In this Circuit, however, "'the government's burden of establishing its compliance with [subsection 2518(1)(c)] is not great.'" United States v. Anderson, 542 F.2d 428, 431 (7th Cir. 1976) (brackets in original); see also United States v. Farmer, 924 F.2d 647, 652 (7th Cir. 1991) ("The government's burden of proving 'necessity' [under § 2518(1)(c)] is not high."); United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir. 1988) (quoting United States v. Anderson, supra). The government's application is satisfactory if it contains a factual predicate for a determination that other, perhaps less intrusive, investigative techniques are not feasible. Zambrana, 841 F.2d at 1330.
The legislative history of § 2518(1)(c), discussed in this Circuit's leading cases, is quite pertinent here:
Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and have failed or why these are unlikely to succeed if tried, or to be too dangerous. This requirement is patterned after traditional search warrant practice and present English procedure in the issuance of warrants to wiretap by the Home Secretary. [Citation omitted.] The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. [Citation omitted.] What the provision envisions is that the showing be tested in a practical and common sense fashion.
S. Rep. No. 1097, 90th Cong., 2d Sess. 101 (1968), cited in Anderson, 542 F.2d at 431.
Employing common sense, and reading the affidavit as a whole, it is clear that electronic surveillance was necessary for three reasons: "normal investigative techniques" had met with only limited success or had failed, the nature of the activities under investigation--namely, the activities of the Chicago organized crime operation known as the La Cosa Nostra--suggested that normal investigative techniques would be unlikely to succeed in the future, and that normal investigative techniques would be too dangerous. Response Exh. 2. We therefore reject Marcy and Roti's suggestion that § 2518(1)(c) necessity has not been shown.
Finally, Marcy and Roti seem to contend--that is, they raise the issue in their motion but not in their memorandum of law in support of that motion
--that the wiretap evidence should be suppressed because the government failed to minimize the interception of communications not subject to interception and, further, failed to record all communications which were monitored and overheard. There can be little doubt that the government followed procedures sufficient to establish a prima facie case of reasonableness. See United States v. Dorfman, 542 F. Supp. at 390-91.
Minimization instructions were given by the supervising attorney to the monitoring agents before the Counselor's Row wiretaps were activated. The agents also received a copy of the interception order, the supporting affidavit, and a fairly detailed memorandum outlining the procedures to be followed. See Response Exh. 7. An additional memo provided supplementary instructions regarding special issues raised by the interception and minimization of oral conversations. Id. at Exh. 8.
Additionally, the supervising assistant United States attorney submitted detailed reports to the Chief Judge on the tenth and twentieth days of the interception and attached to those reports copies of the logs maintained by the monitoring agents. Id. at Exhs. 9, 10. The monitoring agents updated these logs as calls were intercepted, and described each call in some detail--the time made, its duration, nature (incoming or outgoing), and a brief summary of the agent's contemporaneous understanding of the substance of the call and identity of the participants. Significantly, the monitoring agents also recorded whether they deemed the particular conversation pertinent, and whether the interception was minimized.
These reports, combined with the internal supervision of the assistant United States attorney, his reports to the Chief Judge, and the Chief Judge's overall supervision of the surveillance are sufficient to establish a prima facie case of the reasonableness of the government's minimization efforts.
We deny Marcy and Roti's motion to dismiss the indictment and suppress all wiretap evidence against them. First, defendants' probable cause argument relating to the first wiretap application fails as a matter of law. Second, the government may use wiretap evidence to prove alleged violations of 18 U.S.C. § 666, even though that section is not among the enumerated offenses for which electronic surveillance is specifically targeted. Third, we adopt Judge Rovner's analysis of defendants' 18 U.S.C. § 2517(5) argument, and reject that argument as insufficient to merit dismissal of the indictment or suppression of certain evidence. Fourth, we find that there was § 2518(1)(c) "necessity," particularly given the nature of the government's burden in that respect here in the Seventh Circuit. Finally, the government has established prima facie reasonableness regarding its efforts to minimize the interception of non-pertinent conversations. It is so ordered.