Petition — London v. United States

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Supreme Court, US,

mm FILED

| JUN 22 1977

IN THE

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STA! aS

OCTOBER TERM, 1976

NO, 76- 182 6

ROBERT R. LONDON,

RUFUS JONES,

JULIUS COTTMAN

Petitioners

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Harold I, Glaser

Richard M. Karceski

Attorneys for Petitioners

INDEX

TABLE OF CONTENTS

I pens cs cca ccneneusssnesedéetsies 2

POE ocd civccconcccessdeccccescestesocaes ©

SQROGRIGND PROSUMOS ..cccccccccccccccccocccccces 4

Constitutional Provision Involved,,...,........... 2

Statutory Provisions Involved ,,.........cccccceee &

Statement of the Case 5

Statement of Facts

iicheesnianndéddakendeeamene

Introduction

eeeeeeeeeespeeeeeeeeeveeeeeeeeeeeneeeeees 8

Reasons for Granting the Writ .......cccccccccsces DB

ES Ca es a ee a ee ee 32

Appendix A

Opinion of the United States Court

of Appeals for the Fourth Circuit ,,........ A.l

Appendix B

Facts and Circumstances of Special

Agent John D. Huntley, Jr., excised

SHGER CHO GEIGAVE .ccccccccccccccccccces ASS

Appendix C

Excerpt taken from the Honorable

C, Stanley Blair's memorandum and

order denying Petitioners' Motion

for Judgment of Acquittal or in the

alternative Motion for New Trial........... A.38

Appendix D

Excerpt taken from the Government's

Answer to Petitioners' Motion for

Judgment of Acquittal or in the

alternative Motion for New Trial .......+++- A.39

iii

TABLE OF CITATIONS

Cases

Page

Berger v. New York, 388 U.S, 41

(1067) occcccccccccccccccccccccccccccccccce

Jackson v. United States, 419 U.S. 1020

(1974) eeeeeneeeeeneeneeneeeeeeeeeeneeeeeeneeeneee 12

Katz v. United States, 389 U.S. 347

(1967) eeneeeneeeeeeneeeeeeeeeneeeeneeeeeneeeneeee 10

Lankford v. Gelston, 364 F, 2d 197

(4th Cir. 1966) peeeeeesesooceocooeeccoooces OO

Scott v. United States, 96S. Ct. 1519

jj) ieee eee he eeeeeeeeocooceecces 9,10, 15, 21

; United States v. Bernstein, 509 F.2d 996,

PTT rTTrrereerererrerrerresrrrere 29

United States v. Bynum, 360 F. Supp.

400, PP PrTTTrTTrrrrsrrrrrsn) 4 oe

United States v. Ceraso, 467 F.2d 647

(3rd Cir. jj) 1 eine te ewes ceeecoeeeee HD

United States v. Donovan, 17 Crim.L.

Rptr. 2029 e*e@eee<eeeeseeeeeeneeneeeeeeneeeneeee 29

United States v. Focarile, 340 F. Supp.

1033, 1046-47 eeeeeeeeeeeeeeeeeeeeeeeeee 10, 24

United States v. Giordano, 469 F, 2d 522

(4th Cir. EES TT TTTTrTTrrrrryey 10

et ne Cte

ty aT eds

PO ee ee ee ee Te ere ee tr SEP ee een Tree)

United States v. Giordano, 416 U.S. 505

(1974) 066006060000 60660666 6eCo Cee Cee SOO

United States v. James, 494 F.2d 1007,

1018 eeeeeeeeeeeeeeeeeeeeeeeeneeeeeeee 12,17

United States v. King, 335 F. Supp. 523,

543 (S.D. Calif.).....eeeee5- 16,21, 24, 25, 26

United States v. Leta, 332 F. Supp. 1357,

1360 N. Y. (M.D, PENN. 1971) ....... 10, 11,27

United States v. Scott, 504 F.2d 194, 197

(D. D.C. ek al a a le i a ll

United States v. Scott, 331 F.Supp. 233

(D,. D.C. tt ppp enc ted een enenee ob oeeel

United States v. Tortello, 480 F.2d 764, —

784 (2nd Cir. 1973) apeeededeseeoscecene EEE

MISCELLANEOUS

Merriam-Webster New International

Dictionary (2d Ed, 1948) e*ee0aee4eesteee#8eeée#ee 18, 31

S. Rep No. 1097, 90th Cong. , 2d Sess. 101

U.S, Code Cong. and Admin. News

1968, DED «ceekecbecoosoeesecesooee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO,

ROBERT R. LONDON,

RUFUS JONES,

JULIUS COTTMAN

Petitioners

Vv.

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Petitioners, Robert R. London, Rufus Jones

and Julius Cottman, pray that a Writ of Certiorari

issue to review the opinion and judgment of the

United States Court of Appeals for the Fourth

Circuit filed in the above entitled case on May 25,

1977.

CATE ont BD 6 Keds Sib BOW Welle tonne heb LOS se

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Fourth Circuit is a reported

percuriam decision and appears at Appendix A

to this Petition, infra pp. A.1- A. 27. A portion

of the opinion of the Honorable C. Stanley Blair

denying Petitioners' Motion for Judgment of

Acquittal or Motion for New Trial is found at

Appendix C to this Petition, infra pp. A. 38.

JURISDICTION

The judgment of the United States Court

of Appeals sought to be reviewed was filed on

May 25, 1977. The jurisdiction of this Court

is invoked under 28 U.S.C.

QUESTIONS PRESENT ED

1. Did the Government's deliberate failure

to limit the number of unauthorized interceptions

coupled with its failure to demonstrate that this

course of action was its only practical option

constitute substantial noncompliance with the

minimization provision?

2. Does substantial noncompliance with

the minimization provision mandate total

suppression of the evidence?

3. Did the Government's deliberate non-

compliance with the recording provision mandate

total suppression of the evidence?

CONSTITUTIONAL PROVISIONS INVOLVED

This case and the issue presented involves

the Fourth Amendment to the Constitution of the

United States which 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. "

STATUTORY PROVISIONS INVOLVED

This case and the issue presented involves

the statutory provisions of Title 18 U.S.C. Section

2518 (5) and Title 18 U.S.C. Section 2518 (8) (a):

"g 2518 (5)

(5) No order entered under this section may

authorize or approve the interception of any

wire Or oral communication for any period

longer than is necessary to achieve the ob-

jective of the authorization, nor in any event

longer than thirty days. Extensions of an

order may be granted, but only upon appli-

cation for an extension made in accordance

with subsection (1) of this section and the

court making the findings required by sub-

section (3) of this section. The period of

extension si’ . 2 no longer than the author-

izing judge c «=~ s necessary tc achieve the

purposes for «uich it --3s granted and in no

event for longer than tlirty days. Every

order and extension thereof shall contain

a provision that the authorization to intercept

shall be executed as soon as practicable,

shall be conducted in such a way as to

minimize the interception of communi-

cations not otherwise subject to inter-

ception under this chapter, and must

terminate upon attainment of the author-

ized objective, or in any event in thirty

days."

"8 2518 (8) (a)

(8) (a) The contents of any wire or oral

communication intercepted by any means

authorized by this chapter shall, if

possible, be recorded on tape or wire

or other comparable device. The record-

ing of the contents of any wire or oral

communication under this subsection shall

be done in such way as will protect the

recording from editing or other altera-

tions. Immediately upon the expiration

of the period of the order, or extensions

thereof, such recordings shall be made

available to the judge issuing such order

and sealed under his directions. Custody

of the recordings shall be wherever the

judge orders. They shall not be destroyed

except upon an order of the issuing or

denying judge and in any event shall be

kept for ten years. Duplicate recordings

may be made for use or disclosure pur-

suant to the provisions of subsections (1)

and (2) of section 2517 of this chapter

for investigations. The presence of the

seal provided for by this subsection, or

a satisfactory explanation for the absence

thereof, shall be a prerequisite for

the use or disclosure of the contents

of any wire or oral communication or

evidence derived therefrom under

subsection (3) of section 2517. "

STATEMENT OF THE CASE

On February 5, 1975, the Grand Jury

for the United States District Court for the

District of Maryland handed up an indictment

charging among others, the Petitioners,

Robert Reuben London, Julius Cottman and

Rufus Jones with having violated Title 18,

United States Code section 1955 (Conducting

an illegal gambling business).

The trial of the London, Jones and Cottman

commenced on December 1, 1975 before the

Honorable C, Stanley Blair with the aid of a

jury. On December 17, 1975, the jury returned

verdicts of "guilty" as to all defendants.

Subsequent to the entry of the jury's

verdict, Motions for New Trial were filed on

behalf of the Petitioners, London, Cottman

and Jones and same were heard and denied on

February 20, 1976.

Thereafter, on March 19, 1976, the Petitioner

London was sentenced to the custody of the Attorney

General or his authorized representative for im-

prisonment for a period of five (5) years. The

Petitioner Cottman was sentenced to the custody

of the Attorney General or his authorized rep-

resentative for a period of four (4) years and, the

Petitioner Jones was sentenced to the custody

of the Attorney General or his authorized rep-

resentative for a period of three (3) years.

It is from their respective convictions

and sentences that the Petitioners herein noted

their Appeal to The United States Court of Appeals

for the Fourth Circuit on April 19, 1976. Their

convictions having been affirmed, it is from that

decision the Petitioners note their timely request

to this Honorable Court.

STATEMENT OF FACTS

The instant case was called for trial before

the Honorable C. Stanley Blair with the aid of

a jury on December 1, 1975, At that time,

Petitioners, Robert R. London, Julius Cottman

and Rufus Jones, entered pleas of not guilty

and requested that the issues of their respective

guilt or innocence in the matter be submitted

to trial before a jury. Each was ultimately found

guilty of the charges contained in the instant

indictment charging violations of Title 18, U.S.C.,

8 1955.

The Government, in presenting its case

against the Petitioners, London, Cottman and

Jones calied to testify sixteen Special Agents of

The Federal Bureau of Investigation. The

testimonies of the Government witnesses were

primarily designed to speak of their respective

surveillances and investigations of an alleged

illegal gambling business which was to have

existed primarily within the offices of the Aldon

Bonding Company located at 1202 North Charles

Street, Baltimore, Maryland. The aforementioned

investigation was to have commenced on or about

March 27, 1974, and was to have continued under

the direction of Special Agent John D. Huntley

until shortly before the instant indictment was

handed up by the Grand Jury for the United

States District Court for the District of Maryland

in February of 1975.

The Government's first witness was Special

Agent Marion M. Wright. Agent Wright testified

that his primary responsibility in this matter was

"the coordination and installation and repair of

certain technical equipment". According to Agent

Wright, on August 23, 1974, two microphones

with miniature amplifiers were installed at his

direction under the auspices of a Court Order at

the premises known as 1202 North Charles Street,

Baltimore, Maryland. Agent Wright also testified

that he supervised the activation of a pen register

device at 1028 Irwin Drive, Joppatown, Maryland,

on July 30, 1974, and the installation of a wire tap

with a-Court Order at that same address,

The Government's next witness was the

Case Agent, John D. Huntley. Agent Huntley

related that, in accordance with the Court Ordered

monitoring of 1202 North Charles Street, monitoring

at that address was not to commence and, in fact

did not commence until one of the named principals,

Robert London, Richard Genco or Albert Isella

were determined to be present within that

premises. Huntley testified that only con-

versations pertaining to alleged gambling

activity were recorded, On cross examination,

he emphasized that although every conversation

occurring within that premises was monitored

provided one of the three named individuals

were therein present (London, Genco or Isella),

only those pertaining to alleged gambling

violations were recorded, In fact, except

for one conversation, there was a constant

monitoring of all conversations occurring within

1202 North Charles Street provided one of the

three principals was present. According to

Huntley, the entire period of monitoring at

1202 North Charles Street covered a period

from August 24, 1974 through September 12,

1974,

INTRODUCTION

Petitioners, Robert R. London, Rufus

Jones and Julius Cottman were convicted of

violations of 18 U.S.C. 8 1955 (1970), conducting

an illegal gambling business. The evidence

adduced against them at trial consisted largely

of tapes of conversations that the Government

had intercepted through the use of electronic

eavesdropping equipment. Petitioners contend

that this evidence was illegally obtained during

the investigation and improperly admitted at

trial. In particular, Petitioners contend, the

Government failed to fulfill the minimization

provision of Title III, 18 U.S.C. 8 2518 (1970)

by: (1) deliberately not attempting to limit the

number of nonpertinent conversations intercepted,

and (2) deliberately intercepting other conver-

sations not authorized by the Act, namely non-

recorded conversations. What is more, the

Government failed to comply with the recording

provision of Title III, 18 U.S.C. 8 2518 8(a)

by deliberately not recording eighty percent

of the communications seized. This has resulted

in a shamefully incomplete record of the agents'

conduct in the investigation and has materially

and adversely affected both the reviewal function

of the judiciary and the ability of the Petitioners

to defend themselves. For these reasons,

Petitioners further contend, total suppression

of all the fruits of the Title III investigation is

mandated.

REASONS FOR GRANTING THE WRIT

1. The Government's deliberate failure

to limit the number of unauthorized interceptions

coupled with its failure to demonstrate that this

course of action was its only practical option

constitutes substantial noncompliance with the

minimization provision.

The minimization requirement of 18 U.S.C,

8 2518 (5) (1970) has been termed a "core provision’

of Title III of the Omnibus Crime Control and Safe

Streets Act of 1968. See Scott v. United States,

denying cert. in 96S. Ct. 1519 (1976) (Brennan, J.

dissenting). The minimization provision, which

requires that electronic surveillance shall be

" , . . conducted in such a way as to minimize

the interception of communications not otherwise

subject to interception under this chapter. . .",

18 U.S.C. 8 2518 (5) (1970), "constitutes the

congressionally designed bullwark against con-

duct of authorized electronic surveillance in a

manner that violates the constitutional oe

announ¢ged in Berger v. New York, 388 U.S.

(1967) and Katz v. United States, 389 U.S. Fo ‘comm. 7

Scott, supra, ra, at 1519,

Despite the importance of the constitutional

rights protected by the minimization requirement,

it is clear that even proper minimization procedures

rarely, if ever, result in the interception of only

pertinent conversations. To "minimize" is to

reduce to the lowest level possible and "possible"

in this context has been defined as meaning "feas-

ible" or "reasonable. '' United States v. Focarile,

340 F. Supp. 1033, 1046-47 (D. Md. 1972), aff'd

sub nom, United States v. Giordano,469 F, 2d

522 (4th Cir. 1972), aff'd, 416 U.S. 505 (1974).

Under some circumstances, interception of one

hundred percent of conversations within a given

period of time has been held reasonable. See

United States v. Leta, 332 F.Supp. 1357, 1360

N.Y. (M.D. Penn. 1971) rev'd on other grounds

sub nom. United States v. Ceraso, 467 F.2d

647 (3rd Cir. 1972).

The minimization requirement of 18 U.S.C.

8 2518 (5) (1970) has been held satisfied if the re-

viewing court finds that, in the light of all the

facts and circumstances of the case, "the agents

have shown a high regard for the right of pri-

vacy and have done all they reasonably could to

avoid unnecessary intrusion," United States v.

Tortello, 480 F. 2d 764, 784 (2nd Cir. 1973),

cert. denied, 414 U.S. 866 (1973). The deter-

mination of the reasonableness of the agents' be-

havior requires a case-by-case analysis of the

minimization procedures adopted. See S. Rep.

No. 1097, 90th Cong., 2d Sess. 101, U.S, Code

Cong. & Admin. News 1968, 2190 (1968). Thus,

interception of n% of conversations may or may

not represent an unreasonable intrusion, depending

on the particular circumstances of the case, See

Leta, supra, 332 F. Supp. at 1360 n. 4.

It must be emphasized, however, that a

case-by-case determination is not the same as

an item-by-item analysis. An investigation of

the reasonableness of a pattern of behavior seems

to demand an examination of all the circumstances.

Thus,

An inquiry into possible noncompliance

with the minimization requirement is, by

its very nature, one that calls for an

examination of the totality of the monitor-

ing agents' conduct during the duration

of the authorized interception, Frag-

menting the minimization inquiry...

would force the court to adopt an un-

realistically narrow view of the issue,

thus making any assessment of the

overall reasonableness of the agents'

conduct a highly artificial exercise.

United States v. Scott, 504 F,, 2d 194,

197 (D, D.C, 1974), rev'd on other

grounds, 516 F.2d 751 (D. D.C. 1975),

cert.denied, 96S, Ct. 1519 (1976).

All Title Ill investigations are subject to

the minimization provision. Although some

cases speak of certain situations as not allowing

for minimization, see, e.g., Scott, supra, 516

F,2d at 758, the statute requires minimization

of all unauthorized interceptions. 18 U.S.C.

8 2518 (5) (1970). Since minimization means

"reduction to the lowest level possible, "

perhaps these cases meant to say that, under

certain circumstances, no reduction can be

made. The briefest reflection, however, should

reveal the distinction between a good faith attempt

to reduce the number of interceptions, which,

because of the nature of the investigation, results

in no change in the number of communications

actually seized, and a course of action involving

no attempt to minimize, which, of course,

yields the same result.

The intent of the investigating officers

has been identified as one of the factors to be

weighed in determining whether minimization has

taken place. See, e.g., United States v. James,

494 F.2d 1007, 1018 (D.D. C. 1974), cert. denied

sub nom, Jackson v, United States, 419 U.S.

1020 (1974). Although it has also been held that,

in those situations where minimization procedures

would have effected no decrease in the number of

conversations intercepted, the agents' intent not

to minimize is irrelevant, see Scott, supra, 516

F, 2d at 756, this position has been severely

critized. See United States v. Scott denying re-

hearing in 522 F, 2d 1333, 1334 (D.D.C, 1975)

(Robinson, J., dissenting). But the question

need not be resolved here, for there has been no

showing that proper minimization techniques would

not have resulted in the interception of fewer

conversations. In fact, the circumstances of

this case reveal a number of cogent reasons

why minimization procedures would have re-

duced the number of interceptions.

First, it must be borne in mind that this

case involved electronic eavesdropping rather

than the use of a telephone tap. Although both

investigative methods are subject to the mini-

mization requirement,

with a telephone tap, communications

are divided into discrete units which

Government agents can appraise in-

dividually and if believed to be innocent,

can cease intercepting. They can re-

sume their interception activities with

the activation of their equipment by

the next telephone call. This segre-

gation of communication does not

exist with electronic eavesdropping

{and in] this context Government

agents must be given a broader scope

for their interception. Appendix C,

pp. A. 38.

Conceding, arguendo, the validity of this

proposition, the Government should have re-

quested only, Judge Young should have approved

only, and the agents should have utilized only a

telephone tap. The affidavit itself establishes

that, to the Government's knowledge, Petitioners

and others engaged in illegal gambling activities

over the telephone. See Appendix B, pp. A. 30-

A. 37. Surely the spirit, if not the letter, of

Title Ill prohibits the Government from first

using investigative techniques more intrusive

than reasonably necessary only later to blame

the ineffectiveness of minimization procedures

on the techniques themselves.

Second, the fact that it was a conspiracy

under investigation did not relieve the Govern-

ment from its duty to minimize. The statute

requires minimization in all investigations. The

nature of the conspiracy, and more importantly,

the extent of the Government's knowledge of the

conspiracy prior to the institution of electronic

eavesdropping should affect the number of non-

pertinent conversations the Government may

properly intercept without violating the minimi-

zation provision. In this case, despite the

Government's contention that:

the purpose of the eavesdropping was not

so much to incriminate the known person

whose place of business was tapped as

to learn the identity of the co-conspirators

and to delineate both the contours and

interior workings of the conspiracy.

it is clear from examination of the affidavit

that the Government knew most of the interior

workings of the alleged conspiracy before the

electronic surveillance was instituted. See

Appendix B, pp. A.28-A.37. What is more,

the fact that the affidavit reveals that this infor-

mation was gathered through conventional

investigative techniques would seem to cast doubt

upon any possible Government contention that

further information of this nature could only

have been obtained through the use of extra-

ordinary investigative means. See Appendix B,

pp. A. 28-A. 37.

Third, the statutorily imposed system of

judicial checks and balances on Title III investi-

gations strongly implies that the Government

bears the burden of demonstrating that minimi-

zation has been carried out. Even those cases

which have held that the minimization provision

had been complied with where there had been

interception of all communications within a

given time period were able to so hold only

after thorough review of the interceptions

demonstrated that the Government had had

no practical alternative. See, e.g., Scott,

supra, 516 F, 2d at 756-58. Here, the Govern-

ment not only concedes the interception of virtually

one hundred percent of communications, but is

unable to demonstrate that this course was its

only practical option. Moreover, the Govern-

ment's inability to so demonstrate is directly

attributable to its violation of the recording

provision.

Finally, to the extent that this court

accepts the proposition that deliberate non-

recordation is tantamount to a failure to minimize,

it follows that the Government agents had a simple

minimization option open to them - turning on the

tape recorder.

The Government has pointed in this case

to four examples of what it calls minimization.

First, the Government has contended that the

fact that communications were intercepted only

when physical surveillance established that

London or one of two other named parties were

within the monitored premises at 1202 North

Charles Street indicates an attempt to minimize.

This contention must be evaluated in light of the

fact that 1202 North Charles Street was the loca-

tion of Mr. London's bail bonding business, and

that there were few, if any, occasions when others

were present while he was not, The Government's

"minimization effort, " at least in this regard,

amounted to a policy of not listening to conver-

sations only when no one was present. This can

hardly be called minimization.

As a second example of its minimization

attempts, the Government has pointed to its

noninterception of a privileged conversation between

Mr. London and his attorney. While Petitioners

concede that the Government's action here was

proper, it must be noted that this was the only

communication during the entire investigation that

was not intercepted.

[D Pspite the practical difficulties,

Congress intended "minimization"

under 8 2518 (5) to involve some-

thing more than the mere provision

for [not intercepting conversations

protected by] the limited attorney-

client privilege. '' United States v.

King, 335 F, Supp. 523, 543 (S.D.

Calif. 1971), modified, 478 F.2d

494 (9th Cir, 1973), cert. denied,

417 U.S. 920 (1973).

As a third example, the Government

has noted Judge Young's ongoing review of

the investigation, Aithough it is generally

true that where the judge who originally approved

the eavesdropping order plays an active role

in the effort to minimize, other courts passing

on the issue of minimization in the same case

will give considerable deference to the original

judge's participation, see, e.g., James, supra,

494 F, 2d at 1021, the extent to which Judge

Young actually participated in the minimization

process here must be questioned. While Judge

Young required and received progress reports

from the investigating agents every five days

during the course of the surveillance, there is

no evidence that the judge was apprised of the

fact that the agents were systematically not

recording the majority of the interceptions.

Finally, the Government has contended

that ‘in an attempt to minimize the invasion

of privacy upon the [Petition ], London, the

Government did not record those conversation

. « »- which were deemed to be not connected

with the gambling enterprise.'' Petitioners

cheerfully concede that the Government did in-

deed not record those conversations 'deemed"

nonpertinent, but Petitioners submit that the

Government's equation of nonrecordation with

minimization is nothing short of prepostercus,

First of all, the statute requires that

interceptions be minimized, The Government's

position, that nonrecordation is somehow

equivalent to minimization, can withstand scru-

tiny only if interception can be equated with

recording. "Intercept" is defined by the Act

as "the aural acquisition of the contents of

any wire or oral communication through the

use of an electronic, mechanical, or other de-

vice." 18 U.S.C. 8 2510 (4) (1970). This

definition clearly equates "interception" with

the listening to, monitoring, or hearing of the

communication either at the time the communi-

cation takes place or at a later time with, for

example, the use of a playback tape recorder.

United States v, Bynum, 360 F. Supp. 400, 408

(S.D.N. Y. 1973), aff'd., 485 F.2d 490 (2d Cir.

1973), vacated and remanded, 417 U.S. 903

(1974). “To record, " on the other hand, is de-

fined as "to commit to writing, to printing to .

inscription, or the like, '' Merriam-Webster

New International Dictionary (2d ed. 1948).

The distinction between interception and recor-

dation is confirmed by the statute itself;

The contents of any wire or oral

communication intercepted by any

means authorized by this chapter

shall, if possible, be recorded on

tape or wire or other comparable

device. 18 U.S.C. s 2518 (8) (1970)

(emphasis added).

In United States v. Bynum, supra, the court

accepted the Government's proposition that the

recording of a communication that had not been

heard by the Government did not constitute an

interception under the terms of the Act. Bynum,

supra, 360 F. Supp. at 408-09.! while Bynum

has been criticized for seemingly giving the

Government a license to record all communica-

tions, criticism has centered on the possibility

that Government agents could later surreptitiously

listen to previously recorded communications

that, even at the time of recording, were clearly

nonpertinent. See, e.g., Note, 26 Stan. L.R.

1411, 1415-17 (1974). Even those commentators

critical of Bynum seem to accept the proposition

that improper listening is the evil to be avoided;

they differ with Bynum only in their views of the

best way to avoid it.

Since recording is not equivalent to inter-

ception, it is difficult to understand how the

"minimization" of recording can be construed

as the minimization of interceptions, "The

'evil' to be limited by the minimization require-

ment is the listening to innocent calls". Bynum,

supra, at 409 (emphasis added).

1. Bynum was a wiretap case in which ali calls

were recorded but only pertinent calls were

monitored. Assistant United States Attorney

Charles B. Updike testified at a pretrial hearing

concerning the rationale behind complete record-

ation:

We were concerned that there should be a

full record with respect to all calls for two

fundamental reasons. One was the protection

of any innocent parties involved in the inter-

ception and the other was a preservation of

Listening to innocent calls is evil in the

sense that it constitutes an invasion of privacy.

Recording, on the other hand, serves to protect

a defendant's rights by allowing the court to

evaluate the totality of the agents’ behavior

through analysis of the recordings themselves.

Since the only protection a defendant has against

the violation of his constitutional rights by the

seizure of a particular communication lies in the

recording of that communication, to say that

communication x should not have been recorded

is to say all the more forcefully that communication

x should not have been intercepted. This principle

should be borne in mind in evaluating Judge Blair's

fir ding that

There was no way the agents in this case

could have fulfilled the mandate of the

for der ] without fairly continuous moni-

toring. Necessarily they were privy

to innocent conversations. To have

indiscriminately recorded all of these

would have been an unwarranted inva-

sion of the [{ Petitioners'] lawful

activity. See Appendix C, pp. A. 38.

(emphasis added).

And, of course, it should go without saying that

"indiscriminate" recording of interceptions is

1. (continued)

the calls themselves so that there could

be no accusations at a later time that the

Government had made selective recordings

in the conduct of this investigation. Bynum,

supra, 360 F. Supp. at 4ll.

exactly what is required by the statue. See

18 U.S.C. 8 2518 (8) (a) (1970).

The Department of Justice also seems to

believe that overhearing constitutes an inter-

ception. The wiretap instruction manual which

the Department distributes to attorneys who

supervise wire taps states: ‘The desirability

of recording the intercepted communication is

obvious. Since evidence of the intercepted

conversation would be admissible in future trials

it is preferable to produce the verbatim recording

rather than relying solely on the memory of the

agent who overheard the conversation. See U.S.

Dept. of Justice, Manual for Conduct of Electronic

Surveillance, 28 (1970).

Although the Government agents did not

testify concerning the contents of the unrecorded

interceptions, this does not mean that the Peti-

tioners were not prejudiced by the Government's

failure to record the greater part of the intercepted

communications, The fact that the monitoring of

a particular communication ultimately yields a

segment of incriminating conversation, does not,

of course vindicate the interception. See King,

supra, 335 F. Supp. at 541-42, Defendants

must be allowed to argue that the Government

should not have been listening to the conversation

in the first place, and so should never have heard

the incriminating portion. 18 U.S.C. 8 2518 (8)

(d) (1970) seems to clearly indicate the intention of

Congress that the recordings themselves would

be used by the defense. Since a failure to mini-

mize must be determined ghrough an examination

of the totality of the agents' behavior, see Scott,

supra, 504 F, 2d at 197, selective recording

frustrates this congressional intention by

hampering defense efforts. And where, as

here, the Government deliberately leaves

the majority of interceptions unrecorded,

Petitioners face and unreasonable burden in

their attempt to demonstrate a failure to

minimize.

The legislative hsitory of the recording

provision merely paraphrases the statute and

gives no clue to the framers’ intent. But

commentators have assumed that the probable

purpose of this section was to prevent the situa-

tion in which Government agents overhear

communications but fail to record them, leaving

defendants no way to attack the agents' recollec-

tions at trial. See, e.g., Note, 26 Stan. L. R.

1411 (1974). Petitioners questioning the adequacy

of minimization will usually be most concerned

with the number, type, and duration of non-

pertinent communications seized, yet these are

the very communications the Government has

chosen not to record. To judicially approve

such tactics is to emasculate the minimization

requirement and grant the Government a virtual

license to listen to all conversations in the future.

Minimization procedures must usually be

adopted by agents on an ad hoc basis to be re-

viewed by the court after the fact. Cf, Bynum,

supra, at 407. Since judicial review thus forms

an indispensible part of the minimization process,

it is only commonsensical that a procedure that

serves to obfuscate the court's inquiry into the

adequacy of minimization can hardly be

minimization itself. The recording proce-

dures adopted by the Government agents in

this case have made proper review nearly

impossible. Because such review is so

important to the protection of the Petitioners‘

constitutional rights, the agents can hardly

be said to have acted with "a high regard for

the right of privacy," Tortello, supra, 480

F’, 2d at 784, and, therefore, highly selective

recordation is, at least arguably, the logical

equivalent of nonminimization per se.

The matter may be put another way.

Since Title III states that all interceptions

are to be recorded if possible, the interception

of communications that could be recorded but

are not is not authorized by the Act. Since the

Act also states that unauthorized interceptions

are to be minimized, the Government must

keep the number of unrecorded interceptions to

aminimum. Thus, for example, were the

Government agents to discover that their record-

ing equipment had ceased functioning, the agents

would appear to be obliged to shut down their

monitoring equipment until the recorder was

repaired, The deliberate interception of

deliberately nonrecorded communications would

thus seem to be a direct violation of the minimi-

zation provision.

Although it is true that the vast majority

of cases that have dealt with minimization have

focused on the pertinency of communications seized,

the statute requires that the interception of all

communications not authorized by the Act be

kept toa minimum. Since the statute also

requires that intercepted communications be

recorded, a failure to limit the number of

interceptions not recorded would seem, by the

plain meaning of the statute, to be a proper

subject for a minimization inquiry. Petitioners

contend that minimization has been linked with

pertinency for the sole reason that almost every

Title Ill investigation yields a portion of non-

pertinent interceptions, thus giving defense

counsel an opportunity to claim failure to

minimize. Selective recordation, on the other

hand, has not been connected with minimization,

but for a different reason. Since the Government

usually records all interceptions as a matter of

course, this issue has rarely, if ever, been

litigated.

2. Substantial noncompliance with the

minimization provision mandates total suppression

of the evidence.

Once a court determines that the Government

has failed to minimize unauthorized interceptions

under a Title III investigation, the issue of the

Petitioners remedy must be resolved. There is

little authority in this area and the question has

been termed "probably the most difficult this

court has ever been asked to decide. King, supra,

335 F, Supp. at 543. Nevertheless, it is hoped

that the following analysis, drawn in part from

Judge Miller's insightful discussion of the issue

in United States v. Focarile, 340 F. Supp. 1033

(D, Md, 1972), will be of some assistance,

A court faced with a defendant in a criminal

proceeding who has been aggrieved by a Title III

investigation conducted in noncompliance with the

minimization provision has two basic alternatives:

partial or total suppression of the evidence.

Although 18 U.S.C. § 2520 (1970) allows an aggrieved

party to maintain a civil suit against the investigating

officers, such suits are notoriously ineffective as

a remedy for those already injured by illegal police

activity or as a deterrent against such activity in

the future. See, e.g., Lankford v. Gelston, 364

F, 2d 197 (4th Cir, 1966). Whether partial suppression

is any more effective, either remedially or prophy-

lactically, is questionable.

United States v. King, supra, 335 F, Supp.

523, is perhaps the leading case holding that a

violation of the minimization provision demands

only partial suppression of the evidence. This

decision was reached largely through analogizing

the "statutory exclusionary rule" of 18 U.S. C.

§ 2515 (1970) to the judicially imposed exclusionary

rule used to suppress evidence obtained in violation

of the fourth amendment, See King, supra, at 544,

Because the exclusionary rule hag traditionally

been used to suppress all the frui.s of a search and

seizure Only where the search has been so unrea-

sonable as to violate the fourth amendment, Judge

Nielsen held that the statutory violation in King

required only partial suppression. The United States

Supreme Court, in the recent case of United States

v. Giordano, 416 U.S. 505 (1974), has repudiated the

reasoning, if not the holding, in King by finding that

statutory as well as constitutional violations may

require total suppression of evidence under Title III.

The words "unlawfully intercepted"

are... not limited to constitutional

violations, and we think Congress

intended to require suppression

where there is failure to satisfy

any of those statutory requirements

‘that directly and substantially imple-

ment the congressional intention to

limit the use of intercept procedures

to those situations clearly calling

for the employment of this extra-

ordinary investigative device. 416

U.S. at 527 (1974) p

It must also be noted that while Judge Nielsen

approved partial suppression in King, he provided

a strong argument against such approach in the

King opinion itself:

[T Jhe limited system which Title III

creates is designed to prevent unrea-

sonable invasions of privacy, not to

repair them, and. . . if those limita-

tions are not voluntarily adhered to by

the Government, total suppression may

well prove to be the only feasible solution.

King, supra, at 545.

U.S. v. Scott, 331 F. Supp. 233 (D. D.C.

1971), is the first case to hold that a failure to

minimize requires total suppression. Although

this opinion was vacated, remanded, and eventually

reversed on the ground that Judge Waddy had used

an improper standard in determining whether the

Government had indeed failed to minimize, the

holding on the remedy issue was never overruled

In concluding that all interceptions should be

suppressed because of the Government's failure

to minimize, Judge Waddy said:

If this court were to allow the Govern-

ment agents to indiscriminately inter-

cept every conversation. . . and to

continue monitoring . . . when it be-

comes Clear that [the conversations]

are not related to the authorized ob-

jectives of the wiretap and in violation

of the limiting provisions of the order

such order would become meaningless

verbiage and the protections to the

right to privacy outlined in Berger and

Katz would be illusory. 331 F. Supp. at

248,

In Focarile, Judge Miller drew upon the

reasoning in United States v. Leta, supra, 332

F, Supp. 1357, in nolding that the Government's

failure to comply with the minimization provision

required total suppression. Leta began with the

premise that the seizure of items which had not

been particularly described did not per se vitiate

the entire search; the entire search is vitiated

only if it is unreasonable. Leta went on to imply

that, with regard to electronic surveillance, rea-

sonableness has been congressionally determined

by the standards of Title III. Thus, if electronic

surveillance does not comport with the mandates

of Title III, it becomes prima facie unreasonable.

See 332 F. Supp. at 1360.

Judge Miller agreed with the result reached

by Leta and Scott. His reasoning in doing so speaks

for itself:

The minimization requirement of Section

2518 (5) would be illusory if it were

enforced on an item-by-item basis by

means of suppressing unauthorized seiz-

ures at trial after the interception is a

fait accompli. Minimization as required

by the statute must be employed by the

law enforcement officers during the

surveillance, not by the court after

the surveillance . . . While partial

suppression under Rule 41 (c) F.R.

Crim. P. may act as a sufficient pro-

phylactic measure in the context of

seizures of physical objects, the

seizure of conversations differs so

significantly as to warrant a stronger

safeguard. Knowing that only "innocent"

calls would be suppressed, the Govern-

ment could intercept every conversation

during the entire period of a wiretap

with nothing to lose by doing so since

it would use at the trial only those con-

versations which had definite incrimi-

nating value anyway, thereby completely

ignoring the minimization mandate of

Title III, A conversation once seized

can never truly be given back as can

a physical object. 340 F. Supp. at 1047.

3, The Government's deliberate noncompliance

with the recording provision mandates total suppression

of the evidence.

Finally, Petitioners contend that the

Government's deliberate and willful violation

of the recording provision, 18 U.S.C. 8 2518

(8) (a) (1970), is, in itself, sufficient to mandate

total suppression of the evidence. Total suppression

has been sanctioned as the appropriate remedy

not only for violations of the minimization provision

but also for situations where inventory notice was

not extended, see, e.g., United States v. Donovan,

17 Crim, L. Rptr. 2029 (S.D.N. Y. 1974), aff'd,

508 F. 2d 837 (6th Cir. 1975), where the application

order failed to identify a known offender whose

communications were to be intercepted, see, e. g.>

United States v. Bernstein, 509 F, 2d 996, 1001-02

(4th Cir, 1975); and where the Title III application

had not been authorized by a proper party, see

United States v. Giordano, 416 U.S. 505, 508 (1974).

Of course, not every violation of Title III

results in an unlawful interception sufficient to

mandate total suppression. As Judge Butzner

noted in the recent case of United States v. Bern-

stein, 509 F.2d 996 (4th Cir. 1975):

A violation is material only if Congress

intended the statutory provision that was

not followed to be a "precondition to ob-

taining . . . intercept authority." Statu-

_tory preconditions, teaches the court,

"directly and substantially implement

the congressional intention to limit the

use of intercept procedures to those

situations clearly calling-for the em-

ployment of this extraordinary inves-

tigative device." In contrast, violation

of a statutory provision that does not

"affect the fulfillment of any of the

reviewing Or approval functions re-

quired by Congress, " does not render

an interception unlawful within the

meaning of 8 2518 (10) (a) (i). Whether

a statutory provision is a precondition

to a valid order depends, then, on its

role in the Act's system of restraints

on electronic surveillance. 509 F, 2d

at 999

The determination of whether there has

been proper minimization as required by Title

III is clearly within the purview of the court's

reviewing function. In fact, since minimization

procedures need not be set out in the interception

order, see Note, 26 Stan. L.R. 14ll, 1432 n.

107 and cases there cited (1974), minimization

standards are more often reviewed by the court

after the fact than they are approved or dis-

approved in advance. In evaluating minimization

the totality of the interceptions must be examined

and, of course, recordings of all the interceptions

or transcriptions made therefrom form the proper

point of inquiry, see United States v. Bynum, 475

F.2d 832, 837 (2d Cir. 1973). A failure to record

any significant segment of the interceptions thus

seriously and materially affects the fulfillment of

the court's reviewing function. And a failure to

record eighty percent of interceptions so frag-

mentizes the court's inquiry as to transform its

assessment of the minimization question into a

highly artificial exercise.

In Bynum, supra, 475 F, 2d 832, the court

remanded the case to the district court for

evidentiary hearings on the issue of minimization.

The circuit court was itself unable to determine

if the Government had complied with Title III

minimization requirements since"... all

conversations were recorded but only those

presumably inculpatory were ever transcribed,

The mischief lies in the interception obviously

and what was not transcribed remains unknown. "

475 F, 2d at 832 (emphasis added). This court

also finds its review hampered by an incomplete

record, but, unlike the Bynum case, the record

here must remain incomplete.

Furthermore, a record that is deliberately

and selectively left incomplete is an edited record.

18 U.S.C, 8 2518 (8) (a) (1970) requires, inter

alia, that the recording "shall be done in such a

way as will protect the recording from editing or

other alteration. ' (emphasis added), Not

only are recordings composed of bits and pieces

of .aterceptions easier to edit than recordings of

entire interceptions, see Bynum, supra, but

selective recordation is itself tantamount to

editing. To "edit" is to modify by excisions,

curtailments or the like. Merriam-Webster

New International Dictionary (2d Ed. 1948),

Since to "curtail" is to reduce, Merriam-Webster

New International Dictionary (2d Ed. 1948), the

Government has in effect edited the tapes by reducing

the number of interceptions recorded to twenty

percent rather than one hundred percent as required

by the statute.

Here, the Government's willful and deliberate

nonrecordation of eighty percent of the total inter-

ceptions is a violation of the statute that has not

only affected the court's reviewing function but

32 A. 1

has made proper review nearly impossible. APPENDIX A

Petitioners submit that the blatant illegality

of the Government's action in carrying out OPINION OF THE UNITED STATES COURT OF

the interception order has rendered the entire APPEALS FOR THE FOURTH CIRCUIT

interception procedure unlawful, and mandates

total suppression of the evidence.

No. 76-1664

CONCLUSION United States of America Appellee,

In concluding, Petitioners herein respect- _—

fully request that this Honorable Court grant their

requested Writ of Certiorari for the reasons Julius Cottman Appellant.

contained herein, It is also requested by Petitioners

that this Honorable Court grant them leave to

adopt herein and include as a basis for their request ;

the Petition of Richard Genco, a co-petitioner to No, 76-1665

this cause. Mr. Genco and his attorney have 4.

agreed to allow Petitioners herein to adopt their

Petition and Petitioners herein likewise have no United States of America Appellee,

objection to allowing Mr. Genco to adopt the basis r

of their request. -y-

Respectfully submitted, Rufus Jones Appellant.

Harold I, Glaser

No. 76-16666

Richard M, Karceski

, : Aan.

Attorneys for Petitioners United States of America ppellee

-Vo=

Robert R. London Appellant.

a/k/a Fifi London

A, 2

Appeals from the United States District Court for

the District of Maryland, at Baltimore.

C. Stanley Blair, District Judge.

Argued January 10, 1977 Decided May 25, 1977

Before WINTER, CRAVEN* and BUTZNER,

Circuit Judges.

*Judge Craven died before preparation of this

opinion. However, following argument, he ex-

pressed agreement with this result.

WINTER, Circuit Judge:

Defendants, together with others, were

indicted by a federal grand jury on a charge of

violating 18 U.S.C. 8 1955 (conducting an illegal

gambling business). Defendants London, Jones

and Cottman were tried before a jury and found

guilty of violating the statute. Defendants Genco,

Himes, Shade and Clerkley were tried without

a jury and also found guilty as charged. These

appeals ensued, At trial, the various defendants

moved to suppress all incriminating evidence secured

A. 3

by wiretap. The district judge denied this

motion, holding that the government fully com-

plied with the terms of the federal wiretap statute.

The correctness of this ruling is the principal

issue On appeal. We affirm.

The one-count indictment alleged that four-

teen named defendants (including the seven who

now appeal), one Albert Isella, and others known

and unknown to the grand jury, were engaged in

an illegal numbers lottery business. The govern-

ment's evidence established that the operation was

a major "gambling lay off'' business. A "lay

off" operatim enables professional bookmakers to

diminish risk by re-betting or "laying off" large

bets with other gamblers. United States v. Box,

530 F. 2d 1258, 1261 (5 Cir. 1976); United States v.

Bernstein, 509 F.2d 996, 1002 n.14 (4Cir. 1975),

vacated, 45 U.S.L.W. 3583 (U.S, Feb. 28, 1977)

(No. 74-1486); United States v. Bobo, 477 F.2d

974 (4Cir. 1973), cert. denied sub nom,, Gray v.

United States, 421 U.S. 909 (1975). The proof

showed that London, Genco and Isella were partners

in overall control of the operation, with London

as the senior partner and Genco and Isella having

lesser, though substantial, interests. Himes was

the clerk and record keeper for the operation.

Shade, Clerkley, Cottman and Jones all owned

substantial books and regularly "laid off'’ heavily

bet numbers to the London enterprise through

Himes, who performed his duties by telephone

at his home.

A. 4

At trial, the government relied heavily

upon evidence secured through electronic sur-

veillance, Pursuant to orders signed by

Judges Harvey and Young of the district court,

FBI agents installed a microphone at London's

place of business and "pen register" and in-

tercepting devices at the Himes residence, 1

A "pen register" device is used to

trace telephone calls. A detailed ex-

planation of its use is found in United

States v. Caplan, 255 F.S. 805, 807

(E.D, Mich, 1966), After a substantial

number of calls were traced to premises

where it was reasonably knwon that

numbers gambling was being conducted,

the pen register was augmented by

an interception device.

The affidavits supporting the appli-

cations for orders establish that London's

place of business was an office where

much of the business was transacted in

person but that Himes apparently trans-

acted his business from his home by

telephone. Undoubtedly, this is why

the agents sought and were granted authority

to install a microphone in London's office

so that all conversations couls be monitored

while they sought only surveillance of

telephone calls at the Himes' residence.

A. 5

FBI agents monitored all conversations

at London's office whenever any of three partners

were present. Recordings were made of those

conversations dealing with gambling activities.

Logbooks were also maintained, indicating in

almost minute-by-minute fashion the identities

of persons known to be present, the nature of

the conversation then occuring, and the use of

recording apparatus (if any). This monitoring

lasted from August 24, 1974 until September 12,

1974,

FBI agents also monitored the use of a

telephorie at the Himes residence. A tape

recorder was activated each time an incoming

or outgoing call was initiated. Agents "spot

checked" each call to determine its nature.

If the call dealt with gambling, monitoring con-

tinued and the call would be taped in its entirety.

If the call dealt with personal matters, all

monitoring and recording would cease. A second

set of logbooks was maintained, indicating the

time, content, and recording (or non-recording)

of every call. This activity continued from

September 6, 1974 until September 24, 1974.

Il,

At trial, defendants moved the district

court to exclude all evidence secured by wiretap.

The motion was denied, Defendants contend that

the evidence should have been suppressed,

asserting allegedly fatal variances between govern-

ment conduct and the terms of the wiretap statute.

A. 6

Electronic eavesdropping by law enforce-

ment personnel is governed by the federal wire-

tap statute, Title III of the Omnibus Crime Control

and Safe Streets Act of 1968, as amended, 18 U.S.C.

8 2510, et seq. The wiretap statute was intended

to make an accommodation between competing

goals of crime control and protection of the right

to privacy, 2

2. Congress noted that wiretaps were

needed to combat the rise of organized

crime.

Victims, complainants, or witnesses

are unwilling to testify because of apathy,

fear, or self-interest, and the top figures

in the rackets are protected by layers of

insulation and direct participation in

criminal acts. Information received from

paid informants is often unreliable, and a

stern code of discipline inhibits the devel-

opment of informants against organized

criminals. In short, intercepting the

communications of organized criminals

is the only effective method of learning

about their activities.

(1968 }U.S. Code, Cong, & Ad, News, 2112,

-2159. At the same time, Congress realized

that unrestricted wiretapping would com-

pletely undermine traditional notions of

privacy.

The tremendous scientific and tech-

nological developments that have taken

A. 7

place in the last century have made

possible today the widespread use and

abuse of electronic surveillance tech-

niques... . No longer is it possible,

in short, for each man to retreat into

his home and be left alone. Every spoken

word relating to each man's personal,

marital, religious, political, or commer-

cial concerns can be intercepted by an

unseen auditor and turned against the

speaker to the auditor's advantage.

Id, at 2154,

A variety of controls are imposed on police

action, intended to "delineat [e] on a uniform basis

the circumstances and conditions under which the

interception of wire and oral communications may

be authorized." [1968 JU.S. Code, Cong. & Ad.

News 2112, 2153.

Defendants' initial contention is that the

wiretap orders, signed by Judges Harvey and Young,

were predicated upon an insufficient showing of

need. Under the wiretap statute, intercepted wire

or oral communication is rendered inadmissible

in evidence unless it was intercepted in compliance

with the statute. 18 U.S.C. 8 @ 2515, 2518 (10 (a).

The statute requires that the government apply

for a judicial order before electronic surveillance

may begin. 18 U.S.C. 8 2516. In addition, the

government is required to show, and the authorizing

judge must find, a compelling need for this type

of activity. 18 U.S.C. @ 6 2518 (1) (c), (3) (c).

Specifically, there must be a showing that ''other

A. 8

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. 8 2518 (1) (c). |

To meet the requirement of the statute,

the government, in the instant case, produced

two affidavits by FBI Special Agent John Huntley.

Each affidavit began by detailing the information

already known to the government, primarily

through the use of informers, and the reasons

why the informers were thought io be reliable.

The FBI was apparently well aware of the roles

played by London, Genco, Isella and Himes, In

addition, the FBI knew that certain premises

(London's office and Himes' residence) were

being used to conduct the gambling business.

However, the identities of many other participants,

including most bookmakers who regularly "laid

off'' bets, were not known. The affidavits concluded

with the following recitation:

NEED FOR INTERCEPTION

l. The confidential informants described

herein have categorically refused to testify in

open court for fear of their personal safety and

that of their families.

. 2. Normal investigative techniques are

unlikely to succeed:

(a) Without the testimony of the above-

mentioned informants it would be exceedingly

difficult to prove the complete nature of the

current gambling operation of Robert "Fifi"

A. 9

London, Albert Carmen Isella, Richard "Dick"

Genco, Robert Leroy Himes, Susan Himes,

Robert John Thibou, Melvin Eugene Brzostek,

Orva Elerson "Lucky" Robinson, Ambrose

Robinson and others as yet unknown.

(b) It is doubtful that a search warrant,

if obtained and executed, would result in obtaining

gambling records sufficient to show the complete

nature of this gambling operation. From my

experience and the experience of other Agents, I

know that gambling raids and searches of gamblers

and their gambling establishments have not in the

past resulted in the gathering of physical or other

evidence to prove all elements of the offenses. This

is particularly true in regards to evidence relating

tothe “lay-Off" part of a gambling operation. I

have found through my experience and the experience

of other Special Agents who have worked on other

gambling cases that gamblers frequently do not

keep incriminating records. If such records have

been maintained, usually gamblers, immediately

prior to or during the physical search, destroy

these records. Additionally, records that have

been seized in past gambling cases have generally

not been sufficient to establish all of the elements

of said offenses because such records are difficult

to interpret and many times are of no significance

without more complete knowledge of the gamblers

activities.

could be relied upon to truthfully ««stify to the

violation in question.

A. 10

(d) Infiltration of the gambling operation

by an undercover Agent does not appear to be

possible in this case but even if such infiltration

were possible, it would only be at the lowest

level of the operation which would not result

in evidence being obtained regarding involvement

of the backers and the lay-off part of the operation.

Nor would such infiltration, even if possible, ever

be expected to discover the full scope and extent

of the operation,

(e) Calling witnesses before the Grand

Jury would not result in the gathering of sufficient

evidence to uncover the full scope and extent

of the operation. Only those individuals integrally

involved in the operation at a high level have the

requisite knowledge regarding the full scope and

extent of the operation. Witnesses, even if

immunized, are reluctant to incriminate them-

selves and their close working associates, To-

gether their testimony would require immunization

and non-prosecution of those who are the principals

of the operation. But, even if obtained, their

testimony is not corroborated.

3. Due tothe manner in which the violations

are carried out, the interception of these commu-

nications is the only available method of investigation

which has a reasonable likelihood of securing the

evidence necessary to prove the commission of

this violation.

Defendants suggest that the affidavits fall

short of establishing the degree of need specified

in the statute. We disagree.

Cheol so ~~.

A ul

The showing of need made pursuant to

8 2518 (1) (c) is "to be tested in a practical

and commonsense fashion." [1968 JU.S. Code,

Cong. & Ad. News 2112, 2190. See United States

v. Armocida, 515 F.2d 29, 37-38 (3 Cir. ),

cert. denied, 423 U.S. 858 (1975); United States

v. James, 494 F, 2d 1007, 1015-16 (D.C. Cir.),

cert. denied, 419 U.S. 1020 (1974). Applying

this test, we find that the affidavits constitute

a sufficient basis from which the district

court could, and did, conclude that wiretaps

were essential to the success of the investigation.

Defendants urge that the affidavits are flawed

in that they clearly identify four principals (i.e.,

London,‘ Genco, Isella and Himes). While ample

evidence may have been available to arrest and

convict this foursome, the government is not

precluded from carrying the investigation further.

In particular, the government has a valid interest

in uncovering the names and locations of various

"backers", bookmakers, who regularly "lay

off" bets and thereby supply the organization with

capital. The situation is directly analogous to

that considered by the district court in United

States v. Staino, 358 F.S. 852 (E.D. Pa. 1973).

In Staino, the court considered atelephone "tap

which led to the arrest and prosecution of two

individuals dealing in counterfeit currency. The

telephone tap was authorized by the district judge

after review of an FBI affidavit. The affidavit

clearly established government knowledge of

defendants‘ role as conduits for the bogus currency.

Defendants ultimately sought to suppress all wire-

tap evidence, alleging that the affidavits set forth

A. 12

sufficient facts which could have led to their

conviction. The district court rejected this

argument.

Defendants argue that according to statements

in the affidavit, sufficient evidence existed prior

to the wiretap to convict them ]both. . . if that

evidence was shown to be true. But, although it

is likely that probable cause existed for these

arrests, it cannot be supposed that there was the

faintest reason to think that the trail ended there.

By its very nature, the illegal possession of and

dealing in counterfeit notes involves, in most

instances, many individuals who would be liable

as co-conspirators. And even though the investiga-

tive agents were able to uncover the first layer

of the operation, a substantial likelihood existed

that other persons were involved in the same en-

terprise. Plainly, normal investigative techniques

had ceased to be effective once the visible members

of the hierarchy, if one existed, were discovered.

To suppose that the investigation should have

terminated at this point is unrealistic. The men were

merely the tip of the fceberg; they could always

be replaced. In order to root out the offense, those

who were ultimately responsible -- individuals who

were the source of the counterfeit notes and who

placed them into circulation - - had tobe found...

Id. at 857. Here, it was vital for the government

to uncover the source of the "lay off" bets them-

selves, professional bookmakers who "fueled"

the operation and who would simply find replace-

ments once the four principals were swept away.

bess edie at. *

A. 13

Defendants attempt to distinguish Staino

by arguing that the four principals could have

led FBI agents to other participants, In parti-

cular, they point to a list of names kept by Genco

and apparently known to police. They suggest that

normal search and seizure or infiltration would

have produced the list, which in turn would have

revealed the names of all co-conspirators. This

issue is directly addressed in the affidavits and

the averments made therein are uncontradicted

by any facts of record. The government, not

unreasonably, concluded that searches in this

type of case are unproductive because gambling

records are habitually hidden, destroyed in

police raids, or written in special code. Infiltra-

tion was also rejected as impractical, The

government asserted that it sought information

concerning the highest levels of the conspiracy; in-

filtration would be possible only with regard to

the lowest levels and would be ineffective to uncover

the full scope and extent of the operation. Similar

declarations were accepted by this court in dealing

with another "lay off" business. United States v.

Bobo, 477 F.2d 974, 983 (4 Cir. 1973), cert.

denied sub nom., Gray v. United States, 421 U.S.

909 (1975). In Bobo, we concluded that statements

of the kind set forth in the government's affidavits,

untainted by any showing of inaccuracy or exagger-

ation, were sufficient to establish that searches

and infiltration {among the many techniques considered)

were poor substitutes for electronic surveillance.

Finally, defendants contend that the affidavits

are deficient in failing to discuss and eliminate

all possible alternatives to wiretapping. Defendants

A. 14

specifically note that Agent Huntley fails to

mention physical surveillance and observation .

of the four known principals. We reject this

argument.

Section 2518 (1) (c) offers two alternatives

to the government. It may show that traditional

investigative techniques have been tried and have

failed, or it may show that they are unlikely

to succeed. In cases construing the first alterna-

tive, the courts have made it clear that police need

not exhaust every conceivable technique before

making application for a wiretap. See, e.g.,

United States v. Feldman, 535 F.2d 1175, 1178-79

(9 Cir.), cert. denied, 45 U.S. L.W. 3345 (U.S.

November 8, 1976) (No. 76-113); United States

vy. Vento, 533 F.2d 838, 849 &nn, 15-16 (3 Cir.

1976); United States v. Robertson, 504 F. 2d 289,

293 (5 Cir. 1974), rehearing denied, 506 F, 2d 1056,

cert. denied, 421 U.S. 913 (1975). We think the

same logic is applicable to the second alternative;

and when applied, we think that the affidavit is

sufficient to demonstrate a need for the wiretap.

Defendants next contend that the govern-

ment violated the wiretap statute by monitoring

all conversations at London's office whenever

any of the three partners were present. Defendants

argue that such wholesale monitoring violates the

"minimization" requirement contained in the

statute. We find this contention to be without merit.

A. 15

The statute mandates that law enforcement

_ personnel refrain from intercepting communications

having little or no relation to the suspected offense:

Every order authorizing a wiretap .. .

shall be executed as soon as practicable

and shall be conducted in such a way

as to minimize the interception of

communications not otherwise subject

to interception under this chapter, .. .

18 U.S.C, § 2518 (5). This provision is intended

[ t] 0 prevent impriper invasion of the right of

privacy and to curtail the indiscriminate seizure

of communications, . . . .'' United States v.

Focarile, 340 F.S. 1033, 1044 (D. Md.), aff'd

sub nom., United States v. Giordano, 469 F.2d

522 (4 Cir, 1972), aff'd, 416 U.S. 505 (1974). 3

We believe that the requirement has been met in

the instant case.

3. The minimization requirement, along

with the rest of Title III, was drafted in

response to Supreme Court deciaions in

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

a as b. United States, 389 U.S, 347

1968 J]U.S. Code, Cong. °

2112, 2153, 2163, tr ocala

In Berger, the Supreme Court invalidated

a New York eavesdropping statute as uncon-

stitutional under the Fourth and Fourteenth

Amendments. Among the statute's infir-

mities, the Court noted a complete failure

to prevent indiscriminate wiretapping.

A. 16

The wiretap statute does not require that

all innocent communications be left untouched.

Congress recognized that legitimate investigations

3. (Continued)

(The New York statute ] authorizes the

"indiscriminate use" of electronic

devices specifically condemned in

Osborn [v. United States, 385 U.S.

323 (1966) ]. "The proceeding by search

warrant is a drastic one," Sgro v. United

States, 287 U.S. 206, 210, 77 L ed 260,

262, 53S. Ct. 138, 85 ALR 108 (1932),

and must be carefully circumscribed so

as to prevent unauthorized invasions of

"the sanctity of a man's home and the

privacies of life." Boyd v. United States,

supra, 116 US 616 at 630, 29 L ed 746,

at 751, 6S Ct 524. New York's broadside

authorization rather than being "carefully

circumscribed" so as to prevent unauthorized

invasions of privacy actually permits

general searches by electronic devices, .. >

388 U.S. at 58. Minimization and its companion

safeguards were designed to assure that

the order [ authorizing a wiretap} will link up

’ specific person, specific offense, and

specific place. Together {the provisions of

Title III Jare intended to meet the test of the

Constitution that electronic surveillance

techniques be used only under the most pre-

A. 17

cise and discriminate circum

tances

which fully comply with th " ’

‘ of particularity. me rane

; Rep No. 1097, 90th Cong., 2d Sess., 102 (1968)

ynum v. United States, cert denied, 423 U.S

952 (1975) (Brennan, J., dissenting).

would often uncover harmless conduct within the

eae of its unlawful counterpart. Accordingly

meres eres: merely provides that unnecessary

; S be minimized, or reduced to the smallest

egree possible. In testing compliance with this

nian or the courts have proceeded on a case-

y-case basis, invoking a standard of reasonablenes

See [1968] U.S. Code, Cong. & Ad. News, 2112 4

2192; United States v. Daly, 535 F.2d 434 441.

pa Cir. 1976); United States v. Armocida, 515 F, 2d

ss , 42 (3 Cir.), cert. denied, 423 U.S, 858 (1975):

nited States v. Quintana, 508 F.2d 867, 873-74 (7

-_ 1975); United States v. James, 494 F, 2d 1007

18 (D.C, Cir. ), cert. denied, 419 U.S. 1020 (1974)

The statute is deemed to be satisfied if "on the

whole the agents have shown a high regard for the

right of privacy and have done all they reasonabl

could to avoid unnecessary intrusion. " United

States v. Armocida, 515 F.2d 29, 42 (3 Cir.)

cert. denied, 423 U.S. 858 (1975), quoting from

= the gare v. Tortorello, 480 F.2d 764, 784

r.), cert. denied, 414 U.S. 866 (19 ) -

phasis in the original). orate

In analyzing a given case, the federal courts

A. 18

have considered three principal factors: (1) the |

nature and scope of the alleged criminal enterprise;

(2) the government's reasonable expectation as

to the content of, and parties to, the conversations;

and (3) the degree of judicial supervision while

the wiretap order is being executed. See United

States v. Daly, 535 F.2d 434, 441-42 (8 Cir. 1976);

United States v. Vento, 533 F.2d 838, 852-53

(3 Cir, 1976); United States v. Scott, 96 F.2d

751, 758-59 (D.C. Cir.), rehearing denied, 522

F. 2d 1333 (1975), cert. denied, 425 U.S. 917 (1976);

United States v. Armocida, 515 F.2d 29, 44-45

(3 Cir.), cert. denied, 423 U.S, 858 (1975); United

States v. Quintana, 508 F.2d 867, 874-75 (7 Cir.

1975). When we consider each factor, we cannot

conclude that the government's conduct violated

the statute.

When law enforcement officials are confronted

with large, far-flung and on-going criminal

activity involving multiple parties, they are afforded

greater latitude in conducting wiretaps. The

Seventh Circuit, in considering a drug conspiracy,

held that

[ 1 Jarge and sophisticated narcotics con-

spiracies may justify considerably more

interception than would a single criminal

episode. This is especially so where, as

here, the judicially approved purpose of

the wiretap is not so much to incriminate

the known person whose phone is tapped

as to learn the identity of far-flung con-

spirators and to delineate the contours

of the conspiracy.

A. 19

United States v. Quintana, 508 F.2d 867, 874

(7 Cir. 1975). In fact, the legitimate investigation

of conspiracies may necessitate the interception

of all or almost all communications over a given

period of time. See United States v. Chavez, 533

F.2d 491, 493-94 (9 Cir.), cert. denied, 44 U.S. L.W.

3685 (U.S, June 1, 1976) (No. 75-6685); United

States v. Manfredi, 488 F,2d 588, 600 (2 Cir. 1973),

cert. denied, 417 U.S, 936 (1974); United States v.

Bynum, 485 F,2d 490, 500-02 (2 Cir. 1973), vacated

on other grounds, 417 U.S. 903 (1974), on remand, 386

F.S. 449 (S.D. N.Y. 1974), aff'd, 513 F.2d 533

(2 Cir.), cert. denied, 423 U.S. 952 (1975); United

States v. Cox, 462 F.2d 1293, 1300-01 (8 Cir. 1972),

cert. denied, 417 U.S. 918, rehearing denied, 419

U.S. 885 (1974).

Although defendants were charged with the

substantive crime of illegal gambling rather than

a narcotics or other type of conspiracy, the reasoning

advanced in Quintana applies with equal force. The

government's proof established a far-flung, continuous

criminal operation involving many persons, known

and unknown. The purpose of the wiretap was not to

ensnare the known principals. The government was

p marily (and justifiably) interested in detecting

the hidden members of the "lay off" operation --

those who supported it and who could be expected

to support another ff only the principals were success-

fully prosecuted. As such, continual monitoring over

a three week period did not offend the statute.

By analyzing the government's expectations,

courts attempt to determine whether sufficient ad-

vance knowledge was available to tailor the

A. 20

minimization efforts. Did the government know

the identities of all suspects? Were police

familiar with the timing or patterns of certain

conversation, so as to distinguish between

innocent and incriminating speech? See United

States v. James, 494 F.2d 1007, 1020 (D.C. Cir.),

cert. denied, 419 U.S. 1020 (1974). In the instant

case, FBI personnel did not know the identities

of all participants inthe "lay off" system. There-

fore the monitoring agents could not assume that

certain conversations with certain individuals would

clearly be irrelevant. Additionally, the govern-

ment chose to utilize electronic eavesdropping

rather than a telephone tap. Telephone taps

enable police to divide communications into dis-

crete units, which can then be assessed on an

individual basis. If a call is personal in nature,

interception may cease, subject to resumption

when another call is initiated. 4 Electronic

eavesdropping does not allow this degree of

selectivity. Conversation may range over many

subjects, shifting instantaneously and without warning.

Because of this uncertainty, we cannot say that

anything less than continuous monitoring would

suffice, 5

4, In fact, this procedure was utilized in

monitoring calls at the Himes residence. As

noted, supra, agents "spot checked” each call

to determine its essential character. All

monitoring and recording would cease if the

call dealt with personal matters.

5. We also note that many of the conver

sations at London's office were in code.

A. 21

A third and final consideration is the degree

of judicial supervision while the wiretap order is

(continued)

Special codes have continually caused

problems for law enforcement personnel,

especially when dealing with narcotics

conspiracies. See, e.g., United States v.

James, 494 F.2d 1007, 1019 (D.C. Cir. )

cert. denied, 419 490, 501 (2 Cir. 1973),

vacated on other grounds, 417 U.S. 903

(1974), on remand, 386 F.S, 449 (S. D.

N.Y. 1974), aff'd, 513 F.2d 533 (2 Cir.),

cert. denied, 423 U.S. 952 (1975); United

States v. Cox, 462 F.2d 1293, 1300-01

(8 Cir. 1972), cert. denied, 417 U.S. 918,

rehearing denied, 419 U.S. 885 (1974);

United States v. Sisca, 361 F.S. 735, 744

(S.D.N. Y. 1973), aff'd, 503 F.2d 1337

(2 Cir.), cert. denied, 419 U.S. 1008 (1974).

Federal courts have traditionally

allowed a greater degree of monitoring

when suspects use specialized codes or

jargon. See United States v. Armocida,

515 F.2d 29, 44 (3 Cir.), cert. denied,

423 U.S. 858 (1975); United States v. James,

494 F., 2d 1007, 1019 (D.C. Cir.), cert.

denied, 419 U.S. 1020 (1974). But see

Note, Minimization of Wire Interception:

Presearch Guidelines and Postsearch

Remedies, 26 Stan. L. Rev. 1411, 1419 n.: 42

(1974) (suggesting that the use of codes or

jargon should not be invoked to justify

departure from the minimization require-

ment.

Defendants! third and final contention deals

with the use of recording equipment. Defendants

argue that the government was required to record

all conversations at London's office, rather than

a portion dealing with alleged gambling activities.

We agree, but we do not »elieve that in this case

reversal of the convictiv “ is warranted.

The wiretap statute provides that

[ft Ihe contents of any wire or oral

communication intercepted by any

means authorized by this chapter

shall, if possible, be recorded on

tape or wire or other comparable

device. The recording of the con-

tents of any wire or oral communi-

cation under this subsection shall

be done in such way as will pro-

tect the recording from editing or

other alterations.

18 U.S.C. 8 2518 (8) (a). The statute does not

contain discretionary language; it is an absolute

command, Interceptions "shall" be recorded,

if "possible. "6 As another federal court has

noted, "the wiretap statute requires the recordation

of intercepted communications by any means author-

ized by the chapter, ...'' United States v.

6. S. Rep. 90-1097; [1968]U.S. Code,

Cong. & Ad. News 2112, 2193 states that

§ 2518 (8) (a) requires recording if "prac-

ticable. See text infra.

A, 23

Buckhanon, 374 F.S. 6ll, 615 (D. Minn. 1973)

(emphasis in the original),7 Here, the govern-

ment has made no attempt to justify its failure.

It has not demonstrated that recordation was

impossible. We turn then to consideration of

whether this omission required the suppression

of all wiretap evidence and consequent reversal

of the convictions. We hold that it does not.

The statute expressly prohibits the use

at trial, and at certain other proceedings, of

the contents of any intercepted wire communi-

cation or evidence derived therefrom "if the

disclosure of that information would be in vio-

lation of this chapter. "’ 18 U.S.C. 6 2515. The

circumstances which require suppression under

7. In Buckhanon, defendants, charged

with possession of heroin with intent to

distribute and with conspiracy to possess

and distribute heroin moved to suppress

certain evidence procured by electronic

surveillance, One of the arguments con-

cerned recordation of the communications

intercepted. Defendants complained that

the judicial order, authorizing the wire-

taps, did not provide for recordation.

The district court countered by noting

that recordation was required under the

statute and not by virtue of court order.

A. 24

8 2515 are, inturn, set out in 8 2518 (10) (a):

(i) the communication was unlawfully

intercepted;

(ii) the order of authorization or approval

under which it was intercepted is in-

sufficient on its face; or (iii) the in-

terception was not made in conformity

with the order of authorization or

— approval.

Only the first category is relevant to this case, since

there is no contention that the orders were insuffi-

cient and it is manifest that the duty to record is

imposed by the statute itself and not by judicial .

order. We must decide whether the communications

introduced at trial, constituting the recorded con-

versations at London's office, were “unlawfully

intercepted" because of the failure to record other

dialogue between the co-conspirators.

Resolution of that issue depends upon three

Supreme Court decisions: United States v. Donovan,

45 U.S. L.W. 4115 (U.S. January 18, 1977); United

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

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

decisions hold that " not] every failure to comply

fully with any requirement provided in Title III

would render the interception of wire or oral

communications 'unlawful.' " United States v.

Chavez, 416 U.S. 562, 574-75 (1974). Rather,

suppression is required only for a "failure to

satisfy any of those statutory requirements that

directly and substantially implement the congress-

ional intention to limit the use of intercept pro-

cedures to those situations clearly calling for

A. 25

the employment of this extraordinary investigative

device.’ United States v. Giordano, 416 U.S. at

527. In other words, the violation must substan-

tially impinge upon Fourth Amendment values

sought to be protected by Congress in restricting

and rendering uniform the use of wiretaps.

The recording provision, contained in 8 2518

(8) (a), was enacted to serve an evidentiary function.

Congress apparently realized that testimony by

monitoring agents of what they heard would be open

to attack on grounds of hearsay, failure of recollec-

tion and bias. Tape recordings, on the other hand,

would be the best evidence and would be almost

irrefutable if their authenticity and physical integ-

rity were guaranteed. Accordingly, intercepted

communications were to be recorded, if at all

possible, and introduced in their recorded form.

The legislative history of 8 2518 (8) (a),

though sparse, supports this view of the statute.

Paragraph (8){ of 8 2518 ] sets out safe-

guards to insure that accurate records

will be kept of intercepted communica-

tions.

Subparagraph (a) requires, if practicable,

that the communication be recorded on

tape, wire or other comparable device.

The recording must be made in such a

way as will protect it insofar as possible

from editing or alteration. Appropriate

procedures should be developed to safe-

guard the identity, physical integrity,

and contents of the recordings to insure

their admissibility in evidence.

A, 26

[1968 ]}U.S. Code, Cong. & Ad, News 2112, 2193.

In United States v. Daly, 535 F. 2d 434, 442 (8

Cir. 1976), the Eighth Circuit has indicated that

its view of the purpose of the statute is to ensure

the admissibility of intercepted communications

at trial.

In sum, we do not think that the recording

provision was intended to limit the use of wire-

tapping so as to preserve rights of privacy.

Recordation is required to insure that the product

of surveillance will be received under traditional

rules of evidence. There is no indication that

8 2518 (8) (a) was intended to or could fulfill the

same function as exhaustion of investigatory

procedures, judicial authorization and review,

and minimization in protecting an individual's

right to privacy.8 It follows that a failure to

record, though admittedly a violation of the

statute, does not lead to suppression and rever-

cal of the convictions. This result is dictated by

the decisions in Donovan, Chavez, and Giordano,

8. In a proper case, we can visualize

that, aside from protection of rights of

privacy, complete recording could

benefit an accused, as for example where

an accused asserts that a recording of

an incriminating statement was offered

in evidence out of context so as to mag-

nify its incriminating effect by omitting

related mitigating statements. But, in

the instant case, defendants do not

allege or demonstrate that any of the

recerded communications were distorted

or taken out of context. While recordings

A, 27

IV.

London, Jones and Cottm

additional contention regarding pai =

structions given by the district court. We

think that the charge, read as a whole, was

unexceptionable and the contention warrants

no extended discussion on our part.

AFFIRMED,

8. (continued)

might be useful also to buttress a claim

that minimization was not followed, such

an argument is unavailing here. Because

of (1) the conspiratorial nature of the

offense charged; (2) the inability of

monitoring agents to predict the nature

of the conversations intercepted; and

(3) the degree of judicial supervision

involved, we have held that continual

surveillance of London's office was

proper. The same reasoning applies

to wiretapping efforts at the Himes‘

residence, the only other use of electronic

surveillance before us.

A. 28

APPENDIX B

FACTS AND CIRCUMSTANCES OF SPECIAL

AGENT JOHN D. HUNTLEY, JR., EXCISED FROM

THE AFFIDAVIT

On May 25, 1974, informant number one

advised Special Agent David E. Faulkner of the

Baltimore, Maryland Field Office of the Federal

Bureau of Investigation, who advised your affiant

that as of May 25, 1974, Robert "Fifi" London,

Richard "Dick" Genco, and Albert Isella are in

partnership in the major numbers lay-off opera-

tion for the Baltimore area. Informant number

one also advised that London has a 75 percent

interest in this operation while Genco and Isella

share a 25 percent interest. Informant number

one learned this information through his direct

conversations with Albert Isella during the prior

week,

Informant number one advised your affiant

on June 24, 1974, that as of that date Isella makes

at least one "lay-off" call daily between 3:00 and

3:30 p.m. Isella makes this call toa numbers

backer who lays-off to Isella. Informant number

one also stated that as of June 24, 1974, the

backers of the illegal numbers operation settle

up their accounts with the lay-off people between

Monday and Wednesday of each week foi the pre-

vious week's work. Some of the backers appear

personally at London's office in the basement of

A. 29

1202 North Charles Street for the purpose of

discussing the financial status of their accounts.

Informant number one obtained this information

from a backer involved in this operation.

Informant number one advised that on Wed-

nesday morning, May 22, 1974, Richard Genco

was observed by him in Robert London's office

in the basement of 1202 North Charles Street

and that he had learned from one of the partners

involved in the illegal gambling business that

Genco and London had a conversation in the office

regarding settling up the previous week's "lay-off"

Informant number one advised that Albert Isella

advised him that as of May 22, 1974, he personally

goes to London's office on Charles Street in the

mornings during the first of the week to discuss

with London matters that arise in relation to the

lay-off",

On July 17, 1974, informant number one

advised your affiant that on July 13, 1974, the

lay-off operation headed by: London, Isella and

Genco had incurred a substantial loss as a result

of heavy wagering on the number "121" which was

the winning number for the day,

Informant number one further advised that

he learned from a backer who lays off to London's

operation that on Monday, July 15, 1974, certain

numbers backers appeared personally at London's

office in the basement of 1202 North Charles Street,

Baltimore, Maryland, and collected money directly

from London to cover winning wagers on the number

121. Albert Isella also went to London's office at

A. 30

1202 North Charles Street, Baltimore, Maryland

on the morning of July 15, 1974, in order to ob- |

tain cash from London to pay other backers who

do not have access to London directly. This

source advised that London keeps a tally slip

on his person and when one of the backers appears

to settle up London takes the backer into his

office in the basement of 1202 North Charles Street

to discuss the lay-off.

On June 19, 1974, Special Agent Arthur 5.

Hamilton advised your affiant that on that date

informant number two had advised that Albert

Isella is currently involved in a major lay-off

business for the Baltimore area with Robert

"Fifi'’ London.

Informant number two also advised that as

of June 19, 1974, Isella settles up with London

for the lay-off every Monday morning between

approximately 10:30 a.m. and 12 noon at London's

office at 1202 North Charles Street, Baltimore,

Maryland.

Informant number two is able to furnish

this information as a result of his association

with principals of this particular gambling op-

eration and from having been present during one

such meeting between Isella and London at 1202

North Charles Street.

Informant number three advised your affiant

on May7, 1974, that Richard Genco and Robert

'rifi'’ London are currently conducting the major

gambling "lay-off" operation for the Baltimore area.

Informant number three has learned this information

A. 31

through conversations with Genco during the

past week regarding the "lay-off" business.

Informant number three advised that as of this

date an unknown male will call the individual

numbers backers on a daily basis between

the hours of 1:00 and 3:30 p.m. in order to

accept lay-off bets. Informart number three

stated that Genco will settle up with certain

individual backers on Monday, Tuesday and

Wednesday evenings for the previous week's

lay-off bets. The settling up involves an ex-

change of money only and the backer is gen-

erally advised in advance what he owes or what

is owed to him for the previous week's work.

Informant number three further advised on

May 23; 1974, that during the past week he

has observed that Genco keeps a list of numbers

accounts in his automobile in the event the

backers question what is owed. Informant

number three also advised that from his per-

sonal observations this list contained code

names for at least one dozen numbers backers

and that the total tally for the previous week's

lay-off for that particular list was approximately

$20, 000. 00.

Informant number three advised on

June 3, 1974, that he had learned through con-

versations with Melvin Eugene Brzostek which

occurred during May, 1974, that Brzostek is the

backer of a large numbers operation handling

approximately twelve writers. Informant number

three advised that he had learned from Richard

Genco during the same period that Brzostek is

laying off to Genco,

A, 32

Informant number three further stated

that he knew through personal contact with

Genco that Genco would contact London in

order to change the track from which the

winning number for the day would be deter-

mined for the day would be determined for the

Baltimore area. Informant number three ad-

vised that it is the custom in the gambling

community in Baltimore for this type of change to

be made by the principal figure in the "lay-off"

business. Informant number three also advised that

he has learned through conversations during the

last month with numbers backers who lay-off to

Albert Isella that Isella is also a partner in the

lay-off operation with London and Genco.

Informant number three advised your

affiant on July 18, 1974, that Richard Genco

had settled up with various backers during the

first half of this month, This source further

advised that he has learned from Genco that

Genco, London and Isella are currently partners

in the lay-off operation. This source advised

that through his conversation with Genco during

the past week and observations made by infor-

mant number three in London's office in the

basement of 1202 North Charles Street during

the past month that certain backers settle up

at London's office with London personally while

other backers settle up either with Genco or

Isella at other locations. The source further

advised that 121 had been the winning number for

Saturday, July 13. 1974, and that London, Genco

and Isella had taken a substantial loss on "lay-off"

A, 33

from individual backers. As a result of this

it had been necessary for London, Genco and

Isella to get money to various backers who had

laid-off" this number to them. The source

further advised that he had also been told by

Genco that Melvin Eugene Brzostek continues

as of this date to "lay-off" heavily bet numbers

from his operation to Genco,

Informant number four advised your affiant

on June ll, 1974, that he had learned through

conversations with Orva Elerson " Lucky"

Robinson during the past week that Robinson's

numbers operation, which through personal

observation of Robinson's operation he estimated

to be in excess of $16, 000.00 a week, was laying

off to Robert "Fifi" London. This source further

advised that he had learned during the past week _

through individuals involved in Robinson's numbers

operation that "Lucky" Robinson's brother,

Ambrose Robinson, is also presently involved as

a backer in an illegal numbers lottery and is

possibly connected with his brother "Lucky's"

operation,

Special Agent John C. Bonner advi

affiant that on June 20, 1974, informant rane bm :

five had advised him that Ambrose Robinson was

currently the backer of a major numbers lottery

operation which lays-off between $10, 000.00 and

$12,000.00 a week to Robert "Fifi" London.

This source learned this information through

conversation with one of the principals in this

A. 34

operation. Informant number five advised

that he had learned that on June 19, 1974, the

number 210 had been the winning number and

that certain backers who had laid this number

off to "Fifi" had gone to London's office at

1202 North Charles Street to collect the money

in order to pay off the winners.

Informant number six advised Special

Agent David E. Faulkner on May 31, 1974, who

advised your affiant, that through personal con-

tact with Robert John Thibou, that Thibou is

presently backing a large scale numbers oper-

ation handling between $80, 000. 00 and $90, 000.00

in weekly wagers. Informant number six advised

that Thibou is either a partner of Robert "Fifi"

London or lays off to London,

Informant number six advised that Bobby

Himes is presently making the lay-off telephone

calls for London. Informant number six has

learned this through conversations with a

principal in this lay-off operation. This prin-

cipal in the operation indicated to informant

number six that London's lay-off business will

total between $70, 000. 00 and $90, 000. 00 weekly

in lay-off bets. Informant number six advised

that Bobby Himes handles the lay-off work from

a telephone in his home in the Pasadena, Mary-

land area, and is paid approximately $300. 00

a week for this.

Informant number six advised Special

Agent Jerry W. Bastin on June 5, 1974, that

Himes is presently making the lay-off calls

from his home in the Pasadena area. Informant

A, 35

number six stated that when Himes was out

of town his wife, Susan, would handle the lay-

off calls.

Informant number three advised your

affiant on June ll, 1974, that during the last

week in May, 1974, the incoming calls to

the backers from the lay-off office had been

made by a female caller usually between the

hours of 1:00 and 3:30 p.m. Informant number

three advised that after this week the calls

continued to be made by the male caller as

before during the same time period. Informant

number three stated he had overheard from

Genco that the reason that the woman had been

calling-during the last week in May was because

her husband, who usually handled the lay-

off office, had been out of town during that

week and she had been entrusted with handling

the lay-off calls.

On June 28, 1974, informant number six

advised Special Agent Jerry W. Bastin who

advised your affiant that Bob Himes and his

wife Susan had moved from his residence in

Pasadena, Maryland to Jopps, Maryland. This

move had occurred during the last week of June,

1974, Informant number six further advised

that during the past week he had overheard Himes

state that he was still handling the lay-off office

for "Fifi'' London at his new residence in Joppa,

and that London had called him at this location

on at least one occasion to take care of matters

that related to the "lay-off" business. Himes

A. 36

was overheard to state that he used the same

telephone set up in Joppa as he had used in

Pasadena and that the phones were still in

the name of his wife Susan and that they uti-

lized the auxiliary phone to make the daily

lay-off calls to the different backers.

Informant number three advised your

affiant on July 3, 1974, that he had been told

by an individual who was receiving a lay-

off call from Robert "Fifi" London's lay-off

office that the lay-off call was currently

being made by the same individual who had been

making this incoming call in May. This source

advised that this call continued to be made

between 1:00 and 3:30 p.m. each day.

Informant number three advised your

affiant on July 18, 1974, that as of this date

one of the individual backers is continuing to

receive the daily incoming telephone call

between 1:00 and 3:30 p.m. from the lay-off

office maintained by London, The individual

taking the lay-off from this backer is the same

caller as previously noted. The source knows

of this through direct contact with the individual

receiving this call.

On July 19, 1974, Special Agent John Bonner

advised Special Agent Thomas A. Kelly that on

this date he contacted informant number five

who stated that as of July 19, 1974, conversa-

tions between Robert "Fifi’’ London, Richard

Genco, Albert Isella and others involved in the

lay-off operation occur in the basement office

A, 37

of 1202 North Charles Street. He described the

office space as consisting of a large room con-

taining a counter and two desks, one usually

occupied by London and the other by a secre-

tary. The informant further advised that there

is a small cubicle off to the north side of this

large room containing a desk. Additionally he

advised that on the far west side of the office

there is a rear room generally used as a stor-

age and toilet area. The informant advised

that he has observed within the past week

London conduct business with numbers backers

in the large room and take individuals to the

rear room when the front room is occupied by

other people.

Informant number six advised Special

Agent Jerry W. Bastin on July 22, 1974, who

advised your affiant that while present at Robert

"Fifi" London's office at 1202 North Charles

Street, Baltimore, Maryland, during the past

week that he had observed two Negro males

come into this office and discuss lay-off with

Robert London. This source further advised

that from the conversation between Robert "Fifi"

London and these two Negro males he was able

to determine that they were either numbers

backers or representatives of numbers backers

and that their conversation with London in-

volved the gambling business.

eRe oe

A. 38

APPENDIX C

EXCERPT TAKEN FROM THE HONORABLE

C, STANLEY BLAIR'S MEMORANDUM AND

ORDER DENYING PETITIONERS' MOTION

FOR JUDGMENT OF ACQUITTAL OR IN THE

ALTERNATIVE MOTION FOR NEW TRIAL

As the court has indicated, eavesdropping

is a breed apart from the usual telephone inter-

caption. There was no way the agents in this

case could have fulfilled the mandate of the

warrant without fairly continuous monitoring.

Necessarily they were privy to innocent con-

versations. To have indiscriminately recorded

all of these would have been an unwarranted in-

vasion of the defendants lawful activity.

Another relevant factor is the government's

reasonable expectation about the contents of the

intercepted communications. In this case, it

should first be recalled that electronic eaves-

dropping rather than a telephone tap is involved,

With a telephone tap, communications are divided

into discrete units which government agents can

appraise individually and if believed to be innocent,

can cease intercepting. They then can resume

their interception activities with the activation of

their equipment by the next telephone cail. This

segregation of communications does not exist with

electronic eavesdropping. At one point in a con-

versation one of the conspirators may be discussing

an innocent matter with a nonconspirator and shift

without warning to the government agents to dis-

cussing illicit operations with a co-conspirator.

In this context government agents must be given

a broader scope for interception.

A. 39

APPENDIX D

EXCERPT TAKEN FROM THE GOVERNMENT'S

ANSWER TO PETITIONERS' MOTION FOR JUDG-

MENT OF ACQUITTAL OR IN THE ALTERNATIVE

MOTiON FOR NEW TRIAL

In this case, as in United States v. Quin-

tana, supra, at page 874, the purpose of the

eavesdropping was not so much to incriminate

the known person whose place of business was

tapped as to learn the identity of the co-con-

spirators and to delineate both the contours

and the interior workings of the conspiracy.

In an attempt to minimize the invasion

of privacy upon the defendant, London, the

Government did not record those conversations

between Mr. London and others which were

deemed to be not connected with the gambling

enterprise. The defendants have contended

that this practice also violated the provisions

of the statute and has therefore, placed the

Government on the horns of a dilemma. On

one hand, they complain that minimization was

not done, and on the other that the minimization

technique that was utilized was improper.

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.