# Petition — Feldman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0341%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 429 U.S. 940 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0341%3A1. Public record. Not legal advice.