US v. London
Case Date: 09/18/1995
Court: United States Court of Appeals
Docket No: 93-1898
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UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT ____________________ No. 93-1898 UNITED STATES, Appellee, v. MICHAEL B. LONDON, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Mark L. Wolf, U.S. District Judge] ___________________ ____________________ Before Cyr, Circuit Judge, _____________ Coffin, Senior Circuit Judge, ____________________ and Bownes, Senior Circuit Judge. ____________________ ____________________ Henry D. Katz for appellant. _____________ Nina S. Goodman, Attorney, with whom, David S. Kris, Attorney, ________________ ______________ Department of Justice, Criminal Division, Appellate Section, Donald K. _________ Stern, United States Attorney, Dina M. Chaitowitz, Assistant United _____ __________________ States Attorney, and Michael Kendall, Assistant United States ________________ Attorney, were on brief for appellee. ____________________ September 18, 1995 ____________________ BOWNES, Senior Circuit Judge. After a trial that BOWNES, Senior Circuit Judge. _____________________ spanned the better part of two months, a jury convicted defendant-appellant Michael B. London of conspiring to conduct and actually conducting the affairs of an enterprise through a pattern of racketeering activity ("RICO conspiracy" and "RICO substantive"), money laundering, failing to file currency transaction reports ("CTRs"), conspiring to commit extortion, and aiding and abetting extortion. Subsequent to the jury verdict, London also pleaded guilty to tax evasion. For his crimes, London was sentenced to 188 months' imprisonment and fined $500,000. In addition, he agreed to forfeit $865,000. In this appeal, London challenges his convictions, arguing that the district court erred: (1) in failing to suppress certain evidence relevant to his counts of conviction; (2) in instructing the jury on the law regarding failure to file CTRs; and (3) in failing to grant his motion for a judgment of acquittal on the money laundering and RICO counts. After carefully considering the parties' arguments, we affirm. I. I. __ A. Factual Background A. Factual Background ______________________ London operated Heller's Cafe ("Heller's), a bar in Chelsea, Massachusetts. He also ran a check-cashing service, known as M & L Associates ("M & L"), out of a small enclosed -2- 2 area in the bar. M & L charged its customers a 1% or 1.5% commission on each check cashed. Both Heller's and M & L had at least one employee other than London. The evidence at trial demonstrated that bookmakers tended to frequent Heller's and to use M & L as a check- cashing service. Sometimes, M & L cashed bookmaker checks that banks would not accept. For example, some checks were neither made out by nor payable to the bookmakers (or bookmakers' agents) who were cashing them. Others were made out either to fictitious names or to real persons or entities who were not to receive the funds. London neither asked about the names on the checks he cashed nor required that the checks be endorsed. And before December 17, 1986 -- the day on which federal agents executed a search warrant at Heller's, see infra at 6 -- London never filed a CTR ___ _____ notifying the Internal Revenue Service ("IRS") of his many currency transactions involving more than $10,000. See 31 ___ U.S.C. 5313(a) (requiring financial institutions to report currency transactions in the manner prescribed by the Secretary of the Treasury) and 31 C.F.R. 103.11(i)(3) ___ (check-casher is a financial institution) and 31 C.F.R. ___ 103.22(a)(1) (financial institutions must report all currency transactions involving more than $10,000 to the IRS). London's operating procedures were a boon to his bookmaker customers. Not only did London provide these -3- 3 customers with an immediate and untraceable source of cash to pay their various expenses (including gamblers' winnings), he enabled them to accept checks from their own customers. This, in turn, increased business volume, for the ability to pay gambling debts by check encouraged gamblers to make larger and more frequent bets. It also made it easier for out-of-state gamblers to do business with local bookmakers, and possible for some gamblers to pay debts with company funds (and thereby gamble with money on which they paid no taxes). London's promotion of bookmaking often took a more active form. In 1986, London operated a bookmaking operation with one Kenny Miller. He also helped run one Dominic Isabella's bookmaking operation while Isabella was ill. Finally, London acted as a "pay and collect" man for many of his bookmaker customers, making payments to winning gamblers and collecting payments from losers. London also assisted Vincent Ferrara, the leader of an organized crime group, in collecting "rent" (i.e., protection money) from bookmakers. London identified certain of his bookmaker customers to Ferrara, telling him "anybody I get you get." London then summoned the bookmakers to Heller's to meet with Ferrara, who demanded that they pay him anywhere from $500 to $1000 (or more) per month for "protection" and help in debt collection. London collected -4- 4 rent payments and, at least once, passed along a request for debt collection assistance from a bookmaker who had been induced to accept Ferrara's protection. As stated above, London never filed a CTR with the IRS prior to the execution of the search warrant on December 17, 1986. From December 18, 1986, through December 31, 1988, however, he filed 211 CTR's on behalf of M & L. Although London had instructed his customers to make certain that each check was for less than $10,000, London did cash individual checks that were in amounts greater than $10,000. When he cashed a group of checks for the same customer, London would often deposit the checks on different days or in different bank accounts. There was testimonial evidence tending to indicate that London was aware of the statutory and regulatory reporting requirements during the period in which he failed to file any CTRs with the IRS. B. Procedural History B. Procedural History ______________________ On October 28, 1986, in response to an application and affidavit made pursuant to an on-going investigation of London, his businesses, and his associates, the district court issued two orders authorizing the government to conduct electronic surveillance at Heller's. The first order authorized, for a thirty-day period, the interception of oral communications in and adjacent to the enclosed area in which M & L operated; the second authorized, also for a thirty-day -5- 5 period, the recording of wire communications made from two telephones located behind the bar. In order to minimize the interception of otherwise non-interceptable communications, the court's orders limited surveillance to times when named targets of the investigation were on Heller's premises. On December 3, 1986, the court extended each of the orders for an additional thirty days. Evidence derived from these interceptions was introduced against London at trial. On December 17, 1986, federal agents applied to a magistrate judge for a warrant authorizing them to search Heller's for evidence of unlawful gambling, loansharking, distribution of narcotics, money laundering, and failure to file CTRs. The magistrate judge issued the warrant, authorizing the agents to search "Heller's Cafe, which occupies the first floor and basement of 110 Chestnut Street" and to seize "books and records, ledgers, correspondence, notes, slips, checks and any other documents, including bank records, which reflect unlawful gambling, loansharking, narcotics distribution, and failure to file currency transaction reports; and U.S. currency which constitutes proceeds of these offenses." The agents executed the warrant later that day, and seized, inter alia, almost all of the _____ ____ records found in the enclosed area from which M & L operated. Evidence seized in the course of this search was introduced against London at trial. -6- 6 On April 11, 1990, a federal grand jury returned a two-count indictment charging London with income tax evasion. On May 10, 1990, the grand jury returned a fifty-one count superseding indictment charging London with, inter alia, the _____ ____ counts of conviction: one count of RICO conspiracy, 18 U.S.C. 1962(d); one count of RICO substantive, 18 U.S.C. 1962(c); twelve counts of money laundering, 18 U.S.C. 1956(a)(1); twelve counts of failing to file CTRs, 31 U.S.C. 5313(a) and 5322(b); one count of conspiring to commit extortion, 18 U.S.C. 1951; two counts of aiding and abetting extortion, 18 U.S.C. 2 and 1951; and one count of tax evasion for tax year 1985, 26 U.S.C. 7201. On September 5, 1991, the grand jury returned a second superseding indictment which charged no new offenses but brought the indictment within the purview of the United States Sentencing Guidelines by extending the period of the alleged RICO conspiracy to after November 1987. On August 17, 1992, the district court orally denied London's previously-filed motion to suppress the evidence seized during the December 17, 1986, search of Heller's. On August 18, 1992, the court issued a written memorandum and order denying London's previously-filed motion to suppress the fruits of the electronic surveillance. Trial commenced on January 4, 1993, and concluded on February 19, 1993, when the jury returned guilty verdicts -7- 7 on the counts of conviction listed above. The other counts contained in the second superseding indictment either had been dismissed by the government prior to trial or were dismissed by the district court at trial. In addition, the jury acquitted London on one money laundering count. On June 30, 1993, the district court sentenced London. This appeal followed. II. II. ___ As set forth above, London's appellate arguments fall into three main groups. First, London takes issue with the district court's denial of his suppression motions. Second, London challenges the jury instructions given in connection with the counts of the second superseding indictment charging him with failing to file CTRs. Third, London makes sundry arguments that there was insufficient evidence to support his money laundering and RICO convictions. We discuss each of London's arguments in turn. A. Denial of the Motion to Suppress the Fruits of the A. Denial of the Motion to Suppress the Fruits of the _____________________________________________________________ Electronic Surveillance Electronic Surveillance _______________________ London contends that the district court erred in denying his motion to suppress the fruits of the electronic surveillance conducted at Heller's in 1986. He claims that the aforementioned surveillance ran afoul of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq. ("Title III") -- the federal statute that __ ____ governs electronic surveillance -- in five ways: (1) no -8- 8 Department of Justice official designated in 18 U.S.C. 2516(1) had authorized the local United States Attorney to apply for the initial interception orders; (2) the orders improperly allowed the government to monitor conversations relating to money laundering, which was not an offense for which interception could be ordered, see 18 U.S.C. ___ 2516(1)(a)-(o), on the date the interception orders issued; (3) the government intercepted and disclosed extortion- related conversations -- conversations pertaining to the paying of "rent" to Ferrara -- beyond the scope of the court's orders; (4) the court ordered and the government employed inadequate minimization procedures under 18 U.S.C. 2518(5); and (5) the government's application misled the district court as to the necessity for conducting electronic surveillance, in violation of 18 U.S.C. 2518(1)(c). Because we are not persuaded by any of these arguments, we affirm the district court's denial of the suppression motion. 1. Internal Authorization under 18 U.S.C. 1. Internal Authorization under 18 U.S.C. ___________________________________________________ 2516(1) 2516(1) _______ Title III compels local prosecutors to obtain internal authorization from a statutorily-designated Justice Department official prior to applying for a judicial interception order. 18 U.S.C. 2516(1). Failure to comply with this "central" provision of Title III requires -9- 9 suppression of the fruits of the unauthorized interception. United States v. Giordano, 416 U.S. 505, 524-29 (1974). As _____________ ________ noted, London contends that the initial interception application was not authorized by a statutorily-designated Justice Department official. London is mistaken. The government attached to its initial interception application the first page of a two-page authorization memorandum prepared on October 24, 1986, by William F. Weld, then the Justice Department's Assistant Attorney General for the Criminal Division, and the second page of the cover letter which accompanied the Weld memorandum, which was signed for Weld by Frederick D. Hess, the Justice Department's Director of the Office of Enforcement Operations of the Criminal Division. It is undisputed that Weld was a statutorily-designated official and Hess was not. In rejecting London's suppression motion, the district court found that Weld had authorized the interception application (as the application had stated) and that "the government committed a collating error by providing page one of the Weld approval letter followed by page two of a separate letter written by Hess to Robert S. Mueller, III, Acting United States Attorney for the District of Massachusetts." London does not dispute the accuracy of the district court's "collating error" finding; nor does he disagree that the finding would validate the application if -10- 10 the district court was empowered to look beyond the face of the application in deciding whether there had been proper authorization. Relying on United States v. Chavez, 416 U.S. ______________ ______ 562 (1974), and United States v. O'Malley, 764 F.2d 38 (1st ______________ ________ Cir. 1985), he instead argues that the finding cannot save the government's application because the district court was limited to a "facial analysis" of the authorization in determining whether a statutorily-designated official had approved the interception application. Even if his construction of Chavez and O'Malley is correct (an issue on ______ ________ which we express significant doubt but no formal opinion), the facial analysis London advocates reveals that Weld -- and not Hess -- authorized the interception application. London's argument hinges entirely on the fact that Hess signed on behalf of Weld the second page of the miscollated authorizing papers that were attached to the interception application. What it neglects to take into account, however, is that Weld signed the first page, which ____ states at the top that it is a memorandum from "William F. Weld, Assistant Attorney General, Criminal Division." Furthermore, that same first page clearly indicates that the Assistant Attorney General in charge of the Criminal Division (i.e., Weld) authorized the application: By virtue of the authority vested in him by Section 2516 of Title 18, United States Code, the Attorney General of the United States has by Order Number 1088- -11- 11 85, dated March 28, 1985, specially designated the Assistant Attorney General in charge of the Criminal Division to authorize applications for court orders authorizing the interception of wire or oral communication. As the duly appointed Assistant Attorney General in charge of the Criminal Division, this power is exercisable by me. WHEREFORE, acting under this delegated power, I hereby authorize the above-described [London] application to be made by any investigative or law enforcement officer of the United States as defined in Section 2510(7) of Title 18, United States Code. Finally, nothing in the text of either page of the papers presented to the district court even remotely suggests that Hess, and not Weld, authorized the application. We therefore reject London's argument that the initial interception application was not authorized by a statutorily-designated Justice Department official. 2. Interception of Conversations Relating to 2. Interception of Conversations Relating to _____________________________________________ Money Laundering Money Laundering ________________ Title III specifies the offenses for which an interception order may issue. 18 U.S.C. 2516(1)(a)-(o). Money laundering in violation of 18 U.S.C. 1956 was so specified by legislation that became effective October 27, 1986. Pub. L. 99-570, Title I, 1365(c), Oct. 27, 1986, 100 Stat. 3207-35. As noted, London argues that the initial interception orders authorized the interception of conversations relating to money laundering prior to the date on which money laundering was added to 18 U.S.C. 2516(1)'s -12- 12 list of offenses. Even if we assume arguendo that the ________ initial interception orders did authorize the interception of conversations relating to money laundering in violation of 18 U.S.C. 1956 (a position with which the government forcefully disagrees and on which we take no position), London's argument lacks a factual basis. London claims that the district court's initial interception orders issued on October 24, 1986, three days before money laundering became a predicate offense under 18 U.S.C. 2516(1). The record reveals, however, that the initial interception orders issued on October 28, 1986, not October 24, 1986. Thus, money laundering in violation of 18 U.S.C. 1956 was an offense for which an interception order ___ could issue at the time of the initial interception orders issued in this case. We therefore reject London's argument that the initial interception orders authorized the interception of conversations relating to money laundering at a time when money laundering was not a predicate offense under 18 U.S.C. 2516(1). 3. Interception and Disclosure of Extortion- 3. Interception and Disclosure of Extortion- ___________________________________________________ Related Related _______ Conversations Conversations _____________ With certain exceptions, Title III prohibits the interception and disclosure of conversations other than those relating to the offenses specified in the district court's -13- 13 interception order. See generally 18 U.S.C. 2511, 2517, ___ _________ and 2518(4)(c). As noted, London argues that the government wrongfully intercepted and disclosed certain extortion- related conversations (i.e., conversations concerning the paying of "rent" to Ferrara) despite the fact that the district court's initial interception orders did not specify extortion in violation of 18 U.S.C. 1951 as a target offense. London's claim of governmental overreaching in this context is without merit. Unlike London's first two arguments, the instant one is not built upon a faulty factual basis; extortion in violation of 18 U.S.C. 1951 was not a target offense listed in the government's interception applications or the district court's interception orders. This fact alone, though, does not make the interception of the "rent" conversations unlawful. Title III clearly contemplates that law enforcement officials will, in the course of intercepting conversations related to specified target offenses, intercept conversations "relating to offenses other than those specified in the order of authorization or approval." See 18 ___ U.S.C. 2517(5). For example, an intercepted conversation can relate to both a specified offense and to an unspecified ___ offense. In such a situation, the interception is unlawful only when it is motivated by an illicit purpose -- e.g., "subterfuge" interceptions where the government applies to -14- 14 intercept conversations relating to offenses specified in 18 U.S.C. 2516(a)-(o) while intending to intercept conversations relating to offenses for which interceptions are unauthorized or for which it has no probable cause to obtain an interception order. See United States v. Angiulo, ___ _____________ _______ 847 F.2d 956,980 (1st Cir.), cert.denied, 488 U.S. 852(1988). ___________ Here, the intercepted "rent" conversations clearly related to at least one offense -- operating a gambling business in violation of 18 U.S.C. 1955 -- specified in the initial authorization orders. The victims of the rent/extortion scheme were bookmakers involved in illegal gambling, and the intercepted conversations provided a means of identifying them. Moreover, the district court supportably found that there was no subterfuge involved in the initial interception applications. See Angiulo, 847 F.2d ___ _______ at 980 (clear-error reviewing standard applicable to finding that government's wiretap application was not subterfuge). Extortion, after all, is an enumerated offense under 18 U.S.C. 2516, and there would have been no need for the government to engage in subterfuge unless it suspected that extortion was taking place but lacked the probable cause necessary to intercept conversations pertaining to extortion. London makes no argument along these lines, and the record does not suggest this sort of governmental deception. The -15- 15 government's interception of the "rent" conversations was therefore not unlawful. We still must consider whether the government acted unlawfully in disclosing the rent conversations during the proceedings below. The government argues that the disclosure of such "other offense" evidence is permissible so long as the information is related to an offense listed in the initial authorization orders. Cf. United States v. Shields, ___ _____________ _______ 999 F.2d 1090, 1097 (7th Cir. 1993) ("Since the government was free to release this information to a grand jury anyway under the [authorization for the offenses listed in the Title III order], it is difficult to see how the defendants were harmed when the same facts were presented in the context of different offenses."), cert. denied, 115 S. Ct. 515 (1994). _____ ______ We need not reach the merits of this argument, however, because we conclude that the district judge who issued the initial interception orders impliedly and permissibly authorized the disclosure of the conversations at issue. Under 18 U.S.C. 2517(5), the government may secure a court's blessing to disclose the contents of an "other offense" interception in connection with a federal prosecution. The relevant statutory provision permits disclosure when the interception has been "authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were -16- 16 otherwise intercepted in accordance with the provisions of [Title III]. Such application shall be made as soon as practicable." Id. It is settled that disclosure ___ authorization "can be implicitly obtained when a judge grants a renewal of a wiretap after being advised of the essential facts of the unspecified violation." United States v. ______________ McKinnon, 721 F.2d 19, 23-24 (1st Cir. 1983). In other ________ words, "the disclosure in subsequent affidavits to the issuing judge of material facts constituting or clearly relating to other offenses satisfies the Government's obligation to seek judicial authorization for the disclosure and use of evidence inadvertently intercepted." Id. at 24 ___ (citations and internal quotation marks omitted). As the district court found in denying London's suppression motion, there was implicit authorization in this case. When the government applied for extensions of the initial interception orders, its attached affidavit advised the court of interceptions containing the essential facts of the extortion violations: London acts as a bank and account keeper for other bookmaking and loansharking operations . . . . [Also] London's illegal businesses, and the illegal businesses for which London keeps the accounts, only operate with the consent and protection of certain other persons, to whom London and others pay a percentage of their income . . . . Further electronic surveillance is necessary, however, to identify the balance of the members of each -17- 17 organization and the relationship between London, these organizations, and the persons to whom `rent' is paid, as discussed below. The attached affidavit then detailed London's relationship with Ferrara. Thus, the court's approval of the extension application constituted both an implicit finding that the extortion-related conversations were intercepted in accordance with the provisions of Title III and permission for the subsequent disclosure of the conversations. See ___ McKinnon, 721 F.2d at 23-24. ________ London complains that the affidavit not only failed to seek approval for subsequent interceptions of extortion- related conversations, but it also failed to alert the court that some of the intercepted conversations related to "other offense" evidence. While we certainly think it advisable that the government provide issuing courts with this type of notice, we note that it is not a sine qua non of implicit ____ ___ ___ authorization. We presume that the court read the supporting affidavit with care, and took seriously its obligation to police the interceptions that were taking place. We require no more to infer implicit authorization. Cf. id. at 23 ___ ___ (supporting affidavits describing communications related to other offenses sufficient to ground "reasonable . . . conclu[sion]" that issuing judge approved of their interception); see also United States v. Masciarelli, 558 ___ ____ _____________ ___________ F.2d 1064, 1068 (2d Cir. 1977) ("[W]e presume . . . that in -18- 18 renewing . . . the tap the judge carefully scrutinized th[e] supporting papers and determined that the statute's requirements had been satisfied.") (citation and internal quotation marks omitted). We therefore reject London's argument that the interception and disclosure of the extortion-related conversations violated Title III. -19- 19 4. Minimization under 18 U.S.C. 2518(5) 4. Minimization under 18 U.S.C. 2518(5) __________________________________________ Title III requires the government to conduct electronic surveillance "in such a way as to minimize the interception of communications not otherwise subject to interception." 18 U.S.C. 2518(5). Without specifying any wrongfully intercepted conversations, London asserts that there was inadequate governmental minimization during the interceptions at Heller's. Although London's argument on this issue is a bit disjointed, two alleged inadequacies emerge from his brief: (1) the court's order permitting surveillance whenever a named target was on Heller's premises (instead of a more restrictive order); and (2) the government's policy of recording all conversations carried out in Spanish unless and until a bilingual agent was available to make minimization decisions. In the circumstances of this case, we see no error in either the court's order or the government's policy regarding communications in Spanish. In assessing whether the government's minimization efforts pass muster under 18 U.S.C. 2518(5), we make an objective assessment in light of the facts and circumstances known to the government at the relevant points in time. See ___ Scott v. United States, 436 U.S. 128, 136-37 (1978). When _____ _____________ making this assessment, we tend to focus on (1) the nature and complexity of the suspected crimes; (2) the thoroughness -20- 20 of the government's precautions to bring about minimization; and (3) the degree of judicial supervision over the surveillance process. United States v. Uribe, 890 F.2d 554, _____________ _____ 557 (1st Cir. 1989); Angiulo, 847 F.2d at 979. We also are _______ mindful that Title III "does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to `minimize' the interception of such conversations." Scott, _____ 436 U.S. at 140. This means that "[t]he government is held to a standard of honest effort; perfection is usually not attainable, and is certainly not legally required." Uribe, _____ 890 F.2d at 557. London's minimization arguments do not call into question any specified acts of the intercepting agents; instead, they implicate the thoroughness of certain of the court's and government's minimization precautions. In other words, they amount to claims that an implicit requirement allegedly imposed on the government by Uribe and Angiulo -- _____ _______ that the government's precautions to bring about minimization ___________ be sufficiently "thorough" to pass muster under 18 U.S.C. 2518(5) -- has not been met in this case, and that suppression of all intercepted conversations is the appropriate remedy. Even if we assume arguendo that London ________ can win total suppression without challenging the propriety -21- 21 of any particular interceptions, we see no merit in his arguments. London characterizes as insufficient the court's "targeted individual must be on the premises" limitation by -22- 22 stating: Perhaps, an undercover agent acting as a patron, could [have] signal[led] when a target was talking on a particular telephone or near one of the bugs and thereby minimize[d] the intrusion into the privacy of innocent persons conversing at other locations. Perhaps monitoring agents could have been directed to cease monitoring at any device when a target was not heard on that device. He has not, however, effectively rebutted the government's colorful assertion, made both to the district court and on appeal, that "had an undercover agent remained inside the small, intimate . . . Heller's Cafe to relay a signal every time a target spoke into a surveillance device, London would have identified him as quickly as Ali Baba in his cave would have spotted a spy among his chosen forty." Nor has he rebutted the government's sworn assertion that "agents were instructed to and did cease monitoring when they determined that none of the targets was a party to [a] conversation or that only personal, non-criminal activity was discussed." In our view, the former of these two assertions is sufficient to respond to London's argument that there should have been an undercover agent inside Heller's, and the latter effectively undermines any suggestion that the monitoring agents were free to listen in on the conversations of non-targeted individuals. -23- 23 London's challenge to the government's policy regarding Spanish conversations is answered more easily: when an interpreter is not reasonably available, Title III explicitly allows full-scale recording and post hoc ____ ___ minimization of conversations carried out in foreign languages. See 18 U.S.C. 2518(5) ("In the event the ___ intercepted communication is in a code or foreign language, and an expert in that foreign language or code is not reasonably available during the interception period, minimization may be accomplished as soon as practicable after such interception."). Although the above-quoted statutory provision was not yet effective at the time of the interceptions here at issue (it was passed prior to the interceptions but went into effect thereafter), its existence as pending legislation renders objectively reasonable the government's policy -- which tracked the legislation -- regarding intercepted conversations carried out in Spanish. This was a complex case involving a sophisticated defendant, complicated financial dealings, and links to organized crime. In view of this, we cannot say that either the complained-of minimization precautions or the other minimization precautions ordered by the court and taken by the government were so lacking in thoroughness that they violated Title III. -24- 24 We therefore reject London's minimization arguments. 5. Necessity under 18 U.S.C. 2518(1)(c) 5. Necessity under 18 U.S.C. 2518(1)(c) __________________________________________ Title III dictates that the government's interception application include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. 2518(1)(c). We have interpreted this "necessity" provision to mean that the statement should demonstrate that the government has made "a reasonable, good faith effort to run the gamut of normal investigative procedures before resorting to means so intrusive as electronic interception of telephone calls." United States v. Hoffman, 832 F.2d 1299, _____________ _______ 1306-07 (1st Cir. 1987). London argues that the government's application misled the court as to the need for electronic surveillance by failing to mention that the government had not engaged in the following investigative techniques: (1) subpoenaing London's bank records; (2) utilizing two confidential informants -- Francis McIntyre and John DeMarco -- allegedly available to it; and (3) placing undercover agents inside of Heller's. London's claims are not convincing. The first and third of London's claims are difficult to fathom, as the affidavit attached to the -25- 25 interception application indicated both that the government did review London's bank records (during an unrelated ___ investigation) prior to applying for the interception orders and that undercover infiltration was not available because "surveillance observations have disclosed a high degree of consciousness by London and others to the possibility of law enforcement scrutiny" and because London "requires two known references prior to engaging in illegal transactions with a person." Other than making the general and unpersuasive argument that "visual surveillance by undercover agents" was ___ possible because Heller's "was fully accessible to the public eye" and had no "back rooms," London has not taken issue with the affidavit statements. See supra at 21 (noting, in a ___ _____ different context, London's failure to rebut the government's explanation why undercover agents could not insinuate themselves into Heller's). And he certainly has not explained how the affidavit statements themselves may have been misleading. We consequently see no factual basis for London's first and third claims. As to the claim that the government misleadingly failed to disclose the availability of McIntyre and DeMarco as informants, London has not even attempted to rebut, by pointing to contrary evidence, the district court's findings that, at the time of the initial application, the government reasonably believed (1) that McIntyre would not testify -26- 26 against London; and (2) that DeMarco's "investigatory potential . . . [was] immaterial to the investigation at Heller's." In light of this, we cannot say that these findings are clearly erroneous. See United States v. ___ ______________ Schiavo, 29 F.3d 6, 8 (1st Cir. 1994) (findings of fact made _______ after suppression hearing reviewed for clear error). And the findings plainly undermine London's contention that the failure to disclose McIntyre's and DeMarco's alleged investigatory potential violated 18 U.S.C. 2815(1)(c). We therefore reject London's argument that the government misled the district court as to necessity when applying for the initial interception orders. B. Denial of the Motion to Suppress the Evidence Seized B. Denial of the Motion to Suppress the Evidence Seized _____________________________________________________________ During During ______ the December 17, 1986, Search of Heller's the December 17, 1986, Search of Heller's _________________________________________ London argues that the district court erred in denying his motion to suppress the evidence seized pursuant to the December 17, 1986, search of Heller's -- i.e., almost all of M&L's business records, some of Heller's business records, and a significant amount of cash on the premises of Heller's that day. He characterizes as unconstitutionally overbroad the warrant's description of items to be seized: "books and records, ledgers, correspondence, notes, slips, checks and any other documents, including bank records, which reflect unlawful gambling, loansharking, narcotics distribution, and failure to file currency transaction -27- 27 reports; and U.S. currency which constitutes proceeds of these offenses." He also argues that the officials who executed the search could not have held an objectively reasonable belief that the overbroad language in the search warrant was constitutional. Because we disagree with the latter of London's two arguments, we repudiate his assignment of errorwithout assessingthe constitutionality ofthe warrant. It is well settled that "suppression is appropriate only if the officers were dishonest or reckless in preparing [the warrant] affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause." United States v. Leon, 468 U.S. 897, 926 (1984). ______________ ____ Here, London has not challenged the preparation of the warrant affidavit, identified any documents which allegedly were seized without probable cause, or argued that the executing agents exceeded the warrant's scope. Nor has he asserted that there was an absence of probable cause for some ____ sort of warrant to have issued. Assuming arguendo that ____ ________ London might still be entitled to suppression without having made any of these arguments, our inquiry reduces to whether the description of items to be seized was so facially defective that an objectively reasonable officer would have known of the warrant's unconstitutionality. We hardly think so. -28- 28 Even if the description of items to be seized might have been more particular, it was not patently overbroad when viewed in context. London operated a complex criminal enterprise where he mingled "innocent" documents with apparently-innocent documents which, in fact, memorialized illegal transactions. London also intermingled his legitimately-obtained and innocently-obtained currency. It therefore would have been difficult for the magistrate judge to be more limiting in phrasing the warrant's language, and for the executing officers to have been more discerning in determining what to seize. In similar circumstances, we have stated: We must . . . recognize that the inherent difficulty in segregating "good" from "bad" records, and consequently in drawing up an adequately limited warrant, makes it difficult for eve |