Petition — Feldman v. United States

IN THE

SUPREME COURT

OF THE UNITED STATES

October_Term, 1976

No.4 §= | | 3 i

-IOLET JOSEPHINE FELDMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI-

(Supreme Court Rule 23)

TO THE SUPREME COURT

OF THE UNITED STATES

JAMES P. CANTILLON

9200 Sunset Boulevard

Penthouse No. 3

Los Angeles, California 90069

(213) 273-7373

Attorney for Petitioner

VIOLET JOSEPHINE FELDMAN

IN ‘THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1976

No.

VIOLET JOSEPHINE FELDMAN,

Petitioner,

vs.

- UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI -

(Supreme Court Rule 23)

TO THE SUPREME COURT

OF THE UNITED STATES

JAMES P. CANTILLON

9200 Sunset Boulevard

Penthouse No. 3

Los Angeles, California 90059

° (213) 273-7373

Attorney for Petitioner

VIOLET JOSEPHINE FELDMAN

TOPICAL INDEX

Table of Authorities

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTES INVOLVED

STATEMENT OF CASE

REASONS FOR GRANTING WRIT

CONCLUSION

APPENDIX A

TABLE OF AUTHORITIES

Statutes

18 U.S.C.:

Section 2

Section 1955

Section 2516

Section 2517, Subsection 4

Sections 2518(1)(c) and (3)(c)

28 U.S.C. Section 1254(1)

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1976

No.

VIOLET JOSEPHINE FELDMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI -

(Supreme Court Rule 23)

TO THE SUPREME COURT

OF THE UNITED STATES

To the Honorable, the Chief Justice and

Associate Justices of the Supreme Court of the

United States:

VIOLET JOSEPHINE FELDMAN, the

petitioner herein, prays that a writ of certiorari

issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit, entered

1.

in the above entitled case on June 23, 1976.

OPINION BELOW

The opinion of the U.S. Court of Appeals

for the Ninth Circuit is reported at 530 F.2d

and is printed in Appendix A hereto, infra,

page A-1. The Journal Entry of Judgment of

Conviction of the U.S. District Court for the

Central District of California, Case No. 74-1686

is printed in Appendix A hereto, infra, page A-12.

JURISDICTION

The judgment of the Court of Appeals was

entered on June 23, 1976. 4« timely petition for

rehearing was denied on June 1976 (Appendix

A, infra, page 4-10). The jur+sdiction of the

Supreme Court is invoked under °8 U.S.C.

§1254(1).

QUESTIONS PRESENTED

1. Whether the affidavits in support

of an application for wiretap authorizations are

sufficient to meet the various requirements of

18 U.S.C. Section 2516 and 18 U.»%.C. Section

2518(1) (c) and (3) (c), and whether they

demonstrate that normal investigative techniques

have been tried and failed or reasonably appear

2.

unlikely to succeed.

2. Whether the interception of intrastate

phone calls was in violation.of 18 U.S.C. Section

2517, Subsection 4 in that they were privileged

communications under the California Constitution

and Penal Code and should have been suppressed.

STATUTES INVOLVED

1. 18 U.S.C. §1955,

"Whoever conducts, finances, manages,

supervises, directs, or owns all or part

of an illegal gambling business, shall

be fined not more than $20,000.00 or

imprisoned not more than five years or

both."

_ 18 i & of $2,

"Whoever commits an offense against

the United States or aids, abets, counsels,

commands, induces or procures its com-

mission, is punishable as a principal."’

STATEMENT OF CASE

On November 19, 1974, Indictment No.

1686 was filed charging petitioner, VIOLET

JOSEPHINE FELDMAN, and others with one

count each of violating 18 U.S.C. Section 1955

3.

(illegal gambling business) and 18 U.S.C. Section

2 (aiding and abetting) during the period of

November 14, 1973 through approximately

January 2, 1974. ‘

A motion to suppress evidence obtained

through a court order authorizing the interception

of oral communications (No. Misc. 4002 and 4033)

was filed and made in the District Court, the

Honorable Manuel L. Real, Judge Presiding.

The motion was denied.

The wire tap evidence was introduced and

formed a very substantial part of and was

essential to the Government's case.and without

which the conviction could not be sustained.

REASONS FOR GRANTING WRIT

This case warrants a review by certiorari

of the nine grounds urged on appeal. Five of

which deal with the wire tap. These were ll

considered as evidenced by the opinion.

It appears that a reversal would follow

based on any one of said grounds. This

Honorable Court may well construe the authorities

relied upon by petitioner differently than those

expressed in the opinion.

CONCLUSION

For the foregoing reasons this petition for

a writ of certiorari should be granted.

Respectfully submitted,

JAMES P. CANTILLON

Attorney for Petitioner

VIOLET JOSEPHINE

FELDMAN

.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

eS )

UNITED StTaTEs OF AMERICA, ‘ |

Plaintitf-Appe lle .

va. | No. 75-1303

VIOLET JOSEPILINE FELDMAN.

Defendant-Appellant. ] '

L OPINION

{

UNITED STATES or A) ERM \.

Plainliff-Appe iii s..

aan No. 75-1526

Invinc HyMAN,

Di fe ndant-Appe Nant

| May 5, 1976|

Appeal from the United States Distriet Court

Before: CARTER. GOODWIN and KENNEDY.

Cireuit Judges

CARTER. Senior Circuit Judge

. . ' } ' iF Wig ‘ ” ‘ o

The al fend: 17 Were | (*e] } ill ! ! { |

, \. 7 , , ,

Uis.C. § 1955 (illegal e@arebline business) and of IS U.S.A 2

aiding and abetting vere eonvieted in a non-jury trial and sen-

ah = nner talents

tenced. Their appeals have been consolidated

ta SUP PPCSS e' rleones obtained

Mach defendant made a motion .

by a court-authorized cleetronic surveillance of tel phone entls. On

uppers thes urge that under 18 TLS WC § 2516 and PAIS TL) fe

and (ode t}). trial eaourl erred 1? denvine tiie motion te sup

Press.

We affirm

CONTENTIONS ON APPEAL

| Tl t the fficl: vits my Sttpprt ab Tye oOrae 1 cleetronic

ill a nis of ist s¢c. S OF1R

SUVVCLILATICS

EXHIBIT "A"

A

BEST COPY AVAILABLE |

2 United States of America vs.

(1)(e) and (3) (ce) that there be a showing that other inve stigutive

techniques had been tried and failed or that they would be rea

sonably unlikely to succeed if tried or Would be too dangerous.

2. That the showing that confidential] informants had refused

to testify in court proceedings was insufficient.

3. That the affidavits in support of the onder for electronic

surveillance were defective in that they did not meet the two

pronged test of Aguilar v. Texas, 378 US. 108 (1964) apd Ny.

nelli v. United States, 393 US. 410 (1969).

4. That the affidavits did not establish probable cause for the

issuance of a search warrant; therefore, they were insufficient to

support an order for eleetronie surveillanee of tel: planes

® That the Assistant Attorney General authorizine the elec

tronic surveillanee did not comply with 18 U.S.C. § 2516 in the

there is no showing that he arrived at his decision only after a

careful evaluation and sereening of the request,

6. That the order for surveillanee was applied improp

public telephones.

7. That the intereeption of intrastate telephone calls viol: foul

IB U.S.C. § 2517(4) since the Constitution of California and ij

Penal Code made the calis privileged communications within 1S

U.S.C. § 2517(4).

8. That 18 U.S.C. § 1955 js aneonstitutional.

9. That Title Iti «18 USC. RS POLO-P5P0) is lnconstitution:

THE FACTS

The faets at trial were obtained from the wiretapped conversa

tions, a written stipulation, the testimony of F.BAL Agent Cross

and of defendant and accomplice Zambros. who Was granted iminy

nity. That evidence revealed a large-seale bookie! Hier Coppenaal

in metropolitan Laos Angeles during the 1973 foothall SCUSON,

including daily wagers often exeeedine 1? (MM), Piven cecucion

ally assisted in the day-to-day management of the operation. jay

he and Feldman served primarily as “agents” who relaved bets te

the appropriate “front”. Hf the bettor won, the weent woul

him; if he lost. th agent would collect from him. The taped eos

versations helped to verify Zambros’ identifieation of the defend

ats as active agents in the operation,

eae i eae idea ts oT of

Pe ig ROSIE CR SRR Tee

Violet Josephine Feldman, et al. — 3

There were four other defendants below. The charges against

Farkas were dismissed as part of a plea bargain after he pied

guilty to charges in a related case. Eisenberg and Ilanft pled

guilty prior to trial. Zambros was granted immunity and appeared

as @ government witness.

I.

Sections 2518(1)(c) and (3) (c) Were Satisfied.

Defendants first contend that the affidavits of Special Agent

Charles B. Walker did not satisfy the requirement of 18 U.S.C.

§ 2518(1) (e)1 (describing the application for a court order) of

“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 added )

The argument is two-fold: (1) that the affidavits recite the

insufficiency of alternative procedures in gambling prosecutions

in general, whereas the stutute requires that the alternatives must

have failed or be likely to fail in the particular case at hand: and

(2) that the other allegations in the affidavits reveal that other

methods would have worked in the present case.

The first part of the argument is interesting ‘and is persuasive

that law enforcement agencies may not rely upon the general diffi-

culty of apprehending and convicting bookmakers to justify the

use of wiretapping. But that issue need not be reached because

the affidavits of Special Agent Walker clearly indicate that numer-

ous alternative procedures were either tried or reasonably rejected

in this case. The affidavits indicate that (1) confidential sourees

One through Six refused to testify in court proceedings; (2)

physical surveillance had been tried and was continuing, but was

unsuccessful in establishing the necessary clements of the erime

with respect to most of the pa-ticipants; (3) the nature of this

operation was such that apprehension by means of infiltration,

phone spots, codes, floating field licutenants, or use of telephones

118 U.S.C. § 2518(3) (e) relates to the matters to be considered by the

judge in making his determination of the application. It reads:

“(e) normal investigative procedures have been tried and have

failed or reasonably appear to be unlikely to succeed if tried or to

be too dangerous ;”

Ss SRY OR

PEA “et ot

4 United States of America vs.

with limited toll reeord outputs, was highly unlikely, particularly

since the operation would most likely be dissolved at the close of the

football season, thereby precluding some lengthy and cumbersome

procedures which might otherwise be employed.

Defendant Feldman suggests some ways in which surveillance,

infiltration, ete. might work. She cites no authority, however,

entitling her to second-guess the F.B.I. and invalidate a warrant

authorizing wiretaps by suggesting a number of possible alterna-

tives reasonably discarded as not feasible by those in charge of the

investigation. :

This cireuit has upheld the validity of an affidavit similar to the

one in our case, stating “. . . the law does not require that a wire-

tap be used only as a last resort.” United States v. Kerrigan, 514

F.2d 35, 38 (March 10, 1975), cert. den. sub nom. Karrigan v.

United States, 423 U.S. 924 (1975). United States v. Smith, .... |

if = (9 Cir. July 2, 1975) states:

“Congress, in its wisdom, did not attempt to require ‘spe-

cific’ or ‘all possible’ investigative techniques before orders for

wiretaps could be issued. As United States v. Giordano, 416

U.S. 505 at 515 (1974) states—wiretap ‘procedures were not

to be routinely emploved as the initial step in criminal inves-

tigations,’ but it is equally true ‘that the law docs not require

the government to use a wiretap only as a last resort.’ United

States v. Kerrigan |supra|, United States v. Starno, 358 F.

Supp. 852, 856-7 (1.D. Pa. 1973).”

United States v. Turner, .... F2d _ (9 Cir., July 24, 1975)

states, after quoting 18 U.S.C. § 2518(1) (¢):

“In this respect the affidavits in support of the applications

stated that Ethridge was suspicious of being followed by law-

enforcement officers; that the Kinglet Drive and Blue Heights

residences were located on single-lane roads in mountainous

areas, making undetected visual observations extremely diffi-

cult; that informants were unwilling to testify against

ithridge for fear of retaliation: that Ethridge’s unwillingness

to deal with strangers precluded undercover infiltration of

his organization; that while agents had knowledge of Eth-

ridge’s involvement, they had been unable, by resort to normal

investigative procedures, to obtain evidence to convict him and

the other members of his organization.

Violet Josephine Feldman, et al. . 5

“In our judgment these affic vits provided that necessary

‘factual basis,’ see United States v. Kerrigan, 514 F.2d 35, 38

(9th Cir. 1975), to indicate that the ‘practical and eommen-

sense’ standard, S.Rep. No. 1097, supra, at 101, required under

the statute was satisfied. See United States v. Brick, 502 F.2d

219, 224 (8th Cir. 1974); United States v. James, 494 F.2d

1007, 1014-16 (D.C. Cir. 1974); United States v. Falcone, 364

F.Supp. 877, 888-90 (D.N.J. 1973), aff'd on this issue on

opinion below, 505 F.2d 478, 480 (3d Cir. 1974), cert. denied

95 S.Ct. 1339 (1975).” (slip sheet, p. 8).

United States v. Robertson, 504 F.2d 289 (5 Cir. 1974), cert.

denied, ......... U.S. ........ Stated that the purpose of § 2518(1) (e) was

not to “foreclose electronic surveillance until every other imagin-

able method of investigation has been unsuccessfully attempted

but simply to inform the issuing judge of the difficulties involved

in the use of conventional techniques. . . . The provisions contem-

plate that ‘the showing be tested in a practical and commonsense

fashion.’ S.Rep. No. 1097, 90th Cong., 2d Sess. 100 U.S.Code

Cong. & Admin.News 1968, pp. 2112, 2190.” Jd. at 293.

In Robertson, supra, the court also refused to scrutinize the

affidavit piccemeal, require feasible but assertedly impractical

physical surveillance, or question the essentiality. of information

sought by way of wiretaps: “To hold otherwise would constitute

unwarranted court interference with legitimate investigative dis-

cretion contrary to the congressional! intent.” Jd. at 293.

In our case, as indicated supra, the affidavits indicate a con-

scientious effort on the part of the F.B.I. to employ “other investi-

gative procedures” where possible. Only after these alternative:

failed to produce sufficient evidence to take to trial and other

methods were discarded as reasonably “unlikely to succeed if

tried,” was the warrant authorizing electronic surveillance sought.

That is all the statute requires.

IT.

The Refusal of Informants to Testify May Be

Properly Relied On.

Defendants contend that the statement in the affidavits that the

informants had stated they would refuse to testify even if granted

immunity is legally insufficient.

;

t

;

|

,.

6 United States of America vs.

The same problem was raised as to the Kerrigan affidavit, which

was held sufficient. United States v. Kerrigan, supra, p. 38. In

United States v. Turner, supra (slip sheet, p. 8) the affidavit

recited “that informants were unwilling to testify against Ethridge

for fear of retaliation.” As shown in the quote above, the affidavit

was held sufficient.

ITI.

The Two-Pronged Test of Aguilar and Spinelli

Has Been Satisfied.

Defendants contend that the affidavits supporting the applica-

tion for the wiretap do not meet the two-pronged test set forth in

Aguilar v. Texas, 378 U.S. 108, 114 (i964), namely: (1) “the

magistrate must be informed of some of the underlying cirewn-

stances from which the informant concluded that the narcotics

were where he claimed they were,” and (2) “some of the under-

lying circumstances from which the officer concluded that the

informant, whose identity need not be disclosed . . . was ‘eredible’

or his information ‘reliable.’” Accord Spinelli v. United States,

393 U.S. 410, 413 (1969).

An inspection of the affidavits herein shows a detailed and con-

cise statement of the investigation and complete background

material.

The first affidavit (#4002), executed on November 13, 1973,

lists six sources or informants. In the case of each informer there

was a satisfaction of the first prong, and the circumstances sur-

rounding the informant’s conclusion, in fact in most if not all

instances, the informant is definitely naming and quoting his

sourees of information, including defendants Feldman and Hyman.

In each case the second prong of the test is satisfied by the facts

demonstrating the reliability of the informant—generally past

activities in correctly supplying information and contributing to

arrests or convictions—and corroboration by interviews by agent

or by surveillance and observance by agents or by materials

obtained by an authorized interception.

The second affidavit (34033) was executed on November 30,

1973. This affidavit contains the material obtained by the inter-

ception of phone calls pursuant to the order for interecption based

on the first affidavit. In addition it sets forth two sources or

Violet Josephine Feldman, etal. ~ 7

informants satisfying the two, tests, in the same manner as the

first affidavit.

The affidavits of the F.B.I. cgents relate to surveillanee relayed

to them by other agents, as well as the information supplied by

the sources or informants.

Clearly, the two-pronged test of Aguilar and Spinelli has been

satisfied.

-

IV.

Only Probable Cause for the Wiretap Order, Not Probable

Cause for a Search Warrant, is Required.

Defendants begin their argument by noting that an application

to intereept wire communications is not unlike an application to

obtain a search warrant—an observation with which the govern-

ment does not take issue. They go on to argue, however, that in

view of this kinship, the statement contained within the affidavit

submitted in support of the government’s application to intercept

wire communications in affidavit #4002, that the investigation

into the suspected crime had not produced sufficient probable cause

to obtain a search warrant, must also be construed as an admission

that probable cause does not exist to intercept wirc communica-

tions. 5

The defendants fail to distinguish, on the one hand, between

probable cause to believe that a crime is being committed, and

probable cavise to believe that telephones are being used in fur-

therance of that crime, and, on the other hand, probable cause to

believe that physical evidence of the erime exists at a specific

location.

The statutory scheme in Title IIT of the Omnibus Crime Con-

trol and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520) estab-

lished a procedure, not for securing a search warrant, but for

electronie surveillance of telephone calls. There was required a

showing, which was clearly a showing of probable cause, to believe

that a erime was being committed and that certain telephones were

being utilized in furtherance of the crime. The statutory scheme

did not coneern search warrants for physical evidence at the scene

of the erime. The affidavits followed and complied with the stat-

utes,

8 United States of America vs.

V.

Approval by Attorney General Under 18 U.S.C. § 2516

Presumes Proper Exercise of Judgment.

Defendants do not challenge the authority of Assistant Attornev

General Peterson to approve the application for wiretaps. They

contend that the authorizations were defective because there is no

showing that he arrived at his decisions only after careful eval-

uation and screening of the applications, in contravention of

Supreme Court language that “The mature judgment of a par-

ticular, responsible Department of Justice official is interposed as

a critical precondition to any judicial order.” United States v.

Giordano, 416 U.S. 505, 515-516 (1974).

The question raised has been settled in the Ninth Circuit in

United States v. Turner (supra): “. . . the basis on which, or

method by which he [the proper authorizing official] gave the

authorization is not, in our judgment, subject to review for com-

pliance with § 2516(1). Rather it is to be presumed that the offi-

cial has properly exercised the judgment called for by the statute

when he affixed his signature to au order authorizing an applica-

tion.” (slip sheet, p. 6).

VI. and VII.

The Surveillance Was Properly Applied to Telephones

and Did Not Violate 18 U.S.C. § 2517(4).

s

18 U.S.C. § 2517(4) provides: “No otherwise privileged wire or

oral communication intereepted in accordance with, or in viola-

tion of, the provisions of this “hapter shall lose its privileged char-

acter.” Defendants cite t!¢ California Constitution and provisions

of its Penal Code, § 631, which proseribe the interception of tele-

phonic communications without the consent of all parties to the

conversation. Although there is an exception for state law enforce-

ment officers, federal officers are not mentioned. Defendants con-

tend that telephonic communications are therefore “privileged” in

California with respect to federal officers under § 2517(4).

The contentions are foreclosed by United States v. Kerrigan,

supra, p. 37, n.5, and United States v. Turner, supra (slip sheet,

p. 13-14).

: Pee | Filed

a Violet Josepnine Feldnun, et at. . . June 23 1976

Emil E. Melfi, Jr.

VIII. Clerk, U.S. Court of Appeals

18 U.S.C. § 1955 is Constitutional.

Defendants contend that 18 U.S.C. § 1955 is unconstitutionally

broad with respect to Congress’ finding that certain enumerated UNITED STATES COURT OF APPEALS

: types of gambling operations have an effect on interstate com-

f meree, This precise contention was rejected in United Statcs v.

FE Sacco, 491 F.2d 995 (9 Cir. 1974) (en banc). See United States FOR THE NINTH CIRCUIT

v. Kerrigan, supra, p. 37, n.1.

ix

~ UNITED STATES OF AME

Q Article III of the Omnibus Crime Control and Safe Strects Act mC A,

of 1968 (18 U.S.C. § 2510 to § 2520) is Constitutional.

; Plaintiff- Appellee No. 75-1303

4 Defendants contend that the statutes Jack particularity in vs PP ; '

describing “the person, place or thing sought to be seized” and in '

. describing “the crime’, “the type of conversation sought”, and in .

failing “to place adequate and proper limitations on officers VIOLET JOSEPHINE FELDMAN, )

, executing the eavesdrop”, ¢g., “preventing searches of un- )

, authorized areas”, “protect{ing| innocent members of society”, . Defendant-Appellant )

; and “preventing further search .. . after the incriminating con- ) ORDER

if versation is seized”; und that therefore Title III (and Sections )

; 9510-2520) are unconstitutional in failing to mect the require- UNITED STATES )

ments of the Fourth Amendment and Berger v. New York, 388 OF AMERICA,

U.S. 41 (1967) for the issuance of search warrants. Plaintiff-A u )

. : . ain 2 eliee

However, Title III has been consistently held to be constitu- ya PP , : N 75 9

tional. United States v. Turner, supra, has held Title IIT consti- : O- -1526

tutional on its face against such attacks as made by the defend- )

ants herein and lists decisions from nine circuits to like effect. IRVING HYMAN, )

q (slip sheet, p. 18-19). )

In the foregoing portion of the opinion we have not cited United Defendant-Appellant. )

States v. Kalustian (9 Cir. No. 74-3314, December 11, 1979) ..... )

-—" 7 __- We think Kalustian should be distinguished on the °

} rround that the affidavits in Kalustian contained less particularity .

than the affidavits in the caso st bar | : — a

. isis: wes Circuit Judges.

: The judgments of conviction are AFFIRMED. ,

The panel in the above entitled case voted

: : : to deny the petition for rehearing. Judges Goodwin

vYERKNAU-WALSH PRINTING CO., SAN FRANCISCO 5-11-76-——400 A-10

4 ‘

JOURNAL ENTRY OF JUDGMENT OF

CONVICTION OF TPE U.S. DISTRICT

COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA, CASE NO. 74-1686

and Kennedy voted to reject the suggestion for

rehearing en banc, and Judge Carter recommended

the rejection of the suggestion for rehearing en

banc.

The petition for rehearing and suggestion (Entered Volume 40, page 2)

for rehearing en banc having been circulated to all

active judges and no judge having voted for a

rehearing en banc. On February 3, 1975, the court imposed

sentence: 4 years suspended, defendant placed

on probation for 5 years upon condition that she

spend 10 days in a jail type institution, com-

mencing February 15, 1975, said 10 days to be

served on weekends, consecutively until 10 days

were served, and that in addition, defendant was to

do 150 hours of charitable work per year for the

first three years of probation and was to not

gamble or associate with gamblers and must

, stay out of places where gambling was conducted,

whether lawful or not.

IT IS ORDERED that the petition for

rehearing is denied and the suggestion for rehear-

ing en banc is rejected.

A-11 A-12