Summary
holding that state legislation authorizing wiretapping and electronic surveillance "may adopt standards more stringent than the requirements of Federal law, thus excluding from state courts evidence which would be admissible in Federal courts, [but] may not adopt standards that are less restrictive?"
Summary of this case from Commonwealth v. DinunzioOpinion
November 4, 1974.
April 1, 1975.
Present: TAURO, C.J., REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN, WILKINS, JJ.
Search and Seizure. Practice, Criminal, Warrant, Fair trial. Evidence, Telephone conversation, Spectrograph. Eavesdropping. Disclosure of Communication. Statute, Preemption. Witness, Expert witness. Pleading, Criminal, Indictment.
G.L.c. 272, § 99, as amended by St. 1968, c. 738, § 1, regulating wiretapping and eavesdropping, is in substantial compliance with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 (1970), and wiretap warrants issued in cases of defendants indicted for violations of Massachusetts gaming laws complied with both Federal and State statutory standards. [230-231] Guidelines stated with respect to applications for wiretap warrants under G.L.c. 272, § 99. [231-233] Where wiretaps, and pen registers, were legally used on the telephones of defendants charged with violations of gaming laws and indicated probable cause for the issuance of search warrants, there was no error in the denial of motions to suppress physical evidence seized pursuant to search warrants issued in part on information derived from the wiretaps. [233-234] Under Commonwealth v. Lykus, ante, 191 (1975), there was no error at a criminal trial in admitting in evidence the opinion of an expert based on spectrogram comparative analysis, commonly called voice print identification, that recorded voices of the defendants were the voices of unknown individuals previously recorded on tapes of telephone conversations intercepted pursuant to wiretap warrants. [233-234] KAPLAN, J., dissenting. Where an expert testified at a criminal pre-trial voir dire hearing only in a theoretical way as to the reliability of voiceprint evidence and had no personal knowledge related to the issues and stated that he would be unavailable at the trial, there was no error in the denial of the defendants' requests for a continuance until the expert became available or for an order that he keep himself available. [234] This court concluded by an "independent evaluation of the circumstances" of the trial of defendants convicted of violations of gaming laws that the jury stood indifferent and unaffected by almost a year of frequent and vigorous pre-trial newspaper publicity where the trial judge took strong measures to hold "a trial by an impartial jury free from outside influences," including detailed questions and instructions to prospective jurors collectively directed to the publicity issue, and the jurors seated were sequestered; there was no error in the judge's refusals to question each prospective juror individually, to put to the venire special questions, to direct the venire's attention to matters not part of the Commonwealth's case, or to continue the trial or transfer it to another place. [236-239] Upon an indictment under G.L.c. 271, § 16A, charging that the defendant did "knowingly organize, supervise, manage and finance a number of people including . . . [five named persons] so that such persons might provide facilities and services . . . for the illegal registration of bets," and in the absence of any particulars filed by the Commonwealth, the judge correctly instructed the jury that if the defendant was "financing, organizing, supervising or managing a number of people, they don't necessarily have to be the people that are mentioned in this indictment, so long as there are four people." [239-240] Conviction of a defendant upon an indictment under G.L.c. 271, § 16A, charging that he "did knowingly organize, supervise, manage and finance a number of people" in an illegal gambling enterprise was warranted by the totality of the evidence, in part that sixty-six "writers" forwarded their "betting action" to three codefendants, that another codefendant was the "pick up" man and left the proceeds at the home of the defendant, and that in his home gaming apparatus, cash and financial records of the "operation as a whole" were found. [240-241] This court concluded that the Federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, examined in whole, meets the requirements of the Fourth Amendment to the United States Constitution [243-245]; that Congress intended to occupy the field of wiretapping and electronic surveillance, except as that statute specifically permits concurrent State regulation [245-246]; that to obtain a wiretap warrant from a State court there must be a State wiretap statute in effect [246-247]; and that, although a State may adopt standards more stringent than the requirements of Federal law, a State may not adopt standards which are less restrictive [247]. The Massachusetts wiretap statute, G.L.c. 272, § 99, as amended by St. 1968, c. 738, § 1, is severable, and, in the particulars challenged by defendants indicted for violations of gaming laws, was not repugnant to the provisions of the Federal wiretap statute, and was not preempted by it [249]; a pertinent concern was whether the Massachusetts statute conflicted with the Federal statute by failure to ensure the same or similar protections [249]. Under G.L.c. 272, § 99 F 1, the Attorney General, before authorizing an assistant attorney general "specially designated" by him to apply to a judge for a wiretap warrant, and a district attorney, before authorizing an assistant district attorney "specially designated" by him to apply for a wiretap warrant, must respectively review and authorize in writing the application presented; such procedures ensure the centralization, uniform enforcement policy, and public accountability deemed necessary by the Federal wiretap statute, and do not conflict therewith. [253-258] The provisions of G.L.c. 272, § 99 I 2, authorizing a thirty-day period for a wiretap to begin upon the date of the installation of the intercepting device, conforms to the Federal wiretap statute. [258-259] The provision of G.L.c. 272, § 99 E 3, that a wiretap warrant may issue only upon a showing by the applicant that normal investigative procedures have been tried and have failed or reasonably appear unlikely to succeed if tried satisfies the requirements of the Federal wiretap statute. [259] The absence from G.L.c. 272, § 99, of the express requirement found in the Federal wiretap statute that the wiretap warrant identify the person authorizing the application and the agency authorized to intercept does not invalidate the Massachusetts statute, since such requirement may be fairly implied therefrom. [260] The requirement of 18 U.S.C. § 2518 (5) that "[e]very [wiretap] order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable" is fulfilled by the Massachusetts wiretap statute, taken as a whole [260-261]; the specific time sequence set forth in G.L.c. 272, § 99 F 2, ensures that a wiretap warrant, issued pursuant to a finding of probable cause, will be executed forthwith [261]. G.L.c. 272, § 99, is not invalid in that it has no express equivalent to the requirement in 18 U.S.C. § 2518 (5) that a wiretap order shall provide that an interception "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception," since Massachusetts statutory procedures limit surveillance to conversations material to designated offenses under investigation and minimize intrusion on rights of privacy. [261-266] G.L.c. 272, § 99, is defective in failing to provide that recordings of intercepted communications be kept for ten years, as required by the Federal wiretap statute; Massachusetts officials must henceforth keep all tapes and documents for ten years. [267] The provisions of G.L.c. 272, § 99 M, that within seven days of the termination of a wiretap warrant a return must be made thereon to the issuing judge does not conflict with the prompt return provision in the Federal wiretap statute, and does not sanction a delay. [267] G.L.c. 272, § 99 N, relating to the custody and secrecy of papers and recordings made pursuant to a wiretap warrant, meets the requirements of the Federal wiretap statute, provided that the Massachusetts statute is implemented by sealing the papers and recordings. [267-268] Service of an attested copy of a wiretap warrant, pursuant to G.L.c. 272, § 99 L, on the person whose oral or wire communications have been intercepted provides him with adequate access to the information prescribed by 18 U.S.C. § 2518 (8) (d). [268] Where the defendants were convicted of Massachusetts crimes clearly falling within offenses designated in the Federal wiretap statute, it was held that the defendants were without standing to claim that the Massachusetts wiretap statute on its face exceeds the scope of the Federal statute in that it allows for the use of electronic surveillance in crimes not designated in 18 U.S.C. § 2516 (2). [268] Where a wiretap warrant stated its date of issuance and provided that the applicant could forthwith "tap and make connection with any and all wires leading to the telephone instrument as of this date" and further provided "that such interception procedure be employed for a period not exceeding 15 days, . . . within the 30-days next following the date of the installation," it was held that the warrant stated the applicable limits for termination with sufficient clarity. [270-271] Where an application for a wiretap warrant contained an adequate statement of the termination date, and the supporting affidavit was sworn to by an officer involved in executing the warrant, but the termination date was omitted from the warrant through error and inadvertence, it was held that the warrant and the application could be read together, and that, so read, the warrant was properly limited in its duration. [271-274] Where the return on a wiretap warrant was made two days later than the time mandated by G.L.c. 272, § 99 M, it was held that the late filing of the return did not render inadmissible all evidence seized through the surveillance. [275-276] In the circumstances, the requirement of G.L.c. 272, § 99 M, that the return of a wiretap warrant contain a "statement of the premises or places where the interceptions were made" was satisfied, with respect to a wiretap warrant for 102 Cass Street, by the phrase "premises close by to the aforementioned 102 Cass Street." [276] Where a wiretap warrant stated that "circumstances of exigency" required postponement of service of a copy of the warrant, and the issuing judge reviewed the criminal activity under investigation, in effect he determined that "important special facts" warranted such postponement, and the requirements of G.L.c. 272, § 99 L, were satisfied. [276-277] In a criminal case involving wiretapping, although the tapes were not sealed exactly in accordance with the statutory requirements, there was no error in admitting evidence derived from the wiretaps; sealing is a ministerial function and the defendants did not show any prejudice. [277-278] Where valid wiretap warrants were outstanding authorizing the use of "necessary and proper systems to (i)ntercept . . . [the] communications transmitted" from a certain telephone line, use of a pen register to record on tape the numbers dialed from that line was permissible without obtaining a separate order. [278-279]
TWELVE INDICTMENTS found and returned in the Superior Court, eleven on June 2, 1972, and one on June 21, 1972.
Pre-trial motions to suppress evidence were heard by Roy, J., and the cases were tried before him.
After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.
Francis J. DiMento ( Thomas C. Cameron with him) for the defendants.
John T. Gaffney, Assistant District Attorney Thomas E. Dwyer, Special Assistant District Attorney, for the Commonwealth.
The defendants were convicted after a jury trial on indictments charging them with violations of various gaming laws. They assign and argue as error: (1) the denial of their motions to suppress the contents of intercepted wire and oral communications, (2) the denial of their motions to suppress certain physical evidence which was seized on warrants based in part on information derived from the wiretaps, (3) the admission in evidence of expert testimony which purported to identify the defendants' recorded voices through spectrographic comparisons, (4) the holding of a pre-trial voir dire hearing on the scientific reliability of voice identification by means of the voiceprint technique, where the expert witness stated that he would not be available to testify before the jury at the trial, and where the judge had no intention of keeping the witness available for the trial, (5) the denial of various motions of the defendants concerning the pre-trial publicity related to the cases, and (6) the rulings of the judge relating to the indictment of Francis A. Vitello charging him with organizing a gambling syndicate, including the trial judge's refusal to give the jury instructions as requested by the defendant with respect to this indictment.
G.L.c. 271, § 7 (being concerned with setting up and promoting an illegal lottery for money). G.L.c. 271, § 17 (being found with apparatus for the purpose of registering bets). G.L.c. 271, § 17A (using a telephone for the purpose of accepting wagers and registering bets). G.L.c. 271, § 16A (knowingly organizing, supervising, managing, and financing at least four persons so they might provide facilities and services for conducting illegal lotteries).
We have determined that there was no error and, for the reasons stated in this opinion, we affirm the judgments.
1. The defendants in these cases raise a substantial number of issues with respect to the validity of the wiretap warrants pursuant to which certain inculpatory communications were intercepted and offered in evidence against them. They challenge both the facial validity of the Massachusetts wiretap statute, G.L.c. 272, § 99, and the facial validity of the warrants issued thereunder. However, the defendants do not seek to challenge the constitutionality of the Federal or State statutes under the Fourth Amendment to the United States Constitution. Rather, the bases of their claims are that the State statute must conform in all respects to the comprehensive Federal legislation on eavesdropping, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 (1970), 82 Stat. 211 (1968) (hereinafter referred to as Title III); that G.L.c. 272, § 99, does not so conform; and that, even assuming such compliance as a statutory matter, the warrants do not meet the Federal and State requirements. We hold, contrary to the defendants' contentions, that the State statute is in substantial compliance with the Federal law and also that the warrants comply with both Federal and State statutory standards. Because of the multiplicity of the defendants' claims, because of the relationships of many of the statutory issues to Fourth Amendment values, and because these cases present the first full review of the State wiretapping statute, we are required to engage in an extensive analysis of the wiretapping legislation. Due to the length of this analysis and for purposes of organization, our examination of both the relevant statutory provisions and the wiretap warrants issued in these cases is included as an Appendix herewith. However, the legal holdings and our reasoning underlying these holdings, as expressed in the Appendix, are to be considered as incorporated herein and made a part of the substance of this opinion.
Although the issue is assigned as error, the defendants do not argue that the warrants in these cases were invalid under the Fourth Amendment. In other words, they apparently do not now contest that the applications, based on a long and detailed police investigation, requesting the orders authorizing the wiretaps, demonstrated the existence of probable cause. Neither do they contend that the orders themselves failed to meet the particular requirements of the Fourth Amendment, as opposed to Title III, nor that the intercepted conversations sought to be offered in evidence were not among those authorized to be intercepted.
Although we have concluded that the wiretap warrants issued in these cases comply with constitutional and statutory requirements both Federal and State, we deem it advisable to set forth in brief outline, guidelines which we hope will forestall difficulties similar to those encountered in these cases and will be of assistance in future cases both to this State's prosecuting attorneys authorized to apply for wiretap warrants and to the Superior Court judges required to review such applications and issue warrants. See § 99 B 9 wherein "judge[s] of competent jurisdiction" is defined to mean "any justice of the superior court."
At the outset, we point out that the provisions of the relevant wiretap statutes are designed to ensure that unjustified and overly broad intrusions on rights of privacy are avoided. Hence these provisions are not mere technical niceties and distinctions of form. In short, the statutes, while permitting wiretapping for law enforcement, seek to ensure that Fourth Amendment rights are not infringed. While perfection in drafting affidavits, applications, and other documents is not realistically demandable, careful attention to the statutory directives is required and these emendations are offered to further that effort.
First, with respect to special designation of assistant attorneys general and assistant district attorneys (§ 99 F 1), the Attorney General or the district attorney, as the case may be, should give full and fair review of the grounds asserted for seeking a wiretap warrant. Special designation to the assistant attorneys general and assistant district attorneys must be on a case by case basis only. Authority to apply for each wiretap warrant must be specifically granted in writing by the Attorney General or the district attorney as the case may be. Indeed, it can be said that the better procedure is that the Attorney General or district attorney should cosign the application for the warrant with the designated assistant, although the Attorney General or district attorney need not himself appear before the judge. See Appendix part F (1), particularly fn. 17.
Second, an application for a wiretap warrant in addition to being drafted in accordance with the provisions of G.L.c. 272, § 99 F, should, if practicable, give an estimate as to the time required for the installation of intercepting devices in order that the reviewing judge may determine whether the thirty-day period, § 99 I 2, would be impermissibly extended. See Appendix part F (2). Where installation of devices is required, such installation is to be effected with all reasonable speed. See Appendix part F (2) and (5). In all cases execution of a warrant shall be forthwith and the warrant should so direct. In addition both the application and any supporting affidavits should affirmatively demonstrate knowledge of the requirement that interception be limited to matter material to the designated crimes under investigation and an intent so to limit the interception in order that the intrusion be sufficiently limited. (This does not mean that inculpatory information relating to other nonrelated crimes shall be ignored.) Specific instructions relative to limiting the interception should be given to the executing officers. See Appendix part F (6).
Third, pursuant to § 99 I 2, the date of issuance, the date of effect, and the termination date shall be stated clearly on the face of the warrant. Where physical installation of intercepting devices is required the date of effect could be stated approximately based on an estimate of the reasonable time required for installation procedures.
Fourth, in light of our construction of G.L.c. 272, § 99, each warrant shall identify the person authorizing the application and the agency authorized to intercept. See Appendix part F (4). As directed above, that agency shall execute the warrant forthwith. See Appendix part F (5).
Fifth, in accordance with the provisions of § 99 M, the return is to be made to the issuing judge as soon as possible following the termination of the interception and at the latest within seven days thereafter. After examining the return, including the condition of the original recordings, which shall be a part of the return, the issuing judge shall seal the recordings and transmit them forthwith to the Chief Justice of the Superior Court. § 99 N. In order to comply with the Federal requirements set forth in 18 U.S.C. § 2518 (8) (a) (b) (1970), the recordings, as well as the application, warrant, renewal where applicable, and the return shall be kept for ten years. See Appendix part F (7).
2. The next assignment of error argued by the defendants relates to the denial of motions to suppress certain physical evidence which was seized pursuant to warrants issued in part on the basis of information derived from the wiretaps. Since we have concluded that the wiretaps were legal and that there was no error in the judge's refusal to suppress the contents of the intercepted telephone communications, it follows that there was no error in his further denial of the motions to suppress the physical evidence. As the defendants concede, if the wiretaps and use of the pen registers were proper, probable cause existed for the issuance of the search warrants and we so hold.
3. Certain opinions of an expert witness, Lt. Ernest W. Nash of the Michigan State police, were admitted in evidence over the objections and exceptions of the defendants. Lieutenant Nash testified as to the results of his comparison of the known voices of the defendants with the voices of unknown individuals recorded on the tapes of intercepted telephone conversations. The method used for such analysis is termed spectrogram comparison analysis, or, more commonly, voiceprint identification. Lieutenant Nash testified that the voices of the six defendants were, in his opinion, positively the voices of certain unknown individuals whose voices were recorded pursuant to the wiretap warrants.
The defendants do not argue that Lt. Nash was not sufficiently qualified as an expert in spectrogram comparison analysis. Rather, they contend that this type of voice identification is a new scientific theory and that its admission should have been precluded under the rule of Commonwealth v. Fatalo, 346 Mass. 266, 269 (1963), which provides that judicial acceptance of a scientific theory or instrument can occur only where it follows a general acceptance by the community of scientists involved. See Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923). There was no error. The opinions of Lt. Nash were properly received in evidence, under reasoning as shown in our opinion in Commonwealth v. Lykus, ante, 191 (1975).
4. On March 22 and 23, 1973, about two weeks prior to trial, the judge held a voir dire hearing to make preliminary rulings as to reliability and admissibility of opinion testimony as to voice identification by the voiceprint method. Dr. Oscar Tosi testified in detail at the hearing, which culminated in rulings by the judge that ultimately resulted in admission at the trial of the evidence related to voiceprints.
Dr. Tosi made clear during the hearing that he would be in Italy during the time of the jury trial of these indictments. Aware of this fact, the judge nevertheless declined to continue the trial, on motions of the defendants, until such time as Dr. Tosi would be available. Nor did the judge accede to the defendants' request that Dr. Tosi be ordered to keep himself available. The defense served at least one summons on Dr. Tosi but it is clear that he did not respond to it and that the judge would not enforce it. The judge's rulings on the voiceprint issues were undoubtedly due in large measure to Dr. Tosi's testimony at the pre-trial hearing.
The defendants argue, inter alia, that their Sixth Amendment rights under the United States Constitution to present witnesses in their own defense were violated in this failure by the judge to ensure the presence of Dr. Tosi at the jury trial. They cite Washington v. Texas, 388 U.S. 14, 19 (1967), wherein the Supreme Court ruled that the right of a defendant to present witnesses to establish a defense is "a fundamental element of due process of law." The defendants also rely on similar language in Chambers v. Mississippi, 410 U.S. 284, 294-295 (1973), and White v. State, 517 S.W.2d 543 (Tex.Crim.App. 1974).
There was no error. Unlike the witnesses in the cases relied on by the defendants, Dr. Tosi had no personal knowledge related to the issues before the jury, as distinguished from his expert knowledge related only to the admissibility issues which were solely for the judge. As far as appears, Dr. Tosi had nothing to do with the identification comparisons related to these cases. In this sense, he testified at the pre-trial hearing only in a theoretical way as to the reliability of this type of evidence.
It is true that the weight to be given to the voiceprint evidence was relevant at the trial, and Dr. Tosi might well have testified on that score. Nevertheless, in similar circumstances, we have ruled that a party may not by summons compel the involuntary testimony of an expert witness solely for the expertise he may bring to the trial, and in the absence of any personal knowledge on his part related to the issues before the judge and the jury. Ramacorti v. Boston Redevelopment Authy. 341 Mass. 377, 379-380 (1960). Fifty-Five Mkt. St. Inc. v. Lynn Redevelopment Authy. 354 Mass. 758 (1968).
5. There was no error in the judge's rulings related to newspaper publicity. The defendants have shown that they were arrested almost one year before the trial and that newspaper publicity related to them and their alleged offenses was frequent and vigorous during this period, up to and including the two days of the empanelling of the jury. Further, the publicity related to alleged "payoffs to police officers," which were not the subject of the indictments.
The defendants assert that they were entitled to continuance of the trial date and to questioning of each prospective juror according to specific wording submitted by the defendants. The judge took none of these precise steps, but we believe that he took measures which protected the rights of the defendants to "a trial by an impartial jury free from outside influences." Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Cf. Commonwealth v. Geagan, 339 Mass. 487 (1959), cert. den. 361 U.S. 895 (1959). Our "independent evaluation of the circumstances," as required of appellate courts by the Sheppard case, shows that the judge took "strong measures to ensure that the balance . . . [was not] weighed against the accused." 384 U.S. at 362 (1966).
The judge addressed the venire of prospective jurors, as well as a supplementary group of prospective jurors who were later assembled, in detailed language directed to the publicity issue. He thus described to all prospective jurors, before empanelling, the exact nature of the charges against the defendants, using such plain terms as "gambling" and "bookmaking." The full names of all the defendants were emphasized. He placed on the veniremen, and each of them, the duty to make it known to the judge if they were influenced by bias or if they had read or heard of the defendants and the cases at issue. He described in appropriate language, and at length, the duty of impartiality imposed on jurors. Later, when prospective jurors were seated in the jury box, he put to them as a group a series of eleven questions which in various and appropriate words probed the issue of impartiality. One question (no. 11) inquired: "Have you read, heard on the radio, or seen on TV any publicity concerning this case?" and he concluded the questioning with the direction: "If any of the these questions affect any of the jurors, they are now to stand." No juror responded to this direction.
Finally, by order of the judge, the jury were sequestered for the duration of the trial.
The judge was not required in these circumstances to question each prospective juror individually. To the extent that Patriarca v. United States, 402 F.2d 314 (1st Cir. 1968), cert. den. 393 U.S. 1022 (1969), suggests that each prospective juror should be examined individually with a view to eliciting the kind and degree of his possible exposure to pre-trial publicity that case is not relevant here. In the instant cases the trial judge determined, and rightfully so, that the jurors stood indifferent. Given the nature of the pre-trial publicity, relating in major part to police "payoff" lists, the judge could have properly decided after addressing the jurors on the publicity issue that no further individual inquiry was necessary.
Moreover, the trial judge was not required to put various special questions proposed to him by defense counsel. In particular he was not required, as urged by one attorney, to bring to the attention of the venire alleged police "payoffs" which were not part of the Commonwealth's case. Nor was he, in view of the jury response (or lack of response) to his directions and questions, required to continue the trial or transfer it to another place. The defense counsel, at the trial and later in their brief, expressed incredulity that the jurors had not read or heard about the defendants and their indictments. This perhaps reflects no more than that counsel were more sensitive to the attentions of the press to these matters than were persons not so directly concerned.
The assertions of the defense as to pre-trial publicity required serious measures by the judge in the interest of ensuring a fair trial before an impartial jury. The judge's responsive measures were appropriate and in accord with the relevant requirements of Commonwealth v. Subilosky, 352 Mass. 153, 158 (1967). See A.B.A. Standards Relating to Fair Trial and Free Press, § 3.4 (1968).
In light of our conclusion that the jury stood indifferent and unaffected by the pre-trial publicity, it is not necessary for us to consider the defendants' further claims related to the judge's refusal to order a certain newspaper reporter to disclose his sources for certain newspaper accounts of an alleged police "payoffs" list. Cf. Matter of Pappas, 358 Mass. 604, 612 (1971), affd. sub nom. Branzburg v. Hayes, 408 U.S. 665, 672 (1972). Assuming that, as the defendants assert, a "much higher standard prevails" where pre-trial publicity is accomplished by design of the prosecutor ( Henslee v. United States, 246 F.2d 190, 193 [5th Cir. 1957]), no prejudice has been demonstrated here where the jury were shown, by specific measures, to stand indifferent. Nor is there anything before us, other than the bald assertion by defense counsel, to show that the reporter's source might have been related to the pending investigation of these cases by the office of the district attorney.
In view of our conclusion that the defendants' constitutional rights were not prejudiced or adversely affected by pre-trial publicity, we need not consider whether the harmless error standard should be applied to dispose of the defendants' contentions. The basis for applying the harmless error rule would be that the evidence of guilt in these cases was so overwhelming that if constitutional error had been shown in this regard, the evidence for conviction would nevertheless have been sufficient to reach even the higher degree of beyond a reasonable doubt. See United States v. Barnes, 383 F.2d 287, 295 (6th Cir. 1967), cert. den. 389 U.S. 1040 (1968); United States v. Cimini, 427 F.2d 129, 130 (6th Cir. 1970), cert. den. 400 U.S. 911 (1970).
6. The defendant Francis A. Vitello contends that the judge erred in refusing to instruct the jury, as requested by the defendant, that the Commonwealth must show, as to proof of the indictment brought under G.L.c. 271, § 16A, that the defendant organized a gambling syndicate specifically including four of the five persons named in the indictment. There was no error.
General Laws c. 271, § 16A, inserted by St. 1970, c. 650, provides in part as follows: "Whoever knowingly organizes, supervises, manages or finances at least four persons so that such persons may provide facilities or services or assist in the provision of facilities or services for the conduct of illegal lotteries, or for the illegal registration of bets . . . shall be punished. . . ."
The related indictment charged that Francis A. Vitello: "[D]id knowingly organize, supervise, manage and finance a number of people including Margaret M. Hogan, Camilla Villino, Henry Tanzi, Ralph F. Vitello and Joseph Vitello, so that such persons might provide facilities and services for the conduct of illegal lotteries and for the illegal registration of bets."
The defendant Francis A. Vitello seasonably requested instructions which would have required (1) a finding by the jury that he "organized, supervised, managed or financed at least four of the five persons named in the indictment," and (2) that the jury consider in their enumeration only the persons named in the indictment.
The judge declined to give the requested instructions and instead instructed: "[I]f you find that he was financing, organizing, supervising or managing a number of people, they don't necessarily have to be the people that are mentioned in this indictment, so long as there are four people." This was correct. There was evidence that some sixty-six persons were working in Francis Vitello's organization. From the plain language of the statute, § 16A, the naming of five persons was no more than surplusage, in light of the language in the indictment relating this defendant to "a number of people" including the five named persons. See G.L.c. 277, §§ 34-35; Commonwealth v. Beneficial Fin. Co. 360 Mass. 188, 309-310 (1971), cert. den. sub nom. Farrell v. Massachusetts, 407 U.S. 910 (1972), and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 (1972). This defendant's reliance on Commonwealth v. Hartwell, 128 Mass. 415 (1880), is misplaced, since that case concerned the prosecution's failure to show certain conduct of the defendant which was particularly described in the indictment and on which the Commonwealth relied to support its allegation of wanton and reckless conduct. Also misplaced is this defendant's reliance on several cases concerned with particulars filed by the Commonwealth by order of the court, viz.: Commonwealth v. Giles, 1 Gray 466 (1854), Commonwealth v. Hayes, 311 Mass. 21, 24-25 (1942), Commonwealth v. Ries, 337 Mass. 565, 580-581 (1958), and Commonwealth v. Iannello, 344 Mass. 723, 726 (1962). The filing of particulars in the circumstances of those cases placed a special burden of specificity in proof on the Commonwealth. No particulars were filed as to the indictments presently before us.
7. In addition, the defendant Francis A. Vitello asserts error in the denial of his motion for a directed verdict of not guilty as to the indictment which charged, under the provisions of G.L.c. 271, § 16A, that he "did knowingly organize, supervise, manage and finance a number of people" in an illegal gambling enterprise. He argues that the evidence was insufficient to warrant a guilty verdict.
The defendants make no claim that they, or any of them, were entitled to directed verdicts on any of the other indictments, except the defendants Camilla Villino and Margaret M. Hogan who contend that, but for the voiceprint evidence, they would have been entitled to directed verdicts of not guilty.
The totality of the evidence was sufficient, as judged in the light most favorable to the Commonwealth, to permit a conclusion of guilt. Commonwealth v. Medeiros, 354 Mass. 193, 197 (1968), cert. den. sub nom. Bernier v. Massachusetts, 393 U.S. 1058 (1969). Commonwealth v. Lussier, 364 Mass. 414 (1973). Cf. Commonwealth v. O'Brien, 305 Mass. 393, 401 (1940). We decline to follow the approach of this defendant, with its emphasis, as we view the argument, that bits and fractions of the evidence, when examined in isolation, were equivocal at best.
The evidence which adequately supported the submission of indictment no. 66772 to the jury was, at least in part, as follows: sixty-six "writers" were forwarding their "betting action" to the defendants Margaret Hogan, Camilla Villino, and Ralph Vitello; the defendant Tanzi was the "pick-up" man for the organization; while under surveillance, Tanzi appeared to make his pickups and leave the proceeds at the home of Francis A. Vitello; in the room in the home of Francis A. Vitello where considerable gaming apparatus was found at the time of his arrest, there was also found the sum of $98,560 in cash; financial records of the "operation as a whole" were also seized by police in the home of Francis A. Vitello; from many of the recorded telephone conversations, it could be inferred that "Frank" was the organizer, supervisor, manager, and financier of the organization, and from the total evidence it could also be inferred that "Frank" was Francis A. Vitello.
Judgments affirmed. is incorporated by reference in the opinion and is to be deemed an expression of our holdings in these cases. The Fourth Amendment. Olmstead United States, 277 U.S. 438 Goldman United States, 316 U.S. 129 Silverman United States, 365 U.S. 505 Berger New York, 388 U.S. 41 Katz United States, 389 U.S. 347 Berger Osborn United States, 385 U.S. 323 The Constitutionality of Title III. Berger Berger New York, 388 U.S. 41 State Regulation of Wiretapping. People Conklin, 12 Cal.3d 259 Conklin California, 419 U.S. 1064 State Siegel, 266 Md. 256 Halpin Superior Court of San Bernardino County, 6 Cal.3d 885 California Halpin, 409 U.S. 982 People Jones, 30 Cal.App.3d 852 California Jones, 414 U.S. 804 State Siegel, supra. Limited Requirements for State Statute. if such attorneys are authorized by a statute of that State The Question of Preemption. Pennsylvania Nelson, 350 U.S. 497 Cooley Board of Wardens of the Port of Philadelphia, People Conklin, 12 Cal.3d 259 Conklin California, 419 U.S. 1064 State Siegel, 266 Md. 256 Florida Lime Avocado Growers, Inc. Paul, 373 U.S. 132 Hines Davidowitz, 312 U.S. 52 Goldstein California, 412 U.S. 546 Bloom Worcester, 363 Mass. 136 Askew American Waterways Operators, Inc. 411 U.S. 325 substantial equivalent substantial conformity conflicts The State Statute Complies with the Federal Requirements. 272, § 99 authorize apply United States Tortorello, 480 F.2d 764 414 U.S. 866 apply, United States Giordano, 416 U.S. 505 United States Chavez, 416 U.S. 562 United States Giordano, supra; United States Chavez, supra; United States Tortorello, supra; United States Lanza, 341 F. Supp. 405 authorize The issue of delegation by that officer would be a question of State law. Who that officer would be would be a question of State law United States Giordano, 416 U.S. 505 United States Tortorello, supra, specially designated 12, § 13 United States Giordano, 416 U.S. 505 United States Tortorello, 480 F.2d 764 414 U.S. 866 United States Lanza, 341 F. Supp. 405 United States Manfredi, 488 F.2d 588 417 U.S. 936 272, § 99 Commonwealth Cromer, 365 Mass. 519 272, § 99 United States Chavez, 416 U.S. 562 272, § 99 United States Chavez, supra, Commonwealth Cromer, 365 Mass. 519 276, § 2A Sgro United States, 287 U.S. 206 Sgro United States, supra. express Berger New York, 388 U.S. 41 United States Cox, 462 F.2d 1293 417 U.S. 918 United States Tortorello, 480 F.2d 764 414 U.S. 866 United States James, 494 F.2d 1007 Tantillo United States, 419 U.S. 1020 material United States Fino, 478 F.2d 35 417 U.S. 918 United States Tortorello, supra. United States James, supra. United States Manfredi, 488 F.2d 588 417 U.S. 936 United States Cirillo, 499 F.2d 872 419 U.S. 1056 material In re LoChiatto, 500 F.2d 434 seal Yazoo Miss. Valley R.R. Jackson Vinegar Co. 226 U.S. 217 Broadrick Oklahoma, 413 U.S. 601 The Wiretap Warrants Are Facially Valid and Were Properly Executed. United States Giordano, 416 U.S. 505 Id. United States Chavez, 416 U.S. 562 id. Id. United States Chun, 503 F.2d 533 as of this date next following the date of the installation Commonwealth Todisco, 363 Mass. 445 Commonwealth Pope, 354 Mass. 625 Commonwealth Stevens, 362 Mass. 24 Commonwealth Snow, 363 Mass. 778 United States Ventresca, 380 U.S. 102 United States Desist, 384 F.2d 889 394 U.S. 244 United States Manfredi, 488 F.2d 588 417 U.S. 936 United States Ventresca, supra, United States Chavez, 416 U.S. 562 United States Poeta, 455 F.2d 117 406 U.S. 948 United States Tortorello, 489 F.2d 764 414 U.S. 866 Moore United States, 461 F.2d 1236 United States Bynum, 475 F.2d 832 United States Cirillo, 499 F.2d 872 419 U.S. 1056 State Christy, 112 N.J. Super. 48 in vacuo Berger New York, 388 U.S. 41 Commonwealth Cromer, 365 Mass. 519 United States Smith, 463 F.2d 710 United States Wolk, 466 F.2d 1143 United States Cafero, 473 F.2d 489 417 U.S. 918 United States Lawson, 334 F. Supp. 612 Commonwealth Cromer, 365 Mass. 519 United States Giordano, 416 U.S. 505 Commonwealth Johnson, 366 Mass. 534 United States Poeta, 455 F.2d 117 406 U.S. 948 United States Falcone, 508 F.2d 478 aural contents United States Giordano, 416 U.S. 505 United States Brick, 502 F.2d 219 United States Falcone, supra. United States Escandar, 319 F. Supp. 295 United States Robinson, 468 F.2d 189 472 F.2d 973 United States King, 335 F. Supp. 523 478 F.2d 494 Light United States, 414 U.S. 846 United States Vega, United States Lanza, 341 F. Supp. 405 In re Alperen, 355 F. Supp. 372 Commonwealth Coviello, 362 Mass. 722 47 U.S.C. § 605 United States Brick, 502 F.2d 219 United States Falcone, 505 F.2d 478
For a comprehensive bibliography of the commentary on electronic surveillance see A.B.A. Standards Relating to Electronic Surveillance, Appendix E, 237-250 (Tent. draft 1968).
Under Title III, a wiretap order must be preceded by an application to be submitted to a judge of competent jurisdiction by specifically designated officials. The application must contain prescribed information establishing probable cause to believe a designated offense is being committed and must establish the need for surveillance by wiretap (§ 2518 [1]). A judge before issuing an order is required to make specific findings (§ 2518 [3]) including whether probable cause exists and the order itself must contain provisions which particularize the extent and nature of the interception permitted (§ 2518 [4]). The order is to expire in a specific time and in any event may not last longer than thirty days (§ 2518 [5]). The judge issuing the order may maintain continuing judicial supervision over the interception (§ 2518 [6]). The act contains a notice and inventory provision (§ 2518 [8]), as well as a provision for the custody of any recordings produced (§ 2518 [8]). Also included is a provision specifying the circumstances and procedures pursuant to which an aggrieved person may seek an order for the suppression of intercepted wire or oral communications sought to be used in evidence by the government (§ 2518 [10] [a]).
Senate Report on the Omnibus Crime Control and Safe Streets Act of 1968 (Judiciary Committee), Sen. Rep. No. 1097, 90th Cong., 2d Sess., U.S. Code Cong. Adm. News 1968, 2112-2309 (hereinafter cited as Sen. Rep. with appropriate pagination to the U.S. Code Cong. Adm. News).
We express no opinion as to whether a wiretap order would be valid absent the existence of Title III.
Federal Courts of Appeals in nine circuits have considered the statute and held that it meets the requirements of the Fourth Amendment. United States v. Cox, 449 F.2d 679 (10th Cir. 1971), cert. den. 406 U.S. 934 (1972). United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), cert. den. 417 U.S. 918 (1974). United States v. Cafero, 473 F.2d 489 (3d Cir. 1973), cert. den. 417 U.S. 918 (1974). United States v. Bobo, 477 F.2d 974 (4th Cir. 1973). United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973), cert. den. 414 U.S. 866 (1973). United States v. James, 494 F.2d 1007 (D.C. Cir. 1974), cert. den. sub nom. Tantillo v. United States, 419 U.S. 1020 (1974). United States v. O'Neill, 497 F.2d 1020 (6th Cir. 1974). United States v. DeCesaro, 502 F.2d 604 (7th Cir. 1974). United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974). United States v. Chun, 503 F.2d 533 (9th Cir. 1974).
The defendants also attack the warrants for failure to meet Federal and State standards. This aspect of their challenge is discussed in part G, infra.
See § 801 of Title III which contains the congressional findings. In addition, the Senate Report on particular provisions on Title III specifically indicates areas in which the Congress did not intend to preempt State legislation. See, e.g., § 2511 (knowledge required to violate); § 2512 (ban on manufacture, distribution, possession, and advertisement of interception devices); § 2520 (recovery of civil damages).
Section 2516 (2) specifically provides for such State regulation: "The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire or oral communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of the commission of the offense of murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crime dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing such interception, or any conspiracy to commit any of the foregoing offenses."
The Senate Report in § 2516 (2), at p. 2187, states, "No applications may be authorized unless a specific State statute permits it."
With respect to the standards for State wiretap statutes promulgated pursuant to § 2516 (2) the Senate Report at 2187 provides: "The State statute must meet the minimum standards reflected as a whole in the proposed chapter. The proposed provision envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation. State legislation enacted in conformity with this chapter should specifically designate the principal prosecuting attorneys empowered to authorize interceptions. The State judge of competent jurisdiction . . . empowered by the State legislation to grant orders for interceptions would have to make findings which would be the substantial equivalent to those required by section 2518 (3) . . . and the authorization itself would have to be made in substantial conformity with the standards set out in section 2518."
Exclusion would result since § 2515 provides: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter" (emphasis supplied). See § 2516 (2) wherein it is provided in pertinent part that the State order is to be granted "in conformity with section 2518 of this chapter and with the applicable State statute" (emphasis supplied).
The defendants point to several particulars in which they allege that the Massachusetts statute is deficient relative to the Federal requirements. They argue that since the statute and the resulting applications and orders fall short of the requirements of § 2518 the wiretaps cannot stand. These aspects of the State statute are discussed in part F, infra.
So far at least twenty-two States have enacted legislation authorizing wiretap warrants under State law.
In addition, the defendants challenge the provisions of the warrants themselves, claiming that the warrants, in certain respects and most particularly in reference to termination provisions, return, notice, and sealing procedures, failed to meet the requirements of both the Federal and State statutes. These arguments are examined later in this Appendix.
That the Massachusetts statute parallels the Federal provisions in substance, rather than in text, is illustrated by comparing the provisions of the two statutes. For example, § 2518 (1) (a)-(f) sets forth what the application for a wiretap order must contain, so that the judge in Federal proceedings may assess probable cause and other necessary considerations. A comparison of G.L.c. 272, § 99 E and F, reveals that these sections set forth requirements for State proceedings that are virtually identical to § 2518 (1) (a)-(f).
Moreover, and most importantly, in certain respects the Massachusetts statute is more restrictive than Title III. For example, § 99 F imposes, beyond the Federal conditions, the requirements that the application state (1) that the communications are not legally privileged; (2) if practicable, the hours of the day or night during which communications subject to the order may be reasonably expected to occur; and (3) if it is necessary to make secret entry, a statement to that effect. In addition, § 99 I provides that the warrant shall permit interception for a continuous period not to exceed fifteen days within a thirty-day period, whereas § 2518 (5) permits interception for the full thirty-day period. Unlike the Federal act, § 99 is more restrictive in that it does not allow for emergency interception without prior judicial authorization. Cf. § 2518 (7). Further, the State statute imposes more stringent requirements with respect to the return. The Federal statute requires only that the recordings be made available to the issuing judge. § 2518 (8) (a). Section 99 M provides for additional information including: (a) a statement of the nature and location of the communication facilities, if any, and premises or places where the interceptions were made; (b) the periods of time during which such interceptions were made; (c) the names of the parties to the communications intercepted, if known; (d) the original recording of the oral or wire communications intercepted, if any; and (e) a statement attested under the pains and penalties of perjury by each person who heard oral or wire communications as a result of the interception authorized by the warrant, which were not recorded, stating everything that was overheard to the best of his recollection at the time of the execution of the statement. Finally, with respect to the mandatory service of notice and warrants, § 99 L imposes a thirty-day limit for service of the warrant on a showing of exigent circumstances as compared to § 2518 (8) (d) setting a ninety-day limit. The State statute limits postponement of service to three years, the Federal act imposes no such limitation.
The determination, whether an assistant district attorney should be specially designated, would require not a cursory but full examination by the district attorney of the application. There is nothing in this record to indicate that the district attorney did not so review these applications. Further, the signed letters of special designation limited to these specific wiretaps in our view sufficiently establish the lines of responsibility to the district attorney as a central authority figure accountable to the courts and the public.
It appears that the delegation to Federal assistant attorneys general is not so narrowly circumscribed. See § 2516 (1). Nevertheless, we emphasize that the special designation of a State assistant attorney general or assistant district attorney must be on a case by case basis with written authorization from the Attorney General or district attorney. This specific authorization in each case satisfies the standards of Title III even if that statute is read to require that the State Attorney General apply for the warrant. However, we do not so read Title III. See text above.
The wiretap warrants issued in these cases were expressly directed to the "District Attorney for the County of Suffolk, His Specially Designated Assistant District Attorney, and His Designated Investigative and Law Enforcement Agents," thus adequately identifying the agency authorized to intercept.
The Federal statute does not expressly provide for this specificity with regard to the date of effect.
The warrants at issue here provide: "Whereas the application for authority to intercept the wire communications as aforesaid complies with the provisions, purposes and procedures of Section 99. . . . We Command You and each of you forthwith, with necessary and proper systems to intercept any communications" (emphasis supplied).
In these cases the defendants have raised no claim that the surveillance was conducted beyond the scope of the orders and have not alleged that nonpertinent calls were intercepted, fully heard, or recorded. We therefore need not reach the question whether the interceptions were in fact properly limited in scope. However, given the extent of the criminal enterprise under investigation, the location and operation of the subject telephones, and the type of offenses under investigation, the defendants in all probability would face great difficulty in seeking to establish that the intrusion in these cases was unnecessarily broad. See, e.g., United States v. Tortorello, supra; United States v. Bynum, 485 F.2d 490, 500-502 (2d Cir. 1973); United States v. James, supra, at 1018-1023.
Moreover, a showing that some of the conversations listened to completely were in fact nonpertinent would not necessarily violate the minimization requirement as long as good faith effort had been made to achieve minimization. United States v. Cirillo, 499 F.2d 872, 881 (2d Cir. 1974), cert. den. 419 U.S. 1056 (1974). See United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973), cert. den. 414 U.S. 866 (1973); United States v. Bynum, 485 F.2d 490, 500-502 (2d Cir. 1973). Nor is it clear that a failure to minimize will result in total suppression of all wiretap evidence. Several courts have held that only suppression of non-pertinent calls is required. Compare United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), cert. den. 417 U.S. 918 (1974); United States v. King, 335 F. Supp. 523 (S.D. Cal. 1971), revd. on other grounds, 478 F.2d 494 (9th Cir. 1973), cert. den. sub nom. Light v. United States, 414 U.S. 846 (1973), with United States v. Scott, 331 F. Supp. 233 (D.D.C. 1971).
The requirements under the applicable State law, that of New York, are substantially similar to those of § 99 and relate to (1) the name of the person, if known, whose communications are to be intercepted, (2) the nature and location of the communications facilities as to which authority to intercept is granted, (3) a particular description of the type of communications sought to be intercepted, (4) a statement of the particular designated offense to which they relate, (5) the identity of the law enforcement agency authorized to intercept, and (6) the period of time during which the interception is authorized. See 488 F.2d at 597, fn. 6 (2d Cir. 1973).
In the Cirillo case, the agents in charge of the investigation submitted affidavits stating that they were aware of the minimization requirement and that instructions to limit the surveillance were given to the officers and agents conducting the wiretap. We note that § 99 M requires the filing of a statement by the persons who have intercepted the communications as to the extent of the surveillance and the conversations overheard. Under § 99 O, before any evidence derived from the intercepted communications is offered in a criminal trial, the defendant shall be served with a copy of each document and item which make up the application, order, and return. Consequently, a defendant would have access to the affidavit filed under § 99 M.
The defendants' claim that the returns in these cases were not made in compliance with the applicable statutes is discussed in part G, infra.
We have examined the defendants' claim that the orders in these cases were invalid in that they were issued to detect violations of G.L.c. 271, § 17A (not a designated offense in § 2516 [2]), as well as violations of G.L.c. 271, § 17, and we agree with the Commonwealth that the applications were not based on § 17A. The single reference to § 17A in the applications merely informs the issuing judge that violations of § 17 which are recorded on a telephone are per se violations of § 17A.
In these cases Officer John C. O'Malley, a detective assigned to the Suffolk County district attorney's office, swore out the affidavit in support of the May 10 warrant. The affidavit filed with the return indicates that Officer O'Malley participated in the interception process.
United States v. Lamonge, 458 F.2d 197 (6th Cir. 1972), cert. den. 409 U.S. 863 (1972), the only case cited by the defendants in support of their position, does not compel a contrary result. In that case the absence of a date in the wiretap order made its duration unlimited by its own terms; the prosecuting attorney moved to add the date of issuance nunc pro tunc. Besides the fact that the warrant lacked an issuance date, not true of the warrant at issue here, there was no indication in the Lamonge case that the application did provide particulars which would properly delimit the order.
We point out that the facts in these cases are substantially stronger than in the Poeta case, for in that case the court was required to infer that the nontermination provision had been inadvertently deleted, while here there was a direct statement and finding to that effect.
There is no doubt that the return was made two days beyond the prescribed period in the State statute and the defendants challenged this error as matter of State law; no claim is made that the return failed to meet Federal requirements and we need not reach the issue except to say that the crucial question would be whether the return was made within a reasonable time.
We fail to see how the defendants were prejudiced by service of unattested copies of the warrants on their defense counsels. And we note that § 99 O allows for such service before evidence obtained through any interception may be introduced in a criminal trial.
The Senate Report on § 2510 (4), at p. 2178, states that "intercept" is "to include the aural acquisition of the contents of any wire or oral communications by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation. . . . The use of a 'pen register,' for example, would be permissible."
Of course, utilization of the pen register depends on compliance with the probable cause requirements of the Fourth Amendment.
I refer to my separate opinion in Commonwealth v. Lykus, ante, 191 (1975). In the present cases, a ruling that it was error to receive the evidence based on the voice spectrograms would appear to entail reversal of the judgments.