The opinion of the court was delivered by: MASTERSON
MASTERSON, District Judge.
The above-named defendants are charged with illegal use of interstate telephone facilities to conduct gambling operations.
A significant part of the Government's evidence consists of recordings of conversations through wiretaps installed on two New Jersey telephones in 1969, pursuant to several orders entered by Judge Frank J. Kingfield of the Superior Court of New Jersey. Defendants
have moved to suppress this wiretap evidence on several grounds ranging from the unconstitutionality of the applicable wiretap statutes
to the insufficiency of the applications and orders authorizing the taps, and nonconformity to the orders themselves.
The constitutional bases for suppressing the evidence secured by wiretap were recently discussed by Chief Judge Lord in United States of America v. Whitaker et al., 343 F. Supp. 358 (E.D.Pa., filed May 31, 1972). However, we have decided not to suppress the evidence on this basis while that decision is being tested on appeal.
The first non-constitutional contention is based on the fact that none of the defendants who are moving to suppress the wiretap evidence were provided with an inventory in connection with Judge Kingfield's orders.
However, we find the reliance on the recently decided case of United States of America v. Eastman, 465 F.2d 1057 (3rd Cir. filed August 8, 1972), to be misplaced. The Court of Appeals held that the deliberate failure to serve the notice or inventory on the defendants, as required by 18 U.S.C. § 2518(8)(d), constituted grounds for suppression of the wiretap evidence. That section provides:
(2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and
(3) the fact that during the period wire or oral communications were or were not intercepted. . . ." (Emphasis added).
In Eastman, the defendants moving for suppression of the evidence were clearly the persons named in the order authorizing the interception of the telephone communications. See the opinion of the District Court at 326 F. Supp. 1038 (M.D.Pa.1971). In the present case, Judge Kingfield ordered the interception of the wire communications of "an individual known as Joe Rip and other unidentified persons."
After each order, Judge Kingfield directed service of an inventory on W. Ripka, Joseph Patrick Ripka and Louis James Vilotti.
Several defendants argue, however, that although they are not one of the persons named in the order or application there is sufficient identification made to have required the service of an inventory. For example, defendant Manuszak points out that he is identified as "Sassy Doc" in the renewal application of November 25, 1969, and that on December 6, 1969, agents of the F.B.I. and members of the New Jersey state police knew that "Sassy Doc" was the defendant Manuszak.
However, there is nothing in the record upon which we must make our decision which indicates that Judge Kingfield was made aware of this fact. Therefore, Eastman, in which the judge who ordered the interception explicitly stated that "notice to the [defendant] is hereby expressly waived," is not on point:
"In the case at bar we have the extraordinary circumstance of an advertence to the provisions respecting . . . the inventory required by 18 U.S.C. § 2518(8)(d) and an express failure by the New York Justice to adhere to these provisions . . . .
The touchstone of our decision on this aspect of the case at bar is . . . one in which specific provisions of Title III were deliberately and advertently not followed. In other words the failure to file the notice or inventory is no mere ministerial act. It resulted from a judicial act which on its face deliberately flouted and denigrated the provisions of Title III designated for the protection of the public." United States v. Eastman, supra, 343 F. Supp. at 1061 and 1062.
Defendants' second group of arguments relate to the sufficiency of Judge Kingfield's orders. For example, we are asked to hold that "communications relating to the offenses of bookmaking and conspiracy" is not a "particular description of the type of communication sought to be intercepted" as required by 18 U.S.C. § 2518(4)(c). We do not agree. See United States v. Leta, 332 F. Supp. 1357 (M.D.Pa.1971). Nor do we find substance to defendants' assertion that the order is insufficient because it does not state "the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained." 18 U.S.C. § 2518(4)(e). A reading of the Orders and Applications make it clear that a thirty (30) day period was contemplated, and that Judge Kingfield found that "more than one communication of the type described will occur."
Finally, defendants complain about the direction that "said interception will begin and end as soon as practicable and will be conducted in such a way as to minimize or eliminate the interception of communications other than the type described." This language is taken verbatim from N.J.S.A. 2A:156A-12, and ...