United States of America, Plaintiff-appellee, v. H. Jordan Rabstein and Michael Irvin Canon, Defendants-appellants, 554 F.2d 190 (5th Cir. 1977)

Defendants H. Jordan Rabstein and Michael Irvin Canon appeal their conviction for violations of 18 U.S.C. §§ 2, 371, 1952, and 1955.¹  Defendants contend that FBI agents violated certain provisions of Title III of the Omnibus Crime Control Act in their use of electronic surveillance to investigate defendants' alleged gambling activities.

Defendants' primary contention is that the Government's failure to name defendant Canon in its November 6, 1974 application to intercept wire communications violated 18 U.S.C. § 2518(1) (b) (iv), which requires such an application to include "the identity of the person, if known, committing the offense and whose communications are to be intercepted," thereby requiring suppression of the intercepted conversations. Specifically, the application named six persons,²  but omitted any reference to Canon, whose conversations, defendants argue, agents had probable cause to believe would be overheard in their surveillance. The recent United States Supreme Court holding in United States v. Donovan, 429 U.S. 413, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977), forecloses this argument.³  See also United States v. Sklaroff, 552 F.2d 1156 (5th Cir. 1977). Defendants also argue that the Government violated 18 U.S.C. § 2518(1) (c), which requires an affidavit supporting a wire interception to include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." Yet, the affidavit in this case bears a close similarity to those approved in two recent Fifth Circuit cases and meets the guidelines articulated in those opinions. See United States v. McCoy, 539 F.2d 1050 (5th Cir. 1976); United States v. Sklaroff, 552 F.2d 1156 (5th Cir. 1977). See also United States v. Robertson, 504 F.2d 289 (5th Cir. 1974), cert. denied, 421 U.S. 913, 95 S. Ct. 1568, 43 L. Ed. 2d 778.

Defendant Canon also argues that agents, without prior judicial authorization, made duplicate tapes of the tap and played these to various persons for the purpose of obtaining voice identification. Yet 18 U.S.C. § 2518(8) (a) provides, among other things, that duplicate recordings may be made for use or disclosure pursuant to the provisions of subsections (1) and (2) of section 2517. Section 2517(2) provides that "any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties." The Government's conduct here complies with that provision. See also Senate Report, No. 1097 of the Omnibus Crime Control and Safe Street Act of 1968, 1968 U.S. Code Congressional and Administrative News, p. 2112.⁴ 

Finally, defendant Rabstein argues that the contents of the "Canon tap," authorized on November 22, 1974, should be suppressed for violating 18 U.S.C. § 2517(5). Section 2517(5) provides that an investigative officer may testify about criminal activities not specified in the wiretap authorization upon application to and approval by a judge of competent jurisdiction who has found that the contents were intercepted in accordance with the provisions of this chapter.⁵  The wiretap order here authorized the interception of wire communications for the purpose of obtaining evidence reflecting conduct in violation of 18 U.S.C. § 1955 and § 371. Yet, the federal grand jury that heard the contents of the tap returned an indictment charging violations not only of § 1955 and § 371, but also of § 1952 an offense not mentioned in the interception order. Accordingly, appellants argue that because the indictment included an offense not listed in the interception authorization, the Government should have obtained court approval, pursuant to § 2517(5), to present evidence of the interception before the grand jury. Because the Government failed to do this, defendant Rabstein demands that the indictment be dismissed, citing United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), a case in which the Seventh Circuit affirmed the district court's dismissal of an indictment in circumstances similar to this. See also United States v. Marion, 535 F.2d 697 (2nd Cir. 1976). The Government's substantive rebuttal to this argument is multifaceted. First, the Government contends that it did not have to seek prior judicial authorization to disclose the intercepted communications to the grand jury since those communications provided evidence to indicate violations of the criminal offenses enumerated in the authorization for interception § 371 and § 1955. That these conversations also indicated violations of criminal statutes not mentioned in the order does not call into play § 2517(5), for § 2517(5) was enacted to insure that an interception order would not be used to permit a "fishing expedition" for criminal violations through its requirement of judicial authorization to testify about crimes not listed in the order. Here, where the interceptions produced evidence of just those offenses listed in the order, argues the Government, it is clear that no fishing expedition was engaged in, even though the conversations may have coincidentally demonstrated the existence of criminal offenses not enumerated in the authorization. This argument is especially persuasive, continues the Government, when the evidence for two offenses is as over-lapping as it must be in § 1952 and § 1955 violations. The Government also argues that, Brodson notwithstanding, dismissal of an indictment is not a remedy employed by Title III for violations of the disclosure provisions of §§ 2517(3) and (5), and that such a dismissal would contravene Supreme Court decisions in Costello v. United States, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397 (1956) and in United States v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) that the validity of an indictment is not affected by the character of the evidence considered.

We do not have to decide, however, the difficult questions raised by the Government's above substantive rebuttal in that its procedural objection strikes the winning blow against defendant Rabstein's objections. That is, the Government observes that neither defendant raised this issue at any time below either before or during trial and that accordingly defendant Rabstein waived any violation of 2517(3) and (5). Since defendant Rabstein did not deny this allegation in his appellate brief or at oral argument, we consider him to have conceded that he never raised the issue below. Fed. R. Crim. P., 12(b) (2) requires that any defense or objection based on defects in the indictment, must be raised prior to trial, unless the objection is that the indictment fails to show jurisdiction or to charge an offense. The latter two objections may be raised at any time during the pendency of the proceedings. Failure to make any other objection prior to trial, however, shall constitute their waiver. Rule 12(f). Here, defendants do not allege that violation of 2517(5) constituted lack of jurisdiction in the district court or resulted in the failure of the indictment to charge an offense. Accordingly, they have waived any other defects in the indictment and cannot at this time move to dismiss. See United States v. Busard, 524 F.2d 72 (5th Cir. 1975); United States v. Varner, 437 F.2d 1195 (5th Cir. 1971), cert. denied, 404 U.S. 825, 92 S. Ct. 52, 30 L. Ed. 2d 52; United States v. Williams, 203 F.2d 572 (5th Cir. 1953). In addition, while defendants have not argued that the evidence of the § 1955 offense should have been suppressed at trial, we note that § 2518(10) (a) the provision of Title III dealing with suppression of intercepted conversations likewise emphasizes timeliness in its requirement that motions to suppress be made before trial unless there was no opportunity to make such motion or the defendant was not aware of the grounds of motion.⁶  See United States v. Moon, 491 F.2d 1047 (5th Cir. 1974). For the above reason, we reject defendant's belated effort to dismiss the indictment.

AFFIRMED.