United States District Court, Northern District of Illinois, E.D
July 8, 1982
UNITED STATES OF AMERICA, PLAINTIFF,
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.
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.
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
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.
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
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.
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
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
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
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
Too Short to Minimize. These calls, in Agent
Ekman's judgment, terminated before it was possible
to determine whether they were germane to the
Criminal Intelligence. These calls discussed
criminal activities not specifically related to
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
Wrong Number. These calls were either incoming or
outgoing transmissions that reached the wrong
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
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
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
Drug Related 16%
Too Short to Minimize 22%
Criminal Intelligence 2%
Non-Criminal Intelligence 15%
Identifying Participant 2%
Wrong Number 3%
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
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
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
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.
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
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
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
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
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
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
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
(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
(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