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Silberman Case to Forge New Ground : Law: A San Diego federal judge must decide whether roving wiretaps, even on public pay phones, are constitutional. Prosecutors say the wiretaps were vital in the money- laundering investigation.


From a phone at a hotel in San Diego's Mission Valley, reputed mobster Chris Petti reached out on Dec. 5, 1988, and touched prominent San Diego businessman Richard T. Silberman. Though the telephone was a public pay phone, it had been tapped--by FBI agents.

In the phone conversation, Petti and Silberman chatted about laundering money they believed came from Colombian drug lords, federal prosecutors say.

"The thing that was bad about the deal is it was too small. . . . I mean, I'm just doing this to prove to him I can do it, you understand?" Silberman told Petti, allegedly referring to the laundering of $100,000 the week before.

As the phone call went on, Silberman and Petti agreed that plans were uncertain because the man who had delivered the money, whom they both knew as Peter Carmassi--actually an undercover FBI agent--had been vague with both of them. Petti said, "He hates to talk on these things, you know; I'm at a phone booth, so I mean, it's uh, that's the reason I'm talking this much on it."

And that, federal prosecutors said, is precisely the reason why they had to make use of a new law that authorizes law enforcement officials to bug the conversations of a criminal suspect regardless of what telephone or location the suspect might use.

Based largely on leads obtained from those taps, prosecutors last year indicted Silberman, Petti and three other men on federal money-laundering charges.

Their case involves the nation's first use of the "roving wiretap," as it is known by police and lawyers. Because it's the first, no judge has ever had to decide whether the law authorizing roving taps is constitutional.

At a hearing Tuesday at the federal courthouse in downtown San Diego, U.S. District Judge J. Lawrence Irving will become that first judge. Though it's not often that a federal trial court judge makes constitutional history, particularly in high-profile cases, the lawyers in the case say that Irving will do just that when he decides whether the roving taps violate the guarantee against "unreasonable searches and seizures."

Irving will also take up a variety of other challenges to the evidence FBI agents gathered in a 2 1/2-year investigation and hope to use in a trial beginning in April. A key decision will be whether prosecutors may use an FBI report of Silberman's behavior immediately after his arrest last April in a Mission Bay hotel room.

The roving taps, however, led to much of the other information FBI agents eventually learned. If Irving invalidates the law, all the evidence gathered as a result of the taps will be barred from the trial of the five men under a legal doctrine known as "fruit of a poisonous tree."

Because of the opportunity to knock out crucial evidence, because the use of the wiretaps marks a first and because the novelty affords lawyers the unusual opportunity to pontificate upon matters of pure legal theory, the issue has drawn considerable attention from both government prosecutors and the high-powered defense attorneys in the case.

Defense lawyers contend that the roving taps violate the Fourth Amendment's constitutional guarantee against unreasonable searches and seizures, and that everything the FBI learned that can be traced back to the taps must be thrown out.

Silberman's San Francisco lawyer, James Brosnahan, said in his legal papers that the law summoned visions of British redcoats pillaging Colonial dwellings. He said in a recent phone call that the law threatens everyone's privacy, not just that of FBI targets.

"I suspect that, upon being fully informed, most of the citizenry would find this (law) intolerable and a direct threat to their own privacy," Brosnahan said. "Forget about defendants in criminal cases. I'm talking about FBI agents listening to the good folks in San Diego when those people have no idea that's going on."

Prosecutors said that Brosnahan's faintly Orwellian suggestion is far-fetched. The law strikes a balance between the public's "reasonable expectations of privacy" and "law enforcement's duty to detect and prosecute crime," Assistant U.S. Atty. Charles F. Gorder Jr. said in his legal papers.

The Constitution is a living document that sensibly allows police to keep pace with technological change and sophisticated criminal behavior, meaning the leads the FBI developed through the taps were gathered legally, Gorder said in his brief.

"Without the ability to do a roving wiretap, this case would not be here at this point," Gorder said in a recent interview. "It would not have been possible to investigate comprehensively."

The law authorizing standard wiretaps, written by Congress in 1968 and upheld by the federal courts, allows police and prosecutors to bug a particular phone at a particular place.

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