### 1997 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s

for the Thir d C ir c uit

8-26-1997



# U nit ed S t a t es v

. W i l li a ms

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t

96-3629,96-3661



### F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1997

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1997 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. W i l l i a m s " (1997). 1997 D e cisio n s

. P a pe r 208.

h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1997/208Filed August 26, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 96

- 3629, 96

- 3661,

and 96

- 3666

UNITED STATES OF AMERICA

v.

SALVATORE A. WILLIAMS,

a/k/a "Sonny"

SALVATORE A. WILLIAMS,

Appellant No. 96

- 3629

UNITED STAT ES OF AMERICA

v.

SALVATORE C. WILLIAMS,

a/k/a "Sal"

SALVATORE C. WILLIAMS,

Appellant No. 96

- 3661

UNITED STATES OF AMERICA

v.

ADOLPH WILLIAMS,

a/k/a "Junior"

Adolph Williams,

Appellant No. 96

- 3666

ON APPEAL FROM THE

UNIT ED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Criminal Action Nos. 95

- 00092

- 4, 95

- 00092

- 1,

95

- 00092

- 2)

Argued June 16, 1997

Before: COWEN, ALITO, and SEITZ, Circuit Judges

(Opinion Filed: August 26, 1997)Frede rick W. Thieman

United States Attorney

Paul J. Brysh (Argued)

Office of United States Attorney

633 United States Post Office

& Courthouse

Pittsburgh, PA 15219

Attorneys for Appellee

Bruce A. Antkowiak (Argued)

31 North Main Street

Greensburg, PA 15601

Attorney for Salvatore A. Williams

J. Alan Johnson (Argued)

Swensen, Perer & Johnson

Two PNC Plaza

Suite 2710

Pittsburgh, P A 15222

Attorney for Salvatore C. Williams

and Adolf Williams

Thomas A. Livingston

Plunkett & Cooney

600 Grant Street

Suite 3000

Pittsburgh, PA 15219

Attorney for Salvatore C. Williams

2

OPINION OF THE COURT

ALITO, Circuit Judge:

Salvatore A. Williams, Salvatore C. Williams, and Adolph

Williams (the "defendants") entered conditional pleas of

guilty to offenses related to the operation of a n illegal

gambling business. On appeal, they contest the district

court's denial of pretrial motions, including motions to

suppress the evidence derived from electronic oral and

video surveillance1 and evidence obtained in a search of

Adolph Williams' s home. We affirm.

I.

The illegal gambling operation that resulted in thedefendants' convictions began in the 1960's. In initially

investigating the operation, the Pennsylvania State Police

utilized a confidential informant and conducted physical

surveillance of an office located at 1420 Fifth Avenue,

Pittsburgh (the "Fifth Avenue premises") that was believed

to serve as the operation's headquarters. Concluding that

these investigative techniques were insufficient, the District

Attorney of Al legheny County filed applications in the

Superior Court of Pennsylvania under the state Wiretapping

and Electronic Surveillance Control Act, 18 Pa. Cons. Stat.

Ann. SS 5701

- 26, seeking authorization for the state police

to conduct electronic oral and v ideo surveillance of two

rooms of those premises. The applications were supported

by an affidavit of two Pennsylvania State Troopers who

explained some of the evidence already gathered by other

means and the basis for their belief that electronic oral and

video surveillance were necessary. Some of the information

contained in the affidavit was provided by the confidential

informant who had worked within the organization for

_________________________________________________________________

1. We u se the phrase "electronic oral surveillance" as shorthand for the

interception of wire, electronic, or oral communications within the

meaning of Title III of the Omnibus Crime Control and Safe Streets Act

of 1968, 18 U.S.C. SS 2510

- 20, and the Pennsylva nia Wiretapping and

Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. SS 5701

- 26.

3

seven years. The affidavit further stated that the state

police were conducting the investigation in conjunction with

the Federal Bureau of Investigation. A. 50

- 124. 2

On June 26, 1991, Judge Justin M. Johnson of the

Superior Court signed an order authorizing electronic oral

surveillance of the Fifth Avenue premises for a period of 30

days. He denied the request f or video surveillance

authorization, believing that the state wiretapping statute

did not empower a Superior Court judge to authorize video

surveillance, but he provided that his orders were"entered

without prejudice to the applicant seeking further

a dditional relief in the appropriate Court of Common Pleas."3

A. 18(d). Accordingly, the next day, the District Attorney

filed an application for video surveillance in the Court of

Common Pleas of Allegheny County. This application was

supported by the same affidavit as the application for

electronic oral surveillance previously filed in the Superior

Court. Court of Common Pleas Judge Robert Dauer granted

the application and authorized video surveillance of the

same two rooms for a period of 30 days. After 30 days

passed, the District Attorney requested and received

extensions for both orders from the respective courts. Allelectronic oral and video surveillance of the Fifth Avenue

premises ended on Friday, August 9, 1991. On Monday

morning, Augu st 12, 1991, the tapes of the surveillance

were sealed.

In May 1993, the United States Attorney for the Western

District of Pennsylvania applied to a federal magistrate

judge for a search warrant for the residence of Adolph

Williams at 274 Foxcroft Road, Pittsburgh (the "Foxcroft

Road residence"). The application was supported by an

_________________________________________________________________

2. "A." denotes the one

- volume Appendix submitted by Salvatore A.

Williams.

3. Under the state wiretapping statute, an application for authorization

to conduct electronic audio surveillance must be made to a judge of the

Superior Court, see 18 Pa. Cons. Stat. Ann.S 5708. Judge Johnson

apparently concluded that his authority under the state wireta pping

statute did not extend to video surveillance and that an application to

conduct such surveillance should therefore be made to a judge of the

Court of Common Pleas, the state trial

- level court.

4

affidavit executed jointly by a Special Agent of the FBI and

a Pennsylvania State Trooper who were involved in the

investigation. The affidavit stated that physical surveillance

had revealed that an individual associated with the

operation took betting slips twi ce daily from a location on

Fifth Avenue, Pittsburgh, to the Foxcroft Road residence.

The affidavit related that in an intercepted comment Adolph

Williams had said that he would take the gambling

proceeds to his home for safekeeping, and the affidavit

added that the confidential informant had learned that

Adolph Williams had a hiding place in his residence that

was used for storing records. On May 25, 1993, the

magistrate judge issued the search warrant. The search

was conducted on that day and res ulted in the seizure of

currency, gambling records, and other evidence.

The office of the United States Attorney for the Western

District of Pennsylvania presented the case to a federal

grand jury, and some of the electronically intercepted

evidence was disclosed to the grand jury, even though no

court order specifically authorizing such disclosure had

been obtained. Some of this same evidence was also

disclosed to agents with the Criminal Investigation Division

of the Internal Revenue Service. A . 317.

The grand jury returned a 27

- count indictment, charging

conspiracy and various gambling and income tax offenses.The defendants moved to suppress much of the evidence

intercepted through the electronic oral and video

surveillance, as well as the evidence seized from the search

of the Foxcroft Road residence. The district court initially

suppressed evidence derived from the oral and video

surveillance on the ground that it exceeded the periods

authorized by the state court judges. The gover nment

appealed, and we reversed in an unpublished opinion,

holding that the district court had misinterpreted the state

court orders. United States v. Williams, No. 95

- 3529 (3d

Cir. May 20, 1996). On remand, the defendants all entered

conditional guil ty pleas that preserved for appeal the

district court's denial of their other pretrial motions.

Salvatore A. Williams pleaded guilty to one count of

violating 18 U.S.C. S 371 by conspiring to conduct an illegal

gambling business in contravention of 1 8 U.S.C.S 1955(a).

5

He was sentenced to one month of imprisonment and two

years of probation. Salvatore C. Williams and Adolph

Williams pleaded guilty to conducting an illegal gambling

business, in violation of 18 U.S.C. SS 1955 and 2, and to

one count of violating 18 U.S.C. S 371 by conspiring to

defraud the United States of wagering tax revenue. They

were sentenced to 15

- month terms of imprisonment and

three

- year terms of supervised release, and they were fined

$40,000 and $4,000, respectively. The defendants then took

this appeal.

On appeal, the defendants contend (1) that the district

court erred in refusing to suppress the video surveillance

evidence because that surveillance was conducted in

vio lation of the Fourth Amendment; (2) that the evidence

seized from Adolph Williams's home should have been

suppressed because the warrant was not supported by

probable cause; (3) that the charges under 18 U.S.C.S 1955

should have been dismissed because those charges were

based on violations of Pennsylvania gambling statutes that

violate the Equal Protection Clause; (4) that the district

court erred in refusing to suppress the electronically

intercepted oral evidence because the Pennsylvania

wiretapp ing statute does not comply with the certain

requirements of Title III of the federal Omnibus Crime

Control and Safe Streets Act of 1968, 18 U.S.C.SS 2510

- 2520 ("Title III"); (5) that the district court erred in refusing

to suppress the electronically intercepted oral evidence

because it was disclosed in violation of 18 Pa. Cons. Stat.

Ann. SS 5718 and 5717(a); (6) that the district court erred

in refusing to suppress the electronically intercepted oral

evidence because there was no necessity for t he use of thisinvestigative technique, as is required by 18 Pa. Cons. Stat.

Ann. S 5709(3)(vii) and 18 U.S.C. S 2518(1)(c); (7) that the

extension of the period of electronic surveillance was

unjustified and that the evidence obtained as a result

sho uld have been suppressed; and (8) that the district

court erred in refusing to suppress the electronically

intercepted oral evidence because the tapes were not timely

sealed as required by Title III and the state wiretapping

statute.4

________________ _________________________________________________

4. The first four arguments are raised in the joint brief submitted on

behalf of Salvatore C. Williams and Adolph Williams; citations to "Jt.

Br."

6

II.

We t urn first to the defendants' argument that the video

surveillance of the Fifth Avenue premises violated the

Fourth Amendment and that the evidence resulting from

this surveillance should have been suppressed. The

defendants do not contend that either T itle III or the

Pennsylvania wiretapping statute authorizes or prohibits

video surveillance. Instead, they base their arguments on

the understanding of the governing legal principles set out

in United States v. Torres, 751 F.2d 875 (7th Cir. 1984). In

Torres, the Seventh Circuit held, among other things, that

Title III has no application to video surveillance, id. at 880

- 82; that a federal district court has the authority, either

under Federal Rule of Criminal Procedure 41 or by virtue of

its inhe rent powers, to issue a warrant for video

surveillance, id. at 877

- 80; that video surveillance is a

search governed by the Fourth Amendment, id. at 882; and

that if the government conducts video surveillance in

conformity with certain requirements of T itle III, including

the requirement of judicial certification that"normal

investigative procedures have been tried and have failed or

reasonably appear to be unlikely to succeed if tried or to be

too dangerous," 18 U.S.C. S 2518(3)(c), then the governm ent

has also conformed to the related requirements contained

in the Fourth Amendment's warrant clause, 751 F.2d at 882.5

No party in this appeal contests any of these principles,

and therefore we will assume their validity for present

purposes.

_____ ____________________________________________________________

refer to that joint brief. The final four arguments are raised in the

brief

filed on behalf of Salvatore A. Williams; citations to "SAW Br." refer to

hisbrief. Each brief incorporates by re ference the arguments raised in the

other.

5. Other courts of appeals have taken a similar approach. See United

States v. Falls, 34 F.3d 674, 680 (8th Cir. 1994); United States v. Mesa

Rincon, 911 F.2d 1433, 1437 (10th Cir. 1990); see also United St ates v.

Koyomejian, 970 F.2d 536, 542 (9th Cir.), cert. denied, 506 U.S. 1005

(1992); United States v. Cuevas

- Sanchez, 821 F.2d 248, 252 (5th Cir.

1987); United States v. Biasucci, 786 F.2d 504, 510 (2d Cir.), cert.

denied, 479 U.S. 827 (1986).

7

A. The defendants contend that the video surveillance in

this case was "unreasonable" within the meaning of the

Fourth Amendment because the nature of the crimes under

investigation did not justify the use of such an intrusive

investigative technique. In making this argument, the

defendants rely on certain statements in Torres . While

upholding the video surveillance in that case, which

targeted "safe houses" in which it was believed that a

terrorist group was as sembling bombs, the Torres court

wrote:

The usual way in which judges interpreting the Fourth

Amendment take account of the fact that searches vary

in the degree to which they invade personal privacy is

by requiring a hi gher degree of probable cause (to

believe that the search will yield incriminating

evidence), and by being more insistent that a warrant

be obtained if at all feasible, the more intrusive the

search is. But maybe in dealing with so intrusive a

technique as television surveillance, other methods of

control as well, such as banning the technique outright

from use in the home in connection with minor crimes,

will be required, in order to strike a proper balance

between public safety and personal privacy. That

question is not before us, but we mention it to make

clear that in declining to hold television surveillance

unconstitutional per se we do not suggest that the

Constitution must be interpreted to allow it to be used

as generally as less intrusive techniques can be used.

751 F.2d at 882

- 83 (emphasis added) (citations omitted).

Relying on these remarks, the defendants maintain that

their offe nses were not sufficiently serious to justify video

surveillance. However, the video surveillance in this case

was not conducted in a "home," and the order authorizing

the video surveillance was based on a finding that the

defendants had committed, wer e committing, and would

continue to commit first

- degree felonies, which arepunishable by imprisonment for up to 20 years.6 Thus,

_________________________________________________________________

6. The video surveillance authorization order referred to violations of 18

Pa. Cons. Stat. Ann. S 911 (which pertains to"corrupt organizations" and

8

even the equivocal and limited Torres dicta does not

support reversal.

We note that every court of appeals that h as addressed

video surveillance has held that video surveillance

conforming to the standards set out in Title III is

constitutional, and we have found no case that suggests

that the application of these standards depends upon the

nature of the crime o r crimes under investigation. Title III

standards were applied in every case, covering a range of

crimes from counterfeiting to drug distribution to

loansharking. E.g., Falls, 34 F.3d 674 (conspiracy to

distribute cocaine, distribution of cocaine, and related

charges); Koyomejian, 970 F.2d 536 (money laundering);

Mesa

- Rincon, 911 F.2d 1433 (counterfeiting); Cuevas

Sanchez, 821 F.2d 248 (possession of marijuana with intent

to distribute); Biasucci, 786 F.2d 504 (loansharking). For

these reasons alo ne, we reject the defendants' argument

here.

Moreover, we are skeptical of the defendants' general

suggestion that a judicial officer, in deciding whether to

issue a search warrant or in reviewing the issuance of a

search warrant, should take into a ccount his or her own

evaluation of the seriousness of the felony or felonies under

investigation. Other than the Torres dicta, the defendants

cite no authority that provides any support for this

proposition. In considering the reasonableness of a sear ch

or seizure, it is sometimes appropriate for a court to

balance "the public interest and the individuals's right to

personal security free from arbitrary interference by law

officers." United States v. Brignoni

- Ponce , 422 U.S. 873, 878

(1975); see also Maryland v. Wilson, 117 S. Ct. 882, 885

(1997). But it does not follow that a judicial officer, in

weighing the public interest, may properly take into

account his or her personal opinion regarding the need for

____________________________________ _____________________________

is a first

- degree felony) and a conspiracy to commit that offense (and

others), 18 Pa. Cons. Stat. Ann. S 903, which is also a first

- degree

felony.

See 18 Pa. Cons. Stat. Ann. S 905(a). Afirst

- degree felony is punishable

by imprisonment for not more than 20 years. 18 Pa. Cons. Stat. Ann.

S 1103(1). The order also referred to one misdemeanor, a violation of 18Pa. Cons. Stat. Ann. S 5512, which concerns illegal lotteries.

9

or th e importance of the criminal provisions that appear to

have been violated. Like other citizens, judicial officers

differ in their views regarding the seriousness of certain

criminal offenses. If judicial officers were permitted to take

their personal o pinions on these matters into account in

deciding whether a particular search was reasonable, the

meaning of reasonableness under the Fourth Amendment

would vary significantly depending on the particular

judicial officer before whom the question was pr esented.

The defendants here characterize their gambling offenses

as relatively benign, and there are undoubtedly those who

would agree with this characterization. But that view of

illegal gambling is not universal. In enacting Title III,

Congress t hought that gambling offenses were sufficiently

serious to include them among the crimes in the

investigation of which it is permissible to employ

wiretapping and bugging, investigative techniques that

result in a serious invasion of personal privacy. See 18

U.S.C. S 2516(1)(c) (permitting federal wiretapping or

bugging to investigate illegal transmission of wagering

information and operation of gambling enterprises); and id.

S 2516(2) (permitting state wiretapping and bugging to

investigate gambli ng offenses). Congress also has made it a

felony, punishable by up to five years' imprisonment, to

conduct, finance, manage, supervise, direct, or own all or

part of an illegal gambling business. 18 U.S.C.S 1955. And

Congress has designated violations of this provision as

predicate offenses under the money laundering statute, id.

S 1956, and the RICO statute, id.S 1961, which carry even

more substantial penalties. In treating gambling offenses in

this way, Congress has plainly concluded that certain

gambling offenses are serious crimes,7 and it is not for us

to review the correctness of this evaluation.

_________________________________________________________________

7. In reaching this conclusion, Congress was undoubtedly influenced by

its recognition that gambling has historically provided a major source of

revenue for organized crime groups. See President's Commission on

Organized Crime, The Impact: Organized Crime Today 12

- 13 (1986);

President's Commission on Law Enforcement Administra tion of Justice,

The Challenge of Crime in a Free Society 188 (1967); cf. The National

Gambling Impact Study Commission Act, Pub. L. 104

- 169, 110 Stat.

1482 (1996) (establishing federal commission to conduct a

comprehensive study of the social and econ omic impacts of gambling in

the United States).

10In sum, we reject the defendants' argument that the

video surveillance in this case violated their Fourth

Amendment rights on the ground that the offenses under

investigation were insufficiently serious to justify the use of

this intrusive investigative tool.

B. The defendants next assert that the video

surveillance of the Fifth Avenue premises failed to meet

Title III's requirement that "normal investigat ive procedures

have been tried and have failed or reasonably appear to be

unlikely to succeed if tried or are too dangerous." See 18

U.S.C. S 2518(3)(c). Specifically, the defendants argue that

the application was defective because it did not state why

electronic oral interception could not have been used before

resorting to video surveillance. As a result, they argue that

the video surveillance violated the Fourth Amendment as

well.

In Title III cases, courts have consistently held that 18

U.S. C. S 2518(3)(c) does not require the government to

exhaust all other investigative procedures before resorting

to electronic surveillance. See United States v. Barnes, 47

F.3d 963, 965 (8th Cir. 1995); Falls, 34 F.3d at 682; Mesa

Rincon, 911 F.2d at 1 443; United States v. Apodaca, 820

F.2d 348, 350 (10th Cir.), cert. denied, 484 U.S. 903 (1987);

United States v. Webster, 734 F.2d 1048, 1055 (5th Cir.),

cert. denied sub nom., Hoskins v. United States, 469 U.S.

1073 (1984). Rather, it is sufficient i f there is evidence that

"normal investigative techniques . . . reasonably appear to

be unlikely to succeed if tried." 18 U.S.C. S 2518(3)(c). "The

government need only lay a `factual predicate' sufficient to

inform the judge why other methods of inves tigation are not

sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d

Cir.) (quoting United States v. Armocida, 515 F.2d 29, 38

(3d Cir.), cert. denied sub nom., Conti v. United States, 423

U.S. 858 (1975)); cert. denied sub nom., Hauser v. Uni ted

States, 506 U.S. 956 (1992). Furthermore, in determining

whether this requirement has been satisfied, a court "may

properly take into account affirmations which are founded

in part upon the experience of specially trained agents."

United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir.

1989); see also United States v. Landmesser, 553 F.2d 17,

20 (6th Cir.), cert. denied, 434 U.S. 855 (1977). "The

11

government's showing is to be `tested in a practical and

commonsense fashion.' " McGlory, 968 F.2d at 345 (quoting

United States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976)).8Since the defendants contend that the Fourth

Amendment should be held to require compliance with 18

U.S.C. S 2518(3)(c) in video su rveillance cases, we see no

reason why the rules developed in cases in which that

provision is directly applicable should not be applied here

as well, and it appears that other courts of appeals in video

surveillance cases have taken on this approach. Our review

of those cases shows that the inadequacy of other

investigative techniques has been proven by demonstrating

such factors as the inability of a confidential informant to

gather additional information, the futility of electronic oral

surveill ance where the crime was being committed in

silence, the use of evasive tactics by the investigation's

targets, and the difficulty of penetrating an organization

with a secretive nature and a propensity towards violence.

For example, in Falls, the af fidavit stated that a

government informant who had been successful in getting

information in the past would no longer be helpful because

she was not privy to the drug distribution group's sources,

the extent of the operation, or its method of distribut ing the

proceeds. 34 F.3d at 677. The affidavit further stated that

her access to the group's meeting place was limited by

safety concerns. Id. The affidavit named and discussed a

total of seven investigative techniques that had been tried

or appeared too dangerous or unlikely to succeed in light of

the drug conspiracy's secretive nature and propensity

towards violence. Id. at 683. These affirmations were held

to be sufficient to demonstrate the inadequacy of other

investigative techniques. Id.

In Mesa

- Rincon, the government submitted an affidavit

asserting that audio surveillance was not feasible because

the crime, counterfeiting, could be committed without oral

communication and because the noise of the printing

presses drowned out any conv ersation. 911 F.2d at 1444.

The affidavit also stated that interrogation and infiltration

_________________________________________________________________

8. Our standard of appellate review is plenary. United States v. McGlory,

968 F.2d at 345.

12

of the operation were not viable alternatives, because either

technique would have aroused suspicion and prevented the

successful completion of the investigation. Id. In addition,

the affidavit asserted that a traditional search would

likewise have been unfruitful, because it was "quite likely

that the key evidence of actual counterfeit bills might not

be found." Id. at 1445. Under these circumstances, thecourt held that the government had satisfactorily

d emonstrated that other investigative techniques were

inadequate. See also Biasucci, 786 F.2d at 511 (affidavit

sufficient because it showed that some confidential sources

refused to testify, the undercover agent was not permitted

to be present at alleg ed loansharking transaction and at

meetings at the defendants' business premises, interviews

with victims were not feasible, search warrants and grand

juries were not expected to produce significant evidence,

and prior victims would be unlikely to test ify for fear of

reprisals); Torres, 751 F.2d at 877 (affidavit sufficient

because it showed that FBI had reason to believe that the

people involved in the bomb construction operation, fearing

that they might be bugged, played the radio loudly when

the y were speaking to one another, spoke in code, and built

the bombs in silence).

In the instant case, the affidavit stated that execution of

a search warrant was unlikely to succeed because it would

reveal the facts of the investigation to the targets . A. 55.

The affidavit noted that the probable cause affidavit would

have to be attached to the warrant when it was executed

and that this would cause the targets to take defensive

measures, which would impede the progress of the

investigation. A. 55. The affidavit also stated that since

organizations such as the one involved in this case are

highly suspicious of unfamiliar persons, the use of another

confidential informant would not have been fruitful. A. 56.

The affidavit stated that the confiden tial informant who had

been used previously, as well as physical surveillance and

the gathering of law enforcement intelligence information,

had been utilized to the fullest extent possible and that any

further use of such techniques might result in di scovery. A.

59. The affidavit noted that the organization transacted its

business in private and via cellular phones, making it

difficult to investigate the organization and learn the

13

identities of upper eche lon figures. A. 57

- 60. The affidavit

noted that the informant had said that some type of

electronic detection equipment might have been installed to

alert the targets to surveillance attempts. A. 58. Finally, the

affidavit stated:

Video surve illance is being requested in order to

further assist in identifying those subjects involved in

this alleged criminal activity. As enumerated within

this affidavit, there have been occasions where

numerous persons have been observed within the

building at one time. Video surveillance will enable

investigators to identify those subjects intercepted,rather than attempting identification through less exact

means such as voice exemplars. In additi on, video

surveillance will disclose any non

- verbal criminal

activity, such as any actual "settle up" of monies

between those subjects monitored in this investigation.

A. 62. We believe that the affidavit provided a sufficient

" factual predicate" for a finding that "normal investigative

techniques" (i.e., techniques other than video surveillance)

were unlikely to succeed. We also conclude that the

affidavit, read in a "practical and commonsense fashion,"

sufficiently showed t he need for video surveillance. There

was probable cause to believe that what was occurring at

the premises was the actual operation of an illegal gambling

business, not simply conversations about or in furtherance

of that business. Thus, as was the ca se in Mesa

- Rincon,

audio surveillance alone was not likely to disclose the

identities of all of the participants and what they were

doing. While it would not be advisable to use the

application as a model in future video surveillance cases,

we hold th at it satisfies constitutional requirements under

the circumstances here. We therefore affirm the district

court's denial of defendants' suppression motion on this

ground.

III.

The defendants argue that the search of the Foxcroft

Road residence b elonging to Adolph Williams violated the

Fourth Amendment because the information used to

14

establish probable cause was stale and remote. The

defendants contend that very little of the information

contained in the supporting affidavit demonstrated a nexus

between the gambling operation and the Foxcroft Road

residence, and they argue that any information suggesting

such a connection was obtained from a confidential

informant who ceased working for the princi pals in the

mid

- 1980's. Thus, the defendants contend, the information

was stale.

Probable cause is determined by a "totality

- of

- the

circumstances analysis," under which a magistrate judge

must "make a practical, commonsense decision whether,

given all the circumstances set forth in the affidavit before

him . . . there is a fair probability that contraband or

evidence of a crime will be found in a particular place."

Illinois v. Gates, 462 U.S. 213, 238 (1983). In reviewing

such a determination, our role is quite limited. We must

simply decide whether the magistrate judge had asubstantial basis for concluding that probable cause

existed. United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.

1993), cert. denied, 510 U.S. 1177 (1994). Therefore, "a

reviewing court is to uphold the warrant as long as there is

a substantial basis for a fair probability that evidence will

be found." Id. (footnote omitted).

The supporting affidavit to a search warrant application

must be read in its entirety an d in a common sense and

nontechnical manner. Id. at 1206. The affidavit need not

contain direct evidence that proof of wrongdoing would be

present at the premises. Id. at 1207. "Instead, probable

cause can be, and often is, inferred by `considering the type

of crime, the nature of the items sought, the suspect's

opportunity for concealment and normal inferences about

where a criminal might hide [the] property.' " Id. (quoting

United States v. Jones, 994 F.2d 1051, 1056 (3d Cir.

1993)). The focus sh ould be on what the affidavit includes,

rather than on what it does not include. Id. at 1208.

The age of the information supporting a warrant

application is a factor that must be considered in

determining probable cause. United States v. Harvey, 2

F .3d 1318, 1322 (3d Cir. 1993). If information is too old, it

may have little value in showing that contraband or

15

evidence is still likely to be found in the place for which the

warrant is sought. Id. Age alone , however, does not

determine staleness. "The likelihood that the evidence

sought is still at the place to be searched depends on a

number of variables, such as the nature of the crime, of the

criminal, of the thing to be seized, and of the place to be

searched." United States v. Tehfe, 722 F.2d 1114, 1119 (3d

Cir. 1983), cert. denied sub nom., Sanchez v. United States,

466 U.S. 904 (1984). "[W]hen an activity is of a protracted

and continuous nature, `the passage of time becomes less

significant.' " Id. (quoting United States v. Harris, 482 F.2d

1115, 1119 (3d Cir. 1973)). Thus, when the criminal

activity has been going on continuously for years, staleness

is of less concern. Id. at 1120 (staleness did not negate

probable cause in drug traffick ing conspiracy that had been

going on for several years).

In this case, the gambling operation began in the 1960's

and continued through the 1990's. In light of its long and

continuous operation, staleness is less important in the

probable cause ana lysis. See Tehfe, 722 F.2d at 1120. The

affidavit submitted in support of the warrant application

contained information, obtained from the confidential

informant and from physical surveillance, that suggestedthat gambling evidence would be found at th e Foxcroft

Road residence. The affidavit also related various

electronically intercepted statements made at the Fifth

Avenue premises that indicated that evidence would likely

be found at the Foxcroft Road residence.

The confidential informant, who had worked with the

defendants for several years until the mid

- 1980's, reported

that he knew of secret hiding places in the residence. Jt.

App. 499.9 He also reported that Adolph Williams had once

told him about a hidden room in the basement of the hou se

that was used to conceal records. Jt. App. 499. The

informant stated that he knew through conversations with

other individuals involved in gambling that Adolph Williams

was still running the operation. Jt. App. 499. Electronic

surveillance conducte d in July 1991 revealed that Salvatore

_________________________________________________________________

9. "Jt. App." refers to the appendix submitted on behalf of Salvatore C.

Williams and Adolph Williams.

16

C. Williams expressed concern about leaving money at the

Fifth Avenue premises, and Adolph Williams stated that he

would take the money home with him. Jt. App. 494.

Physical surveillance conducted between December 1992

and April 1993 revealed that an individual took a pouch

believed to contain numbers slips on a twice

- daily basis

from a gym located on Fifth Avenue to another location and

then to the Foxcroft Road residence, where he would stay

for up to one hour. Jt. App. 501

- 05. Thus, the surveil lance,

which ended in April 1993, indicated that the suspected

criminal activity continued until at least a few weeks before

the search was conducted on May 25, 1993. The fact that

evidence of the suspected criminal activity continued up

through the l ast weeks before the search strongly suggests

that the information in the affidavit was not stale.

In light of the protracted nature of this criminal

enterprise, we conclude that the magistrate judge had a

substantial basis for concluding that there was probable

cause to believe that records, numbers slips, or large

amounts of money would be found at the Foxcroft Road

residence. As the government points out, "[t]he primary

evidence sought was records, which are generally created

for the very purp ose of preservation." Govt. Br. at 45. The

informant's information regarding a secret room in the

basement also provided support for a probable cause

finding, since it is likely that the use of such a permanent

and specialized feature would continue fo r a lengthy period.

Furthermore, the daily movement of an individual with abag from a Fifth Avenue location to the Foxcroft Road

residence strongly suggested that the contents of that bag,

believed to be gambling receipts, might be found at the

resid ence. For these reasons, we see no basis for

overturning the magistrate judge's probable cause

determination.

Moreover, even if we held that probable cause was

lacking, suppression of the evidence obtained pursuant to

the warrant would not be justif ied under United States v.

Leon, 468 U.S. 897 (1984). Although the defendants

maintain that the affidavit in this case was "so lacking in

indicia of probable cause as to render official belief in its

existence entirely unreasonable," id. at 923 (citati on

17

omitted), that argument is patently wrong. We therefore

affirm the district court's denial of defendants' motion to

suppress the evidence obtained as a result of the search of

the Foxcroft Road residence.

IV.

The defendants argue that the district court should have

dismissed counts one and two of the indictment on equal

protection grounds. These counts charged that the

defendants conspired to and did in fact violate 18 U.S.C.

S 1955 by conducting a gambling business in violation

of a Pennsylvania statute, 18 Pa. Cons. Stat. Ann.S 5514,

that prohibits "pool selling," "bookmaking," and related

activities. The defendants contend that this Pennsylvania

statute violates the Equal Protection Clause b ecause it

prohibits some forms of gambling while other state laws

authorize other forms of gambling such as the state lottery.

Taken together, the defendants maintain, these laws create

a disparity of treatment between "entities which engage in

state

- authorized gambling" and "entities which engage in

gambling not authorized by the state." Jt. Br. at 36. The

defendants contend that 18 Pa. Cons. Stat. Ann.S 5514 is

subject to strict scrutiny because it "impinges upon the

exercise of certain fundament al rights," namely,"the right

to hold specific private employment," "the right to enter

contracts," and "the right of association for economic and

social reasons." Id. at 36. The defendants argue that the

only interest ever served by 18 Pa. Cons. Stat. Ann.S 5514

was "preventing the inflammation of the gambling instinct,"

that the Commonwealth no longer views this as an

important interest and indeed now has an interest in

"encouraging the gambling instinct" (id. at 29), and that

therefore 18 Pa. C ons. Stat. Ann. S 5514 cannot survive any

degree of equal protection scrutiny.Before addressing the merits of defendants' equal

protection argument, we must determine the standard that

governs our analysis. "[A]s a general matter, economic and

soci al legislation is subject to rational basis review, under

which a law need only be rationally related to a legitimate

state interest." Tolchin v. Supreme Court of New Jersey, 111

F.3d 1099, 1113 (3d Cir. 1997) (internal quotations

18

omitted). However, suspect classifications, such as those

based on race, national origin, or alienage, and

"classifications affecting fundamental rights are given the

most exacting scrutiny." Clark v. Jeter, 486 U.S. 456, 461

(19 88) (citation omitted). Such laws must be "suitably

tailored to serve a compelling state interest." City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985);

see also Artway v. Attorney General of New Jersey , 81 F.3d

1235, 1267 (3d Cir. 1996 ).

For equal protection purposes, "fundamental rights"

include such constitutional rights as the right of interstate

travel, Shapiro v. Thompson, 394 U.S. 618 (1969), the right

to vote, Bullock v. Carter, 405 U.S. 134 (1972), rights

guaranteed by th e First Amendment, Williams v. Rhodes,

393 U.S. 23 (1968), and the right to procreate, Skinner v.

Oklahoma, 316 U.S. 535 (1942). See Massachusetts Bd. of

Retirement v. Murgia, 427 U.S. 307, 312 n.3 (1976) (per

curiam). However, the rights asserted by t he defendants

here do not qualify for strict scrutiny.

As noted, the defendants claim that 18 Pa. Cons. Stat.

Ann. S 5514 affects their "right to hold specific private

employment." However, it is settled that laws restricting

access to specific type s of private employment are subject

to only rational basis review. See, e.g., Leis v. Flynt, 439

U.S. 438, 444 n.5 (1979) (practice law); Schware v. Board

of Bar Examiners, 353 U.S. 232 (1957) (same); Williamson

v. Lee Optical of Oklahoma, Inc., 348 U. S. 483 (1955) (fitting

or duplicating eyeglass lenses); Kotch v. Board of River Port

Pilot Comm'rs, 330 U.S. 552 (1947) (pilotage of vessels); see

also Edelstein v. Wilentz, 812 F.2d 128, 132 (3d Cir. 1987)

("The Constitution does not create fundamenta l interests in

particular types of employment."). Thus, we cannot subject

18 Pa. Cons. Stat. Ann. S 5514 to strict scrutiny on this

basis.

Nor is strict scrutiny justified on the ground that this

provision affects the defendants' right to enter into

contracts (whether wagering contracts or other contracts

related to the operation of a gambling business) or on theground that it affects their "right of association for

economic and social reasons." Jt. Br. at 29. All laws

restricting access to par ticular types of private employment

19

have these effects. For example, in Williamson , a state

statute permitted only licensed optometrists and

opthamologists to fit or duplicate eyeglass lenses. Not only

did t his law affect the ability of persons not within the

favored groups to obtain this particular type of private

employment, but it also affected their ability to enter into a

variety of contracts, such as contracts of employment to fit

or duplicate lense s and contracts with customers for the

fitting or duplication of lenses. Likewise, the law challenged

in Williamson affected the ability of persons not in the

favored groups to associate with others for the purpose of

fitting or duplicating lenses. Yet the Supreme Court

subjected the law at issue in Williamson to only rational

basis review. See 348 U.S. at 489. We are therefore

persuaded that this same standard of review applies here.

Under this standard, "a law need only be rationally

related to a legitimate state interest," Tolchin, 111 F.3d at

1113 (internal quotation omitted), and 18 Pa. Cons. Stat.

Ann. S 5514 easily satisfies this requirement. In prohibiting

certain gambling activities but not others, Pennsylvania

lawmakers could have ra tionally concluded that the

prohibited activities are particularly undesirable

-- because

they have an increased tendency to encourage self

destructive behavior, because they are especially

susceptible to the dishonest practices and organized crime

co nnections that have historically plagued the gambling

business, or for other reasons. As the Court wrote in

Williamson:

Evils in the same field may be of different dimensions

and proportions, requiring different remedies. Or so the

legislature may think. Or the reform may take one step

at a time, addressing itself to the phase of the problem

which seems most acute to the legislative mind. The

legislature may select one phase of one field and apply

a remedy there, neglecting the others.

348 U.S. at 489 (citations omitted); see also Commonwealth

v. Hainsey, 550 A.2d 207, 209 (Pa. Super. Ct. 1988)

(rejecting argument that enforcement of 18 Pa. Con. Stat.

Ann. S 5514, prohibiting pool selling and bookmaking, is

unjust because the Commonwealth promotes the state

lottery and condones wagering at rack tracks; S 5514 was

20"enacted as a legitimate exercise of legislative authority.").

We conclude that S 551 4 is rationally related to a legitimate

state interest, and we therefore reject the defendants' equal

protection challenge.

V.

The defendants next argue that the oral evidence

electronically intercepted from the Fifth Avenue premises

should have been suppressed because the Pennsylvania

statute under which the authorization was obtained does

not comply with 18 U.S.C. S 2518. The defendants contend

that the state statute is deficient in that it permits a law

enforcement officer to swear out the supporting affidavit

used to establish that there is probable cause for the

interception and that other investigative procedures are

inadequate. The defendants maintain that the federal

statute requires "the attorney for the government" to make

such a ssertions. SAW Br. at 12. This distinction is critical,

the defendants contend, because approval and oversight by

government attorneys provides an `administrative check' to

avoid arbitrary invasions of privacy rights by government

officials." Id. at 13

.

The defendants' argument is based on a misreading of

the relevant provisions of Title III. When an order

permitting electronic interception of wire or oral

communications is sought in federal court, the application

must be authorized by certain hi gh

- ranking Justice

Department officials, 18 U.S.C. S 2516(1), but the

application need not be made by a government attorney.

Section 2518(1) provides in pertinent part:

Each application for an order authorizing or approving

the interce ption of a wire, oral, or electronic

communication under this chapter shall be made in

writing upon oath or affirmation to a judge of

competent jurisdiction and shall state the applicant's

authority to make such application. Each application

shall include the following information:

(a) the identity of the investigative or law enforcement

officer making the application, and the officer

authorizing the application;

21

(b) a full and complete statement of the facts and

circumstances relied upon by the applicant, to justifyhis belief that an order should be issued, including (i)

details as to the particular offense that has been, is

being, or is about to be committed, (ii) . . . a particular

description of the nature and location of the facilities

from which or the place where the communication is to

be intercepted, (iii) a particular descripti on of the type

of communications sought to be intercepted, (iv) the

identity of the person, if known, committing the offense

and whose communications are to be intercepted;

(c) a full and complete statement as to whether o r 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 . . .

18 U.S.C. S 2518 (emphasis added).

As is evident from the highlighte d language, S 2518 does

not require that an application be made by an attorney;

instead, such an application may be made by an

"investigative or law enforcement officer." Nor does S 2518

require a statement by a government attorney regarding the

attor ney's belief that an interception order should be

issued; instead, the statute requires a statement regarding

the applicant's belief that such an order should be issued,

as well as "a full and complete statement" (by someone,

presumably including the a pplicant) as to the inadequacy of

other investigative techniques. Thus, there is no textual

requirement that an attorney for the government make

these statements, as the defendants contend.

The defendants cite no case law supporting the

proposition that a law enforcement officer's affidavit is

insufficient in a case in which federal court approval for

wiretapping or bugging is sought, and we have found no

such case. To the contrary, affidavits sworn out by law

enforcement officers have been held to be sufficient. See,

e.g., United States v. Kahn, 415 U.S. 143, 144 n.1 (1974)

(affidavit of FBI special agent); United States v. Falls, 34

F.3d 674, 676 (8th Cir. 1994) (affidavit of FBI special

agent); United States v. Ashley, 876 F.2d 1069, 1071 ( 1st

Cir. 1989) (affidavit of DEA special agent).

22

The Pennsylvania statute pursuant to which the

application in this case was made provides:

Each application for an order of authorization to

i ntercept a wire or oral communication shall be made

in writing upon the personal oath or affirmation of the

Attorney General or a district attorney of the countywherein the interception is to be made and shall

contain all o f the following:

(1) A statement of the authority of the applicant to

make such application.

(2) A statement of the identity and qualifications of

the investigative or law enforcement officers or agency

for whom the authority to intercept a wire or oral

communication is sought.

(3) A sworn statement by the investigative or law

enforcement officer who has knowledge of relevant

information justifying the application, which shall

include:

(i) The identity of the particular person, if known,

committing the offense and whose communications are

to be intercepted.

(ii) The details as to the particular offense that has

been, is being, o r is about to be committed.

. . .

(iv) A showing that there is probable cause to

believe that such communication will be committed on

the wire communication facility involved or at the

particular place where the oral communication is to be

intercepted.

. . .

(vii) A particular statement of facts showing that

other normal investigative procedures with respect to

the offense have been tried and have failed, or

re asonably appear to be unlikely to succeed if tried or

are too dangerous to employ.

18 Pa. Cons. Stat. Ann. S 5709 (emphasis added). Thus,

under the Pennsylvania scheme, the application must be

23

made b y the Attorney General or a district attorney and

must be supported by an affidavit of a law enforcement

officer.

As we have noted, when a federal court order is sought,

18 U.S.C. S 2518(1) does not require that a government

attorney execute the aff idavit used to establish probable

cause and the inadequacy of other investigative techniques,and we are not persuaded that Title III demands anything

more when an application is made to a state court. Under

18 U.S.C. S 2516(2), such an application mus t be made by

a state's "principal prosecuting attorney" or by "the

principal prosecuting attorney of any political subdivision

thereof," and the judge may grant the application"in

conformity with" S 2518. We do not interpret this provision

to require that an attorney make the statement supporting

probable cause or the inadequacy of other investigative

techniques. See United States v. Smith, 31 F.3d 1294, 1298

(4th Cir. 1994) (affidavit of police officer), cert. denied, 115

S. Ct. 1170 (1995); Unite d States v. Homick, 964 F.2d 899,

903 (9th Cir. 1990) (affidavit of detective); United States v.

Young, 822 F.2d 1234, 1237 (2d Cir. 1987) (affidavit of

state police detective).

Furthermore, it is apparent that when the Attorney

General of Pennsylva nia or a district attorney submits an

application to a state court and relies on an affidavit of a

law enforcement officer, the Attorney General or district

attorney, as an officer of the court, is implicitly representing

that it is his or her belief t hat there is probable cause for

the surveillance and that other investigative techniques are

inadequate. To be sure, the Attorney General or district

attorney makes that implicit representation in reliance on

the law enforcement officer's affidavit, bu t the same type of

reliance would almost certainly occur even if the Attorney

General or district attorney were to execute the affidavit.

Statements made by an affiant submitted in support of a

warrant may be based on information provided by others,

s ee Illinois v. Gates, 462 U.S. at 238, and it is unrealistic

to expect that a state attorney general or district attorney

will routinely acquire sufficient firsthand information about

the grounds for a warrant application so as to be able to

base his o r her affidavit on anything other than information

24

relayed by field investigators and their supervisors. Thus,

we do not agree with the defendants that the Pennsylvania

scheme eliminates an important "administ rative check."

VI.

The defendants contend that electronically intercepted

evidence from the Fifth Avenue premises was disclosed to a

federal grand jury in violation of provisions of the

Pennsylvania Wiretapping and Electronic Surveillance

Control Act, 18 Pa. Cons. Stat. Ann. SS 5717(a) and 5718,

and that therefore this evidence should have been

suppressed.10 As we understand the defendants' argument,

it runs as follows. The order signed by the Superior Courtjudge authorized the interception of conversations relating

to certain state offenses, viz., "offenses involving Corrupt

Organizations, 18 Pa. C.S. S 911; Lotteries, 18 Pa. C.S.

S 5512; and/or Conspiracy to commit the aforesaid

violations in violation of 18 Pa. C.S[.] S 903." Jt. App. 80.

Under 18 Pa. Cons. Stat. Ann. S 5718, when an authorized

interception of wire or oral communications intercepts

"communications relating to offenses other than those

specified in the order of authorization," these

communications and evidence deriv ed from them may be

disclosed before a federal grand jury only if an application

to a court is made and the court makes certain findings "in

advance of such disclosure." Here, the government

_____________________________________________________________ ____

10. The defendants also contend that evidence was improperly disclosed

to agents of the Internal Revenue Service's Criminal Investigation

Division, but the defendants do not explain the basis for this argument.

Under 18 U.S.C. S 2517(1), the Pen nsylvania State Troopers authorized

by court order to intercept oral communications were permitted to

disclose the contents "to another investigative or law enforcement officer

to the extent that such disclosure is appropriate to the proper

performance of the official duties of the officer making or receiving the

disclosure." See United States v. Iannelli , 477 F.2d 999, 1001 (3d Cir.

1973) ("These Internal Revenue Service agents are investigative or law

enforcement officers within the meaning of 18 U.S.C. S 2510(7) and

disclosure was appropriate to the performance of their duties."), aff 'd,

420 U.S. 770 (1975). Therefore, based on the brief treatment given to the

issue of disclosure of evidence to IRS agents in the defendants' briefs,

we

see no ground for holding that this disclosure was improper.

25

acknowledged that portions of the intercepted

communications were presented to a federal grand jury

without a prior authorization order. See Govt. Br. at 1 8

- 19.

Based on these facts, the defendants argue that this

disclosure violated 18 Pa. Cons. Stat. Ann. S 5718, that

suppression was required under Commonwealth v. Hashem,

584 A.2d 1378 (Pa. 1991), and that this state rule of

suppression is applicable in this federal case because "a

Title III type interception conducted under State law and

proposed to be used in a federal court must meet any state

standards which are `more demanding than federal ones' in

the district in which the offer is made." SAW Br. at 14

- 15

(quoting United States v. Geller, 560 F. Supp. 1309, 1312

(E.D. Pa. 1983), aff 'd, 745 F.2d 49 (3d Cir. 1985) (table)).

It appears that the defendants are arguing that Title III

requires suppression when communications are intercepted

pursuant to a state statute and are subsequently disclosedin violation of state law. However, it is also possible that the

defendants are arguing that the suppression remedy

provided by state law is directly applicable under these

circumstances in a f ederal case. We will therefore address

both arguments.

A. In considering the question of suppression under

federal law, two statutory provisions must be taken into

account. The first, 18 U.S.C. S 2515, states:

Whenever any wire or oral comm unication 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

.

Id. (emphasis added). The second, 18 U.S.C.S 2518 (10)(a)

provides, in pertinent part, as follows:

Any aggrieved person in any trial, hearing, or

proceeding in or before any court, department, officer,

agency, regulatory bod y, or other authority of the

United States, a State, or a political subdivision

26

thereof, may move to suppress the contents of any wire

or oral communication intercepted pursuant to this

chapter, or evidence derived therefrom, on the grounds

that

--

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its f ace; or

(iii) the interception was not made in conformity with

the order of authorization or approval.

The Supreme Court has explained the relationship

between these two provisions. In United States v. Giordano,

416 U.S. 505, 524 (1 974), the Court wrote that "[w]hat

disclosures are forbidden [under S 2515], and are subject to

motions to suppress, is . . . governed by S 2518(10)(a)."

Thus, evidence may be suppressed only if one of the

grounds set out in S 2518(10)(a) is met. Moreo ver, " `[not]

every failure to comply fully with any requirement provided

in Title III would render the interception of wire or oralcommunications "unlawful" ' " underS 2518(10)(a)(i). United

States v. Donovan, 429 U.S. 413, 433 (1977) (quoting

Unite d States v. Chavez, 416 U.S. 562, 574

- 75 (1974)).

Rather, suppression is mandated "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 pr ocedures to those situations

clearly calling for the employment of this extraordinary

investigative device.' " Donovan, 429 U.S. at 433

- 34 (quoting

Giordano, 416 U.S. at 527).

Construing these statutory provisions, our court held

more than 20 years ago that Title III does not prescribe

suppression as a remedy for a disclosure violation. United

States v. Iannelli, 477 F.2d 999, 1001 (3d Cir. 1973), aff 'd,

420 U.S. 770 (1975). We wrote that "the suppression

remedy specified in 18 U.S.C. S 2518(10) applies to

unlawful interceptions. A civil remedy applies to unlawful

disclosures. 18 U.S.C. S 2520." Id.; see also United States v.

Vento, 533 F.2d 838, 855 (3d Cir. 1976). Other courts of

appeals have reached the same conclusion. See, e.g., United

States v. Barnes, 47 F.3d 963, 965 (8th Cir. 1995); Resha

v. United States, 767 F.2d 285, 288 (6th Cir. 1985) ("we

27

construe S 2518 to permit suppression of evidence only if

that evidence was derived from unlaw ful, improper or

unauthorized interceptions of wire or oral communications.

It does not authorize suppression for disclosures of such

information, even if they violate S 2517.") (emphasis in

original), cert. denied, 475 U.S. 1081 (1986).11

Iannelli and Vento are binding on us here, and in any

event we see no basis for questioning their reasoning. The

section of Title III governing suppression, 18 U.S.C.

S 2518(10), sets out three grounds for suppression, and

none of these grounds applies to evide nce that is

intercepted lawfully but that is later disclosed improperly.

For improper disclosure, Title III instead authorizes a civil

remedy. See 18 U.S.C. S 2520(a).12

If the defendants based their argument on an alleged

violation of federal nondi sclosure requirements, the

authorities cited above would be directly controlling, but

the defendants have attempted to weave their way around

these obstacles by contending that suppression is required

because a state nondisclosure provision was violate d and

because the Pennsylvania Supreme Court held in Hashem

that evidence disclosed in violation of that provision must

be suppressed. The defendants point out that under 18

U.S.C. S 2516(2), an authorization order signed by a state__________________ _______________________________________________

11. We are not persuaded by the defendants' reliance on United States v.

Marion, 535 F.2d 697, 703

- 04 (2d Cir. 1976), and United States v.

Brodson, 528 F.2d 214 (7th Cir. 1975). Insofar as these cases

s uppressed evidence based on violations of the nondisclosure restrictions

in 18 U.S.C. S 2517(5), these decisions are contrary to controlling

precedents of our court.

12. This provision provides, in pertinent part, as follows:

Except as provi ded in section 2511(2)(a)(ii), any person whose

wire,

oral, or electronic communication is intercepted, disclosed, or

intentionally used in violation of this chapter may in a civil

action

recover from the person or entity which enga ged in that violation

such relief as may be appropriate.

18 U.S.C. S 2520(a) (emphasis added). The exception set out in 18 U.S.C.

S 2511(2)(a)(ii) applies to "providers of wire or electronic communication

service" and certain persons associate d with them. It thus has no

application here.

28

judge must be "in conformity with [18 U.S.C.S] 2518 . . .

and with the applicable State statute," and the defendants

rely on cases holding that suppression is req uired in federal

court when state officers intercept communications in

violation of the applicable state statute. See United States v.

Butz, 982 F.2d 1378, 1383 (9th Cir.), cert. denied, 510 U.S.

891 (1993); United States v. Vario, 943 F.2d 236, 244 (2 d

Cir. 1991), cert. denied, 502 U.S. 1036 (1992); United States

v. Bascaro, 742 F.2d 1335 (11th Cir. 1984), cert. denied sub

nom., Hobson v. United States, 472 U.S. 1017 (1985);

United States v. Brown, 872 F.2d 385, 388

- 90 (11th Cir.),

cert. denied, 4 93 U.S. 898 (1989).

We are not persuaded by the defendants' attempts to

circumvent Iannelli and Vento. We understand these

precedents to rest on the proposition that 18 U.S.C.

S 2518(10)(a) sets out the exclusive grounds for suppression

under Title III but omits any reference to disclosure

violations. Since this provision makes no mention of federal

or state disclosure violations, we see no basis for holding

that this provision authorizes suppression for state, but not

federal, disclosure violati ons.

Whether the Pennsylvania courts would have ordered

suppression under Hashem makes no difference. We will

discuss below the question whether the Pennsylvaniasuppression rule is directly applicable in this federal case.

At present, we are addres sing the question whether federal

law requires suppression, and the defendants have not

called to our attention any provision of Title III that requires

or authorizes the suppression of evidence in federal court

simply because a state court would have ordered

suppression as a remedy for a violation of the state

disclosure provision. Nor are we aware of any such federal

statutory provision. Without such a provision, we see no

basis for holding that federal law requires suppression here

simply becaus e the Pennsylvania courts might have

required suppression in a state prosecution. Accordingly,

we hold that federal law does not require suppression of the

evidence that, according to the defendants, was unlawfully

disclosed.

B. We therefore turn to the question whether

Pennsylvania law of its own force requires suppression in

29

this case. It clearly does not. "It is a general rule that

federal district courts will decide evidence questions in

federal cri minal cases on the basis of federal, rather than

state, law." United States v. Rickus, 737 F.2d 360, 363 (3d

Cir. 1984); see also, e.g., United States v. Stiver, 9 F.3d 298

(3d Cir. 1993), cert. denied, 510 U.S. 1136 (1994); United

States v. Shaffer, 5 20 F.2d 1369, 1372 (3d Cir. 1975), cert.

denied sub nom., Vespe v. United States, 423 U.S. 1051

(1976); United States v. Armocida, 515 F.2d 49, 52 (3d Cir.),

cert. denied, 423 U.S. 858 (1975). Moreover, the relevant

state statutory provision, 18 Pa. Co ns. Stat. Ann.S 5721(a),

does not purport to govern federal cases. It provides that a

motion to suppress may be made "in any trial, hearing, or

other adversary proceeding in or before any court or other

authority of this Commonwealth." 18 Pa. Cons. Sta t. Ann.

S 5721(a) (emphasis added).

For these reasons, assuming for the sake of argument

that evidence was disclosed in violation of state law, we

hold that the district court did not err in refusing to

suppress that evidence.13

VII.

The defen dants next argue that the electronically

intercepted oral evidence from the Fifth Avenue premises

should have been suppressed because the affidavit did not

indicate that normal investigative procedures would be

inadequate, as required by 18 U.S.C. S 25 18(3)(c). The

defendants maintain that the confidential informant could

have been further utilized in lieu of electronic surveillance.As we have stated, the affidavit submitted with the oral

surveillance application was the same as that submitted

wit h the video surveillance application, the sufficiency of

_________________________________________________________________

13. The government makes two additional arguments in support of its

position on this issue. It argues that the disclosed communi cations were

relevant to the state offenses listed in the interception order and that

the

state judge implicitly authorized disclosure to federal authorities by

granting an extension of the interception order and granting an order

authorizing postponem ent of service of inventory. Because we conclude

that suppression is not an available remedy for unlawful disclosure, we

do not reach these arguments.

30

which has already been discussed. See supra Part II(B).

A ccordingly, we will not address this argument again at this

point. We note only that the informant had ceased working

for the organization approximately six years before the

affidavit was prepared, and therefore the probability of his

continued effecti veness as an informant was low.

VIII.

Defendants additionally challenge the affidavit in support

of the extension of the oral interception order for the Fifth

Avenue premises, arguing that there was no basis to

conclude that continuing the interce ption would produce

any additional information. Extensions require the same

showing as an initial application. 18 U.S.C. S 2518(5).

Thus, the same determinations as to probable cause and

the inadequacy of other investigative procedures must be

made. I d. S 2518(3).

The affidavit submitted in support of the extension

request stated that continued interception was needed

because successful interception of conversations had been

limited due to background radio noise. A. 131. The affidavit

also state d that it was believed that the defendants were

playing the radio for the purpose of thwarting the attempt

by police to listen to conversations. Id. However, the

affidavit added that those conversations that were audible

indicated that defendants were involved in an illegal

gambling operation. Id. The affidavit further stated that one

of the participants in the operation, Louis Esposito, whose

telephones had previously been wiretapped, was

approached by police in an attempt to gain his cooperation

in investigating defendants. A. 140. Shortly after the

interview, the affidavit revealed, Esposito informed Adolph

Williams of the interview and told him that the police wereinvestigating the operation. Finally, the affidavit stated that

the police ha d attempted further physical surveillance of

the Fifth Avenue premises but that surveillance teams had

reported that many of the targets were using evasive

tactics, such as circling the block, switching lanes, and

running red lights after waiting for t he green light to turn

red, in order to prevent anyone from following them

through the intersection. A. 145. The affidavit indicated

31

that investigators were in the process of determining

whether a mobile trac king device would assist in the

surveillance of key targets and that the investigators were

also exploring the feasibility of aerial surveillance. A. 145

- 46.14 Based on these representations, we believe the

government made an adequate showing of proba ble cause

and lack of alternative investigative means to justify the

extension of the surveillance order. We therefore hold that

the district court's denial of defendants' motion to suppress

evidence obtained during the extension was proper.

IX.

Finally, the defendants argue that the electronically

intercepted oral evidence from the Fifth Avenue premises

should have been suppressed because the tapes were not

sealed in accordance with federal and state law. The

interception ended on Friday, Aug ust 9, 1991, but the

tapes were not sealed until Monday, August 12, 1991. The

district court found that the tapes were sealed as soon as

practical after the intervening weekend and denied the

motion to suppress.

_______________________________________ __________________________

14. The affidavit states:

Your affiants believe that while there has been progress throughout

the course of this interception, that a further period of

interception

will be required to identify the re lationships and responsibilities

of

the parties already identified and to identify other participants

in

this organization. As previously stated, this investigation is

unusual

in that many of the subordinate parties had not been pre viously

identified as to identity and also as to activity. Due to the short

and

abrupt nature of the majority of the conversations intercepted to

date, further interceptions are necessary to be able to establish

beyond a rea sonable doubt, the sources of the cash which is flowingthrough this building. Because of the nature of the conversations,

much of the evidence will be of a circumstantial nature. This is

especially true because of the documented ef forts of these

individuals to avoid detection by: evasive tactics, including their

driving patterns; playing of loud music within the area of

interception, and shredding of physical evidence such as those

papers believed to contain documentation as to the amount of

money which flows through this organization.

A. 148

- 49.

32

Federal and Pennsylvania law require the sealing of

recordings "[i]mmediately" upon the expiration of the

surveillance order or any extensions of such order. See 18

U.S.C. S 2518(8)(a); 18 Pa. Cons. Stat. Ann.S 5714(b).

Section 2518(8)(a) contains "an explicit exclusionary

remedy for noncompliance with the sealing requirement."

United States v. Ojeda Rios, 495 U.S. 257, 263 (1990). If

the tapes are not immediately sealed upon expiration of the

order, the government must not only explain why a delay

occurred but must also explain why the delay was

excusable. Id. at 264

- 65. The term "[i]mmediately" means

that the tapes should be sealed either as soon as practical

after the surveillance ends or as soon as practical after the

final extension order expires. United States v. Vastola, 915

F.2d 865, 875 (3d Cir. 1990), cert. denied, 498 U.S. 1120

(199 1). If the tapes were sealed as soon as practical, our

inquiry ends, and the order denying the motion to suppress

must be affirmed. United States v. Carson, 969 F.2d 1480,

1491 (3d Cir. 1992). If the tapes were not sealed promptly

enough, we must ask w hether the government provided an

objectively reasonable explanation for the delay. Id.

In Carson, 969 F.2d at 1488, we held that the sealing of

certain recordings was immediate within the meaning of the

statute where the surveillance was completed a t the end of

one week and tapes were sealed at the beginning of the

next week. One order expired on Wednesday, May 12, 1982,

and the tapes were sealed on Monday, May 17, 1982. We

held that "[w]hen the intervening weekend is considered,

there is no ind ication in the record that the tapes were not

sealed as soon as was practical," and we therefore held that

those tapes were sealed "immediately." Id. at 1498. A

second order expired on Thursday, December 16, 1982,

and the tapes were sealed on Wednesda y, December 22,

1982. We held that since the gap included an intervening

weekend, those tapes were also sealed "immediately." We

accordingly did not reach the issue of whether the

government's delay was excusable with respect to either

order.Here, the government learned that the issuing judge, for

whom a progress report had been prepared for the purpose

of sealing the tapes, was out of town and would be

33

unavailable to seal the tapes on Friday, August 9 , 1991, the

day the extension would expire. Therefore, on Wednesday,

August 7, a request was made for a substitute judge to be

appointed, and Judge Kate Ford Elliot was assigned to the

case. On Thursday, August 8, the assistant district attorney

spoke with Judge Elliot and requested to seal the tapes on

Saturday, August 10. Judge Elliot told him that Monday,

August 12 would be adequate to seal the tapes, and on

Monday, August 12, the tapes were sealed.

We conclude that the tapes were sealed "imme diately" for

the purpose of the statutory sealing requirement. Under the

holding of Carson, where the surveillance ends on Friday

and the tapes are sealed on the following Monday, the

sealing is immediate in light of the intervening weekend.

Furthermo re, even if the Monday sealing were not deemed

to be immediate, the assistant district attorney's reliance on

the judge's decision to wait until Monday was certainly

reasonable, and consequently the delay was excusable. The

assistant district attorney had previously arranged for a

substitute judge in order to comply with S 2518(8)(a) and

had deferred to that judge's decision to seal the tapes the

following Monday. We believe it would be unreasonable to

expect the attorney to seek out a third judge t o seal the

tapes after Judge Elliot had told him that waiting until

Monday would be sufficient.

X.

For the reasons explained above, we affirm the judgments

against the defendants.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

34