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Commission Hearings



Volume 2




NATIONAL

COMMISSION

FOR THE REVIEW

OF FEDERAL

AND STATE LAWS

RELATING TO

WIRETAPPING AND

ELECTRONIC

SURVEILLANCE




RECEIVED

UlC 1 U 1976




Commission Hearings Volume 2



>(3,wn4/^:^^'^



,lv.^



Supporting

Materials

for the Report

of the

NATIONAL

COMMISSION

FOR THE REVIEW

OF FEDERAL

AND STATE LAWS

RELATING TO

WIRETAPPING AND

ELECTRONIC

SURVEILLANCE

WASHINGTON:
1976



May be cited as

NWC Commission Hearings,

Vol. 2



NATIONAL COMMISSION FOR THE REVIEW OF FEDERAL AND STATE LAWS
RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE

1875 Connecticut Avenue, N.W.
Washington, D.C. 20009



April 30, 1976



Honorable Gerald R. Ford,
President of the United States,
Washington, D.C.

Honorable Nelson A. Rockefeller,
President of the Senate,
Washington, D.C.

Honorable Carl Albert,

Speaker of the House of Representatives,

Washington, D.C.



GENTLEMEN: In accordance with the provisions of section 804 of Public Law No. 351, Ninetieth
Congress (Omnibus Crime Control and Safe Streets Act of 1968), as amended, the National Commission
for the Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance herewith
submits its final report of findings and recommendations.
Respectfully yours.




William H. Erickson,

Chairman.



Library of Congress Card No. 75-619445



'0



For sale by the Superintendent of Documents. U.S. Government Printing Office, Washington, D.C. 20402
Price $20 (paper covers) per 2-part set; sold in sets only



Stock Number 052-003-00121-7



NATIONAL COMMISSION FOR THE REVIEW OF FEDERAL AND STATE
LAWS RELATING TO WIRETAPPING AND ELECTRONIC

SURVEILLANCE



APPOINTED BY THE PRESIDENT:

Chairman:

William H. Erickson, Associate Justice of the
Supreme Court of Colorado

Members:

Richard R. Andersen, Chief of Police, Omaha,

Nebraska
G. Robert Blakey, Professor of Law, Cornell

University Law School
Hon. Samuel R. Pierce, Jr., Attorney, New York

City
Frank J. Remington, Professor of Law, University

of Wisconsin Law School
Hon. Florence P. Shientag, Attorney, New York

City
Alan F. Westin, Professor of Public Law and

Government, Columbia University

APPOINTED BY THE PRESIDENT OF THE
SENATE:
Senator John L. McClellan
Senator Roman L. Hruska
Senator Robert Taft, Jr.
Senator James Abourezk

APPOINTED BY THE SPEAKER OF THE
HOUSE OF REPRESENTATIVES:

Congressman Robert W. Kastenmeier

Congressman Thomas F. Railsback

Congressman John F. Seiberling*

Congressman M. Caldwell Butler**
•Appointed March 1975 to replace Congressman Don Edwards,

a member during the 93d Congress.
••Appointed March 1975 to replace Congressman Sam Steiger,

a member during the 93d Congress.



Ill



COMMISSION STAFF



Executive Director
Kenneth J. Hodson

Counsel for State Laws Study
Milton M. Stein

Counsel for Federal Laws Study
David J. Cook

Chief Investigator
Michael J. Hershman

Research Adviser
Margery J. Elfin

Staff Attorneys
Glenn M. Feldman
Edward J. Gallagher
Michael L. Lipman
Hal B. Patterson

Legal Research
Stephen O. Allaire
Sandra L. Thomas

Social Research
John H. Maberry
Marilyn Mode
Ellen A. Patterson

Assistant Investigator
John J. Creighton

Administrative
Mildred F. Dolan
Jacqueline I. Hallowell
Donald B. Harper

Secretarial

Suzanne Charlick
Muriel A. DeMarne
Fann D. Harvey
Wanda G. Henderson
Elaine E. HoUoman
Elizabeth L. McCulley
Jean C. Teuteberg



CONSULTANTS AND ADVISERS



Investigative Attorneys

Tobias Berman, New Yoric City
Gary L. Gardner, Northville, N. Y.
Randolph N. Jonakait, New York City
Thomas A. Kennelly, Washington, D. C.
Jack Lipson, New York City
Geoffrey W. Peters, Professor of Law, Creighton
University, Omaha, Nebr.

National Security Consultant

Dr. John T. Elliff, Associate Professor of Politics,
Brandeis University, Waltham, Mass.

Comparative Law Consultant

H. H. A. Cooper, Director, Criminal Law
Education and Research Center, New York
University School of Law

Consulting Attorneys

William L Aronwald, Chief, Federal Strike Force,

New York City
William M. Lenck, Drug Enforcement

Administration, Washington, D. C.
James L. Lyons, Washington, D. C.
Peter R. Richards, Deputy Attorney General,

State of New Jersey
Frank J. Rogers, Special Prosecutor, Narcotics,

New York City
Herman Schwartz, Professor of Law, State

University of New York, Buffalo
Peter F. Vaira, Chief, Federal Strike Force,

Chicago, Illinois
Roger E. Zuckerman, Washington, D. C.

Scientific Consultants

William E. Harward, Chief, Radio Engineering

Section, FBI
Dr. Michael H. L. Hecker, Stanford Research

Institute, Palo Alto, California
Dr. Paul Tamarkin, Riverside Research Corp.,

Arlington, Va.



Carmen J. Tona, Chief Electronics Engineer for

Law Enforcement, CALSPAN Corp., Buffalo,

N. Y.
John S. VanDewerker, Manager, Systems

Division, Ashby & Associates, Washington, D.

C.
Mark R. Weiss, Professor, Computer Science,

Queens College, City University of New York
John P. Wilgus, Assistant Chief, Radio

Engineering Section, FBI

Field Investigators

James T. Fahy, Retired Detective First Class,

New York City Police Department
William W. Turner, Author, Private Investigator

(former FBI agent)

Writing and Editing
James G. Carr, Professor of Law, Toledo

University, School of Law, Toledo, Ohio
Jeffrey D. Stansbury, Writer
Joseph Foote, Editorial Adviser

Editing and Proofreading:

Editorial Experts, Laura Horowitz, Director,
Springfield, Va.

Law Enforcement Advisers

James Adams, Assistant to Director, FBI
Capt. Clayton R. Anderson, Chief, Intelligence

Bureau, District Attorney's Office, Los

Angeles, Calif.
Dr. Don R. Harris, CACI, Inc., Arlington, Va.
Walter LaPrade, Special Agent in Charge, FBI,

Newark, N.J.
John A. Lelwica, Special Agent, FBI, Newark,

N.J.
William P. McCarthy, Retired Deputy Police

Commissioner, New York City
Fred J. Rayano, Principal Investigator, Office of

New York State Special Prosecutor
Phil Smith, Domestic Intelligence, Drug

Enforcement Administration
Alvin A. Staffeld, Inspector, FBI



NATIONAL COMMISSION FOR THE REVIEW OF FEDERAL AND STATE LAWS
RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE



ENABLING ACT
Sec. 804 of Pub. L. 90-351, June 19, 1968, as amended by
Pub. L 91-644, Pub. L. 93-609, and Pub. L 94-176 provided;

"(a) [Establishment] There is hereby established a National
Commission for the Review of Federal and State Laws Relating
to Wiretapping and Electronic Surveillance (hereinafter in this
section referred to as the 'Commission').

"(b) [Membership] The Commission shall be composed of fif-
teen members appointed as follows:

"(A) Four appointed by the President of the Senate from
Members of the Senate;

"(B) Four appointed by the Speaker of the House of
Representatives from Members of the House of Representa-
tives; and

"(C) Seven appointed by the President of the United States
from all segments of life in the United States including
lawyers, teachers, artists, businessmen, newspapermen, jurists,
policemen, and community leaders, none of whom shall be of-
ficers of the executive branch of the Government.
"(c) [Chairman; vacancies] The President of the United
States shall designate a Chairman from among the members of
the Commission. Any vacancy in the Commission shall not affect
its powers but shall be filled in the same manner in which the
original appointment was made.

"(d) [Function] It shall be the duty of the Commission to
conduct a comprehensive study and review of the operation of
the provisions of this title, in effect on the effective date of this
section, to determine the effectiveness of such provisions during
the six-year period immediately following the date of their enact-
ment.

"(e) [Personnel; appointment, compensation and qualih-
CATIONS] (1) Subject to such rules and regulations as may be
adopted by the Commission, the Chairman shall have the power
to—

"(A) appoint and fix the compensation of an Executive
Director, and such additional staff personnel as he deems
necessary, without regard to the provisions of title 5, United
States Code, governing appointments in the competitive ser-
vice, and without regard to the provisions of chapter SI and
subchapter III of chapter S3 of such title relating to classifica-
tion and General Schedule pay rates, but at rates not in excess
of the maximum rate forGS-18 of the General Schedule under
section S3 3 2 of such title; and

"(B) procure temporary and intermittent services to the
same extent as is authorized by section 3109 of title 5, United
States Code, but at rates not to exceed $100 a day for in-
dividuals.

"(2) In making appointments pursuant to paragraph (1) of
this subsection, the Chairman shall include among his appoint-
ment individuals determined by the Chairman to be competent
social scientists, lawyers, and law enforcement officers.

"(f) [Compensation, travel and other expenses] (1) A
member of the Commission who is a Member of Congress shall
serve without additional compensation, but shall be reimbursed
for travel, subsistence, and other necessary expenses incurred in
the performance of duties vested in the Commission.

"(2) A member of the Commission from private life shall
receive $100 per diem when engaged in the actual performance
of duties vested in the Commission, plus reimbursement for
travel, subsistence, and other necessary expenses incurred in the



performance of such duties.

"(g)(1) Notwithstanding section 2SIS of title 18, United
States Code, the Commission or any duly authorized subcommit-
tee or member thereof may, for the purpose of carrying out the
provisions of this title, hold such hearings, sit and act at such
times and places, administer such oaths, and require by subpena
or otherwise the attendance testimony of such witnesses and the
production of such books, records, correspondence, memoran-
dums, papers and documents as the Commission or such sub-
committee or member may deem advisable. Any member of the
Commission may administer oaths or affirmations to witnesses
appearing before the Commission or before such subcommittee
or member. Subpenas may be issued under the signature of the
Chairman or any duly designated member of the Commission,
and may be served by any person designated by the Chairman or
such member.

"(2) In the case of contumacy or refusal to obey a subpena is-
sued under subsection ( I ) by any person who resides, is found,
or transacts business within the jurisdiction of any district court
of the United States, the district court, at the request of the
Chairman of the Commission, shall have jurisdiction to issue to
such person an order requiring such person to appear before the
Commission or a subcommittee or member thereof, there to
produce evidence if so ordered, or there to give testimony
touching the matter under inquiry. Any failure of any such per-
son to obey any such order of the court may be punished by the
court as a contempt thereof.

"(3) The Commission shall be 'an agency of the United States'
under subsection ( I ), section 6001 , title 1 8, United States Code
for the purpose of granting immunity to witnesses.

"(4) Each department, agency, and instrumentality of the ex-
ecutive branch of the Government, including independent agen-
cies, is authorized and directed to furnish to the Commission,
upon request made by the Chairman, on a reimbursable basis or
otherwise, such statistical data, reports, and other information as
the Commission deems necessary to carry out its functions under
this title. The Chairman is further authorized to call upon the de-
partments, agencies, and other offices of the several States, to
furnish, on a reimbursable basis or otherwise, such statistical
data, reports, and other information as the Commission deems
necessary to carry out its functions under this title.

"(5) Whenever the Commission or any subcommittee deter-
mines by majority vote to meet in a closed session, sections
10(a)( 1 ) and (3) and 10(b) of the Federal Advisory Committee
Act (86 Stat. 770; S U.S.C. Appendix) shall not apply with
respect to such meeting, and section 552 of title 5, United States
Code, shall not apply to the records, reports, and transcripts of
any such meeting.

"(h) [Reports to President and Congress; termination
date) The Commission shall make such interim reports as it
deems advisable, and it shall make a final report of its findings
and recommendations to the President of the United States and
to the Congress on or before April 30, 1976. Sixty days after
submission of its final report, the Commission shall cease to
exist.

"(1) [Conflict of interest; exemption] (1) Except as pro-
vided in paragraph (2) of this subsection, any member of the
Commission is exempted, with respect to his appointment, from
the operation of sections 203, 205, 207. and 209 of title 18,
United Sutes Code.

"(2) The exemption granted by paragraph ( 1 ) of this subsec-



tion shall not extend—

"(A) to the receipt of payment of salary in connection with
the appointee's Government service from any source other
than the private employer of the appointee at the time of his
appointment, or

"(B) during the period of such appointment, to the prosecu-
tion, by any person so appointed, of any claim against the
Government involving any matter with which such person,
during such period, is or was directly connected by reason of
such appointment.

"(j) [Appropriations] There is authorized to be appropriated
such sum as may be necessary to carry out the provisions of this
section.

"(k) (Effective date) The foregoing provisions of this sec-
tion shall Uke effect upon the expiration of the fifth year period



immediately following the date of the enactment of this Act
[June 19, 1968)."
[New; Added by Pub. L. 93-609. Jan. 2, 1975)
For purposes of section 108 of title I, United States Code,
section 20(c) of the Omnibus Crime Control Act of 1970 shall
be deemed to provide expressly for the revival of section 804 of
the Omnibus Crime Control and Safe Streets Act of 1968.

Repeal

Sec. 1212 of the Act of Oct. 15, 1970, Pub. L. 91-452,
repealed sec. 804 of the Act of June 19, 1968, Pub. L. 90-351.

However, section 20 of the Act of Jan. 2, 1971, Pub. L. 91-
644, repealed Sec. 1 2 1 2 of Pub. L. 91-452 and contained certain
amendments to section 804 of Pub. L. 90-35 1 , which are set out
above.



SCOPE OF THE COMMISSION INQUIRY



Title III of the Omnibus Crime Control and Safe
Streets Act of 1968 authorized court-ordered wire-
tapping and electronic surveillance (hereinafter
"wiretapping") by Federal and State authorities. In
Section 804 of Title III, Congress also provided that
a National Commission would come into existence
some six years later to review the operation of the
wiretap Act.

This Commission was designated the National
Commission for the Review of Federal and State
Laws Relating to Wiretapping and Electronic Sur-
veillance. Its enabling statute brought it into ex-
istence on June 19, 1973, but because of a delay in
the appointment of the seven public members and
the four members from the House of Representa-
tives, the Commission was unable to commence its
work until April 1974. The Commission is charged
with making its final report to the President and the
Congress by April 30, 1976.

Congress charged the Commission with deter-
mining whether wiretapping and electronic surveil-
lance under the Act is an effective tool in law en-
forcement, whether wiretapping under the Act
properly protects the privacy of the individual, and
whether the Act is effective in preventing illegal
wiretapping. The Commission went about its work
of gathering evidence to permit it to make an ob-
jective assessment of wiretapping in four basic
ways, outlined as follows:

( 1 ) Law Enforcement Effectiveness Conference.
At an early stage of its work, the Commission was
confronted with the problem of developing a stan-
dard by which it could measure the effectiveness of
wiretapping in law enforcement. Research disclosed
that no law enforcement agency had published for-
mal guidelines or instructional courses that would
be useful in determining what kinds of cases could
(best) (only) be solved by the use of wiretapping.
In August 1974, fourteen experienced prosecutors
and law enforcement officers from Federal, State,
and local agencies met with members of the Com-
mission staff and several Commission members for
a three-day, free-wheeling, seminar-type con-
ference, designed to elicit information about the
proper and improper use of wiretapping in law en-
forcement. Commissioner G. Robert Blakey
moderated the sessions. The transcript of these ses-
sions appears as a separate volume of the support-
ing materials for the Commission Report, under the
title Law Enforcement Effectiveness Conference.

(2) Staff Studies and Surveys. Members of the
Commission staff, aided by parttime advisers and
consultants in the field, visited 46 separate State
and local prosecutorial jurisdictions (one additional



jurisdiction was interviewed by telephone) and 12
Federal geographical jurisdictions for the purpose
of interviewing knowledgable prosecutors, defense
counsel, judges, police, and criminal investigators.
A random sampling of cases in which wiretapping
or electronic surveillance was used was studied with
a view to determining the effectiveness of these
techniques. Particular consideration was given to
determining whether wiretapping enabled law en-
forcement officers to penetrate higher in a criminal
hierarchy than would have been possible had this
technique not been used. Four of the states visited
did not have a state law permitting law enforcement
to use court-ordered wiretapping, although these
states were deemed to have a significant organized
crime problem. An attempt was made to compare
the effectiveness of law enforcement against or-
ganized crime in states which have court-ordered
wiretapping with states which do not permit court-
ordered wiretapping.

A separate report was prepared for each jurisdic-
tion visited, including, when appropriate, a summa-
ry of each case analyzed. These reports are com-
bined, with the results of two mail surveys of spe-
cialized monitoring problems, into a separate
volume of the supporting materials for the Commis-
sion Report, under the title Staff Studies and Sur-
veys.

(3) Commission Studies. As a means of providing
the Commission members with background infor-
mation concerning various aspects of wiretapping, a
number of studies were prepared. These studies ap-
pear in a separate volume of the papers supporting
the Commission Report, under the title Commission
Studies. The titles of the separate studies are as fol-
lows:

(a) State of the Law of Electronic Surveillance

(b) Strategy and Tactics in the Prosecution and
Defense of Complex Wire-Interception Cases

(c) Comparative Law Aspects of Wiretapping
and Electronic Surveillance

(d) State of the Art of Electronic Surveillance
(e)The Authentication of Magnetic Tapes: Cur-
rent Problems and Possible Solutions

(4) Commission Hearings. To provide the max-
imum public exposure for its proceedings, most of
the evidence considered by the Commission was
presented under oath by some 100 witnesses during
seventeen days of public hearings at Washington,
DC. The witnesses included knowledgable persons
in all fields related to wiretapping and electronic
surveillance. These hearings were transcribed and
published in two separate volumes of the support-
ing materials for the Commission Report, under the
title Commission Hearings.



vui



LIST OF SUPPORTING MATERIALS



LAW ENFORCEMENT EFFECTIVENESS
CONFERENCE

STAFF STUDIES AND SURVEYS

Survey of Electronic Surveillance under State Law:
Jurisdictional Reports

Survey of Electronic Surveillance under Federal
Law: Jurisdictional Reports

Legal Ethics of Consensual Monitoring and Ad-
vantages and Disadvantages of Service Quality
Monitoring

COMMISSION STUDIES

State of the Law of Electronic Surveillance

Commission Staff
Strategy and Tactics in the Prosecution and

Defense of Complex Wire-Interception Cases

Roger E. Zuckerman and James L. Lyons
Comparative Law Aspects of Wiretapping and

Electronic Surveillance H.H.A. Cooper
State of the Art of Electronic Surveillance

John S. VanDewerker of Ashby & Associates
The Authentication of Magnetic Tapes: Current

Problems and Possible Solutions Mark R.

Weiss and Michael H. L. Hecker

COMMISSION HEARINGS

Volume 1
Hearing Days and Witnesses
September 16, 1974

William B. Saxbe, United States Attorney
General

Henry E. Petersen, Assistant Attorney General,
Criminal Division, U.S. Department of Justice

William S. Lynch, Chief, Organized Crime and
Racketeering Section, U.S. Department of
Justice

John R. Bartels, Jr., Administrator, Drug En-
forcement Administration
September 17, 1974

Clarence M. Kelley, Director, Federal Bureau
of Investigation

James Adams, Assistant to the Director in
Charge of Investigations, Federal Bureau of
Investigation

William Cleveland, Assistant Director in Charge
of Special Investigations, Organized Crime
Division, Federal Bureau of Investigation

John Kelly, Supervisor in Charge of Special In-
vestigations, Organized Crime Division,
Federal Bureau of Investigation



December 2, 1974

(Meeting adjourned because of lack of quorum.)
December 3, 1974

David R. Macdonald, Assistant Secretary of En-
forcement, Operations and Tariff Affairs, U.S.
Department of the Treasury

Billy E. Modesitt, Special Agent, Drug Enforce-
ment Administration, Detroit, Michigan;
former U.S. Customs Agent

Atlee W. Wampler, III, Attorney-in-Charge,
Miami Organized Crime Strike Force, U.S.
Department of Justice
March 18, 1975

Arlen Specter, former District Attorney,
Philadelphia, Pennsylvania

Mario Merola, District Attorney, Bronx County,
New York

Joseph Lordi, County Prosecutor, Essex County
(Newark), New Jersey

Jack Lazarus, District Attorney, Monroe County
(Rochester), New York

Pierre Leval, First Assistant District Attorney,
New York County, New York

John Breslin, Chief, Rackets Bureau, Bronx
County District Attorney's Office, Bronx, New
York

Ronald Goldstock, Deputy Chief, Rackets Bu-
reau, Bronx County District Attorney's Office,
Bronx, New York

Peter Grishman, Chief, Narcotics Bureau, Bronx
County District Attorney's Office, Bronx, New
York

R. Michael Haynes, Assistant to the Special
Prosecutor for Narcotics, New York City

John Matthews, III, Director, City-County Strike
Force, Essex County Prosecutor's Office,
Newark, New Jersey

Vincent Mitrano, First Assistant District Attor-
ney, Monroe County, New York
March 19, 1975

William Hyland, Attorney General of the State
of New Jersey

Peter Richards, Associate Director, Organized
Crime and Special Prosecutions Section, At-
torney General's Office, New Jersey

Arnold Markle, District Attorney, New Haven
County, Connecticut

Joseph Phillips, Chief Assistant to the Special
Prosecutor for Corruption, New York

Neil O'Brien, Executive Assistant District Attor-
ney, Queens County, New York

Larry Finnegan, Chief, Investigations Bureau,
Queens County District Attorney's Office,
Queens, New York



David Cunningham, Chief, Trial Section, Office

of the Special Prosecutor for Narcotics, New

York
Barry Friedman, Chief, Rackets Bureau, Kings

County District Attorney's Office, Brooklyn,

New York

March 20, 1975

Ronald Goldstock, Deputy Chief, Rackets Bu-
reau, Bronx County District Attorney's Office,
Bronx, New York

William Aronwald, Attorney-in-Charge, Manhat-
tan Organized Crime Strike Force, U.S. De-
partment of Justice

Robert Nicholson, Detective Sergeant, New
York City Police Department, New York
County District Attorneys Squad, New York,
New York

Richard Tammaro, Special Agent, Federal Bu-
reau of Investigation, New York City Division
April 9, 1975

(Commission business meeting; no witnesses.)
April 22, 1975

Hon. Charles W. Joiner, U.S. District Court
Judge, Eastern District of Michigan, Detroit,
Michigan

Hon. John F. Dooling, Jr., U.S. District Court
Judge, Eastern District of New York,
Brooklyn, New York

Hon. Milton Mollen, Justice of the Supreme
Court of the State of New York, Kings Coun-
ty, New York

Hon. Joseph Sullivan, Justice of the Supreme
Court of the State of New York, Bronx Coun-
ty, New York

Hon. Henry J. Naruk, Judge, Superior Court
of Connecticut, Middletown, Connecticut

Neil Fink, Esq., Defense Attorney, Detroit,



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