The opinion of the court was delivered by: Nordberg, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face;
(iii) the interception was not made in conformity
with the order of authorization or approval.
Delay In Making A § 2517(5) Application
In the instant case, the defendants contend that the government
did not make a § 2517(5) application "as soon as practicable", as
required by that section and therefore the interception was
unlawful and must be suppressed in accordance with § 2515. The
government first requested wiretap authorization for the purpose
of getting information relating to the crime of unlawful
interference with commerce by
threats or violence in violation of 18 U.S.C. § 1951 & 371. This
wiretap was authorized for a maximum period of 30 days on April
2, 1979. A second request for a wiretap authorization for the
purpose of getting information relating to the crime of
extortionate extensions of credit in violation of 18 U.S.C. § 892
& 894 was filed and granted on May 25, 1979. Defendants were
not indicted for these crimes. Instead, in January, 1983, the
government applied for a disclosure order pursuant to § 2517(5),
relating to offenses of obstruction of justice, violations of
Sections 1503, 1510, 1955 and 1962 of Title 18, United States
Code. The order was granted. Defendants were subsequently
indicted for violations of §§ 1503 & 371, obstruction of justice
and conspiracy to obstruct justice.
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 § 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 ...