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UNITED STATES v. BAYNES

July 3, 1975

UNITED STATES OF AMERICA
v.
EUGENE BAYNES, a/k/a "Bo" JAMES FOX, EUGENE HEARN, RUSSELL BARNES, BARTHANIEL THORNTON, WILLI AM JEFFERSON, a/k/a "Skinny," "Terry" FERRIS FOSTER, GREGORY TRICE



The opinion of the court was delivered by: BECKER

 I. Preliminary Statement

 On May 15, 1974, acting pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter Title III), *fn1" and in response to the sworn application of David J. McKeon, an attorney with the Organized Crime and Racketeering Section of the United States Department of Justice, we entered an order authorizing for a period of 20 days the interception of certain wire communications of James Fox, William Jefferson, Ferris Foster, Russell Barnes, Herschel Williams and others as yet unknown to and from the telephone located at the residence of James Fox in Upper Darby, Pennsylvania. The application was supported by a fifteen-page affidavit executed in our presence by Donn Jerre Miller, a special agent of the Drug Enforcement Administration of the United States Department of Justice (DEA). In entering the order for wire interception we made, inter alia, the following findings:

 (1) that there was probable cause to believe that Messrs. Fox, Jefferson, Foster, Barnes, Williams, Barthaniel Thornton and others as yet unknown had been and then were committing offenses involving the distribution, possession of and possession with intent to distribute heroin;

 (2) that there was probable cause to believe that particular wire communications concerning those offenses would be obtained through the interception applied for;

 (3) that normal investigative procedures either had been tried and failed, or reasonably appeared unlikely to succeed if continued or reasonably appeared unlikely to succeed if tried; and

 (4) that there was probable cause to believe that in carrying out the offenses against the narcotic laws, the individuals named were using the telephone located at 250 Beverly Boulevard, Upper Darby, Pennsylvania, bearing telephone number (215) 284-3840. *fn2"

 Wire interception was commenced pursuant to the order. Mr. McKeon filed with us the five, ten and fifteen-day reports required in the order, and, upon examination thereof, we permitted the interception to continue for the full period of twenty days. Evidence of narcotic trafficking was obtained from the wire interception, and in due course indictments were returned against Fox, Jefferson, Foster, Barnes, Thornton and three other individuals, Eugene Baynes, Eugene Hearn and Gregory Trice, who had not been named in the wire interception affidavit or order. In accordance with the provisions of Local Criminal Rule 2 (providing for random assignment of cases), the indictments were assigned for general pre-trial proceedings and trial to our colleague, the Honorable John B. Hannum.

 Following the indictments, counsel for all defendants filed motions to suppress the wire interception. The motions were broadly based, attacking, inter alia, the constitutionality of the wire interception law, the propriety of the wire interception authorization, the sufficiency of the wire interception order, and the manner of execution of the wire interception. In the ordinary course of this Court's business, all pre-trial motions are heard by the judge to whom the case is assigned. However, Local Criminal Rule 16(b) provides that any motion attacking the "validity or sufficiency" of an order authorizing or approving the interception of a wire or oral communication issued by a judge of this Court shall be heard by that judge. *fn3" Accordingly, since we authorized the wire interception, *fn4" the motions to suppress the wire communication came on for hearing before us.

 As we began to consider the matter, a threshold problem emerged due to the fact that much of the asserted probable cause for the wire interception set forth in Agent Miller's affidavit was derived from several telephone conversations between an individual identified in the affidavit as "Government Informant SD1-40026" and defendants Fox, Thornton, Barnes and Foster. At a pre-hearing conference, the Government represented to us that the conversations between the informant and the various defendants were monitored and recorded with the consent of the informant whom the Government willingly identified as Charles "Mickey" Robinson. *fn5" The Government contended that the monitoring was appropriate and within the consensual exception to Title III; moreover, it evinced its intention to offer the transcripts of the Robinson conversations as evidence in its case-in-chief at trial. A pre-trial motion which had been interposed by defendant Thornton asserted that Robinson did not, in fact, consent to the monitoring and that the use of the conversations must be suppressed at trial. Thornton further asserted that the lack of consent by Robinson vitiated the entire Miller affidavit and rendered our wire interception authorization unlawful.

 Because Thornton's contentions might require us to address the validity of Robinson's consent in connection with the wire interception suppression motion, it was agreed by all counsel that we would also hear and determine the motion to suppress the Robinson conversations for use in the Government's case-in-chief since the consent determination hinged upon the same factual findings. *fn6" Fox, Foster, Barnes and all other defendants who were parties to a Robinson conversation were granted oral leave to interpose motions to suppress the Robinson conversations.

 Hearing was thereupon commenced on the motions to suppress the Robinson conversations and the wire interception. In the midst of the hearing, the defendants discovered and then pressed their most serious objection to the wire interception -- the absence from the Court's interception order of certain language, prescribed in Title III, requiring prompt execution of the interception and minimization of interception of communications not otherwise subject to interception. The issues raised by this problem required additional testimony. The total hearing consumed approximately five and one-half days. For reasons which will appear, the defendants' motions to suppress have been denied. *fn7"

 II. Constitutionality of Title III

 The constitutionality of the statutes governing interception of oral and wire communications was upheld, as against Fourth Amendment attack, in United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), cert. denied, 417 U.S. 918, 94 S. Ct. 2622, 41 L. Ed. 2d 223 (1974). *fn8" We are bound by Cafero and, accordingly, the defendants' constitutional argument need not detain us further.

 III. The Robinson Conversations

 A. The Applicable Law

 18 U.S.C. § 2511 (2) (c) provides

 
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

 Any doubt as to the admissibility of consensually monitored conversations was set to rest by the decision in United States v. Santillo, 507 F.2d 629 (3d Cir. 1975). Accord, United States v. Armocida, 515 F.2d 49 (3d Cir., 1975). While in Santillo (and Armocida) it was the agent himself who recorded the conversation, whereas here the agents recorded while Robinson spoke, we believe that the Santillo rationale, 507 F.2d at 632-635, extends to and controls the case at bar. To the extent that it does not, we elect to follow the impressive authority of the circuits which have examined post- Katz9 factual situations in which an agent has monitored and/or recorded a conversation between a defendant and a consenting participant. Such cases more closely parallel the facts in On Lee v. United States, 343 U.S. 747, 96 L. Ed. 1270, 72 S. Ct. 967 (1952) and Rathbun v. United States, 355 U.S. 107, 2 L. Ed. 2d 134, 78 S. Ct. 161 (1957) *fn10" (and thus the case at bar), and hold that such interceptions do not violate the Fourth Amendment. *fn11" Accordingly, we hold that the constitutional rights of the defendants were not violated by the fact that their telephone conversations were monitored and recorded without their consent so long as the other participant to these conversations (Robinson) gave his prior voluntary consent to the interceptions. We turn next to the appropriate standard for measurement of consent.

  In United States v. Osser, 483 F.2d 727 (3d Cir.), cert. denied, 414 U.S. 1028, 38 L. Ed. 2d 321, 94 S. Ct. 457 (1973), the Court held that consent to the tapping of a telephone conversation between an indicted defendant and a potential Government witness was sufficient to justify the admission of the tape at trial, although it was possible to infer from the circumstances of the witness' consent to the tapping that he hoped by cooperating with the Government not to disturb a forthcoming grant of immunity. *fn12" In discussing the witness' hopes for leniency, Judge Rosenn stated, "[our] inquiry on appeal is limited to whether the consent was voluntary and uncoerced, not whether the motivations for it were altruistic or self-seeking." *fn13" While Osser does not elucidate a comprehensive standard for measuring the validity of consent, it does indicate that so long as pressure is not initiated by the police for the purpose of overbearing the will of the "consenting" party, the authorization is valid.

 Likewise, in United States v. Bonanno, 487 F.2d 654 (2d Cir. 1973), the Court of Appeals for the Second Circuit discussed the amount of proof required to show that an informer consented to the monitoring of a telephone call. Noting at the outset that the extent of proof required to show "consent" in such cases is quite different from that needed to show consent to a physical search, Judge Friendly stated that "it will normally suffice for the Government to show that the informer went ahead with a call after knowing what the law enforcement officers were about." 487 F.2d at 658-59.

 One final consideration bearing upon the law applicable to the admissibility of consensually monitored conversations is the effect of the Pennsylvania statute, 18 C.P.S.A. § 5701-04, under which it has been held unlawful for third parties to record communications without the consent of all parties thereto. See Commonwealth v. McCoy, 442 Pa. 234, 275 A.2d 28 (1971); Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966). Assuming, arguendo, that the Robinson recordings were made in violation of Pennsylvania law, that would not, contrary to defendants' contentions, affect their admissibility in the case at bar. So long as the information was lawfully obtained under federal law, which is embodied in 18 U.S.C. §§ 2510-2520, 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); United States v. Armocida, 515 F.2d 49 (3d Cir. 1975).

 Charles "Mickey" Robinson is the "common law brother-in-law" of defendant James Fox. (Fox had been living with Robinson's sister, Tamara Robinson, for a number of years.) In March, 1974, Robinson visited the DEA offices in Philadelphia. Shortly thereafter, Robinson agreed to cooperate with DEA. *fn15" The program of cooperation involved a series of telephone calls made by Robinson in the presence of DEA agents which were monitored and recorded by them. During these telephone calls Robinson spoke with Fox, Barnes, Thornton, Foster and one Herschel Williams about narcotics traffic. Pursuant to the conversations, actual narcotics buys were made by Robinson from Williams, Thornton and Foster, who were Fox's associates.

 During the suppression hearing, Robinson admitted antipathy toward Fox because of his belief that Fox had intimidated members of Robinson's family (particularly his mother). Robinson testified, however, that his desire to help DEA was motivated by two factors: (1) his concern for his family; and (2) his objection to the involvement of Fox and his associates in narcotics trafficking. *fn16"

 Robinson further testified that when he came to DEA he did not ask for assistance in the form of money or help with any pending criminal cases. However, after he began cooperating with DEA by making the telephone calls, DEA offered and gave monetary assistance which Robinson accepted. (The first payment did not occur until after a number of calls had been completed.) Indeed, ultimately DEA offered and provided subsistence to Robinson and, due to its concern for his safety, relocated him outside the Philadelphia area following the indictments. Robinson's testimony with respect to financial assistance was corroborated by DEA agents. Moreover, according to the testimony of Robinson and the DEA agents, the consent of Robinson to the monitoring and recording was sought and obtained (with one possible exception) prior to each monitored and recorded conversation. Most of the calls were monitored from the DEA office, and the agents testified that before each call they asked Robinson if it was all right to monitor and record it, and Robinson agreed. Several calls were monitored from Robinson's apartment in the presence of Agent Lucas, and it appears that the consent was obtained prior to the first call and may not have been recited prior to each call received in quick succession. However, by this time Robinson had consented on numerous occasions to the course of telephone calls and to the monitoring and recording of numerous individual calls.

 There was no evidence that Robinson was threatened or taken advantage of or that he was under the influence of drugs; indeed, the evidence was completely to the contrary. It appears that Robinson did have one open criminal case in the Court of Common Pleas of Philadelphia, but he denied receiving any help from the Government in connection with that case and the DEA agents deny that they were asked for or offered help. Robinson also denied being a drug user and the DEA agents testified that they did not know Robinson to be a drug user.

 C. Conclusion

 Having credited the testimony of Robinson and the DEA agents on the points at issue, we find that the Government has, by clear and convincing evidence, established to our satisfaction that Robinson voluntarily consented to the subject conversations. The evidence not only meets the test enunciated in United States v. Bonanno, supra, but it also meets the standard gleaned from United States v. Osser, supra. We thus conclude that the Robinson conversations should not be suppressed.

 IV. Probable Cause for the Wire Interception Order

 With respect to probable cause, 18 U.S.C. § 2518(3) states that before an order authorizing or approving wire interception may be granted, the court must determine on the basis of the facts submitted by the applicant that:

 
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in Section 2516 of this chapter;
 
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
 
(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.

 The probable cause allegations of the affidavit submitted to us by Agent Miller and based upon which we issued our interception order were a function of a variety of investigative tools. Information concerning illicit narcotics activities of Mr. Fox was developed, in part, by DEA special agents while conducting an investigation of Black Incorporated, an organization of Negro males allegedly engaged in narcotic trafficking. Other information relative to Fox was supplied by DEA informants other than Robinson. However, the major component of the probable ...


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