered when there was evidence that the Executive Assistant to the Attorney General alone had authorized the application.
This is not a Cihal or Robinson case; this is a situation similar to LaGorga and the original tap in Aquino. We therefore find adequate compliance with 18 U.S.C. § 2516(1).
Defendants claim, further, that there was unauthorized disclosure of the material received in the tap, particularly to the Internal Revenue Service and to the news media.
In April or May of 1971, Special Agent Edward Zelik of the Intelligence Division of the Internal Revenue Service was permitted to listen to the tape recordings of the intercepts. He compiled estimates of wagers received by the Iannellis and turned this information over to Revenue Agent Stanley Giarrussi assigned to the Excise Tax Group.
Acting on the basis of the data given to Giarrussi, IRS made wagering tax assessments against the Iannellis and later liened all their property.
It appears that similar disclosures were made to the IRS with respect to some of the other defendants.
The statute provides in § 2517(1) that wiretap information may be divulged to another investigative or law enforcement officer. Section 2510(7) defines "investigative or law enforcement officer" as one ". . . 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."
The defense argues strenuously that these provisions do not authorize disclosure to personnel of the Internal Revenue Service. Without passing upon the merits of this contention at this time, we hold simply that even if such a violation occurred, it does not furnish a basis for suppression of evidence in this criminal prosecution. Section 2515 provides that the contents of interceptions may not be received in evidence if disclosure ". . . would be in violation of this chapter." Section 2518(10)(a) provides for a motion for suppression when (i) the communication was unlawfully intercepted, (ii) the order is insufficient on its face, or (iii) the interception was not made in conformity with the order. Subsequent illegal activity is not listed within these categories.
If it be assumed that the interception initially was lawful, then the use of the evidence in this criminal case would not be "in violation of this chapter."
We do not believe that it was the Congressional intent to avoid an interception ab initio if there were some unauthorized disclosure of the information at some later time after an original lawful acquisition of evidence for use in the criminal proceeding which was the basis for the court order in the first instance.
A ruling on the admissibility of evidence forming part of an unauthorized disclosure, if such were sought to be utilized in a tax collection suit, should of course be deferred until raised in that proceeding. It is pertinent also that Congress did provide for the recovery of civil damages for the disclosure, ...