United States v. Isadore Marion , 535 F.2d 697 ( 1976 )

IRVING R. KAUFMAN, Chief Judge:

To guard against the realization of Orwellian fears and conform to the constitutional standards for electronic surveillance operations elaborated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Title III imposes detailed and specific restrictions upon both the interception of wire and oral communications, and the subsequent use of the fruits of such interceptions, in an effort to ensure careful judicial scrutiny throughout. We are called upon to determine whether one of Title Ill’s strictures — requiring subsequent judicial approval for the incidental interception of communications relating to offenses other than those specified in an initial wiretap authorization, 18 U.S.C. § 2517(5) — applies with equal force to wiretaps conducted under state auspices. For the reasons explicated herein, we con-elude that § 2517(5) must control our decision, rather than the counterpart provision of New York’s wiretapping statute, and that the Government failed to comply with that section before utilizing the intercepted communications in federal grand jury and criminal proceedings.

I.

A brief overview of the facts relevant to this appeal will help to place the issues raised in their proper context. On December 20, 1973 and January 8, 1974, Isadore Marion appeared before a federal grand jury of the Southern District of New York under a grant of use immunity, 18 U.S.C. §§ 6001-03. He was questioned on the basis of two conversations intercepted and recorded pursuant to eavesdropping warrants issued by a Justice of the New York State Supreme Court on February 3 (the “Lounge order”) and March 15, 1972 (the “Delmonico order”). The “Lounge order” authorized electronic surveillance of a telephone at Jimmy’s Lounge in Manhattan for the interception of communications relating to various state offenses, including grand larceny by extortion, felonious assault, and conspiracy to commit these crimes, N.Y. Penal Law, Arts. 155, 120, 105. The “Delmonico order”, for the telephone of a suite in the Delmonico Hotel, authorized interception of calls relating, inter alia, to the state offense of possession of dangerous weapons, N.Y. Penal Law, Art. 265.

In the first conversation, intercepted pursuant to the “Lounge order,” Marion asked one Vincent Tortora to “mess up” seven or eight trucks belonging to a New Jersey carter named Capasso.¹ In his December 20 testimony before the grand jury, Marion admitted that he initiated this plan in order to influence Capasso in a pending corporate vote, but repeatedly asserted that he could not recall the nature of that vote. Though Tortora had offered in the course of the conversation to do the dirty deed as a favor, Marion told him to charge for his services but to “be fair though, ’cause there’s good people involved too.” In his grand jury testimony, however, he stated that no one other than he and Tortora had been involved and gave an explanation for his request that Tortora exact a fee that was less than wholly convincing.

The second intercepted conversation, recorded pursuant to the “Delmonico order” between Marion and Jack Denero, involved arrangements for delivery of an “unregistered” “thing” to Marion in Las Vegas. In his December 29 grand jury appearance, Marion acknowledged that they were discussing an unregistered pistol but gave several inconsistent reasons why he wanted the weapon.² In his January 8 testimony, after declining a proffered opportunity to correct or change his prior testimony, he gave yet another reason — that he had sought the pistol in order to sell it in Las Vegas.³

On the basis of the inconsistency between this last declaration and the December 20 statements, Marion was indicted by a federal grand jury for perjury, 18 U.S.C. § 1623(c) (Count 1). His allegedly false and evasive testimony concerning his purpose in seeking the pistol, and less than wholly forthright answers about the truck-wrecking project, constituted the predicate for two counts of obstruction of justice, 18 U.S.C. § 1503 (Counts 2 and 3).

Before trial, Marion moved to have the indictment dismissed because evidence derived from the state authorized electronic interceptions had been presented to the federal grand jury in violation of 18 U.S.C. § 2517(5).⁴ Specifically, he averred that no application had been made to a judge of competent jurisdiction to obtain authorization for use of the contents of the intercepted communications prior to their presentation to the grand jury. Judge Conner rejected the contention that § 2517(5) had been violated as “totally without foundation” and denied the motion to dismiss the indictment.

After a four-day trial before Judge Conner and a jury in the Southern District of New York, Marion was convicted on all three counts. The Government’s proof at trial consisted almost in its entirety of pertinent portions of Marion’s testimony before the grand jury on the two .dates in question and the tapes of the two intercepted conversations. Judge Conner, on November 20, 1975, suspended imposition of sentence and placed Marion on probation for concurrent terms of three years as to each count.

II.

“Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.” Berger v. New York, 388 U.S. 41, 63, 87 S.Ct. 1873, 1885, 18 L.Ed.2d 1040, 1054 (1967). Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., attempts to heed the Supreme Court’s admonitions as it prohibits, in all but a few instances, the interception and disclosure of wire or oral communications. Where the interception may provide evidence of specified serious crimes, however, such activities may be permitted pursuant to the Act’s stringent and detailed procedures designed to restrict electronic intrusions into privacy. Under certain circumstances the Attorney General of the United States — or the corresponding state or local prosecuting attorney, where further authorized by state statute — may apply to a judge of competent jurisdiction for an order authorizing such interceptions. § 2516(1), (2). The application must specify the offense for which evidence is sought. § 2518(l)(b)(i). And before granting the application the judge must determine, inter alia, that probable cause exists for believing that “communications concerning that offense” will be obtained, § 2518(3)(b), and that other investigative procedures either have been tried and failed, or reasonably appear to be unlikely to succeed (or too dangerous) if attempted. § 2518(3)(c). Finally, the judge’s order approving the interception of any wire or oral communication must provide a specific “statement of the particular offense to which it relates.” § 2518(4)(c).

Communications intercepted in accordance with the procedures set forth in Title III, and evidence derived therefrom, may be disclosed and used in federal or state criminal and grand jury proceedings unless the communication “relat[es] to offenses other than those specified in the order of authorization or approval . . . .” § 2517(5). In such instances, a subsequent application must be made to a judge of competent jurisdiction who shall thereupon determine the good faith of the original application before permitting disclosure or use of the incidentally intercepted communications.

Such subsequent application would include a showing that the original order was lawfully obtained, that it was sought in good faith and not as subterfuge search, and that the communication was in fact incidentally intercepted during the course of a lawfully executed order.

S.Rep. 1097, 90th Cong., 2d Sess., at 12, quoted in 2 U.S.Code Cong. & Adm.News, pp. 2112, 2189 (1968); H.Rep. 488, 90th Cong., 1st Sess., at 100.

The framers of Title III presumably intended by this requirement to prevent evasion of the several restrictions upon original applications (e. g., showing of probable cause, enumerated serious crime, ineffectiveness of other investigatory techniques as to that offense). Otherwise, the applicant could easily name one crime while in fact he may have anticipated intercepting evidence of a different crime for which the prerequisites could not be satisfied. Such “subterfuge searches”, in addition to their dissonance with Title III, would indeed run afoul of the Fourth Amendment. Without a judge’s determination of inadvertence, Title III authorization might rapidly degenerate into what Justice Clark recently termed “the electronic equivalent . . . of a ‘general search warrant.’ ” United States v. Brodson, 528 F.2d 214 (7th Cir. 1975).

III.

These general considerations help to guide our resolution of the specific question posed by this appeal: whether subsequent judicial approval was required by § 2517(5) before communications intercepted pursuant to state court authorized wiretaps could be used in the federal grand jury and criminal proceedings. Before reaching that decision, however, we must first resolve an important threshold issue. The Government contends that whether the fruits of the state wiretap orders may be used in federal proceedings must be determined by reference to New York state law,⁵ rather than the federal statute.

We reject this argument, for we believe it clear beyond peradventure that it runs counter to both the overall scheme and specific provisions of Title III. That Act provides the minimum standard against which the interceptions in question must be judged. See S.Rep. 1097, supra, 2 U.S.Code Cong. & Adm.News at p. 2187, quoted in footnote 9, infra. But compare United States v. Tortorello, 480 F.2d 764, 781-83 (2d Cir. 1973), cert. denied 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1974), with United States v. Manfredi, 488 F.2d 588, 598 (2d Cir. 1973), cert. denied 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974).

Section 2515 of Title 18 prohibits the receipt into evidence of intercepted communications or their fruits

in any trial, hearing, or other proceeding in or before any court, grand jury, . or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter. (Emphasis supplied).⁶

Any aggrieved person, as defined by 18 U.S.C. § 2510(11), may move to suppress the contents or fruits of an intercepted communication in a federal or state trial, hearing, or other proceeding on the grounds that “the communication was unlawfully intercepted”, that the authorizing order was insufficient, or that the interception failed to conform with that order. 18 U.S.C. § 2518(10)(a).⁷

Here, of course, the two conversations in issue were used in federal proceedings. Thus, despite the fact that the interceptions were made pursuant to a state court authorization, at the very least the other requirements of Title III — including § 2517(5) — must be satisfied.⁸ But whether the proceedings be federal or state, interpretation of a state wiretap statute can never be controlling where it might impose requirements less stringent than the controlling standard of Title III.⁹ If a state should set forth procedures more exacting than those of the federal statute, however, the validity of the interceptions and the orders of authorization by which they were made would have to comply with that test as well. See, e. g., United States v. Manfredi, supra, 488 F.2d at 598 n. 7; S.Rep. 1097, supra, quoted in 2 U.S.Code Cong. & Adm.News at p. 2187 (1968) and note 9, supra.

The Government’s belief that New York State’s eavesdropping statute nonetheless controls, despite these compelling considerations, is founded upon a misreading of our decision in United States v. Tortorello, 480 F.2d 764, 782-83 (2d Cir. 1973), cert. denied 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1974). There New York State authorities intercepted conversations relating to the acquisition and distribution of fraudulent securities (a federal offense) pursuant to a state eavesdropping warrant authorizing interception of communications relating to the acquisition and distribution of stolen securities. The Tortorello panel noted the Government’s argument that no authorization subsequent to the original order was required because no state crime specifically dealt with stock fraud. But, it went on to hold that the requirement of further validation was satisfied because of the “notification” given the issuing judge “in the renewal and amendment application papers” submitted after the original authorization that evidence of other, federal crimes had been intercepted. 480 F.2d at 783. See also United States v. Rizzo, 492 F.2d 443, 447 (2d Cir.), cert. denied, 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974) (evidence of counterfeiting intercepted pursuant to state wiretap authorization, subsequent approval by reference to renewal papers).¹⁰

By its holding that the original order was, in effect, amended by reference to renewal application papers, the Tortorello panel recognized that the statute’s requirements did have to be met despite the similar nature of the offenses involved.¹¹ In this fashion, the requisite judicial approval for the incidental interceptions of calls pertaining to the federal offense was obtained, and the statutory requirement thus satisfied.

IV.

Viewing the challenged interceptions in the light of § 2517(5), our inquiry becomes both narrow and relatively straightforward. When an investigative or law enforcement officer engaged in an authorized electronic surveillance operation

intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval,

subsequent judicial approval must be obtained before the contents of such communications may be disclosed or used in any criminal or grand jury proceeding. 18 U.S.C. § 2517(5) (emphasis supplied). See also 18 U.S.C. § 2517(3), amended in 1970 to encompass disclosure in non-criminal proceedings as well. In this case, the District Attorney of the County of New York was authorized by the February 3, 1972 wiretap order — the “Lounge order” — to intercept communications providing evidence of various state offenses, including grand larceny by extortion and conspiracy to commit that crime. The fruits of the tap were later used before a federal grand jury conducting an investigation into possible violations of 18 U.S.C. §§ 1951, 371 (interference with interstate commerce by threats or violence, interstate travel and transportation in aid of racketeering). As to the Lounge order and the Marion-Tortora conversation intercepted pursuant thereto, we conclude that § 2517(5) approval was provided in the renewal of that order by a Justice of State Supreme Court on March 8, 1972.¹² We find that the affidavit of Assistant District Attorney Goldstock clearly provided the state judge — who had initially authorized the first Lounge wiretap one month before — with notification that possible federal offenses might be implicated. And we presume, as in United States v. Tortorello, supra, that in renewing the tap the judge carefully scrutinized those supporting papers and determined that the statute’s requirements had been satisfied.

The second (“Delmonico”) wiretap order was directed to proof of, inter alia, the state crime of illegal possession of dangerous weapons, and was never renewed, extended, or amended. See footnote 14, infra. But the intercepted communication was used to question Marion before the grand jury about possible violations of the federal statute concerned with the transportation and transfer of an unregistered firearm through interstate commerce, 18 U.S.C. §§ 371, 922.

It is clear beyond all doubt that this federal offense was separate and distinct from the alleged state crime which formed the predicate for the original Delmonico wiretap authorization, and thus falls within the ambit of § 2517(5).¹³ Cf. United States v. Brodson, supra. Because the conversation here in question clearly did relate to offenses “other than those specified” in the state court’s March 15,1972 order of authorization, and since the Government failed to obtain the subsequent judicial approval¹⁴ required by § 2517(5) for that interception, Marion’s conviction for perjury and the first count of obstruction of justice must be reversed.¹⁵

The dissenting opinion of our brother Anderson suggests that this conclusion “abolishes this Circuit’s adoption of the relatively broad definition of closely related state and federal offenses” and in its place “substitutes the test of exactly similar essential elements in both the state and federal crimes.” Although the dissent believes our prior decisions “enunciated” the broader definition, it appears to concede in the same breath the ineluctable fact that this precise point has never (before today) been explicitly decided by this Court.

In United States v. Grant, 462 F.2d 28 (2d Cir. 1972), for example, the appellants argued only that the state statute did not, among the enumerated offenses for which wiretaps could be initially authorized, include the conduct there at issue. The Grant panel merely ruled that the New York definition of larceny “is sufficiently broad to encompass the conduct involved in this case” for the purposes of N.Y.Crim. Proc.Law §§ 700.10, 700.05(8) (enumerating predicate offenses for wiretap orders).

To say that conduct falls within the broad definition of a state offense is toto cáelo from saying that the state crime and some similar provision of the federal criminal code were, for the purposes of § 2517, so closely related as to obviate the need for subsequent judicial approval. Resolution of the first question does not provide sufficient basis (contrary to our brother Anderson’s suggestion) to infer how the same court might have resolved the second, wholly unrelated issue — particularly when the latter was never raised. As our dissenting brother concedes, the Grant panel did not reach the question whether the state and federal statutes described different offenses for purposes of § 2517. With all due respect, it may be less than helpful to divine how that court might have decided a question it never faced. Certainly it is somewhat tenuous to characterize the resolution of the § 2517 issue squarely faced for the first time today as being “at odds” with Grant on the basis of no more than a guess derived from the Grant panel’s holding on quite a different point.

Nor can we agree that the dissent’s generous reading of Grant finds support in footnote 17 of this Court’s decision in United States v. Tortorello, supra, 480 F.2d at 783. The citation of Grant was directed merely to whether federal securities laws violations might be “encompassed” within the state crime of larceny. It did not cite Grant on the “specific point” that “the supporting affidavits made clear the specific crimes being investigated,” as our brother Anderson suggests. As already noted, and as Judge Anderson agrees, the Tortorello panel held that the subsequent approval requirement had been satisfied by the procedures observed (amendment by reference to affidavits). Clearly if the Tortorello court had accepted the Government’s alternative argument that “there was no need to amend the provisions of the order,” such a holding, clearly denominated as such, would have been unnecessary. The support which our dissenting brother seems to derive from Tortorello is totally ephemeral, and certainly fails to contradict our conclusion today.

Thus apart from Tortorello and United States v. Rizzo, see footnote 10, supra, where the requirement of subsequent judicial approval was held to have been satisfied, no prior decision of this court has ever considered the § 2517 question. And no holding of this or any other court interpreting Title III has been drawn to our attention that might be said to be inconsistent with the conclusion of this opinion that subsequent judicial approval is required where the intercepted communication relates to “offenses other than those specified” in the initial wiretap order.

In urging a contrary result, the Government in its brief decries the “literalism” in construing § 2517(5) which recently prompted two federal courts, in analogous situations, to dismiss indictments for failure to comply with that section. See United States v. Brodson, supra; United States v. Campagnuolo, 168 U.S.App.D.C. 227 (S.D. Fla., Dec. 31, 1975). But cf. United States v. Moore, 513 F.2d 485, 500-03 (1975) (interpreting the local District of Columbia analogue to Title III). While § 2517(5) requires subsequent validation before use in a criminal or grand jury proceeding of intercepted communications “relating to offenses other than those specified in the order of authorization”, the Government urges that this language be read to require judicial approval only where the communication is “totally unrelated” to the previously specified offense.¹⁶

We recognize that the so-called “plain-meaning rule” of statutory construction has fallen upon justifiably hard times. See, e. g., Murphy, Old Maxims Never Die, 75 Colum.L.Rev. 1299 (1975). But where both the words of the statute and the clearly expressed intent of its drafters point inescapably to the same conclusion, we must decline to redraft the legislative enactment simply to avoid speculative adverse consequences that might flow from its proper construction.

Mr. Justice Clark, writing for a unanimous panel of the Seventh Circuit, rejected a similar argument in United States v. Brodson, supra. There it was contended that because the intercepted conversations “related to” both the federal gambling offense named in the order authorizing the wiretap and to the slightly different federal gambling offense for which Brodson was indicted, further court approval was unnecessary. The Brodson panel noted that the two offenses involved dissimilar elements and required different evidence, “even though some of it might overlap because both concern illegal gambling.” 528 F.2d at 216. The opinion went on to hold, however, that the controlling factor was not the dissimilarity of the offenses, “but the fact that the Government itself has violated the key provision of the legislative scheme of Section 2515, in that it did not comply with the mandate of Section 2517(5).” We agree, moreover, with its conclusion that

Any exceptions from [the] broad language [of § 2515] must be strictly construed in order to carry out the purpose of the Congress and make certain that the privacy of the individual is protected as so provided.¹⁷

Strict compliance with the requirements of § 2517(5) and the other strictures imposed by Title III is no less essential. See United States v. Capra, 501 F.2d 267, 276 (2d Cir. 1974). Congress carefully circumscribed utilization of the occasionally useful but potentially dangerous law enforcement tools of electronic surveillance in an effort to comply with the Fourth Amendment and to “protect effectively the privacy of wire and oral communications [and] the integrity of court and administrative proceedings.” Pub.L. 90-351, Title III, § 801. To ignore or gloss over these restrictions, or view them as mere technicalities to be read in such a fashion as to render them nugatory, then, is to place in peril our cherished personal liberties.¹⁸

V.

The practical consequences of our decision are far less substantial than those suggested by the parties to this appeal. Where an otherwise valid electronic surveillance operation intercepts communications “relating to offenses other than those specified” in the original order of authorization— whether or not they also relate to the specified crimes — application must be made as soon as practicable to a judge of competent jurisdiction before those communications or their fruits can be used in a criminal, grand jury, or other proceeding, 18 U.S.C. § 2517(5). The frequency with which wiretap applications are routinely granted suggests that this result will neither cripple the Government’s efforts to engage in electronic surveillance, nor tie its hands in the fight against crime.¹⁹

Nor do we believe, contrary to the concern expressed in Judge Anderson’s opinion, that this interpretation will “probably enlarge the scope of the suppression hearings ..” Suppression hearings are now being conducted routinely where wiretap derived evidence is to be introduced, and mere inquiry whether the minimal requirements of § 2517 have also been satisfied will not add to the judge’s burdens. It is, in any event, a condition Congress has deliberately chosen to impose as a protective procedure in “creating an investigative mechanism which potentially threatened the constitutional right to privacy . . ..” United States v. Capra, 501 F.2d 267, 276-77 (2d Cir. 1974).

Finally, our holding does not “call into question” the practice of joint federal-state wiretap investigations. Indeed, Title Ill’s framers seem to have specifically envisioned cooperation among law enforcement authorities of different jurisdictions where appropriate to enhance the effectiveness of electronic surveillance operations. See, e. g., 18 U.S.C. § 2517(1), (2). If, for example, federal officials called into an ongoing state wiretap operation learned at that time of communications relating to separate federal offenses not specified in the initial interception order, there would be little difficulty in obtaining the requisite subsequent approval pursuant to § 2517. And where federal and state officers pursue an investigation jointly from its inception, we foresee little difficulty for the appropriate federal officer to obtain a separate order authorizing the interception of communications relating to the federal offenses believed involved.²⁰

Where a state wiretap discloses evidence of possible federal offenses, as here, we would read the “as soon as practicable” language of the section in a common-sense fashion. That is, if federal authorities are to use in federal proceedings the intercepted communications or evidence derived therefrom, approval must be secured “as soon as practicable” after they learn (or should reasonably have learned) of the relevant contents of those communications. In all events, however, the judge must make his finding, explicitly or otherwise, that the contents were “otherwise intercepted in accordance with the provisions of [Title III]” before any use or disclosure thereof in criminal, grand jury, or other proceedings. 18 U.S.C. § 2517(5), (3).²¹

We do not, however, read Title III to restrict (as urged by appellant at oral argument) the grant of subsequent judicial approval in that context solely to federal judges. Situations can be readily envisaged wherein the state judge who initially authorized the wiretap would be in a far better position to gauge the bona fides of the original application and the incidental nature of the interception of conversations concerning possible federal offenses. Nor does the statute itself draw such a fine distinction among judges “of competent jurisdiction.” See 18 U.S.C. § 2510(9).²²

The Government here failed to secure subsequent judicial approval, whether from a state or federal judge, at any time before the Marion-Denero conversation concerning the delivery of an “unregistered thing” was used in the federal grand jury proceedings and Marion’s trial. In view of this failure to comply with § 2517(5), his conviction for perjury and one count of obstruction of justice, which were derived from that conversation, cannot stand.

Because we conclude, however, that the interception of the conversation in which the truck-wrecking scheme was discussed was properly validated by the State court judge upon renewal and extension of the “Lounge order”, we affirm Marion’s conviction on the second count of obstruction of justice.

Affirmed as to Count 3, reversed as to Counts 1 and 2.

1 . This scheme, for reasons not here relevant, was never brought to fruition.

2 . “Just kidding around”, just testing Denero, really didn’t know why, “just to have another pistol around the house”, etc.

3 . Marion subsequently declined a second opportunity to correct his testimony and was then excused.

4 . Section 2517(5) provides:

(5) When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used as provided in subsections (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds pn subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.

5 . New York Crim.Pro.Law § 700.65(4), the state’s counterpart to 18 U.S.C. § 2517(5), provides:

When a law enforcement officer, while engaged in intercepting communications in the manner authorized by this article, intercepts a communication which was not otherwise sought and which constitutes evidence of any crime that has been, is being or is about to be committed, the contents of such communications, and evidence derived therefrom, may be disclosed or used as provided in subdivisions one and two. Such contents and any evidence derived therefrom may be used under subdivision three when a justice amends the eavesdropping warrant to include such contents. The application for such amendment must be made by the applicant as soon as practicable. If the justice finds that such contents were otherwise intercepted in accordance with the provisions of this article, he may grant the application, (emphasis supplied).

6 .“[§ 2515] does apply across the board in both Federal and State proceeding.” S.Rep. 1097, supra, quoted in 2 U.S.Code Cong. & Adm. News at p. 2185 (1968).

7 . “The words ‘unlawfully intercepted’ are themselves not limited to constitutional violations,” but include a failure to satisfy requirements of Title III as well. United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341, 360 (1974) (suppressing wiretap-derived evidence for failure to have the U.S. Attorney General or specially designated Assistant Attorney General authorize application to judge for order approving interceptions).

8 . Our conclusion that § 2517(5) applies with equal force to electronic surveillance operations conducted pursuant to state court authorization is further buttressed by the language of that section. It applies “[w]hen an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein . . .” 18 U.S.C. § 2517(5) (emphasis supplied). The principal prosecuting attorneys of states or of their political subdivisions are authorized by 18 U.S.C. § 2516(2) (if further authorized by state statute) to apply to a state court judge of competent jurisdiction for an order approving the interception of communications. Thus we would read “in the manner authorized herein” to include both state court and federal court wiretap orders.

9 . No [State] applications may be authorized unless a specific State statute permits it. The State statute must meet the minimum standards refíected as a whole in the proposed chapter. The proposed provision envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation. S.Rep. 1097, supra, quoted in 2 U.S.Code Cong. & Adm.News at p. 2187 (1968) (emphasis added). See also H.Rep. 488, 90th Cong., 1st Sess. (1967).

10 . In the instant case, as in Tortorello, supra, the Assistant District Attorney incorporated into his affidavit supporting the amendment and renewal of the Heimerle wiretap, the transcripts of five conversations intercepted concerning the scheme to distribute counterfeit money.

Government’s Brief, pp. 21-22, in United States v. Rizzo, supra. The Rizzo panel rejected a § 2517(5) claim on the basis of Tortorello, supra, noting that “the facts here are for all intents and purposes identical to those in Tortorello.” A similar situation is presented here by the “Lounge order” tap, in its renewal and extension by the state court judge on March 8, 1972, and thereafter. See text accompanying note 12, infra. By contrast, the record does not disclose that any neutral judge was ever called upon to determine (even by reference) whether the interception made pursuant to the “Delmonico order” relating to federal offenses was incidental and in good faith. See footnote 14, infra.

11 . Its observation in a footnote that “it may be that amendment was not required by New York law under the circumstances of this case,” 480 F.2d at 782, n. 16 (emphasis added), was nothing more than an en passant comment upon which the Court’s holding did not rest. In the same footnote the Tortoreilo panel quoted from a memorandum prepared by the State Commission on Revision of the Penal Law and Criminal Code in 1966 to a predecessor to N.Y. C.P.L. § 700.65(4). The portion excerpted suggested that subsequent judicial approval would be required by that statute if the communication was “totally unrelated to the crime for which the warrant was issued.” McKinney’s 1966 Session Laws of New York, Memorandum 2293, 2296. This view, articulated before the Supreme Court’s decisions in Katz and Berger, may be said to find at least marginal support in the language of § 700.65(4) (referring to “a communication which was not otherwise sought . . . .”). But see People v. Gnozzo, 31 N.Y.2d 134, 335 N.Y.S.2d 257, 263, 286 N.E.2d 706, 710 (1972), cert. denied sub nom. Zorn v. New York, 410 U.S. 943, 93 S.Ct. 1373, 35 L.Ed.2d 610 (1973). It cannot, in any event, prevail in the face of § 2517(5)’s clear mandate, which we find controlling for the reasons discussed in this opinion.

12 . We find it incomprehensible and, at the same time, rather disturbing that the Government failed to bring to this Court’s attention the fact that the Lounge order was renewed on several occasions. Its brief merely observes that

The Lounge order was the first of a net of 29 state wiretap warrants the propriety of whose execution — with respect to matters not here at issue — was twice affirmed by this Court. United States v. Rizzo, 491 F.2d 215 (2d Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974); United States v. Rizzo, 492 F.2d 443 (2d Cir.), cert. denied, 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974).

13 . We recognize that it might be said in both instances that the communications related to the state crimes named in the wiretap orders. For example, Marion’s efforts to influence a corporate vote with his truck-wrecking scheme might have arguably fallen within New York’s definition of grand larceny by extortion, or conspiracy to commit that crime. Cf. People v. Spartarella, 34 N.Y.2d 157, 356 N.Y.S.2d 566, 313 N.E.2d 38 (1974) (construing “property” for N.Y. extortion statute, Penal Law § 155.-05(2)(3), to include certain intangible rights). We do not find this relevant, however, for the communications also related to the distinct federal offenses later under investigation by the grand jury.

We find ourselves in total disagreement with the conclusion reached by our dissenting brother that the state and federal offenses here at issue were “closely enough related to consider them as the same for the purpose of § 2517(5) . . .” The differences between possession of a dangerous weapon and the transportation and transfer of an unregistered firearm in interstate commerce, for example, should be readily apparent. Cf United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 524, 30 L.Ed.2d 488, 498 (1971); United States v. Bell, 524 F.2d 202 (2d Cir. 1975). And, in view of our conclusion that approval for the interception of the truck-wrecking call was obtained under the Tortorello rationale of implicit authorization, we need not decide whether the state crime of grand larceny by extortion and the federal offense of obstructing or delaying interstate commerce by threats or violence could be considered sufficiently similar to obviate any need for § 2517 approval.

14 . Section 2517(5) provides that the application “shall be made as soon as practicable.” In all events, however, approval of the serendipitous interceptions must be obtained before their contents or fruits are used, pursuant to § 2517(3), in any criminal or grand jury proceeding. See infra at Part V. The record does not disclose that any application was ever made for such approval in connection with the Delmonico order, or even for its renewal or extension. We cannot agree with our dissenting brother that approval of the Marion-Denero call, intercepted by the Delmonico tap, was provided by the fact that the state court judge was informed of that call when he renewed the separate wiretap for Jimmy’s Lounge. It would stretch the rationale of Tortorello beyond all meaning to hold that implicit authorization may be furnished in this fashion. In Tortorello the orders, “by referring to the affidavits [supporting renewal and amendment of the original order] for a description of offenses and communications to be intercepted, were amended as the contents of the affidavits changed.” 480 F.2d at 783. The dissent today seemingly suggests that the Delmonico order was amended by reference to affidavits submitted in support of applications to renew and extend the Lounge order, a conclusion we And logically untenable and not in compliance with Title III. The state court judge was not called upon at any time to pass upon the validity of the interception here challenged. To say that the Delmonico order “became merged into” the Lounge order simply because each was directed generally at similar criminal conduct would extend the logic of Tortorello past its breaking point.

15 . We have considered Marion’s other claims and find them without merit. And, although the question was not argued by the parties, we do not believe the unauthorized use of the conversations in the federal proceedings was either harmless or waived. While Marion might have invoked 18 U.S.C. § 2515 as a defense had he refused to answer grand jury questions derived from the interceptions, Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972), he did not do so. See also 18 U.S.C. § 3504(a)(1). Under the circumstances of Marion’s two grand jury appearances, this may connote ignorance more than conscious and voluntary waiver. In any event, however, he did raise the question of non-compliance with § 2517(5) in a pre-trial motion to dismiss the indictment.

Moreover, but for the two challenged conversations, Marion would, not have been called before the grand jury. His testimony before that body, arguably “derived from” those calls, and recordings of the interceptions, constituted the Government’s principal evidence in his federal trial for perjury and obstruction of justice. Under these circumstances, his conviction for perjury and the first count of obstruction of justice are irremediably tainted by the § 2517 (5) violation.

16 . See, e. g., Government’s Brief at 11-12, n. **. Compare 18 U.S.C. § 2518(5), requiring that surveillance operations “be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter .

17 . “Section 2515 is thus central to the legislative scheme. Its importance as a protection for ‘the victim of an unlawful invasion of privacy’ could not be more clear.” Gelbard v. United States, 408 U.S. 41, 50, 92 S.Ct. 2357, 2362, 33 L.Ed.2d 179, 188 (1972).

18 . See, e. g., United States v. Giordano, 469 F.2d 522, 530 (4th Cir. 1972), affirmed, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974); United States v. Narducci, 341 F.Supp. 1107, 1115 (E.D.Pa.1972), affirmed, 500 F.2d 1401 (3d Cir. 1974).

19 . In the calendar year 1974, for example, 99.67% of all applications to intercept wire or oral communications made to state courts, and 100% of such applications to federal judges, were granted. Similarly, during the same period, 356 of 358 applications for extension or renewal of interception orders were granted. Administrative Office of the United States Courts, Report on Applications for Orders Authorizing or Approving the Interception of Wire or Oral Communications, Jan. 1, 1974 — Dec. 31, 1974, at III, IV.

20 . While to some such a pas de deux, i. e., of requiring separate state and federal orders, may appear cumbersome or duplicative, it is the necessary result of a statutory schema which restricts federal and state wiretaps, in the first instance, to enumerated federal and state offenses respectively. See, e. g., 18 U.S.C. § 2516; N.Y.Crim.Proc.Law §§ 700.10, 700.05(8). Inasmuch as the interception of communications relating to different federal offenses would not, under those circumstances, be incidental, it would be neither unduly onerous nor inappropriate under Title III to secure separate prior judicial authorizations. Certainly it would not destroy flexibility in joint investigations, nor deter their utilization in proper cases.

21 . By our conclusion that subsequent approval was conferred by the state judge’s renewal of the Lounge order, see note 12 and accompanying text, supra, we recognize that such approval need not be accompanied by an explicit finding enunciated on the record of compliance with Title III. See, e. g., United States v. Tortorello, supra, 480 F.2d at 783; United States v. Rizzo, supra, 492 F.2d at 447. We note, however, that such implicit authorization procedures are susceptible to possible uncertainty as they are reviewed for their consonance with § 2517(5).

We would hope, therefore, in view of the clear dictates of our ruling in this case, that in the future law enforcement officials will as a matter of prudence seek to secure explicit approval of such incidental interceptions. Such efforts should not be unduly burdensome, see note 19, supra, particularly where the issuing judge has been made aware of the results of the surveillance operation while it is still in progress.

22 . As used in this chapter—

. (9) “Judge of competent jurisdiction” means—

(a) a judge of a United States district court or a United States court of appeals; and

(b) a judge of any court of general criminal jurisdiction of a State who is authorized by a statute of that State to enter orders authorizing interceptions of wire or oral communications .

18 U.S.C. § 2510(9) (emphasis added). See also United States v. Tortorello, supra, 480 F.2d at 782-83.