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507 F.2d 195

Docket No. 74-1386.

In re Dunn

First Circuit Court of Appeals

Argued Dec. 4, 1974.

Decided Dec. 11, 1974.

First Circuit Court of Appeals · decided 1974-12-11

Cited by 13 later decisions — most recently June 1977

13 federal appellate ·

2 counsel of record

Key passage — most relied on by later courts

““The judgment [of the district judge] would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. What the provision envisions is that the showing be tested in a practical and commonsense fashion.””

quoted by 1 later decision, including United States v. Scibelli

“provided a sufficient factual statement to enable the court to find as it did, that normal investigative procedures reasonably appeared unlikely to succeed if tried . . . .”

quoted by 1 later decision, including United States v. DiMuro

Applies 18 U.S.C. § 2518 (Electronic Communications Privacy Act of 1986) · 28 U.S.C. § 1826

Relies on In re Lochiatto · United States v. Pellicci

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1974-12-11

View the full empirical analysis of this case →

¶1*196William J. Cintolo, Revere, Mass., for appellant.

¶2Jeremiah T. O’Sullivan, Sp. Atty., Dept, of Justice, with whom James N. Gabriel, U. S. Atty., and Gerald E. McDowell, Sp. Atty., Dept, of Justice, Boston, Mass., were on brief, for appel-lee.

¶3Before COFFIN, Chief Judge, McEN-TBE and CAMPBELL, Circuit Judges.

¶4PER CURIAM.

¶5Having been granted “use” immunity and having been ordered to testify before a special grand jury investigating extortionate credit transactions, appellant was held in contempt and was confined as a recalcitrant witness upon his continued refusal to answer questions before the grand jury. 28 U.S.C. § 1826. We granted appellant a degree of relief when he was similarly situated earlier this year. In re Lochiatto, 497 F.2d 803 (1st Cir. 1974). Since that time he has continued to refuse to testify although the procedures mandated in In re Lochiatto were followed.

¶6Appellant now asserts that the wiretaps upon which questions were allegedly based were illegal because the wiretapping application did not measure up to the standards in 18 U.S.C. § 2518(l)(c) and (3)(c). Under section (l)(c), a wiretap application must include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” In this case the court which issued the wiretap order had before it the affidavit of an F.B.I. agent to the effect that the “target”, one Pel-licci,1 was, according to informants, suspicious of strangers; that physical sur-veillances would be “extremely difficult” due to the possibility of detection and to potential danger to a named undercover agent who was in touch with Pellicci; that the agent had found it extremely *197difficult to increase the frequency of contacts without disclosing his undercover role; and that the very nature of loan sharking deterred conventional methods of investigation since victims were characteristically frightened of their creditors and afraid to testify. We believe that the affidavit provided a sufficient factual statement to enable the court to find, as it did, that normal investigative procedures reasonably appeared unlikely to succeed if tried or to be too dangerous. 18 U.S.C. § 2518(3)(c). The sufficiency of the application is to be tested in a practical and commonsense fashion. The court could consider the nature of the alleged crimes, and could give weight to the opinion of those investigating Pellicci that in the described circumstances other means were too dangerous and might be counterproductive if pursued.

¶7Appellant also contends that he was denied due process in the proceedings below, and that he was entitled to more discovery than he received. We find no merit in either contention, nor in other contentions made on this appeal.

¶8Affirmed. Mandate to issue forthwith.

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