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.
The appellants, charged with various violations of the federal narcotics and conspiracy statutes, appeal from their convictions and sentences following a jury verdict. Each of them allege numerous individual and common grounds for reversal of their respective convictions, placing particular emphasis on the failure of the district court to suppress evidence obtained through a series of court-ordered electronic surveillances.
On January 26, 1973, a sixteen count indictment charging various narcotics violations was returned against ten individuals, including the three appellants: Anthony Armocida, a/k/a "Sonny", Alespeo Aldo Conti, a/k/a "Spoons", a/k/a "Spooks", a/k/a "The Shoe Salesman", and George Joseph. In essence, the indictment charged the defendants with the importation, possession and distribution of heroin and with conspiracy to import and distribute heroin.
After pleading not guilty to the charges on March 2, 1973, Armocida and Conti moved to suppress evidence obtained by wiretaps,*fn1 asserting a lack of probable cause. Armocida only moved to suppress for failure to minimize the interception of non-relevant conversations. The motions were denied. Thereafter, the appellants (with other co-defendants not appellants here)*fn2 were jointly tried to a jury in the District Court for the Western District of Pennsylvania. After a nine-week trial, the three appellants were found guilty on various counts of the indictment*fn3 and sentenced. These appeals followed.
Appellants Armocida and Conti contend that the evidence seized during the wiretaps on their telephones should have been suppressed because the only support for the wiretap application was an affidavit which failed to establish probable cause.
The federal wire interception statute, 18 U.S.C. §§ 2510-2520 (Title III, Omnibus Crime Control and Safe Streets Act of 1968), requires a wiretap application to show probable cause in three different contexts. The first is that an individual has or is about to commit one of several enumerated offenses, including the importation and distribution of heroin; the second: that particular communications relating to the charged offense will be obtained through the interception; third: the premises where the interception will be made are being used in connection with the charged offense.*fn4 We have considered the appellants' contentions and have independently examined the relevant affidavits supporting the wiretap application. See United States v. Lampkin, 464 F.2d 1093, 1095 (3d Cir. 1972). Applying the statutory standard*fn5 of "probability" as distinct from a " prima facie showing", Beck v. Ohio, 379 U.S. 89, 96, 13 L. Ed. 2d 142, 85 S. Ct. 223 (1964), we hold that the application on which the district court's order of September 19, 1972 issued, satisfied the probable cause requirements of the statute.
Before a warrant may have issued here, § 2518 (3)(a) required that there be probable cause that Armocida was engaged in the unlawful importation and distribution of heroin. 18 U.S.C. §§ 2516, 2518 (3)(a). Here, the government's showing of probable cause depends primarily upon information supplied by a confidential informant and upon conversations intercepted on (co-defendant) George Gazal's telephone.
Special Agent Greene's affidavit*fn6 reveals that a confidential informant acquired his information by direct dealings with Armocida in heroin distribution. Section A of the affidavit in part recites: "These two men [Armocida and co-defendant Eugene Gesuale, who was acquitted] asked the informant if he [the informant] could locate a source of heroin." The affidavit also sought to establish the informant's reliability by referring to other instances in which information provided by the same informant had been corroborated by independent investigation.*fn7
Greene's affidavit, relying as it does on an informant, must be tested by the standards of Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969) and its progeny. See United States v. Harris, 403 U.S. 573, 29 L. Ed. 2d 723, 91 S. Ct. 2075 (1971); United States v. Singleton, 439 F.2d 381 (3d Cir. 1971). Under Spinelli, two distinct analyses are required to determine if probable cause is established through information provided by an informant. Spinelli requires: first, that the affidavit set forth the " underlying circumstances " necessary to enable the magistrate independently to judge of the validity of the informant's conclusion," and second, that the affidavit must reveal the basis of the informant's reliability. 393 U.S. at 413. Greene's affidavit clearly meets these two requirements. As such, it is adequate to support an independent judgment of probable cause.
Supplementing the informant's information, Greene's affidavit recites intercepted conversations between Armocida and Gazal (obtained pursuant to the Gazal wiretap). These conversations reveal the probability that Armocida was familiar with and a participant in the scheme of distributing heroin through Gazal. Thus, the first probable cause requirement of § 2518 is satisfied. See 18 U.S.C. § 2518 (3)(a).
Next, Armocida urges that even if the affidavit showed probable cause of the existence of the illegal activity itself, it nonetheless was deficient in that it failed to establish the other two elements of probable cause required in 18 U.S.C. § 2518 (3)(b) and (d): (1) that the communication relative to the offense would be obtainable through monitoring as required by § 2518 (3)(b), and (2) that the premises (where the interception took place) were being used in connection with the illegal activity, § 2518 (3)(d). See supra note 4.
We find no merit to this argument. The conversations intercepted by the wiretap on Gazal's telephone and set forth in the Greene affidavit, amply demonstrate that Armocida utilized his telephone from his premises to communicate with other alleged conspirators in furtherance of the conspiracy to distribute heroin.
Armocida also argues that the affidavit was statutorily insufficient as it alleged that he was violating 21 U.S.C. §§ 952 and 960(a)(1)*fn8 by the importation of heroin without detailing the offense with sufficient particularity as required by 18 U.S.C. § 2518(1)(b)(i).*fn9 However, in our view, the "particularity" requirements of § 2518(1)(b)(i) are not to be given an overly narrow reading, but are rather to be interpreted in a common sense and pragmatic fashion. See United States v. Tortorello, 480 F.2d 764, 780-81 (2d Cir.), cert. denied, 414 U.S. 866, 38 L. Ed. 2d 86, 94 S. Ct. 63 (1973). What is required in the application is the identification of, and details related to, a specified crime or a specified series of related crimes. Here, interception was sought of conversations relating to a pattern of criminal conduct (from importation to ultimate distribution), within which violations of §§ 952 and 960(a)(1) were alleged. Although the affidavit makes limited reference to §§ 952 and 960(a)(1), it nevertheless describes the pattern of criminal conduct and the nature of offenses sought to be investigated through the use of wiretaps. Those offenses are sufficiently identified and particularized so as to include "importation", thereby satisfying the requirements of the statute. See United States v. Tortorello, 480 F.2d at 778-81; cf. Steele v. United States, 267 U.S. 498, 504, 69 L. Ed. 757, 45 S. Ct. 414 (1925).
We also reject Armocida's final contention that the evidence from the wiretaps should be suppressed because the affidavit supporting the application failed to establish the need for a wiretap. As required by statute, 18 U.S.C. § 2518(3)(c), the issuing district court judge found on the basis of the wiretap application that "normal investigative procedures have been tried and reasonably appear unlikely to succeed, if continued."
The statutory requirement that "normal investigative procedures" be first exhausted, must be reviewed in a "practical and common sense fashion":
"Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and have failed or why these are unlikely to succeed if tried, or to be too dangerous. . . . The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. See Giancana v. United States, 352 F.2d 921 (7th) certiorari denied, 382 U.S. 959, 86 S. Ct. 437, 15 L. Ed. 2d 362 (1965); New York v. Saperstein, 2 N.Y.2d 210, 140 N.E.2d 252, 159 N.Y.S.2d 160 (1957). What the provision envisions is that the showing be tested in a practical and commonsense fashion. Compare United States v. Ventresca, 85 S. Ct. 741, 380 U.S. 102, 13 L. Ed. 2d 684 (1965). "
1968 U.S. Code Cong. & Admin. News at 2190 (emphasis supplied). See United States v. James, 161 U.S. App. D.C. 88, 494 F.2d 1007, 1015-16 (1974), cert. denied, sub nom. Jackson v. United States, 419 U.S. 1020, 95 S. Ct. 495, 42 L. Ed. 2d 294 (1974). To support a finding that normal investigative procedures are unlikely to be successful, we interpret the congressional directions as only requiring that there exist a factual predicate in the affidavit. That factual predicate is satisfied by the Greene affidavit.
The Greene affidavit reveals a history of physical surveillance; utilization of informants; undercover agents; and other wiretap interceptions. All of these failed to determine the scope of the conspiracy and to identify the participants. Having failed through these techniques, Greene's affidavit then recites that: (1) the informant would not testify; (2) surveillance was too easily noticeable and could jeopardize the investigation (surveillance, as noted, had already failed); (3) a search warrant was unlikely to reveal either the identities of those believed involved in the conspiracy to distribute heroin or the source of the heroin.*fn10
When the wiretap application was made, the government's objective was to ascertain the scope of the alleged narcotics conspiracy and to identify the participants. As recited in Greene's affidavit, the normal investigative techniques utilized were ineffective other than in identifying Gazal as the "street-level" distributor. Affidavit of James P. Greene, supra note 6, at 12. Although the government has actual knowledge of a conspiracy and evidence sufficient to prosecute one of the conspirators, it is unrealistic to require the termination of an investigation before the entire scope of the narcotics distribution network is uncovered and the identity of its participants learned. See United States v. Focarile, 340 F. Supp. 1033, 1042-44 (D. Md.), aff'd sub nom., United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), rev'd. on other grounds, 416 U.S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). We have held that the statutory burden on the government is not great in showing compliance with § 2518(3)(c). Accord United States v. Bobo, 477 F.2d 974, 982-83 (4th Cir. 1973); United States v. Lanza, 356 F. Supp. 27, 30 (M.D. Fla. 1973). As stated, the government need not prove to a certainty that normal investigative techniques will not succeed, but rather need only show that such techniques "reasonably appear to be unlikely to succeed if tried." Cf. Beck v. Ohio, supra. By this standard, Greene's affidavit is clearly sufficient to support the finding made by the court.
Appellant Conti also challenges the court order authorizing the wiretap on his telephone, claiming the absence of probable cause. To establish probable cause for the wiretap of Conti's telephone, Greene's affidavit provided, in part, verbatim excerpts of intercepted conversations involving Gazal, Conti and Armocida. These intercepts were obtained pursuant to a judicially authorized wiretap on Gazal's telephone. Of the four conversations found in the affidavit, two were between Conti and Gazal. In the first intercepted telephone call, Gazal asked Conti if he (Conti) had ...