United States of America, Plaintiff-appellant, v. Vincent Picone and Anthony Simone, Defendants-appellees, 560 F.2d 998 (10th Cir. 1977)

This appeal by the Government pursuant to 18 U.S.C. § 3731 from a suppression order presents questions under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520. After a thorough evidentiary hearing the district court suppressed as to two parties, defendant appellants Picone and Simone, the contents of interceptions and evidence derived thereupon, United States v. Picone, 408 F. Supp. 255, following the reasoning of opinions of the Fourth and Sixth Circuits¹  which was later rejected by the Supreme Court. See United States v. Donovan, 429 U.S. 413, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977); United States v. Bernstein, 429 U.S. ----, 97 S. Ct. 1167, 51 L. Ed. 2d 578 (1977). Under the Donovan opinion, for which our disposition of this appeal was withheld,²  we conclude we must reverse the suppression order and remand this cause for further proceedings.

The case involves an indictment for substantive violations of 18 U.S.C. § 1952, prohibiting interstate and foreign travel or transportation in aid of racketeering enterprises. Following the indictment of defendants Picone and Simone, and a co-defendant Goodfellow, in connection with alleged illegal gambling activities, motions to suppress intercepted evidence were made by all these defendants. These were directed at evidence gathered pursuant to orders of Judge Collinson of the Western District of Missouri in October and November of 1973. Suppression was ordered as to all three defendants. The background of the orders is detailed in the district court's opinion, 408 F. Supp. 255, and in United States v. Costanza, 549 F.2d 1126 (8th Cir.), and will only be summarized here.

The October 5, 1973, intercept order was obtained by the Government on a detailed affidavit of F.B.I. Special Agent Schucker who supervised and personally participated in the investigation. It indicated that reliable informants had named certain persons as engaged in illegal gambling activities centering around the Kansas City, Missouri, office of Necco Tea and Coffee Company. The October order authorized the interception of oral communications at the front office area of Necco and interception of wire communications over two telephones in the front office of Necco and the residence telephones of Picone and Costanza. Picone, Costanza and three other persons were named in the application and order, but Simone and Goodfellow were not named. See Costanza, supra, 549 F.2d at 1129.

In November, 1973, the second intercept order was issued authorizing reinstitution of the interception of oral communications in the front office area of Necco and of wire communications over the residence phones of Picone and Costanza. The order dropped authorization to intercept wire communications over the Necco phones and added a third residential phone. Simone and Picone were among the persons named in the November application and order, but again Goodfellow was not named. See Costanza, supra, 549 F.2d at 1130.

In January, 1975, Picone, Simone and Goodfellow were indicted for violations of 18 U.S.C. § 1952. All three defendants plead not guilty and later made their motions to suppress the contents of the October and November interceptions and evidence derived therefrom. After the Government admitted it had had probable cause to name Goodfellow in its October application, the district court sustained his motion to suppress for failure to name him. That ruling was not appealed.

After an evidentiary hearing the district court entered the suppression order in favor of Simone and Picone which is before us. The court found that there was probable cause to believe that Simone would be using the Necco telephones to commit gambling offenses and that his communications would be intercepted. The order granted Simone's motion to suppress for failure to name him in the October, 1973, application. The court also ruled that no evidence derived under the November order could be introduced against Simone, although he was named in that order, since the order was obtained as a result of information gained under the October order.

Further, the court held that the illegality in the interception of the Goodfellow conversations tainted as well Picone's conversations with Goodfellow, although Picone was named in the October and November applications and orders. It ruled that because of violation of the statutory requirement on naming Goodfellow, the communications between Goodfellow and Picone must also be suppressed on Picone's motion.

The Government argues that the suppression order cannot stand in light of the Supreme Court's opinion in United States v. Donovan, 429 U.S. 413, 97 S. Ct. 658, 50 L. Ed. 2d 652. The defendants say that Donovan does not control the outcome for two reasons. First, they contend that the uncontroverted fact is that the Government agents knowingly failed to identify Goodfellow in the application for the intercept orders. And, second, they say the Supreme Court "did not consider the issue of whether a 'named' defendant has standing to challenge the evidentiary use of conversations intercepted between himself and an 'unnamed' co-defendant when the interceptions are illegal as to that co-defendant." Appellees' Memorandum of Law, 2-3.³ 

The argument of defendants essentially is that while they cannot positively say whether or not full information being furnished to the issuing Judge would have barred a judicial authorization for the interceptions, what is determinative is that the Government has admitted it had information concerning Goodfellow prior to the October, 1973, application which was not included in the supporting affidavit; that it is thus an "unassailable fact" that the Government intentionally failed to comply with the statute; that the illegality of the interception of the Goodfellow conversations is now res judicata; and that these circumstances "may well" present the "different case" noted in the Donovan opinion, citing note 23 of the majority opinion,⁴  so that the suppression order should stand. Appellees' Memorandum of Law, 2-3.

We cannot agree. We feel that the defect in not naming Simone does not warrant suppression in his behalf, in light of the Donovan decision. In connection with the failure to name Goodfellow, we are likewise convinced that suppression is not justified on the theory of any intentional withholding of information. We turn first to the question concerning the failure to name Simone.

* The statutory factors premising an intercept order are whether there is probable cause to believe that (1) an individual is engaged in criminal activity; (2) particular communications concerning an offense will be obtained through interception; (3) normal investigative procedures have failed or appear unlikely to succeed or to be too dangerous; and (4) the target facilities are being used in connection with the specified criminal activity. 18 U.S.C. § 2518(3).

It is on these factors that Donovan focused. And it was concluded that suppression was not required due to the naming defect there because it did not undermine the lawfulness of the intercept order so as to satisfy the condition in 18 U.S.C. § 2518(10) (a) (i) for suppression if "the communication was unlawfully intercepted." The Court held that not every failure to meet statutory requirements calls for suppression, stating, 429 U.S. at 433, 97 S. Ct. at 671:

. . . To the contrary, suppression is required only for a 'failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.' United States v. Giordano, 416 U.S., 505, at 527, 94 S. Ct. 1820, 40 L. Ed. 2d 341.

From our examination of the record we are likewise satisfied that the naming defect as to Simone is not fatal. As in Donovan, "(i)n no meaningful sense can it be said that the presence of that information as to additional targets would have precluded judicial authorization of the intercept." Donovan, supra, 429 U.S. at 436, 97 S. Ct. at 672. The F.B.I. affidavit before Judge Collinson presented ample information relevant to making the statutory determinations required by § 2518(3). We note too that a considerable amount of information as to Simone's involvement was revealed in the affidavit, even though he was not specifically named in the application. (R. IV, 180-81, 187, 191). See United States v. Johnson, 176 U.S.App.D.C. 179, 539 F.2d 181, 191, cert. denied, 429 U.S. 1061, 97 S. Ct. 784, 50 L. Ed. 2d 776. Further, the supplemental F.B.I. affidavit of April 21, 1975,⁵  is persuasive that all the additional information on Simone not included in the October, 1973, affidavit would not have drawn attention to any facts to cause Judge Collinson to deny the October, 1973, intercept order.

In sum, we feel that under the Donovan standards grounds for suppression as to Simone are not shown, that he was not prejudiced by the procedures followed,⁶  and that the granting of suppression in his favor should be set aside.

II

Further, we are not persuaded that the defendants' allegations and showing could justify suppression for any knowing and purposeful withholding of information within the purview of the observations in Donovan on this point. See note 4, supra. The claim made in this regard concerns the Government's admission on April 8, 1975, that it had had probable cause to name Goodfellow when the October, 1973, order was obtained. (See R. I, 61-63).

The Government represented at the April 8, 1975, hearing when it made the concession of having probable cause to name Goodfellow that use of his name would have revealed the identify of confidential informants. (Id. at 62-63). Additionally, we note that after the concession was made there were other hearings⁷  on the motions to suppress. There the defendants cross-examined Agent Schucker at length about his affidavit and the F.B.I. investigation. Nevertheless, no showing was made of facts demonstrating any intentional withholding of information from the court for any improper purpose.

While in some instances the burden may shift to the Government in a suppression hearing, generally the burden of producing proof and of persuasion rests on the movant and conclusory allegations do not suffice. United States v. De La Fuente, 548 F.2d 528, 533-34 (5th Cir.); Wilson v. United States, 218 F.2d 754, 757 (10th Cir.). We feel there is no basis for suppression in light of the Donovan opinion and the circumstances developed in the record. Accordingly, the suppression order is reversed and the case is remanded for further proceedings.