APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 73-24).
Van Dusen, Hunter and Garth, Circuit Judges.
In this opinion we consider the appeal of George Joseph Gazal, who was convicted along with appellants Armocida, Conti and Joseph after a jury trial in the Western District of Pennsylvania.*fn1 Gazal was convicted of conspiring to distribute heroin in violation of 21 U.S.C. § 841 (Count 1), three counts of distributing heroin (Counts 3, 4 and 5) and one count of using a telephone to facilitate distribution (Count 15). He was fined $25,000 on Count 1, and was sentenced to concurrent terms of fifteen years imprisonment on that count and on each of the three distribution counts. He also received a sentence of four years on Count 15, to run concurrently with the sentence imposed on Count 1. Gazal raises four issues in this appeal, but we believe that none of them has merit.
I. VIOLATION OF PENNSYLVANIA LAW
Gazal first contends that his conviction must be reversed because federal agents recorded telephone conversations of his by means of an induction coil, in violation of Pennsylvania law and not pursuant to any court authorization. Appellant contends that, although one of the parties to the conversation may have consented to the recordings (the agent or the Government informant), Pennsylvania law prohibits use of an induction coil unless both parties consent.*fn1a Assuming arguendo that these recordings were made in violation of Pennsylvania law, that would not necessarily affect their admissibility in this case. So long as the information was lawfully obtained under federal law and met federal standards of reasonableness, it is admissible in federal court despite a violation of state law. On Lee v. United States, 343 U.S. 747, 754-55, 96 L. Ed. 1270, 72 S. Ct. 967 (1952); Olmstead v. United States, 277 U.S. 438, 469, 72 L. Ed. 944, 48 S. Ct. 564 (1928).*fn2
We agree with the Government that the warrantless recording of a telephone conversation with the consent of only one of the parties is perfectly proper under federal law and that the transcript of such a conversation may be admitted into evidence in a federal prosecution. 18 U.S.C. §§ 2511(2)(c) and 2517(3), taken together, specifically authorize the admission into evidence of warrantless recordings of this type.*fn3 We recently upheld the constitutionality of 18 U.S.C. § 2511(2)(c) and affirmed a conviction of a defendant whose conversations, like those of Gazal, had been recorded with the consent of a Government agent and replayed at trial. United States v. Santillo, 507 F.2d 629 (3d Cir., 1975).
Gazal's second contention is that the Government agents violated the specific limitations contained in Judge Teitelbaum's order,*fn4 and that all the information obtained pursuant to those taps should have been suppressed. However, we believe that this contention, like that of Armocida, is without merit. Statistics provided by the Government and stipulated to below show that 454 conversations conducted on Gazal's phone were intercepted,*fn5 of which 153 interceptions were terminated before completion of the call and 301 calls were listened to in their entirety. 84 of the conversations intercepted primarily involved gambling or numbers activities,*fn6 while 14 were calls of a personal nature. At the hearing on August 10, 1973, counsel for Gazal argued for suppression solely on the basis that the agents had intercepted 84 gambling conversations and 14 personal ones, with his argument resting primarily on the alleged impropriety of intercepting the gambling conversations (N.T. 12-13).*fn7 He did not challenge the propriety of the remaining intercepts or seek to introduce evidence as to the nature or length of any of those other conversations. Consequently, our review on this appeal is limited to the question of whether the agents violated the limitations contained in Judge Teitelbaum's order by intercepting the 84 gambling conversations and the 14 personal ones.
With respect to the gambling conversations, we believe that there was no failure of minimization requiring suppression, since we conclude that the agents made a good faith effort to minimize. As we noted in United States v. Armocida, et al., 515 F.2d 29 (3d Cir. 1975), electronic surveillance, by its very nature, cannot be conducted without some interception of conversations which, through the benefit of hindsight, appear innocent. The proper focus is on the reasonableness of the agents' conduct at the time of the intercepts, given the extent of their knowledge of the case and of the activities of the suspects. The agents' conduct must also be measured against the possibility that seemingly innocuous conversations might be coded and that a conversation which appears innocent at first may later turn to a discussion of criminal activity.
In this case, agent Greene testified at the suppression hearing that some gambling calls turned to other matters, which the agents believed at the time could involve narcotics (N.T. 30-32); that Gazal had used coded language in his dealings with the undercover agent, and thus the agents suspected that the intercepted conversations might likewise contain hidden reference to narcotics (N.T. 32, 40, 43); that at least 15 gambling-related interceptions were terminated, after the agents had been able to ascertain that calls made by Gazal to those other individuals never turned to discussions of narcotics (N.T. 22, 35); and that many of the gambling conversations intercepted were between the same suspects under investigation for dealing in narcotics (N.T. 34). Under these circumstances, we cannot say that the agents' conduct in intercepting the gambling calls was a failure to minimize which requires suppression.
Likewise, we find no failure of minimization regarding the personal conversations. Some of these made references to items which the agents thought might be code references to narcotics (N.T. 39-44). Several were of short duration, two being less than a minute (N.T. 49, 52), and three lasting less than 15 seconds (N.T. 54). Two involved discussions between Mrs. Gazal and another woman, speculating on the identity of "John Crober" (the alias Gazal had used in his dealings with undercover agent Dreisbach, and the person Dreisbach had asked for when he called the Gazal home) and on the identity of "Bobby Jackson" (the alias used by Dreisbach) (N.T. 45-47). It was thus reasonable for the agents to assume, at the start of those conversations, that they might reveal some information about Gazal's narcotics activities. Another intercept was terminated before completion (N.T. 54). Finally, the personal conversations totalled only 14 in number. These circumstances do not ...