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UNITED STATES v. SCOTT

April 29, 1971

UNITED STATES of America
v.
Frank Ricardo SCOTT et al. UNITED STATES of America v. Bernis L. THURMON et al.


Waddy, District Judge.


The opinion of the court was delivered by: WADDY

WADDY, District Judge.

 In criminal Case No. 1088-70 Frank Ricardo Scott, also known as "Reds", Albert Lee, also known as Alphonso H. Lee, Reginald Clifton Jackson, also known as "Zeke", Leroy Houston, also known as "Big Boy" and Teri A. Lee, were charged in an indictment with conspiring together "and with other persons known and unknown to the Grand Jury" to violate (1) Section 4705(a), Title 26, United States Code and (2) Section 174, Title 21, United States Code.

 Defendant, Scott, was also charged in Counts 8 and 12 of the indictment with using a communication facility "* * * in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense" -- an offense made punishable by 18 U.S.C., Section 1403. In Counts 13 and 14 he is charged with violations of Title 26 U.S.C., Section 4704(a), and in Counts 16 and 17 he is charged with violations of 21 U.S.C., Section 174.

 Defendant, Albert Lee, was also charged in Counts 3 and 6 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code and conspiring to commit that offense". In Count 15 he is charged with a violation of Title 26 U.S.C., Section 4704(a), and in Count 18 he is charged with a violation of Title 21 U.S.C., Section 174. Defendant, Albert Lee, is a fugitive.

 Defendant, Jackson, was also charged in Counts 10 and 11 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense".

 Defendant, Houston, was also charged in Counts 4 and 5 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense." Defendant, Houston, has entered a plea of "Guilty" to Count 4 and the Government has announced its intention to dismiss the remaining charges against him at the time of sentencing.

 Defendant, Teri A. Lee, was also charged in Counts 7 and 9 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense". Teri A. Lee is a fugitive.

 On the same day that the indictment was returned in Criminal No. 1088-70 another indictment was returned in Criminal Case No. 1089-70 in which Bernis Lee Thurman, also known as Benjamin Thornton, Geneva Jenkins, also known as Geneva Thornton, George Jenkins, Alfred D. Spencer, Bernard Smith, Johnny Duval Williams, also known as Duke, Costello V. Williams, Chloe V. Daviage, also known as Mickey, and Evelyn A. Abston were charged with conspiring together "and with other persons known and unknown to the Grand Jury" to violate (1) Section 4705(a), Title 26, United States Code, and (2) Section 174, Title 21, United States Code.

 Defendant, Thurmon, was also charged in Counts 13 and 17 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense.

 Defendant, Geneva Jenkins, was also charged in Counts 12 and 14 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense".

 Defendant, George Jenkins, was also charged in Counts 3 and 4 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act or acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense". In Count 20 he is charged with a violation of Title 26, United States Code, Section 4704(a), and in Count 23 he is charged with violating Title 21, United States Code, Section 174.

 Defendant, Alfred D. Spencer, was also charged in Counts 6 and 16 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act or acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiracy to commit that offense".

 Defendant, Bernard Smith, was also charged in Counts 11 and 15 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense". He was charged in Count 21 with a violation of Title 26, United States Code, Section 4704(a) and in Count 24 with a violation of Title 21, United States Code, Section 174. This defendant has entered a plea of "Guilty" to an Information charging him with conspiracy to sell narcotics in violation of Title 26, United States Code, Section 4704(a), and the Government has announced its intention to dismiss the charges contained in the indictment at the time of sentencing.

 The defendant, Johnny Duval Williams, was also charged in Counts 7 and 10 with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense". He was charged in Count 22 jointly with Costello V. Williams with violating Section 4704(a), Title 26, United States Code, and in Count 25, jointly with Costello V. Williams, with a violation of Section 174, Title 21, United States Code. Johnny Duval Williams has entered a plea of "Guilty" to the first count of the indictment charging him with conspiring to violate Section 4705(a), Title 26, United States Code, and the Government has announced its intention to dismiss the remaining charges of the indictment against him.

 In addition to the two conspiracy counts and the charges made against her jointly with Johnny Duval Williams in Counts 22 and 25 mentioned above, the defendant, Costello V. Williams, was also charged in Counts 18 and 19 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense". Costello V. Williams has entered a plea of "Guilty" to Count 22 of the indictment and the Government has announced its intention to dismiss the remaining counts of the indictment applicable to this defendant.

 The defendant, Daviage, was also charged in Counts 5 and 8 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense".

 The defendant, Abston, was also charged in Count 9 of the indictment with using a communication facility "in committing, causing and facilitating the commission of, and attempting to commit an act and acts constituting a violation of Section 4705(a), Title 26, United States Code, and conspiring to commit that offense. The defendant, Abston, has been severed from this case because of her illness and hospitalization.

 Frank Ricardo Scott, Albert Lee and Leroy Houston, defendants in Criminal No. 1088-70 are named as co-conspirators in Count 1 of Criminal No. 1089-70 but not as defendants therein. Frank Ricardo Scott and Leroy Houston, are named as co-conspirators in Count 2 of Criminal No. 1089-70 but not as defendants therein.

 Bernis Lee Thurmon, a defendant in Criminal No. 1089-70 is named as a coconspirator in Count 1 of Criminal No. 1088-70 but not as a defendant therein. The same allegations are incorporated by reference in Count 2 of Criminal No. 1088-70.

 Both of these indictments are the result of information obtained by the use of a wire tap on telephone number 483-2948 subscribed to by "Geneva Thornton", located at #603, 1425 N Street, Northwest, Washington, D.C., and alleged to have been commonly used by Bernis Lee Thurmon. The intercept was authorized pursuant to Section 2518, Title 18, United States Code, by U.S. District Judge John Lewis Smith on January 24, 1970.

 The defendants in each case have filed or joined in similar pre-trial motions and the Government has filed a motion to consolidate the two cases for trial. All motions in both cases were heard in a joint proceeding acquiesced in by all parties and submitted to the Court for its determination.

 1. CONSTITUTIONALITY OF THE STATUTE

 All defendants have attacked the constitutionality of the statute authorizing the interception. Their primary argument is that the statute contravenes the 4th Amendment restrictions against unreasonable searches and seizures.

 The motions before the Court challenge the validity of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, particularly Section 2518, Title 18, United States Code, which establishes the procedure for the interception of wire and oral communications.

 As already indicated the Fourth Amendment to the Constitution of the United States provides the constitutional framework within which to test the validity of the statute. This amendment dictates that people have a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and that this right "shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized". The amendment does not bar all searches and seizures but only those that are unreasonable. The amendment outlawed the "general warrant", and its basic purpose "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930. Thus the issue confronting this Court is whether 18 U.S.C. § 2518 is so broad as to result in the authorization for a general warrant permitting an unreasonable search and seizure in violation of the 4th Amendment.

 The United States Supreme Court faced a similar problem in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). There it held the New York permissive eavesdrop statute, N.Y. Code Crim. Proc. § 813-a, to be unconstitutionally broad in its sweep "resulting in a trespassory intrusion into a constitutionally protected area" and thus violative of the 4th and 14th Amendments. The Court condemned the New York statute's "blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures," 388 U.S. at 60, 87 S. Ct. at 1884 and reiterated the 4th Amendment requirement that a neutral and detached authority be interposed between the police and the public. It held that this authority must independently find probable cause, and that "warrants may only issue 'but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized'." 388 U.S. at 55, 87 S. Ct. at 1881.

 In striking down the constitutionality of the New York Statute the Supreme Court delineated four basic 4th Amendment requirements of particularity that must be a part of any statute authorizing wiretapping or eavesdropping. These requirements are as follows:

 1. The statute must provide that probable cause be established in the application and order for the belief that a particular offense has been or is being committed; a particular description of the property (conversations or communications) to be seized, and not merely the name or identity of the person whose conversations are to be seized.

 2. The statute must require particularity as to the duration of the intrusion which shall not be so long as to be "the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause". The statute must provide for prompt execution of the order and for a new showing of probable cause upon each application for an extension of the original authorization.

 3. The statute must require particularity as to the termination date once the particular conversation sought is seized, rather than leaving such cut-off date to the discretion of the officer.

 The requirement of a showing of probable cause before an independent judicial officer imposing the necessary safeguards was reiterated by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In that case the Supreme Court held that although the eavesdropping officers had exercised great restraint and limited their intrusion into the petitioner's privacy, the intrusion was nevertheless unlawful because it lacked the safeguards of judicial restraints independently imposed. It held that the agents should have been required "before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate." They should have been "compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order", and they should have been directed to notify the authorizing magistrate after completion of the search "in detail of all that had been seized".

 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 represents an attempt by Congress, among other things, to structure a limited system of wire surveillance and electronic eavesdropping within the framework of the 4th Amendment and the guidelines of Berger, Katz, and other Supreme Court decisions for use by law enforcement officers in fighting crime. An examination of the portions of the statute relevant to these motions reveals that they track the constitutional requirements of particularity, judicial restraints and supervision, and the other protective procedures outlined by the Supreme Court in Berger and Katz.

 The Statute vests control and supervision of its use in Judges of the U.S. District Court and the U.S. Court of Appeals. (See 18 U.S.C. §§ 2510(9) (a) and 2516(1)). Section 2518(1), Title 18, U.S. Code, requires that the application for a wiretap must contain certain information and be made to such judge who may require additional testimony or documentary evidence in support of the application, 2518(2), Title 18, U.S. Code. Section 2518(3) provides for an independent determination by the judge and

 
"(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that --
 
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
 
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
 
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if ...

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