LAWRENCE LOUIS LEVY, PETITIONER V. UNITED STATES OF AMERICA No. 90-5982 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 3a-9a) is reported at 905 F.2d 326. The memorandum opinion and order of the district court (Pet. App. 10a-23a) is not reported. JURISDICTION The judgment of the court of appeals was filed on June 11, 1990. A petition for rehearing was denied on July 19, 1990 (Pet. App. 1a). The petition for a writ of certiorari was filed on October 16, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was entitled to reversal of his conviction for conducting a continuing criminal enterprise on the basis of a claim that the government presented evidence to the grand jury that was derived from electronic surveillance without obtaining an order authorizing the use of that evidence with respect to that offense. 2. Whether petitioner's extradition from Hong Kong was consistent with the doctrines of dual criminality and specialty embodied in the extradition treaty between the United States and the United Kingdom. STATEMENT After a jury trial in the United States District Court for the District of Colorado, petitioner was convicted on two counts of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1), and one count of operating a continuing criminal enterprise, in violation of 21 U.S.C. 848. He was sentenced to 20 years' imprisonment. The court of appeals affirmed. Pet. App. 3a-9a. 1. The evidence at trial showed that from 1980 to 1983, petitioner conducted a large-scale cocaine distribution operation. In 1982, petitioner's operation was the subject of a joint federal and state investigation. In connection with that investigation, a Colorado state judge issued orders authorizing law enforcement officers to place a wiretap on the telephone a petitioner's house and a listening device at his place of business, Continental Lighting Company. The application for the authorization to eavesdrop at Continental Lighting stated that the officers were seeking evidence that petitioner was violating a variety of state and federal drug statutes, including 21 U.S.C. 848. The court's orders authorizing electronic surveillance, however, referred only to state statutes prohibiting the manufacture, distribution, and possession of cocaine and conspiracy to commit those offenses. Gov't C.A. Br. 22-23, 25. 2. Petitioner was charged, along with 15 other defendants, in a 36-count indictment. Count 36 of the indictment charged petitioner and one of his co-defendants with operating a continuing criminal enterprise, in violation of 21 U.S.C. 848. In 1986, petitioner was arrested in Hong Kong, and the United States requested his extradition on 12 counts of the indictment, including the CCE count. The Acting Governor of Hong Kong issued an order directing the Chief Magistrate to proceed with extradition proceedings. The order advised that the United States was seeking petitioner's extradition because he was accused of committing crimes set forth in a "List of Crimes" attached to the order. The List of Crimes itemized the offenses in the indictment in terms of Hong Kong law; Count 36 of the indictment, the CCE count, was the subject of Crimes 13 through 17 on the List of Crimes. Pet. App. 11a-12a. /1/ Before the magistrate, petitioner argued that Crimes 13 through 17 were not extraditable offenses because Hong Kong law did not recognize an offense equivalent to that of operating a continuing criminal enterprise. The magistrate found that the extradition treaty and applicable English statutes did not require such a showing; rather, the magistrate stated, the "correct test" is as follows (Pet. App. 57a): if (petitioner's) conduct as disclosed by the evidence was committed in Hong Kong would that conduct constitute a crime listed in (the pertinent extradition statute). The magistrate concluded that this test was satisfied, holding that "CRIMES 13-17 * * * in the Governor's Orders to Proceed (and which are referable to Count 36) are extraditable crimes within the meaning of the Extradition Act 1870-35 as amended, and are offences for which extradition is required to be granted by the Treaty" (id. at 63a). Petitioner applied to the High Court of the Supreme Court of Hong Kong for a writ of habeas corpus and other forms of judicial review. Judge Mortimer, a member of the High Court, upheld the magistrate's determination. Pet. App. 67a-93a. Judge Mortimer rejected petitioner's contention that the concept of dual criminality embodied in the pertinent statute and the extradition treaty made extradition contingent on Hong Kong's having adopted a law equivalent to the CCE statute. Rather, he stated, the magistrate's function was "limited to considering (petitioner's) conduct in relation to the evidence of the specified offences under Hong Kong law and whether the acts complained of in the United States amounted to an offence both in Hong Kong and the United States." Id. at 86a. The Court of Appeals of Hong Kong dismissed petitioner's appeal from the High Court. Pet. App. 94a-101a. Like the magistrate and the High Court, the Court of Appeals emphasized that it is "the conduct established by the evidence placed before the magistrate which is the crucial factor throughout extradition proceedings" and, correspondingly, that the magistrate "is not, in general, concerned with the law of the requesting state as to the ingredients of any offence alleged." Id. at 97a-98a. The High Court also denied petitioner leave to appeal to the Privy Council, finding that petitioner's contentions raised no "seriously arguable point." Pet. App. 103a. Petitioner was then extradited to the United States. 3.a. Prior to trial, petitioner moved to dismiss Count 36, the CCE count, on the ground that the doctrines of dual criminality and specialty, which are embodied in the extradition treaty between the United States and the United Kingdom, rendered his extradition on that count illegal and deprived the district court of jurisdiction. The district court denied the motion. Pet. App. 11a-18a. The district court -- consistent with the decisions of the magistrate and courts of Hong Kong -- recognized that the doctrine of dual criminality "does not require matching the particular phraseology used by the two nations in criminalizing conduct. What matters is that the conduct (petitioner) allegedly engaged in is considered 'criminal by the laws in both countries.'" Pet. App. 15a (quoting Collins v. Loisel, 259 U.S. 309, 312 (1922)). In this case, the district court held, "(e)ngaging in conduct violative of 21 U.S.C. Section 848 is 'an offense against the law relating to narcotic drugs . . . ' in both the United States and Hong Kong." Pet. App. 16a. The district court also rejected petitioner's claim that the doctrine of specialty barred prosecution on Count 36. Under the rule of specialty, the court noted, "an extraditee is subject ot prosecution upon his return to the requesting jurisdiction only for those offenses designated as extraditable by the asylum jurisdiction, that is only upon those crimes for which he was extradited." Pet. App. 16a. Here, the court found, the extradition order included a reference to the CCE count; "it is clear that the United States government requested extradition on that count"; "from the very beginning of the proceedings in Hong Kong, extradition on that count was considered"; and "the litigation in Hong Kong was centered on Count 36." Id. at 16a-17a. The court concluded (id. at 17a): Clearly (petitioner) was extradited on Count 36 for continuing criminal enterprise, and prosecution on that Count does not violate the rule of speciality. b. Petitioner also moved to dismiss the CCE count on the basis of an alleged violation of the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2521. Under 18 U.S.C. 2517(3) and (5), when a law enforcement officer intercepts communications "relating to offenses other than those specified in the order" authorizing electronic surveillance, the government must obtain a court order, based upon a finding that the communications were otherwise intercepted in accordance with the Act, in order to use the communications or derivative evidence in a proceeding involving the additional offenses. In the motion to dismiss, petitioner argued that the orders approving electronic surveillance at his house and business did not refer to the CCE statute and that the government had placed evidence derived from the surveillance before the grand jury that indicted him under that statute without obtaining an order under 18 U.S.C. 2517(5). The district court denied the motion. See Pet. App. 22a. 4. The court of appeals affirmed. Pet. App. 3a-9a. It rejected petitioner's contention that his extradition violated the doctrine of dual criminality. "The focus of dual criminality is not on how the crime is defined in the particular statutes the defendant is accused of violating," the court explained, but rather "on the criminality of the defendant's alleged conduct." Id. at 5a. The court noted that in this case petitioner "was accused of being the leader of a cocaine trafficking operation." Ibid. "Such conduct," the court concluded, "is illegal in Hong Kong and the United States, and satisfies the doctrine of dual criminality." Ibid. The court also concluded that petitioner had been extradited on the CCE charge, so that his prosecution for that offense was consistent with the rule of specialty. The court noted that the extradition order referred specifically to the CCE count. Further, the court continued, "the Hong Kong courts clearly considered whether (petitioner) could be extradited on that charge, and concluded both that it was an extraditable crime and that the evidence showed probable cause to believe that the elements were present." Pet. App. 7a. Considering "the totality of the circumstances," the court of appeals found that "Hong Kong intended to extradite (petitioner) not only on the conspiracy and possession with intent to distribute charges, but also on the CCE charge." Ibid. Finally, the court held that petitioner was not entitled to dismissal of the indictment on the basis of the government's alleged violation of 18 U.S.C. 2517(5). Even if there had been a violation of that Section, the court concluded, petitioner's "exlusive remedy" would be "the civil action created by 18 U.S.C. 2520." Pet. App. 8a. /2/ ARGUMENT 1. Petitioner contends (Pet. 10-13) that the government violated 18 U.S.C. 2517(5) by failing to obtain an order authorizing the use of evidence derived from electronic surveillance at his house and business in grand jury proceedings that culminated in the return of an indictment charging a violation of the CCE statute. In his view, the proper remedy for this alleged violation is reversal of his conviction on the CCE count and dismissal of that count. For several reasons, these contentions lack merit. a. At this juncture, there is no dispute that state court orders authorized officers investigating petitioner's drug trafficking activity to conduct electronic surveillance at petitioner's house and business and that the fruits of that surveillance could be used, without further judicial authorization, in proceedings involving the state drug offenses cited in the orders or equivalent federal drug offenses. See United States v. Smith, 726 F.2d 852, 865-866 (1st Cir. 1984). Petitioner contends, however, that a further order was required to use evidence derived from the surveillance to obtain an indictment on a charge of violating the CCE statute. We disagree. The orders authorizing the wiretap permitted the investigating officers to intercept conversations relating to offenses that could serve as predicates for a violation of the CCE statute. Specifically, the government was authorized to intercept communications with respect to the "unlawful manufacture, dispensing, sale, distribution, possession and possession with intent (to distribute) a controlled substance, to wit: cocaine * * * and conspiracy to commit the above offenses," in violation of Colorado criminal statutes. Gov't C.A. Br. 23. Petitioner's participation in a series of such violations (which also constituted violations of equivalent federal drug statutes) was an element of the CCE offense with which he was ultimately charged. /3/ Because the government was authorized to employ wiretaps to investigate predicate offenses for a CCE violation, the use of evidence derived from the wiretaps to obtain an indictment charging a violation of the CCE statute did not violate Section 2517(5). See United States v. Watchmaker, 761 F.2d 1459, 1470-1471 (11th Cir. 1985), cert. denied, 474 U.S. 1100 (1986) (state wiretap order authorized interception of communications relating to offenses that could serve as predicates for a violation of the RICO statute; thus, Section 2517(5) order was not required before intercepted communications were presented to grand jury investigating possible RICO violations). The use of evidence derived from wiretaps to obtain an indictment charging petitioner with a violation of the CCE statute was entirely consistent with the purpose of Section 2517(5). That Section's function is to assure that investigating officers do not obtain a wiretap authorization order to investigate one offense as a subterfuge to investigate another offense for which the officers do not have probable cause. See United States v. Young, 822 F.2d 1234, 1238 (2d Cir. 1987); United States v. Campagnuolo, 556 F.2d 1209, 1214 (5th Cir. 1977). Here, the affidavit in support of the application for authorization of surveillance at petitioner's business described evidence of petitioner's involvement in drug trafficking and cited the CCE offense as one of the crimes that the officers sought to investigate. Under these circumstances, no possibility of subterfuge existed. b. As the court of appeals held, petitioner would not be entitled to the reversal of his conviction on the CCE count even if evidence derived from electronic surveillance had been presented to the grand jury in violation of Section 2517. Compare Pet. 10. Title III provides two remedies for violations of the wiretap statute. The first is suppression of evidence. Section 2515 provides that communications and derivative evidence obtained through electronic surveillance may not be received in evidence "if the disclosure of that information would be in violation of this chapter." However, as this Court has recognized, the grounds that may give rise to motions to suppress are defined more particularly in Section 2518(10)(a). United States v. Giordano, 416 U.S. 505, 524-525 (1974). This provision provides for exclusion of evidence only on the grounds (i) that the communications in question were "unlawfully intercepted," (ii) that the order authorizing the surveillance was "insufficient on its face," or (iii) that the interception was not "made in conformity with" that order. None of these grounds is available in this case. The other remedy for violations of Title III is a civil action. Section 2520 permits "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter" to sue for damages and other relief. As several other courts of appeals have held, the exclusionary remedy provided for in Sections 2515 and 2518(10)(a) is available only when communications are illegally intercepted, not when they are merely used in violation of the statute. See United States v. Vastola, 899 F.2d 211, 240-241 n.36 (3d Cir. 1990); Resha v. United States, 767 F.2d 285, 288 (6th Cir. 1985), cert. denied, 475 U.S. 1081 (1986); United States v. Horton, 601 F.2d 319, 324 (7th Cir.), cert. denied, 444 U.S. 937 (1979). See also United States v. Watchmaker, 761 F.2d at 1471. In this case, there is no dispute that the interception of petitioner's communications was authorized by and consistent with a lawful state court order; petitioner cannot establish standing under Section 2518(10)(a) to make a motion to suppress. Thus, the only remedy for his contention that authroities violated statutory limitations on the use of evidence allegedly derived from those communications is a civil action under Section 2520. c. Finally, even if Title III's exclusionary rule might have been available to preclude presentation of evidence to the grand jury, it does not follow that petitioner would now be entitled to reversal of his conviction on the CCE count or dismissal of that count. Title III does not provide for dismissal of an indictment that has been based on evidence used in violation of the statute. Thus, a claim that an indictment is based upon unlawful wiretap evidence is subject to the rule that "an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence." United States v. Calandra, 414 U.S. 338, 345 (1974). Furthermore, once a defendant has been convicted of an offense, any defect in the evidence on which the grand jury based an indictment is harmless error not warranting revesal of a conviction. See United States v. Mechanik, 475 U.S. 66 (1986). A defendant who has been found guilty of an offense beyond a reasonable doubt based upon evidence introduced at his trial cannot undo his conviction on the basis of a claim that there was insufficient competent evidence to charge him with the offense. In this case, the petit jury's guilty verdict established beyond a reasonable doubt that petitioner had violated the CCE statute, and any defect in the evidence on which the indictment was based was harmless error. d. There is no conflict among the circuits warranting further review of petitioner's wiretap claim. Both United States v. Brodson, 528 F.2d 214 (7th Cir. 1975), and United States v. Marion, 535 F.2d 697 (2d Cir. 1976), predated this Court's decision in United States v. Mechanik, supra. To the extent that those cases could be read to stand for the proposition that the submission of evidence to a grand jury without the authroization required by 18 U.S.C. 2517(5) necessitates reversal of a resulting conviction, they are no longer good law. /4/ Moreover, both Brodson and Marion devoted little attention to the remedy provisions of the federal wiretap statute. In view of decisions in this area by other courts of appeals in the nearly 15 years since Brodson and Marion were decided, the Second and Seventh Circuits would be unlikely to read those cases to confer the remedy petitioner seeks. 2. Petitioner also renews his contention (Pet. 13-18), that the doctrines of dual criminality and specialty barred his prosecution on the CCE count. a. As petitioner notes, the doctrine of dual criminality is embodied in the extradition treaty between the United States and the United Kingdom. /5/ As both the lower courts and the Hong Kong courts recognized, however, this doctrine does not require that CCE be "separately punishable" (Pet. 14) -- i.e., apart from the underlying drug offenses -- in Hong Kong. This Court made clear long ago that the dual criminality doctrine "does not require that he name by which the crime is described in the two countries shall be the same; nor that the scope of the liability shall be coextensive, or, in other respects, the same in the two countries. It is enough if the particular act charged is criminal in both jurisdictions." Collins v. Loisel, 259 U.S. 309, 312 (1922). In this case, the courts in Hong Kong held that the acts for which petitioner was charged in the CCE count of the indictment would be criminal in Hong Kong. That determination is self-evidently correct. Petitioner's extradition did not, therefore, violate the principle of dual criminality. The court of appeals' determination on this issue is consistent with the only other appellate decision to consider the application of the dual criminality doctrine to the CCE statute. In United States v. Casamento, 887 F.2d 1141, 1185 (1989), cert. denied, 110 S. Ct. 1138 (1990), the Second Circuit held that a defendant was properly extradited from Spain to stand trial on a CCE count even though Spain has no criminal law with elements identical to those of that offense. Because trafficking in narcotics was punishable as a crime in Spain, the court explained, "(t)he fact that Spain may have no narcotics law bearing the characterization 'continuing criminal enterprise' or containing the identical elements as Section 848 is of no consequence." Id. at 1185. /6/ b. Petitioner also contends (Pet. 16-18) that his extradition violated the doctrine of specialty. /7/ Under this doctrine, an extradited person is subject to prosecution in the requesting country only for those offenses for which he was extradited. United States v. Sensi, 879 F.2d 888, 892, 894-896 (D.C. Cir. 1989); Shapiro v. Ferrandina, 478 F.2d 894, 905 (2d Cir.), cert. dismissed, 414 U.S. 883 (1973). Petitioner argues that he was not extradited for trial on the CCE charge. As the court of appeals found, the record of the Hong Kong proceedings forecloses this claim. The order of the Chief Magistrate and the opinion of the High Court of the Supreme Court of Hong Kong considered at length whether the prerequisites for extradition on the CCE count had been established, and the extradition order referred specifically to Count 36. As the court of appeals found, the intent of the extradition order was to return petitioner for trial on the CCE count, as well as the other counts referred to in the List of Crimes appended to that order. Indeed, petitioner's liability to extradition on that charge was the only substantial issue before the Hong Kong courts. Petitioner cannot demonstrate that Hong Kong "has objected or would object to prosecution" on the CCE count, Restatement (Third) of the Foreign Relations Law of the United States Section 477, comment b (1986), or, in terms of the applicable treaty, that the CCE offense was not "an extraditable offense established by the facts in respect of which (petitioner's) extradition has been granted," Pet. App. 115a; see United States v. Sensi, 879 F.2d at 895-896. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General J. DOUGLAS WILSON Attorney DECEMBER 1990 /1/ Crimes 13 and 14 on the List alleged that petitioner had conspired to possess and to traffick in cocaine, "contrary to Common Law." Crime 15 accused petitioner of possessing cocaine for the purpose of trafficking in it, in violation of "Section 7(1) of the Dangerous Drugs Ordinance." Crimes 16 and 17 alleged that petitioner trafficked in cocaine, also in violation of the Dangerous Drugs Ordinance. Pet. App. 11a-12a. /2/ The court of appeals also rejected petitioner's claims that the indictment faild sufficiently to allege the continuing series of drug violations required for a violation of the CCE statute and that a conspiracy count could not serve as one of the predicate offenses. Pet. App. 8a-9a. The petition does not seek further review of those determinations. /3/ To show a violation of that statute, the government must prove that the defendant committed a violation of the Controlled Substances Act, 21 U.S.C. 801 et seq., that is part of a continuing series of violations of that Act; that the violation was undertaken in concert with five or more other persons whom the defendant organized, supervised, or managed; and that the defendant obtained substantial income or resources from the violation. Pet. App. 4a. /4/ In Brodson, the Seventh Circuit affirmed the pretrial dismissal of an indictment based upon a failure to obtain an order under 18 U.S.C. 2517(5). The court was not called upon to consider whether a defendant who has been convicted by a petit jury could obtain reversal of his conviction on that ground. In Marion, the court revesed convictions for perjury and obstruction of justice based upon a defendant's untruthful grand jury testimony; the court ruled that the defendant should not have been questioned before the grand jury regarding crimes different from those cited in a wiretap order without an order under 18 U.S.C. 2517. Assuming for the moment that the failure to obtain such an order might have justified the defendant in refusing to answer questions concerning those offenses, see Gelbard v. United States, 408 U.S. 41 (1972), it is untenable to suggest (as Marion held) that the wiretap statute provides a remedy to a defendant who chooses instead to commit perjury or obstruction of justice. In any event, Marion did not address a claim analogous to petitioner's. Petitioner does not contend that he was examined based upon evidence for which no order had been obtained under 18 U.S.C. 2517(5); rather, his claim is that the grand jury relied on such evidence in finding probable cause to indict him for a CCE violation. Mechanik and Calandra squarely foreclose that claim. /5/ See Extradition Treaty, June 8, 1972, United States-United Kingdom, Art. IX(1), 28 U.S.T. 229, 232, T.I.A.S. No. 8468; Pet. App. 114a. This provision states, in pertinent part: Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offense of which he is accused had been committed in the territory of the requested Party * * *. /6/ Relying on an excerpt from Shapiro v. Ferrandina, 478 F.2d 894, 909 (2d Cir.), cert. dismissed, 414 U.S. 883 (1973), petitioner also argues (Pet. 15-16) that the doctrine of dual criminality prohibits what he terms "multiple characterization" of the same criminal acts. There is no authority supporting this asserted elaboration on the doctrine of dual criminality. In the cited portion of the Shapiro case, the Second Circuit noted that, when considering a request for extradition of a person arrested in this country, our courts may inquire, "as a matter of domestic law interpreting the international principle of speciality," into whether the offenses with which the defendant is charged are extraditable. In this case, as we demonstrate below, the courts of Hong Kong considered and rejected petitioner's claim that he should not be extradited for trial on the CCE offense, and his prosecution did not violate the principle of specialty. /7/ Like the doctrine of dual criminality, see, supra, note 3, the doctrine of specialty is embodied in the extradition treaty between the United States and the United Kingdom. See Extradition Treaty, June 8, 1972, United States-United Kingdom, Art. XII(1), 28 U.S.T. 229, 233, T.I.A.S. No. 8468; Pet. App. 115a. This Article provides, in pertinent part: A person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters * * *.