Petition — Doolittle v. United States

Supreme Court brief1975

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PES SP ME ee Virdee

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IN THE OCT 2 hors

Supreme Court of the Armted States

OCTOBER TERM, 1975. ail

— reme we

“75-518

BILLY CECIL DOOLITTLE,

WILLIAM AUGUSTUS SANDERS, JR.,

ERNEST MASSOD UNION,

JULIAN WELLS WHITED,

WILLIAM E. BAXTER,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OSCAR B. GOODMAN, ESQ.

STEPHEN STEIN, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorneys for Petitioners

DOOLITTLE, SANDERS & BAXTER

FLOYD M. BUFORD, ESQ.

Byrd, Groover & Buford

P.O. Box 755

Macon, Georgia 31202

Telephone: (912) 742-3605

Attorney for Petitioners

UNION and WHITED

isc

Washington, O.C. « CLO PUBLISHERS « LAW PRINTING CO. « (207) 393-0626

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TABLE OF CONTENTS

Page

OPINIONS BELOW .nwccccccccsccccccens 2

Pl eee 2

QUESTIONS PRESENTED FOR REVIEW . 2

STATUTES INVOLVED ..ncccccccccccvces 3

STATEMENT OF THE CASE .......++++++9 4

REASONS FOR GRANTING THE WRIT .............,

l THE GOVERNMENT FAILED TO

IDENTIFY IN THE PRESENT WIRETAP

APPLICATION PERSONS WHO THE

GOVERNMENT HAD PROBABLE CAUSE

TO BELIEVE WERE COMMITTING THE

OFFENSE AND WHOSE COMMUNICA.

TIONS WERE TO BE INTERCEPTED;

SUCH FAILURE TO SO IDENTIFY RE.

QUIRES SUPPRESSION OF THE SEIZED

TTT TT Te as

ll. THE GOVERNMENT FAILED IN THE

PRESENT APPLICATION TO SATISFY

THE REQUIREMENTS OF 18 USC.

DEE EOUEEEIE, cc eaceeceseececeencewwes 10

Pt sine eucaaclh chau en en & biiecae « . cal eae

APPENDIX:

0 5 la

B. En Banc Opinion Below .......... ccc evens lb

C. Order Granting En Banc Rehearing ............. le

D. Judgment of En Banc Court Below ............. Id

E. Opinion, U.S. v. Kalustean, USCA, 9th Cir

a ee ee ee le

(ii)

Page

TABLE OF AUTHORITIES

Cases:

United States v. Bernstein, 509 F.2d 966 (4th Cir.,

1975) cert. pending, No. 74-1486, filed 5/27/75 ....... 9

United States v. Chavez, 416 U.S. 562, 574, 575

0 re ret bare hehe TY 8

United States v. Donovan, 513 F.2d 337 (6th Cir.,

PE cdsaeneescsaseeesteoreusaveevteet en 9-10

United States v. Giordano, 416 U.S. 505 (1974) ....... 8, 11

United States v. Kahn, 415 U.S. 143 (1974) .........4.5. 8

United States v. Kalustian, No. 74-3314, August 4,

a errs rer aT ere eT RE ET eT 1]

United States v. Moore, 513 F.2d 485 (D.C, Cir.,

1975) petition for rehearing en banc pending ......... 10

Statutes:

PO ocouekeweunedéebedeesiaetastas es 4

PC vo ccteeedevctuceaveeeeuesww es 4-5

0 rrr rr rr errr rr re) te ee 4

i ee eeseeneesnse eeeenee 3

18 U.S.C. § 251801 MbMiv) «6 we eee wUTerrrry ff,

1B UB.C. B2SIBLIMe) on ccc ccc ccc ccvcsveee dy Oy OG, EE

SEU sMEMED ccocccecseveceeeneceuens 2

Georgia Code Annotated

OS, | Sr er eee ea 7

Section 26-2706 ......... vrTrcrT ee Te

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No.

BILLY CECIL DOOLITTLE,

WILLIAM AUGUSTUS SANDERS, JR..,

ERNEST MASSOD UNION,

JULIAN WELLS WHITED,

WILLIAM E. BAXTER,

Petitioners.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners, BILLY CECIL DOOLITTLE.,

WILLIAM AUGUSTUS SANDERS, JR., ERNEST

MASSOD UNION, JULIAN WELLS WHITED, and

WILLIAM E. BAXTER, respectfully pray that a Writ of

Certiorari issue to review the opinion and judgment of

the United States Court of Appeals for the Fifth Circuit

entered en banc in this proceeding on September 2,

1975.

OPINIONS BELOW

The initial opinion below, with one judge dissenting,

was rendered by a three-judge panel of the United

States Court of Appeals for the Fifth Circuit, and was

filed on February 14, 1975. This opinion is reported at

507 F.2d 1368 and is attached hereto as Appendix

“-”

Following en banc consideration a final opinion (with

six judges dissenting) was filed on September 2, 1975.

This opinion is reported at 518 F.2d SOO and is

attached hereto as Appendix “B”.

JURISDICTION

Following the panel opinion of February 14, 1975

(Appendix “A’’), a petition for rehearing and suggestion

for rehearing en banc was granted on April 7 1975. A

copy of this order is attached hereto as Appendix “C”,

The judgment on the opinion of the en banc Court was

entered on September 2, 1975, and is attached hereto

as Appendix “D”,

This Court's jurisdiction is invoked under 28 U.S.C,

§ 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether 18 U.S.C. § 2518(1)(b)(iv) requires th

identification in a wiretap application of all persons

who the Government has probable cause to believe will

participate in conversations over the telephone line to

be interce?ted, and whose conversations relate to the

illegal act¥ity for which the wiretap application is

submitted: and if such identification is required,

whether fillure by the Government to so identify is

grounds fo suppression of the seized conversations.

2. Whetier the Government adequately complied

with the 2rovisions of 18 U.S.C. §2518(1)(c), which

requires a full and complete statement as to whether

or not ot?¢er investigative procedures have been tried

and failed Of why they reasonably appear to be unlikely

to succeed if tried or to be too dangerous.”

STATUTES INVOLVED

18 U.S «. § 2518. Procedure for interception of wire

or oral comMunications.

(1) Fach application for an order authorizing or

approvirg the interception of a wire or oral

commurpication shall be made in writing upon oath

or affirmation to a judge of competent jurisdiction

and shd/ state the applicant’s authority to make

such ap?lication. Each application shall include the

followirg information:

* * *

(b) a full and complete statement of the facts

and circumstances relied upon by the applicant, to

justify his belief that an order should be issued,

includirg ... (iv) the identity of the person, if

known, committing the offense and _ whose

commutications are to be intercepted;

or not Other investigative procedures have been

tried ard failed or why they reasonably appear to

be unlikely to succeed if tried or to be too

dangerc¥s,

* * *

(4) Each order authorizing or approving the

interception of any wire or oral communication

shall specify —

(a) the identity of the person, if known,

whose communications are to be intercepted;

* * *

(10)(a) Any aggrieved person in any trial,

hearing, or proceeding in or before any court,

department, officer, agency, regulatory body, or

other authority of the United States, a State, or a

political subdivision thereof, may move to suppress

the contents of any intercepted wire or oral

communication, or evidence derived therefrom, on

the grounds that —

(i) the communication was unlawfully inter-

cepted;

(ii) the order of authorization or approval

under which it was intercepted is insufficient on

its face; or

(iii) the interception was not made in con-

formity with the order of -authorization or

approval. (Emphasis Supplied)

STATEMENT OF THE CASE

Petitioners herein, along with four other individuals,

were indicted by a Federal Grand Jury sitting in the

Middle District of Georgia, Macon Division. The

indictment charged conspiracy in connection with the

use of a facility in interstate commerce in aid of an

unlawful activity, to-wit: gambling (18 U.S.C. 371); use

of telephone facilities in interstate commerce in aid of

this unlawful activity (18 U.S.C. 1952); and use of wire

communications facilities in interstate commerce to

transmit bets and wagers on sporting events (18 U.S.C.

§ 1084). Following entry of not guilty pleas, various

motions were filed, including motions to suppress the

results of a court-authorized wire interception which led

to the indictment. Said motions were denied by the

District Court.

The order for wire interception was issued upon an

application filed by Charles Erion, Assistant United

States Attorney; attached to and incorporated into Mr.

Erion’s application was an affidavit of Special Agent

Gary W. Hart, of the Federal Bureau of Investigation.

The application requested authorization to intercept

wire communications of “BILLY CECIL DOOLITTLE

and others as yet unknown” concerning certain offenses

involving gambling being committed “by BILLY CECIL

DOOLITTLE and others as yet unknown.”’ Agent Hart’s

affidavit alleged facts from which Hart stated that

probable cause existed as to “BILLY CECIL

DOOLITTLE and others as vet unknown” to show a

violation of Federal statutes.

Mr. Erion requested and received an order autho-

nizing interception on certain specified telephones of

communications of “BILLY CECIL DOOLITTLE and

others as yet unknown.”

Numerous conversations of these Petitioners were

intercepted pursuant to this order, and these inter-

cepted communications were used by the Government

during the trial before the court sitting without a jury.

Following trial, these Petitioners were convicted and

sentenced, and all appealed the judgments to the United

States Court of Appeals for the Fifth Circuit.

A three-judge panel of the Court of Appeals for the

Fifth Circuit affirmed the convictions herein by a

divided 2-to-1 opinion (Appendix “A”):; a rehearing en

banc was granted, and the convictions were again

affirmed by a divided court, 8-to-6 (Appendix “B’’).

The issue causing this split among the members of the

Court of Appeals for the Fifth Circuit is the first

question herein presented for review; whether the

Government failed to adequately comply with the

provisions of 18 U.S.C. § 2518(1)(b){iv).

The threshold question of whether or not probable

cause existed in the affidavit of Agent Hart as to

individuals other than BILLY CECIL DOOLITTLE

known to be committing the offenses for which

interception was ordered, over the telephones subjected

to the interceptions, was answered in Judge Thorn-

berry’s dissent to the panel decision (Appendix “A”’).

In fact, as Judge Thornberry noted, the Government, in

their brief to the Fifth Circuit, admitted that the

Government had probable cause to believe that certain

of these Petitioners would be intercepted. (Appendix

“A”: 507 F.2d at 1377). This being the case, the

question remaining is whether their identification is

required, and, if so, whether failure to identify them in

the application and order requires suppression.

The affidavit in support of the application for

interception submitted by Agent Hart, attempted to

comply with Section 2518(1)(c) of 18 U.S.C. by

including the following language:

“18. Past experience of Special Agents of the

Federal Bureau of Investigation has shown even

though gambling customers are identified they are

unwilling to furnish information to law enforce-

ment or to legal panels inquiring into gambling

activities. This proposition is even more true when

a customer may be a professional gambler himself

and he is requested to give evidence in the

investigation. Furthermore, the confidential in-

formants mentioned heretofore have stated that

they would not be willing to testify to the

information they have provided. In addition, past

experience has shown that searches of gamblers

and gambling establishments have not resulted in

the gathering of physical or other evidence to

prove all elements of the offenses due in some

instances to the destruction, by the individuals

involved immediately prior to or during physical

searches, or any records concerning the gambling

activity which may exist.

“19. Standard investigative techniques have

either not succeeded in providing evidence to

sustain prosecution in this case or reasonably

appear to be unlikely to succeed in establishing

that Billy Cecil Doolittle is involved in gambling

activities on the telephone in violation of Federal

laws. Therefore, the interception of these tele-

phone communications is the only available

method of investigation which has a reasonable

likelihood of securing the evidence necessary to

prove violations of the GEORGIA CODE AN-

NOTATED, Sections 26-2703 and 26-2706 and

thereby violations of Sections 1084, 1952 and

371, Title 18, United States Code.”

The application of Mr. Erion submitted for the wire

interception contained the bald conclusion in paragraph

4c) that “normal investigative procedures reasonably

appear to be unlikely to succeed and are too dangerous

to be used.”

REASONS FOR GRANTING THE WRIT

THE GOVERNMENT FAILED TO IDENTI-

FY IN THE PRESENT WIRETAP APPLICA-

TION PERSONS WHO THE GOVERNMENT

HAD PROBABLE CAUSE TO BELIEVE

WERE COMMITTING THE OFFENSE AND

WHOSE COMMUNICATIONS WERE TO BE

INTERCEPTED; SUCH FAILURE TO SO

IDENTIFY REQUIRES SUPPRESSION OF

THE SEIZED CONVERSATIONS.

Title 18, United States Code, Section 2518(1)(b)iv)

has been interpreted by this Court in United States v.

Kahn. 415 U.S. 143 (1974). This Court stated, at 415

U.S. 155:

“We conclude, therefore, that Title III requires the

naming of a person in the application or

interception order only when the law enforcement

authorities have probable cause to believe that the

individual is ‘committing the offense’ for which

the wiretap is sought.”

This Court, in United States v. Giordano, 416 U.S.

505 (1974), held, at page 527:

“We think Congress intended to require sup-

pression where there is failure to satisfy any of

those statutory requirements that directly and

substantially implement the Congressional in-

tention to limit the use of intercept procedures to

those situations clearly calling for the employment

of this extraordinary investigative device.”

In United States v. Chavez, 416 US. 562, 574, 575

(1974), this Court stated:

“We did not go so far as to suggest that every

failure to comply fully with any requirement

provided in Title II] would render the interception

of wire or oral communications ‘unlawful’ ...

suppression is not mandated for each violation of

Title III, but only if ‘disclosure’ of the contents of

the intercepted communications, or derivative

evidence, would be in violation of Title III.”

And, at page 580, this Court held:

“Though we deem this result to be the correct one

under the suppression provisions of Title III, we

also deem it appropriate to suggest that strict

adherence by the Government to the provisions of

Title Ill would nonetheless be more in keeping

with the responsibilities Congress has imposed

upon it when authority to engage in wiretapping

or electronic surveillance is sought.”

Title 18, U.S.C. § 2518(1)(b)(iv) requires that when

the Government applies for a wiretap authorization, the

“identity of the person, if known, committing the

offense and whose communications are to be inter-

cepted” must be disclosed.

There can be no doubt in this case that Petitioners

SANDERS, BAXTER and ANDERSON were “known.”’

In fact the Government in its brief to the Fifth Circuit

admitted that “probable cause to believe” that these

three individuals would be intercepted existed. Neither

can there be any doubt that this same probable cause

existed that these three were “committing the offense”

for which the wiretap was sought.

The decisions rendered by the United States Court of

Appeals for the Fifth Circuit in this case conflict with

decisions in three other Courts of Appeal. United States

v. Bernstein, 509 F.2d 966 (4th Cir., 1975) cert.

pending, No. 74-1486, filed 5/27/75; United States vy.

Donovan, 513 F.2d 337 (6th Cir., 1975) cert. pending,

No. 75-212, filed 8/8/75; United States v. Moore, 513

F.2d 485 (D.C. Cir., 1975) petition for rehearing en

banc pending.

In United States v. Bernstein, supra, the Court held

in dealing with this section of Title III;

“We conclude from the unequivocal language of

Title III that Congress intended any unlawful

invasion of an aggrieved person's privacy to be

sufficient harm in itself to require suppression.

‘prejudice is not an element of the definition”

[of an aggrieved person]. 509 F.2d at 1004,

The Court in United States v Donovan, supra, stated:

“Since Congress has imposed a clear requirement

that the identity of the participants must be

disclosed ‘if known’, we are not concerned with

the reason that these names were omitted from the

application. In our view it makes no difference

whether the omission was inadvertent or purpose-

ful. The fact of omission is sufficient to invoke

suppression.”’ 513 F.2d at 341.

Petitioners herein contend that review by this Court

is presently necessary to resolve the established conflict

among the Circuits.

THE GOVERNMENT FAILED IN THE

PRESENT APPLICATION TO SATISFY THE

REQUIREMENTS OF 18 U.S.C. SECTION

2518(1)(c).

Title 18, United States Code, Section 2518(1)(c)

requires that every application include:

“a full and complete statement as to whether or

not other investigative procedures have been tried

and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too

dangerous.’’ (Emphasis Supplied),

The present affidavit, in an attempt to fulfill this

requirement, included the language which is contained

in the Statement of the Case, surpa

This point was raised and briefed before the United

States Court of Appeals for the Fifth Circuit in Point

II(a(2). The Fifth Circuit in its opinions did not speak

to this allegation.

Petitioners herein contend that the showing by the

Government in the present application falls far short of

meeting this Congressional mandate. Petitioners further

contend that this requirement of Title III is a

“statutory requirement that directly and substantially

implements the Congressional intention to limit the use

of intercept procedures’ United States v. Giordano,

supra, requiring suppression when there is failure to

satisfy the requirement.

The United States Court of Appeals for the Ninth

Circuit in United States v. Kalustian, No. 74-3314,

August 4, 1975, (this opinion is attached hereto as

Appendix “E”’) dealt with this issue and suppressed the

evidence gathered through electronic surveillance due to

the Government’s failure to satisfy 18 U.S.C.

§ 2518(1)(c). Petitioners submit that the Government's

attempt to satisfy this statute in this case is less

adequate than the attempt in Kalustian, and that

suppression of the intercept in this case is required.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

OSCAR B. GOODMAN, ESQ.

STEPHEN STEIN, ESQ.

Goodman and Snyder

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorneys for Petitioners

DOOLITTLE, SANDERS & BAXTER

FLOYD M. BUFORD, ESQ.

Byrd, Groover & Buford

P.O. Box 755

Macon, Georgia 31202

Telephone: (912) 742-3605

Attorneys for Petitioners:

UNION and WHITED

APPENDIX A

O 3 KEY NUMBER SYSTEM

UNITED STATES of America,

Plaintiff-Appellee,

Billy Cecil DOOLITTLE, William Au-

gustus Sanders, Jr., Ernest Massod

Union, Julian Wells Whited, Frank

Joseph Masterana, Cliff Anderson,

Darnice T. Malloway, and William E.

Baxter, Defendants-Appellants.

No. 72-3263.

United States Court of Appeals,

Fifth Cireuit.

Feb. 14, 1975.

Rehearing En Bane Granted

April 7, 1975. |

Defendants were prosecuted for con-

spiracy to violate statutes which prohibit

“When the plaintiff is challenging govern.

mental action on constitutional prounds, he

necessarily is asserting that his interest ts

protected by the constitutional suarantee

upon Which he is relying Any turther in-

quiry oes te the merits.” R. Sedler, supra

n. 7, at 4&6.

the use of interstate wire and telephone

facilities to carry on illegal gambling op

erations and for substantive violations of

those statutes. Following the denial of

their motion to suppress, 341) F.Supp

163, a nonjury trial was conducted In

fore the United States District Court fer

the Middle District of Georgia, Willian.

A. Bootle, J., in which all defendants

were convicted of conspiracy, all defend:

ants were convicted of substantive viela.

tions of statute prohibiting the use of

any facility in interstate commerce te

earry on an illegal activity and two de

fendants were convicted of substantise

violation of statute prohibiting the us

of wire communication facilities for the

transmission in interstate commerce «!

wagering information. The defendants

appealed. The Court of Appeals, Renes.

Circuit Judge, held that the wiretap pre

visions of the Omnibus Crime Contre:

Act are constitutional; that there wer

no procedural irregularities that requir

that the evidence be suppressed, that

the use of a “pen register” was not un.

constitutional; that the wiretap auth

rization statute does not require that

there be probable cause as to all persons

whose conversations are interceptes!

that the failure to name defendants oth

er than the owner of the premises wher

the tapped telephones were located «|

not render inadmissible the evider

obtained as to the other defendan':

that the wiretaps did not execed the

scope of the authorized interception:

and that there was sufficient inde!

ent evidence of the existence of a ov

spiracy to warrant the introduction +f

hearsay = coconspirators’ — conversatiers

against particular defendant under ts

coconspirator exception to the hearsas

rule.

Affirmed.

Thornberry, Cireuit Judge,

curred in part, dissented in part. ar!

filed opinion,

1. Telecommunications ©=492

The wiretap provisions of the Omni-

bus Crime Control Act are constitutional.

18 U.S.C.A. §§ 2510, 2515, 2518: U.S.C.

A.Const. Amends. 1, 4 6.

2. Telecommunications ©>496

Where interception order authoriza-

tion contained accurate information as to

the location of the telephones to be

tapped, the address where the telephones

were located and the name of the owner

of the premises, the one incorrect digit

in one of the four telephone numbers

listed in the authorization was an imma-

terial variation from the actual, correct

number for which the tap was requested

and the interception request was not in-

sufficient on its face. 18 U.S.C.A.

§ 2518(10)(a)(i, 11).

3. Telecommunications 496

District court did not act unconstitu-

tionally by refusing to require more of

the Attorney General with respect to the

administrative history of the specific

wiretap authorization where the Govern-

ment filed the affidavits of the Attorney

General and his subordinates as method

of proving the administrative history of

the specific wiretap authorization. 18

U.S.C.A. §§ 2510-2520.

4. Telecommunications ©=494

Where the Government had probable

cause for use of “pen register” and

obtained separate authorization from the

district court in connection with wiretap,

the use of a “pen register” was not

constitutionally offensive. 18 U.S.C.A.

§§ 1084, 2510 2520, 2515, 2518(10)(a)(i,

i); U.S.C.A.Const. Amends. 1, 4.6.

5. Telecommunications ©>496

The Omnibus Crime Control and

Safe Streets Act of 1968 does not require

that there be probable cause as to all

persons Whose conversations are inter-

cepted, 18 U.S.C.A. § 2518(1)(b)iv).

6. Criminal Law 394.3

Where wiretap was validly issued in

investigation of use of interstate wire

and telephone facilities to carry on ille-

gal gambling operations, the intercepted

conversations of those individuals not

known Lo be involved in the criminal ac-

tivity al the time of the court authoriza-

tion of the wiretap could be validly used

against such individuals. 18 U.S.C.A.

§§ 1084, 1952, 2518(1)(b)(iv).

7. Criminal Law 394.3

Telecommunications ©=496

Where government agents had _ per-

sonal knowledge to support probable

cause for wiretap for the person named

in wiretap authorization order, most of

the conversations of each defendant

were with the named person, there was

no bad faith or attempted subterfuge by

the Government in its wiretap applica-

tion, all defendants received an invento-

ry of the intercepted conversations, were

allowed to listen to tapes and received

transcripts of the, conversations prior to

use against them at trial, as if they had

been named in the authorization order,

there was substantial compliance with

the wiretap statute and the failure to

name other defendants in the wiretap

application did not render the evidence

obtained as to those defendants inadmis-

sible. 18 U.S.C.A. §§ 1952, 2518(10)(a).

8. Telecommunications 496

Where monitoring government

agents listened to each call only long

enough to determine whether it could be

one dealing with gambling as authorized

to be intercepted and only those calls

which the agents reasonably believed

were related to gambling were recorded

on tape, the agents utilized a reasonable

procedure for complying with court’s or-

der that the interception be conducted in

such a way as to minimize the intercep-

tion of communications not otherwise

subject to interception and the wiretaps

did not exceed the scope of the authoriz-

ed interceptions because some irrelevant

and personal portions of gambling con-

versations were intercepted or certain

nonpertinent conversations were inter-

cepted. 18 U.S.C.A. §§ 1952, 2518(10)(a).

9. Gaming <62

Defendants’ actual knowledge of the

use of interstate facilities in gambling .

operation was not a prerequisite to crim-

inal liability under statute prohibiting

the use of interstate facilities in connec-

tion with an unlawful activity. 18 U.S.

C.A. § 1952.

10. Criminal Law c427(5)

Record, in prosecution for conspiracy

to violate statute which prohibits the use

of interstate wire and telephone facilities

to carry on illegal gambling operations

and substantive violation of statute pro-

hibiting the use of any facility in inter-

state commerce with intent to carry on

an unlawful activity, established that

there was sufficient independent evi-

dence of the existence of a conspiracy to

which one defendant was party to war-

rant the introduction of hearsay cocon-

spirators’ conversations against him un-

der the exception to the hearsay rule

which applies to statements made by co-

conspirators in furtherance of the con-

spiracy. 18 U.S.C.A. §§ 1084, 1952.

Floyd M. Buford, Macon, Ga., for Un-

ion and Whited.

Oscar B. Goodman, Las Vegas, Nev.,

for Doolittle, Sanders and Masterana.

Louis Weiner, Jr., Las Vegas, Nev.,

Manley F. Brown, Macon, Ga., for An-

derson.

Wesley R. Asinof, Atlanta, Ga., for

Malloway and Baxter.

William J. Schloth, U. S. Atty.,

Charles T. Erion, Asst. U. S. Atty., Ma-

con, Ga., for plaintiff-appellee.

Appeals from the United States Dis-

trict Court for the Middle District of

Georgia.

Before THORNBERRY, AINS-

WORTH and RONEY, Circuit Judges.

RONEY, Circuit Judge:

All defendants were convicted in a

non-jury trial for conspiracy to violate 18

U.S.C.A. §§ 1084 and 1952, which prohib-

it the use of interstate wire and tele-

phone facilities to carry on illegal gam-

bling operations. All defendants were

similarly convicted of substantive viola-

tions of § 1952, and defendants Mastera-

na and Doolittle were also convicted of

substantive violations of § 1084. Th

convictions were obtained primarily by

the use of conversations intercepted by a

wiretap authorized by the district court

under Title III of the Omnibus Crime

Control and Safe Streets Act of 1968, Is

U.S.C.A. §§ 2510 2520, and the fruits of

searches for which the wiretap provided

probable cause. Recognizing that with-

out this evidence the Government's cax

would be substantially weakened, if not

destroyed, defendants mounted a multi-

faceted assault on the wiretap in a mo-

tion to suppress the evidence in the dis

trict court. The district court denied the

motion, and the convictions followed

The attack has been renewed in this

Court, but like the district court, we find

no infirmity warranting suppression of

the evidence and affirm all convictions

[1] Defendants first attack the wire. .

tap provisions of the Omnibus Crime

Control Act as unconstitutional for viola:

tions of the First, Fourth, Fifth and

Sixth Amendments. We have recent!

upheld this portion of the statute against

a similar constitutional attack. United

States v. Sklaroff, 506 F.2d 837 (5th Cir

1975).

10a

[2] Next the defendants assert that

various procedural irregularities in the

authorization of the wiretap request

within the Justice Department require

that the evidence be suppressed. Sce 1*

U.S.C.A. § 2515. The Supreme Court ce!

the United States has ruled that irregu:

larities of the kind asserted here do not

render the communications “unlawfully

intercepted” or the interception request

“insufficient on its face.” United States

v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40

L.Ed.2d 380 (1974); see 18 USCA

§§ 2518(10)(a)(i), 2518(10)(a)(ii). At the

time this case was argued, the Supreme

Court had not decided Chavez and apyet

lants relied on the Ninth Circuit decisis +

in that case. United States v. Chaves,

478 F.2d 512 (9th Cir. 1973). The S--

preme Court modified that portion of the

Ninth Circuit decision upon which the

appellants relied. We find nothing :*

this case to warrant a different resu’

than that determined by the Supreme

Court in. Chavez. Considering the other

etevenatiaaaatained in the Intercep-

tion Order Authorization, such as the lo-

cation of the phones to be tapped, ad-

dress of the Sportsman’s Club, and its

owner, we find the one incorrect igit in

one of the four telephone numbers listed

therein to be an immaterial variation

from the actual, correct number for

which the tap was requested of the dis-

trict court. Cf. United States v. Chavez,

supra.

[3] The procedure of filing the affi-

davits of the Attorney General and his

subordinates, as a method of proving the

administrative history of the specific au-

thorization in this case, is identical to

that used in Chavez. There is no consti-

tutional infirmity in the district court’s

refusal to require more of the Attorney

General on this narrow issue of fact.

[4] Appellants contend that the use

of a “pen register,” as in this case, is not

specifically authorized by Title III and

must, therefore, be considered rejected

by Congress as an appropriate investiga-

tive tool. The Act does not prohibit the

use of pen registers and we do not view

its use in this case, based upon probable

cause and with a separate authorization

from the district court, as being constitu-

tionally offensive. See United States v.

Giordano, 416 U.S. 505, 553 554, 94 S.Ct.

1820, 40 L.Ed.2d 341 (1974) (Powell,

joined by the Chief Justice, and Black-

mun and Rehnquist, JJ., coneurring in

12a

part and dissenting in part); United

States v. Finn, 502 F.2d 988 (7th Cir.

1974); United States v. Brick, 502 F.2d

219, 228 (Sth Cir. 1974); ef. United

States v. Falcone, 364 F.Supp. 877 (D.N.

J.1973), aff'd, 500 F.2d 1401 (8rd Cir.

1974).

[5,6] Certain defendants assert that

the Government lacked probable cause to

believe that their conversations would be

intercepted by the wiretap. They con-

tend that this lack of probable cause

should render the tap unlawful as to

them. A similar argument has been re-

jected by the Supreme Court in United

States v. Kahn, 415 U.S. 143, 94 S.Ct.

977, 39 L.Ad.2d 225 (1974). At oral ar-

gument, the appellants relied upon the

Seventh Circuit decision in United States

v. Kahn, 471 F.2d 191 (7th Cir. 1972).

The reversal by the Supreme Court of

the Seventh Circuit decision is dispositive

of the issue as framed here. The statute

does not require that there be probable

cause as to all persons whose conversa-

tions are intercepted. See 18 U.S.C.A.

§ 2518(1)(biv). Since the wiretap in

this case was validly issued, the wiretap

conversations of those individuals not

13a

known to be involved in criminal activity

at the time of the court authorization

may be used against them.

[7] The wiretap authorization — re-

ferred to “Billy Cecil Doolittle and oth-

ers as yet unknown.” Anderson and

Baxter contend that the Government

had reasonable cause to believe that

their conversations would be intercepted.

Relying on certain language in the Su-

preme Court’s opinion in Kahn, they ar-

yrue that, not being “unknown,” they

should have been named in the autho-

rization. They contend that since they

were not named, the wiretap order was

illegal as to their conversations. The

same argument could be made for Sand-

ers. We reject this argument. The de-

fendants neither allege nor demonstrate

any prejudice to them in not. being

named in the authorization. The

Government contends that its agents had

personal knowledge, as opposed to infor-

mation, to support probable cause as to

illegal activity only of Doolittle, the co-

owner of the Sportsman’s Club, the es-

tablishment wherein the telephones were

located and to which the telephone bills

14a

were sent. All defendants received an

inventory of the intercepted conversa-

tions, were allowed to listen to the tapes

and received transcripts of the conversa-

tions prior to use against them at trial,

as if they had been named in the order.

Most of the conversations of each de-

fendant were with Doolittle, the person

named in the order. There is no indica-

tion of bad faith or attempted subter-

fuge by the Government in its wiretap

application. The application and affida-

vit delineated specifically the informa-

tion expected to be gathered from the

tap. We hold there was substantial com-

pliance with the requirements of the

Act, and that the failure to name other

defendants does not render the evidence

obtained as to them inadmissible under

18 U.S.C.A. § 2518(10)(a).

[8] The last general attack by all de-

fendants is that the wiretaps exceeded

the scope of the interceptions authorized

by the court order. The testimony by

the monitoring agent at the suppression

hearing reveals that they listened to

each call only long enough to determine

whether in their judgment it could be

1Sa

one dealing with gambling as authorized

to be intercepted by the district court.

Only those calls which the agents reason-

ably believed were related to gambling

were recorded on tape. There is no

question that some irrelevant and per-

sonal portions of gambling conversations

were intercepted or that certain nonper-

tinent conversations were intercepted.

But this is inherent in the type of inter-

ception authorized by Title II], and we

do not view the simple inclusion of such

conversations, without more, as vitiating

an otherwise valid wiretap. The proce-

dure testified to by the agents appears a

reasonable method for complying with

the order of the district court, in accord

with the statutory mandate that the in-

terception be conducted in such a way as

to minimize the interception of commu-

nications not otherwise subject to inter-

ception under Title II]. United States v.

Cox, 462 F.2d 1293 (8th Cir. 1972), cert.

denied, 417 U.S. 918, 94 S.Ct. 2623, 41

L.Ed.2d 223 (1974).

[9] The district court specifically

found that defendants Malloway and

Baxter lacked actual knowledge of the

use of interstate facilities in the gam-

16a

bling operation. This lack of specific

knowledge is legally irrelevant. The

words of § 1952 do not require specific

knowledge of the use of interstate facili-

ties and we agree with the decisions in

other Circuits that such knowledge is not

a prerequisite to criminal liability there-

under. See, e. g., United States v. Ro-

selli, 482 F.2d 879 (9th Cir. 1970), cert

denied, 401 U.S. 924, 91 S.Ct. 8&3, v7

L.Ed.2d 828 (1971); United States v. Hn.

non, 428 F.2d 101 (8th Cir. 1970), cert

denied, 402 U.S. 952, 91 S.Ct. 1608,

L,.Ed.2d 122 (1971); United States v. Mil.

ler, 879 F.2d 488 (7th Cir.), cert. denied,

389 U.S. 930, 88 S.Ct. 291, 19 L.Ed.2d 2s)

(1967).

[10] Anderson individually challeng: +

the district court’s handling of his evs

dentiary objection to certain of the inter:

cepted conversations as hearsay. The

trial court’s rulings on this matter shows

a clear understanding of the law on the

exception to the hearsay rule which ap

plies to statements made by co-conspira

tors in furtherance of the conspiracy

See, ec. g., United States v. Register, 4

F.2d 1072, 1078 1079 (5th Cir. 197%

United States v. Williamson, 482 F 2!

17a

508, 518 (5th Cir. 1973). An examinativr

of the record shows sufficient independ

ent evidence of the existence of a con

spiracy to which Anderson was a party

to warrant the introduction of the

hearsay conversations against him.

Affirmed.

THORNBERRY, Circuit Judge (eon

curring in part and dissenting in part

i concur in the decision affirming the

convictions of Doolittle, Malloway, ar

Masterana. With regard to appellants

Anderson, Baxter, and Sanders, however

I would reverse; hence I respectfully

dissent from so much of the majonty

opinion as affirms their convictions.

I do so not without reluctance, for the

majority admirably attempts to demes.

strate that the latter defendants weer

not prejudiced by the procedure unter

which their intercepted telephone eum

munications were used against them at

trial. That is while these defendants «*.

joyed along with every member of th

public a Congressionally-recognized 1

terest in individual privacy, their interns

must be balanced against the govers

ment’s interest in enforcing Jaws relat

ing to the crimes enumerated in 1

U.S.C. § 2516(1)(a) (2). Under the es

cumstances of this case, these defendar's

having obtained inventories and access

to the evidence, the majority necessarily

reasons that the governmental interest

must prevail.

If the choice were ours to make, I

probably would not quarrel with the ma-

jority’s conclusions that “there was sub-

stantial compliance with the require-

ments of [Title III],” and, consequently,

no requirement of suppression as to An-

derson, Baxter, and Sanders due to the

failure of the government and the dis-

trict court to name them in either the

wiretap application or the resulting or-

der. The controlling issue of statutory

construction, however—an_ issue with

which the majority does not come to

grips—has already been decided rather

clearly by the Supreme Court. It is in

the application of the Court’s rule of

statutory construction! to the facts that

|. The pertinent provisions of 18 U.S.C. § 2518

are:

(1)b)\av)—"Each application shall include

the following information: the

identity of the person, if known, commit-

ting the offense and whose communications

are to be intercepted. 7

19a

| find myself in basic disagreement with

the majority.

In United States v. Kahn, 415 USS.

143, 155, 94 S.Ct. 977, 984, 29 L.Ed.2d

225, 237 (1974), the square holding is as

follows:

We conclude, therefore, that Title

III requires the naming of a person in

the application or interception order

only when the law enforcement au-

thorities have probable cause to be-

lieve that the individual is “commit-

ting the offense” for which the wire-

tap is sought. Since it is undisputed

that the Government had no reason to

suspect Minnie Kahn of complicity in

the gambling business before the wire

interceptions here began, it follows

that under the statute she was among

the class of persons “as yet unknown”

covered by Judge Campbell’s order.

Having so held, the Court proceeded to

reverse the Seventh Circuit, which had

ordered Minnie Kahn's gambling-related

telephone conversations suppressed, al-

(4)(a)—"“Each order authorizing or approv-

ing the interception of any wire or oral

communication shall specify—the identity

of the person, if known, whose communieca-

tions are to be intercepted . |...”

20a

beit for reasons more onerous to the

government than the test announced by

the Supreme Court.

- Perhaps apprehensive about its quick

dismissal of Kahn in this case, the ma-

jority somehow divines a contention by

the government that probable cause to

suspect participation “in the gambling

business” existed only as to Doolittle at

the time when wiretap authorization was

sought. The majority suggests that this

absence of probable cause as to the “oth-

ers as yet unknown” may have resulted

from government possession of mere

hearsay information, rather than person-

al observation by investigating agents,

concerning the behavior of these “oth-

ers.” Such a dichotomy, if seriously ad-

vanced, could indeed effect a major re-

formulation of the law of probable.

cause. See Spinelli v. United States, 393

U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637

(1969); Aguilar v. Texas, 378 U.S. 108,

84 S.Ct. 1509, 12 L.Ed.2d 728 (1964);

Draper v. United States, 358 U.S. 307,

311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327, 331

(1959); Gonzales v. Beto, 5th Cir. 1970,

425 F.2d 963, 968-970, cert. denied, 400

U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189

(1970). Nor do I understand the majori-

2la

ty to suggest that “probable cause” as to

a given individual or telephone number

connotes a more demanding standard

when wiretaps are used by contrast to

other types of searches. Again such a

suggestion would, in my view, be errone-

ous. See United States v. Falcone, 3rd

Cir. 1974, 505 F.2d 478, 481; United

States v. Finn, 7th Cir. 1974, 502 F.2d

938, 941. The question with which I

shall attempt to deal, then, is whether,

at the time when wiretap authorization

was sought, the government had proba-

ble cause to suspect that Anderson, Bax-

ter, and Sanders were conspiring with or

assisting Doolittle in illegal gambling in-

volving the use of the telephone at the

Sportsman’s Club. For reference, repro-

duced in the margin? are the govern-

ment’s wiretap application and support-

ing affidavit of Special Agent Gary W.

Hart, insofar as these materials are illu-

minative of the question at hand.

2. APPLICATION

(Number and Title Omitted)

Charles T. Erion, an Assistant Uniied

States Attorney, Middle District of Georgia,

being duly sworn states:

This sworn application is submitted in sup-

port of an order authorizing the interception

22a

2.—Continued

of wire communications. This application

has been submitted only after lengthy discus-

sion concerning the necessity for such an

application with various officials of the Or-

ganized Crime and Racketeering Section,

United States Department of Justice, Wash-

ington, D. C., together with Agents of the

Federal Bureau of Investigation.

1. He is an “investigative or law enforce-

ment officer—of the United States” within

the meaning of Section 2510(7) of Title 18,

United States Code, that is—he is an attorney

authorized by law to prosecute or participate

in the prosecution of offenses enumerated in

Section 2516 of Title 18, United States Code.

2. Pursuant to the powers conferred on

him by Section 2516 of Title 18, United

States Code, the Attorney General of the

United States, the Honorable John N. Mitch-

ell, has specially designated the Assistant At-

torney General for the Criminal Division of

the United States Department of Justice, the

Honorable Will Wilson, to authorize affiant to

make this application for an order authoriz-

ing the interception of wire communications.

The letter of authorization signed by the As-

sistant Attorney General is attached to this

application as Exhibit A.

(516] 3. This application seeks authoriza-

tion to intercept wire communications of Billy

Cecil Doolittle and others as yet unknown

concerning offenses enumerated in Section

2516 of Title 18, United States Code, that

is—offenses involving the transmission, by

means of an interstate wire facility, of gam-

23a

2.—Continued

bling and wagering intormation by a person

engaged in the business of gambling, in viola-

tion of Title 18, United States Code, Section

1084, and the use of interstate telephone

communication facilities for the transmission

of betting information in aid of a racketecring

enterprise (gambling), in violation of Section

1952 of Title 18, United States Code, and a

conspiracy to commit such offenses in viola-

tion of Section 371 of Title 18, United States

Code, which have been committed and are

being committed by Billy Cecil Doolittle and

others as yet unknown.

4. He has discussed ail the circumstances

of the above offenses with Special Agent

Gary W. Hart of the Macon, Georgia offiwe «f

the Federal Bureau of Investigation who has

directed and conducted the investiyate-n

herein, and has examined the affidavit «f

Special Agent Hart (attached to this appli

tion as Exhibit B and incorporated by refer

ence herein) which alleges the facts therein ir

order to show that:

(a) there is probable cause to believe that

Billy Cecil Doolittle and others as yet us

known have committed and are comnutt:ng

offenses involving the transmission, ty

means of an interstate wire facility, of jar

bling and wagering information by a pers: +

engaged in the business of gambling. «

violation of Title 18, United States Crk

Section 1084, and the use of interstate

{517} telephone communication facilitiws f+

the transmission of betting information ir

24a

2.—Continued

aid of a racketeering enterprise (gamblir,'

in violation of Section 1952 of Title !6

United States Code, and are conspiring t

commit such offenses in violation of Sr«

tion 371 of Title 18, United States (..-&

(b) there is probable cause to belheve tha’

particular wire communications of Billy ¢«

cil Doolittle and others as yet unknew-

concerning these offenses will be obtarre-!

through the interception, authorizatien f ¢

which is herewith applied for. In party »

lar, these wire communications will concer

the interstate transmission of gambling i

formation relating to the outcome of profet

sional baseball games and the dissrrus

tion of such information to persons e-

gaged in the unlawful business of gainhln«

and the participants in the commissicn :‘

said offenses.

ably appear to be unlikely to succertd! a°'

are too dangerous to be used.

(d) there is probable cause to believe ts

the telephones listed to the Sportsmar:

Club located in the premises of the Sy¢*s

man’s Club, 222 Third Street, Macon, Ge ¢

gia, and carrying telephone numbers ‘1?

746-9110, 912-745-2843, 912 745 oes

and 912. 745.2845 have been used an! o*¢

being used by Billy Cecil Doolittle and «¢*

ers as yet unknown [518] in conne *.*

with the commission of the above-desct ‘+?

offenses.

5. No previous application has bern ra

to any Judge for authorization to interns;¢ »

25a

2.—Continued

for approval of interception of wire «ft srs

communications involving any of the so-«#

persons, facilities, or places specified tere

WHEREFORE, your affiant believes that

probable cause exists to believe that Billy

Cecil Doolittle and others as yet unknown are

engaged in the commission of offenses involv-

ing the transmission of gambling and wager-

ing information by means of an interstate

wire facility, by a person engaged in the busi-

ness of gambling and the use of interstate

telephone communication facilities for the

transmission of betting information in aid of

a racketeering enterprise (gambling), and a

conspiracy to do so; that Billy Cecil Doolittle

and others as vet unknown have used, and

are using the telephone listed to the Sports-

man’s Club, located at 222 Third Street, Ma-

con, Georgia, and bearing numbers 912--746-

9110, 912 745-2843, 912-745-2844, and 912-

745 2845, in connection with the commission

of the above-described offenses; that commu-

nications of Billy Cecil Doolittle and others as

yet unknown concerning these offenses will

be intercepted to and from the above-de-

scribed telephone; and that normal investiga-

live procedures appear unlikely to succeed

and are too dangerous to be used.

On the basis of the allegations contained in

this application and on the basis of the affi-

davit of Special Agent Hart, which is at-

tached hereto and made a part hereof, affiant

requests this court to issue an order, pur-

suant to the power conferred on it by Section

2518 of Title 18, United States Code, autho-

26a

2.—Continued

nizing the Federal Bureau of Investigation of

the United States Department of Justice to

intercept wire communications to and from

ine above-described telephones until [519]

communications are intercepted which reveal

the manner in which Billy Cecil Doolittle and

others as yet unknown participate in the ille-

gal use of interstate telephone facilities for

the transmission of betting information in aid

of a racketeering enterprise (gambling), and

which reveal the identities of his confeder-

ates, their places of operation, and the nature

of the conspiracy involved therein, or for a

period of fifteen (15) days from the date of

that order, whichever is earlier.

/s/ CHARLES T. ERION

CHARLES T. ERION

Assistant United States

Attorney

Middle District of Georgia

Subscribed and sworn to before

me this 2] day of August, 1970.

is/ W. A. BOOTLE

UNITED STATES

DISTRICT JUDGE

AFFIDAVIT OF GARY W. HART

Gary W. Hart, Special Agent, Federal Bu-

reau of Investigation, Macon, Georgia, being

duly sworn, states:

1. IT am an “investigative or law enforce-

ment officer of the United States” within the

meaning of Section 2510(7) of Title 18, Unit-

ed States Code—that is, an officer of the

United States who is empowered by law to

conduct investigations of and to make arrests

27a

2.—Continued

for offenses enumerated in Section 2516 of

Title 18, United States Code.

2. I have conducted an investigation of

the offenses of Billy Cecil Doolittle and, as a

result of my personal participation in that

investigation and of reports made to me by

other agents, | am familiar with all the cir-

cumstances of the offenses.

3. A confidential informant who has ad-

mitted personal participation in gambling ac-

tivities, has stated that Doolittle operates a

bookmaking operation in the Sportsman's

Club, located at 222 Third Street, Macon,

Georgia. Doolittle is assisted in his book-

making operation by Will Sanders who is a

full partner. Doolittle obtains the “‘line’’ for

professional baseball games from an ur

known individual by placing a call from a

pay telephone booth located in the poolroom

of the Sportsman's Club at approximately

noon each day, and Doolittle and Sanders

thereafter disseminate the “line,” accept wa-

gers on professional baseball games, and “‘lay

off’ bets through use of several telephones,

one of which is numbered 745-2844, located

in the “members only” room of the Sports-

man's Club which is adjacent to the pool

room. Among individuals contacted by Doo-

little and his associates in this manner are

Cliff Anderson of Columbus, Georgia, and Bil-

ly Baxter of Augusta, Georgia.

| have established through independent in-

vestigation that this informant has had the

opportunity to obtain first-hand knowledge of

the activities the informant has described.

28a

2.—Continued

This informant has been contacted by Special

Agents of the Federal Bureau of Investigation

[521] on several occasions since January 1970

and on four occasions the informant has fur-

nished information which has been deter-

mined to be accurate by independent investi-

gation. On a date during the week beginning

on August 2, 1970, this informant stated that

within five (5) days prior to that date through

personal observation of Doolittle’s activities

in the Sportsman’s Club, the informant deter-

mined that Doolittle is currently operating as

described in the preceding paragraph. This

informant further stated that through first-

hand knowledge the informant knows that

Anderson and Baxter are engaged in accept-

ing wagers on the outcome of professional

baseball games as of a date during the week

beginning on August 2, 1970.

4. A second confidential informant who

has admitted personal participation in gam-

bling activities has also stated that Doolittle

operates a bookmaking operation in the

Sportsman's Club located at 222 Third Street,

Macon, Georgia, in a room off the pool hall

area of the building. Further, informant

states that during the 1970 professional base-

ball season, Doolittle, assisted by Will Sand-

ers who is a partner, has utilized telephones,

one of which is numbered 745-2844, located

in this room to facilitate the placing and ac-

ceptance of wagers based upon the outcome

of professional baseball games. Doolittle is

associated with Cliff Anderson of Columbus,

Georgia, and Billy Bexter of Augusta, Geor-

gia, and he participates with these individu-

294

2.—Continued

als, and others unknown, in the placing and

accepting of wagers based upon the outcome

of professional baseball games. Doolittle is

associated with Cliff Anderson games by

placing a call from a pay telephone booth

located in the Sportsman's Club at approxi-

mately noon each day, and subsequently sup-

plies this line to the aforementioned to assist

them in the placing and acceptance of wagers

based on the outcome of professional baseball

games.

[522] I have established through independ-

ent investigation that this informant has had

the opportunity to obtain first-hand knowl-

edge of the activities the informant has de-

scribed. This informant has been contacted

by Special Agents of the Federal Bureau of

Investigation on several occasions since Janu-

ary 1970 and on 22 occasions the informant

has furnished information which has been de-

termined to be accurate by independent in-

vestigation. On a date during the week be-

ginning on August 9, 1970, this informant

stated that within five (5) days prior to that

date, through personal conversation with «re

of the principals at the Sportsman's Club, the

informant determined that Doolittle is curt

rently operating as described in the preceding

paragraph. This informant further state!

that through first-hand knowledge the inf

mant knows that Anderson and Baxter are

engaged in accepting wagers on the outc: re

of professional baseball games as of a da'e

during the week beginning on August 9, I":

- * * * > *

30a

Among the features of these materials

which convince me that law enforcement

officers had probable cause as to Ander-

son, Baxter, and Sanders are the follow.

ing: (a) The basis of the application was

Hart’s affidavit. Repeatedly Hart ex-

plicitly refers to a telephone wagering

operation conducted over the Sports-

man’s Club telephone by Doolittle, An-

derson, Baxter, and Sanders. (b) Hart

avers that these activities were reported

to him by confidential informants, al-

leged upon Hart’s oath to have made

declarations against penal interest as in-

6. Examination of the records of the Mo

con, Georgia, Credit Bureau on April 2°

1970, disclosed that Doolittle and William 4

Sanders, Jr., are listed as owners of t*

Sportsman's Club, Macon, Georgia. Saniiees

was also listed as a former employee of t*+

Southern Bell Telephone Company for 1!

years.

* 7 * * . ®

/S/ GARY W. HART

Special Agent

Federal! Bureau of

Investigation

Subscribed and sworn before me

this 21 day of August, 1970.

/s/ W. A. BOOTLE

United States District Judge

3la

dicia of reliability, one of whom is fur-

ther alleged to have given reliable infor-

mation on twenty-two prior occasions.

respect to the players, their roles, certain

wagered athletic contests, and the physi-

cal setting. (d) Hart avers that this

specificity is the product of personal

knowledge on the part of the infor-

mants, whose personal knowledge Hart

swears he has verified through “inde-

pendent investigation.” Without bela-

boring the point, I simply confess my

bemusement that if the Hart affidavit

did not provide probable cause as to An-

derson, Baxter, and Sanders, I do not

know what would. See Gonzales

Beto, supra, 425 F.2d at 968-969; sc

also Polanco v. Estelle, 5th Cir. 1975, 507

F.2d 81 (“in judging probable cause may.

istrates are not to be confined by restric-

tions on their use of common sense’).

United States v. James, 9th Cir. 1974,

494 F.2d 1007; United States v. McHale,

7th Cir. 1974, 495 F.2d 15. Yet, for rea-

sons not entirely apparent to this court,

the government saw to it that neither

the application nor the order made refer.

32a

ence to any of these three defendants’

The government’s own statements

shed additional light on the issue. When

this appeal was briefed, the Supreme

Court had not yet decided Kahn. At

that time the government’s position was

that the term “person, if known,” as

used in § 2518(1)(b)iv) and 4(a), meant

only the “subject” of the interception,

whom the government contended was

Doolittle. Not anticipating that the Su.

preme Court would choose a. middl

ground between its argument and the

“discoverability” test successfully ad-

vanced by Minnie Kahn in the Seventh

Circuit, the government stated in its

brief to this court:

The application in the present’’Case

demonstrated that agents of the

government actually “knew,” that is

had personal knowledge as opposed to

information, of only one defendant

who was using the phones in question:

3. The district court, in drawing the wite's;

order, simply adopted the “others as vet «°

known” language used by the governmert ~*

its application.

om ke eee ir eee. oO ate

33a

defendant Doolittle, the person named

in the order. They and the Court had

nothing more than “probable cause to

believe” that Anderson and Baxter

{and Sanders] would be intercepted.‘

Or, I would add, that these three were

“committing the offense” for which the

wiretap was sought.

Thus, the majority manufactures for

the government a result which reflects

considerable profit from inconsistent po-

sitions, while purging the government’s

contention of any adverse consequences,

however logical or proper they may be.

Appellant Anderson argues that in this

respect the government should now be

estopped. There may be merit to Ander-

on’s argument, inasmuch as the govern-

ment was equally as capable as appel-

lants to anticipate what the Supreme

Court would hold in Kahn. I need not

rest my views on estoppel, however,

since I have already concluded that the

requisite probable cause existed as to

Anderson, Baxter, and Sanders at the

time when tap authorization was sought.

Under Kahn, therefore, | would reverse

as to these three with directions to the

4 Brief for the government at 28. 29.

35a

Before BROWN, Chief Judge, and

WISDOM, GEWIN, BELL, THORNBER-

RY, COLEMAN, GOLDBERG, AINS-

WORTH, GODBOLD, DYER, SIMPSON,

MORGAN, CLARK, RONEY and GEE,

district court to suppress their intercept-

ed communications pursuant to 18 U.S.C.

§ 2518(10)(a)(ii) (“order of authorization

or approval under which it was inter-

cepted is insufficient on its face’’).5 |

34a |

& Although the majority does not make this

argument in support of its conclusion that

Title II] was substantially complied with, one

might contend that paragraph 4 of the wire-

tap application, which purports to incorporate

the Hart affidavit by reference, operated in

legal usage to name Anderson, Baxter, and

Sanders insofar as § 2518(1)(b)(iv) required

that they be named in the application. One

might then argue that since neither the appli-

cation, the supporting affidavit, nor the order

in Kahn mentioned Minnie Kahn, and that

since the Supreme Court phrased its holding

disjunctively in terms of naming a person in

the application or interception order, the

Court implied thereby that the naming of

probable cause suspects in either the applica-

tion or the order would satisfy the statute.

Imay assume that the incorporation by refer-

, ence operated to name Anderson, Baxter, and

Sanders in the application, but | reject the

idea that Kahn supports or implies the rest of

the argument. First, the significant feature

of Kahn is its emphasis on the literal lan-

guage and terms of Title III. In addition to

requiring, under Kahn, the naming of proba-

A A mt

i en

Circuit Judges.

BY THE COURT:

ble cause suspects in the application, Title Ill

literally requires that they also be named in

the order. § 2518(4)(a). That was not done

in this case, and Kahn—inasmuch as it in-

volved no question of half-compliance,

through incorporation by reference or other-

wise—cannot be deemed to support an analy-

sis which runs counter to the statute's literal

provisions. Second, although Kahn _ holds

that the district court's duty to include names

in the order is no broader than the govern-

ment’s duty to include them in the applica-

tion, the Court explicitly recognized that

“{sJection 2518(4)(a) requires that the order

specify ‘the identity of the person, if known,

whose communications are to be

intercepted.” "" 415 U.S. at 151, 94 S.Ct. at

982. 39 L.Ed.2d at 234. This part of the

Court's discussion does strongly imply a re-

sponsibility on the government to see that the

names of its probable cause suspects are

placed in the court's order—the operative

document for initiating a lawful wiretap—as

well as the application. This responsibility

arises because “the judge who prepares the

order can only be expected to learn of the

target individual's identity through reference

to the original application as ae

36a

A member of the Court in active serv-

ice having requested a poll on the appli-

cations for rehearing en banc and a ma-

jority of the judges in active service hav-

ing voted in favor of granting a rehear-

ing en banc,

It is ordered that the cause shall be

reheard by the Court en banc with oral

argument on a date hereafter to be fixed.

The Clerk will specify a briefing schedule

for the filing of supplemental briefs.

ee es eS A e+ —_

APPENDIX B

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Billy Cecil DOOLITTLE, William Au-

gustus Sanders, Jr., Ernest Massod

Union, Julian Wells Whited, Frank

Joseph Masterana, Cliff Anderson,

Darnice T. Malloway, and William E.

Baxter, Defendants-Appellants.

No. 72-3263.

United States Court of Appeals,

Fifth Circuit.

Sept. 2, 1975.

Floyd M. Buford, Macon, Ga., for Un-

ion and Whited.

Oscar B. Goodman, Las Vegas, Nev.,

for Doolittle, Sanders and Masterana.. :

Louis Wiener, Jr., Las Vegas, Nev.,

Manley F. Brown, Macon, Ga., for An-

derson.

Wesley R. Asinof, Atlanta, Ga., for

Baxter.

Herbert Shafer, Atlania, Ga., for Mal-

loway.

William J. Schloth, U. S. Atty.,

Charles T. Erion, Asst. U. S. Atty., Ma-

con, Ga., Andrew L. Frey, Dept. of Jus-

tice, Washington, D. C., for plaintiff-ap-

pellee.

Appeals from the United States Dis-

trict Court for the Middle District of

Georgia, William A. Bootle, Judge, 341

F.Supp. 168.

Before BROWN, Chief Judge, and

WISDOM, GEWIN, BELL, THORN-

BERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER,

SIMPSON, CLARK, RONEY and GEE,

Circuit Judges.*

PER CURIAM:

The Court voted to reconsider this case

en banc primarily to determine the cor-

rectness of the issue on which the panel -

divided: whether the failure to name de-

fendants Anderson, Baxter and Sanders

in the wiretap interception order re-

quired suppression in their trials of in-

tercepted telephone’ conversations to

* Circuit Judge Morgan did not participate in the

decision of this case.

which they were parties. A majority of

the en banc court agrees with the panel’s

resolution of the issue and the convic-

tions of Anderson, Baxter and Sanders

are affirmed on the basis of the panel

opinion. United States v. Doolittle, 507

F.2d 1368 (5th Cir. 1975). Having con-

sidered all issues in the case, the Court

agrees that the panel correctly decided

the issues on which the panel was itself

unanimous.

Affirmed.

John R. BROWN, Chief Judge, and

WISDOM, THORNBERRY, GOLDBERG

and SIMPSON, Circuit Judges, dissent

from the affirmance of the convictions of

Anderson, Baxter and Sanders, and

would reverse for the reasons stated in

Judge Thornberry’s dissent to the panel

devision. 507 F.2d at 1372. Cf. United

States v. Bernstein, 509 F.2d 996 (4th

Cir. 1975), petition for cert. filed, 43 U.S.

L.W. 3687 (U.S. May 27, 1975) (No. 74—

1486). |

GODBOLD, Circuit Judge (dissenting):

The problem presented is whom must

the government name in its applications

for wiretap orders under the Omnibus

Crime Control and Safe Streets Act of

1968, 18 U.S.C. §§ 2510-2520. The perti-

nent section requires the government to

state in its application for a wiretap or-

der ‘the identity of the person, if known,

committing the offense and whose com-

munications are to be intercepted

..” § 2518(1)(b)(iv). The court or-

der must state “the identity of the per-

son, if known, whose communications

are to be intercepted ....,” §

2518(4)(a).! Defendants content that

the government must name every person

who it has probable cause to believe is

committing the crime being investigated.

The Fourth and Sixth Circuits have

adopted that view. United States v.

Bernstein, 509 F.2d 996 (CA4, 1975);

United States v. Donovan, 513 F.2d 337

(CA6, 1975). The government contends,

in effect, that so long as it gives the

name of one person with respect to

whom it has probable cause it need not

reveal the names of others with respect

to whom probable cause is also present.

l. The insignificance of the discrepancy be-

tween the language relating to wiretap appli-

cations and that relating to wiretap Orders is

discussed in United States v. Kahn, 415 U.S.

143, 152, 94 S.Ct. 977, 982, 39 L.Ed.2d 225, 235 ©

(1974).

ee ee a ee eee et

ON bee ee

Neither approach to the government’s

obligation is workable. The defendants’

view is too expansive. A single wiretap

may produce dozens if not hundreds of

names of individuals not seriously under

investigation but with respect to whom

the existence of probable cause might be

found. The probable cause approach

would stifle if not smother the law en-

forcement efforts of government agen-

cies with administrative labors. I think

Congress did not intend such a result.

The government’s view is too narrow.

Congress did not intend to permit the

government to name whomever it choos-

es and no others. The thrust of the

wiretap statute is judicial supervision of

necessary executive invasions of privacy.

Such supervision can only serve its func-

tion where the supervising court has suf-

ficient access to the information needed

for due consideration of wiretap applica-

tions. In these ex parte proceedings the

government is the only source of infor-

mation. An interpretation that requires

the government agency to name only

one person when it is actively directing

the interception against many more per-

sons reads the naming requirement out

of the Act and shifts the locus of in-

formed decision-making from the courts

to the agencies. This is contrary to the

intent of Congress.

The majority panel decision, adopted

by the en banc majority, does not decide

whether there was or was not probable

cause with respect to Anderson, Baxter

and Sanders. Judge Thornberry pointed

out in his dissent to the panel opinion

that it did not come to grips with this

question. Rather, the panel opinion ap-

pears to say that, even if there was

probable cause with respect to these de-

fendants, the governmental action is

nonetheless salvaged by an amalgam of

substantial compliance with the statute,

no prejudice to the defendants, and no

bad faith or subterfuge by the govern-

ment. I have great difficulty with this

cure by analgesic balm. The statutory

scheme recognizes the privacy interest of

one using telephone communications and

makes wiretapping a felony except for

statutorily prescribed exceptions, 18

U.S.C. § 2511(1). I think none of these

grounds is adequate to overcome the pol-

icies inhering in the congressional deter-

mination to prohibit and severely punish

unauthorized wiretapping, §§ 2511(1)

and 2520.

ee eS ee

Construing after-the-fact performance

of the requirement of § 2518(8)(d) as

substantial compliance misses the thrust

of the statute, which is not disclosure to

the victim after the fact but review by a

federal district judge before the fact.

What is missing from the government’s

proffered compliance is the federal dis-

trict judge’s review of the wiretap plans

to protect the privacy interest of the un-

named persons. This is the heart of the

statutory scheme. When the person is

not named the further disclosure re-

quirements of § 2518(1)(e) are also not

triggered and judicial supervision be-

comes a charade.’

Even if that right is discounted, re-

liance upon after-the-fact compliance

with the requirements of § 2518(8)(d) as

substantial compliance with the statuto-

ry scheme renders the application and

order requirements nugatory. If the

government need not name a suspect so

long as he is given after-the-fact notice

2. No court is empowered to consider after the

fact whether the wiretap was proper in terms

of balancing the conflicting interests of priva-

cy and law enforcement, as the application

court is empowered to do under § 2518(4),

discussed infra. Thus the necessity for proper

and informed decision on that question before

the fact looms larger in significance.

and transcripts, then the government

need r«ver disclose names in the original

application, for it could always give ret-

rospective validity to its actions by send-

ing notice and transcript to whomever it

later chooses to prosecute. Without

names the courts will be seriously dis-

abled in their function of reviewing the

applications for probable cause and con-

sidering other relevant factors under

§ 2518(3). The limiting and deterrent

features of the statute would be lost.

Congress surely did not intend to allow

this.

Except to the extent, if at all, that

there may be substantial rather than lit-

eral compliance with the statute, the

statutory scheme does not allow a “no

prejudice” or “error without injury” ap-

proach. The statute recognizes the right

of privacy of one using telephone com-

munications and makes wiretapping a

felony except for statutorily prescribed

exceptions, 18 U.S.C. §§ 2511(1)(a) and

(b) and 2518. One whose privacy has

been invaded by an action felonious if

not excepted by statute may not be de-

nied suppression on the ground that he

really has not been hurt very much.

With respect to good faith, a govern-

mental pure heart does not validate an

otherwise invalid wiretap any more than

it would a private person’s erroneous but

good faith belief in the legality of his

wiretap of a neighbor or competitor.

Even if the government is to be given

greater deference, I have difficulty

understanding what constitutes good

faith in this context.’ It is obvious that

if the government is not required to

name a person with respect to whom it

has probable cause, then it does not act

in bad faith in not naming him. As

employed by the majority the phrase

“good faith,” amorphous and undefined,

is not a tool of analysis but merely a

palliative. It has no relevance to wheth-

3. This is wholly different from the good faith

referred to in § 2520, which goes to reliance

on a district judge’s order, a specific and well-

defined concept of good faith unlike that of-

fered by the majority here. Moreover, the

good faith there protects government employ-

ees from severe after-the-fact sanctions for hu-

man errors to which their work particularly

exposes them; here it is being used to under-

cut the before-the-fact protections sought to be

provided by the statute. Taken together they

empower the very abuses, under color of law

and protected from punishment, which this act

was designed to prevent.

10b

er the function of the statute—judicial

supervision of executive invasions of in-

dividual privacy—has been served.

Since I reject the arguments by which

the majority resolve this case, I must

consider the question of what trig-

gers the naming requirement of §

2518(1)(b)(iv). Originally I thought

that I would join my fellow dissenters,

who have taken a stand on United

States v. Kahn, 415 U.S. at 155, 94 S.Ct.

at 984, 39 L.Ed.2d at 237, and United

States v. Bernstein, 509 F.2d at 1001-—

1002.3* See the dissent from the panel

opinion, 507 F.2d 1368, 1372, 13873, adopt-

ed by the en banc minority. On further

reflection I have concluded that I cannot

join them in that position. At the most

Kahn only says that if the government

does not have probable cause to believe a

person is committing the crime being in-

vestigated then the government need not

name that person under § 2518(1)(b)iv),‘

415 U.S. at 155, 94 S.Ct. at 984, 39

L.Ed.2d at 237. I do not read this to

3a. See also United States v. Donovan, 513 F.2d

at 341.

4. I think that § 2518(3) poses a distinct nam-

ing requirement, see infra.

llb

decide the converse proposition that if

the government does have probable

cause it must name the person. We

must then look to the statute to deter-

mine whether Congress indicated more

definitely whom it wanted named in

wiretap applications.

Steering between the Scylla of a sti-

fling administrative burden and_ the

Charybdis of unchecked executive power,

I would require the government to name

all those individuals “against whom the

interception was directed,” as_ that

phrase is used in the definition of ag-

grieved person in § 2510(11).°. This defi-

nition is keyed to the standing and sub-

stantive rights given in § 2518(10)(a) and

reflecting a congressional concern for

protecting the interests of those subject-

ed to government investigations.

5. The important details of who must carry ex-

actly what burden of proof must be left to the

district courts to work out through practical

experience.

12b

I do not see how the naming require-

ment can be any narrower.’ As I have

already pointed out, to permit the

government to conduct an investigation

by wiretapping without ever disclosing

to a court the persons it hopes to hear

and ultimately convict makes mincemeat

of the statutory system. This could sub-

ject to intentional, repeated, unsuper-

vised and unpunishable ’ invasions of pri-

vacy any person who talks by telephone’

with persons—only one per wiretap

would be necessary under the majority’s

approach—apainst whom the govern-

ment is able to make some showing of

probable cause. The essence of the

§ 2518(1)(e) requirement of disclosure to

the application court of prior wiretaps is

to prevent such activity. It cannot be

prevented unless the government is re-

quired to apprise that court of the iden-

6. Whatever bearing some of the language in

Kahn may have on this point, | think it is

sufficient to say that the individual in that

case whose conversation was overheard was

not under investigation and that the govern-

ment made a convincing showing to that ef-

fect.

7. By reason of § 2520.

13b

tity of the persons at whom investiga-

tion and wiretap are directed.

If one is to move toward a broader

reading of the naming requirement, I see

no stopping point short of probable

cause. For the reasons noted above I

think such a requirement would be too

broad because of the administrative bur-

dens it would place on law enforcement

agencies.

The approach which I have taken

meshes neatly with the application-and-

order procedure under which all wiretaps

are to be conducted. The statute posits

that courts should supervise law enforce-

ment agencies’ wiretap activities. Wire-

taps are of course a powerful investiga-

tive tool, but the concomitant invasions

of privacy necessarily occurring must be

The target-naming requirement would cut off

more severe abuses, by judicial supervision -

where the persons are named, and by the

sanctions of §§ 2511(1) and 2520 where they

are not named. The good faith defense pro-

vided in § 2520 would be unavailable where

the naming requirement is clear and the failure

to name is egregious, notwithstanding the

presence of a § 2518(3) order.

14b

weighed against the investigative conve-

nience. The ultimate decision-maker is

the federal district court. Judicial su-

pervision of wiretapping begins when a

law enforcement agency applies to a

court for a wiretap order. Section

2518(1) requires the application to dis-

close authorization for the application

under §§ 2516(1) or (2), the phone to be

tapped, the crime believed to be commit-

ted, the name of the suspect, a state-

ment that other investigative means

have been exhausted or would not be

productive, and prior wiretaps of the

persons named. The next subsection au-

thorizes the judge to “require the appli-

cant to furnish additional testimony or

documentary evidence in support of the

application,” § 2518(2). The judge who

must weigh the competing values of pri-

vacy and efficient law enforcement is

thus empowered to obtain information

pertinent to those factors from the only

party before it in these ex parte proceed-

ings. The separate authorization of

§ 2518(2) would be redundant and super-

fluous if it reached no more than is al-

ready covered by § 2518(1)(b), since the

judge could always refuse to issue an

1Sb

order until the law enforcement agency

had satisfactorily complied with that

subsection.

Section 2518(2) is an invitation to the

judge receiving the application to plumb

the scope and purpose of the govern-

ment’s investigation. It authorizes him

to inquire into whatever other purposes

the government agency might have, into

possible and suspected wrongdoers not

yet the subject of probable cause beliefs,

and into other collateral matters which,

although not required by the bare appli-

cation requirements of § 2518(1)(b), the

court might consider in deciding whether

to grant the order.

The judge’s duty to weigh these collat-

eral and competing factors is contained

in the next subsection, § 2518(3), which

does not require, but only authorizes, is-

suance of a wiretap order after the ap-

propriate findings of probable cause—

“the judge may enter an ex parte order

if the judge determines on the

basis of the facts submitted by the appli-

cant that . . ._ there is probable

cause for belief that an individual is

committing . . . a particular of-

fense” and that a wiretap will disclose

16b

pertinent communications, along with

other necessary findings (emphasis add-

ed).2 The judge has discretion not to

issue a wiretap order even if he is satis-

fied that a showing of probable cause

has-been made. The authorization to re-

quire additional information in § 2518(2)

read in conjunction with this discretion

suggests a broad grant of power to the

courts to oversee governmental wiretap-

ping.

In the instant case, I would remand to

the District Court for a hearing on

whether Anderson, Baxter and Sanders

were targets of the government’s inves-

tigation when the relevant wiretap appli-

cation was made, that is, whether the

wiretaps were directed against them,

taking due account of whether the

government can reasonably be believed

not to be investigating these persons in

light of the information it had already

collected against them.

9. Compare § 2518(10)(a), which refers to a

presumption of illegality “if the motion [to

suppress] is granted . ’ The conditional

“if here could go to a finding of grounds for

suppression, as well as to judicial discretion.

But there is no such ambiguity in § 2518(3),

which must include discretion.

APPENDIX C

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Billy Cecil DOOLITTLE, William Au-

gustus Sanders, Jr., Ernest Massod

Union, Julian Wells Whited, Frank

Joseph Masterana, Cliff Anderson,

Darnice T. Malloway, and William E.

Baxter, Defendants-Appellants.

No. 72-3263.

United States Court of Appeals,

Fifth Circuit.

April 7, 1975.

Appeal from the United States Dis-

trict Court for the Middle District of

Georgia, William A. Bootle, Judge, 341

F.Supp. 163.

ON PETITIONS FOR REHEARING

AND PETITIONS FOR REHEAR-

ING EN BANC .

(Opinion February 14, 1975, 5 Cir.,

1975, 507 F.2d 1368).

Before BROWN, Chief Judge, and

WISDOM, GEWIN, BELL, THORN-

BERRY, COLEMAN, GOLDBERG,

AINSWORTH, GODBOLD, DYER,

SIMPSON, MORGAN, CLARK, RONEY

and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active serv-

ice having requested a poll on the appli-

cations for rehearing en bane and a ma-

jority of the judges in active service hav-

ing voted in favor of granting a rehear-

ing en banc,

It is ordered that the cause shall be

reheard by the Court en bane with oral

argument on a date hereafter to be

fixed. The Clerk will specify a briefing

schedule for the filing of supplemental

briefs.

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OCTOBER TERM, 1974

No. 72-3263

D. C. Docket No. CR 8815

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BILLY CECIL DOOLITTLE, WILLIAM AUGUSTUS

SANDERS, JR., ERNEST MASSOD UNION, JULIAN

WELLS WHITED, FRANK JOSEPH MASTERANA,

CLIFF ANDERSON, DARNICE T. MALLOWAY, and

WILLIAM E. BAXTER,

Defendants-A ppellants.

APPEALS FROM THE UNITED STATES

DISTRICT COURT FOR THE

MIDDLE DISTRICT OF GEORGIA

Before

BROWN, Chief Judge, and WISDOM, GEWIN, BELL,

THORNBERRY, COLEMAN, GOLDBERG, AINS-

WORTH, GODBOLD, DYER, SIMPSON, CLARK,

RONEY and GEE, Circuit Judges. *

*Circuit Judge Morgan did not participate in the decision of

this case.

JUDGMENT ON REHEARING EN BANC

This cause came on to be heard on defendants-

appellants’ petitions for rehearing en banc and was

argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby affirmed by the Court en banc.

September 2, 1975

BROWN, Chief Judge, and WISDOM, THORNBERRY,

GOLDBERG and SIMPSON, Circuit Judges,

dissent from the affirmance of the convictions

of Anderson, Baxter and Sanders.

GODBOLD, Circuit Judge, dissenting.

ISSUED AS MANDATE:

APPENDIX “E”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, )

Appellee, )

v. ) OPINION

)

KALE KALUSTIAN, (74-3314) ) FILED

PATRICK DALE POND, (743315) )

STANLEY NORMAN GRAY, (74-3305) )AUG 4 1975

DAVID SELDITCH, (743264) )

OTTO VINCENT MARINO, )

LEOPOLDO OBEZO, )

MABLE LINDA CUCCIA, (743265) )

)

Appellants.

Appeal from the United States District Court for the

Central District of California

Before:ELY and HUFSTEDLER, Circuit Judges, and

SKOPIL, District Judge*

SKOPIL, District Judge:

Appellants seek review of their convictions for illegal

gambling activities. 18 U.S.C. §§1955 and 2. They

claim their motions for suppression of evidence were

improperly denied. They also argue that there was

insufficient evidence to sustain the verdicts.

According to the Government, confidential in-

formants “advised” federal agents in 1971 that

defendant Kalustian was operating a bookmaking

operation from the Topper Club (Club) in Rosemead,

*Honorable Otto R. Skopil, Jr., United States District Judge

for the District of Oregon, sitting by designation.

California. Defendants Pond and Marino, among others,

were identified as agents for the operation. On

December 20, 1971, the Department of Justice sought

court orders authorizing wire taps on three telephones

at the Club one at defendant Stempke’s residence, and

one at the residence of Patricia Johnson. The

application was authorized by Attorney General John

Mitchell and granted on December 20, 1971. 18 U.S.C.

§ 2518(1)(c) provides that such applications shall

include

‘“‘a full and complete statement as to whether or

not other investigative procedures have been tried

and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too

dangerous.”

The Government attempted to fulfill that require-

ment through affidavits supplied by Special FBI Agent

James Brent (Affidavits), which essentially contained

the following representations:

“The informants named herein have all said that

they will not testify to information they have

provided, even if granted immunity.* * *

“Experience has further established that even

though telephone toll records are available which

indicate a person is engaged in illicit gambling, the

records themselves are not sufficient to prove the

gambling activities. Standard investigative tech-

niques have not succeeded in providing evidence to

sustain prosecution in this case and would only -

succeed to a limited degree in establishing that

Kale Kalustian, also known as Kelly, Patrick Dale

Pond, Otto Vincent Marino, Patricia Jackson, Bill

Stempke, and others as yet unknown, are involved

in gambling activities over the telephone subscribed

to in the name of the Topper Club. * * *

Puyo

“Furthermore, such investigative techniques as

physical surveillance and the records obtainable on

Kale Kalustian, also known as Kelly, Patrick Dale

Pond, Otto Vincent Marino, Patricia Jackson, Bill

Stempke, and others as yet unknown, contain little

probability of success in securing presentable

evidence. Based upon my knowledge and experi-

ence as a Special Agent of the Federal Bureau of

Investigation in the investigation of gambling cases

and my association with other Special Agents who

have conducted investigation of gambling activities,

normal investigative procedures appear to be

unlikely to succeed in establishing that the above

individuals are involved in gambling activities over

the aforementioned telephones in violation of

Federal laws. My experience and the experience of

other Agents has shown that gambling raids and

searches of gamblers and gambling establishments

have not, in the past, resulted in the gathering of

physical or other evidence to prove all elements of

the offense. I have found through my experience

and the experience of other Special Agents, who

have worked on gambling cases, that gamblers

frequently do not keep permanent records. If such

records have been maintained, gamblers, im-

mediately prior to or during a physical search,

sometimes destroy the records. Additionally,

records that have been seized in past gambling

cases have generally not been sufficient to establish

elements of Federal offenses because such records

are difficult to interpret, and many times are of

little or no significance without further knowledge

of the gamblers’ activities. Therefore, the inter-

ception of these telephone communications is the

Only available method of investigation which has a

reasonable likelihood of securing the evidence

necessary to prove violation of these statutes. * * *

“Wherefore, because of the existence of facts

and underlying circumstances of the continuing

investigation listed above in paragraphs 4 through

32b, i submit that the probable cause as submitted

in paragraphs 3a, 3b, and 3d exists; that the

extensive normal investigative procedures tried, as

set forth in paragraphs 4 through 32b, have failed

to gather evidence necessary to sustain prosecution

for violation of the offenses enumerated in

paragraph 3a, and reasonably appear unlikely to

succeed; °° ©"

Appellants contend that their motions to suppress

the wiretap evidence should have been granted because

the Government’s application did not satisfy 18 U.S.C.

§ 2518(1)(c). They argue that the supporting affidavits

contain bald conclusions rather than facts from which

the Attorney General and the judge could determine

whether ‘“‘normal investigative procedures’ were viable

alternatives to electronic surveillance. § 2518(3)(c).

Title II! of the Omnibus Crime Control and Safe

Streets Act of 1968 (Act), 18 U.S.C. §§ 2510 et seq.

absolutely prohibits electronic surveillance by _ the

federal government except under carefully defined

circumstances and after securing judicial authority.

Procedural steps provided in the Act require strict

adherence. United States v. Giordano, 94 S.Ct. 1820,

416 U.S. 505 (1974). The importance of these

procedures reflects the dual purpose of Title Il, which

is to

“(1) [protect] the privacy of wire and oral

communications and (2) [delineate] on a uniform

basis the circumstances and conditions under

which the interception of the wire and oral

communications may be authorized.” S. Rep. No.

1097, 90th Cong., 2d Sess., 1968 U.S. Code Cong.

& Admin. News 2112, 2153 (hereinafter cited as

History”).

Title II] was written to create limited authority for

electronic surveillance in the investigation of specified

crimes thought to lie within the province of organized

criminal activity. History. pp. 2153-2163. It was

designed to conform to prevailing constitutional

standards. Berger v. New York, 388 U.S. 41 (1967);

Katz v. United States, 389 U.S. 347 (1967). The

restraint with which such authority was created reflects

the legitimate fears with which a free society entertains

the use of electronic surveillance. As stated in Berger,

supra, ““Few threats to liberty exist which are greater

than that posed by the use of evesdropping devices.”

388 U.S. at 63.

Section 2518(1)(c) of the Act

“

is patterned after traditional search warrant

practices and present English procedure in the

issuance of warrants to wiretap by the Home

Secretary. [citation omitted] The judgment [of

the judge or magistrate] will involve a considera-

tion of all the facts and circumstances. * * *

Merely because a normal investigative technique is

theoretically possible it does not follow that it is

likely. See Giancana v. United States, 352 F.2d

921 (7th Cir. 1965), cert. denied 382 U.S. 959;

New York vy. Saperstein, 2 N.Y. 210, 140 N.E.2d

252 (1957). What the provision envisions is that

the showing be tested in a _ practical and

commonsense fashion. Compare United States v.

Ventresca, 380 U.S. 102 (1965).” History, p.

2190.

Our review of the wiretap authorization is limited.

We are reminded that

“[wlhere [the underlying circumstances in the

affidavit] are detailed, where reason for crediting

the source of the information is given, and when a

magistrate has found probable cause, the courts

should not invalidate the warrant by interpreting

the affidavit in a hypertechnical, rather than a

commonsense, manner.” United States y.

Ventresca, supra at 109.

Within our prescribed limits, however, the utmost

scrutiny must be exercised to determine whether

wiretap orders conform to Title III. The Act has been

declared constitutional only because of its precise

requirements and its provisions for close judicial

scrutiny. United States v. Bobo, 477 F.2d 97 (4th Cir.

1973); United States v. Cox, 449 F.2d 679 (10th Cir.

1971), cert. denied, 406 U.S. 934 (1972); United States

v. Cox, 462 F.2d 1293 (8th Cir. 1972). Our review of

wiretap orders must ensure that the issuing magistrate

properly performed his function and did not “‘serve

merely as a rubber stamp for the police”. Ventresca,

supra at 109.

The affidavits set forth facts from which probable

cause to infer the operation of a gambling conspiracy

could be gleaned. Nearly all of these “facts” trickled

into the ears of FBI agents through a series of

professional gamblers and bookmakers moonlighting as

stoolies for the Government. This colorful procedure of

shuffling through stacks of hearsay and double hearsay

reports from the “underworld” to construct an affidavit

prompts some intriguing ethical questions. Unfortunate-

ly, as the affidavits attest, none of the Government’s

underworld journalists are quite willing to testify.

Evidence of the telephone numbers used by the

bookmaking operation and the identities of some of the

conspirators could not successfully support a prosecu-

tion without that testimony.

Consequently the investigating officials decided

electronic surveillance was imperative. They discarded

alternative means of further investigation because

“knowledge and experience” in investigating other

gambling cases convinced them that ‘“‘normal investiga-

tive procedures” were unlikely to succeed. Agent Brent

recites that searches are often fruitless because gamblers

keep no records, destroy them, or maintain them in

undecipherable codes. Use of the phone company’s

records alone is inconclusive.

The affidavit does not enlighten us as to why this

gambling case presented any investigative problems

which were distinguishable in nature or degree from any

other gambling case. In effect the Government’s

position is that all gambling conspiracies are tough to

crack, so the Government need show only the

probability that illegal gambling is afoot to justify

electronic surveillance. Title II] does not support that

view.

“Congress legislated in considerable detaii in

providing for applications and orders authorizing

wire tapping and evinced the clear intent to make

doubly sure that the statutory authority be used

with restraint and only where the circumstances

warrant the surreptitious interception of wire and

oral communications. These procedures were not

to be routinely employed as the initial step in

criminal investigation. Rather, the applicant must

state that and the court must find that normal

investigative procedures have been tried and failed

or reasonably appear to be unlikely to succeed if

tried or to be too dangerous.” United States v.

Giordano, supra. (emphasis added)

The Government’s position is ‘urther undermined by

the activity of other crimv-tighting organizations.

California, among other states, deprives its policemen of

electronic surveillance in all cases. This has not

prevented them from successfully prosecuting gambling

crimes.

Obviously electronic surveillance can facilitate crimi-

nal investigation. Other investigative techniques are

usually slower and more difficult. Unless they “have

been tried and failed or reasonably appear to be

unlikely to succeed if tried or to be too dangerous”’,

however, Title II1 does not allow wiretapping to replace

them.

The Government failed in this case to satisfy 18

U.S.C. §2518(1)(c). Its application did not adequately

show why traditional investigative techniques were not

sufficient in this particular case. A reviewing judge is

handicapped without a full and complete statement of

underlying circumstances. The Government must (1)

inform him of every technique which is customarily

used in police work in investigating the type of crime

involved, and (2) explain why each of them has either

been unsuccessful or is too dangerous or unlikely to

succeed because Of the particular circumstances of that

case. Title III and the individual’s right to privacy

which it seeks to preserve demand no less.

Mere conciusions by the affiant are insufficient to

justify a search warrant, Aguilar v. Texas, supra, or a

wiretap order. More specifically, they do not provide

facts from which a detached judge or magistrate can

determine whether other alternative investigative pro-

cedures exist as a viable alternative.

The trial court’s order denying appellants’ motions

for suppression of electronic surveillance evidence is

reversed, and all consolidated cases are remanded for a

new trial. All evidence gathered through electronic

surveillance pursuant to the original § 2518 order and

its extensions shall not be admitted in subsequent

proceedings.

In view of that ruling, the other issues on appeal are

not reached.

REVERSED and REMANDED

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.