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UNITED STATES v. SUQUET

United States District Court, Northern District of Illinois, E.D


July 8, 1982

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JEAN MARIE SUQUET, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Getzendanner, District Judge.

MEMORANDUM OPINION AND ORDER

Defendants have been charged in a multi-count indictment with numerous violations of the federal narcotics laws. While investigating these charges, the Government sought and obtained five warrants authorizing wiretaps on the telephones of Thomas Arra and Michael Bounos, two of the principals in the alleged conspiracy.*fn1 At issue is the lawfulness of the Government's conduct during its initial surveillance of Arra (the "Arra I" surveillance). The defendants contend that the monitoring agents failed to "minimize" the interception of calls not subject to seizure under the warrant, and that all evidence derived from this surveillance must be suppressed.*fn2 For the reasons to follow, the motion to suppress is denied.

I.

In Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 (1976 & Supp. II 1978) ("Title III"), Congress enacted a scheme of rules regulating the use of wiretap evidence in the federal courts. Section 2518(5) commands that each wiretap warrant contain

  a provision that the authorization to intercept
  shall be executed as soon as practicable, shall
  be conducted in such a way as to minimize the
  interception of communications not otherwise
  subject to interception under this chapter, and
  must terminate upon attainment of the authorized
  objective, or in any event in thirty days.

In compliance with Title III, Judge Parsons inserted the required "minimization" directive in his order authorizing the initial tap on Arra's phone. See Government Wiretap Exhibit 1C at 4. The issue before the court is whether the Government complied with this command while executing the warrant.

The Supreme Court interpreted the minimization provision in Scott v. United States, 436 U.S. 128, 140, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168 (1978):

  The statute does not forbid the interception of
  all nonrelevant conversations, but rather
  instructs the agents to conduct the surveillance
  in such a manner as to "minimize" the
  interception of such conversations. Whether the
  agents have in fact conducted the wiretap in such
  a manner will depend on the facts and
  circumstances of each case.

The inquiry is whether "the government has done all that it could to avoid unnecessary intrusion." United States v. Quintana, 508 F.2d 867, 874 (7th Cir. 1975).

In disputes of this sort, the Government's case is clearly bolstered by a showing that a high proportion of the calls it intercepted revealed information pertinent to the investigation being conducted. In many of the reported decisions, however, such a showing could not be made. In Scott, only forty percent of the intercepted calls were drug-related and therefore within the literal scope of the warrant. In Quintana, another drug case, over 2000 calls were intercepted, yet "only 153 were ultimately found germane enough to be worth transcribing, and only 47 were used at trial." United States v. Quintana, supra, 508 F.2d at 873. Nevertheless, in both cases, no minimization violation was found. Both decisions prove that "there are surely cases . . . where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable." Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724.*fn3

Courts have put forth numerous arguments to justify a finding of statutory compliance in the face of evidence that a significant number of nonpertinent calls were intercepted. It has often been remarked that

  [l]arge and sophisticated narcotics conspiracies
  may justify considerably more interception than
  would a single criminal

  episode. This is especially so where, as here,
  the judicially approved purpose of the wiretap is
  not so much to incriminate the known person whose
  phone is tapped as to learn the identity of the
  far-flung conspirators and to delineate the
  contours of the conspiracy. United States v. James,
  161 U.S.App.D.C. 88, 494 F.2d 1007, 1019 (1974);
  United States v. Cox, 462 F.2d 1293, 1301 (8th Cir.
  1972).

United States v. Quintana, supra, 508 F.2d at 874.

The location of the tapped phone is also extremely significant. If it "is located in the residence of a person who is thought to be the head of a major drug ring," extensive monitoring may be both permissible and necessary. Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724. This is especially true at the outset of the investigation when the Government lacks the information it needs to identify the relevant cast of characters. United States v. Quintana, supra, 508 F.2d at 874.*fn4

A third systemic consideration is the extent of supervision exercised by the authorizing judge.*fn5 Obviously, a reviewing court is more likely to sanction a surveillance if it has already been subjected to extensive and contemporaneous oversight. Id. at 875.

As for particular calls, several types are essentially exempted from the requirements of minimization. These include calls which are "very short"; those which are "onetime only" and involve unidentified voices; and those which are "ambiguous in nature," particularly if they contain "guarded or coded language." Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724. "In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination." Id.

Indeed, as a general rule, an interception made pursuant to a lawful warrant is unreasonable only when the monitored call fits into a pattern of previous calls that the listening agents should have realized were irrelevant:*fn6

  During the early stages of surveillance the
  agents may be forced to intercept all calls to
  establish categories of nonpertinent calls which
  will not be intercepted thereafter. Interception
  of those same types of calls might be
  unreasonable later on, however, once the
  nonpertinent categories have been established and
  it is clear that this particular conversation is
  of that type.

Id. at 141, 98 S.Ct. at 1725; accord, United States v. Quintana, supra, 508 F.2d at 874-75; United States v. Dorfman, 542 F. Supp. 345, at 390 (N.D.Ill. 1982). However, there is even an exception to this principle, for it is extremely unlikely that there is any obligation to minimize any call that is made between suspected coconspirators, even if a pattern of innocence*fn7 has developed in their conversations. At any moment, the pleasantries might cease and the business begin. See, e.g., United States v. Scott, 516 F.2d 751, 755 (D.C. Cir. 1975); United States v. King, 335 F. Supp. 523, 542 (S.D.Cal. 1971), affd in part and reversed in part on other grounds, 478 F.2d 494 (9th Cir. 1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974); see also Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724 (recognizing that a call is likely to be "interceptable" when it "involve[s] one or more of the co-conspirators.") At the very least, claims of pattern must be strictly scrutinized in this context.

II.

Even if a violation of Title III is shown, a defendant is not necessarily entitled to an order suppressing the information obtained through the illegal wiretap. The defendant must also establish that he or she has standing to complain. Thus, when objecting to the introduction of a given call X, a defendant must show that he or she was a party to call X or that he or she has a privacy interest in the premises housing the tapped phone. Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176 (1969).*fn8

With respect to the Arra I wiretap, no defendant can assert the second ground as a basis for standing. Thomas Arra is not a defendant, since the Government voluntarily dismissed him from this case several months back. Likewise, neither Paula Guthery nor Jennifer Arra (Thomas' daughter), the two other individuals possessing a privacy interest in the Arra residence, are defendants.*fn9 Calls intercepted during the Arra I wiretap are suppressible, if at all, only at the behest of a defendant who was a party to the call in question.

In concrete terms this means that defendant Bounos has standing to suppress the 95 calls he was overheard making during Arra I, and that defendants Browning and Hillon have standing to suppress 2 and 11 calls, respectively. No other defendant appears at this point to have standing to suppress any evidence derived from Arra I.

Bounos, Browning and Hillon have made no effort thus far to show that they were unreasonably intercepted in the sense that their individual calls were part of an innocuous pattern as discussed before. See pp. 1037-1038, supra. Rather, defendants have attacked the entire Arra I surveillance as a totality and have tried to show that the monitoring agents flagrantly disregarded the minimization directive by committing numerous, unjustified invasions of privacy. Their theory seems to be that such a showing allows the inference that the entire monitoring was conducted without any regard for the limiting terms found in the warrant, and that the Government therefore engaged in an essentially "warrantless." "general search." Since searches of this nature are void ab initio and unreasonable in all of their manifestations, it follows that each interception made during the course of Arra I was illegal, even those which might be thought of as reasonable when viewed in isolation. In a nutshell, defendants' claim appears to be that even if their own calls were legally seized in some narrow sense, the pervasive overmonitoring elsewhere committed by the Government renders the former interceptions void as well.*fn10 See United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1975); see generally United States v. King, supra, 335 F. Supp. at 544.*fn11

The first question is whether this is a valid theory of suppression. A few courts have indicated that "Congress did not intend that evidence directly within the ambit of a lawful order should be suppressed because the officers, while awaiting the incriminating evidence, also gathered extraneous conversations." United States v. Cox, 462 F.2d 1293, 1301 (8th Cir. 1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974); accord, United States v. Sisca, 361 F. Supp. 735, 746-48 (S.D.N.Y. 1973), affd on other grounds, 503 F.2d 1337 (2d Cir.), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). In the view of these courts, a given call cannot be suppressed solely because other transmissions were mishandled. Two reasons are usually given for this position. First, analogies are drawn to the general law of search and seizure: "[T]he seizure of some items beyond those specified in a search warrant does not result in the suppression of those items which were validly seized." Id. at 746; United States v. Mainello, 345 F. Supp. 863, 877 (E.D.N.Y. 1972); see United States v. Holmes, 452 F.2d 249, 259 (7th Cir. 1971) (Stevens, J.), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972). Second, it is observed that the literal language of Title III authorizes relief only if the actual "communication" or "interception" which the defendant wishes to suppress was illegally seized. 18 U.S.C. § 2518(10)(a)(i) and (iii); see United States v. Dorfman, supra, at 394, United States v. King, supra, 335 F. Supp. at 545.

I am convinced, however, that under certain circumstances, it is appropriate to suppress the entire fruits of a wiretap surveillance even if it cannot be shown that each and every interception was wrongful by itself. Indeed, many courts which have confronted this issue have recognized, albeit in dicta, that total suppression might be called for in a clear case of monitoring abuse. United States v. Turner, 528 F.2d 143, 156 (9th Cir.), cert. denied, 429 U.S. 837, 97 S.Ct. 105, 50 L.Ed.2d 103 (1975); United States v. Webster, 473 F. Supp. 586, 598 (D.Md. 1979); United States v. Curreri, 363 F. Supp. 430, 437 (D.Md. 1973); United States v. Lanza, 349 F. Supp. 929, 932 (M.D.Fla. 1972); United States v. Leta, 332 F. Supp. 1357, 1360 n. 4 (M.D.Pa. 1971).*fn12 Even the Dorfman and King courts did not foreclose this option completely. United States v. Dorfman, supra, at 394 n. 59; United States v. King, supra, 335 F. Supp. at 544-45.

Moreover, in an analogous context, the United States Court of Appeals for the District of Columbia recently employed a "general search" approach while analyzing a motion to suppress. United States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981) (per curiam). In Heldt, the defendants were convicted at a trial in which 201 documents were introduced following their physical seizure from the offices of the defendants. On appeal, the defendants challenged the manner in which the warrant authorizing the search had been executed. The defendants did not claim that the 201 documents were themselves beyond the scope of the warrant; they "virtually concede[d] . . . that the documents were within the Description of Property listed in the warrant." Id. at 1259 n. 29; see also id. at 1260 n. 33. Rather, the Heldt defendants, like the defendants in this case, argued "that because the search as a whole was a general search, all documents therein seized must be suppressed." Id. at 1259 (emphasis in original). The Court of Appeals rejected the claim, but not on the ground that the defendants' argument failed as a matter of law to justify suppression. The Court "recognize[d] that in some cases a flagrant disregard for the limitations in a warrant might transform an otherwise valid search into a general one, thereby requiring the entire fruits of the search to be suppressed." Id. However, on the facts presented, the Court could not conclude that the required "flagrant disregard" had been shown. The "drastic remedy of total suppression" was hence inappropriate and the case was deemed to be a "normal" one, one in which the seizure of "some items outside the scope of a valid warrant . . . by itself [does] not affect the admissibility of other contemporaneously seized items which do fall within the warrant." Id.*fn13

The precepts set forth in Heldt are extremely relevant, for the Title III suppression remedy parallels the remedy recognized by the general law of search and seizure. Scott v. United States, 436 U.S. 128, 139, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168 (1978); Alderman v. United States, 394 U.S. 165, 175-76, 89 S.Ct. 961, 967-968, 22 L.Ed.2d 176 (1969). There should, in fact, be an especially strong congruence between the Heldt rules governing document searches and those pertaining to wiretaps:

  We recognize that there are grave dangers
  inherent in executing a warrant authorizing a
  search and seizure of a person's papers that are
  not necessarily present in executing a warrant to
  search for physical objects whose relevance is
  more easily ascertainable. In searches for
  papers, it is certain that some innocuous
  documents will be examined, at least cursorily,
  in order to determine whether they are, in fact,
  among those papers authorized to be seized.
  Similar dangers, of course, are present in
  executing a warrant for the "seizure" of
  telephone conversations. In both kinds of
  searches, responsible officials, including
  judicial officials, must take care to assure that
  they are conducted in a manner that minimizes
  unwarranted intrusions upon privacy.

Andresen v. Maryland, 427 U.S. 463, 482 n. 11, 96 S.Ct. 2737, 2749 n. 11, 49 L.Ed.2d 627 (1976). Thus, if the monitoring conducted during Arra I evidenced "flagrant disregard" of the limiting provisions contained in the warrant, each defendant will be entitled to an order suppressing each call which he has standing to challenge.

The last qualification must be stressed. Even if the presence of a "general search" is established, defendant Hillon can, for example, suppress only those calls in which he himself is a party. Moreover, even these calls remain available for use against the other defendants who are not parties.*fn14 United States v. Scott, 504 F.2d 194, 197 n. 5 (D.C. Cir. 1974). Proof of a "general search" merely establishes that each interception violated someone's privacy rights. To obtain suppression, a defendant must still show that the implicated rights are his or her own.

Obviously, however, for a defendant such as Hillon to prevail on a "general search" theory (and thereby obtain suppression of his calls), it will be necessary for him to show that the Government failed to minimize third party conversations which he himself has no standing to suppress. Without such evidence, Hillon would be hard pressed to marshal the necessary evidence of "flagrant disregard." Church of Scientology of California v. Linberg, 529 F. Supp. 945, 964 (C.D.Cal. 1981). Such proof is permissible. In the postulated scenario, Hillon would be relying on the third party calls only as evidence; he would not be trying to suppress them. United States v. Heldt, supra, 668 F.2d at 1258 n. 28; United States v. Scott, supra, 504 F.2d at 197.*fn15

To summarize, defendants have "stated a claim" to the extent they seek to suppress their own calls with proof of a "general search." In making out this claim, defendants will be entitled to refer to the Government's minimization record with third party calls. However, in all events, defendants can suppress only those calls in which they themselves participated. I turn next to the evidence which has been presented on the issue of "general search."

III.

In Heldt the Court of Appeals looked to three factors in determining whether a general search had occurred. The Court examined the extent to which the agents conducting the search had been briefed on the warrant's scope and limits. It further examined whether the agents had confined their search to the areas specified in the warrant. Finally, it analyzed the extent to which the agents had in fact seized documents not contemplated by the warrant.

The second factor — the respect shown for area limitations — has little if any relevance in a wiretap minimization inquiry. To the extent that an eavesdropping search can be said to take place in a defined "area" at all, that area is presumably the space containing the tapped phone. Here, there are no allegations or facts suggesting that the Government monitored residences not listed in Judge Parsons' order.

Moreover, when wiretapping is challenged, the first factor cannot assume the importance it apparently has in the document search context under Heldt. The Court there was of the opinion that a warrant can be properly executed "[o]nly when the agents are aware of the warrant, through personal knowledge or instruction." Id., 668 F.2d at 1261 n. 35 (emphasis in original). "Minimization designed to control the proper scope of the search cannot occur without such knowledge." Id. at 1262 (emphasis added). To the Court, if the searching agents are unaware of the contents of the warrant, they are necessarily unable to make good faith efforts to adhere to its terms; the presence of a general search is likely. See also id. at 1268-69.

The Court's implicit reliance upon notions of good faith must be reconciled, in the wiretap context, with Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). The evidence in Scott established that the monitoring officers made no effort at all to minimize:*fn16 "the only steps taken which actually resulted in the nonreception of a conversation were those taken when the agents discovered the wiretap had inadvertently been connected to an improper line." Id. at 133 n. 7, 98 S.Ct. at 1721 n. 7. In the Supreme Court, the petitioner's "principal contention [was] that the failure to make good-faith efforts to comply with the minimization requirement [was] itself a violation of § 2518(5)." Id. at 135, 98 S.Ct. at 1722. The Court unambiguously rejected the argument, holding that Title III requires only objective compliance with the minimization provision. Id. at 135-39, 98 S.Ct. at 1722-1724. All the Government need show is that the calls which were intercepted would still have been monitored even if the listening agents had actually attempted to minimize. By itself, an absence of good faith does not establish a statutory violation.

The Scott Court, to be sure, never held that good faith cannot be considered at all when ruling on a minimization claim.*fn17 Strictly speaking, the Court held only that a finding of violation cannot be premised solely upon proof that good faith was lacking. Nevertheless, fidelity to the spirit of Scott mandates that the good faith element play only a small role in the inquiry. Defendants cannot establish the existence of a "general search" if their proof is geared heavily towards showing only a lack of good faith efforts.

Defendants must rather place their emphasis upon facts showing that failures to minimize actually occurred an inordinate number of times.*fn18 Defendants bear a heavy burden in this regard;*fn19 the Heldt requirement of "flagrant disregard" is extremely difficult to surmount. Church of Scientology of California v. Linberg, 529 F. Supp. 945, 965 (C.D.Cal. 1981). If all the defendants can show are "isolated instances" of excessive monitoring, they are not entitled to the total suppression order they seek. In re Search Warrant Dated July 4, 1977, etc., 667 F.2d 117, 130 (D.C. Cir. 1981). Violations of an "egregious magnitude" must be proven. United States v. Heldt, supra, 668 F.2d at 1269.

In the course of two sets of hearings held on minimization, the Government submitted Government Wiretap Exhibits 32 and 34. These are charts detailing the Government's characterization of each completed call that was overheard at least in part during the Arra I surveillance. Exhibit 32 pertains to the monitoring that was conducted on telephone line (312) 246-0199; Exhibit 34 describes the monitoring of Arra's second phone line, (312) 246-0663.

Drug Enforcement Administration ("DEA") agent Carl Ekman prepared Exhibit 32. During the actual time that the Arra I phone calls were overheard, Agent Ekman was a field surveillance agent assigned to the Arra investigation. Except on rare occasions, Agent Ekman did not personally monitor the Arra I calls as they were being made.

In the late summer of 1981, Agent Ekman began to work on Exhibit 32. He examined each intercepted*fn20 call and assigned it to one of the following categories:

  Drug Related. These were calls in which narcotics
  were discussed in some fashion — e.g., their use,
  their availability, or their price.

  Minimized. These calls were not overheard in their
  entirety.

  Too Short to Minimize. These calls, in Agent
  Ekman's judgment, terminated before it was possible
  to determine whether they were germane to the
  investigation.

  Criminal Intelligence. These calls discussed
  criminal activities not specifically related to
  drug-trafficking.

  Non-Criminal Intelligence. These calls provided
  general intelligence information — e.g., the
  alleged co-conspirators' prospective travel plans.

  Identifying Participant. These calls helped
  identify individuals thought to be involved in some
  way with the drug "organization" under
  investigation.

  Wrong Number. These calls were either incoming or
  outgoing transmissions that reached the wrong
  number.

  Information/Time. These calls were made either to
  get a recorded "time" message or to obtain a phone
  number from the operator.

  Reservations. These were calls in which the caller
  made a reservation (e.g., with an airline or a
  restaurant).

  Other. All calls that did not fit the other
  categories were placed in "Other."

Agent Ekman made further distinctions within the "Drug Related," "Minimized," "Too Short to Minimize," "Criminal Intelligence," "Non-Criminal Intelligence," and "Other" categories. Calls of these types that he considered to be "Between Persons Then Known To Be Involved in Drug Trafficking" were totaled separately from those believed to be "To or From Other Persons." Under each of his column headings, Agent Ekman placed the reference numbers*fn21 of the specific calls described by the heading. In a few cases, Agent Ekman was unable to decide whether a given call fit more properly within one category or another; he consequently listed the call in both.

In deciding how to characterize each call, Agent Ekman attempted to place himself in the shoes of an agent monitoring the call as it actually occurred in June 1978. He tried to divorce himself from what he had learned of the investigation in the intervening three years. He candidly admitted that this was often a difficult task.

DEA Special Agent Jerry Jezek prepared Exhibit 34. He used the same headings and followed the same procedures that Agent Ekman had used with Exhibit 32. Agent Jezek testified that he and Agent Ekman agreed upon the definitions that were assigned to each heading. The two agents did not, however, cross-check each other's work for accuracy and consistency.*fn22 Agent Jezek conceded that he too found it difficult to filter out completely all the information he had learned between 1978 and 1981.

Together, the two charts reveal that 910 completed calls were intercepted during the Arra I surveillance. By category, the Government submits that these calls break down as follows:*fn23

  Drug Related                                 16%
  Minimized                                    31%
  Too Short to Minimize                        22%
  Criminal Intelligence                         2%
  Non-Criminal Intelligence                    15%
  Identifying Participant                       2%
  Wrong Number                                  3%
  Information/Time                              6%
  Reservations                                  1%
  Other                                         4%

Defendants' initial response is that these figures are completely meaningless. First, they charge that the "Drug Related" and "Minimized" categories are overinclusive and give the false impression that the monitoring agents properly handled each call listed under the two headings. They point out that it is conceivable that a call might contain a reference to drugs, and therefore be "Drug Related," yet still be subject to minimization. As Judge Marshall explains:

  We do not simply focus on the individual
  conversation and determine whether it contains
  any incriminating statements; rather, where a
  pattern of unlawful interception is established
  we examine the challenged interceptions to
  determine whether they fall within that pattern.
  If the government continues to intercept, for
  example, a person not named in the authorizing
  order after his or her identity has been
  established and a pattern of innocent
  conversation takes place, it would be of no
  moment that eventually that individual was heard
  discussing incriminating matter; the conversation
  would still be subject to suppression because it
  would have been "unlawful" for the monitors to be
  overhearing the conversation in the first
  instance.

United States v. Dorfman, supra, at 395. Defendants also take issue with the broad definition of "Drug Related" used by Agents Ekman and Jezek. For the purpose of Exhibits 32 and 34, a call became "Drug Related" the minute a caller announced that he was "stoned." Such calls, defendants argue, were "Drug Related" in only the most superficial manner, disclosed no information relative to the conspiracy, and were not subject to seizure under the warrant.

In a similar vein, defendants attack the "Minimized" total. Since Agents Ekman and Jezek considered a call "Minimized" even if the monitoring ceased for only a second, defendants theorize that many "Minimized" calls might actually have been recorded for substantial periods of time. Therefore, even if a call was "minimized" in the sense used by Agents Ekman and Jezek, it might still have been unreasonably intercepted.

Defendants' arguments miss the mark. The Government's burden in a minimization hearing is simply to put on a prima facie case. Once such a showing is made, the ultimate burden of persuasion rests with the defendants, not the state. See note 19, supra. Therefore, proof that a call was "Drug Related" or "Minimized," even in the broad senses used by the agents, is sufficient to shift to the defendants the burden of proving that these labels are misleading. Defendants cannot attack the charts simply because they do not provide information which defendants themselves are obligated to muster.

Moreover, transcripts of all Drug Related calls have now been prepared by the Government and read by the court. Each transcribed call on the Arra I surveillance designated Drug Related was drug related in a significant respect.*fn24 Also, the evidence presented at the hearing does not support the claim that calls were only minimized for a few seconds. The minimization was substantial.

Defendants next challenge the "Too Short to Minimize," "Criminal Intelligence," "Non-Criminal Intelligence," and "Other" totals on different grounds. Their claim here is basically that these categories are interchangeable since many calls could have been placed under two or more such headings. It follows that the ultimate placement of the relevant calls depended primarily, if not entirely, on the subjective judgment of the agent making the chart. This state of affairs is objectionable to defendants on two grounds. First, the relevant category totals become nothing more than meaningless summations of random guesses. Second, Rule 1006 of the Federal Rules of Evidence does not allow the presentation of judgments in chart form.

The first argument fails for the simple reason that it has not been substantiated. In their briefs, defendants point to few, if any, concrete examples of irrational categorization. They have failed to make a substantial showing that similar calls were placed in different categories or that disparate calls were lumped together under one heading. Defendants have had nearly two weeks of hearings in which to elicit their evidence and two briefs in which to marshal it. In light of their failure to make any semblance of a convincing showing, the court can only conclude that their fears are little better than speculative. They are not grounds for disregarding the Government's charts.*fn25

The second argument is equally unpersuasive. The charts simply summarize the agents' testimony as to "the contents of voluminous . . . recordings . . . which cannot conveniently be examined in court." Fed.R.Evid. 1006. This is permissible under the rules. Any other result would be shocking. Both the Supreme Court and the D.C. Circuit relied in the Scott litigation on charts embodying judgments which were equally, if not more, subjective than those made here. See United States v. Scott, 516 F.2d 751, 754 n. 3 (D.C. Cir. 1975).*fn26

Defendants' fall-back position is that even if the charts are admissible, they fail to establish a prima facie case of overall reasonableness. They argue that only 16% of the intercepted calls were drug-related and that this statistic fails woefully in comparison with the 40% mark achieved in Scott. However, under Scott, "blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer." Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724. The issue is whether the Government's interceptions were reasonable, not whether they were always an investigatory success.

The analysis must therefore focus on the 69% of the calls which were not minimized. When viewed from this perspective, the chart figures clearly constitute a prima facie showing that the bulk of the non-minimized interceptions were reasonable. With the exception of the calls categorized as "Other," plausible justifications have been offered for the monitoring of each non-minimized conversation. As for the calls placed in the "Drug Related," "Too Short to Minimize," "Criminal Intelligence," and "Identifying Participant" categories, the necessary justifications are patent and need not be explained. The interception of "Non-Criminal Intelligence" calls was also important because the information these interceptions provided facilitated the 24 hour-a-day physical surveillance then being maintained over the suspects.*fn27 The same is true of the "Information/Time" and "Reservations" calls. The "Wrong Number" category appears in large measure to be a subset of "Too Short to Minimize": a listening agent could hardly have known that a call was a "wrong number" until it was virtually completed. On the other hand, no justifications have been offered for the interception of the "Other" calls. Agent Jezek admitted in fact that these calls consisted only of "general conversations." I agree with defendants that "Other" is really a euphemism for "Should Have Been Minimized."

Nevertheless, the "Other" category contains only 4% of the total number of completed calls. The Government's failure to justify such a small percentage does not undercut its position. The figures revealed by Exhibits 32 and 34, taken as a whole, make clear that the Government successfully established a prima facie case that no general search had occurred.

The burden thus shifts to the defendants to go behind these raw numbers and show that an inordinate number of unreasonable interceptions nevertheless occurred. Defendants, however, complain in their briefs about only a very few calls. They challenge first the Government's record with four conversations which are claimed to contain privileged discussions. They also maintain that the agents disregarded patterns of innocence that had developed with respect to conversations between Thomas Arra and his parents, Jennifer Arra and her mother, Jennifer Arra and her friends, and Paula Guthery and her family.

In the main, the evidence does not support the defendants. The Government's handling of the privileged calls appears reasonable:

  In chronological order, the first such call
  defense counsel inquired about in the January,
  1982 hearing was Blue 30-26. In that call, which
  lasted a total of 45 seconds, Tom Arra called a
  number, spoke with a receptionist, and changed
  his dental appointment. In the second call, Blue
  30-32, which lasted a total of 35 seconds, Paula
  Guthery called a number, spoke with a
  receptionist, and changed her doctor appointment.
  In the third call, Blue 52-11, Arra called an
  office and spoke with a female. Arra asked for an
  individual. The female said he is not in. Arra
  then asked to speak with another male, Frank
  DeSalvo. All this took 32 seconds. Arra was then
  placed on hold for 38 more seconds. Arra and a
  male then discussed the male coming into the
  middle of the case and fees. The monitoring
  agents then pushed the minimization button after
  49 seconds and no further conversation was
  intercepted. In the fourth and last call, Blue
  55-5, Arra called Doug's office and a female said
  Doug was not in. In the remainder of the two
  minutes and nine seconds, Arra and the female
  discussed why Doug never called Arra back. The
  monitoring

  agents' actions in these four calls are not
  "telling examples of the defective approach taken
  in the minimization process," as defendants
  contend. Two of the four calls are very short, 35
  and 45 seconds. The third was minimized when it
  became apparent that lawyer-client discussions
  might be underway. The last call contained no
  lawyer-client style discussions.

Government's Reply to Defendants' Post-Hearing Memorandum at 13-14. Many of the calls between Paula Guthery and her sister and mother were also minimized to a substantial degree. Furthermore, the mere fact that Jennifer Arra spoke in a conversation did not invariably render that call innocent from the outset. On occasion, Jennifer took messages for her father, and sometimes, she handed the phone to others after she had spoken. Also, when Jennifer answered the phone the caller would identify himself, thus making identification of the caller possible.

At best defendants have shown that the monitoring may have been excessive in a few instances. They have fallen far short of proving that the Government's errors were of such a magnitude that total suppression is warranted. See United States v. Heldt, supra, 668 F.2d at 1268-69; In re Search Warrant Dated July 4, 1977, etc., supra, 667 F.2d at 130; United States v. DePalma, 461 F. Supp. 800, 822 (S.D.N.Y. 1978). Several additional considerations bolster this conclusion:

  (1) This investigation was instituted to gain an
      understanding of a conspiracy of unknown
      dimensions. Especially at the beginning, the
      agents were entitled to operate under the
      assumption that virtually no one was above
      suspicion.

  (2) The United States Attorneys supervising this
      surveillance were required by Judge Parsons
      to file regular reports every five days
      detailing the progress that had been made
      toward "cracking" the conspiracy and the
      efforts which had been made to minimize.
      These reports were usually submitted within
      one day after the end of the five day
      interval. Judge Parsons never terminated the
      surveillance.

  (3) The record shows that the agents consistently
      minimized portions of calls between known
      co-conspirators. There could hardly be stronger
      evidence of good faith efforts to minimize.

  (4) It was difficult for the agents to get a fix
      on many calls. Some had multiple topics.
      Others had multiple speakers. Code words were
      often used. The conversations were often
      incoherent and rambling.

For all the reasons stated, defendants' "general search" theory is rejected. The motion to suppress the fruits of the Arra I surveillance is denied.*fn28


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