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UNITED STATES v. ARNOLD

November 30, 1983

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSEPH ARNOLD AND JOSEPH GRIECO, DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

This matter is before the court on defendants' motion to suppress. For the reasons hereinafter stated, defendants' motion is denied.

Defendants were indicted for violations of 18 U.S.C. § 371 & 1503, conspiring to corruptly influence, obstruct and impede the due administration of justice by corruptly instructing a grand jury witness to refuse to testify. The witness, Ralph Carazzo, asserted his fifth amendment right against self-incrimination after being ordered to testify by a federal district court pursuant to a grant of immunity. The defendants allegedly instructed Carazzo to refuse to testify to shield themselves from possible grand jury indictment.

The defendants' indictment rests upon various telephone conversations intercepted by means of a government wiretap. The defendants have moved to suppress any evidence of these intercepted communications at their upcoming trial, complaining that the government did not comply with the federal wiretapping statute, 18 U.S.C. § 2510-2520 (1970 & Supp. 1983).

The federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ("Act") is part of a comprehensive statutory scheme to combat organized crime activities. The wiretapping law has a dual purpose: 1) to protect the privacy of wire and oral communications and 2) delineate on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad.News 2112, 2153. ("Senate Report 1097") One of the Act's key requirements is that wire and oral communications may be intercepted only in the investigation of specified serious crimes and only after application to a judge of competent jurisdiction, § 2516(1) & (2). The application must specify the offense for which evidence is sought. § 2518(1)(b)(i). Moreover, before authorizing a wiretap, the judge must determine that probable cause exists for believing that communications concerning the specified offense will be obtained, that other investigative procedures have been tried and failed or reasonably seem unlikely to succeed. § 2518(3)(b) & (c). Finally, the order approving the interception must specify the offense for which evidence is sought. § 2518(4)(c).

Communications intercepted in accordance with these procedures may be disclosed and used in federal or state criminal and grand jury proceedings unless the communication "relat[es] to offenses other than those specified in the order of authorization or approval. . . ." § 2517(5). In such instances, a subsequent application must be made to a judge who shall determine that the original wiretap authorization was lawfully obtained and that the communication was, in fact, incidentally or "otherwise intercepted" during the course of a lawfully executed order. Senate Report 1097 at 2189. Section 2517(5) further counsels that such a subsequent application "shall be made as soon as practicable."

To enforce compliance with its requirements, the Act also provides that intercepted communications cannot be used at trial or before a grand jury if such a disclosure would be in violation of the Act. § 2515. The Act further identifies the three circumstances that violate the Act and trigger suppression under § 2515:

(i) the communication was unlawfully intercepted;

  (ii) the order of authorization or approval under
  which it was intercepted is insufficient on its face;
  or
  (iii) the interception was not made in conformity
  with the order of authorization or approval.

§ 2518(10)(a).

Delay In Making A § 2517(5) Application

In light of these facts, the defendants maintain that the government has failed to seek disclosure of otherwise intercepted communications "as soon as practicable" as required by ยง 2517(5). The defendants construe the quoted language as requiring that the government seek an order to use "otherwise intercepted" communications as soon as practicable after the interception has been made. Defendants point out that in the instant case the government did not seek an order until 31 months after the termination of the interception and that such a delay violates the Act and requires this court to suppress the intercepted communications. On the other hand, the ...


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