Petition — Matya v. United States

IN THE

Supreme Court of the Bnirds States

OCTOBER TERM, 1976

CLARENCE J. MATYA, HELEN MATYA, EDWARD

ABBOUD, EDWARD L. STANEK, DONALD GENE

MORAN, JAMES M. WALKER, GEORGE H. CHONIS,

LOUIS J. URZENDOWSKI, a/k/a Lou Sandy,

OTTO J. MATULKA and DONALD J. QUINN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

OSCAR B. GOODMAN, ESQ.

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorney for Petitioners

ewe —E——EEEEeeEE——E————E—————— EEE ——

Washington, D.C. e CLB PUBLISHERS « LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

Page

to eee 2

ee dad oe teh 04 ke ee eee 2

QUESTIONS PRESENTED FOR REVIEW ............ 2

I ee ee eee ee 2

ee SD ne cv cease seecesneccen 4

REASONS FOR GRANTING THE WRIT ............. 6

i. THE CONTENTS OF ALL COMMUNI.

CATIONS INTERCEPTED DURING THE

“MATYA TAP” SHOULD HAVE BEEN

SUPPRESSED BASED ON _ NON-

COMPLIANCE WITH THE “NECESSITY”

REQUIREMENTS OF TITLE 18 USC.

§2518&1Xc). AND TITLE 18 USC.

cue”, Sect ewia bane oe 0b ees 08 6

DEFINITION OF “NECESSITY” ............. 6

THE “NECESSITY REQUIREMENT” IS

FOUNDED UPON FOURTH AMENDMENT

ee ee ee eed oe da d's) 06 46 62 8

“EXIGENT CIRCUMSTANCES” Vs. “NE-

eS Co ee ree le eee ha wee oes 10

THE APPLICATION AFFIDAVIT ............ 13

QUESTIONING OR’ INTERROGATION

UNDER IMMUNITY GRANT ............... 18

USE OF REGULAR SEARCH WARRANTS ...... 19

FULL AND COMPLETE STATEMENT ......... 21

Il. CONGRESS DID NOT INTEND TITLE 18

U.S.C. §1955 TO ELEVATE, FOR PUR-

POSES OF OBTAINING FEDERAL JURIS-

DICTION, A STATE MISDEMEANOR

INTO A FEDERAL FELONY WHEN THE

ACTIVITY COMPLAINED OF WAS OF A

PURELY INTRASTATE CHARACTER ......... 24

ee arene ae 27

Gees GP EWES cc cnc cccscccsccccsces 28

TABLE OF AUTHORITIES

Cases: Page

Alderman v. United States, 394 U.S. 165, 202

Dn whee en ed hawk Oe habs arent ce kes 10

Berger v. New York, 388 U.S. 41 (1967) ........ 9,10,11,12

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... 27

Gelbard v. United States, 408 U.S. 41 (1972) .......... 12

Katz v. United States, 389 U.S. 347, 355 (1967) ........ 8,10

Lopez v. United States, 373 U.S. 427, 441 (1963) ....... 10

Marbury v. Madison, 1 Cranch 137 (1803) ............ a

Osburn v. United States, 385 U.S. 323 (1966) ......... 10

Rewis v. United States, 401 U.S. 808 (1971) .......... 27

United States v. Bobo, 477 F.2d 974 (4th Cir.,

i Sitvitee cata t ees tet heneee ee keten «9 22

United States v. Carubia, 377 F. Supp. 1099, 1108

i i ccrcehe oe Ubatenee eee e ees ess 13

United States v. Chavez, 416 U.S. 562 (1974) .......... 12

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

1971, cert. denied 406 U.S. 934 (1972) ........... 22

United States v. Cox, 462 F.2d 1293 (8th Cir.,

PPT CC TE ETC Ce Ee TCL TT CC CTT ET 22

United States v. Curri, 363 F. Supp. 430, 435 (D.

Oe ee ee ee er ee ee 8

United States v. Derby Race Book and Rose Bowl

Sports Book, F.2d ___., (9th Cir., 1972) ........ 25

United States v. Escandar, 319 F. Supp. 295, 298

8 err rrr ee oe ee 13

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

Se ee rr ae are 13

United States v. Giordano, 416 U.S. 505 (1974) ........ 12

United States v. Kahn, 471 F.2d 191 (7th Cir.,

1972), rev'd on other grounds, 415 U.S. 143

a re re rrr rrr ere ee Tee 15,16

(ii) (iii)

Page

United States v. Kalustian, __. F.2d _., (No.

74-3314) (9th Cir., Aug. 4, 1975) ..........04.. 21,23

United States v. Kerrigan, 514 F.2d 35 (9th Cir.,

a ceseuevcueeeek C4 eee eee keh towne es 16

United States v. Lanza, 341 F. Supp. 504, 421

<a es ke be a eed oe ba ee eee Codes 13

United States v. Mainello, 345 F. Supp. 863, 974

eee ccedes ina tee ee eda ea eek . 8,13

United States v. Robinson, 472 F.2d 973 (Sth Cir.,

Dt: bine we edebeecw ae oh dh aes Obs se bes 8,12-13

United States v. Tortorello, 345 F. Supp. 1029,

ee aa oes Oe R ROE

United States v. United States District Court, 407

ee ee ee ee eee a ba ak eek 12

Statutes:

18 U.S.C

Pr rT ree Te Teer TTT eee 4

Sh at 66 ees 6a kOe CONES OK OE DS OOOO ® OOS 25

DE cetueet eben ebeedan Grane Kaw thereon 25

Ret age ROE See 5, oe tO 25

eke. Odd oe bk nek oe ee oe hehe eeees 526

LG era oa re ia hE ee in 6 eel’ e 325,27

i sce eek eee wee se eae 66d Se Oeste Res 25

i scheee ees bun thus sake Ube wereeet Passim

i, <s 4666 6a 6s 6.6068 6) 4.600.004 808 6

tt én hs eee eh awe ee een eens oe oee passim

Ee eS ee ee ee ee eee passim

es ee oe Oe se eee ee eae RESO RS sy

i Cael. Leia a sbi e ke ae 66 oe eae 6 648 18,19

2 OE aN eee ee ee ee 18,19

a ee eae a 2

United States Constitution:

ae a a a ns we eee 89.10

i, ere ee eee eh wee 9.10

(iv)

Miscellaneous:

$06 Comp, Res. C2507 CURREP kc ccsccecsobennes

104 Comp, Res. SOCPECIGERD onc ccencvecsesuseen

10S Comp, Gas. SVSRCURESD kee ec ctcunsaceeuees

156 Cons. Hipp. GER CUGGED sw be ccuccesbuseeeeee

ABA Project on Minimum Standards for Criminal

Justice-Standards Relating to Electronic Sur-

COS nn cc occ ccbeebew tbe 464

Blakely and Hancock, A Proposed Electronic

Surveillance Act, 43 Notre Dame Law 657

(USSF cccccvccecseceretbeseee eee

Senate Report No. 1097, 90th Congress, Second

mention GR GGGEED 0 0 006 00e nebo eeeeeel

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No.

CLARENCE J. MATYA, HELEN MATYA, EDWARD

ABBOUD, EDWARD L. STANEK, DONALD GENE

MORAN, JAMES M. WALKER, GEORGE H. CHONIS,

LOUIS J. URZENDOWSKI, a/k/a Lou Sandy,

OTTO J. MATULKA and DONALD J. QUINN,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioners respectfully pray that a Writ of Certiorari

issue to review the Order and Decision of the United

States Court of Appeals for the Eighth Circuit entered

in this proceeding on September 9, 1976.

*

OPINION BELOW

The Decision and Order of the United States Court

of Appeals for the Eighth Circuit was filed on

September 9, 1976. The Decision and Order has not yet

been reported and is reproduced herein as Appendix

» a

JURISDICTION

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

Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the contents of all communications

intercepted during the “wiretap” in issue should be

suppressed based on non-compliance with the “‘neces-

sity’ requirements of Title 18 U.S.C. §2518(1)(c) and

Title 18 U.S.C. §2518(3)(c).

2. Whether Congress intended Title 18 U.S.C. §1955

to elevate, for purposes of obtaining federal jurisdiction,

a state misdemeanor into a federal felony when the

activity complained of was of a purely intrastate

character.

STATEMENT OF THE CASE

The Government broUght this criminal proceeding by

means of a two-count indictment charging in Count I a

violation of Title 18 U.S.C. Sections 1955 and 2 (‘An

3

Illegal Gambling Business”) against all petitioners and

charging in Count II a violation of Title 18 U.S.C.

Sections 1952 and 2 (“Interstate Racketeering Enter-

prises”) as to petitioners CLARENCE J. MATYA and

JAMES M. WALTER. (R. 1)' The respective petitioners

entered pleas of Not Guilty to the applicable counts.

(R. 34).

After extensive pretrial motions were filed and heard

the petitioners were tried by trial by jury, before the

Honorable ROBERT V. DENNEY, United States

District Judge for the District of Nebraska, the trial

commencing September 4, 1974, and _ concluding

September 28, 1974, with the jury returning a verdict

of Guilty as to all petitioners on Count I (R. 154) and

a verdict of Not Guilty on Count II as to the

petitioners CLARENCE J. MATYA and JAMES M.

WALKER. (R. 155).

The Court imposed terms of incarceration and costs

on all petitioners with the exception of petitioner

HELEN J. MATYA, who received a sentence of

probation, payment of a fine and assessment of costs.

(R. 187-200). r

All the petitioners filed motions for new trial

(R. 158,159,160,163,201,219) which were denied

(R. 165,227,228).

The petitioners requested, and were granted, bond on

appeal, having duly filed notices of appeal (R. 185).

The Court of Appeals for the Eighth Circuit affirmed

by virtue of Decision and Order of September 9, 1976.

'The Record is designated as (R....); and the Reporter's

Transcript of the Proceedings is designated as (Tr. . . .).

4

STATEMENT OF THE FACTS

The Petitioners were indicted by a Federal Grand

Jury in Omaha, Nebraska, on February 21, 1973. (R. 1)

The evidence resulting in the return of the

indictment and conviction at trial was derived from the

interception of wire communications on certain tele-

phones.

The interception of the wire communications took

place as a result of an application being made to the

Honorable WARREN K. URBOM, Judge for the District

of Nebraska, for said interception.

On February 4, 1972, in an order designated DN 2,

Federal Bureau of Investigation Agents were authorized

to intercept for a period of fifteen days the wire

communications of Petitioners CLARENCE JOHN

MATYA, DONALD EUGENE MORAN, EDWARD

ABBOUD, PAUL MURPHY, three other designated

persons and “others as yet unknown” to and from two

telephones which were situated at a place where

CLARENCE J. MATYA had a nexus. The purpose of

the interception was to secure evidence relating to

offenses in violation of 18 U.S.C. 1955 and 371. The

interceptions commenced on February 5, 1972, and

terminated on February 12, 1972. (The original District

Court Record for reference to Application, Affidavit

and Order in DN 2 is in the custody of the Clerk for

Court of Appeals for Eighth Circuit.

In the application filed to obtain the wiretap order

the applicant, GARY CORNWELL, an attorney of the

Organized Crime and Racketeering Section of the

Department of Justice. represented that the use of a

wiretap was appropriate since “normal investigative

procedures reasonably appear unlikely to succeed.” In

5

making this representation CORNWELL relied on the

affidavit of Federal Bureau of Investigation Agent

JOHN ANDERSON, whose affidavit purportedly

showed that standard investigative techniques would be

inadequate to secure prosecutable evidence.

CORNWELL’S application indicated that the

defendants named therein were engaged in an “‘illegal

gambling business” in violation of 18 U.S.C. 1955. In

making this representation CORNWELL relied on the

aforementioned ANDERSON affidavit which stated

‘** Nebraska law prohibits the accepting and making

of bets on sports events other than the parimutuel

betting conducted at legally authorized race tracks

pursuant to state law.”

Judge URBOM, in issuing his Order of February 4,

1972, adopted in his findings the representations of

CORNWELL and ANDERSON. On the basis of the

Order, the interceptions took place. Conversations of an

evidentiary nature were intercepted, from which

allegations were made to obtain search warrants for the

Petitioners’ persons and premises, as a result of which

searches were conducted on February 12, 1972. In

addition, the conversations were used in an extensive

grand jury inquiry which lasted over several months,

resulting in a return of the subject indictment on

February 21, 1973.

The Petitioners filed various motions to suppress

which encompassed the Government’s procedures and

representations, or lack thereof, in obtaining the

wiretap order, as well as attacking the validity of the

procedure which permitted the enhancement of a state

misdemeanor to the status of a federal felony, assuming

arguendo that the state statute was constitutionally

well-founded (R. 37). The various motions were denied

(R. 110).

6 i

The trial was conducted shortly thereafter. The

Government relied on primarily four lines of proof:

(1) the tapes of the intercepted conversations,

(2) testimony of persons concerning their wagering

activity with the particular petitioners, (3) physical

surveillance of the Petitioners, and (4)the “expert

opinion” of a Federal Bureau of Investigation Agent,

that a necessary element in a bookmaking business is to

have agents who associate themselves with the primary

bookmaker in a profit splitting arrangement, thus

according to the Government’s theory, be considered

part of the same illegal business, e.g. the crux of the

prosecution under 18 U.S.C. 1955.

REASONS FOR GRANTING THE WRIT

I.

THE CONTENTS OF ALL COMMUNI-

CATIONS INTERCEPTED DURING THE

“MATYA TAP” SHOULD HAVE BEEN

SUPPRESSED BASED ON _ NON-

COMPLIANCE WITH THE “NECESSITY”

REQUIREMENTS OF TITLE 18 U.S.C.

§2518(1)(c) AND TITLE 18 U.S.C.

§ 2518(3)(c).

DEFINITION OF “NECESSITY”

Title Ill? was enacted to remedy what was

considered an intolerable state of the law in the area of

electronic surveillance. Title II] specifically set out to

~ 2 Reference to Title III means generally Title 18 U.S.C. §2510

et seq.

J

accomplish the dual purpose of protecting the privacy

of wire and oral communications and of delineating on

a national basis the circumstances and conditions under

which the interception of wire and oral communications

may be authorized. Senate Report No. 1097, 90th

Congress, Second Session 66 (1968).

One key limiting provision of Title III, intended to

prevent unwarranted invasions of personal privacy,

mandates that the application for an interception order

contain:

[A] full and complete statement as to whether or

not other investigative procedures have been tried

and failed or why they reasonably appear to be

unlikely to succeed if tried or to be dangerous. 18

U.S.C. 2518(1)(c) (1968).

A United States District Court judge or United States

Court of Appeals judge may authorize an _ order

permitting electronic surveillance only if it is found

that:

{[N]ormal investigative procedures have been tried

and have failed or reasonably appear to be unlikely

to succeed if tried or to be too dangerous. 18

U.S.C. 2518(3)(c) (1968).

These two related requirements, which will be referred

to as the “necessity requirements” are not further

mentioned elsewhere within Title 1H, nor does Title III

provide guidelines for the interpretation of the

requirement, how it is to be implemented, or what

consideration or criteria should be evaluated in the

making of the judicial determination of necessity. Title

III only requires that the application for the inter-

ception order contain a “full and complete statement”

about the need for the use of electronic surveillance.

Title Ill does not require the judge approving an

application to include in his order the reasons for, the

8

criteria of, or the information evaluated in determining

whether or not the necessity requirements has been

met. In fact the judge need not even include a simple

finding of necessity in the authorization. United States

vy. Mainello, 345 F. Supp. 863, 974 (E.D.N.Y. 1972);

United States v. Tortorello, 345 F. Supp. 1029, 1036

(S.D.N.Y. 1972); aff'd 480 F.2d 764 (2nd Cir.), Cert.

denied 414 U.S. 866 (1973); United States v. Robinson,

472 F.2d 973 (Sth Cir., 1973) (Per curiam). But see

United States v. Curri, 363 F. Supp. 430, 435 (D. Md.,

1973). This interpretation results from the fact that 18

U.S.C. 2518(4), specifying what must be contained in

the interception order, fails to make any reference to

the necessity requirement.

THE “NECESSITY REQUIREMENT” IS FOUNDED

UPON FOURTH AMENDMENT PRINCIPLES

Authorized warrants for search and seizure of a

person’s property are subject to the Fourth Amendment

restriction against “unreasonable searches and seizures’.

As stated in Katz v. United States, 389 U.S. 347, 355

(1967): “[A] conventional warrant ordinarily serves to

notify the suspect of an intended search.” That

statement recognizes the settled principle that “‘notice”

to the individual against whom the warrant is served is

required under the terms of the Fourth Amendment.

Since conventional search warrants are aimed at the

seizure of tangible property, the “notice” requirement

is complied with by serving a copy of the warrant upon

the individual who is the subject of the search at the

time of its execution. Proper compliance with the

“notice” principle has presented few problems to law

At Oe ee aes ee

9

enforcement personnel in their efforts to seize tangible

evidence.

The rapid advancement of scientific technology

resulted in the ability to seize additional intangible

forms of evidence, i.e., oral communications between

two parties. With the advent of this investigative tool

the Courts were presented with new issues concerning

the balancing of Fourth Amendment requirements with

legitimate law enforcement efforts, particularly with

regard to the Fourth Amendment principle of “notice”.

The Supreme Court faced this question prior to the

passage of Title III in Berger v. New York, 388 U.S. 41

(1967).

The issue before the Berger Court was the constitu-

tionality of the State of New York’s permissive

electronic surveillance statute. The Court concluded,

based on several principles, that the statute was

unconstitutional, relying on the Fourth and Fourteenth

Amendments. One of the grounds upon which the

Court based its decision was the failure of the statute

to require a showing of exigent circumstances to justify

the failure to give the subject of the interception notice

prior to the execution of the warrant. Berger at 288

U.S. 60. The Court emphasized this “‘exigent circum-

stances’ requirement by stating:

{T]he statute’s procedure, necessarily because its

success depends on secrecy, has no requirement for

notice as do conventional warrants, nor does it

overcome this defect by requiring some showing of

special fact. On the contrary, it permits uncon-

sented entry without any showing of exigent

circumstances. Such a showing of exigency, in

order to avoid notice, would appear more

important in eavesdropping, with its inherent

dangers, than that required when conventional

procedures of search and seizure are utilized.

Berger at 388 U.S. 60.

10

“EXIGENT CIRCUMSTANCES” Vs. “NECESSITY”

In Berger none of the opinions of the justices

describes or explains what is meant by the terms

“exigent circumstances” or “special fact.” One thing is

certain though - the showing of exigent circumstances

to excuse the lack of presearch notice is a Constitu-

tional requirement, for the Berger holding is based on

the Fourth and Fourteenth Amendments.

By the mere nature of its operation, electronic

surveillance has been viewed as a more serious invasion

of privacy than other types of investigative procedures.

Alderman vy, United States, 394 U.S. 165, 202 (1969)

(Fortis J., concurring in part and dissenting in part);

Berger vy. New York, 388 U.S. 41, 56, 63 (1967);

Osburn v, United States, 385 U.S. 323, 352-354 (1966)

(Douglas, J., dissenting); Lopez v. United States, 373

U.S. 427, 441 (1963) (Warren, C.J., concurring in the

result). This fact resulted in the Berger requirement of a

showing of “exigent circumstances.” It also resulted in

the Court’s stating in Katz v. United States, 389 US.

347, 355 (1967), that “no greater invasion of privacy

was permitted than that necessary under the circum-

stances.”” (Emphasis Supplied)

In view of the fact that the “exigent circumstances”

requirement of Berger is founded on Constitutional

principles, the Appellants in the present case strongly

argue that the “necessity” requirement of 18 U.S.C.

2518 have an equal Constitutional basis, i.e., that the

Constitutional requirement of Berger was codified in

Title Ill. In support of this argument Appellants cite

two separate authorities.

The first recognition of the fact that the “exigent

circumstances” requirement is synonymous with the

“necessity” provisions of Title II] came during the floor

debate on the Title III legislation. Senator TYDINGS,

speaking to this point, stated:

“Mr. Justice Clark (in Berger v. New York)

recognized what is the distinct difference between

a conventional warrant and the electronic surveil-

lance warrant: the electronic surveillance warrant

depends for its success on the absence of notice.

Yet Mr. Justice Clark observed the New York

statute required no showing of ‘special facts’ or

‘exigent circumstances’ to overcome the normal

requirement of pre-search notice. Here Mr. Justice

Clark was referring to the analogous situation

sustained by the Court in Kerr (sic) v. California,

374 U.S. 23 (1963), a case in which he offered the

majority opinion... Such a showing of ‘special

facts’ or ‘exigent circumstances’ would = un-

questionably be met by a legislative requirement

that judicial authorization for the use of electronic

surveillance techniques be conditioned on a

showing, for example, that ‘normal investigative

procedures have been tried and have failed or

reasonably appear unlikely to succeed if tried.’

This is the English standard now for the use of

wiretapping on the Home Secretary’s warrant.”

114 Congressional Record 12987 (1968)

The academic sector was next to acknowledge the

equality of the two provisions. Professor G. ROBERT

BLAKELY, who, as preparer of the Bill that eventually

evolved into Title III] and as the reporter for the ABA

Project on Minimum Standards for Criminal Justice -

Standards Relating to Electronic Surveillance (Approved

Draft) (hereinafter cited as ABA Standards Relating to

Electronic Surveillance) is regarded as probably the

foremost academic spokesman for the legitimation of

electronic surveillance. In 1967 Professor BLAKELY

co-authored a Law Review article proposing an

electronic surveillance control act. [Blakely and

12

Hancock, A Proposed Electronic Surveillance Act, 43

Notre Dame Law 657 (1967-68)|. In the proposed

statute, he included the necessity requirement in

essentially the same wording as it appears in Title III.

Id. at 673. The comment accompanying the inclusion

of the necessity requirement clearly equates the

requirement with the Berger Constitutional requirement

of a showing of exigent circumstances. /d at 673, n.

35.

The above sources each stand for the proposition

that the Berger test of “‘exigent circumstances” with its

Constitutional basis has been codified in Title III under

the “necessity” requirements of 18 U.S.C. 2518(1)(c)

and 18 U.S.C. 2518(3)(c). Therefore, the necessity

requirement itself, as a codification of the Berger

requirement of exigent circumstances, is a Constitu-

tional requirement and, as such, is to be strictly

followed so as to protect the guaranteed rights of

United States citizens.

Ali of the justices on the Supreme Court have

recognized the strictness with which Title III must be

implemented. In United States v. Chavez, 416 U.S. 562

(1974), the majority said that “strict adherence by the

Government to the’ provisions of Title IIl

would....be...in keeping with the _ responsibilities

Congress has imposed....“/d at 580. Justice

DOUGLAS, in dissent, joined by Justices BRENNAN,

STEWART and MARSHALL, stated that “the history

of Title III reflects a desire that its provisions be

strictly construed.” /d. at 597. This same proposition

has been accepted in Gelbard v. United States, 408.U.S.

41. 46-47 (1972); United States v. Giordano, 416 U.S.

505 (1974): United States v. United States District

Court, 407 U.S. 297 (1972). The Fifth Circuit

recognized the same principles in United States vy.

A, Ce se

13

Robinson, 472 F.2d 973 (Sth Cir., 1973) along with

two Florida District Courts in United States v. Lanza,

341 F. Supp. 504, 421 (M.D. Fla. 1972) and United

States v. Escandar, 319 F. Supp. 295, 298 (S.D. Fla.

1970). These Courts have found that strict construction

is required from an examination of the Congressional

intent behind Title III and the need to protect

adequately interests of personal privacy against the

inherent dangers involved in the use of electronic

surveillance.

THE APPLICATION AFFIDAVIT

The critical component of any interception applica-

tion is the affidavit in support of the application. The

affidavit is usually incorporated by reference into the

application, with the application containing only a brief

conclusionary statement concerning the necessity of

using electronic surveillance.

In the instant case, the affidavit of Agent ANDER-

SON accompanied the application for the “‘Matya tap”

order issued on February 4, 1972, by Judge URBOM.

The application and the affidavit, taken together,

must provide a “full and complete statement” as to the

necessity of resorting to the use of electronic

surveillance. United States v. Carubia, 377 F. Supp.

1099, 1108 (E.D.N.Y. 1974); United States v, Falcone,

364 F. Supp. 877 (D.N.Y. 1973); United States ».

Mainello, 345 F. Supp. 863 (E.D.N.Y. 1972). Affidavits

have been determined to be insufficient in making the

required necessity showing when they provide only

cursory and conclusionary averments of inadequacy or

difficulty of using normal investigative techniques. It is

submitted that this Court has reviewed such averments

14

made in boiler-plate fashion in most, if not all, the Title

Ill applications before the Court.

Paragraph 5 of Agent SULLIVAN’S affidavit

States:

‘5. My experience and the experience of other

agents has shown that even though gambling

customers are identified, they are unwilling to

furnish information to law enforcement agents or

officials inquiring into gambling activities. This is

even more true when the customer is a profes-

sional gambler himself and is requested to give

information concerning the gambling operations.

Standard investigative techniques which have been

utilized by your affiant and other agents of the

Omaha Office of the Federal Bureau of Investiga-

tion over the past six months have not succeeded

in providing evidence to sustain prosecution in this

case, and affiant does in good faith believe that

such techniques would succeed only to a limited

degree in establishing the scope and nature of the

illegal gambling operations believed to be engaged

in by CLARENCE JOHN MATYA, DONALD

EUGENE MORAN, EDWARD ABBOUD, DENNIS

MUNNELLY, JOHN SKRADIS, PAUL MURPHY,

LOU LUKAS and the other individuals not fully

identified at this time, if solely relied upon in the

future. Furthermore, such investigative techniques

as physical surveillance and examination of the

records obtainable on these individuals offer little

15

training and the experience of other agents has

shown that gambling raids and searches of

gamblers and their gambling establishments, in the

past, have frequently not resulted in the gathering

of sufficient physical or other evidence to prove all

elements of the offense and have only resulted in

allowing the bookmakers and their associates to

change their places and methods of operation and

to destroy their records and thus to thwart further

investigation. Additionally, records that have been

seized in past gambling cases have generally not

been sufficient to establish the elements of Federal

offenses, because such records are difficult to

interpret and many times are of little or no

significance without further evidence of the

gambler’s activities. Therefore, the interception of

these telephone communications is the only

available method of investigation which has a

reasonable likelihood of securing the evidence

necessary to prove violation of these statutes. All

of the confidential informants mentioned in this

affidavit have indicated that they are unwilling to

testify against CLARENCE JOHN MATYA,

DONALD EUGENE MORAN, EDWARD

ABBOUD, DENNIS MUNNELLY, JOHN

SKRADIS, PAUL MURPHY, LOU LUKAS and the

other individuals not fully identified at this time,

because they fear for the personal safety of both

themselves and their families.”

At least two Courts have recognized that “boiler-

plate” allegations are frequently placed in supporting

investigative procedures as applied to this case is affidavits, particularly with respect to the statements

based upon the fact of the secretive and guarded concerning the use of “other investigative techniques”.

manner in which this gambling conspiracy is being In United States vy. Kahn, 471 F.2d 191 (7th Cir.,

conducted, and my evaluation of those circum- 1972), rev'd on other grounds, 415 U.S. 143 (1974),

stances in the light of my experience as a Special

Agent of the Federal Bureau of Investigation in the Court of Appeals stated as follows:

the investigation of gambling cases and my

association with other Special Agents who have

conducted other gambling investigations. My

probability of success in securing presentable

evidence. My belief as to the inadequacy of normal

“The conclusionary statement in the application

and affidavit that ‘normal investigative methods

reasonably appear unlikely to succeed and are too

16

dangerous to be used’ is too slender a reed upon

which to rest the invasion of [the defendant’s]

privacy.” Kahn at 197.

In United States v. Kerrigan, 514 F.2d 35 (9th. Cir.,

1975), the Court, recognizing the fact that law

enforcement agencies use boiler-plate allegations to

meet the necessity requirement, expressed criticism of

this practice and found the showing sufficient only

because of the strong factual context of the case. After

summarizing the allegations of the affidavit, the Court

stated:

“We agree with Appellants that the boiler-plate

recitation of the difficulties of gathering usable

evidence in bookmaking prosecutions is not a

sufficient basis for granting a wiretap order. To

hold otherwise would make Section 2518(1)(c)

and (3c) [of Title 18] mere formalities in

bookmaking cases. However, in this case, agents

had engaged in investigation for over three months,

including physical surveillance of the suspects, had

reasonably established that their informants would

not testify, and had reason to believe that the

other evidence thus far produced would not

support a conviction.”” United States v. Kerrigan,

supra.

As will be shown to the Court, the factual context of

the present case is in no conceivable way similar to that

upon which the Kerrigan Court upheld the con-

clusionary allegations contained in that affidavit.

The danger that boiler-plate terms would be

developed to meet the necessity showing was recognized

in the Senate Floor Debate on Title III:

“(Title HII] further requires a showing that

‘normal investigative procedures have been tried

and have failed or reasonably appear to be unlikely

to succeed if tried or to be too dangerous.” We

17

agree with the thought that underlying this

requirement, i.e., that wiretapping and eaves-

dropping should not be used unless absolutely

necessary. [Title III] should not, however, leave

open the possibility of satisfying this requirement

by a boiler-plate recital of the statutory language.

It should provide for a description with particulars

of the efforts that have been made to obtain

evidence without wiretapping or eavesdropping and

a reasoned justification of the need for using

wiretapping and eavesdropping methods.” 114

Congressional Record 14474 (1968) (remarks of

Senator LONG) (Emphasis Added)

Obviously, there is not shown in the affidavit a “full

and complete statement” as to:

A. Why physical surveillance reasonably appears

unlikely to succeed.

B. Why contacts with other law’ enforcement

agencies reasonably appear unlikely to succeed. -

C. Why the use of informants and/or immunized

witnesses reasonably appear unlikely to succeed.

D. Why immunity was not offered to the informants.

What are other “investigative procedures?”

In determining the exact meaning of “‘other investi-

gative procedures” the best source available would

appear to be the Senate Report relative to Title Ill

legislation. In that Report the following statement

appears:

“Normal investigative procedure would include, for

example, standard visual or aural surveillance

techniques by law enforcement officers, general

questioning or interrogation under an immunity

grant, use of regular search warrants, and the

infiltration of conspiratorial groups by undercover

agents or informants.” Senate Report No. 1097,

90th Congress, Second Session (1968) at 101.

18

The affidavit is absent any attempt on the part of

the Federal Bureau of Investigation to exhaust all

reasonable avenues of surveillance of CLARENCE

JOHN MATYA himself, or the other named individuals,

which is evidence of the total disregard for the

Constitutional foundation upon which the “necessity”

requirement rests.

QUESTIONING OR INTERROGATION UNDER

IMMUNITY GRANT

The second form of other investigative procedures

alluded to in the Senate Report, supra, was the

questioning or interrogation of potential witnesses

under a grant of immunity. Such a procedure is

provided for in Title 18 U.S.C. § §6002 and 6003.

The immunity grant would appear to be a valuable

tool to law enforcement in the investigation of

gambling operations. Through the use of other

investigative techniques, such as visual surveillance,

investigators would be able to determine who many of

the customers and employees of the bookmaker are.

General interrogation of these potential witnesses would

be the next investigative step. It is natural to assume

that a certain percentage of these potential witnesses

would be hesitant to make statements which could be

used in a Grand Jury proceeding; the customer because

he wishes to continue betting and the employee for fear

of losing his job. However, once the investigatory

agency makes application to the United States

Attorney’s Office for a grant of immunity and that grant

is approved by the Court, it is also natural to assume

that these witnesses, when faced with the contempt

provisions of the statute will choose to testify rather

than to go to jail for eighteen months.

19

The Court is also asked to recognize the fact that

Agent ANDERSON, and others within the Federal

Bureau of Investigation, through their failure to use

visual surveillance abandoned the opportunity to gain

the identity of potential witnesses and, in turn, the

opportunity to compel the testimony of these witnesses

under the provisions of the immunity statute.

At no time prior to the installation of any one of the

three “taps” which Agent ANDERSON has _ been

involved in since 1972 did he attempt to use the

provisions of the immunity statute for purposes of

proving the violation under investigation. Nor did he

explain to Judge URBOM why the use of this technique

reasonably appeared to be unlikely to succeed.

Once again there appears the establishment of failure

to use an effective investigative tool, 1.., the

subpoenaeing of witnesses before a Grand Jury prior to

resorting to the use of the most inirusive form of

invasion of privacy, the interception of oral

communications.

Failure to use or attempt to use this statutory

provision, Title 18 U.S.C. §§6002 and 6003, is but

another example of the continuing erosion of the

Constitutional principles of the “necessity” require-

ments.

USE OF REGULAR SEARCH WARRANTS

Conventional search warrants have long been used by

law enforcement officers in obtaining tangible evidence

upon which to base a conviction. As tong as the

requisite probable cause is shown for issuance of the

warrant and the specific place to be searched and items

to be seized appear in the application, Courts have

20

upheld their function in the investigation of criminal

activity. The use of visual surveillance and execution of

conventional search warrants are, in all probability, the

two most useful techniques available to criminal

investigatory agencies.

The search of February 12, 1972, which took place

little more than one week after the wiretap was

initiated, resulted in the seizure of:

(a) Bookmaker’s records.

(b) Gambling parapheinalia.

(c) The identify of betting customers.

(d) Betting “slips” totalling substantially more than

$2,000.00.

The argument that the use of “other investigative”

procedures in the investigation of gambling operations

will prove too difficult, thereby opening the door for

the interception of oral communications, bears no

weight with regard to the “necessity” requirement,

particularly in light of the fact that there has been an

established pattern of giving only token recognition to

these “other” procedures. As in the case of visual

surveillance and the use of the immunity statute, the

execution of conventional search warrants by Agent

ANDERSON has been an event occurring only “after

the fact,” i.e., after installation of the wiretap. This

procedure shows a total disregard for the requirements

of the “necessity” provision and provides further

evidence of the erosion of the principles upon which

that provision is based.

21

FULL AND COMPLETE STATEMENT

In drafting the Title III Legislation, Congress

determined that, in applications for oral intercept

orders, a “full and complete statement” should be made

as to the use of other investigative procedures prior to

the application. Title 18 U.S.C. §2518(1)(c).

Defendants have shown to the Court in argument, supra

that Paragraph 5 of Agent ANDERSON’s affidavit

makes only conclusionary statements as to what normal

investigative procedures were used by him prior to the

application of February 4, 1972 for the “Matya tap”

oral intercept order.

What is believed to be possibly the most recent

detailed review of an affidavit for wiretap application

with emphasis on the provisions of Title 18 U.S.C.

§2518(1)(c) is found in the Ninth Circuit decision in

United States v. Kalustian, — F.2d —, (No.

74-3314) (9th Cir., August 4, 1975).

In its opinion, the Court .et out at length many of

the supporting affidavit representations upon which the

Federal Bureau of Investigation based its request for the

oral intercept order. Several of these representations

should here be noted:

(a) “Standard investigative techniques have not

succeeded in providing evidence to sustain

prosecution in this case and would only succeed

to a limited degree in establishing that... and

others as yet unknown, are involved in

gambling activities over the telephone sub-

scribed to in the name of...”

(b) “Furthermore, such investigative techniques as

physical surveillance and the records obtained

on...and others as yet unknown, contain

little probability of success in securing pre-

sentable evidence. Based upon my knowledge

ée

and experience as a special agent of the

Federal Bureau of Investigation in the investi-

gation of gambling cases and my association

with other special agents who have conducted

investigation of gambling activities, normal

investigative procedures appear to be unlikely

to succeed in establishing that the above

individuals are involved in gambling activities

over the aforementioned telephones in viola-

tion of Federal laws.”

(c) “My experience and the experience of other

agents has shown that gambling raids and

searches of gamblers and gambling establish-

ments have not, in the past, resulted in the

gathering of physical or other evidence to

prove all elements of the offense.”

(d) “I have found through my experience and the

experience of other special agents, who have

worked on gambling cases, that gamblers

frequently do not keep permanent records. If

such records have been maintained, gamblers,

immediately prior to or during a physical

search, sometimes destroy the records.”

In its opinion, the Court did not discuss the

particular facts involved in the case nor did it closely

scrutinize the investigative techniques used by the

Government prior to its application for the intercept

order. The Court did state:

“The act [Title III] has been declared Constitu-

tional only because of its precise requirements and

its provisions for close judicial scrutiny. United

States v. Bobo, 477 F.2d 974 (4th Cir., 1973);

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

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

States v. Cox, 462 F.2d 1293 (8th Cir., 1972).”

In reversing the trial court’s order denying the

Defendants’ motions for suppression of the electronic

surveillance evidence, the Court stated:

os

“The Government failed in this case to satisfy 18

U.S.C. 2518(1)(c). Its application did not ade-

quately show why traditional investigative tech-

niques were not sufficient in this particular case. A

reviewing judge is handicapped without a full and

complete statement of underlying circumstances.

The Government must (1) inform him of every

technique which is customarily used in police work

in investigating the type of crime involved, and

(2) explain why each of them has either been

unsuccessful or is too dangerous or unlikely to

succeed because of the particular circumstances of

the case. Title II] and the individual’s right to

privacy which it seeks to preserve demands no

less.”

The inescapable conclusion to be drawn from the

quoted affidavit language from Kalustian as compared

with the representations made in Agent ANDERSON’s

January 4, 1972 “Matya tap” affidavit is that the

language in both is so very similar in nature as to

almost be considered the same. Both contain “bald

conclusions” rather than facts upon which a detached

judge could determine whether “normal investigative

procedures” were viable alternatives to electronic

surveillance, as he is required to do under 18 U.S.C.

2518(3)(c). The Kalustian Court stated that:

“The affidavit does not enlighten us as to why this

gambling case presented any investigative problems

which were distinguishable in nature or degree

from any other gambling case.”

Defendants here state to this Court that the January

4, 1972 “Matya tap” affidavit of Agent ANDERSON

makes no showing of distinguishable characteristics

between this and other gambling cases. The Kalustian

Court rightfully recognized the purpose of the statute

and the reasons for its strict construction and

24

concluded that a “full and complete” statement relative

to the “necessity” requirements had not been made,

and therefore, suppression of the evidence was required,

as it should be herein.

CONGRESS DID NOT INTEND TITLE 18

U.S.C. §1955 TO ELEVATE, FOR PUR-

POSES OF OBTAINING FEDERAL JURIS-

DICTION, A STATE MISDEMEANOR INTO

A FEDERAL FELONY WHEN THE AC-

TIVITY COMPLAINED OF WAS OF A

PURELY INTRASTATE CHARACTER.

It is interesting to note, by the Jury’s verdict, in

acquitting CLARENCE J. MATYA and JAMES M.

WALKER of the interstate charge in Count II of the

indictment, implicitly found the “gambling operation”

to be one of a purely intrastate nature. It is also

important to note that the Nebraska “gambling” statute

is a misdemeanor which is punishable by imprisonment

“in the county jail not less than one nor more than six

months, and be fined in any sum not exceeding five

hundred dollars.” Nevertheless, the prosecution is based

on a Federal statute which is contingent on the

violation of the “laws of a State or political

subdivision” thereof, and is punishable as a felony with

a term of incarceration up to five years and/or fine of

$20,000.

Title 18 U.S.C. §1955 operates so unequally as to

violate the due process clause in that it not only applies

solely to gambling activities which violate the law of

the state in which they occur, and since all states do

not have the same law, treatment and selectivity of

enforcement is constitutionally unsound, but also to

2s

gambling activities which violate the law of a political

subdivision of a particular state (i.e., Misdemeanor,

offense, regulation). As a result, gambling activity

conducted in one state may be a federal offense, while

the same activity in another state may not be a federal

offense (as well as a differentiation in the same state

from political subdivision to political subdivision). Even

within a state, some forms of gambling may be federal

offenses while other forms of gambling may not be.

United States v. Derby Race Book and Rose Bowl

Sports Book, ___ F.2d —__- (9th Cir. 1972).

18 U.S.C. §1955 is defective because it does not

require proof of a specific effect on interstate or

foreign commerce flowing from the prohibited gambling

venture.

Historically, the interstate or foreign commerce

element had been a prerequisite of enabling federal

intervention into gambling activities in violation of the

laws of a state. (Cf. 18 U.S.C. 1082 making it

“ .. unlawful...to set up... gambling ship... if such

ship is on the high seas...and is not within the

jurisdiction of any State”; 18 U.S.C. 1083 making it

‘““.. unlawful [to transport]...between a

point... within United States and a gambling ship

which is not within jurisdiction of any State”; 18

U.S.C. 1084 making it unlawful to “...use a wire

facility [to transmit bets and wagers on sporting

events] ...in interstate or foreign commerce...”; 18

U.S.C. 1952 making it unlawful to travel “...in

interstate or foreign commerce or use[s] any facility in

interstate... to carry on... any unlawful activity .. .”;

18 U.S.C. 1953 making it unlawful to send “... in

interstate or foreign commerce [gambling parapher-

nalia].”’)

26

The apparent conflict with statutory precedent flows

from the fact that the subject statute, 18 U.S.C. 1955,

was modeled after 18 U.S.C. 1511, which was enacted

at the same time, as part of Title VIII — Syndicated

Gambling — of the “Organized Crime Control Act of

1970.” 18 U.S.C. 1511 was directed to the problem of

corruption concerning gambling at the state and local

levels, making it a crime for “... two or more persons

to conspire to obstruct the enforcement of the criminal

laws of a State or political subdivision thereof, with

intent to facilitate an illegal gambling business...’ The

legislative history states that Section 1511 is aimed at

“penal law-enforcement officers — police, prosecutors,

or even judges who are ‘bought’ by the operator of an

‘illegal gambling business.’” 115 Cong. Rec. 10736

(1969); 116 Cong. Rec. 605 (1970). Clearly the

legislative intent of Section 1511 was not to preempt

the field of gambling regulation:

“It will, however, be possible for the Federal

Government to intervene where local and State

Governments have been’ rendered powerless

because of the corruption of the responsible

officials. ...

* * *

... Thus bribing a local police officer to prevent

enforcement of a State or local law against

gambling will violate this statute” (116 Cong. Rec.

603-605 (1970).

The reason for the omission of the interstate or

foreign commerce element as aforedescribed in federal

anti-gambling statutes was as a result of tacked on

bill-drafting, since the provisions of 18 U.S.C. 1955

“... parallel the provisions of 1151.” Sec. 803, Pub. L.

91-452.

27

"s.,.

The Supreme Court has spoken to the requirement of

the affect on interstate commerce in Federal gambling

offenses. In Rewis v. United States, 401 U.S. 808

(1971), the Court discussed the consequences of an

expansive Travel Act (18 U.S.C. 1952). Congress would

recognize that it would alter federal-state relationships,

could overextend federal police resources, and might

transform relatively minor state offenses into federal

felonies as a result of geographic happenstance.

CONCLUSION

There have been some cases in the history of this

Court of such “peculiar delicacy,” Marbury v. Madison,

1 Cranch 137 (1803) that they have placed in the

balance the continued existence of the values adhered

to by the “authors of our fundamental constitutional

concepts,’ Coolidge v. New Hampshire, 403 U.S. 443

(1971). These cases arise at the crossroads of our

history as a Nation; at those moments when the

pressures and conflicts of the day cause even those who

sit in high places to seek to throw off the restraints and

limitations which the founders placed upon the exercise

of governmental power. It is submitted, of such

magnitude is the case at bar.

When one branch of government, no matter how

powerful, attempts to invade those rights peculiar unto

the people, it is the solemn duty of this Court to

repudiate such incursions into the freedoms which made

this a government of laws and not men.

It is submitted that the provisions of Title III were

not complied with in obtaining the order for wiretap, in

the terms of the wiretap order, nor in the execution of

the terms of said order. It is further submitted that the

provisions of 18 U.S.C. §1955 did not contemplate the

28

inclusion of the type of activity which was the subject

matter of the proofs of the instant matter.

For the foregoing reasons, it is respectfully submitted

that the Petition for Writ of Certiorari should be

granted.

Respectfully Submitted:

OSCAR B. GOODMAN, ESQ.

230 Las Vegas Blvd. South

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorney for Petitioners

CERTIFICATE OF SERVICE

It is hereby certified that three true and correct

copies of the above and foregoing Petition for a Writ of

Certiorari to the United States Court of Appeals for the

Eighth Circuit was mailed this 6th day of October,

1976, to the Honorable Robert Bork, Solicitor General,

United States Department of Justice, Washington, D.C.

20530.

/s/ John R. Schneider

C.L.B. PUBLISHERS

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 74-1947

United States of America, °

Appellee, °

*

Vv. °

_

Clarence J. Matya, Helen °

Mayta, Edward Abboud, Edward * Appeal from the

L. Stanek, Donald Gene Moran, * United States District

James M. Walker, George H. * Court for the District

Chonis, Louis J. Urzendowski, * of Nebraska.

A/K/A Lou Sandy, Otto J. °

Matulka, Donald J. Quinn,

Paul F. Murphy and Dale °

Murphy, °

Appellants. °

Submitted: june 15, 1976

Filed: September 9, 1976

Before VAN OOSTERHOUT, Senior Circuit Judge,

HENLEY, Circuit Judge, and DEVITT, Chief District

Judge.*

VAN OOSTERHOUT, Senior Circuit Judge.

An indictment filed in the United States District

Court for the District of Nebraska on February 21,

1973, charged fifteen individuals with engaging in an

*Edward J. Devitt, Chief Judge, District of Minnesota, sitting

by designation.

2a

illegal gambling business in violation of 18 U.S.C.

§1955.' Beginning on September 4, 1974, and

continuing through September 28, 1974, twelve? of the

individuals named in that indictment were jointly tried

to a jury, Judge Denney’ presiding. Each of the twelve

'The statute provides in pertinent part:

§ 1955. Prohibition of illegal gambling businesses.

(a) Whoever conducts, finances, manages, supervises, directs or

owns all or part of an illegal gambling business 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) involves 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 continuous

operation for a period in excess of thirty days or has a gross

revenue of $2,000 in any single day.

(2) “gambling” includes but is not limited to poolselling,

bookmaking, maintaining slot machines, roulette wheels or dice

tables, and conducting lotteries, policy, bolita or numbers games,

or selling changes therein.

*The convicted defendants are Clarence J. Mayta, Helen

Mayta, Edward Abboud, Edward L. Stanek, Donald Gene Moran,

James M. Walker, George H. Chonis, Louis J. Urzendowski, Otto

J. Matulka, Donald J. Quinn, Paul F. Murphy and Dale Murphy.

Of the three remaining individuals named in the indictment,

two were granted a severance for medical reasons and one entered

a no contest plea. None of these three are parties to this appeal.

*The Honorable Robert V. Denney, United States District

Judge for the District of Nebraska.

- ay

3a

was convicted and sentenced. Each of the twelve

appeals.*

The contentions raised are as follows:

1. The contents of the communications intercepted

during a certain wiretap should have been

suppressed based on noncompliance with the

‘*necessity” requirements of 18 U.S.C.

§2518(1 Mc) and (3)(c).

Il. The failure to mention the purported violation

of a particular law of the State of Nebraska

caused a fatal defect in the process used to

obtain the wiretap order.

Ill. The Nebraska gambling statute, R.R.S. Neb.

§ 28-947 (1943), is constitutionally vague and

overbroad.

IV. Congress did not intend 18 U.S.C. §1955 to

elevate, for purposes of obtaining federal

jurisdiction, a state misdemeanor into a federal

felony when the activity complained of was of a

purely intrastate character.

V. The evidence was insufficient to sustain a

conviction under the statute since there was not

proof beyond a reasonable doubt that at least

five of the defendants conducted a single

gambling enterprise.

The district court rejected each of these contentions.

For the reasons hereinafter set out, we agree with the

district court in each instance and affirm the

convictions.

*The §1955 offense was charged in Count | of the

indictment. A second count charged two of the defendants with

violation of 18 U.S.C. §§1952 and 2. Both defendants were

found not guilty on Count II.

4a

On February 4, 1972, the Government submitted an

application to Judge Urbom* seeking authority to

intercept wire communications of seven named indi-

viduals, four of whom are defendants herein, and

others, then unknown, over two certain telephones in

Omaha, Nebraska. The application asserted there was

probable cause to believe that violations of 18 U.S.C.

§§1955 and 371° had occurred and were occurring

and that the other requisites for the desired court order

had been satisfied. Accompanying the application was,

inter alia, an affidavit by an FBI special agent setting

forth the results of investigations to that date and

purportedly establishing the factual basis upon which

the application was predicated.

In an order dated February 4, 1972, Judge Urbom

made certain findings and authorized the wiretaps

substantially as requested. Included among his findings

was a Statement that “normal investigative procedures

reasonably appear unlikely to succeed.” It is unneces-

sary for our purposes to specify other particulars of the

February 4 order.

Defendants’ initial contention challenges the suffi-

ciency of the averments in the affidavit on the ground

that they do not inciude “a full and complete

statement as to whether or not other investigative

procedures have been tried and failed or why they

reasonably appear to be unlikely to succeed if tried or

to be too dangerous,” as required by 18 U.S.C.

§2518(1)(c). See also 18 U.S.C. §2518(3)(c).

*The Honorable Warren K. Urbom, Chief Judge, United States

District Court for the District of Nebraska.

*18 U.S.C. §371 is the conspiracy statute.

ee ~

ta —= —

Sa

Paragraph 4’ of the affidavit submitted in this case

set forth a history of physical surveillance at various

locations in the Omaha area, including the residence at

which the target phones were located and a number of

local bars from which much of the betting allegedly

occurred. It also set forth information supplied by a

total of seven confidential informants, all of whom

were unwilling to testify for fear of their personal

safety. It related the results of an interview with

Clarence John Mayta, the central figure in the alleged

illegal gambling enterprise. It also revealed the examina-

tion of various telephone, motor vehicle and police

records. In short, it substantiated in detail a statement

in paragraph 5 of the affidavit that standard investi-

gative techniques had been utilized over a six-month

period.

Paragraph 5 of the affidavit represented that

continued use of standard investigative techniques

“would succeed only to a limited degree” in establish-

ing the scope and nature of the illegal gambling

operations and the identity of other individuals involved

therein. This conclusion was based on the “secretive

and guarded manner in which this gambling conspiracy

is being conducted” and on the affiant’s evaluation of

the circumstances “in light of [his] experience... in

the investigation of gambling cases... .’’ The remainder

of paragraph 5 detailed investigative problems com-

monly encountered in gambling cases, including the

likely destruction of records and the difficulty in

interpreting records even if seized.

7” Paragraph 4 consumed some thirteen of the affidavit’s

nineteen pages.

6a

Elsewhere, the affidavit recited that “[c] onstant

access to a telephone is necessary for the successful

operation of a bookmaking business.” The affidavit as a

whole substantiated this allegation as applied to the

facts at hand.

Defendants strenuously argue that the recitations in

paragraph 5 of the affidavit, concerning what the

affiant had learned from past experience in gambling

cases, are of a “boilerplate” variety and that in any

event the affidavit does not adequately explain why

certain investigative techniques, such as immunity grants

or conventional searches, would have been unsuccessful.

The first half of the argument overlooks the fact that

the allegedly “boilerplate” allegations of paragraph 5

are not the only pertinent allegations in the affidavit.

As noted above, the affidavit revealed six months of

prior investigative activity in this case, all of which had

failed to reveal the scope of operations or the identity

of individuals involved. United States v. Kalustian, 529

F.2d 585 (9th Cir. 1975), relied upon by defendants, is

thus inapposite. As we noted in United States v. Daly,

535 F.2d 434, 439 n.4 (8th Cir. 1976):

In Kalustian, alternative means of investigation

were discarded because “knowledge and experi-

ence” in investigating other gambling cases con-

vinced government agents that normal techniques

were unlikely to succeed....But see United

States v» Steinberg, 525 F.2d 1126, 1130 (2d Cir.

1975), (cert. denied, 44 U.S.L.W. 3659 (May 19,

1976)|. The court in Kalustian ordered the

evidence suppressed because the alternative means

were given little opportunity to succeed. As

discussed above, government agents used alter-

native means in this case. Inspector Olk’s affidavits

explain why those investigative techniques were

inadequate.

Ta

Government agents also used alternative means in this

case, and, as explained below, the affidavit adequately

set forth why they were inadequate. Thus, whatever our

view of the Kalustian holding may be, and we need not

address that question here, the simple fact is that

“{clourts have upheld authorizations based on applica-

tions that combine statements about general investiga-

tive experience in the type of crime and the particular

facts of the case at hand.” United States v. Vento, 533

F.2d 838, 850 n.19 (3d Cir. 1976). And, despite

defendants’ statement to the contrary, even the Ninth

Circuit which authored Aalustian, apparently shares this

view. See United States v. Kerrigan, 514 F.2d 35, 38

(9th Cir. 1975). Accordingly, the mere fact that the

affidavit before us rested in part on statements that

would be equally applicable to almost any gambling

case does not render the affidavit insufficient.

The second half of defendants’ argument, that certain

specific investigative techniques were neither employed

nor explained to be inadequate, cannot be squared with

the established law of this circuit. As we stated in

United States v. Daly, supra at 438:

We recognize that Congress intended these sections

to restrict wiretaps to those which are necessary as

well as reasonable. But Congress did not require

the exhaustion of “specific” or “all possible”

investigative techniques before wiretap orders

could be issued. United States v. Smith, 519 F.2d

516, 518 (9th Cir. 1975). Congress prohibited

wiretapping only when normal investigative tech-

niques are likely to succeed and are not too

dangerous. “Merely because a normal investigative

technique is theoretically possible it does not

follow that it is likely.” S.Rep. 90-1097, U.S.

Code Cong. and Admin. News, pp. 2112, 2190

(1968). Sections 2518(1)(c) and 2518(3)(c) are

8a

only designed to ensure that wiretapping is “not to

be routinely employed as the initial step in

criminal investigation,” United States v. Giordano,

416 U.S. 505, 515 (1974), and *“ * * * to assure

that wiretapping is not resorted to in situations

where traditional investigative techniques would

suffice to expose the crime.” United States v.

Kahn, 415 U.S. 143, 153 n.12 (1974). The

government’s showing must, of course, be tested in

a “practical and commonsense fashion.” United

States v. Kirk, 534 F.2d 1262, at 1274 (8th Cir.

1976); United States v. Brick, 502 F.2d 219, 224

n.14 (8th Cir. 1974), quoting, S.Rep. 90-1097,

supra, at 2190. And as in other suppression

matters, considerable discretion rests with the

judge to whom the wiretap application is made.

United States v. Smith, supra, 519 F.2d at 518.

Judged by these standards, the affidavit before us was

sufficient. It differs only in minor respects from the

affidavits approved in United States v. Brick, supra at

224, and United States v. Schaefer, 510 F.2d 1307,

1310 (8th Cir.) cert. denied, 421 U.S. 975, 978 (1975).

It convinces us that the wiretap here was not “routinely

employed as the initial step in the investigation.” It

explains that other techniques were used first, that

these other techniques failed to yield specified pertinent

facts, and it relates to a reasonable extent why the

other procedures “suid not yield those facts. It was

not necessary that the Government explain away all

possible alternative techniques, since the Government is

not required *© use a wiretap only as a last resort.

United States v. Smith, supra at 518, United States v.

Kerrigan, supra at 38.

9a

We hold that the affidavit in this case complied with

18 U.S.C. §2518(1)(c) and (3)(c).®

Eighteen U.S.C. §2518(1)(b)(i) requires that a

wiretap application set forth “details as to the

particular offense that has been, is being, or is about to

be committed.” Eighteen U.S.C. §1955, the illegal

gambling business statute upon which the wiretap

application (as well as the prosecution) in this case was

based, defines illegal gambling business as a gambling

business which, inter alia, “is a violation of the law of a

State or political subdivision in which it is conducted.”

The wiretap application in this case asserted there was

probable cause to believe that violations of §1955 had

occurred and were occurring. The affidavit which

accompanied the application set out underlying facts to

justify this conclusion and recited that ““Nebraska law

prohibits the accepting and making of bets on sports

events other than the parimutuel betting conducted at

legally authorized race tracks pursuant to state law.” It

did not specify which Nebraska law prohibited such

bets. Defendants contend that 18 U.S.C. §2518(1)(b)(i)

required it to do so.°

Sin United States v. Steinberg, supra, 525 F.2d at 1130, the

Second Circuit stated that “wiretapping is particularly appropriate

when the telephone is routinely relied on to conduct the criminal

enterprise under investigation.” The facts recited in the affidavit

before us were sufficient to invoke this principle, which supports

the result we reach.

*The subsequent indictment did cite R.R.S. Neb. §28-947

(1943). Under United States v. Cartano, 534 F.2d 788, 791 (8th

Cir. 1976), this may have been unnecessary. Of course, Cartano

is not dispositive here because the functions of an indictment

and a wiretap application are different.

10a

The Fourth Amendment requires in part that “no

Warrant shall issue, but upon probable cause, supported

by Oath or affirmation.” It is this basic requirement

which Congress wrote into 18 U.S.C. §2518. United

States v. Kahn, 415 U.S. 143, 158 (1974) (Douglas, J.,

dissenting). At least since Nathanson vy. United States,

290 U.S. 41 (1933), it has been clear that the purpose

of the affidavit which accompanies a request for a

search warrant is to advise the authorizing judge or

magistrate of the “facts and circumstances” establishing

probable cause. While the law in this area has been

much refined over the years, the central focus on the

facts recited in the affidavit has remained unaltered.

United States v. Harris, 403 U.S. 573 (1971); Spinelli v.

United States, 393 U.S. 410 (1969); United States yv.

Ventresca, 380 U.S. 102 (1965); Aguilar v. Texas, 378

U.S. 108 (1964).

In a §1955 context, knowledge of the state law

purportedly violated is essential to the judge’s or

magistrate’s task of determining whether the facts

recited in the affidavit establish probable cause.

However, citation of the statute in the affidavit is

unnecessary to providing the judge or magistrate with

that knowledge. We have no doubt that Judge Urbom

either was familiar with the Nebraska gambling statutes

or had ready access to such statutes and satisfied

himself as to the Nebraska law before issuing the

challenged order. Nor would the failure of the affidavit

to specify which Nebraska law was purportedly violated

in any way hamper this court in assessing whether

Judge Urbom’s probable cause determination was

correct, if that determination were challenged. Defen-

dants do not allege that Judge Urbom misconstrued or

misapplied the Nebraska statute or that they have

me nce etree

lla

suffered any prejudice as a result of the failure of the

affidavit to cite the statute. Consequently, neither the

Fourth Amendment nor §2518 support defendants’

position.'® We hold that the affidavit was not defective

merely because it failed to cite the Nebraska statute.

See United States v. Averell, 296 F. Supp. 1004, 1014

(E.D.N.Y. 1969),

Our textual analysis establishes that there is no substantive

reason why the affidavit should be found defective. We also

discover no procedural or evidentiary reason why it should be

found defective.

The Federal Rules of Civil and Criminal Procedure and the

Federal Rules of Evidence now avoid characterizing the process

by which courts take cognizance of what the law is as judicial

notice, thereby emphasizing the non-evidentiary nature of the

process. See Fed. R. Civ. P. 44.1; Fed. R. Crim. P. 26.1; Fed. R.

Ev. 201; Notes of Advisory Committee to Fed. R. Civ. P. 44.1

(1966). These rules, as last amended in 1972, allow courts to

determine even foreign law on the basis of any relevant material

or source, whether or not submitted by a party and whether or

not admissible under the Federal Rules of Evidence. Fed. R. Civ.

P. 44.1; Fed. R. Crim. P. 26.1. Presumably, the drafters felt it

unnecessary to include a similar statement with respect to

domestic law.

Since the wiretap application in this case was considered by

Judge Urbom prior to the effective date of the latest

amendments to the above rules, we observe that prior caselaw

holds that federal courts may judicially notice state law even

though neither party raises it. Petersen v. Chicago G.W. Ry., 3

F.R.D. 346 (D. Neb.), affirmed, 138 F.2d 304 (8th Cir. 1943).

See Simmons v. Continental Casualty Co., 410 F.2d 881, 884

(8th Cir. 1969). The Petersen holding accords with the result we

reach here, and its substance remains intact following the

developments noted in the preceeding paragraph.

Rule 41, Fed. R. Crim. P., does not require an affidavit to

cite the statute purportedly violated.

12a

Ili.

Defendants next contend that the Nebraska statute’!

upon which the federal conviction rests is unconstitu-

tionally vague and overbroad. The vagueness argument

falters for the reason that: “[o]ne to whose conduct a

statute clearly applies may not successfully challenge it

for vagueness.” Parker v. Levy, 417 U.S. 733, 756

(1974). See United States v. Powell, 423 U.S. 87, 92-94

(1975); United States v. Mazurie, 419 U.S. 544, 550

(1975): Broadrick v. Oklahoma, 413 U.S. 601, 608

(1973); Big Eagle vy. Andera, 508 F.2d 1293, 1297 (8th

Cir. 1975). As stated by the district court, “the

evidence clearly supports, and the defendants admit to,

a finding that they were engaged in bookmaking. This

conduct is proscribed by the statute with sufficient

clarity to satisfy constitutional scrutiny.’’ Whatever else

might be said about the statute, a vagueness argument

will not, at least absent implication of the First

Amendment, carry defendants beyond this _ initial

observation.”

IR RS. Neb. §28-947 (1943) reads as follows: “Whoever

keeps or exhibits any gaming table, establishment, device or

apparatus, to win or gain money or other property of value, or

aids, assists or permits others to do the same, or whoever engages

in gambling for a livelihood, or shall be without any fixed

residence, and in the habit or practice of gambling, shall be

deemed and taken to be a common gambler, and shall be

imprisoned in the county jail not less than one nor more than six

months, and be fined in any sum not exceeding five hundred

dollars.”

'2Defendants separately allege that the Nebraska statute

punishes status rather than criminal activity. Cf Papachristou v.

Jacksonville, 405 U.S. 156 (1972). Papachristou rested on

vagueness grounds and is accordingly subject to the standing

requirement articulated in the text above. Since defendants’

bookmaking activily was not mere status, it is immaterial in this

case whether the statute might in some circumstances be read as

punishing status or whether, if it may be so read, Papachristou

would in such circumstances bar a conviction.

Pants — ames tes

et .

l3a

Defendants’ overbreadth argument focuses upon the

fact that, allegedly, the Nebraska statute might be read

as encompassing such presumably innocent conduct as

selling playing cards and reaching such presumably

innocent persons as the itinerant purchaser of a lottery

ticket. The Government admits that certain portions of

the statute “may not be admirably as narrow and

precise as possible’, and we agree. Inasmuch as

defendants do not contend that the Nebraska legislature

either could not or did not intend to proscribe their

bookmaking activities, however, the mere fact that the

statute is in some _ respects imprecise is of no

consequence here. The overbreadth doctrine, far from

being an expansive license by which courts routinely

invalidate statutes which might have been drafted with

more precision, is a doctrine whose function is

“limited...at the outset”, Broadrick v. Oklahoma.

supra at 615, and, specifically, a doctrine by which:

Litigants...are permitted to challenge a statute

[on its face] not because their own rights of free

expression are violated, but because of a judicial

prediction or assumption that the statute’s very

existence may cause others not before the court to

refrain from constitutionally protected speech or

expression.

Id, at 612. See Erznoznik v. Jacksonville, 422 U.S. 205,

251-17 (1975); Bigelow vy. Virginia, 421 U.S. 809.

815-17 (1975). Defendants do not suggest, and they

would be hard-pressed to do so, that any of the

conduct arguably reached by the statute is properly

characterized as free expression. Failing that, they

14a

cannot successfully invoke the overbreadth doctrine.'?

Defendants also challenge the constitutionality and

the district court’s construction of 18 U.S.C. §1955.

Specifically, they allege: (1) by resting the federal

offense on state law, the statute is nonuniform in

application and therefore violates the due process clause

of the Fifth Amendment; (2) Congress did not intend

to reach purely intrastate gambling activities: and (3)

Congress did not intend to elevate a state misdemeanor

into a federal felony.

The first two allegations just listed have been

repeatedly rejected by this court. Schneider v. United

States, 459 F.2d 540 (8th Cir.), cert. denied, 409 U.S.

877 (1972); United States v. Meese, 479 F.2d 41, 42-43

(8th Cir. 1973); United States v. Wolk, 466 F.2d 1143,

1146 n.2 (8th Cir. 1972). Accord, United States v.

Morrison, 531 F.2d 1089, 1093 (1st Cir. 1976); United

States v. Hawes, 529 F.2d 472, 477-78 (Sth Cir. 1976).

We adhere to our prior decisions.

We also reject defendants’ contention that Congress

did not intend to elevate a Nebraska misdemeanor into

a federal felony. Although the underlying Nebraska

statute in this case does not define .a misdemeanor,

defendants’ characterization of §1955 as “elevating”

that misdemeanor into a federal felony is not accurate.

'3 Appellants’ brief summarily alleges that the Nebraska statute

is unconstitutional because “it embraces different subject matter,

the elements of which have no bearing or relation to one

another.” No authority is cited for this proposition, and no

reasoning or analysis is presented. The Government informs us

that this contention is intended to rest on Article ill, Section 14

of the Nebraska Constitution, which proscribes bills containing

more than one subject. We decline to address the merits of this

contention. See Rule 28(a)(4), Fed. R. App. P.

ate Sew + Cnn oe

1Sa

It must be recalled that violation of state law is not the

sole element of a §1955 offense. The Government must

also establish that five or more persons are involved and

that gambling business remains in substantially continu-

ous operation for a period in excess of thirty days or

that the business has gross revenues of $2,000 in any

single day. As the Supreme Court has observed,

““[m]ajor gambling activities were a principal focus of

congressional concern.” /annelli v. United States, 420

U.S. 770, 787 (1975). The requirements of §1955 on

their face effectuate this concern. More fundamentally,

the Supreme Court has also observed that the Organized

Crime Control Act of 1970, of which §1955 is a part,

“is a carefully crafted piece of legislation.” /d. at 789.

It is thus significant that the statute makes no

distinction whatsoever between state felonics and state

misdemeanors. Similarly, the House Report which

accompanied the 1970 Act'* makes no such distinction.

Defendants cite no convincing authority indicating that

or why the statute should not be construed as

written,'® and we perceive no reason why it should not

'4H.R. Rep. No. 91-1549 (1970), U.S. Code Cong. and

Admin. News 4007, 4009.10, 4028-32 (1970).

'SDefendants do cite Rewis v. United States, 401 U.S. 808

(1971), in which the Supreme Court reversed certain convictions

under the Travel Act, 18 U.S.C. §1952, and the aiding and

abetting statute, 18 U.S.C. §2. Section 1952 prohibits interstate

travel with intent to “promote, manage, establish, carry on, or

facilitate,” inter alia, illegal gambling activity. In Rewis the Court

held ‘sat operators of an illegal gambling business could not

successfully be prosecuted under §§1952 and 2 merely because

their customers crossed state lines to place bets. The following

passage of Rewis, it is urged, supports defendants’ contention

that §1955 was not intended to apply to state misdemeanors.

{W]e are struck by what Congress did not say [in §1952].

Given the ease with which citizens of our Nation are able

(continued)

l6a

(footnote continued from preceding page)

to travel and the existence of many multi-state metropoli-

tan areas, substantial amounts of criminal activity,

traditionally subject to state regulation, are patronized by

out-of-state customers. In such a context, Congress would

certainly recognize that an expansive Travel Act would

alter sensitive federal-state relations, could overextend

limited federal police resources, and might well produce

situations in which the geographic origin of customers, a

matter of happenstance, would transform relatively minor

state offenses into federal felonies.

401 U.S. at 811-12.

Close examination of the Rewis opinion convinces us that

Rewis supports our conclusion rather than defendants’ conten-

tion. The Government’s argument in Rewis was attenuated. The

defendants there, who did manage an illegal intrastate lottery,

did not travel interstate in conducting it. The latter fact

precluded any literal application of §1952. The Government,

recognizing as much, argued that the business’ customers did

travel interstate and that the operators were responsible for that

travel. Apparently, the argument was based to some extent on

the aiding and abetting statute, §2. In any event, the argument

was dubious at best, since the Supreme Court was firmly of the

view that the customers themselves did not violate §1952. It was

in this context that the Court stated that, in light of the delicate

federal-state and other concerns at issue, it would not attribute

so expansive a view to the Travel Act absent a clear statement by

Congress. Most importantly, the Court recognized that “[i]t is

not for us to weigh the merits of these factors,’ 401 U.S. at

812, and it rested its holding squarely on the fact that “neither

statutory language nor legislative history supports such a

broad-ranging interpretation of §1952.” /d.

We do not doubt that the important factors enumerated in

the quoted passage from Rewis are highly pertinent to the

congressional decisionmaking embodied in §1955. However, in

stark contrast to the attenuated argument presented by the

Government in Rewis, the Government’s case here rests on a

straightforward application of the plain language of §195S.

Obviously cognizant that it was delving into areas of sensitive

federal-state relationships, the Congress has said that conducting

a gambling business illegal under state law is a federal felony if

certain quantitative requirements are established. It is not for us

to weigh the merits of that determination. In short, as the Rewis

Court was struck by what Congress did not say in §1952, we are

struck by what Congress did say in §1955S.

~- tne

Dele SB ae eels eR. Fk oe EAE ~ Ot RI UAE ~~

ie. — le ree

17a

be so construed. We accordingly reject defendants’

contention.'®

V.

Lastly, defendants contend that the evidence was

insufficient to sustain their convictions. They contend

that, except as to defendant Clarence J. Mayta, there is

no evidence to establish that they were systematically

and continuously involved in the gambling business. A

claim also is apparently made that the requirements of

the statute that five or more persons be involved and

that the gambling has been in operation for thirty or

more days or that the gross income has exceeded

$2,000 on a single day have not been met.

The record in this case includes 3,802 pages of

transcript as well as numerous exhibits including tapes

of intercepted calls. Defendants’ brief on this point

consumes slightly more than one page and consists

entirely of unsupported conclusions.

The trial court, which had the benefit of hearing all

the evidence, in an order filed October 8, 1974,

denying motions of all defendants for judgments of

acquittal, found and determined:

‘The Ninth Circuit has rejected as without merit any

contention that Congress could not constitutionally define a

federal felony partially in terms of a state misdemeanor. In

United States v. Kerrigan, 514 F.2d 35, 37 n.1 (9th Cir. 1975), in

reference to §1955, that court stated:

Congress’ power to proscribe conduct carries with it the

power to impose appropriate penalties without attempting

to match them to varying state punishments for similar

conduct.

We agree.

18a

Having the evidence of this case fresh in the mind

of the Court and after a review of all the notes

taken in this four week trial, the Court finds that

there was an abundance of evidence, more than

sufficient, as to each defendant which demanded

that this case be submitted to the jury to consider

the guilt or innocence of each defendant under

Count I.

* * *

The evidence admitted in this case was of such

sufficiency that the jury would be allowed to find

that a gambling business existed in the State of

Nebraska at some time between October 15, 1970,

and February 12, 1972. The evidence was also

competent and sufficient to allow the jury to find

that such business, involving five or more persons,

was illegal under the laws of the State of

Nebraska, and that each of these defendants

conducted, financed, managed, supervised, directed

or owned all or part of such business. There was

also a competent and = sufficient amount of

evidence from which the jury could find that such

gambling business was in substantially continuous

operation for a period in excess of thirty (30) days

or that such gambling business had a gross revenue

of $2,000 or more in any single day between the

dates of October 15, 1970, and February 12,

1972. The evidence was competent and sufficient

at the close of the Government’s case as to each

defendant on each essential element that such

evidence necessitated and compelled the submis-

sion of this case to the jury.

A detailed review of the evidence supporting the trial

court’s determination would unduly prolong this

opinion and serve little useful purpose. We have

carefully examined the pertinent portions of the record.

Under the well-established principles for review of jury

verdicts, we are in complete agreement with the trial

- one

Ne ee a i

eee ee

19a

court’s determination that there is substantial evidence

to support the guilty verdict as to each defendant.

Defendants have neither urged nor demonstrated that

the trial court’s determination on the sufficiency of the

evidence was induced by any misinterpretation of the

applicable law.

Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.