Judge Hears Debate on Use of ‘Roving Wiretap’ : Indictment: Lawyers for Silberman, and four others charged with money laundering, challenge scope of law.

A federal judge sat quietly and offered no clues to his views as lawyers argued Tuesday over whether the nation’s first use of a “roving wiretap,” a tap on multiple phones that led to the indictment of San Diego businessman Richard T. Silberman, was legal.

All U.S. District Judge J. Lawrence Irving--the first judge in the country to consider the legality of the new law under which FBI agents carried out the taps--offered at a daylong hearing Tuesday was that it was a “key issue” and he hoped to decide it soon.

Irving heard argument on various issues raised by lawyers for Silberman, reputed mobster Chris Petti and three other men, all indicted on federal money-laundering charges, but made no rulings Tuesday on any of them.

Most of those seven issues were defense requests to dismiss charges for perceived technical defects in the way they were detailed in the indictment. Eleven issues remain to be argued when the hearing resumes today, including whether prosecutors may use an FBI report of Silberman’s behavior immediately after his arrest last April 7.

Silberman, the husband of county Supervisor Susan Golding, is accused with Petti and the three others of laundering $300,000 in cash that an undercover agent allegedly characterized as proceeds from Colombian drug dealers. Their trial is scheduled to begin in April.

At Tuesday’s session, the beginning of the major pretrial hearing scheduled in the case, much of the lawyers’ attention focused on the “roving wiretap” issue, both because it was a first and because of the opportunity defense lawyers saw to knock out key evidence.

One of Silberman’s lawyers, George Harris of San Francisco, told Irving that the taps, carried out under a 1986 law, violated the constitutional bar against “unreasonable searches and seizures.”

The law allows authorities to bug the conversations of a criminal suspect regardless of what telephone or location a suspect might use. The roving taps, through which agents heard Silberman, were aimed initially at Petti, and were carried out from July, 1987, through early 1989.

A traditional wiretap requires police to satisfy the Constitution by obtaining a warrant that “particularly describes” the phone to be tapped, Harris said. Since that was impossible with a “roving” tap, because it contemplates the use of many phones, the new law is fatally flawed, Harris said.

If the law is illegal, any evidence gathered from the taps is tainted and must be barred from use at the trial, Harris contended.

Petti’s lawyer, Oscar Goodman of Las Vegas, told Irving that the use of the taps was not only illegal but unnecessary. The surveillance that eventually led to Silberman began with information on Petti that a confidential informant, Robert Benjamin, had provided since September, 1986, Goodman said.

By July, 1987, Goodman said, when U.S. District Judge Gordon Thompson, the chief federal judge in San Diego, first authorized a roving tap, Benjamin had given prosecutors so much information about Petti--and an alleged scheme by the Chicago mob to take over the gaming operations of the Rincon Indians in San Diego County--that there was no need for any taps.

The money-laundering operation that prosecutors have alleged was linked to the Indian gambling investigation through Petti, the original target of the FBI investigation.

Federal prosecutors said the taps were necessary, because Benjamin was not--nor could he have been--at every important conversation. Further, Benjamin’s credibility as a trial witness was suspect because he has been convicted of eight felonies, Assistant U.S. Atty. Charles F. Gorder Jr. said.

Gorder asked Irving to “resoundingly affirm” the constitutionality of the roving wiretap law, saying it allows authorities to keep pace with sophisticated criminal suspects who use various phones to try to avoid detection.

“There is a flexibility inherent in (the Constitution) to adapt to changing conditions and changing times,” Gorder said.

Silberman’s lead defense lawyer, James Brosnahan, said at the beginning of the day that defense attorneys saw Tuesday’s hearing as “the first time to talk about this case in a meaningful way.”

“We have not come with little technicalities,” Brosnahan told Irving. “We have come with substance, as Your Honor will see.”

Defense lawyers spent all morning, however, urging Irving to dismiss most of the seven counts in the indictment for various technical flaws.

For instance, the heart of the case, the money-laundering charges detailed in counts two and three, were brought under a law that makes it a crime to launder cash “represented” by a federal agent to be drug-related.

The use of that word meant FBI agents had to say explicitly that the money prosecutors claim the five men laundered came from

drug trafficking, Brosnahan said.

FBI agents hinted and suggested that was the case, but never did they say so directly to Silberman, Brosnahan said.

“They knew if they said so directly, Mr. Silberman would get up and leave,” Brosnahan said. “They never did it.”

Assistant U.S. Atty. Carol Lam said defense lawyers were being far too picky. The issue, she said, is what Silberman and the others believed at the time of any discussions with FBI agents, and that will be for the jury to decide, not the judge two months before trial.

The defense is expected to ask today that prosecutors confirm that Benjamin, as Brosnahan claimed late Tuesday, was “prone to violence.”

Brosnahan would not comment after the hearing on “the implications of any violence.” He said, “There’s a whole part of this case that’s never been told. We know about it. The question is now put squarely to the government.”