Petition — Hurley v. United States

Supreme Court brief1977

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In the MICHAEL RODAK, JR.,CLERK

Supreme Court of the United States.

Ocroser Term, 1976.

N. %6-245 4

THOMAS HURLEY,

PETITIONER,

ov.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Georce F. GorM.ey,

75 Federal Street,

Boston, Massachusetts 02110.

(617) 426-1424

Owen F. Brocx,

60 Monument Avenue,

Charlestown, Massachusetts 02129.

(617) 242-2142

BATEMAN & SLADE, INC. BOSTON, MA.

Table of Contents.

Reference to opinion below

Jurisdiction

Question ted for review

Constitu provision involved

Statutory provision involved

Statement of the case

Reasons for granting the writ

The petitioner was deprived of his constitutional

rights under the Fourth Amendment, when a

search warrant, which lacked probable cause,

was improvidently issued 5

Concl 1

pas ng i ae

ao ooensswnd Ww

Table of Authorities Cited.

CAsEs. |

Durham v. United States, 403 F. 2d 190 (9th Cir. 1968) 9

Sgro v. United States, 287 U.S. 206 (1932) 10, 11

United States v. Ventresca, 380 U.S. 102 (1965) 5, 10

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution, Fourth Amendment 2

18 U.S.C. § 1955 3, 4

28 U.S.C. § 1254(1) 2

In the

Supreme Court of the United States.

Ocroser Term, 1976.

THOMAS HURLEY,

PETITIONER,

vo.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Reference to Opinion Below.

The opinion of the United States Court of Appeals for the

First Circuit is not yet reported. The opinion is appended

hereto.

Jurisdiction.

This is the appeal of a criminal case. Jurisdiction of the

Supreme Court is invoked pursuant to 28 U.S.C. § 1254(1).

_ The opinion was entered June 29, 1976. A motion to enter

late a petition for rehearing filed on July 19 was denied on

August 13, 1976.

Question Presented for Review.

Whether a so-called master affidavit in support of a search

warrant for 14 different locations is valid and may support an

inference of continuing violations in a majority of such loca-

tions, where facts in support of continuing violations are

alleged only as to a minority of said locations.

Constitutional Provision Involved.

The Fourth Amendment to the Constitution of the United

States is found in volume one of the United States Code. It

provides: |

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

Pe me

Statutory Provision Involved.

United States Code, Title 18:

§ 1955. Prohibition of illegal gambling businesses.

“(a) Whoever conducts, finances, manages, supervises,

directs, or owns all or part of an illegal gambling busi-

ness shall be fined not more than $20,000 or imprisoned

not more than five years, or both.

“(b) As used in this section —

“(1) “illegal gambling business” means a gambling

business which —

“(i) is a violation of the law of a State or political

subdivision in which it is conducted;

“(ii) imvolves five or more persons who conduct,

finance, manage, supervise, direct, or own all or part

of such business; and

“(iii) has been or remains in substantially con-

tinuous operation for a period in excess of thirty days

or has a gross revenue of $2,000 in any single day.

Statement of the Case.

The petitioner, Thomas Hurley, was convicted after a jury

trial in District Court for the District of Massachusetts, upon

an indictment charging himself and one Doherty and five

others on three jointly tried indictments for violating 18

U.S.C. § 1955, which prohibits certain illegal gambling busi-

nesses. The government's case was primarily based upon the

results of a wiretap that was conducted between June 1 and

June 15, 1971, on the telephone used by one of the defendants,

Victor Santarpio. Selected conversations overheard on that

wiretap allegedly between Santarpio and each of the other

defendants were introduced into evidence. In addition, evi-

dence seized during the execution of search warrants at varivus

locations where individual defendants were found was also

introduced.

The government presented two types of evidence to the jury

with respect to Hurley. The first consisted of evidence con-

cerning a search, conducted pursuant to a warrant, of 585

Boulevard, in the city of Revere, on November 13, 1971.

Hurley was present at that address when the search was made,

along with a codefendant, Joseph Doherty. This was the first

time their identities became known. This search revealed

various items later identified by an expert witness for the

government as gambling paraphernalia used in a book-

making operation. There was nothing in the items seized to

connect Doherty and Hurley with any of the other codefend-

ants. Hurley filed a motion to suppress this evidence. The

motion was denied.

The only other type of information that the government

relied upon which mentioned Hurley was a tape made in June

of four telephone conversations overheard pursuant to the

wiretap, between one of the codefendants (Victor Santarpio)

and the petitioner — who was at a telephone number listed to

one Glixman and established by New England Telephone

Company records to be located at 585 Boulevard. The only

other contact between Hurley, his codefendant Doherty and

the other defendants in the case was approximately four tele-

phone calls between Hurley and Santarpio in which Hurley

provided race results of that particular day to Santarpio.

The petitioner filed a motion for a judgment of acquittal at

the close of evidence in the District Court, which was denied.

On appeal, the Circuit Court held that there was sufficient

evidence to support a conviction under § 1955.

Reasons for Granting the Writ.

THE PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS

UNDER THE FourtTH AMENDMENT, WHEN A SEARCH WARRANT,

WHICH LACKED PROBABLE CAUSE, WAS IMPROVIDENTLY ISSUED.

“The present case illustrates how the mere weight of

lengthy and vague recitals takes the place of reasonably

probative evidence of the existence of crime.”

The quotation from the dissenting opinion of Mr. Justice

Douglas in United States v. Ventresca, 380 U.S. 102, 117

(1965), epitomizes the appellant’s argument in respect to the

affidavit which was the basis for the search warrant herein. _

It was perhaps this lengthy and vague recital that led the

Circuit Court into its “misapprehension of fact,” as the appel-

lant euphemistically termed it, in addressing a petition for re-

hearing to the Circuit Court.

The petition was late filed. It was denied in an order of

August 13, 1976.

Nevertheless, the Circuit Court, in the same order of August

13, changed the wording of the opinion in an attempt to miti-

gate this “factual misapprehension.”

The misapprehension is vital. The change in wording does

not cure the defect, which the appellant deems fatal to the

validity of the search warrant affidavit.

The affidavit in question sought authority to search four-

teen locations. Before the Circuit Court, the appellant jointly

with one Doherty and together with a codefendant, Lung,

maintained that the information in respect to the two locations

was too stale to support a showing of probable cause for

search. There was a five-month time gap. The affidavit in

6 7

November, 1971, was based on telephone conversations in- THIS WAS NOT SO. IT IS NOT SO.

tercepted in June, 1971. The “master affidavit,” so-called, sought warrants to search

In answer to this staleness argument, the Court said in its | 14 locations. Information as to six locations* was updated.

opinion as originally published : | Eight locations lacked such updating. By updating, appellant

means, the five months interval between the wiretap and the

“In the present case the affidavits for the search warrants search was spanned by the showing of gambling activity at

for the two locations in question were part of a master said location reasonably prior to the search.

affidavit which was submitted in support of warrants for Seriatim, the affidavit may be summarized on this point as

several other locations as well. This affidavit reported follows:

numerous intercepted calls during June, 1971 from the

Delano Avenue address to each of the locations (including

the two locations whose search is challenged here). With Information Affidavit

regard to each of the other locations there was ample Locus Address Updated paragraph

additional information which, as noted earlier, clearly 1 58 Delano Avenue No 6

showed continued gambling operations in force at least 2 63 Bickford Avenue Yes 7

through the last week of October, 1971.” (Opinion, 3 1578 No. Shore Road Yes 8

p. 20.) 4 243 Cushman Avenue Yes 9

) 5 585 Boulevard No 10

6 23A Tyler Street No 1]

The order of the Circuit Court dated August 13 changed the 7 38 Graves Road No 12

word “each” to “many” in the last quoted sentence so that it 8 40 Kingman Avenue No 13

now reads: 9 68 Whitin Avenue No 14

10 85 Willow Street No 15

“With regard to many of the other locations there was 11 120 Lynnway Yes 16

ample additional information which, as noted earlier, 12 85 Whitin Yes 17

clearly showed continued gambling operations in force at 13 141 Pleasant Street No 18

least through the last week of October, 1971.” (App. 14 475 Ferry Street Yes 19

20a. )

“ay Guana ao Na” Gamo hes Ge “anal oho

doubt” to even the slightest indicium of updating.

Thus the Court’s statement (as changed):

“with regard to many of the other locations there was

ample additional information which . . . clearly showed

continued gambling operations in force at least through

the last week of October, 1971,”

is patently incorrect.

In logic, as in mathematics, equivalents may be substituted.

If we, then, substitute precise figures (to correspond to the

facts of the case) for the indefinite words of the opinion — the

pertinent portion would read:

In the present case the affidavits for the search warrants

for the two locations in question were part of a master

affidavit which was submitted in support of warrants for

TWELVE other locations as well. This affidavit reported

numerous intercepted calls during June, 1971 from the

Delano Avenue address to FOURTEEN of the locations

(including the two locations whose search is challenged

here). With regard to many of the TWELVE locations

there was ample additional information which, as noted

earlier, clearly showed continued gambling operations

in force at least through the last week of October, 1971.

(Substituted words emphasized.)

Keeping the footnote (supra) in mind, how many is many?

The Court’s opinion then cogently states your petitioner's

position:

“this additional information obviously cannot serve

to demonstrate probable cause for the two challenged

locations. . . .” (App. 20a.)

ee wer

The petitioner must then distinguish the Court’s conclusion

that this (information) .

“can serve as an indication of the protracted and con-

tinuous nature of the operations under investigation.”

Ibid.

As to six locations, I concede.

As to eight locations, I deny.

The Court then adds:

“and in conjunction with the . . . numerous intercepted

calls to the two locations, can serve to demonstrate the

probability of a continuing violation.” Ibid.

This begs the question to be proven. The calls were made

in June — five months before the search.

The Durham case (Durham v. United States, 403 F. 2d 190

(9th Cir. 1968)), which the Circuit Court cites in support of

the last quoted sentence (supra), is obviously distinguishable

on its facts. Durham involved a two-year counterfeiting

operation and the nature of the property sought (large offset

printing presses, plates, etc.) would indicate a continuity of

location.

In this case the usual gambling paraphernalia is sought —

records, betting slips, telephones, sports information papers,

etc. — all readily mobile, or capable of easy translation, using

translation in its basic sense of carry away.

Even the affidavit itself shows this, where in paragraph 17

in reporting the substance of a wiretapped conversation, it

says:

. there is discussion of the fact that four or five

* offices are ‘hot’ and new locations will have to be

found.” (App. 40a.)

In the Ventresca case (380 U.S. 102, 108 (i965)), the Court

says:

“affidavits for search warrants, such as the one involved

here, must be tested and interpreted by magistrates and

courts in a commonsense and realistic fashion. They are

normally drafted by nonlawyers in the midst and haste

of a criminal investigation.”

But herein, — the affiant is not a small-town police officer,

but a specially trained bureau agent of seven and one-half

years experience, who knows what he MUST state and HOW

to state it WHEN he has the FACTS necessary.

The words of Chief Justice Hughes written almost a half-

century ago are still as cogent today.

“The proceeding by search warrant is a drastic one. Its

abuse led to the adoption of the Fourth Amendment, and

this, together with legislation regulating the process,

should be liberally construed in favor of the individual.

. . . The statute requires that the judge or commissioner

issuing a search warrant . . . must be satisfied ‘of the

existence of the grounds of the application or that there

is probable cause to believe their existence.’. .. He must

take proof to that end. ... The warrant must state ‘the

particular grounds or probable cause for its issue... .”

While the statute does not fix the time within which proof

of probable cause must be taken by the judge or com-

missioner, it is manifest that the proof must be of facts

so closely related to the time of the issue of the warrant

as to justify a finding of probable cause at that time.

“The commissioner has no authority to rely on affidavits

which have sole relation to a different time and have not

been brought down to date or supplemented so that they

can be deemed to disclose grounds existing when the new

warrant is issued. . . . That determination, as of that

time, cannot be left to mere inference or conjecture.”

(Citations omitted; emphasis supplied. )

Sgro v. United States, 287 U.S. 206, 210-211 (1932). .

Conclusion.

For the above reasons, a writ of certiorari should issue.

Respectfully submitted,

GEORGE F. GORMLEY,

75 Federal Street,

Boston, Massachusetts 02110.

(617) 426-1424

OWEN F. BROCK,

60 Monument Avenue,

Charlestown, Massachusetts 02129.

(617) 242-2142

Appendix.

Opinion of United States Court of Appeals for the First

Circuit, dated June 29, 1976 la

Affidavit for search warrant, dated November 12,1971 25a

United States Court of Appeals

No.

For the First Circuit

75-1225

UNITED STATES OF AMERICA,

APPELLEE,

JEROME DiMURO, ROBERT MANTICA, and

LOUIS COLANGELA,

DEFENDANTS, APPELLANTS.

75-1226

UNITED STATES OF AMERICA,

APPELLEE,

ROLAND LUNG,

DEFENDANT, APPELLANT.

75-1227

UNITED STATES OF AMERICA,

APPELLEE,

VICTOR SANTARPIO,

DEFENDANT, APPELLANT.

75-1228

UNITED STATES OF AMERICA,

APPELLEE,

JOSEPH DOHERTY and THOMAS TURLEY,

DEFENDANTS, APPELLANTS.

2 U.S. U. DIMURO ET AL.

APPEAIS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

{Hon. Anprew A. Carrrey, U.S. District Judge)

Before Covrrin, Chief Judge,

Avoricu and McEntrs, Circuit Judges.

Avrem G. Hammer, George F. Gormley, by appointment of the Court, Char-

lotte Anne Perrctia, by appointment of the Court, David Rossman, by appoint-

ment of the Court, and Owen F. Brock, with whom Gorfnkle & Hemmcr, Judith

BE. Diamond, Harrington and Gormley, and Keating, Perretta & Pierce were on

brief, for appellants.

Kenncth A. Holland, Attorney, Department of Justice, with whom James N.

Geabricl, United States Attorney, Jefircy M. Johnson, Special Attorney, Boston

Strike Force, and Shirley Baccus-Lobel, Attorney, Department of Justice, were

on bricf, for appellee.

June 29, 1976

McEwtes, Circuit Judge. After trial to a jury appellants

were convicted on a one count indictment charging them with

conducting an illegal gambling business in violation of 18

U.S.C. § 1955.1 On this appeal they raise a number of claims

variously challenging the applicability of § 1955 to their

acts and the sufficiency of the evidence, as well as claims

directed to the propriety of certain evidentiary admissions

1 Specifically, appellants were charged with conducting the illegal operation

for the period June 1 through November 13, 1971. One of the essential require-

ments of an ‘‘illegal gambling busincas’’ ‘ander § 1955 is that the operation

must involve ‘‘five or more persons who conduct, finance, manage, suporvise,

direct, or own all or part’’ of the business. 18 U.8.C. § 1955(b) (1) (ii). An

initial indictment, returned September 12, 1972, charged appellants DiMuro,

Colangelo, Lung and Santarpio plus sixtecn other defendants with a violation

of § 1955. On April 19, 1973, acting on motions to dismies and to suppress

evidence (derived from allegedly illegal wiretaps), the United States Ma te

stayed all proecedings pending a decision by the Supreme Coort in United States

v. Giordano, 416 UB. 505 (1974). The Court decided that case on May 13, 1974.

On September 3 of that year, because certain counts in the indictment were

based on information from telephone intercoptions which were unlawful in light

of Giordano, the district court dismiased the indictment against al) the defend.

ants without prejudice. A subsequent indictment against sll the appellants in

the present case was returned on August 22, 1974.

OPINION OF THE COURT 3

in the course of trial.2

Appellants’ first contention is that the trial court erred

in ruling that the government did not have to prove their

various gambling operations were a ‘‘single business,’’3

and that the government's evidence failed to show the exist-

ence of a single gambling operation. This issue is best

examined in light of the factual circumstances of the present

case. The government’s evidence at trial was derived from

two main sources: wiretapped conversations from a tele-

phone line used by appellant Santarpio covering the period

June 3 through June 15, 1971; and a large quantity of gam-

bling paraphernalia seized from five separate locations as

the result of searches carried out on November 13, 1971.

In regard to the wiretaps, appellant Santarpio was a par-

ticipant in each of the twenty-five conversations introduced

at trial. In one set of intercepted conversations he called

appellants Hurley and Doherty at 585 Boulevard in Revere,

Massachusetts, and provided them with information on

various horses; in turn he was informed by the two appel-

lants about results from certain racetracks in New York,

New Jersey, Delaware and elsewhere. In a second set of

calls Santarpio was shown to have telephoned appellants

Colangelo, DiMuro and Mantica who allegedly ran a gam-

bling operation out of the Handy Lunch Shop and the Marsh

Club (which were adjacent to one another on American

2 We treat most of the issuer on this appeal as if raised by all the appellants,

since in part they have adopted one another’s arguments by reference.

Where certain issues are relevant only to particular appellants we so indicate.

* This issue doniinated the initial portion of the trial. On the fifth day the

trial court ruled as follows:

**T am going te make it a rule of the om © the government’s burden of

C9 SE eee 6 gs Ging tate

The question is not how many different businesses there are, as

long as a defendant is in business with the people on trial, he is in trouble.’’

The court also refused appellants’ requests for jury instructions to the effect

that the government had te prove the existence of a single gambling business

beyond a reasonable doubt.

4 U.S. V. DIMURO ET AL.

Legion Highway in Revere). In these conversations San-

tarpio asked for and obtained race results, and received

the betting ‘‘line’’ for certain professional sports. See

United States v. Schaefer, 510 F.2d 1307, 1311 & n.6 (8th

Cir.), cert. denied, 421 U.S. 978 (1975). He also placed a

wager with appellant DiMuro, and a ‘“‘lay off’’ bet* with

appellant Mantica. There were also discussions of how

much was owed Santarpio as a result of various bets certain

of these appellants previously had made with him. A third

set of conversations was between Santarpio and appellant

Roland Lung at 23A Tyler Street in Boston. In one in-

stance Santarpio called Lung to inform him that a horse

in a certain race was a favorite and to tell him the odds he

ought to accept on the horse. In other instances Lung tele-

phoned Santarpio to convey race results and to ‘‘lay off’’

certain wagers with him. In one of the calls from Lung

there was a discussion of how much he and Santarpio owed

one another as the result of several days’ wagering. In sum,

the wiretap evidence tended to show Santarpio as a pivotal

figure with whom the other appellants exchanged race re-

sults and betting information and with whom certain of the

appellants ‘‘laid off’’ bets.

Appellants contend that while the betting slips and other

paraphernalia seized from the four locations noted above

may indicate separate small scale gambling operations at

4Special Agent Whitcomb, Chief of the FBI Gambling Unit Laboratory

headquarters, described the ‘‘layoff’’ process in bookmaking operations as

follows:

**It is a method by which a bookmaker will wager similar to the way of

the bettor. If he has heavy action on one side, it gives him an imbalanced

book, should his bettors’ selection win, he would have a big pay out. If he

cannot by changing the line of the odds thus attract at

side, to even his action, his wagoring on both sides of the events, he can

resort to a lay off. It is nothing more than

another bookmaking operation, in the same way

[This way] he has insurance against his losses [and) he can eut down his

See United States v. Schaefer, 510 F.2d 1807, 1311 2.5 (8th Cir.), cert. dented,

421 U.S. 978 (1975).

OPINION OF THE COURT 5

each of these places, there was no unified gambling business.

Specifically, they claim that the transmittal of gambling

information and the sporadic acceptance of lay off wagers

are insufficient to merge what were unconnected bookmaking

operations into a § 1955 offense, and that there was not

sufficient evidence to connect together the various groups

of appellants who dealt separately with Santarpio into an

unified business relationship.

These claims cannot prevail. The exchange of line and

other gambling information are necessary and useful func-

tions in a gambling enterprise and persons who carry out

such functions have been held to be engaged in ‘‘an illegal

gainbling business.’’ United Slates v. Joseph, 519 F.2d 1068,

1071 (5th Cir. 1975), cert. denied, 44 U.S.L.W. 3471 (U.S.

Feb. 24, 1976); United States v. Schaefer, supra at 1311;

United States v. Ceraso, 467 F.2d 653, 656 (3d Cir. 1972).

Similarly persons who make and accept lay off bets have

been found to perform an indispensible task in the mainte-

nance of an illegal gambling business. United States v.

Thomas, 508 F.2d 1200, 1205 (8th Cir.), cert. denied, 421

U.S. 947 (1975); United States vy. Sacco, 491 F.2d 995,

1002-03 (9th Cir. 1974) (en banc); see United States v.

Schaefer, supra at 1312.

With regard tv the sufficiency of the evidence on this

issue, close examination of the transcribed conversations

between the various appellants and Santarpio discloses

discourse dealing with the exchange of line and other gam-

bling information and/or lay off betting. While the evidence

with respect to some of these activities is stronger for

certain of the appellants than for others, there is a reason-

ably clear indication that each of them frequently conferred

with Santarpio concerning various aspects of a gambling

business. Viewing the evidence as whole and in the light

most favorable to the government, we are satisfied that all

6 U.S. UV. DIMUBO ET AL.

the appellants were systematically involved in a gambling

the appellants were systemically involved in a gambling

business. Sce Uniled Slates v. Schaefer, supra at 1312-13;

United States v. Sacco, supra at 1004.5

Appellants also challenge as unlawful the June, 1971 inter-

cepts on the telephones used by Santarpio, and claim that

the evidence obtained therefrom should have been sup-

pressed. There are two aspects to their challenge. First,

they contend that then Attorney Gencral Mitchell improperly

delegated his power to authorize an application seeking

approval of the intercepts in question. Specifically, appel-

lants point to the language of 18 U.S.C. $2516 which pro-

vides that an Assistant Attorncy General may be ‘‘specially

designated’’ to authorize such an application. They note

that in the present case the memorandum initialed by Attor-

ney General Mitchel] provided that Assistant Attorney Gen-

eral Wilson was ‘‘specially delegated’’ to make the authori-

zation. They contend that this choice of language (i.e. ‘‘dele-

gate’’ instead of *‘ designate’’) amounted to an illegal trans-

fer of authority to an assistant which only the Attorney Gen-

eral himself was empowered to exercise. However, we do not

find this claim to be persuasive. There was no misidentifica-

tion of the Assistant Attorney General whom the Attorney

5 Certain of the appellants also contend that even if their assertedly separate

gambling operations in different locations would suffice to constitute a violation

of § 1955, it was improper for the trial court to alow evidence of gambling

activitics from each of the separate locations to be admitted against all appel-

lants. Specifically, they claim that the gambling paraphernalia seized in Novem.

ber from each of the locations should have been admitted only _— those

persons actually involved. This claim, however, cannot prevail. Alleged vice-

lators of § 1955 need not know that the activity they are engaged in also

involved numerous other participants. Uniled States v. Brick, 502 F.2d 219, 224

(8th Cir. 1974). The fact that various of the appellants may have had separate

relationships with Santarpio does not make their activity an independent busi-

ness unassimilable into one overall operation. The legisiative history of § 1955

indicates that Congress was aware that ‘‘bookmaking’’ docs not operate as a

unified, centrally coordinated and controlled business enterprise. United States

v. Schaefer, supra, at 1311-12. Given that each appellant was involved in the

network of gambling activity revolving around Santarpio, it was not improper

for the trial judge to admit evidence from each of the component operations

against all appellants whose opcrations were, in effect, interdependent. 14. ; cf.

United States ¥. Bobo, 477 F.2d 974, 988 (4th Cir. 1973), cert. denied, 421

US. 909 (1975).

OPINION OF THE COUBT 7

General sought to designate. See United States v. Chavez,

416 U.S. 562 (1974). The fact that the word ‘‘delegate’’

was used is of little consequence and does not constitute a

failure to comply fully with the requirements in Title III

such as would render the interception of wire or oral com-

munications ‘‘unlawful.’’ See id. at 574-75.

Appellants also contend that the application for the tele-

phone intercepts did not set forth an adequate justification

as to why the wiretaps were needed and that it failed to

provide a full and complete statement as to why other in-

vestigalive procedures would not suffice. See 18 U.S.C.

§ 2518(1)(c) and (3)(c). We do not find merit in these

claims.

An examination of the affidavit presented to the district

court in support of an order for a wire intercept and a pen

vere, indicates there was adequate basis for the court to

have found probable cause that the facilities in question

were being used in activities that violated § 1955. The affi-

davit, prepared by Special Agent Lucksted of the FBI,

set forth information received from three confidential in-

formants who were indicated to have provided reliable in-

formation on unlawful gambling activities on numerous

previous occasions. Each of the informants was known

by the agent to be engaged in gambling operations, and in-

formation provided by each was based upon personal obser-

vations and contacts with the unlawful gambling enterprise

allegedly conducted at 58 Delano Avenue.

One of the informants was said to have indicated that

between March and May, 1971 certain named individuals

(one Shane and one Plotkin)? who were personally known

SA pen register records the number dialed frem a particular telephone.

See United States v. Schacfer, supra at 1310.

7 Although the affidavit did not set forth the names of any of the appellants

im the present case, it did state that in addition to the named individuals who

s U.S. UV. DIMURO BT AL.

to him were using for their gambling operation the tele-

phones at the location in question; that the informant

himself had ‘‘exchanged . . . wagering information’’ with

both men; and that he had placed bets with them over the

telephone for a number of months as recently as May, 1971.

From discussions with Shane and Plotkin this informant

had learned that their operation grossed in excess of $10,000

business a day and that they laid off bets with other Massa-

chusetts bookmakers. A second confidential informant pro-

vided joint information about the April and May, 1971 period

to another FBI special agent who in turn had conveyed this

information to the affiant, agent Lucksted. The informant,

through his contacts in the gambling business, had been

furnished with phone numbers (corresponding to those at

58 Delano Avenuc) to call in order to place bets on sporting

events. The informant had placed bets with two different

persons at these numbers on several occasions, as recently

as the second week of May, 1971.

The information of a third informant was also relayed

to Lucksted through another FBI agent.8 This informant,

who knew Shane and Plotkin, had placed bets with both

individuals and had been present when they discussed their

bookinaking operation. He had also placed bets over the tele-

phone facilities at 58 Delano Avenue as recently as the third

week of May, 1971.

The affidavit in question thus clearly provided ‘‘some of

were committing a violation of 18 U.8.C. § 1955 there were ‘‘others as yet

anknown’’ also involved in the commission of this offense.

® Appellants argue that the information received from informants two and

three could not be relied on to support probable cause since it had not been

conveyed directly to the affiant, agent Locksted. We find little merit to this

elaim. Sec United Statcs v. McCoy, 478 F.2d 176, 179 (10th Cir.), cert. denied,

414 U.B8. 828 (1973) ; United States v. DeCesaro, 502 F.2d 604, 607 n.6 (7th Cir.

1974). The district court was fully apprised as to the basis for the original

informants’ information — viz. their persona! observations and contacts. More-

over cach of the informants was known to the afflant to be involved in the

gambling business.

OPINION OF THE COURT 9

the underlying circumstances from which the officer con-

cluded that the informant . . . was ‘credible’ or his informa-

tion ‘reliable’.’’ Aguilar v. Texas, 378 U.S. 108, 114 (1964).

Kach of the informants was shown to have been reliable on

previous occasions and the circumstances from which the

agents concluded that the information each provided was

credible was set forth in detail.9 In sum, the information

provided by these informants was sufficient to justify a

finding of probable cause for the issuance of an intercept

order. See United States v. Armocida, 515 F.2d 29, 36 (3d

Cir. 1975); United States v. McHale, 495 F.2d 15, 17-18

(7th Cir. 1974). .

We also do not agree with appellants’ assertion that the

wiretapping application did not provide an adequate state-

ment as to why other investigative procedures would not

succeed. See 18 U.S.C. § 2518(1)(c) and (3)(c).1° ‘The Luck-

sted affilavit indicated that although .nformation from gov-

ernment informants could pinpoint 58 Delano Avenue as

the site of a gambling business, the informants would not

testify for fear of their own safety. Agent Lucksted also

explained that on the basis of his experience and that of his

colleagues in investigating gambling operations, searches

of individuals and of the situs of the gambling business

would be unlikely to produce evidence necessary to prove

all the elements of a § 1955 violation since records frequently

are not kept; that whatever records are kept may be de-

® Moreover, the information from the informants, which was based on

persona! observation and experience, involved events reasonably close in time

to the date of the requested intereept order. Accordingly, appellants’ con-

tention that the affidavit relied on ‘‘stale’’ information cannot avail. See

United States v. Guinn, 454 F.2d 29, 36 (5th Cir.), cert. denied, 407 UB.

911 (1972); sce alee United States +. Steeves, 525 F.2d 33, 38 (8th Cir.

1975); United States ¥. Johnson, 461 F.2d 285, 287 (10th Cir. 1972); State

v. Tella, 113 R.I. 303, 321 A.2d 87 (1974).

19 Bection 2518(1)(¢e) provides that a wiretap Fs ay mone must inelude ‘‘a

full and complete statement as to whether or not r investigative procedures

have been tried and failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous.’’

BEST COPY AVAILABLE

————————

10a

10 U.S. V. DIMURO ET AL.

stroyed before the law enforcement officers are able to seize

them; and that records which have been seized have generally

been insuflicient to identify all participants.

While we think that a court ruling on the sufficiency of a

wiretap application can ‘‘consider the nature of the alleged

crimes’’ and give sume ‘‘ weight to the opinion of . . . inves-

ligating”’ officers ‘‘that in the described circumstances other

means ... might be counterproductive if pursued,’’ In re

Dunn, 507 F.2d 195, 197 (ist Cir. 1975) (per curiam),

nevertheless we believe than an agent’s bare conclusory

statement that normal investigative techniques are gen-

erally unproductive in dealing with gambling operations

is insuflicient to meet § 2518(1)(c)’s requirements. United

States v. Kalustian, 529 F.2d 585 (9th Cir. 1976). If mere

conclusions by the affiant based solely on past experience

that gambling conspiracies are ‘‘tough to crack’’ were held

sufficient to authorize a wiretap, the government would need

to show ‘‘only the probability that illegal gambling is afoot

to justify electronic surveillance.’’ Jd. at 589.

In the present case, however, the affidavit does not rest

on such assertions alone. It states, in addition, that since

58 Delano Avenue was located in a quiet residential area,

any ‘‘fixed physical surveillance’’ would be ‘‘impractical’’;

that because Delano Avenue was ‘‘only one block long’’ any

strange vehicle ‘‘ passing by this address with any frequency

would draw immediate attention’’; and that because the

building at the address in question was a one-story residen-

tial house where the curtains were ‘‘usually closed’’ it was

‘*impossible to see inside’’ from a “‘ fixed or moving’”’ obser-

vation post. Although the factual underpinnings of the affi-

davit could have been more substantial, we believe it ‘‘ pro-

vided a sufficient factual statement to enable the court to

find as it did, that normal! investigative procedures reason-

ably appeared unlikely to succeed if tried... .’’ In re Dunn,

lla

OPINION OF THE COURT ll

supra at 197.

Appellants also contend that the district court erred in

denying their request for an evidentiary hearing to deter-

mine whether evidence offered by the government was tainted

by various allegedly unlawful wire interceptions.11 We do

not agree. Four interceptions are involved in appellants’

claim. None of these intercepts, however, was specifically

directed at any of the appellants, and materials from all

the intercepts were furnished to the defense. Apart from

contending that information from the intercepts might have

formed the basis for search warrants at certain of the gam-

bling locations — a claim we reject, see discussion infra —

appellants are unable to suggest any specific basis in support

of their claim that the government’s evidence at trial

might have been tainted by these interceptions.!2 Although

the government has the ultimate burden of persuasion to

show that its evidence is untainted, Alderman v. United

States, 394 U.S. 165, 183 (1969), nevertheless appellants

must come ‘‘forward with specific evidence demonstrating

taint.’’ Jd. Under the circumstances of the present case,

where appellants failed to provide some minimal! demonstra-

tion of a basis for their allegation of taint, we cannot say

11 The intercepts referred to by appellants are:

1. a court authorized interception on telephone facilities uscd by Anthony

M. St. Laurent conducted from July 22 te August 2, 1970;

2. an intercept (conducted at the same time [ie. June, 1971] as the

intercept in the present case) over tclephones at 63 Beckford Avenue;

information from this intercept was recited in the affidavits for the

search warrants at 23A Tyler Strect and 585 Boulevard;

3. the July, 1971 inte at the Handy Lunch and Marsh Club which

the government were unlawful and information from which

was included in affidavits accompanying scarch warrants for the two

locations, sce discussion infra; and

4. four additional interceptions conducted during August te October,

1971 pursuant to gambling investigations.

121m this regard appellants made only a very general claim to the trial

court, viz. that ‘‘there were so voluminous wire taps that they pervade the

entire case so that because of the pervasive nature of the information obtained

by the government in these wiretaps it is now impossible to determine without

the most difficult inquiry as to whether any item of evidonce in the possession

of the government is derived from the illegal wiretaps or not.’’

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12 U.S. UV. DIMURO BT AL.

it was improper for the trial court to decline to hold the

extensive evidentiary hearings which would have been

required.

Appellants also claim it was improper for the trial court

to allow the government to introduce a compvosite tape

containing only those conversations which it wanted to play

for the jury at trial.13 They further contend that the govern-

ment’s presentation of only twenty-five out of a total of

668 intercepted gambling conversations was inherently un-

fair because it left ‘‘an inescapable impression that the

[composite trial tape] was mercly a sampling of what

constituted continuous dealings among the defendants.’’

However, these claims cannot prevail. The admissibility

of recordings of intercepted conversations or parts thereof

is a matter committed to the sound discretion of the trial

court.14 Gorin v. United States, 313 F.2d 641, 652 (1st Cir.

1963); J'odisco v. United States, 298 F.2d 208, 211 (9th

Cir. 1961), cert. denied, 368 U.S. 989 (1962). And the use

of a composite trial tape of particular intereepted conversa-

13 Appellants also urge that it was improper for the jury to be provided

a transcript of the edited tape at trinl. Specifically, appellants contend that

because the transcript bore the names and initials of the allegod participants

in the left margin, it was impermissibly suggestive. We do not agree with

this contention. The use of ‘‘an accurate transcript of all conversations

believed relevant with the speakers identified ...’’ has been allowed. See,

¢.g., United States ¥. Lawson, 347 F.Supp. 144, 148 (E.D. Pa. 1972). In the

present case the composite tape was arranged in segments so as to show

each appellant's participation in the conversations. Prior to the playing of

each segment the government introduecd testimony as to the identity of the

principal participant and all those conversations were then played for the

jury. (This procedure was followcd with respect to all of tho conversations

excopt onc, involving appellants Mantica and Santarpio.)

Prior to the distribution of the transcript the trial court instructed the

jury that it was only ‘‘[fJor the purpose of assisting you in following the

conversation ...’’; that the presence of names and initials on the left side

of the transcripts ‘‘is not evidence of the identity of the persons speaking

. . . [which] is something for you to determine on the basis of your listening

to the tapes and ecrtain voice exemplars and the testimony of certain wit-

nesses... .’’ Under these cireumstaneca we cannot say that the presence of

appellants’ names in the tape transcript was unfairly prejudicial. See United

States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied, 382 U.B. 812 (1965).

14 Although only the composite tape was played for the jury, all the recorded

conversations were received im evidence. And _—- were afforded the

opportunity to examine the original tapes of all intercepted conversations.

13a

OPINION OF THE COURT 13

tions which the government considered relevant to the trial

has been permitted. Sce, e.g., United States v. Lawson, 347

F.Supp. 144, 147-49 (E.D. Pa. 1972). In the present case

appellants concede that the entire corpus of intercepted

conversations, involving fourteen reels of tape ‘‘ were replete

with gambling conversations. ... ,’’ and we see no basis

for a claim that the government was required to present

to the jury every conversation intercepted pursuant to a

court authorized wire interception order.15 Moreover, while

there could be circumstances where selectivity in the prep-

aration of a composite trial tape might be prejudicial, here

appellants had access to the original tapes and were given

ample opportunity on cruss-examination to bring out the

total number of intercepted conversations in which each

appellant was personally involved.

Nor do we find merit in appellants’ claim that the arrange-

ment of the conversations on the composite trial tape was

improper because it created an ‘‘illusion of unity among

the parties’’ which did not exist.16 Conversations involving

a particular appellant were grouped together to facilitate

the presentation of identification testimony. Had conver-

sations not been aggregated in this way there would have

been a proliferation of identifications which would have

involved ‘‘the inconvenience and confusion of stopping the

tape between each speaker and permitting [testimony] to

16 Appellant Santarpio urges that 18 U.S.C. § 2618(8)(a) which provides

in pertinent part thet ‘‘the recording of the contents of any wire or oral

communication . . . shall be done in such way as will protect the recording

from editing or other alterations’’ bars the tion at trial of a composite

tape. We are not persuaded of the merit of this claim. The primary purpose

of § 2518(8)(a) is te ensure accuracy of recordings at the time of

to deter alterations. Sec, ee United States v. Poeta,

e 406 U.B. 948 (1972). The statute

a trial tape of selected intercepted

l4a

14 U.S. UV. DIMURO ET AL.

identify the next speaker,’’ Mountain v. United Stales, 384

I’.2d 624, 632 (5th Cir. 1967), cert. denied, 390 U.S. 1005

(1968), and this process might ‘‘possibly [have] caused

prejudice to defendants by excessive repetition. . . .’’ United

Stales v. Lawson, supra at 148. In sum, we cannot say the

district court’s handling of the use of the composite tape

at trial was improper or amounted to an abuse of its

diseretion.17

Appellants also contend on a varicty of grounds that the

voice identifications at trial were unreliable and improper.

Specilically, they complain that there was a considerable

lapse of time between the interceptions and the identifica-

tions, and that certain of the identifications were tainted

because bascd in part on conversations obtained through

a wiretap in July, 1971 which was held to be illegal. We are

not persuaded by either claim. With regard to appellant

Santarpio (who was involved in all twenty-five conversations

on the composite tape), the voice identification was made by

Special Agent Kennedy who had spoken with Santarpio

for an extended period on February 3, 1975, and more

briefly on March 28 of that year. After the first conversation

Kennedy listened to copies of the original intercepted con-

versations and identified Santarpio’s voice. Santarpio con-

tends that since there was a four-year interval between the

recording of the intercepted conversations and the voice

comparison, the identification was necessarily unreliable.

However, Fed. R. Evid. 901(b)(5) provides that ‘‘[i]den-

tification of a voice, whether heard firsthand or through . . .

—_—--— -———

17Appellants also contond it was improper for the trial court not to order

the deletion of obscene language from the recordings of the intercepted con-

versations and the trial tape transcript. Specifically, they claim that the

inclusion of such language was irrelevant to any matter before the jury and

**could function only to create the impression that the spcakors were men

of bad charactcr.’’ To say in the light of present day mores that appellants

were unduly prejudiced by a failure to clean up their language is frivolous,

not to mention the burden the government might have run to avoid the inference

that it was omitting something material. Cf. United States v. Whitaker, 372

F. Supp. 154, 164 (M.D.Pa.), affirmed 503 F.2d 1400 (3d Cir. 1974).

15a

OPINION OF THE COURT 15

electronic . . . recording, by opinion based upon hearing

the voice at any time under circumstances connecting it with

the alleged speaker’’ is sufficient for the admissibility of

voice identification evidence. (Emphasis added.) The trial

was held before the Rules took effect, but they provide

useful guidance; appellant Santarpio cites no cases indicat-

ing that different considerations should govern this type

of situation prior to the Rules. The two confrontations

between agent Kennedy and the appellant provided an

adequate basis for the identification testimony to be sub-

mitted to the jury.18

Appellants Mantica and DiMuro challenge the admissi-

bility of their voice identifications principally on the ground

that these identifications were based on conversations over-

heard through illegal intercepts. The relevant facts are

as follows. Conversations involving both appellants had

been intercepted in concededly unlawful wiretaps.!® At trial,

however, the government presented voice identifications

that it claimed were based on independant grounds. Spe-

cifically, agent Daly testified that he had spoken with appel-

lant DiMuro at his home for a short period on December 22,

1971, and again approximately a year later at the federal

courthouse. Daly likewise spoke with Mantica at his resi-

dence in November, 1971 and twice at the courthouse nearly

18 Bantarpio also argues that the fact that he invoked his right to remain

silent on February 3, 1975, bars the utilization of voice identification testimony

based on conversations (with agent Kennedy) subscquent to the exercise of

his fifth amendment privilege. However, this claim must fail. The govern-

ment is entitled te use subsequent non-testimonial utterances for purposes of

a voice idontification, since Santarpio can have no reasonable expectation of

privacy ae te the sound ef his voice. United States v. Dionisio, 410 US. 1,

18 During parts of July, 1971 the government monitored telephone facilities

at the Handy = Le Marsh Club in Revere. —— DiMuro and

Mantica were rticipated in cortain of the intercepted con-

vesations. mn On 3 nok y 8. ists, agent Daly had testified to a federal gran@

—_ Ge a anor. indicated appellants DiMuro, Manti —

Colangelo y i - involved @ gambling operation at the two locations.

The government stipulated at trial that these interceptions were unlawful.

l6a

16 U.S. UV. DIMURO ET AL.

a year later. In the case of both appellants agent Daly

testified that his voice identification derived from a compari-

son of the voice he heard during the course of his personal

confrontation with cach of them and an analysis of the

intercepted conversations introduced at trial. Daly con-

ceded, however, that he had been exposed to the illegally

intercepted conversations. Appellants contend the possi-

bility that this prior exposure may have affected Daly’s

identification of their voices renders the identification totally

defective and inadmissible. We do not agree. Although

the content of communications obtained from an illegal

wiretap is subject to an evidentiary prohibition, see Gelbard

v. United States, 408 U.S. 41 (1972), we do not think the

exposure of agent Daly to appellants’ voices from an illegal

wiretap falls within that prohibition. ‘‘The physical charac-

teristics of a person’s voice, its tone and manner, as opposed

to the content of a specific conversation, are constantly

exposed to the public. ... No person can have a reasonable

expectation that others will not know the sound of his

voice. .. .’’ United States v. Dionisio, supra at 14. More-

over, voice identification testimony may be based on hearing

the voice at any time if the exposure occurs under circum-

stances connecting the voice to the speaker. Fed. R. Evid.

901(b)(5). Here, on several occasions agent Daly met with

each appellant under circumstances where he could connect

the voices to their persons, sce id., and consequently there

was an adequate independent basis for his identification

testimony.

With regard to the other appellants our examination of

the record reveals nothing in their respective voice iden-

tification proceedures that was ‘‘impermissibly suggestive.’’

Agent Daly identified appellant Ilurley’s voice in the tele-

phone conversations from the June, 1971 intercepts after

a personal confrontation on August 19, 1974. As to appel-

17a

OPINION OF THE COURT 17

lants Colangelo and Doherty, voice exemplars were taken

and agent Daly made voice identilications based on a com-

parison of these examplars with the intercepted conversa-

tions. We see no impropricty in this procedure.2° See, e.g.,

United States v. Whitaker, supra at 165; United States v.

Chiarizio, 525 F.2d 289 (2d Cir. 1975).

With respect to appellant Lung we also think that there

was sufficient evidence to show he was a participant in the

conversations. In one intercepted conversation Lung, who

had called Santarpio, identified himself by his first name

{‘*Roland’’] and upon request gave his home telephone

number. A voice ‘‘exemplar was taken of that call’’ and also

submitted to the jury. We do not agree with appcllant’s

contention that because he allegedly has ‘‘marked racial

speech characteristics’’ this procedure was ‘‘impermissibly

suggestive and created a substantial likelihood of misidentifi-

cation.’’ **[I]t is clear beyond dispute that identification

of a telephone caller may be established by circumstantial

evidence’ United States v. Bozeman, 495 F.2d 508, 510

(5th Cir. 1974), cert. denied, 422 U.S. 1044 (1975), which

**may be as persuasive to identify the ... party ... as testi-

mony”’ based on voice recognition. United Slates v. Zweig,

467 F.2d 1217, 1220 (7th Cir. 1972), cert. denied, 409 US.

1111 (1973). ~

Appellants also challenge the propriety of the searches at

various locations and the admissibility of evidence seized

therefrom. We examine the different claims separately.

Appellants Colangelo, DiMuro, and Mantica contend that

the items seized on November 13, 1971 from the Handy

20A te DiMuero, Manticen, and Colarrelo a'an contend that their

voice tifications were improperly introduced because their was no corrobo-

rating evidence of their identities apart trom tne sdoatmeatious made vy

Daly. We are not, however, persuaded by this claim. Daly's voice

Slenttdentions were unequivocal, and under such circumstances there would

to be no need for corroborating evidence. Cf. United States v. Bozeman,

408 F.2d 508, 510 (Sth Cir. 1974), cert. denied, 422 USB. 1044 (1975).

18a

18 U.S. UV. DIMURO ET AL.

Lunch and the Marsh Club as well as from 65 Endicott

Avenue should have been suppressed because the supporting

affidavits contained information derived from unlawful wire

interceptions.2! The governinent concedes that information

from the telephone wiretaps which were subsequently held

to be illegal, see n.1 supra, was included in the affidavits

accompanying the search warrants for the Handy Lunch

and Marsh Club locations. However, ‘‘inclusion in an affi-

davit of indisputably tainted allegations does not necessarily

render the resulting warrant invalid. The ultimate inquiry

on a motion to suppress evidence seized pursuant to a

warrant is not whether the underlying affidavit contained

allegations based on illegally obtained evidence, but whether,

putting aside all tainted allegations, the independent and

lawful information stated in the affidavit suffices to show

probehle eause.’’ United States v. Giordano, 416 U.S. 505,

555 (1974) (Powell, J. concurring in part and dissenting in

part). Sce United States v. McHale, supra at 17. In the in-

stant case the affidavit also contained information supplied by

a confidential informant which, standing alone, was adequate

to show probable cause. The informant provided informa-

tion based on personal observations that appellant DiMuro

(with whom the informant was acquainted), and others were

conducting a gambling business at the Handy Lunch and

the Marsh Club from May until at least the last week of

October, 1971; that he had placed bets over the telephone

at the above locations as reeently as the last week of October,

1971; and that during the same time period he had also

21 These appoliants also challenge the admission of this evidence on grounds

of relevancy. Specifically, they contend that there is no showing of continuity

between the wiretapped conversations in June, 1971 and the gambling para-

phornalia seized in November, and that none can be presumed to exist. We need

not pass upon this issuc in detail, however, sinée the requirement that a

gambling operation otherwise in violation of § 1955 be in operation for 30

days can also be satisfied alternatively, where, as here, the revenue

execeds $2,000 in a single day. See 18 U.8C. 1955¢b) (1) fil) ; United

States v. Schacfer, supra at 1312 n.9; of. United es ¥. Bridges, 493 F.2d

918, 922 (Sth Cir. 1974).

19a

OPINION OF THE COURT 19

observed gambling records there. The informant also stated

on the basis of personal observation that as recently as

the last week of October, 1971 appellants DiMuro, Mantica

and others had moved from these locations but that appel-

lant Colangelo was still operating there.22 The affidavit

also indicated that surveillance by law enforcement officials

had disclosed that vehicles registered to a number of the

appellants were present in the vicinity of the Handy Lanch.

With regard to the search warrant for 65 Endicott Ave-

nue, unlawful wire interceptions played no part in the

determination of probable cause which was predicated solely

upon information supplied by the same confidential infor-

mant as above. Our examination of this affidavit likewise indi-

cates ample basis for a finding of probable cause to issue

a warrant. Accordingly, appellants’ motions to suppress

evidence seized from the three locations in question were

properly denied.

Certain of the appellants also contend that the search

warrants for 585 Boulevard and 23A Tyler Street were

invalid because the information in the supporting affidavits

was too ‘‘stale’’ to support a showing of probable cause.

They point to the fact that the affidavit for the November,

1971 search is based primarily on intercepted conversa-

tions from the two locations gleaned from wiretaps and a

pen register on the telephone facilities at 58 Delano Avenue

in June, 1971. While we have observed that a warrant’s

validity depends in part on ‘‘the proximity or remoteness

of the events observed,’’ Rosencranz v. United States, 356

F.2d 310, 316 n.3 (1st Cir. 1966), nevertheless the determina-

set forth an adequate indication of the informant’s

as acquainted with gambling opcrations in the greater

he had furnished reliable information regarding gamblers

and bookmakers to FBI agents on 75 occasions within the previous two ycars —

information which had been verified by other confidential sources or by inde

pendent investigation by the FBI and other law enforcement agencies.

20a

20 U.S. V. DIMURO ET AL.

lion of timeliness as an clement in probable cause must be

by the cireumstanees of each ease. DBastida v. Henderson,

487 F.2d 860, 864 (5th Cir. 1973) ; cf. Sgro v. United States,

287 U.S. 206, 210-11 (1932). In the present case the affi-

davits for the search warrants for the two locations in

question were part of a master affidavit which was sub-

mitted in support of warrants for several other locations

as well. This affidavit reported numerous intercepted calls

during June, 1971 from the Delano Avenue address to each

of the locations (including the two locations whose search

is chaHenged here). With regard to many of the other loca-

tions there was ample a:lditional information which, as

noted earlier, clearly showed continued gambling operations

in force at least through the last week of October, 1971.

While this additional information obviously cannot serve

to demonstrate probable cause for the two challenged loca-

tions, nevertheless it can serve as an indication of the pro-

tracted and continuous nature of the operations under

investigation, cf. United States v. Johnson, 461 F.2d 285,

287 (10th Cir. 1972); Durham v. United States, 403 F.2d

190, 194-95 & n.7 (9th Cir. 1968), and in conjunction with

the recitation of numerous intercepted calls to the two

locations, can serve to demonstrate the probability of a

continuing violation. Under these circumstances we believe

the court below reasonably concluded that the gambling

enterprise which functioned in June had remained operative

in November, and we do not disturb its finding as to

probable cause.

Appellanis Colangelo, DiMuro, Lung and Santarpio, who

were named in the original indictment, contend that they

were deprived of their sixth amendment right to a speedy

trial because of a thirty-three month delay between the

initial indictment in September, 1972 and the commencement

of trial in May, 1975 (the second indictment having been

maar wun «

2la

OPINION OF THE COURT 21

returned in August, 1974).23 This claim cannot prevail,

however, when considered in light of the factors set forth

by the Supreme Court in Barker v. Wingo, 407 U.S. 514,

530-33 (1972). Sce United States v. Morse, 491 F.2d 149,

156-57 (1st Cir. 1974); Untied States v. Cabral, 475 F.2d

715 (1st Cir. 1973); see also United States v. Fay, 505 F.2d

1037(ist Cir. 1974). Prior to trial on the initial indictment

appellants moved to dismiss and to suppress all evidence

derived pursuant to allegedly illegal wire interceptions. As

noted earlier, on April 19, 1973, the magistrate entered an

order — to which all defendants consented, including the

appellants who now cumplain of delay — staying all pro-

ceedings pending the decision by the Supreme Court in

United States v. Giordano, supra. As a result of the Court’s

decision the initial indictment was dismissed without pre-

judice and the government obtained a superseding indict-

inent in August, 1974. Under these circumstances it is clear

the delay in question was not initiated by the government

‘*to gain some tactical advantage over [the appellants]

or to harrass them,’’ United States v. Marion, 404 U.S.

307, 325 (1971), nor was the thirty-three month interval

a ‘‘deliberate attempt to delay the trial in order to hamper

the defense. ...’’ Barker v. Wingo, supra at 531. The trial

on the original indictment was delayed for a wholly legiti-

mate purpose — to avoid the cost and ordeal of a trial on

the basis of evidence which subsequently might have been

(and was) declared inadmissible. Moreover, the appellants,

who were released on bail during the pendency of any indict-

ment against them, consented to the stay. Appellants also

have shown no prejudice from the delay, nor have they dem-

onstrated that their defense was injured. Accordingly, we

23 Appellants seem to contend that it was improper for the government to

seck a second indictment. This claim, however, lacks merit. De Marrias v.

United States, 487 F.2d 19, 21 (8th Cir. 1973), cert. denied, 415 U.8. 980 (1974).

22a

22 U.S. UV. DIMURO BT AL.

find no violation of the right to a speedy trial.24

Appellants also contend the trial judge erred in denying

their motions to dismiss. Specifically, they claim that the

indictment returned by the grand jury was invalid because

the letter of authority assigning Jeffrey M. Johnson, an

attorney in the Organized Crime and Racketeering (‘‘Strike

Force’’) Section of the Department of Justice, to assist

in federal prosecutions in the. District of Massachusetts,

failed to comply with the requirement of 28 U.S.C. § 515(a)

(1970) that any special attorney be ‘‘specially directed’’

to carry out particular legal proceedings. We have, how-

ever, recently rejected just such a contention and do so here

in reliance on our earlier opinion. United States v. Morrison,

531 F.2d 1089 (1st Cir. 1976).

Appellant Mantiea claims that the indictment against

him cannot stand because he was previously immunized

from prosecution. He points to the fact that he was sub-

poenacd to appear before a special grand jury on February 2,

1972, which was inquiring into possible violations of § 1955.

At that time he invoked his fifth amendment privilege

against self-incrimination and refused to answer questions.

On February 9 the government obtained an order compelling

Mantica to testify under a grant of transactional immunity

pursuant to 18 U.S.C. § 2514.25 Mantica again appeared,

24 Other of the appellants who were not named in the original indictment

clnim that the government deprived them of due process of law under the

fifth amendinent by waiting until August 22, 1974, to indict them for illegal

conduct occurring between June and November, 1971. Hewever, this claim

cannot avail. Appellants have failed to demonstrate that the pre-indictment

delay was intentional or designed to give the government a tactical advantage.

Morcover, they have not shown any actual prejudice stemming from the pre-

aceusation delay. Sec United Statics v. White, 470 F.2d 170, 174-75 crt

Cir. 1972) ;United States v. Daley, 454 F.2d 506, 508 (1st Cir. 1972). Accord-

ingly, we find no violation of duc process. See United 8taics v. McClurc, 473

F.2d 81, 83 (D.C. Cir. 1972); United Statics v. Deutsch, 440 F.2d 651, 652 (7th

Cir. 1971), cert. denicd, 404 U.8. 1014 (1972).

26 Section 2514 provided in pertinent part:

**No such witness shall be prosecuted or subjected to any penalty or

forfeiture for or on account of any transaction, matter or thing concorn-

ing which be is compelled, after having claimed his privilege against

lO CR TIT ET NS cet

23a

OPINION OF THE COURT 23

refused to testify and was held in contempt by the district

court; in an unpublished order we affirmed that judgment.

Despite the fact that he never actually testified, Mantica

nevertheless contends that the grant of immunity continued

in effect. We find no merit to this claim. A grant of im-

munity is coextensive with the privilege against self-inerim-

ination, sce Kastigar v. United States, 406 U.S. 441 (1972),

and no immunity is earned until the witness in fact testifies.

Marcus v. United States, 310 F.2d 143, 148 (3d Cir. 1962),

cert. denied, 372 U.S. 944 (1963). ‘‘So long as he refuses to

testify he is still subject to prosecution, if the government

can make out a case against him by other evidence than

his own."’ Id.

Appellants Colangelo, DiMuro and Mantica complain that

the trial court erred in adinitting into evidence two portions

of expert testimony, viz. a computation by agent Whitcomb

(based on wagering slips seized from 585 Boulevard) in-

dictating that there were over $52,000 in wagers for a single

day at that location, and the agent’s analysis of Colangelo’s

handwriting in a notebook seized from another location.

They contend that this evidence should have been excluded

because the government failed to make prior disclosure

of its existence or to notify defense counsel prior to the

offer as required by the district court’s uniform rules for

automatic discovery.26 We do not find this claim to be per-

self-incrimination, to testify or produce evidence, nor shall testimony

so compellod be used as evidence in any criminal proceeding . . . against

him in any court.’’

It was subsequently repealed. Sce Pub. L. No. 91-452, Title 11, § 227(a),

84 Stat. 930.

28 These rules provide im pertinent part:

**A. The Gevernment shall disclose, and allow the defendant to inspect,

copy and photograph, all written material as foliows:

‘*3. All relevant reports or results of physical or mental examina-

tions and of all scientific tests, experiments and comparisons, or

copies thereof, made in connection with a particular case.

‘*4. All books, papers, documents, tangible objects, buildings or

places, or copies, or portions thereof, which the Government

24a

24 U.S. VY. DIMURO ET AL.

suasive. The defense was provided with all the documents

on which the computations and handwriting analysis were

based. The agent’s testimony concerning his calculations

as to total wagers on a single day is clearly permissible,

sec United Statcs v. Morrison, supra at 1094-95. The defense

was informed at a pre-trial hearing that there would be

expert testimony regarding handwriting, and it was not

dleprived of an opportunity to challenge the analysis. Under

these circumstances we cannot say the district court abused

its discretion in permitting this testimony. United States v.

Raaxter, 492 F.2d 150, 174 (9th Cir.), cert. denied, 414 U.S.

801 (1973) ; see United States v. Hauff, 473 F.2d 1350, 1355

(7th Cir.), cert. denied, 412 U.S. 907 (1973) ; United States v.

Saitta, 443 F.2d 830 (5th Cir.), cert. denied, 404 U.S. 938

(1971).

We have examined appellants’ other assignments of error

and do not find them to be of merit.

Affirmed.

intends to use at the trial of the case, oxcept reports, memoranda

and other internal government documents made by the govern-

ment agents in connection with the investigation and prosecu-

tion of the case.’’

a eee a ee

- Aa ree a nc nee sina

25a

United States District Court

FOR THE DISTRICT OF MASSACHUSETTS.

Magistrate’s Docket No. 15-1

Case No. 71-262

Unrrep STATES OF AMERICA

AFFIDAVIT FOR

- SEARCH WARRANT

THE PREMISES KNOWN AS

585 BouLevarpD, REVERE,

MASSACHUSETTS

and described as a two-story building

with basement with a brick front on

the first floor and white siding

above, and all persons on said

premises.

BEFORE Willie J. Davis, Unrrep States MaAcistTRaTE,

Boston, Massachusetts, the undersigned being duly sworn

deposes and says:

That he has reason to believe that on the premises known as

585 BouLevarp, Revere, Massacuuserts, and described as a

two-story building with basement with a brick front on the

first floor and white siding above, and all persons on said

premises.

(SEE PHOTOGRAPH ATTACHED HERETO)

In the District of Massachusetts there is now being concealed

certain property, namely wagering paraphernalia relating to

26a

the operation of a bookmaking gambling operation, consisting

of, but not limited to, bookkeeping records, accounting sheets,

rundown sheets, betting slips, recap sheets, sports information

papers, sports schedules, line sheets, ledger books and sheets,

line notations, financial statements, checks and check stubs,

money orders, United States Currency and telephone numbers

and telephones, code books and other gambling paraphernalia,

which are designed or intended for use or which have been

used as a means of committing a criminal offense, are the

fruits of such offense and constitute evidence of such criminal

offense, in violation of the laws of the United States; such

criminal offense being the conducting, financing, managing,

supervising, directing and owning all or part of an illegal

gambling business in violation of Title 18, United States Code,

Sections 1955 and 371.

And that the facts tending to establish the foregoing grounds

for issuance of a Search Warrant are as follows:

(SEE AFFIDAVITS OF SPECIAL AGENTS OF THE

FEDERAL BUREAU OF INVESTIGATION ATTACHED TO

THE AFFIDAVIT FOR SEARCH WARRANT AND FILED

IN MAGISTRATE’S CASE NO. ___, DOCKET NO. ___.,

INCORPORATED HEREIN AND MADE A PART HEREOF.)

ORLIN D. LUCKSTED, THOMAS J. DALY

Special t Special t

—_ Federal Bureau of te ol

THOMAS E. CARNEY THOMAS H. SULLIVAN

Special Agent Special Agent

Federal Bureau of Investigation

JOHN F. JENSON JAMES H. VARLIS

Special Agent Special Agent

Federal Bureau of Investigation

Sworn to before me, and subscribed in my presence,

November 12th, 1971

WILLIE J. DAVIS

United States Magistrate.

AFFIDAVIT

I, Orlin D. Lucksted, Special Agent of the Federal Bureau

of Investigation, being duly sworn, do on oath depose and say:

1. I am a Special Agent of the Federal Bureau of Investi-

gation and have continuously held that position for the past

seven and a half years. I have been assigned to the investiga-

tion of gambling matters within the jurisdiction of the Federal

Bureau of Investigation for approximately two and a half

years, and during that time have been involved in more than

one hundred separate and distinct investigations in the Greater

Boston area. I have participated during this time in the arrest

of bookmakers and the preparation and execution of more

than twenty search warrants on persons involved in, or

premises used in, illegal gambling operations. I have also

conducted and supervised the conducting of wire interceptions,

by court orders, of persons engaged in illegal gambling opera-

As a result of this experience, I have had the opportunity to

talk with, observe, interview and interrogate bookmakers and

persons associated with them, and to examine the records kept

by bookmakers, bettors and other persons who have been

engaged in all types of gambling activity, including wagering

on numbers, sporting events, horses and dogs. I have thus

familiarized myself with the operation of an illegal gambling

business and the manner and means utilized by the persons

engaged in the operation of such a business.

2. For the past fifteen months I have conducted an investi-

gation to determine whether violations of the federal gambling

statutes (18 U.S.C. 1952, 1955 and 371) were being committed

by Harvey T. Plotkin, a/k/a Teddy, Daniel P. Shane, a/k/a

Danny Shanahan, Dominic Serino, Steve LNU, Ruth Lynch,

Jackie LNU and more than ten other persons associated with

them in the operation of a gambling business in the Revere,

Massachusetts area.

28a

3. This affidavit and the others attached are submitted in

support of applications for search warrants for premises, auto-

mobiles, and persons in order to secure means, instrumentali-

ties and evidence of the illegal gambling business being

conducted by SHANE, PLOTKIN and LYNCH and other

members of this gambling operation.

4. In the course of the investigation into the above-listed

persons enumerated in paragraph 2, orders were granted by

the United States District Court for the District of Massachu-

setts authorizing the interception of wire communications from

five telephones used in this gambling operation.

Pursuant to these orders, telephone calls to and from tele-

phone number 617-289-4463, listed in the records of the New

England Telephone and Telegraph Company to Joseph

Glixman, 58 Delano Avenue, Revere, Massachusetts and

617-284-2175, listed in the records of the New England Tele-

phone and Telegraph Company to Stacey Glixman, 58 Delano

Avenue, Revere, Massachusetts, and both billed to Joseph

Glixman, and telephone calls to and from (617-284-7545)

which according to the records of the New England Telephone

and Telegraph Company is listed to Robert Alpern, 63

Bickford Avenue, Revere, Massachusetts, and 617-289-5319

which according to the records of the New England Telephone

and Telegraph Company is listed to Marsha Lincoff, 63

Bickford Avenue, Revere, Massachusetts and 617-289-6278,

which according to the records of the New England Telephone

and Telegraph Company is listed to Marsha Lincoff, 63

Bickford Avenue, Revere, Massachusetts, Basement Apartment,

all billed to Robert Alpern, were intercepted during the period

June 3, 1971 through and including June 15, 1971. The inter-

ception of wire communications to and from 617-289-4463 was

terminated on June 7, 1971 because of the limited amount of

gambling calls.

29a

The affidavits of myself, attached thereto and made a part

of the application for the above orders sets forth certain facts

learned through informants to establish that Daniel P. Shane,

a/k/a Daniel Patrick Shanahan, and Danny Shanahan,

Harvey T. Plotkin, a/k/a Teddy Plotkin, Dominic Serino, Rita

DeMarco, Steve LNU, Tudie and other individuals as yet

unknown had been and were committing offenses and conspir-

ing to commit offenses involving an illegal gambling business

as defined in Title 19, United States Code, Section 1955 and

that there was probable cause to believe that evidence of this

business would be obtained through the interception of wire

communications made over the above enumerated telephone

numbers.

The affidavit also established that the persons mentioned

above had been and were conducting this illegal gambling

business almost continuously for a period in excess of thirty

days and had a gross revenue of $2,000 or more in a single

day.

5. In the course of the interceptions of the above-numbered

telephones at 58 Delano Avenue and 63 Bickford Avenue, both

in Revere, Massachusetts, approximately 300 calls per day

pertaining to the operation of a gambling business were inter-

cepted during the hours of 11:00 A.M. and 8:00 P.M..,

Monday through Saturday. On Sundays a limited number of

calls were intercepted pertaining to gambling, primarily calls

in which settle-up and “information” was exchanged. The

conversations intercepted were between Victor Santarpio,

a/k/a Vic, Harvey T. Plotkin, a/k/a Teddy, and T.T.T.,

Steven J. Emerson, a/k/a Steve, John Considine, Jr., a/k/a

Jackie, Phyllis Franklin, a/k/a Phyllis, Bonnie Glixman, Lionel

Mintzer, a/k/a Tudie, Ruth Lynch, a/k/a Ruth or Ruthie,

Daniel P. Shane, a/k/a Danny, Michael Shanahan, a/k/a

Mike and numerous other persons. The conversations

30a

primarily concerned the exchange of bets and wagers on horse

races and numbers and a limited number of bets on sporting

events. In the conversations, the above listed people and at

least thirty other agents of the operation exchanged bets and

wagers, turned in bets, layed-off bets, discussed the settling-up

of gambling accounts, discussed the personnel in the gambling

operation and discussed the fact that law enforcement was

surveilling some of their places, arranged meetings and

discussed earnings of the operation. In several conversations

Teddy Plotkin discussed the amount of money the gambling

operation was making and how each individual agent was

doing, both in amount of money that they were earning and

how they were handling their operation. In other conversa-

tions, the agents indicated that only “Teddy” or “Ruthie”

could make certain decisions concerning the gambling opera-

tion. Several conversations indicated that figures were given

for ten, fifteen or twenty agents in one conversation. Based

upon the intercepted conversations, it is estimated that this

gambling enterprise has been in substantial continuous

operation for more than thirty days.

The following descriptions of premises and persons are based

on personal observations or observations reported to me by

other agents of the Federal Bureau of Investigation.

6. The premises known as 58 Delano Avenue, Revere,

Massachusetts , described as a one story wood frame building

with basement.

A. During the period of June 3, 1971 to June 15, 1971

approximately 50 to 100 telephone calls per day pertaining to

gambling were intercepted over telephone number 617-

284-2175. Almost all of these interceptions identified Victor

Santarpio as one of the parties to the conversation. Many of

these conversations indicated either mention of gambling

records which indicated the amount bet, the person or agent

betting or laying-off and/or recordation of other gambling

———

3la

information. The conversations also reflected that Vic Santar-

pio was maintaining records at this address in order to transact

his gambling business. In one specific conversation Victor tells

Frank how much he is to pick up from and/or pay to certain

individuals.

In numerous conversations Vic reads back to the other party

to the conversation, bets placed earlier in the day or preceding

days by the other parties.

B. On November 9, 1971 a confidential informant, herein-

after referred to as Informant #1 in this affidavit, who is

known from the files and records of the Federal Bureau of

Investigation to be personally acquainted with numerous

gamblers, bookmakers and bettors in the Greater Boston area

and who has personal knowledge concerning gambling,

gamblers and bookmakers in the Greater Boston area, and

who has furnished reliable information regarding gambling,

gamblers and bookmakers to me on sixty-three occasions over

the past four years, which information has been subsequently

verified by other confidential sources who have furnished

reliable information in the past or by independent investiga-

tion by the Federal Bureau of Investigation and other law

enforcement agencies and which information has led to the

identification of fifty persons involved in gambling and the

arrest of four persons on gambling charges (in both state and

federal courts) and to the physical location of seven subjects of

other investigations by the Federal Bureau of Investigation,

furnished the following information to me:

(a) Informant #1 is engaged in the gambling business.

(b) Informant #1 is well acquainted with Shane and

Plotkin, having known them personally for more than two

years.

mation with Shane and Plotkin on numerous occasions in the

past, the most recent being the last week of October, 1971.

32a

(d) Informant #1 knows through conversations and associa-

tion with Shane and Plotkin that they use telephone 617-

289-2175 in this gambling operation and he has discussed

gambling information over this telephone.

C. A review of the Revere Police list for 1970 indicates

that the four persons residing at 58 Delano Avenue, Revere,

Massachusetts are James Valliro, Anna Valliro, Joseph M.

Glixman, and Bonnie R. Glixman.

7. The premises known as 63 Bickford Avenue, Revere,

Massachusetts, is described as a two-story building with

basement.

A. During the period of the interceptions of 63 Bickford

Avenue, Revere, Massachusetts, from June 3, 1971 through

June 15, 1971, approximately 200 to 300 telephone calls per

day, both incoming and outgoing, were intercepted over the

telephone facilities numbered 289-5319, 289-6278 and

284-7545. The records of the New England Telephone and

Telegraph Company reflect that these telephones are listed to

the persons named in paragraph 4, above. The intercepted

calls and the investigations indicate that Steven J. Emerson,

a/k/a Steve, John Consodine, Jr., a/k/a Jackie, Phyllis

Franklin, a/k/a Phyllis, Bonnie Glixman, Harvey T. Plotkin,

a/k/a Teddy, Lionel Mintzer, a/k/a Tudie, and other persons

were using the telephones in the above location to conduct

their illegal gambling business. In many of these conversa-

tions, the parties to the conversations either mentioned

gambling records which indicated the amounts bet, the person

or agent betting or laying off the bet, or the recordation of

other gambling information. In a specific conversation, a

caller to 289-5319 requested the person answering to start with

a “two-day sheet” and then to check “Ruthie’s sheet” for

another agent. In a separate conversation, the person

operating at 63 Bickford Avenue stated he kept records for one

BNR ee ee

et ee Nee RN i A AE AP A Ae ee

33a

week. During another conversation “Jackie” indicated that he

was operating in the cellar of 63 Bickford Avenue.

B. On November 9, 1971 Informant #1 told me that he

knows through conversations and association with Shane and

Plotkin that they use telephone 617-289-5319 in their gambling

operation and he has placed bets with the person answering at

this telephone as recently as the first of November, 1971.

C. A review of the police listings for the City of Revere,

indicate that the following persons reside at 63 Bickford Street,

Revere, Massachusetts; Robert Alpern, Marion Alpern, Wil-

liam R. Toppi and Nancy C. Toppi. A review of the registry

of motor vehicles failed to locate any record for Marsha

Lincoff at 63 Bickford Avenue, Revere, Massachusetts, but did

reveal records for both Robert N. and Marion Alpern at 63

Bickford, Avenue, Revere, Massachusetts.

8. The premises known as 1578 North Shore Road, Revere,

Massachusetts, is described as a one-story red brick faced

building with large windows, completely covered by green

shades; a sign “Novelties” appears over the door.

A. During the period of the interceptions of 63 Bickford

Avenue, Revere, Massachusetts from June 3, 1971 through

June 15, 1971, more than one ongoing call per day was made

from one or more of the telephones listed to 63 Bickford

Avenue, Revere, Massachusetts to 617-284-7455. The records

of the New England Telephone and Telegraph Company list

this number to Mossy Lynch Novelties at 1578 North Shore

Road, Revere, Massachusetts. Almost all of the calls made to

this number were answered by Teddy Plotkin or Ruth Lynch.

Almost all of the calls intercepted pertained to the exchange of

gambling information and reflected that gambling records

were being maintained at this address by the person operating

the gambling business. In one of the conversations inter-

cepted, the “hits” were discussed for that day. In another

34a

conversation “Ruth” stated she was doing the “totals” and the

caller should call back later.

B. On November 9, 1971 I was advised by confidential

informant #1 that:

(a) Informant #1 is well acquainted with Ruth Lynch,

having known her personally for more than two years.

(b) Informant #1 is well acquainted with Shane and

Plotkin and he knows from conversations and association with

Lynch, Shane and Plotkin that the “Novelty Shop” is the

headquarters for the bookmaking operation of Lynch and

Plotkin.

tions with Plotkin as recently as the first week of November,

1971, that Plotkin still is using the “Novelty Shop” as an office

in his bookmaking operation.

C. On several occasions from June to the first week of

November, 1971, a motor vehicle bearing Massachusetts Regis-

tration T.T.T. was observed parked in the vicinity of 1578

North Shore Road, Revere, Massachusetts. The records of the

Registry of Motor Vehicles reflect that this registration was

issued to Terri Anne Plotkin, 85 Whitin in Revere, Massa-

chusetts. I know from my investigation and reports made to

me by other agents that this is the same address as Harvey T.

Plotkin, a/k/a Teddy and I have learned that Terri Anne is

the wife of Harvey T. Plotkin and the daughter of Ruth

Lynch.

9. The premises known as 243 Cushman Avenue, Revere,

Massachusetts, is described as a white ranch house with a one

car attached garage.

A. During the period of the interceptions of 63 Bickford

Avenue, Revere, Massachusetts from June 3, 1971 through

June 15, 1971, approximately 41 outgoing telephone calls were

made to telephone 289-7322. The first call being made on

June 3, 1971 and the last on June 15, 1971. The records of

me!

35a

the New England Telephone and Telegraph Company list this

number to Ronald Novak, 243 Cushman Avenue, Revere, Mas-

sachusetts. All of the telephone conversations intercepted per-

tained to the exchange of gambling information primarily the

laying off of large number bets. Several calls indicate that the

persons operating at this address maintain records of the bets

placed with them. Several other conversations indicated that

“6-day number play bets” or “steadies” were placed. On

many occasions, the person answering the telephone at

289-7322 was identified as “Dave.”

B. On several occasions over the past several months and

as recently as November 10, 1971, a vehicle bearing Massa-

chusetts Registration 312-925 has been observed parked in the

vicinity of 243 Cushman Avenue, Revere, Massachusetts

during the hours of 11:00 A.M. to 3:00 P.M.

Records of the Registry of Motor Vehicles list this vehicle to

David Sherman of 30 Alden Road, Swampscott, Massachusetts.

10. The premises known as 585 Boulevard, Revere,

Massachusetts, is described as a two-story building with base-

ment with a brick front on the first floor and white siding

above.

A. During the course of the interceptions of 58 Delano

Avenue, Revere, Massachusetts, from June 3, 1971 through

and including June 15, 1971 telephone numbers 284-2163 and

284-6712 were called at least thirty times, the first call being

on June 3, 1971 and the last being on June 15, 1971. The

records of the New England Telephone and Telegraph

Company indicate that 284-2163 is listed to Carol Golder, and

284-6712 is listed to Michael Golder. Almost all of the con-

versations intercepted pertained to the exchange of gambling

information, primarily the obtaining of horse results. Several

of the conversations indicated that the persons operating at

this telephone were maintaining records in order to supply

36a

gambling information. The persons answering this telephone

were identified as “Tommy” and “Jimmie” and others. In one

specific conversation, “Jimmie” gave results to “Vic” on horse

races from four to five race tracks then operating in Massa-

chusetts, New York and New Jersey and then proceeded to

give him information concerning a particular race at

Monmouth.

ll. The premises known as 23A Tyler Street, Boston,

Massachusetts, described as a basement entrance below 23

Tyler Street, with a light pine door with Chinese lettering

leading into a small foyer.

A. During the period of the interceptions from June 3,

1971 through June 15, 1971, numerous telephone calls were

intercepted from 58 Delano Avenue, Revere, Massachusetts to

telephone numbers 338-7221 and 482-6871. The records of

the New England Telephone and Telegraph Company indicate

that these numbers are listed to Wing Lea Club, 23A Tyler

Street, Boston, Massachusetts. All of these calls pertain to the

transacting of gambling business, such as the turning in of

horse bets, dog bets, some sports bets, the obtaining of results

and the settling of accounts. Many of the calls were answered

by a person identified through conversations and investigation

as Roland Lung. Other persons answering the telephone at

this address were identified by first name or nick names.

Many of the conversations indicated the existence of gambling

records being maintained at this address by Roland Lung and

other persons. In a specific conversation they review all their

gambling figures in order to determine the correct balance

due.

12. The premises known as 38 Graves Road, Revere,

Massachusetts , is described as a private home, split level, with

tan shingles with white trim.

37a

A. During the period of the interceptions from June 3,

1971 to June 15, 1971, four outgoing telephone calls were

made from 63 Bickford Avenue, Revere, Massachusetts to tele-

phone 284-6919. The records of the New England Telephone

and Telegraph Company list this number to John Moccia, 38

Graves Road, Revere, Massachusetts. The person answering

this telephone identified himself as “Jake.” All of the calls

intercepted pertained to the transacting of gambling business,

such as the exchange of number bets and the settlement of

accounts. In one conversation “Jake” went through the

“6-day” envelope and stated he could not find a slip

containing a questioned bet. He states he was going to talk to

“Teddy” about it. In another conversation, “Teddy” calls

“Jake” and they discuss number bets and differences in their

calculations. These conversations indicate that “Jake” keeps

and maintains records at 38 Graves Road, Revere, Massachu-

setts, relating to gambling.

13. The premises known as 40 Kingman Avenue, Revere,

Massachusetts , is described as two-story multi-family dwelling,

aluminum siding, with three entrances — one on the front

facing Kingman Avenue, one on the side and one in the rear

— with a fifty-foot driveway on the right hand side of the

residence leading to a parking area in the rear.

A. During the period June 3, 1971 to June 15, 1971 four

outgoing telephone calls to telephone number 284-7565 from

63 Bickford Avenue, Revere, Massachusetts, were intercepted.

The records of the New England Telephone and Telegraph

Company indicate that this number is listed to Dominic

Faccadio at 40 Kingman Avenue, Revere, Massachusetts. All

of the calls pertained to the transacting of gambling business,

primarily the laying off of number bets.

14. The premises known as 68 Whitin Avenue, Revere,

Massachusetts, is described as a one-story ranch brown in

color.

38a

A. During the period of the interceptions from June 3,

1971 to June 15, 1971, at least seven outgoing telephone calls

to telephone numbers 284-4588 and 289-0487 were made from

63 Bickford Avenue, Revere, Massachusetts. The records of

the New England Telephone and Telegraph Company indicate

that 284-4588 is listed to Wendi Plotkin of 68 Whitin Avenue,

Revere, Massachusetts and 289-0487 is listed to Arthur Plotkin

of 68 Whitin Avenue, Revere, Massachusetts. In several of the

telephone calls there is an exchange of gambling information.

15. The premises known as 85 Willow Street, Malden,

Massachusetts , described as the Malden Davenport Associates,

Incorporated.

A. During the period of the interceptions from June 3,

1971 to June 15, 1971, two outgoing telephone calls were

made to 324-4490, which the records of the New England

Telephone and Telegraph Company reflect is listed to the

Malden Davenport Associates at 85 Willow Street, Malden,

Massachusetts. On one conversation on June 12, 1971 Jackie

tells “Harry,” who answered at 324-4490, to write down a few

“Hits.” The other conversation intercepted pertained to the

amount of pay-off on a number and “Julie” answered the

telephone on this occasion.

16. The premises known as 120 Lynnway, Revere,

Massachusetts , described as a split level with a lamp post in

front with a sign bearing the numerals “120 Lynnway” and a

large stone chimney beside the front door.

A. During the period of the interceptions from June 3,

1971 to June 15, 1971, more than ten outgoing calls to

284-2089 were intercepted on various days from 63 Bickford

Avenue, Revere, Massachusetts and 58 Delano Avenue,

Revere, Massachusetts; the last call occurring on June 15,

1971. The records of the New England Telephone and

Telegraph Company indicate that 284-2089 is listed to Ruth

are nen eee: emanintinlee,

ee ee

39a

Lynch at 120 Lynnway, Revere, Massachusetts. All of the

intercepted calls pertain to the operation of an_ illegal

gambling business. The party to the conversations discuss

figures, settle up of agents of the operation and other

gambling information. In one conversation Ruth Lynch states

she is “going to do the books” and in another conversation

Ruth is told about Jeannie’s owing another $20.00 for horses

and Ruth is told it’s not in her total. Ruth then states she will

put it on the “NCO’s and other hits.” In several of the

conversations it is indicated that Ruth Lynch keeps and main-

tains records concerning the operation of an illegal gambling

business at this address.

B. Informant #1 further states that he knows from

conversations and association with Ruth Lynch as recently as

the first week of November, 1971, that she is still conducting a

gambling business in the Revere, Massachusetts area.

(a) Informant #1 further advised that he had been advised

by people associated with Ruth Lynch in the operation of

gambling business that Ruth is number one in their operation

and is supposed to have a large amount of cash available to

her to pay off any substantial loss incurred by her organiza-

tion.

17. The premises known as 85 Whitin Avenue, Revere,

Massachusetts, described as a two story brick structure with a

two car garage.

A. During the period of the interceptions from June 3,

1971 to June 15, 1971, several outgoing telephone calls were

made to telephone numbers 284-6605 and 284-0763, from 63

Bickford Avenue, Revere, Massachusetts; the last such call

being made on 6/15/71. The records of the New England

Telephone and Telegraph Company indicate that 284-6605 is

listed to Todd Plotkin, 85 Whitin Avenue, Revere, Massachu-

setts and 284-0763 is listed to Ted Plotkin at 85 Whitin

40a

Avenue, Revere, Massachusetts. Investigation by the Federal

Bureau of Investigation indicates that this address is the home

of Harvey T. Plotkin also known as Teddy Plotkin. In one

conversation to 284-0763 Teddy asked “Terri” to look for a

“tape” in his study. In another conversation there is discus-

sion of the fact that four or five offices are “hot” and new

locations will have to be found. In another conversation the

person answering at 284-0763 is told about a $6,000 bet and

how much the bettor owes for the day.

B. Informant #1 further stated that he had been furnished

number 284-6603 in the past to call Teddy Plotkin if he could

not reach anyone at the “office.”

(a) Informant #1 has been told by associates in the Shane

and Plotkin operation as recently as the last week of October,

1971, he could still reach Teddy at this number if there was a

need.

18. The premises known as 141 Pleasant Street, Apartment

F, Melrose, Massachusetts , described as a three story red brick

building containing numerous apartments in a building known

as Hanover House.

A. During the period of the interceptions from June 3,

1971 through June 15, 1971, more than ten calls to telephone

662-8736 were intercepted from 63 Bickford Avenue; the last

call intercepted being on June 15, 1971. The records of the

New England Telephone and Telegraph Company list

662-8736 to Samuel T. Melling, 141 Pleasant Street, Melrose,

Massachusetts. Most of the intercepted calls pertain to the

operation of a gambling business, primarily the exchange of

horse bets and a discussion of “hits.” Several of the conversa-

tions indicate that the person operating at this telephone listed

to 141 Pleasant Street, Apartment F, Melrose, Massachusetts,

keeps and maintains records of the bets placed with him.

The person answering the telephone at this address was

identified as “Sam.”

ere te

4la

19. The premises known as 475 Ferry Street, Malden,

Massachusetts , described as a one story framed building with a

sign reading “Belmont Grill” in front.

A. During the period of the interceptions, from June 3,

197! to June 15, 1971, three outgoing telephone calls to

telephone 324-9540 were intercepted from 63 Bickford Avenue,

the records of the New England Telephone and Telegraph

Company reflect that 324-9540 is listed to the public pay

telephone at the Belmont Grill at 475 Ferry Street, Malden,

Massachusetts. All of the completed calls intercepted per-

tained to the exchange of number bets. The calls also indicate

that the persons turning the number bets in from Belmont

Grill keep and maintain records.

B. On October 29, 1971 a Special Agent of the Federal

Bureau of Investigation entered the premises at 475 Ferry

Street at approximately 3:30 P.M. and observed gambling

paraphernalia on the premises. He also observed the

bartender maintaining a sheet on which it appeared that

number play was recorded. He also heard the bartender

engage in a discussion regarding horse races and numbers.

Based on the facts set forth in this affidavit and the

affidavits of the other Special Agents submitted in connection

with this affidavit, I have reason to believe that gambling

records and paraphernalia are being used and are being kept

by the persons listed below and on the premises listed below

and other persons unidentified to conduct, finance, manage,

finance, supervise and direct an illegal gambling business, in

violation of Title 18, United States Code, Sections 1955 and

371.

Wherefore, your affiant respectfully submits that, based

upon the totality of the information submitted herewith, there

is probable cause to believe that fruits, instrumentalities and

evidence of an illegal gambling operation will be found on the

premises, persons and vehicles listed below.

42a

1. 58 Delano Avenue, Revere, Massachusetts, and all

persons on said premises;

2. 63 Bickford Avenue, Revere, Massachusetts, and all

persons on said premises;

3. 1578 North Shore Road, Revere, Massachusetts, and all

persons on said premises;

4. 243 Cushman Avenue, Revere, Massachusetts, and all

persons on said premises;

5. 585 Boulevard, Revere, Massachusetts, and all persons

on said premises;

6. 23A Tyler Street, Boston, Massachusetts, and all persons

on said premises;

7. 38 Graves Road, Revere, Massachusetts, and all persons

on said premises;

8. 40 Kingman Avenue, Revere, Massachusetts, and all

persons on said premises;

9. 68 Whitin Avenue, Revere, Massachusetts, and all

persons on said premises;

10. 85 Willow Street, Malden, Massachusetts, and all

persons on said premises;

11. 120 Lynnway, Revere, Massachusetts, and all persons

on said premises;

12. 85 Whitin Avenue, Revere, Massachusetts, and all |

persons on said premises;

13. 141 Pleasant Street, Apartment F, Melrose, Massachu-

setts, and all persons on said premises;

14. 475 Ferry Street, Malden, Massachusetts, and all

persons on said premises.

43a

Your affiant hereby requests that a warrant to search the

above-described persons and premises for means, instrumen-

talities and evidence of violations of Title 18, United States

Code, Sections 1955 and 371 be issued.

ORLIN D. LUCKSTED,

Special Agent, Federal Bureau of Investigation

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.