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UNITED STATES v. MARTORELLA

August 21, 1978

UNITED STATES of America
v.
Michael Joseph MARTORELLA, Anthony Joseph Martorella, Mark Martorella, Harry Martorella, James Martorella, Joseph Gabriael Sunseri, David Peter Johns, Richard Allen Johns, and Frank Joseph Suley



The opinion of the court was delivered by: ZIEGLER

I. History of Case

Defendants were indicted on August 17, 1977, for alleged participation in a conspiracy involving an illegal gambling enterprise. 18 U.S.C. §§ 371 and 1955 (1970). The matter presently before the court is defendants' motions to suppress evidence obtained as the result of wire interceptions conducted pursuant to orders of this court dated January 8 and February 6, 1975.

 The orders were issued pursuant to 18 U.S.C. § 2518 (1970). Defendants' motions relate, in part, to Section 2518(1)(e) of that Act which provides:

 
"(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information: . . .
 
(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and"

 The instant application itemized numerous prior applications involving the "same persons, facilities or places." Defendants contend, however, the application violated applicable statutory standards because: (1) it failed to include a 1971 application to tap the telephones of William Cihal and (2) failed to disclose that conversations of defendants were intercepted during those taps. The Cihal wiretaps produced evidence leading to the indictment and conviction of Anthony and Michael Martorella, defendants herein, at a separate indictment. That judgment was affirmed without opinion by the Court of Appeals at 565 F.2d 152 (3d Cir. 1977).

 The issue here presented can be stated thusly: Does Section 2518(1)(e) require that an application for an order to intercept wire or oral communications include the disclosure that conversations with the subject have been previously monitored in a judicially authorized wiretap of another person, place or facility?

 After a full evidentiary hearing on July 12, 1978, and after full consideration of defendants' brief, we hold that Section 2518(1)(e) does not require the government to disclose prior interceptions involving the subject of the tap. Judicial approbation is predicated upon the disclosure of previous applications of the same person, place, or facility, and we decline to rewrite the Act to encompass the term "interceptions."

 The government contends the question was resolved by the judgment order of the Third Circuit in the case of United States v. Esposto, 565 F.2d 153 (3d Cir. 1977). We are inclined to agree; however, it is difficult to discern from that order whether this precise issue was presented to the Court of Appeals. Under the circumstances, we will articulate our grasp of the problem.

 II. Discussion

 Any discussion of the question must begin with the case of United States v. Bellosi, 163 U.S.App.D.C. 273, 501 F.2d 833 (1974). In Bellosi, the defendant was the subject of a previous authorized wiretap in connection with an unrelated investigation. In its application to the court, the government failed to disclose the previous application, contending that disclosure was not required since it related to an investigation separate from the gambling investigation at bar. The court rejected the argument noting that Section 2518(1)(e) prescribed "stringent conditions" with which the government must comply before conducting an interception of wire or oral communications. United States v. Bellosi, supra, 163 U.S.App.D.C. at 280, 501 F.2d at 840.

 In the course of its analysis, the court discussed the distinction between prior interceptions and prior applications. The court explained:

 
"Congress may have required disclosure of all previous Applications, instead of all prior Interceptions, to avoid unduly burdening the Government and to avoid an ambiguity which inheres in the latter word and which is not clearly resolved by its use elsewhere in the statute. Wire interceptions could refer to continuing wiretaps on particular telephones for particular periods of time; however, the term could also refer to individual intercepted telephone conversations. If the word Interception had been used in § 2518(1)(e) and if it were given the latter interpretation, the Government would have had the substantial burden of informing the judge from whom an authorization was sought of each individual conversation which had been previously intercepted using the same facilities or places or involving the same person; for example, there were apparently several hundred conversations intercepted by the Jet Liquor Store wiretap. Such disclosure in many cases is unnecessary. Given the judge's supplemental inquiry power under § 2518(2), in cases where the judge finds that additional information concerning prior applications is needed to act on the pending one, he can order the Government to produce it." 163 U.S.App.D.C. at 279, 501 F.2d at 839 n. 13 (emphasis original).

 This reasoning was followed in United States v. Florea, 541 F.2d 568 (6th Cir. 1976), where the court was faced with a factual situation similar to the instant case. In Florea, the defendant argued the government transgressed the disclosure requirements of § 2518(1)(e) because it failed to incorporate a statement of facts concerning previous wire interceptions involving the defendant. Noting that neither the defendant, his residence, nor ...


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