or report to the issuing Judge any facts which would warrant a finding of probable cause enabling the amendment of said Court Order. Plescia appears to argue that, during the course of the Title III surveillance, the government intercepted conversations regarding illegal gambling activities and that, because the government did not amend its Title III application to include Title III interception of conversations about illegal gambling activities, none of the Title III evidence gathered (included that regarding the defendants' narcotics activities) can be used. (See Defendant Plescia motion and p. 10.) However, Plescia's argument lacks merit because during the course of the Title III surveillance in this case, the government intercepted many narcotics related conversation -- which interception was clearly authorized by the Title III orders. The government also intercepted some conversations that may now be viewed as evidence of "gambling activity" as opposed to necessarily narcotics trafficking activity.
The court finds that the government did not violate any constitutional or statutory law in overhearing and recording these challenged conversations which may have been about gambling. The government is correct in stating that 18 U.S.C. § 2518(5) requires the government to conduct the Title III surveillance in such a way as to minimize the interception of communications not otherwise subject under the statute. The Seventh Circuit has recognized, under circumstances similar to those present here, that "government agents . . . can hardly be expected to know [which] calls are not pertinent prior to their termination"; and that "when the investigation is of a suspected large-scale conspiracy, and when the suspects speak in veiled terms, the government is justified in intercepting conversations that eventually prove to be without the scope of the Title III authorization." United States v. Williams, 737 F.2d 594 (7th Cir. 1984) (quoting Scott v. United States, 436 U.S. 128, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978)), cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985). See also Scott, 436 U.S. at 140-41; United States v. Quintana, 508 F.2d 867 (7th Cir. 1975).
Furthermore, the government recognizes and acknowledges that to the extent any of the Title III recordings clearly involve gambling-related as opposed to narcotics-related activities, the government would be required under 18 U.S.C. § 2517(5) to obtain authorization or approval from the court in order to introduce such intercepted gambling conversations into evidence at the upcoming trial. See United States v. Williams, 737 F.2d at 606. However, the court is aware that the government does not intend to introduce intercepted conversations about gambling as opposed to narcotics, into evidence at the upcoming trial which involves charges of narcotics distribution and conspiracy. Indeed, it is Plescia's counsel, and not the government, who has indicated he may seek to introduce gambling related evidence. These indications were brought to the court's attention by the filing of pretrial motions and a conference relating to an in camera submission by the prosecutors.
Defendants next claim that the Court erred in failing to order termination of Interceptions after the filing of the First Status report and erred in allowing said interceptions to continue after the filing of each successive report failed to set forth any facts regarding attainment of the desired objective. In response, the government says it filed status reports with Chief Judge Grady showing the progress made toward achievement of the authorized objective and the need for continued interception, that evidence of narcotics related activities was being gathered from the interceptions, and that continued interception was needed.
This court has reviewed the reports submitted to Judge Grady by the government and finds that the procedure followed here complied with the law. The Eleventh Circuit has held that, even when a district court received a report of no progress, the district court is not required to terminate a surveillance, especially where the affidavit for the Title III order sets forth a continuing criminal operation existing over a long period of time. See United States v. Van Horn, 789 F.2d 1492, 1498-9 (11th Cir.), cert. denied, 479 U.S. 854, 93 L. Ed. 2d 123, 107 S. Ct. 190 (1956). In this case, obviously, there was progress as shown in the reports, and thus no need for the court to terminate the interceptions.
Defendants Dena Plescia and Anthony Grossi have filed identical motions to suppress the Title III tape recordings that were made during the first period of Title III surveillance of defendant Victor Plescia's mobile telephone. That first period of Title III surveillance was authorized by a court order entered on November 7, 1989. The surveillance began on November 7, 1989 and ended on December 7, 1989. The defendants' motions seek to suppress the Title III tape recordings made during this period on the ground that the tapes were not sealed at the time required by 18 U.S.C. § 2518(8)(a), because they were not presented to the Chief Judge for sealing until December 21, 1989.
The court denies these motions to suppress for two reasons. First, the Constitution and Title III only permit an "aggrieved person" to suppress Title III evidence. See 18 U.S.C. § 2518(10); Alderman v. United States, 394 U.S. 165, 175 n. 9, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). This requires that defendant seeking suppression be a party to the conversation the government seeks to use at trial or that the conversation took place on his premises. Id. at 176-80. While defendants Dena Plescia and Anthony Grossi were parties to some of the Title III interceptions they seek to suppress, they were not parties to all of them and thus each one lacks standing as to many of the recordings they now challenge. The court has generously construed the defendants' motion to allow discussion on the issues raised. Additionally, the sealing of the tapes on December 21, 1989 was in full compliance with the requirements of Section 2518(8)(a), which requires that Title III recordings be sealed "immediately upon the expiration of the [court] order [authorizing the electronic surveillance] or extensions thereof" (emphasis added). In this case, an extension order was entered on December 27, 1989 authorizing Title III surveillance of the same Plescia mobile telephone for an additional thirty days ending January 26, 1990. Therefore, the recordings from the first period of Title III surveillance need not have been filed until the conclusion of the Title III surveillance authorized by the order of extension.
The defendants' motions also assert that the tapes from the first wiretap were not timely sealed in compliance with 18 U.S.C. § 2518(8)(a). However, the court does not agree: the recordings from the first wiretap were timely sealed in compliance with the requirements of § 2518(8)(a).
Title 18, United States Code, § 2518(8)(a) provides:
Immediately upon the expiration of the [court] order [authorizing electronic surveillance], or extensions thereof,. . . recordings [from the ordered surveillance] shall be made available to the judge issuing such order and sealed under his directions . . .