text:
    Debbie and Doreen SORIA et al., Plaintiffs-Appellees, v. OXNARD SCHOOL DISTRICT BOARD OF TRUSTEES, Defendant-Appellant.
    No. 71-2929.
    United States Court of Appeals, Ninth Circuit.
    Nov. 27, 1973.
    See also 9 Cir., 467 F.2d 59.

      Edwin M. Osborne, Ronald W. Sabo (argued), County Counsel, William A. Waters, Asst. County Counsel, Ventura, Cal., for defendant-appellant.
    Thomas E. Malley, Camarillo, Cal., John A. Childers (Legal Aid Assoc.), Oxnard, Cal., Peter D. Roos, Joel I. Edel-man (Western Center on Law & Poverty), Los Angeles, Cal., for plaintiffs-ap-pellees.
    David L. Norman, Asst. Atty. Gen., U. S. Dept, of Justice, Washington D. C., for intervenor U.S.A.
    Before CHOY and GOODWIN, Circuit Judges, and MeNICHOLS, District Judge.

       The Honorable Ray McNichols, United States District Judge for the District of Idaho, sitting by designation.

   CHOY, Circuit Judge:

Debbie and Doreen Soria and other elementary school students in the Oxnard School District (the Students) brought this class action for declaratory and in-junctive relief in the district court for themselves and all other similarly situated minority (Hispano/Negro) students. They alleged that the Oxnard School District Board of Trustees (the School Board/the Board) by certain acts and omissions had “consistently maintained and perpetrated a systematic scheme of racial segregation by capitalizing on a clear pattern of de facto racial segregation in Oxnard . . . .” Further, they charged that the Board had deprived them of equal educational opportunities in violation of the equal protection clause of the Fourteenth Amendment, and by reason of this destructive pattern of racial segregation had also deprived them of liberty in violation of that amendment’s due process clause. The Board denied the allegations of unconstitutional segregation and inequality, and asserted it had acted at all times in good faith without discriminating between racial and ethnic groups.

After a substantial volume of facts was obtained through discovery devices, the Students moved for summary judgment. Finding no material question of fact in dispute, the district court, 328 F.Supp. 155, granted summary judgment in favor of the Students and ordered the implementation of a desegregation plan for the district’s elementary schools. The School Board appeals. We vacate and remand for further proceedings.

Since at least 1964, the Board has maintained neighborhood schools pursuant to its policy declaration that: “The Oxnard School District shall establish and maintain neighborhood schools so far as it is practical to do so.” The Students do not claim that the attendance zones for these neighborhood schools have been intentionally gerrymandered by the School Board upon racial or ethnic considerations. Nor has the state of California or the- city of Oxnard ever maintained a “dual school system” wherein students have been assigned to schools on account of race or ethnic background. Indeed, since 1963 California law has required that school boards alleviate racial imbalance in the state’s schools, as far as reasonably feasible, regardless of the cause for the imbalance. Jackson v. Pasadena City School District, 59 Cal.2d 876, 31 Cal.Rptr. 606, 382 P.2d 878 (1963). Nevertheless, the facts adduced in the district court reveal the existence of a pattern of racial and ethnic disproportion within Oxnard’s elementary schools under the neighborhood school policy of the Board.

The Oxnard School District is relatively small, consisting of twelve elementary schools and two junior high schools with the greatest distance between any two schools being approximately four miles. The two junior high schools are conceded to be racially and ethnically integrated and are thus not a part of this action. The elementary school geographic attendance zones are demo-, graphically grouped into three definable areas of the city. The Colonia in the eastern part of the city is primarily Hispano/Negro; the Northwest which is populated almost exclusively by An-glos; and the Southcentral where the racial and ethnic population is more evenly mixed.

The percentage breakdown of the district’s 7,483 elementary school students by racial and ethnic origin is 55% Hispano/Negro, 43% Anglo and 2% other. Prior to November, 1970 when the School Board instituted a busing plan permitting certain students to attend schools other than those assigned to their neighborhood, ten of the district’s twelve elementary schools were racially and ethnically imbalanced.

From the facts presented to the district court through discovery by answers to interrogatories, affidavits, and admissions of the School Board, the Students submitted seventy-four proposed findings of fact as required by a local rule of court. Except as to certain proposed findings deemed by it to be either con-elusionary or overly subjective, the Board stipulated to every finding of fact proposed by the Students. These proposed findings of fact reveal certain actions of the School Board since 1961 with regard to the location of new school sites, use of temporary mobile classrooms, adoption of integration plans, student busing plans, and the placement as well as teaching experience of the school staffs.

(1) New school sites — Between 1964 and 1966 the Board opened three new schools. Marina West opened in 1964, was built in the western extremity of the district and subsequently had a student enrollment which was 72% Anglo. In 1965 a new school was opened at the Rose Avenue site in the eastern section of the Colonia and thereafter had a student population which was 19% Anglo. Finally, the new Sierra Linda School was completed and opened for use in 1966. This school was located in the Northwest section of the city and had a student enrollment of whom 75% were Anglo.

The Board refused to agree to a proposed finding of fact that “the imposition of a neighborhood school plan on a racially segregated residential pattern had the foreseeable result of causing racially imbalanced attendance areas and therefore, such actions cast de jure overtones.” The Board claimed that new schools were constructed only in overcrowded neighborhoods requiring new facilities and that, in all cases, attendance zone lines for the new schools were drawn with regard to natural boundaries such as major streets and highways.

(2) Temporary classroom units— Since 1961 the Board has authorized the addition of temporary, mobile classrooms known as “portables” to certain schools. Portables were used first at the Colonia schools but were later added to schools in the Northwest and Southcentral regions. The Students contend that the School Board has “consistently placed portables in such a way as to keep Anglos' in Anglo schools and His-pano/Negroes in minority schools.” The Board, however, refused to concede this to be true and asserted that portables were placed only where required because of overcrowded conditions.

(3) Integration proposals — The Board failed to adopt any of several integration plans suggested by various public as-well as private groups and individuals. These include recommendations in 1963 by the N.A.A.C.P. that several oppositely imbalanced schools be paired, thereby reducing the disproportion of Anglos and Hispano/Negroes in each of the combined schools, and that certain boundary adjustments be made in the district. That same year the superintendent of the district suggested that “jig-sawed” boundary lines be drawn for the school attendance zones. In 1968 the Bureau of Intergroup Relations of the California Department of Education proposed changing certain boundaries, moving portables from Rose Avenue to majority inbalaneed schools in the district, transporting pupils from the Colonia to other schools and pairing various schools. A so-called “Princeton Plan” was presented to the School Board in February, 1969, as well as a plan which again recommended pairing certain schools and moving portables from the Colonia. Similar suggestions were received in November, 1969, and as a part of its Master Plan for the district, the Board resolved the following month to “[m]ove portables from Colonia sites to reduce crowding, and to facilitate classroom space in the north and west of town for integration use.” In February, 1970 a further resolution to relocate fourteen portable classrooms was adopted, and in April of that year specific schools outside the Colonia were scheduled to be the sites for these additional portables. However, in June the Board decided to postpone bids for the relocation and effectively rescinded the earlier resolutions.

The School Board rejected a proposed finding of fact that its failure to relocate portable classrooms to alleviate racial imbalance was “with knowledge of its results and cast overtones of de jure segregation.” The Board argued instead that its failure over the years to adopt various plans is not culpable since it was under no duty to affirmatively achieve more racial balance in the school district.

(4) Student bus transportation — Beginning in February, 1964 the School Board implemented an “open enrollment” plan for the purpose of alleviating “de facto” segregation in the district. This plan proved minimally effective. By October, 1965 only forty-seven students (there is no indication what percentage were Anglo or Hispano/Ne-gro) were attending schools in neighborhoods other than their own. The School Board revised its policy in 1970 when it authorized student busing in either of two situations. Where enrollment in certain grade levels at a school were overcrowded, students were to be transported to less crowded schools on a “last-enrolled — first-bused” basis. And as underenrollment in a school provided available space, students from throughout the district could choose to enroll in those schools.

The Board refused to admit a proposed finding that its busing policy “aggravated the already existing segregated pattern . . . [N] evertheless the Board continued it, allowing Anglo students to escape the Colonia; the Board did this with full knowledge of the seg-regative effect of its policy and hypocritically maintained that it was acting to alleviate segregation.” Rather, the Board asserted, its student busing plan was not a ploy to allow “white flight” from the Colonia, but was undertaken in the hope of bettering the district’s racial balance. Further it claimed that the busing plan in fact resulted in a better racial mix in the schools.

(5) Teacher placement and experience ■ — -As of June, 1970 there were 253 teachers in the school district of whom nineteen or 7.5 percent were His-pano/Negro. Each of the Colonia schools had a higher percentage of minority teachers than this district-wide average, with a total of ten His-pano/Negro teachers assigned to the three Colonia schools. Moreover, with an average teaching experience of 8.83 years for the entire district, all three Co-lonia schools were below this mean while Curren and Sierra Linda schools were above this average with 11.1 and 11.8 years respectively.

The Board controverted a proposed finding of fact that “the deficiency in Hispano/Negro teachers is manifest” and that the School Board “by hiring and placement of teachers, has stigmatized the District racially, and in particular, has stigmatized certain minority schools by making them more clearly racially identifiable.”

The School Board contended that additional facts showed that there was no discriminatory pattern in the district’s faculty hiring and placement policies. With regard to teacher experience, it pointed to the staff of Elm and Kalama Schools, where each school had less average teacher experience than any of the Colonia schools. Further, the Board asserted that an indication of its efforts to obtain quality teaching in the Colonia schools was the fact that the highest salary expenditure per pupil in the entire district was at Juanita School with Marina West ranking ninth. Finally, the School Board claimed that it has actively recruited Hispano/Negro teachers at a rate in excess of the state average.

In granting the summary judgment after considering all the facts submitted, the district court stated two independent grounds for its decision. First, citing Brown v. Board of Education (I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) it held that the maintenance of racially separate educational facilities provided inferior educational opportunities to the Students and therefore denied them their rights to equal protection of the laws guaranteed by the Fourteenth Amendment. Second, the court determined that “sufficient ‘de jure overtones’ established by the agreed-upon findings of fact . . . entitle plaintiffs to relief.” 328 F.Supp. 155, 157 (C.D.Cal.1971). The court ordered the School Board to propose a desegregation plan in compliance with the State Board of Education’s definition of a balanced school system so that no school differed from the racial-ethnic composition of the district as a whole by more than plus or minus fifteen percent.

After meetings between the parties, the Board submitted a proposed plan calling for the pairing of several schools and transporting of some students to school by bus. The district court approved this plan and ordered it into effect beginning in the 1971 fall school term. The Board attempted to stay the desegregation order by applications to this court and the Supreme Court, but these requests were denied.

The School Board does not challenge here, as it had done earlier in applying for stays, any part of the remedial desegregation plan which the district court ordered be implemented. Nor does the Board contend that in granting summary judgment for the Students the court acted precipitously by precluding the possibility of a trial on the merits. Instead, in arguing for reversal it maintains that the district court’s holding of “de jure overtones” was erroneous. Though it concedes that a significant part of the district is racially and ethnically imbalanced, the Board contends that such imbalance does not per se constitute a constitutional violation where the schools only reflect the racial and ethnic composition of the areas in which they are located.

The School Board argues that under Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) it is required to integrate the district schools only if it caused the racial imbalance. In Swann, which involved school districts having a long history of deliberate racial segregation, the School Board points out, the Court cautioned against blaming the school district for other factors which may have contributed to some extent to the composition of schools. Swann, supra at 22-23, 91 S.Ct. 1267. The Board mentions such factors as zoning laws, low cost housing, and private restrictive covenants. Since there is no finding here that the School Board deliberately maintained two sets of schools in its system in order to carry out a policy of separating students on the basis of race, the Board maintains that no constitutional violation has been established. “Absent a constitutional violation there would be no basis for judicially ordering' assignment of students on a racial basis. All things being equal, with no history of discrimination,, it might well be desirable to assign pupils to schools nearest their homes.” Swann, supra at 28, 91 S.Ct. at 1282.

The Students, however, contend that Swann does not provide support for the School Board’s position because the Court there was not faced with the issue of a school board’s accountability in a non-formally segregated school system. The Court did not reach the question “whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree.” Swann, supra at 23, 91 S.Ct. at 1279. Therefore, the Students maintain that the School Board’s accountability for its segregated schools resulting as a natural, foreseeable consequence of its acts and omissions remains open for this court’s consideration, regardless of any discriminatory motives behind such acts. The district court judge apparently ae-cepted this legal theory since it ruled that the Board’s contention that it had never intentionally or purposefully segregated its school system did not raise a disputed question of material fact for purposes of summary judgment. By so holding, the district court applied an improper legal standard for determining whether the Board had committed unconstitutional segregation.

In Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) the Supreme Court for the first time gave full consideration to a so-called “northern de facto■ segregation” case where public schools had been operated under no constitutional or statutory provisions which either mandated or permitted racial or ethnic segregation of students. The district court in Keyes held that through various acts such as school construction policies, gerrymandering attendance zones, use of so-called “optional zones,” and excessive use of'portable classrooms, the Denver School Board had engaged in an unconstitutional policy of deliberate racial segregation in the Park Hill section of the city’s school system. Affirming this finding of unconstitutional segregation, the Court held prerequisite the determination that the school authorities had intentionally discriminated against minority students by practicing a deliberate policy of racial segregation. The Court emphasized that the differentiating factor between so-called de facto segregation and the de jure segregation held constitutionálly impermissible in Brown v. Board of Education (I), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) was that in the latter case there was present a purpose or intent to segregate. Keyes, supra 413 U.S. at 208, 93 S.Ct.' 2686. Once a finding of intentional segregation is made, the school authorities must assume the affirmative obligation of converting their school system into a unitary one where “racial discrimination would be eliminated root and branch.” Green v. County School Board, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968).

Whether the School Board's acts and omissions here , constitute intentional segregation is disputed, at least by the Board. It refused to admit any of the Students’ proposed . findings of fact which suggested that it had intentionally created or maintained segregated schools, and sought to have this issue litigated at a trial. In opposing summary judgment before the district court, the Board submitted the affidavit of Doran W. Tregarthen, Superintendent of the Oxnard School District, who declared that the racial imbalance in Oxnard was the result of neighborhood population patterns and not of intentional segregation by the School Board; that student assignments, busing policies, portable utilizations and selection of school construction sites were all based upon sound administrative determinations; that no students from the Northwest schools were bused into the Colonia during 1970-1971 because of the over-crowded conditions then present in the Colonia which prohibited any additional students from enrolling in those schools; that the district had an active recruitment program for hiring Hispano/Negro teachers and compared well with other districts in the state in their hiring of such minority teachers. These facts, if accepted by the district court, would negate a finding of intentional segregation. It is impossible to divine what evidence the School Board would have proffered in support of its contention that “sound administrative determinations” were the basis for its actions. These raised factual issues which should have been resolved at a trial.

On a motion for summary judgment the role of the district court is limited, since it does not try the factual issues but must determine instead whether there are any such issues to be tried. United States v. Bissett-Berman Corp., 481 F.2d 764, 767 (9th Cir. 1973); Nyhus v. Travel Management Corp., 151 U.S.App.D.C. 269, 466 F.2d 440, 442 (1972); American Mfrs. Mut. Ins. Co. v. American Broadcasting—Paramount Theaters, Inc., 388 F.2d 272, 279 (2d Cir. 1967).

The district court’s conclusion from the agreed-upon facts that the School Board’s acts and omissions constitute “de jure overtones” is inconclusive and vague on the question of the School Board’s segregative intent. Although “overtones” certainly implies that there was present an intention to segregate, nowhere in either the district court’s opinion or the undisputed proposed findings of fact is this conclusion made explicit. As stated by this court: “If the district court were permitted to weigh the evidence and resolve issues in making its findings of fact and conclusions of law, we could properly find from the evidence here that the findings and conclusions should be sustained. It is necessary to determine, however, whether viewing the evidence as a whole and the inferences to be drawn therefrom in the light most favorable to the [party opposing the motion for summary judgment] it may be said that there is no genuine issue of fact,11 mindful also of the fact

“11. An issue of fact may arise from inferences to be drawn from the evidence, and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for a summary judgment. Cameron v. Vancouver Plywood Corporation, 9 Cir. 1959, 266 F.2d 535, 539.”

that there is no express finding to that effect by the district court.” United States v. Western Electric Co., 337 F.2d 568, 572 (9th Cir. 1964); see also United States v. Lange, 466 F.2d 1021, 1026 (9th Cir. 1972).

The Students cite Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill.1969), aff’d, 436 F.2d 306 (7th Cir. 1970) as supporting their contention that summary judgment should be upheld in this case, since that case involved issues similar to those here and the grant of summary judgment for the plaintiffs was affirmed. But, in Gautreaux the question of the housing authority’s intent to maintain residential segregation of the races by their choice of sites for public housing projects was not disputed. In three separate affidavits, employees of the housing authority admitted that racial quotas had been used in determining those sites. 296 F. Supp. at 909. Nor was it disputed that city aldermen vetoed proposed sites in the white area because the 90% Negro waiting list for public housing would have created a concentrated Negro population in those sections of the city. 436 F.2d at 308. That situation is clearly distinguishable from the one here, where the School Board claims that only legitimate educational interests motivated its actions, and denies that it had an intent to create or maintain segregated schools. See St. Helena Parish School Board v. Hall, 287 F.2d 376 (5th Cir. 1961); Branche v. Board of Education, 204 F. Supp. 150 (E.D.N.Y.1962).

This court’s decision in Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) does not require a conclusion contrary to the one reached here. In Kelly, the district court concluded after a trial on the merits that the actions of the school authorities constituted a constitutional violation. Affirming that determination we specifically made reference to the district court’s finding that: “While eliminating segregation for the students above the sixth grade level, the District, at the same time, aggravated the incidence of segregation at the elementary level by constructing two new elementary schools in the black residential area. This bifurcated neighborhood school policy of the Clark County School District is principally responsible for the aggravation of racial segregation in the elementary schools. . . . ” 456 F.2d at 105-106. There are no findings here as to the cause of the “segregation” in Oxnard’s elementary schools. Indeed, there is no designation as to which, if any, of the schools are in fact segregated as distinguished from being racially imbalanced. Only by inferring the necessary causation from the underlying facts could we conclude that any schools in Oxnard are segregated and that the segregation resulted from the School Board’s discriminatory actions or failure to take actions. This ease, however, arising from the grant of summary judgment precludes the drawing of those inferences against the School Board. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Crystal City v. Del Monte Corp., 463 F. 2d 976, 981 (5th Cir. 1972); United States v. Western Electric Co., supra 337 F.2d at 572.

The record in this case, aside from the various pleadings and motions of the parties, consists primarily of copies of minutes of the School Board’s meetings since 1956 and the School Board’s answers to hundreds of interrogatories propounded by the Students. Although voluminous, its value for purposes of this appeal is questionable. The School Board’s minutes are unenlightening since they merely acknowledge by recording the fact that certain actions were taken by the School Board. They contain no discussion of the options considered in making these decisions, and for the most part detail only the routine administrative decisions necessary in the normal operation of a school system. The School Board’s answers to interrogatories, apart from their being condensed into the proposed findings of fact, are similarly of slight value. Yet, this is not surprising since the purpose of such interrogatories is not to guide the court in deciding the relative merits of the issues, but rather to limit and clarify the issues for the parties in preparation for further trial proceedings. See 4A Moore’s Federal Practice at |[33.02 (2d ed. 1972). In effect, this leaves only the undisputed proposed findings of fact and the arguments of counsel upon which to decide if the School Board has practiced a deliberate policy of racial segregation. The cold record consisting of even colder m'aps, charts and statistics does not provide an adequate foundation for making such determination. See Bradley v. Milliken, [6th Cir. slip opinion, filed Dec. 8, 1972] aff’g 338 F.Supp. 582 (E.D.Mich.1971); Hoots v. Pennsylvania, 359 F.Supp. 807, 821 (W.D.Pa.1973).

Although the school district is a small one, this does not reduce the need for the full exploration of a trial, where evidence can be presented, witnesses examined and cross-examined. Consideration can there be given to the relative merits of the School Board’s contentions that in selecting school sites, determining attendance zones, assigning students, utilizing portables, and hiring and placing faculty, only justifiable criteria formed the bases for such actions. In this context, the credibility, and therefore the weight to be accorded the school officials’ testimony, is crucial (in determining whether there were available alternatives to those decisions, which would not have worsened the racial imbalance existing in the school system). United States v. School District 151, 301 F. Supp. 201, 226, 229-230 (N.D.Ill.1969), modified on other grounds, 432 F.2d 1147 (7th Cir. 1970).

The function of this court is not to determine whether there is sufficient evidence from which the requisite intent and cause of segregated schools can be deduced when there are no explicit findings on these questions and the parties raise contradictory inferences from the facts. “If reasonable inferences could be drawn . . . such that the issue would be submitted to the trier of fact, then [F.R.Civ.P.] Rule 56(c) leaves us no latitude and we must return that issue to the trier of fact, in this case the judge.” Empire Electronics Co. v. United States, 311 F.2d 175, 180-181 (2d Cir. 1962); see Consolidated Electric Co. v. United States, 355 F.2d 437, 440 (9th Cir. 1966).

Since the fall of 1971 the School Board has been operating under the district court ordered desegregation plan. We shall not at this time undo that result and the remedial integration order shall remain in effect subject to the district court’s discretion and final resolution of this litigation.

Vacated and remanded.

      . The racial and ethnic composition of the district’s twelve elementary schools was as follows :
      Hispano/Negro Students Anglo % Anglo Students
      Colonia
      Juanita School 40 606 6%
      Ramona School 25 507 4%
      Rose Avenue School 213 918 19%
      278 2031
      Northwest
      Curren School 85% 452 52
      Marina West School 71% 572 207
      Sierra Linda School 83% 598 88
      1622 347
      Southcentral
      Brittell School 65% 251 122
      Driffill School 25% 183 547
      Elm School 42% 171 228
      Harrington School 63% 232 134
      Kalama School 49% 320 323
      McKinna School 24% 131 421
      1298 1774
      Cal.Admin.Code, Title Y § 10421 provided : “For purposes of these regulations, a racial or ethnic imbalance is indicated in a school if the percentage of pupils of one or more racial or ethnic groups differs by more than 15 percentage points from that in all the schools of the district. . . . ”
      It is no longer open to question that Hispanos and Negroes may be grouped together for the purpose of determining whether a school or school system is unconstitutionally segregated since these groups suffer identical discrimination in treatment when compared with the treatment afforded Anglo students. Keyes v. School District No. 1, 413 U.S. 189, at 197-198, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) ; Cisneros v. Corpus Christi Independent School District, 467 F.2d 142, 144-145 (5th Cir. 1972). However, “[w]hat is or is not a segregated school will necessarily depend on the facts of each particular case.” Keyes, supra at 196, 93 S.Ct. at 2691. Such factors as the racial and ethnic composition of each school’s student body, the racial and ethnic composition of the faculty and staff as well as administration attitudes toward the school must all be recognized and taken into consideration as elements in the definition of a “segregated school.”

      . United States District Court, Central District of California, Rule 3 (g) states :
      1. There shall be served and lodged with each motion for summary judgment pursuant to Rule 56 of the F.R.Civ.P. proposed findings of fact and conclusions of law and proposed summary judgment. Such proposed findings shall state the material facts as to which the moving party contends there is no genuine issue.
      2. Any party who opposes the motion shall, not later than five (5) days after service of the notice of motion upon him, serve and file a concise “statement of genuine issues” setting forth all material facts as to which it is contended there exists a genuine issue necessarily to be litigated.
      3. In determining any motion for summary judgment, the Court may assume that the facts as claimed by the moving party are admitted to exist without controversy except as and to the extent that such facts are controverted by affidavit filed in opposition to the motion.

      . The School Board policy pertaining to student bus transportation states in Article 7, Section 607.3 : Enrollment Regulations — Pupils who reside within an attendance area established for the ensuing year, will have priority to attend that school. However, returning enrollees who are not in attendance by the end of the second week of school will abrogate their priority if classes at their grade levels have reached the district maximum. These children will be assigned to a school with available space. Pupils who move into an attendance area where the maximum enrollments for their grades in that school have been reached shall be assigned to a school where space is available.

        Article 5 Open Enrollment 605.1 — Purpose: In order to alleviate the problems related to de facto segregation, and as a convenience to parents, the Oxnard School District permits open enrollment throughout the district on a space-available basis.

        605.2 Individual Intradistriet Transfer: A parent may request a transfer of his child to attend a school outside his area of residence. Permission will be granted for the current year if space is available. Space available will be determined by average class size as established by the district.

        605.4 Transportation — Transportation to the new school becomes the responsibility of the parents ; however, transportation will be provided if there is space available on an existing bus route. Transportation provided under these circumstances may be discontinued whenever regularly authorized transportation requires the bus space.
      The following table shows the change in Anglo imbalance within the district after commencement of the revised busing plan.
      Colonia % Anglo % Anglo Before After Busing Busing
      Juanita School 6% 4%
      Ramona School 4% 3%
      Rose Avenue School 19% 9% .
      Northwest
      Curren School 85% 75%
      Marina West School 71% 71%
      Sierra Linda School 83% 81%
      Southcentral
      Brittell School 65% 57%
      Driffill School 25% 24%
      Elm School 42% 41%
      Harrington School 63% 54%
      Kalama School 49% 47%
      McKinna School 24% 24%

      . The parties submitted extensive sociological data and studies on the issue of whether racially imbalanced classes and schools materially affect the educational opportunities of minority students. But, we do not reach and therefore intimate no view on the merits of this question.

      . The United States intervening pursuant to 28 U.S.O. § 2403 contends the constitutionality of the “Broomfield Amendment,” Pub. L. No. 92-318, 86 Stat. 235, § 803 is drawn into question in this proceeding. A previous decision of this court on the School Board’s request for a stay of the district court ordered desegregation plan obviates further consideration of this issue. Soria v. Oxnard School District Board of Trustees, 467 F.2d 59 (9th Cir. 1972). We there held that § 803 has no retroactive effect in a case pending at the time of the statute’s effective date where the integration plan providing for student bus transportation is already in effect.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Joseph MANFREDI et al., Appellants.
    Nos. 922 to 926, Dockets 72-2278 to 72-2282.
    United States Court of Appeals, Second Circuit.
    Argued May 24, 1973.
    Decided Nov. 23, 1973.

      Lawrence K. Feitell, New York City, for appellant Manfredi.
    Irving Anolik, New York City, for appellants Joseph LaCosa, Frank LaCosa, Schrader and Cassarella.
    Lewis E. Alperin, Mount Vernon, N. Y., for appellants Yanni and Colangelo.
    Pierre N. Leval, New York City, for appellant Mayo.
    John M. Walker, Jr., Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for the Southern District of New York, Kenneth R. Feinberg and Richard J. Davis, Asst. U. S. Attys., of counsel), for appellee.
    Before KAUFMAN, KILKENNY  and OAKES, Circuit Judges.

       Of the Ninth Circuit Court of Appeals, sitting by designation.

   OAKES, Circuit Judge:

This appeal is from convictions arising out of the operation of a large-scale narcotics ring from suburban New York and New Jersey which supplied dealers and distributors in Harlem. Questions are raised both as to the sufficiency of the evidence and as to the reception of evidence obtained from wiretapped and recorded telephone conversations. A number of the questions of law involved were also sub judice by another panel of this court in United States v. Bynum, 475 F.2d 832 (2d Cir. 1973). There was in that case a remand to the district court for an evidentiary hearing in respect to legality of the wiretap evidence; a decision in this case was withheld pending that evidentiary hearing and the opinion of the Bynum panel after remand, which has now been filed. United States v. Bynum, 485 F.2d 490. (2d Cir. 1973). Some of the questions, particularly with respect to the necessity for “minimization” of the wiretaps and of what that minimization should consist were answered by the court in Bynum and in part on the basis thereof we affirm the judgments below.

For treatment of the issues involved here, however, we must recount the evidence specifically and in some detail recount the wiretap evidence, that is to say, the evidence obtained by use of the wiretaps and the way in which the wiretaps were conducted.

I. THE FACTS

A. The evidence prior to the wiretaps. The overall proof of the Government was to the effect that Joseph La-Cosa was the most visible member of a family narcotics business involved in distributing millions of dollars’ worth of heroin and cocaine in the period between April 1970, and April, 1972. His principal, if not sole, source for the heroin was, according to the Government’s ease, his uncle who lived in New Jersey, Joseph Manfredi, and one of his principal assistants was his cousin, the late Philip J. Manfredi. Other family members also convicted include his father, Frank LaCosa, and his cousin Timothy Schrader. All of these defendants and Vincent Yanni, Charles Cassarella and Robert Mayo, all of whom were distributors or dealers who purchased from the LaCosa-Manfredi family, and Anthony Colangelo, a supplier of cocaine, were convicted below on Count I of an indictment alleging a conspiracy to distribute narcotics in violation of 26 U.S.C. §§ 4705(a) and 7237(b) and 21 U.S.C. § 846. Joseph LaCosa was charged under Count II of the indictment with, and convicted of, “engages in a continuing criminal enterprise” involving narcotics in violation of 21 U.S.C. § 848 and under Count III with distribution of heroin in violation of 21 U.S.C. § 841

The Manfredi-LaCosa narcotics organization numbered among its customers Horace and William Marble, Herman Grant, Robert Roseboro, Thaddeus Byrd, and Garland Currie (now deceased), in addition to the other convicted defendants. Horace Marble, who was in partnership with Herman Grant in the heroin traffic in Harlem, met Joseph La-Cosa, under the name “Joey,” on April 10, 1970. Commencing with the purchase of one ounee of heroin on the following day, another ounce three days later, and then one-eighth of a kilogram, Horace Marble became a regular purchaser from Joseph LaCosa who, some- • times accompanied by Philip J. Manfre-di, personally delivered the heroin to Marble until October of 1971 when Marble was arrested. Marble alone purchased between one and two kilograms of heroin per week at prices of $23,500 for one kilogram and $46,000 for two kilograms from the summer of 1970 to October of 1971. Most of the deliveries took place at Third Avenue and 76th or 86th Street in New York after a telephone call from LaCosa to Marble, with payment being made for the preceding shipment each time. William Marble, who was involved in his brother’s distribution organization, sometimes received the telephone calls from LaCosa and relayed messages to his brother or occasionally himself picked up heroin from LaCosa or Philip J. Manfredi, including some smaller amounts for his own use. While it is nothing new perhaps to the avid readers of Second Circuit opinions, it might be mentioned that a purchaser such as Horace Marble with his 20-per-son heroin milling and distribution organization was engaged in an operation so widespread that each of the 17 or so sellers in the group supplied about 50 addicts with heroin. Each kilogram of heroin purchased from LaCosa produced about 600 “bundles,” each bundle consisting of 25 “bags,” the “bags” in turn each selling for five dollars on the street, so that the street value of each kilogram was about $75,000. Joseph LaCosa, who was not one to hide his light under the proverbial basket, identified his heroin connection to Horace Marble as his uncle, who LaCosa said was “big and in organized crime,” adding that his uncle picked up the heroin from the trunk of a car in New Jersey. LaCosa also told Horace Marble that he had another customer in the District of Columbia who purchased four kilograms of heroin per week, so that Marble was only his second biggest customer. Marble once totaled the bills he received from LaCosa for heroin delivered to him as close to one million dollars.

In the latter part of 1970 Joseph La-Cosa, who apparently had access to more narcotics than Horace Marble and his Washington, D. C., customer could buy, asked Horace to locate additional dealers for him. Marble introduced him to Robert Roseboro, who testified for the Government. Roseboro had his own heroin milling operation and purchased half-kilogram packages on a bi-weekly basis with deliveries made at the Gracie Square Hospital where Roseboro was on methadone maintenance. On December 15, 1970, Roseboro delivered a half-kilogram of heroin obtained from LaCosa to Agent White of the Bureau of Narcotics and Dangerous Drugs (BNDD) and was then arrested and agreed to cooperate with the Government. After his arrest he met LaCosa while under surveillance and at these meetings LaCosa bragged about his new Cadillac and his new swimming pool and agreed to meet a “customer” from Detroit. Roseboro in turn agreed to pay LaCosa $3,000 which he owed him at his (Roseboro’s) apartment. At the apartment LaCosa told Roseboro that his own uncle was his boss and that his uncle’s name was “Joe.” The purchaser from Detroit, who was a Government agent, put $12,700 in the glove compartment of a rented car and, with Roseboro, met LaCosa at Second Avenue and 70th Street. LaCosa took the car to First Avenue and 84th Street where he abandoned it and joined Philip J. Manfredi in a Cadillac registered to Timothy Schra-der. As the Cadillac moved uptown, LaCosa was observed showing a quantity of money to the driver but La-Cosa did not return with the heroin as planned. He later told Horace Marble that he believed (quite correctly) that he was being followed by the police. Through Marble, the half-kilogram of heroin was delivered by LaCosa to the Government agent.

Moving to the spring of 1971, Thaddeus Byrd, a gas station attendant, was a drug courier for and in the gypsy taxi business with one Garland Currie, a narcotics dealer and another one of Joseph LaCosa’s customers. Byrd, with Currie, met LaCosa, identified as “Duke,” and subsequently picked up heroin from and delivered money to him on Currie’s behalf, generally at 80th Street and Lexington Avenue. LaCosa instructed Byrd to use the code word “shirt” for heroin in telephone conversations — just as he had done in transactions with Roseboro. Byrd discussed narcotics over the telephone with LaCosa and, working for Currie, often bought up to two kilograms of heroin in a series of purchases. Byrd was stopped on October 17, 1971, by Agent White of the BNDD after he had delivered money to LaCosa for Cur-rie. Currie died before Byrd saw him again, but Currie’s partner, Fred Powell, continued in the business, with Byrd purchasing narcotics twice more from LaCosa.

B. The wiretap evidence and accompanying surveillance. On the basis of affidavits by the Rockland County District Attorney, Robert Meehan, State Investigator John Crodelle, and BNDD. Agent Frank White, telephonic interception was requested on a 24-hour-a-day basis at the LaCosa home at 11 Daisey Court, Nanuet, New York, and the Man-fredi-Schrader home at 10 Sable Court, West Nyack, New York. The affidavit of Crodelle specifically stated: “Your deponent recognized that not all the conversations occurring over the subject telephones will pertain to the said narcotics violations, and accordingly your deponent agrees to limit the seizure of conversations to those specifically pertaining to the aforementioned Penal Law violations.” Justice Sweeney of the New York State Supreme Court issued warrants commencing on September 17, 1971, for wiretaps on both phones permitting law enforcement authorities “to intercept, eavesdrop, listen to and make copies of conversations . . . concerning penal law violations pertaining to the crimes of criminally selling a dangerous drug in the first degree, criminal possession of a dangerous drug in the first degree, and conspiracy to commit violation of the aforesaid sections of law.” There was an extension of these orders to November 14, 1971 Surveillance was continuous with monitoring agents of the BNDD taking eight-hour shifts, the only exception being when the Daisey Court LaCosa instrument was out of order between September 30, 1971, and October 20, 1971. During this period every conversation was listened to and recorded. Brief notes on the content of the conversations were made in log books maintained by the monitoring agents. Transcription summaries of conversations were then prepared from the tapes; calls thought to be “non-pertinent” were described only briefly in these transcript summaries. Calls thought by the transcribing agents to be pertinent — some shrouded in the code language recounted above and below— were more fully summarized in the transcript sheets. Verbatim transcriptions were prepared of conversations which were obviously pertinent to the case under investigation.

Twenty-seven conversations were offered in evidence and 24 were admitted. Shortly after installation of the interception device at 11 Daisey Court on September 17, 1971, at 5:03 p. m., appellant Cassarella ordered double what he got “the last time” from Joseph LaCosa with delivery to be that night. Seven minutes later “Benny” spoke with Frank LaCosa and arranged for a delivery the following week, Frank assuring him that, if he got the money on one day, the “stuff” would be available the next day, or “if it’s early enough you can have it the same night. . . . ” Three days later at 9:35 a. m. “Vinnie” called Philip J. Manfredi at 10 Sable Court, and at 3:27 p. m. ordered “two shirts” from Philip which the latter agreed to deliver at 7:00 p. m. After a further conversation at 5:20 p. m. between Vinnie’s man “Alex” and Philip J. Manfredi it was agreed that delivery would be at the “frankfurter place” on Third Avenue and 86th Street where the Marble deliveries were generally made. Following that call, Agent White observed Philip J. Manfredi leave 10 Sable Court at 6:10 p. m., enter the Schrader Cadillac and drive to Third Avenue and 86th Street in Manhattan where at 7:10 p. m. he got out of the car. Shortly after that he was arrested. Later that evening Philip’s sister, Josephine, discussed the arrest .over the telephone at 10 Sable Court with “Roe,”, stating that Philip had a “quarter” on him and advising “Roe” to “clean up” her house. Following Philip J. Manfredi’s arraignment on September 21, Timothy Schrader phoned from the courthouse to Joseph LaCosa at 11 Dais-ey Court and instructed him to “take the money and put it in a suitcase” and to take “the guns” to his aunt’s house “to be safe.” On September 23, 1971, at 7:47 p. m., “Frankie” called Joseph La-Cosa at 11 Daisey Court and after some preliminary conversation pertaining plainly to Philip's arrest three days before asked him if he had seen his “friend” the other night, by which it may be inferred he meant his connection for narcotics. LaCosa replied that his friend had told him to “go over there tomorrow afternoon.” Frankie told him to “let me know .... [Clause ah desperation sitting here.” LaCosa did in fact go to his uncle’s house the following day, September 24, 1971, and left it at 6:00 p. m. whereupon he drove back to 11 Daisey Court, Nanuet, his own house. There, at 8:00 p. m. on the evening of the 24th, he received a phone call from appellant “Butch” Yanni who, again after some preliminary talk about Philip’s arrest, asked him “if we can do anything.” LaCosa replied that he “missed the guy tonight” and that he “just missed him by five minutes.” Yanni indicated that he might go to “the guy in the Bronx” (another supplier) but that he didn’t want any “hard feelings” on LaCosa’s part. Two days later at 8:10 p. m. Yanni again telephoned Joseph LaCosa to find out “what’s happening?” and was told to wait until “tomorrow” when he would be seeing “him” (his connection) at “two or. three o’clock in the afternoon.” The next day, September 27, 1971, Joseph LaCosa left 11 Daisey Court at 1:15 p. m. and drove to Joseph Manfredi’s house at 115 Kipp Avenue, where he arrived 45 minutes later. The surveillance agent, White, passed the house and saw Joseph Manfredi standing in the driveway. White then followed LaCosa toward the New Jersey side of the George Washington Bridge, whereupon LaCosa, going 85 to 100 miles per hour, lost the agent, who was only doing 75 to 80. The agent, however, went to LaCosa’s residence at 11 Daisey Court and saw him drive a 1971 Cadillac back into his garage at 4:30 p. m. Twenty-five minutes later Joseph LaCosa telephoned Yanni and scheduled a meeting for 11:00 p. m. that night. He later telephoned William Marble also to arrange a meeting and shortly after midnight that night the surveilling agents observed a series of half a dozen cars, including the proverbial late-model Cadillacs and Lincolns, enter the LaCosa garage at 11 Daisey Court at ten-minute intervals, each car staying in the garage for five minutes or so and then leaving the area. A jury might assume that they were not arriving for purposes of oil changes or motor repairs.

On September 28, 1971, the following day, at 6:55 p. m. Yanni called Joseph LaCosa and confirmed a meeting at 9:00 p. m. that night and asked if he could get an “extra shirt or two” to which Joseph LaCosa replied, “By tomorrow.” At 8:00 p. m. Joseph LaCosa received a call from an unidentified male telling him to wait “if I am a little late.” At 8:20 p. m. Yanni called and asked “how long it will be before you get another shirt down.” LaCosa replied “the next day or even tomorrow night,” whereupon Yanni explained “ ’Cause he asked me for four more.” They agreed to meet the following night. On September 29 at 9:35 p. m. Yanni telephoned Joseph LaCosa to tell him that he was waiting for “that guy” and invited LaCosa to drop by late that night for the money. LaCosa agreed to meet Yanni the following day and said that “the four shirts” were definite. In the light of the non-wiretap testimony from the Marbles, Byrd and Roseboro, a jury might have assumed that these calls did not have to do with men’s furnishings.

Earlier on September 29, LaCosa had called Thaddeus Byrd setting up a meeting for that night and complaining that Byrd’s last payment of $20,000 was short by $1,000; LaCosa also called William Marble asking for Horace Marble and arranging for a pickup of $1,300 that night from William.

On September 30, 1971, Agent White followed Joseph LaCosa to Yanni’s house in New City, New York, where he arrived at'12:30 a. m., that is, later the night of the 29th; photographs in evidence showed LaCosa entering and leaving the house.

At 8:00 p. m. on October 28, Agent White observed Charles Cassarella enter his residence in Queens. Twenty-five minutes later Cassarella called Philip J. Manfredi at 10 Sable Court to ask Phillip whether LaCosa would “do that thing for me or not,” complaining that “these guys keep bothering me every day.” Phillip’s reply was “Don’t worry, we’ll let you know, all right?”

On November 6, 1971, at 5:40 p. m. Joseph LaCosa placed a telephone call to appellant Anthony Colangelo. Colangelo insisted on a meeting at 7:45 p. m. that evening to deliver a “pair of pants” which is a commonly used narcotics code word for cocaine. LaCosa agreed and Colangelo told him to bring the price of one pair of pants.

C. Additional evidence. On March 14, 1972, searches were conducted pursuant to warrants at the LaCosa home at 11 Daisey Court, the Manfredi-Schrader home at 10 Sable Court, and the Yanni home at New City, New York. Much additional evidence was obtained. This evidence included slips of paper bearing references to the defendants on trial and substantial numerical figures identified by Horace Marble as similar to bills of account he received from Joseph La-Cosa; an address book bearing names and telephone numbers of the conspirators Grant, Marble, Mayo and Byrd at the home of the Schraders; $39,764 in cash in Timothy Schrader’s bedroom; and other miscellaneous items. Three days later, with the use of the address book, Agent Siegel called various telephone numbers found in it. One was that of Herman Grant with whom Siegel as “Joey LaCosa’s cousin Dominick” arranged to deliver a “couple of shirts.” In return for the “shirts” he received $18,000, following which Grant was arrested. Agent Siegel also called Anthony Colangelo with the use of*the LaCosa address book with the same story. Col-angelo asked the price, to which Siegel replied $12,000. Colangelo said he wasn’t sure and didn’t know whether he would take them. At that point a telephone next to Siegel rang loudly in the BNDD headquarters. Colangelo stated that he didn’t know anyone by the name of Joey LaCosa and that Siegel must have the wrong party and hung up. Siegel also called Robert Mayo with the same story. Mayo “agreed to take them,” that is to say, the shirts, and Mayo said he didn’t owe LaCosa any money and that they should meet at the “usual place” which he defined as 126th Street and Fifth Avenue. Mayo did not show up, so Siegel telephoned him again and Mayo subsequently said he couldn’t handle the shirts.

On April 30, 1972, Agent White arrested Joseph Manfredi and, after proper warnings, on the way to New York Manfredi stated to White that he thought that the Bureau of Narcotics was going to place him under arrest at the time that Philip J. Manfredi had been arrested in September, 1971. In addition a summary of telephone records was stipulated into evidence which indicated among other things that in the first four months of 1971 there were 64 ■ calls from the Daisey Court telephone to a telephone in the name of Diane Marble, that is to say, her husband, Horace, and in 11 days’ time in August and September of 1971, 12 calls from that number to Robert Mayo, four calls from the Nanuet number to Tony Colangelo between November 8, 1971, and November 11, 1971, and 40 calls from Anthony Col-angelo to the Nanuet number between October 29, 1971, and November 8, 1971.

II. SUFFICIENCY OF THE EVIDENCE

A. Joseph LaCosa. There was ample evidence in the testimony of Horace and William Marble, Robert Roseboro and Thaddeus Byrd, independent of the wiretaps, to show that Joseph LaCosa was selling heroin and cocaine in a continuing series of weekly transactions with several distributors, the primary product pushed being heroin. To Horace Marble alone he sold an estimated one million dollars' worth in 17 months.

B. Joseph Manfredi. There was sufficient circumstantial evidence independent of hearsay declarations from which Manfredi’s participation in the conspiracy could be inferred. In United States v. Calabro, 449 F.2d 885, 889-890 (2d Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972), presence of the defendant with a codefendant when the eodefendant was engaged in a criminal enterprise, coupled with the defendant’s “patting down” an undercover agent, was held to be sufficient independent evidence to permit an inference of the defendant’s having associated himself with the criminal venture. See also United States v. Geaney, 417 F.2d 1116, 1120-1121 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970). This independent evidence may be completely circumstantial. Cf. United States v. Cassino, 467 F.2d 610, 618 n.21 (2d Cir. 1972), cert. denied, 410 U.S. 928, 93 S. Ct. 1363, 35 L.Ed.2d 590 (1973). By actual surveillance Joseph LaCosa was seen to try to meet his uncle at the times he told his customers he was going to meet his “friend.” After he did meet his uncle on one occasion he eluded Agent White on the return to his home and that same night there was a series of visits to his garage that can fairly be described as clandestine. The calls by Joseph LaCosa to his distrubors do not implicate Manfredi as such, but they do shed light on LaCosa’s conduct which in turn is circumstantial proof that Manfredi was supplying him with heroin. See United States v. Ruiz, 477 F.2d 918 (2d Cir. 1973); United States v. Pacelli, 470 F.2d 67, 69-70 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S. Ct. 1501, 36 L.Ed.2d 178 (1973); United States v. Calabro, supra. There was, then, sufficient independent evidence to establish Manfredi’s participation in the conspiracy to warrant introduction of hearsay statements against him. Glas-ser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680 (1942). These statements by Joseph LaCosa to Horace Marble and Robert Roseboro, recounted in the recital of facts above, established Manfredi as the supplier of heroin to LaCosa, thereby confirming the circumstantial evidence related above. They were made in the furtherance of the conspiracy, since LaCosa was obviously trying to impress his customers with the importance, connections, wealth and power of his uncle in order to build sound “customer relations.” They have a ring of reliability for this very reason. There is no requirement that the trial judge must find, before admitting a co-conspirator’s declaration, that it is neither “crucial” to the Government’s case nor “devastating” to the defense. United States v. Puco, 476 F.2d 1099, on petition for rehearing, 476 F.2d 1106, 1107 (2d Cir. 1973). Even if there were such a requirement, the hearsay declarations here were neither more “crucial” nor more “devastating” than the declarations in Puco itself. United States v. Puco, 476 F.2d at 1103-1105.

C. Frank LaCosa, Timothy Schrader, Charles Cassarella and Robert Mayo. Appellants Yanni and Colangelo do not contest the sufficiency of the evidence against them. Frank LaCosa’s house was used for the operation of the narcotics business, his garage was used as a delivery point, his Lincoln was used by his son Joseph for deliveries; more importantly perhaps his telephone conversation with “Benny” on September 17, 1971, implicates him clearly — he could deliver the “stuff” the day following receipt of the money or if it’s early enough in the day “you can have it the same night . . . this way they don’t think that they’re getting cheated.” Schrader’s house, telephone and cars were used by Joseph LaCosa and Philip J. Manfredi to arrange narcotics trans-' actions and handle deliveries; his telephone call from the courthouse and treasure trove of nearly $40,000 in cash permit the inference of participation and reward in the conspiracy. Cassarel-la’s calls were more guarded, perhaps, even than the others, but were in “narcotics code,” requesting “double” what he got “the last time,” inquiring whether Joey was “going to do that for me or not,” and in an obvious reference to his own customers, complaining that “these guys keep bothering me every day.” Robert Mayo, who was in Joseph La-Cosa’s address book, was a customer of the ring; Mayo was willing to do business with Agent Siegel masquerading on the telephone as “Joey’s cousin Dominick,” the business being the taking of “a couple of shirts” and at the “usual place”; that he had done a considerable amount of business was indicated by the numerous calls from 11 Daisey Court to Mayo at the end of August, 1971.

III. THE WIRETAP QUESTIONS

We omit reference to the question of constitutionality of the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, since United States v. Tortorello, 480 F. 2d 764 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973), and United States v. Bynum, supra, 485 F.2d at 499-500, have dealt with that issue adversely to appellants, noting that the very issue is before the Supreme Court in United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), cert. granted, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194 (1973).

The principal attacks made on the wiretapping here are (1) an omission in both the original and renewal warrant orders to require “minimization” under state law, CPL § 700.30, and (2) an alleged failure to minimize the interception of innocent conversation on the two telephones tapped, contrary to state law, CPL § 700.30, and federal law, 18 U.S.C. § 2518(5).

In dealing with the question of the validity of the warrants themselves, clearly a question of state law, it will be recalled that the Crodelle affidavit submitted to the state court judge in support of the petition seeking the wiretap order contained an agreement “to limit the seizure of conversations to those specifically pertaining to the aforementioned Penal Law violations.”

Neither the original nor renewal warrant orders, however, contained any directive to this effect. • CPL § 700.30 specifically says that “An eavesdropping warrant must contain: . ■ . . 7. A provision that the authorization to intercept . . . shall be conducted in such a way. as to minimize the interception of communications not' otherwise subject to eavesdropping under this article. . . . ” New York state judges have construed this requirement in different ways, Justice McGrover in People v. Solomon, 74 Misc.2d 926, 346 N.Y.S.2d 938, 941 (Sup.Ct.1973), holding that omission of that specific directive was “nothing more than a ‘de minimis’ oversight,” which would not vitiate an eavesdropping order, while Judge Werken in People v. Kennedy, 75 Misc.2d 10, 347 N.Y.S.2d 327 (Greene Cty.Ct. 1973), held a wiretap order fatally defective for failure to comply with the 700.30 requirement. Compare People v. Sher, 68 Misc.2d 917, 329 N.Y.S.2d 2 (Greene Cty.Ct. 1972), with People v. Heuston, 42 A.D.2d 860, 347 N.Y.S.2d 78 (1973) (3-2 decision) (re notice), and People v. Palozzi, 74 Misc.2d 774, 346 N.Y.S.2d 595 (Monroe Cty.Ct. 1973). No New York case, however, involves reliance in the order upon supporting affidavits which contain an agreement to “minimize.” In this case we feel free to analogize from United States v. Tortorello, 480 F.2d at 781, which, while it apparently did not consider the matter as controlled by state law, held that a New York state judge’s authorization order was sufficient to establish probable cause on the basis of facts alleged in the supporting affidavits. We feel it proper to read both the orders themselves and the minimization language of the supporting affidavits in “a commonsense and realistic fashion.” See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (probable cause); United States v. Desist, 384 F.2d 889 (2d Cir. 1967), aff’d, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). We read CPL 700.30(7) also as a summation of the more specific requirements of 700.30 subd. 1-700.30 subd. 6, all of which lead to “minimization.” So reading the state statute and the orders and affidavits, we do not find the orders vitiated by virtue of omission of the talismanic minimization language.

We turn now to the more difficult question whether, in this case, the eavesdropping was conducted so “as to minimize the interception of communications not otherwise subject to eavesdropping” under CPL § 700.30 subd. 7. This question is, like that of the facial validity of the warrant, one to be determined by reference to state law. Assessment of the minimization question necessarily ultimately depends upon the facts and circumstances of each case.

As previously stated, see text following note 4 supra, all calls incoming or outgoing over the two telephones involved were monitored and recorded irrespective of the identity of the parties engaged in the conversations. After the transcription of the conversations was accomplished in either summary or verbatim fashion, the tapes themselves were kept under lock and key. The court has examined both the monitor logs and the transcription sheets with some care in order to appreciate more fully the claims made by both the defendants and the Government with respect to minimization.

Our examination of state court decisions construing and applying CPL § 700.30 subd. 7 leads us to conclude that none of them is either dispositive or particularly indicative of how the New York courts would rule on the facts before us. The New York Court of Appeals has yet to consider this question. In People v. Holder, 69 Misc.2d 863, 331 N.Y.S.2d 557 at 569-571, the two defendants were under indictment for conspiracy to cause the felonious death of a third party. In that quite simple conspiracy, the fact that fewer than 10 per cent of the conversations recorded were relevant to the conspiracy appears to have been determinative of the court’s decision to suppress. In People v. Castania, 73 Misc.2d 166, 340 N.Y.S.2d 829, 833-836 (Monroe Cty.Ct. 1973), the court was faced with a gambling conspiracy more complex than the conspiracy in Holder but which cannot be equated with the conspiracy before this court. In Castania the court took account of the fact that only slightly over one-half of the conversations had been monitored, which, coupled with the court’s assumption that non-pertinent calls could have been recognized as such and not intercepted, dictated a finding that minimization had not been achieved. It is precisely that assumption made by the Castania court which cannot be made in this case. In People v. Kennedy, defendants were under indictment for possession of dangerous drugs and associated paraphernalia. The court, in dicta, indicated its disapproval of a practice under which only 10 per cent of the calls recorded were actually monitored, thereby virtually negating the possibility of minimizing the interception of calls.

These state cases, since they do not deal with complex, far-flung narcotics conspiracies, are not dispositive of the case before us. We feel free, in these circumstances, to consider the question of minimization under the language of 18 U.S.C. § 2518(5) and decisions thereunder, noting that the language of CPL § 700.30 subd. 7 virtually tracks that of the federal statute. We also note that in considering the question of minimization, the Holder court, 331 N.Y.S.2d at 571, and the Castania court, 340 N.Y.S.2d at 836, both appear to incorporate by reference lower federal court decisions addressed to this question.

We are aided by the trial court’s finding that the law enforcement agents here made a “good faith effort to minimize to the extent practical and electronically possible, within the peculiar circumstances of a narcotics conspiracy— which is one of the most difficult things to surveil and obtain evidence on that I can think of in modern law enforcement . . . ” We held in Bynum, 485 F.2d at 500, that “the mere fact that every conversation is monitored does not necessarily render the surveillance violative of the minimization requirement of the statute.” What Judge Tyler was talking about here was doubtless that in a narcotics conspiracy the use of code words and cover-up jargon and methods of dealing make investigation most difficult. Here, as in Bynum, “it is . obvious that no electronic surveillance can be so conducted that innocent conversation can be totally eliminated.” Id. at 500. Here there was testimony that “most” of the 1,595 calls intercepted were deemed to be “germane” to the narcotics investigation. In all candor, our examination of the logs and transcription sheets does not lend credit to that testimony. At the same time, here as in Bynum, the conspiracy unveiled was a huge business involving millions of dollars’ worth of narcotics, numerous distributors and highly complex, surreptitious telephone calls, with numerous callers, male and female, both in and out of the surveilled homes, occupied by persons at least one of whom was openly claiming to be connected with organized crime in the operation of the business. We too fail to see how any detailed screening instructions which could effectively minimize licit telephone interceptions could be devised under these circumstances. Here no claim is made that the Government could have formulated a pattern of innocent calls by which it could have avoided intercepting those. Here no claim is made that any privileged calls were intercepted.

Calls dealing with the narcotics conspiracy were made at all hours of the day or night, so that no minimization by non-use in certain time periods could be attempted. In the sampling of about 100 calls listened to by Agent White, he heard “very few” — indeed he did not remember hearing any — that did not relate to drugs or the proceeds obtained from drugs. Moreover, it is perfectly clear from the record that some seemingly innocuous calls were in fact related to the drug conspiracy; evidentiary significance could be ascertained only by comparison with other conversations involving the same persons or in the light of facts ascertained either independent of or as a result of the conversation. Finally, it was obvious that the purpose of the wiretaps was not simply to obtain evidence against the telephone subscribers but rather to ascertain the scope and extent of the drug conspiracy under investigation. Given all these facts, we believe that the Government made a pri-ma facie showing of compliance with the minimization provision, and we have the trial court’s finding of good faith, in monitoring all the calls from the two key numbers. While it may be that, as Judge Miller said in United States v. Focarile, 340 F.Supp. 1033, 1047 (D. Md.1972), aff’d sub nom., United States v. Giordano, supra, “[sjection 2518(5) requires the intercept procedure to be conducted so as to reduce to the smallest possible number the interception of ‘innocent’ calls,” in this instance the burden clearly shifted to the defendants to make some showing as to how this could be done. They make no suggestion even now. Here, as in By-num, there was no way to frame screening instructions so as to accomplish any non-recording of “innocent” calls. We do not believe that the statute goes further than to require that the methods used to effect minimization be in good faith and reasonable. Cf. Berger v. New York, 388 U.S. 41, 53, 87 S.Ct. 1873, 18 L.Ed. 2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 355, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It thus becomes unnecessary for us to determine whether a failure adequately to minimize requires suppression of all the conversations overheard, United States v. Focarile, 340 F.Supp. at 1047; United States v. Scott, 331 F.Supp. 233 (D.D.C.1971), or only nonincriminating conversations. United States v. Cox, 462 F.2d 1293, 1301-1302 (8th Cir. 1972); United States v. King, 335 F.Supp. 523, 543-544 (S.D.Cal.1971).

While appellants do not challenge the wiretaps on the basis of lack of probable cause, certain appellants argue that the application for the wiretap orders must be made by the district attorney in person appearing before the judge. While under CPL § 700.05 subd. 5 the “applicant” has to be a district attorney or the attorney general, and under 18 U.S.C. § 2516(2) the applicant must be the “principal prosecuting attorney” of any state or political subdivision thereof, this court held in United States v. Tortorello, supra, that the requirement of former § 794 of the CPL (now § 690.35, omitting the very language discussed in Tortorello) that “[t]he person seeking the warrant shall appear personally before the judge . ” related only to the law enforcement officers with personal knowledge who signed the supporting affidavits. Not only does Tortorello seem to us to make good sense, but the appellants fail to point to any language in the New York statutes in effect at the time of the issuance of the warrants here that would require any such personal appearance even of the law enforcement officers.

The argument that only the district attorney’s staff and the state police were authorized to monitor the wiretaps, but in fact federal narcotics agents did so, thus subjecting the wiretaps to attack under 18 U.S.C. § 2518(10) (a) (iii), is without substance. This was at all times a joint investigation, as found by Judge Tyler, and the Rockland County District Attorney specifically relied on BNDD Agent White’s affidavit in his application for the original authorizing warrant. It is beyond dispute that, whether decided as a matter of federal or state law, both statutory schemes specifically allow for the disclosure of evidence gained from an authorized wiretap by those authorized to appropriate law enforcement officials not mentioned in the wiretap order. The federal provision, 18 U.S.C. § 2517, and the New York state provision, CPL 700.65, both contemplate the type of cooperation among law enforcement officials which occurred in this case. See United States v. Forlano, 358 F. Supp. 56, 59 (S.D.N.Y.1973). If such information may be exchanged after the termination of the surveillance, we perceive no reason why that information may not be disclosed to cooperating agencies contemporaneously with its interception.

Finally, appellants argue that the postponement of notice of the surveillance to those persons named in the warrants until on or about June 3, 1972, some six months after the termination of the surveillance, was violative of 18 U.S.C. § 2518(8) (d) and CPL § 700.50 subd. 3, 700.50 subd. 4. No state cases having been brought to our attention on this point, we think that the proper perspective for viewing this question is correctly stated by the Third Circuit: United States v. Cafero, 473 F.2d 489, 500, petition for cert. filed, 42 U.S.L.W. 3018 (U.S. Mar. 26, 1973) (No. 72-1304). Given the complexity of the investigation that continued up until the moment that notice was given in this case, we are extremely reluctant to disturb Judge Tyler’s determination below that the postponement authorized by Justice Sweeney was reasonable under all the circumstances. It may be that this holding stretches the interpretation of the statutory provisions to constitutional limits, but if so, we note that none of the appellants have made or attempted to make any showing of preju-. dice to them as a result of the delay here.

If, in a given case, there is undue delay [in giving notice], that contention may be pressed in an appropriate averment alleging non-compliance with the statute. The vice of unreasonable delay is a factor to be measured within the contours of the statute, and should not be used to shape those contours into an unconstitutional form. Simply stated, the Congressional mandate places a premium on reasonable notice of the inventory. [C]ourts should exercise great care in granting extensions beyond the ninety-day period for the filing of inventories.

IV. CONSTITUTIONALITY OF 21 U.S.C. § 848

Appellant Joseph LaCosa’s conviction under Count II of the indictment was for “engaging in a continuing criminal enterprise” under 21 U.S.C. § 848(b), and resulted in a 30-year sentence and $100,000 fine thereunder. He argues that the statute is void for vagueness. See, e. g., Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939) (disorderly person); Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (vagrancy). While it may be true, as the Government argues, that only very infrequently has a federal statute been declared unconstitutional on vagueness grounds, e. g., United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921), this does not answer the basic question whether 21 U.S. C. § 848(b) is constitutionally vague. As Mr. Justice Douglas noted in Papa-christou, however, “In the field of regulatory statutes governing business activities, where the acts limited are in a narrow category, greater leeway is allowed.” 405 U.S. at 162, 92 S.Ct. at 843. In this respect § 848 is in a very real sense a regulation — a very severe one, to be sure — of the business of selling drugs. To constitute a “continuing criminal enterprise” there must be a felonious violation of the chapter which is a part of a “continuing series of violations” of Title II or Title III of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513 (Oct. 27, 1970), 84 Stat. 1242, 21 U.S.C. § 801 et seq. & 951 et seq. In addition, the violator must have been acting “in concert with five or more persons” and as to them occupy “a position of organizer, a supervisory position, or any other position of management.” Beyond this the violator, or person charged under § 848, must obtain “substantial income or resources” from the enterprise. Section 848 then goes to the business of trafficking in the prohibited drugs on a continuing, serious, widespread, supervisory and substantial basis. The conduct reached is only that which the violator knows is wrongful and contrary to law. See Screws v. United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945) (“But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law”). Prerequisite to conviction under § 848 is the commission of a series of felonies, each involving specific intent; that LaCosa did not suspect that his conduct was criminal and violative of law would be risible. See also United States v. Ragen, 314 U. S. 513, 524, 62 S.Ct. 374, 86 L.Ed. 383 (1942) (income tax evasion — element of bad faith avoids indefiniteness question in deducting of more than “reasonable” allowances for salaries). Cf. Hygrade Provision Co. v. Sherman, 266 U.S. 497, 45 S.Ct. 141, 69 L.Ed. 402 (1925); Omaechevarria v. Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763 (1918).

There is no doubt whatsoever that LaCosa was charged and tried for conducting what must be one of the biggest operations in hard drugs in the New York area; here, as in Williams v. United States, 341 U.S. 97, 104, 71 S. Ct. 576, 580, 95 L.Ed. 774 (1951), it “strains at technicalities to say that any issue of vagueness ... as construed and applied is present in the case.” See also United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). That is to say, it is irrelevant that a case may be hypothesized where it is difficult to determine whether a particular defendant were engaged in a “continuing criminal enterprise” under § 848. This serves to distinguish this case from cases like United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972), cert. denied, 410 U.S. 984, 93 S. Ct. 1506, 36 L.Ed.2d 18 (1973), in which a statute penalizing “organized criminal activity” without further definition was, despite doubts from the dissenter, upheld. Here, as in Petrillo, the statute might have been more artfully drawn, but no language has occurred or has been suggested to us that better expresses the congressional purpose. To sustain appellant LaCosa’s position would force us to hold that words cannot be devised to make it an offense to engage in the continuous sale and trafficking in heroin with a number of other people and with substantial sums of money changing hands; we feel that not to be the case and that, as applied to the conduct with which Joseph LaCosa was charged, see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the statute is not unconstitutionally vague. United States v. Collier, 358 F.Supp. 1351 (E.D.Mich.1973).

V. PRETRIAL PUBLICITY

Approximately two weeks prior to the commencement of.this trial, two nephews of Joseph Manfredi — Philip J. Man-fredi, who had previously been charged in the indictment under which this ease was brought, and Philip D. Manfredi— were executed in a vacant lot in Bronx County. The various media gave these executions extensive coverage. In the headlines of several New York newspapers 10 to 12 days before the trial there appeared such items as “TWO HOODS KILLED; FEAR DRUG WAR” and “SIX DRUG DEALERS VANISH, GANG WAR, SIX DRUG DEALERS MISSING.” There also appeared references to appellant Joseph Manfredi as a member of “organized crime” and a caption under a photo “TWO NEPHEWS BUMPED OFF; COPS THINK MAYBE FIGHT FOR DRUG BUSINESS.” Apparently television referred to a “$25 million narcotics ring.” The trial court refused to grant a continuance and conducted a voir dire, inquiring of the jurors whether- they had heard either on the radio or television or read any newspaper or printed account of “anything having to do with this case.” Only one of the jurors replied affirmatively, but she could not recall what she read; one other juror thought he might have read something, but wasn’t sure. The appellants argue that reference to Philip J. Manfredi’s name, coupled with his ab-senee from the trial and references to certain locations in the Bronx, “very likely supplied the catalyst for association by jurors” with what had been earlier disseminated by the media. It is the failure of the trial court to grant a continuance in view of the pre-trial publicity that is said to constitute prejudicial error, and it is argued that this case is one of such extreme “inherently prejudicial publicity” that the actual existence of prejudice in the jury box need not be shown. Cf. Hale v. United States, 435 F.2d 737, 746 (5th Cir. 1970), cert. denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L.Ed.2d 142 (1971).

But the publicity here did not deal with the issue of guilt or innocence in the case itself. United States v. Persico, 425 F.2d 1375, 1380 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L. Ed.2d 108 (1970); United States ex rel. Gallo v. New York State Department of Correctional Services, 335 F.Supp. 915, 918 (S.D.N.Y.1972). Moreover, the voir dire — which seems to have been conducted fairly — disclosed no recall of the 10-day-old stories. See United States v. Dioguardi, 428 F.2d 1033, 1039 (2 Cir.), cert. denied, 400 U.S. 825, 91 S.Ct. 50, 27 L.Ed.2d 54 (1970); United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1016, 10 L.Ed.2d 12 (1963); United States ex rel. Gallo v. New York State Department of Correctional Services, supra. In times of fast-moving news events of all kinds one really cannot be surprised at what appears to be a short memory on the part of the public generally or the cross-section of it included on a given jury panel. Appellants’ sense of their own importance in their analogizing this case to the Watergate is greater than this court’s. We do not believe, in short, that the trial court’s “broad discretion,” United States v. Persico, 425 F.2d at 1382, in this area of prejudice from pretrial publicity was here abused by the denial of the continuance. We point out that this is not a case of in-trial publicity like Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L. Ed.2d 1250 (1959), or Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L. Ed.2d 600 (1966). See also United States v. Palmieri, 456 F.2d 9, 13-14 (2d Cir.), cert. denied, 406 U.S. 945, 92 S.Ct. 2054, 32 L.Ed.2d 332 (1972).

Judgment affirmed.

      . Joseph LaCosa, his wife, Madelyn, and his parents, Frank LaCosa and Mary Manfredi LaCosa, lived at 11 Daisey Court, Nanuet, New York. Philip J. Manfredi, now deceased, his sister, Josephine Manfredi Schrader, and her husband, Timothy Schrader, lived at 10 Sable Court, West Nyack, New York. Joseph’s mother, Mary, is the sister of Joseph Manfredi whose home was 115 Kipp Avenue, Lodi, New Jersey. Philip J. Manfredi’s second sister, Dianne, is married to appellant Charles Cassafella, and their home is 2262 33rd Street, Astoria, Queens. Josephine Schrader, Dianne Cassa-rella and Philip J. Manfredi were the children of Urbano Manfredi, a deceased brother of Joseph Manfredi and Mary LaCosa. From time to time, the evidence discloses, Joseph Manfredi drove a 1970 Thunderbird registered to Frank LaCosa but at Joseph Manfredi’s New Jersey address, while Joseph LaCosa and/or Philip J. Manfredi often drove two Cadillacs registered to Timothy Schrader.

      . There were 13 other original defendants. Of these, three — Horace Marble, William Marble and Thaddeus Byrd — were severed prior to trial, pleaded guilty, and testified for the Government against the appellants liere. Three others were severed on the Government’s motion. Five others could not be arrested. Philip J. Manfredi was murdered prior to trial. Herman Grant was convicted with appellants, but murdered following the filing of his notice of appeal. Joseph Manfredi was sentenced as a second narcotics offender to 30 years’ imprisonment and a $25,000 commuted fine. Joseph La-Cosa was sentenced to 15 years’ imprisonment on Counts I and III and 30 years’ imprisonment on Count II with the prison terms to run concurrently and a $100,000 commuted fine. Frank'LaCosa was sentenced to 10 years’ imprisonment and a $15,000 fine, Vincent Yanni to eight years’ imprisonment, Charles Cassarella to six years’ imprisonment, Anthony Colangelo to 10 years’ imprisonment, Robert Mayo to nine years’ imprisonment, and Timothy Schrader to seven years’ imprisonment.

      . The telephone at 11 Daisey Court was listed in the name of Frank LaCosa and at 10 Sable Court in the name of Timothy Schrader.

      . This extension was obtained under the pro- ' visions of N.Y.C.P.L. § 700.40, McKinney’s Consol.Laws, c. 11A (McKinney 1971) [hereinafter cited as CPL].
      The original order permitting interception ran for 30 days beginning September 17 but was extended for 30 more days on October 15, 1971, upon the renewal affidavit of Investigator Crodelle and the renewal application of District Attorney Meehan. On November 23, 1971, Justice Sweeney ordered the postponement of notice to the owners of the two instruments and the sealing of the intercepted recordings after receiving returns as to both instruments from District Attorney Meehan. Meehan notified both Frank LaCosa and Timothy Schrader of interceptions on May 31, 1972.

      . For trial purposes, the Government selected 27 conversations intercepted from the instruments at 11 Daisey Court and 10 Sable Court. Of these, 24 were admitted into evidence at the trial, which are listed below. All of the conversations in evidence except two were intercepted in the period September 17, 1971, to October 5, 1971.

        No. Date Time Instrument Participants

      1 9/17 5:03 p.m. Daisey Ct. Cassarella/J. LaCosa
      2 9/17 5:10 p.m. Daisey Ct. F. LaCosa/“Benny”
      3 9/20 9:35 a.m. Sable Ct. Vinnie/Philip Manfredi
      6 9/20 3:27 p.m. Sable Ct. Vinnie/Philip Manfredi
      7 9/20 3:34 p.m. Sable Ct. J. LaCosa/unidentified male
      8 9/20 5:20 p.m. Sable Ct. Vinnie/Philip Manfredi
      9 9/20 5:30 p.m. Daisey Ct. J. LaCosa/Mrs. Marble
      10 9/20 7:45 p.m. Sable Ct. “Roe”/Josephine Schrader
      9:40 p.m.
      11 9/21 11:15 a.m. Daisey Ct. Timothy Schrader
      13 9/23 7:47 p.m. Daisey Ct. “Frankie”/J. LaCosa
      14 9/24 8:00 p.m. Daisey Ct. Yanni/J. LaCosa
      15 9/26 2:38 p.m. Daisey Ct. J. LaCosa/T. Byrd
      16 9/26 8:10 p.m. Daisey Ct. Yanni/J. LaCosa
      17 9/27 4:55 p.m. Daisey Ct. J. LaCosa/“Butch”
      18 9/27 6:52 p.m. Daisey Ct. J. LaCosa/Wm. Marble
      19 9/28 6:55 p.m. Daisey Ct. Yanni/J. LaCosa
      20 9/28 8:00 p.m. Daisey Ct. Unidentified male/J. LaCosa
      21 9/28 8:20 p.m. Daisey Ct. Yanni/J. LaCosa
      22 9/28 2:55 p.m. Daisey Ct. J. LaCosa/T. Byrd
      23 9/29 2:56 p.m. Daisey Ct. J. LaCosa/T. Byrd
      24 9/29 6:10 p.m. Sable Ct. J. LaCosa/Wm. Marble
      25 9/29 9:35 p.m. Daisey Ct. Yanni/J. LaCosa
      26 10/28 8:25 p.m. Sable Ct. Cassarella/Philip Manfredi
      27 11/ 6 5:40 p.m. Sable Ct. “Tony Cole”/J. LaCosa

      . Under § 700.30 of the CPL, the warrant must contain:
      1. The name of the applicant, date of issuance, and the subscription and title of the issuing justice; and
      2. The identity of the person, if known whose communications are to be intercepted ; and
      3. The nature and location of the communications facilities as to which, or the place where, authority to intercept is granted; and
      4. A particular description of the type of communications sought to be intercepted, and a statement of the particular designated offense to which it relates; and
      5. The identity of the law enforcement agency authorized to intercept the communications ; and
      6. The period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained; and
      7. A provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping under this article, and must terminate upon attainment of the authorized objective, or in any event in thirty days; and
      8. An express authorization to make secret entry upon a private place or premises to install an eavesdropping device, if such entry is necessary to execute the warrant.
      18 U.S.C. § 2518(5) reads in pertinent part as follows:
      (5) No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter. . . .

      . While we encourage cooperation between federal and state law enforcement agencies, we note that the Government, in allowing a joint investigation to proceed through the use of a state warrant, subjects itself to the risk that state courts may impose on such warrants and the evidence obtained under those warrants a higher standard than would a federal court dealing with interpretation of the federal wiretap statutes, Cf. California v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749, appeal dismissed (1973).

      . For example, the court’s examination of the Sable court transcript sheets revealed that over 800 of the more than 1,000 calls placed during the period in question were either designated as “non-pertinent” by the transcriber (s) or were calls to which there was either no answer or a busy signal. Only 150 or so calls were designated to be of possible interest.

      . Section 2510(4) defines “intercept” to mean “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device.” Section 2518(8) (a) requires that “[t]he contents of any wire or oral communication intercepted . . . shall, if possible, be recorded on tape or wire or other comparable device.” The recordings in turn must be kept under seal until authorized to be opened by court order. In this case, all conversations recorded were also monitored, so, as in Bynum, at 502 & n. 6, we need not reach the question whether the statute was intended to apply solely either to aural intrusion or mechanical recor-dation. Indeed, were all the calls not recorded, ingenious counsel might be claiming that exculpatory conversations or conversations that would place seemingly incul-patory conversations in context were omitted and Brady v. Maryland would be invoked. We also see no reason why, upon proper application by affected parties, subject to order of the court to which returns on the authorizing warrants were made, so-called “non-pertinent” calls could not be erased from the tapes.

      . 21 U.S.C. § 848:
      (a) (1) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a fine of not more than $100,000, and to the forfeitm-e prescribed in paragraph (2) ; except that if any person engages in such activity after one or more prior convictions of him under this section have become final, he shall be sentenced to a term of imprisonment which may not be less than 20 years and which may be up to life imprisonment, to a fine of not more than $200,000, and to the forfeiture prescribed in paragraph (2).
      (b) For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if—
      (1) he violates any provision of this sub-chapter or subehapter II of this chapter the punishment for which is a felony, and
      (2) such violation is a part of a continuing series of violations of this subchapter or- subchapter II of this chapter—
      (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and
      (B) from which such person obtains substantial income or resources.


author: PER CURIAM.

text:
    Hugh Wilson STEELE, Petitioner, v. William K. THOMAS, United States District Judge, Respondent.
    No. 73-8168.
    United States Court of Appeals, Sixth Circuit.
    Nov. 30, 1973.

      Hugh Wilson Steele, pro se.
    Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, for respondent.
    Before McCREE, MILLER and LIVELY, Circuit Judges.
   PER CURIAM.

We consider a petition for a writ of mandamus against respondent, a United States District Judge, who sentenced petitioner to a term of eleven years pursuant to 18 U.S.C. § 4208(a)(2) on April 17, 1970, after his conviction by a jury of the crime of armed robbery, 18 U.S.C. § 2113(a) and (d).

Petitioner contends that respondent took into consideration in determining his sentence Ohio convictions of three counts of perjury and two counts of witness tampering. It is undisputed that the presentence report containing this information was erroneous because ten years before its preparation, the Ohio Court of Appeals had reversed the convictions for perjury, although it had affirmed the witness tampering convictions.

Petitioner wrote to respondent on July 1, 1973 to request relief and respondent appropriately regarded the letter as a motion under 28 U.S.C. § 2255 to vacate sentence. Thereupon, respondent caused a letter to be written to the United States Parole Board to advise it of the erroneous attribution of the three perjury convictions to petitioner. Then, in an order dated September 7, 1973, respondent denied any other relief, concluding “that the petitioner has not been placed in ‘double jeopardy’, nor has any other constitutional right been violated.”

Instead of appealing from that order, Steele filed this petition requesting the court of appeals to compel the district court to vacate the sentence because it had been unlawfully enhanced hy consideration of convictions that had been set aside. The district court, in its response to the petition for mandamus, asserts that mandamus will not lie to reverse his order denying the petition for post-conviction relief. We agree.

Although invalid convictions may not be used to enhance a sentence, Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L. Ed.2d 319 (1967); see also, Kelley v. United States, 487 F.2d 898 (6th Cir. 1973), we cannot determine from the record before us that consideration was given by the district court to the perjury convictions when he pronounced the sentence. We make this observation to demonstrate that petitioner asks us to do more than merely to compel a ministerial act, and it is settled that mandamus may not be used as a substitute for appeal. Albert v. United States District Court for W. D. of Michigan, 283 F.2d 61 (6th Cir. 1960); Zerilli, et al. v. Thornton, District Judge, 428 F.2d 741 (6th Cir. 1970).

Since the petition was filed more than thirty days after entry of the order sought to be reviewed, we cannot treat it as a notice of appeal. We observe however, that the doctrine of res judicata does not strictly apply to applications for post-conviction relief.

Dismissed.


author: PER CURIAM:

text:
    Charlton L. WALLACE, Plaintiff-Appellant, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 25939.
    United States Court of Appeals, Ninth Circuit. •
    Nov. 21, 1973.
    Rehearing Denied Dec. 20, 1973.
    W. Edward Morgan (argued), Tucson, Ariz., for plaintiff-appellant.
    Richard K. Burke, U. S. Atty., Raymond Battocchi, Atty., Dept, of Justice (argued), Ann Bowen, Asst. U. S. Atty., Tucson, Ariz., Morton Hollander, Chief App. Section, Civ. Div., U. S. Dept, of Justice, Washington, D. C., Robert E. Kopp, Washington, D. C., for defendant-appellee.
   OPINION

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

PER CURIAM:

Since 1960 appellant has unsuccessfully sought social security benefits for disability. Six applications have been made, and all have been rejected by the Department of Health, Education and Welfare. On only one, the fourth application, made in 1964, did appellant pursue his remedies to a hearing and, in 1966, to findings of fact and adverse final decision upon the merits by a hearing examiner and the Appeals Council. He was then advised of his right to commence a civil action for review within the sixty day period specified by statute, but he failed to initiate such a proceeding.

The application now before us, appellant’s sixth, was filed in 1968. It did not assert new bases of disability, but essentially sought reconsideration of the 1966 findings and decision on the ground that new facts disclosed error. Accordingly the application was not treated as an original application, but properly was treated as an application to reopen the 1966 final decision. This application was denied for failure to present new and material evidence warranting a reopening, and a request for a hearing was dismissed by a hearing examiner and by the Appeals Council. Appellant then sought judicial review. The District Court entered judgment denying any relief.

The Secretary contends that under 42 U.S.C. § 405(h) judicial review of an order denying reopening is lacking. Such was the holding of this court in Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973) filed this day.

Judgment affirmed.

      . 42 U.S.C. § 405(g).