Petition — GENCO v. UNITED STATES (Nos. 76-1852, 76-1826)

Supreme Court brief1977

Ask Donna

What actually matters in this document.

Text

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No _%G=1852

RICHARD JAMES GENCO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PETER G. ANGELOS

233 Equitable Building

Baltimore, Maryland 21202

Attorney for Petitioner

The Paul M. Harrod Company, Baltimore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

ES eae Ode Web decceoctcacca. 2

PEE WL L aU ewe ced cede hechcceeeceses 2

eh Ee a ea 2

CONSTITUTIONAL PROVISIONS INVOLVED ......... 2

STATEMENT OF THE CARE iii eee ee ee 3

REASONS FOR GRANTING THE WRIT ............. 4

Cb 29.00 ven ee-h ees 0 at Ue alae a a ava 26

APPENDIX A:

Opinion of the United States Court

of Appeals for the Fourth Circuit ............. A. 1

APPENDIX B:

Affidavit — In the Matter of the

Application of the United States of

America for an Order authorizing the

installation of a device to register

telephone numbers called from the

Telephone Number 301/679-6473 ............ A.23

APPENDIX C:

Affidavit — In the Matter of the

Application of the United States of

America for an Order authorizing the

Interception of wire communications .......... A. 45

AUTHORITIES CITED

Cases Page

Aguilar v. Texas, 378 U.S. 108, SCt. 1509

Pe Fo 0 RR ear ee 11

Spinelli v. U.S. 393 U.S. 410, 80 SCt. 584

ae Oe Es Se Cee cewek es boca eceneses 1]

U.S. v. Bobo, 477 F2d 974 (4th Cir. 1973) ......... 16,17

U.S. v. Bernstein, 509 F.2d 996, 1001-02 (4th Cir. ore 23,24

U.S. v. Bynum, 475 F.2d 832, 837 (2d Cir. 1973) .. . .24,25

U.S. v. Curreri, 388 FSupp. 607 (D. Md. 1974) ........ 17

U.S. v. Donovan, 17 Crim. L. Rptr. 2029 (S.D.N.Y.

1974) aff'd, 508 F.2d 837 (6th Cir. 1975) ........ 23

U.S. v. Giordanu, 416 U.S. 505, 508 (1974) ......... 23

U.S. v. Staino, 358 FSupp. 852 (E.D. Pa. 1973). . . .13,15,17

Statutes

Se es BED o 660 6b HUGE Os EEK OS OKO 4,14,23

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO.

RICHARD JAMES GENCO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS POR THE FOURTH CIRCUIT

The Petitioner, Richard James Genco, prays that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Fourth Circuit, entered in the above

case on May 25, 1977.

OPINION BELOW

The Opinion of the United States Court of Appeals for

the Fourth Circuit is included as Appendix A of this Petition.

JURISDICTION

The Judgment of the United States Court of Appeals for

the Fourth Circuit sought to be reviewed was filed on May

25, 1977. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1). This Petition is timely pursuant to Supreme

Court Rule 22, Paragraph 2.

QUESTION PRESENTED

1. Did the United States Court of Appeals err in holding

that the Government had made an adequate showing that

alternative techniques to wire-tapping were not likely to

succeed.

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States, Amendment IV:

“The right of the people to be secure in their ~

and the persons or things to be searched.”

STATEMENT OF THE CASE

On February 5, 1975, Petitioner, Richard James Genco,

along with seven (7) other individuals, was indicted on one

count of violation of 18 U.S.C. 1955 (gambling). After the

indictment, there were pre-trial proceedings wherein the

Petitioner moved to suppress the evidence obtained by the

Government pursuant to the search and seizure of September

20, 1974. Said search and seizure was the result of

information gathered by prior wiretaps authorized under Misc.

No. 708-A, 936 and 944. No. 708-A is reprinted at Appendix

B. No. 944 is reprinted at Appendix C. Petitioner’s Motion to

Suppress was denied by the trial court by Memorandum and

Order dated June 13, 1975. In lieu of trial by jury, Petitioner

agreed to submit his case before the trial court on an agreed

statement Of facts, which proceeding was held on December

2, 1975. At that time Petitioner was found guilty of the one

count indictment by the trial court. On March 19, 1976,

Petitioner was sentenced to two (2) years imprisonment all

but ninety (90) days suspended. Petitioner appealed to the

Fourth Circuit United States Court of Appeals, which

affirmed his conviction (Opinics. Judge Winter filed May 25,

1977).

REASONS FOR GRANTING THE WRIT

THE UNITED STATES COURT OF APPEALS

ERRED IN HOLDING THAT THE GOVERNMENT

HAD MADE AN ADEQUATE SHOWING THAT

ALTERNATIVE TECHNIQUES TO WIRETAPPING

WEKE NOT LIKELY TO SUCCEED.

A. Success of Alternative Techniques

Petitioner submits that the Affidavits to obtain

permission for wiretaps in this case clearly demonstrated that

the Government had ample information identifying Petitioner

as well as the other principals in the alleged gambling

conspiracy prior to such request. Petitioner has found no

other reported opinion from this Honorable Court or any

other Court in which the Affidavit of the Government itself

demonstrated that wiretaps were unnecessary to successfully

conclude a criminal investigation. For these reasons, Petitioner

believes this case merits review by this Honorable Court,

because, if the Government will be allowed to wiretap in

situations where its own information shows that alternative

techniques are working, then Section (c) (3) of 18 U.S.C.

2518 becomes meaningless.

The following information was known to _ the

Government prior to the first wiretap request:

(1) The general allegation of probable cause as to the

gambling conspiracy:

“| have: participated in the investigation of these

offenses committed by those persons named above

and as a result of my present participation in this

investigation and of reports made to me by Agents

under my direction, I am familiar with all

circumstances of the offense. On the basis of that

familiarity, I allege the facts contained in the

paragraphs below to show that:

(a) There is probable cause to believe that

Robert “Fifi” 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,

have been and are now presently engaged in an

illegal gambling business. which makes use of

communication facilities for - the purpose of

conducting this illegal gambling business and which

involves five or more persons and has a gross

revenue of $2,000.00 or more in any single day and

has been and remains in substantially continuous

operation for a period in excess of 30 days.

Through investigation conducted by myself and

other Special Agents of the Baltimore Federal

Bureau of ‘nvestigation Office, I believe that this

illegal gambling business operates in the following

manner:

Robert “Fifi” London, Albert Carmen Isella and

Richard ‘*Dick” Genco are in partnership in the

“Jay-off’ part of an extensive illegal gambling

_ business. This “lay-off” partnership specializes in

purchasing heavily bet numbers or other wagers

from the lower level numbers operators and is

necessary for these backers to insure that if they

were a “hit” on a heavily bet number, they would

not lose a great deal of money. From my

experience, I know that the “lay-off” usually occurs

between 2:00 p.m. and 4:00 p.m. and. is

accomplished prior to the first digit of the winning

number being determined. Information set forth

indicates that Robert Leroy Himes and Susan Himes

, are handling the lay off office for London, Isella

‘and Genco and they will make daily calls except on

‘Sunday to the backers to determine which numbers

they choose to lay-off. Information set forth below

also shows probable cause that Melvin Eugene

Brzostek, Robert John Thibou, Orva_ Elerson

“Lucky” Robinson, and Ambrose Robinson and

other backers as yet unknown, are the backers of

large scale illegal numbers lotteries from whom

London will take lay-off wagers. This illegal

gambling business is conducted in violation of the

Annotated Code of Maryland, Article 27, Section

240 (Bookmaking) and Section 356 (Lottery) and is

thereby in violation of Sections 1955 and 371 of

Title 18, United States Code.

(b) There is probable cause for belief that evidence

of these offenses will be obtained through the

installation of a device to register telephone

numbers called from the telephone number

301/679-6473 said registration being herein applied

for.

telephone number 301/679-6473 subscribed to in

the name of Susan M. Price, 1028 Erwin Drive,

Joppa, Maryland, has been and is being and will be

used for carrying out the offenses set out in

paragraph 3(a) above, all of which appears more

fully hereafter.”

Set.

(2) Detailed allegations of informant reliability:

“Informant number one has been furnishing

information to the Federal Bureau of Investigation,

Baltimore, Maryland, for approximately four years,

said information relating to gambling activity in the

Baltimore area. All of the information furnished by

informant number one has been corroborated by

independent investigation and has always proved to

be accurate. Information from this informant has

resulted in the arrest and conviction of

approximately 25 individuals on Federal gambling

charges in the past two years.

Informant number two has been fumishing

information to the Federal Bureau of Investigation,

Baltimore, Maryland, for approximately one year,

said information relating to gambling activity in the

Baltimore, Maryland area. All of the information

furnished by informant number two has been

corroborated by independent investigation by the

Baltimore Office of the Federal Bureau of

Investigation and the Baltimore City Police

Department and has always proven to be accurate.

This informant has been associated with members of

the gambling community in Baltimore for over 10

years and has been involved in wagering activities

for a like period of time.

Informant number three has been furnishing

information to the Federal Bureau of Investigation,

Baltimore, Maryland, for approximately two years,

said information relating to gambling activity in the

Baltimore, Maryland area. All of the information

furnished by informant number three has been

corroborated by independent investigation by the

Federal Bureau of Investigation and the Baltimore

City Police Department and has always proven to be

accurate. Information from this informant has

resulted in the arrest and conviction ofat least six

individuals on Federal Gambling charges in the past

year. Also, information furnished by this informant

and subsequently turned over to the Baltimore City

Police Department has resulted in the arrest and

conviction of approximately eight individuals on

various State violations during the past year.

Informant number four has been furnishing

information to the Federal Bureau of Investigation,

Baltimore, Maryland, for approximately 10 years.

This information has related to gambling activity in

the Baltimore area. This source has associated with

members of the Baltimore gambling community for

a number of years and has directly engaged in

wagering activities. Information from the informant

has resulted in the arrest and conviction of a major

gambling figure on Federal gambling charges. All of

the information furnished by the informant number

four has been corroborated by independent

investigation conducted by the Federal Bureau of

Investigation and local authorities and has always

proven to be accurate.

Informant number five has been fumishing

information to the Federal Bureau of Investigation,

Baltimore, Maryland, for approximately one year,

said information relating to gambling activity in the

Baltimore, Maryland area. All of the information

furnished by informant number five has been

corroborated by independent investigation by the

Federal Bureau of Investigation and _ that

information has always proven to be accurate. This

informant has been involved in wagering activities in

the Baltimore area for more than nine years and is

personally, aquainted with raany of the Baltimore

gambling figures. Information furnished by this

informant has led to the arrest of eight individuals

on Federal gambling charges and the conviction of

one individual on Federal gambling charges. The

remaining seven are awaiting trial.’

(3) General allegations as to Genco’s involvement in the

gambling operation:

“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 operation for the

Baltimore area. Informant number one advised that

London has a 75 percent interest in this operation

while Genco and Isella share a 25 percent interest.

Informant number one learned of this through his

direct contact with Albert Isella.”

(4) Particular allegations as to the state of the operation

on July 17, 1974:

“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.”

(5) Particular allegations c ~~ informant concerning the

routine, records, and observations of Richay. Genco:

“Informant number two advised your affiant on

May 7, 1974, that Richard Genco and Robert

Ln,

“Fifi” London are conducting the major gambling

“lay-off” operation for the Baltimore area.

Informant number two has learned of this through

conversations with Richard Genco and London

regarding the “lay-off” business. Informant number

two 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. Informant number two

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 exchange of money

only and the backer is generally advised in advance

what he owes or what is owed to him for the

previous week’s work. Informant number two

further advised on May 23, 1974, that he has

observed Genco keeps a list of numbers accounts in

his car in the event the backers question what is

owed. Informant number two also advised that from

his personal observations this list contained code

names for at least one dozen numbers backers and

the total tally for the previous week’s lay-off for

that particular list was approximately $20,000.00.”

. (6) Allegations that Richard Genco stated Eugene

Brzdstek was laying off to Genco:

}

“Informant number two advised on June 3, 1974,

that he had learned through conversations with

Melvin Eugene Brzostek which occurred during May,

1974, that Brzostek is the backer of a large

numbers operation handling approximately twelve

weriters. Informant number two advised that he had

learned from Richard Genco during the same period

that Brzostek is laying off to Genco.”

(7) Allegations that, as a result of personal contact with

Genco, it was learned that Genco would contact London if

the track for the winning number was to change and that

Isella and Genco and London were partners:

“Informant number two 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 determined for the Baltimore area. Informant

number two advised that it is 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 two 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.”

(8) Allegations that various backers laid off to London’s

operation, based on statements of the principals themselves.

(9) Allegations of informants based on statements of

those involved that Bobby Himes or his wife handled

London’s lay-off operation from Himes’ home in Joppa on

line 301/679-6473 at certain specified times of day.

(Reprinted in Appendix B)

Item (2) seeks to establish the credibility and reliability

of the informants in this case under the guidelines enumerated

in Spinelli v. United States, 393 U.S. 410, 80 SCt. 584, 21

LEd. 637, 1969, and Aguilar v. Texas, 378 U.S. 108, SCt.

1509, 12 LEd. 2d 723, 1964, Items (3), (5) and (7) contain

numerous alleged statements of Genco to these informants

about his involvement in the operation. Except for the totally

unsupported contention that the informants will not testify

because of their fear of retribution (see infra, p. 22), there is

absolutely no reason advanced why one or more of these

individuals cannot be made to testify against Genco.

Alternatively, there is no reason advanced why additional

surveillance, which could easily be maintained at the times

and places of the conspiracy’s transactions consistent with

information given to the informants by Genco and others,

would not succeed.

Item (5) standing alone is a classic example of crucial

information obtained from “credible informants” which,

through the application of established and proven surveillance

techniques, would ultimately lead Government agents to full

and complete identification and destruction of the illegal

conspiracy alleged. Vital information received by Government

agents, that Genco regularly carried on his person or in his

automobile written records containing numerous backers and

the balances due to them or owed by them to the

conspirators, presented to the Government an immediate

opportunity to ascertain the identity and location of these

backers as well as revealing the “settling up” procedure

employed by the conspirators with their customers, which, if

followed to its logical end, would necessarily reveal ill of

those doing business with the three principals. Once this

effort has been completed, further investigative tools such as

Grand Jury investigation and employment of grants of

immunity (qualified or otherwise) could without any question

have led to the indictment and ultimate conviction of the

ringleaders of the illegal gambling operation alleged. Certainly

at that stage of the investigation it is obvious that the

Government could conclude its efforts by obtaining search

and/or arrest warrants and executing same.

Should the Court not agree for any reason that Item (5),

if properly pursued, would result in the revelation of the

entire conspiracy alleged, it is next contended that Items (7)

and (8) enumerated, supra in conjunction with Item (5) are

sufficient on their face for the Court to find that the entire

operation could have been identified, located, and brought to

an end with normal surveillance. These items specifically

indicate that certain backers dealt directly with Isella or with

London. The location of both of these principals was known

to the Government. Appellant Genco either settled up with

these backers on his own route, or Isella and London settled

up respectively with these backers themselves. In either event,

additional surveillance would reveal the identity and location

of all of the backers, each of the backers’ contact with the

conspiracy, the “‘where” and “when” of each contact, and the

exact role Of each of the principals in this conspiracy.

Rather than pursue any of these major and extremely

promising leads to their fruition, the Government chose to

request the Pen Register Device and thereafter the wiretaps in

question. Petitioner Genco contends that these requests were

defective, inasmuch as the allegation that “normal techniques

would ‘not succeed” was totally without substance and

contradictory on its fact to the wealth of information

available to the Government enumerated supra In U.S. y.

Staino 358 F. Supp. 852 (E.D.Pa., 1973), the Court faced

similar contentions concerning the “necessity’’ conspiracy to

possess and deal in counterfeit Federal Reserve Notes.

Rejecting the defendant’s motion to suppress such evidence as

was obtained by those techniques, the Court stated at pp.

856-857: :

“The defendants contend that, even if probable

cause was established to believe that they were

—s ——— — —s

authorizing the interception of wiretap

communications. The burden on the government is,

therefore, not a great one, and it has been

adequately fulfilled in this instance.

The defendants argue that according to statements

in the affidavit, sufficient evidence existed prior to

the wiretap to convict both Viner and Staino if that

evidence was shown to be truc. 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

nature dealing in counterfeit notes involves, in most

instances, many individuals who would be liable as

co-conspirators. And even though the investigative

agents were able to uncover the first layer of the

operation, a substantial likelihood existed that other

notes and who placed them into circulation — had

affidavit amply demonstrates

that this would have been impossible by any means

other than by the use of wiretaps.”

While the language of Staino appears to discuss what the

Government does not have to prove to sustain its contention

that eavesdropping is neces.ary, it is clear that the Court

made positive findings before upholding the electronic

surveillance, and that these findings were the basis of its

decision. Initially, the Court found that the Government did

not have to actually exhaust all other investigative techniques

before electronic surveillance would be allowed; this

conclusion is consistent with the statutory language that the

Government need only show that either such techniques had

been tried. unsuccessfully or that such techniques appeared

unlikely to succeed, in order to obtain permission for a

wiretap. Merely to emphasize this alternative burden upon the

Government, the Court next states that there is no need for

the Government to show that even one technique had been

tried and had failed, as long as the Government shows that

normal investigative techniques are unlikely to succeed in a

given case.

In applying these principles the Staino court carefully

considered prior results of the counterfeiting investigation. No

ringleaders ascertained. No middle level people ascertained.

The source of the forgery unknown. No way to infiltrate the

unknown. No way to call unknown key witnesses before the

Grand Jury. After these observations, the Court upholds the

wiretaps.

Staino situation to the present case.

Contrast the

and place of operation of ringleaders known. A

Identity

number of backers known. The lead to the rest of the

backers, (identity of the three principals, the knowledge of

Genco’s list, Genco’s route, and the informants’ specific

statements that certain backers dealt directly with Isella or

London), known. Pay off schedule known in substantial part.

The conclusion of this Court has to be that the major part of

the “iceberg” was known to the authorities. Important,

specific, and multiple leads had been discovered and verified,

items (3)—(9) supra. If this case is anything, it is a classic

example of one in which normal investigative techniques

would succeed, given the facts known to the Government.

Certainly, if 2518(cX3) puts any burden upon the

Government, that burden of proof is quite dismally ummet in

the affidavits in the instant matter. Moreover, because there is

that burden of proof, the mere allegation that “normal

techniques are unlikely to succeed”’ is not binding upon this

Court. To so rule would make a nullity of the Judicial Review

of the affidavit very specifically commanded in Title III.

The Fourth Circuit relied on its prior decision of U.S. v.

Bobo 477 F2d 974 (4th Cir. 1973) in which the wiretapping

of a gambling business was upheld. Appellant believes the

Government’s reliance on Bobo is entirely misplaced; rather,

the Court’s discussion of “alternative techniques” distinguishes

Bobo from the present case. On p. 983 of the Bobo opirfion,

it is clear that the Court accepted on its face the contents of

the Affidavit of Special Agent Fontanella, who stated among

other things the following: (1) “normal investigative

procedures reasonably appear to be unlikely in

establishing... what is the full extent of the interstate

gambling conspiracy, who are involved as co-conspirators,

aiders and abettors, and what is hierarchy of this illegal

gambling operation”. (2) “Physical surveillances on gambling

operations heretofore mentioned have failed to furnish

substantial information of a federal gambling violation because

there is little or no personal contact between these persons”.

(3) “Furthermore, the utilization of undercover agents would

not likely prove a federal viojation due to the small number

of people who have access to the overall plan or scheme.”

Corttrast the Bobo rationale to the facts of the present

case. Informants are in contact with the hierarchy of the

operation and thus definitive information about the whole

scheme has been unearthed. Moreover, the physical

surveillance of Genco and others has yielded a wealth of

information concerning the scope, members and hierarchy of

the conspiracy. Finally, the actual hierarchy has been fully

disclosed to Government agents. In these circumstances

2518(c)(3) has obviously not been complied with.

A strikingly similar result was reached in the Maryland

District in the case of U.S. v. Curreri 388 FSupp 607 (D. Md.

1974). In that case, the Court determined that the failure to

allege that “normal investigative techniques were unlikely to

succeed” in the affidavit was fatal. But more essential to this

case, Judge Miller held that besides the failure to include the

Statutory language, the affiants had also failed to show that

particular techniques appeared likely to fail. In light of

Curreri and Staino, \et us examine how the Government

alleges that normal techniques would fail in this case.

‘st, the Government concludes that infiltration is

‘me st ile:

“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

Ses Be SB ee eee

operation.”

It is suggested that these allegations are patently absurd.

The statement “‘infiltration...does not appear to be

possible” belies the fact that infiltration of the organization

by five allegedly reliable and credible informants has already

occurred. With the valuable information, detailed in items

(3)(9) supra, being supplied regularly by these individuals, the

Government cannot seriously contend that there existed the

slightest need for infiltration by a Government agent.

Furthermore, additional surveillance, based upon the

’ identification of the gambling operation’s participants, their

schedule, their movements, and Genco’s records, would have

yielded the “full scope and extent of the operation.”

Particularly, observation of London, Isella, and Genco,

especially on the latter’s route when he was allegedly “settling

up” with the various backers, would have netted the identity

of every single backer of this operation within reasonable

time. Just as specious as the “argument” for infiltration per

se, is the Government’s “contention” that such infiltration

even “if possible’ would be at “the lowest level of the

operation”. Inasmuch as the identity of the highest level of

the operation, and a substantial number of the middle level of

the operation, were well known to the Government at the

time of the application for wiretaps and pen register, this

discussion of the limitation of infiltration is at once irrelevant...

and, more important, misleading. The Government sought to. es ‘

obtain authorization for electronic surveillance on the claim

that infiltration was not a practical method to pursue in order

to identify the principals of the operation, when in fact the

principals had already been fully identified by the informants

elsewhere in the affidavit. For all the reasons stated herein,

the Court should conciude that the “inability” of infiltration

to succeed, applied to in this case is irrelevant and immaterial

to the Government’s contention that “normal investigative

techniques were unlikely to succeed in this case”’.

Besides “‘infiltration”, the Government argues that

“Grand Jury witnesses’’ would also fail in this matter:

“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 requisite knowledge

regarding the full scope and extent of the operation.

Witnesses, even if immunized, are reluctant to

incriminate themselves and their close working

associates. Together 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.”

First, the Government states that Grand Jury witnesses

would not reveal “the full scope and extent of the

operation”, an obvious parroting of the argument against

“Snfiltration”, and for the same reasons, an utter irrelevancy.

The observations of five informants, the identification of the

principals and several backers, the known schedule of Genco’s

movements, the alleged material in Genco’s possession; all

these facts obviate the Government’s need to “penetrate a

wall of secrecy”. through Grand Jury testimony (or

infiltrations, supra). Again, the Government’s premise, that

Grand Jury witnesses are needed at all (to identify the scope

of the operation) is simply contradicted by the myriad of

allegations it presents within the four corners of its own

affidavit. The Government’s conclusion that “witnesses are

relucant” to talk, even with “immunity” granted, is complete

nonsense. This assertion argues that the hard, persistent

questioning of any of the backers, who were in large supply

identified, both before and certainly after the pen register’s

use, would have yielded nothing, even on pain of contempt.

Given the broad and effective use of immunity by the United

States Attorney’s Office in this jurisdiction, asking the Court

to accept this incredible statement as valid in this case is to

defy reality. As unrealistic as the previous language may be,

the bold allegation that immunity would “require...

non-prosecution of principals” is an outright effrontery to this

Court. There were so many middle and lower level backers

- now identified for possible “non-prosecution” that there was

no need for the Government to give up the prosecution of

any of the principals in this case. For these reasons, the Court

should entirely disregard the alleged likelihood of the failure

of Grand Jury witnesses in this case.

Furthermore, the Government’s statement that they are

reluctant to immunize principals is altogether inapplicable in

this case, wherein a named principal is not charged at all in

the indictment issued in this matter. The Petitioner, Richard

Genco makes the following query: Has this principal béen

cooperating with the authorities during their investigation of

this alleged gambling conspiracy. If this principal has been

cooperating with the Government, and if in such capacity he

did furnisli the Government with. information concerning the

nature and extent of the alleged operation, then the

Government knew or should have known that normal

investigative techniques would succeed in this case and any

assertion which the Government has made to the contrary was

not made in good faith The Government never contended

that this principal was not in fact so cooperating, so this

Court must assume such cooperation to explain the lack of

prosecution of this individual. (Unindicted co-conspirator,

Albert Isella)

While the Petitioner vigorously denies the allegations of

the Government that certain “‘techniques” appeared likely to

fail, they point out to the Court that the Government

completely omits discussion of the one obvious “technique”

insufficiently employed in this case — physical surveillance.

Surveillance of London’s office had already corroborated the

informants’ observations as to visits by Isella, Genco, and a

number of backers. Surveillance of Isella would have likely

revealed those backers whom the informants asserted dealt

directly with Isella. Surveillance of Genco, especially on his

rounds from London’s residence to the various settlement

spots with the backers would have shortly revealed all the

backers who dealt with the alleged operation. All of these

activities could have been instituted and completed within a

reasonable time. In point of fact, the limited surveillance of

Genco, London and Isella had already borne fruit, by serving

to identify a half-dozen backers, at the time of affidavit

708-A. (After the use of the pen register and further

surveillance, all of the backers were identified and listed in

the affidavit to 944 and the search warrant). In fact, the

failure to positively reveal to the Court how the Government

had been able to succeed is as pernicious and, it is suggested,

fatal to the affidavit, as are the spurious allegations

concerning alleged unlikelihood of normal techniques to

succeed, which are irrelevant to the case at hand.

—

The limits of rationality are surpassed when the

Government sought to obtain the last wiretap authorization

through its affidavit 944 (Appendix C). At that point in time,

through the use of the pen register, the Government had

ascertained the identity of some 33 locations and persons who

were “fueling” this gambling operation. This factor seems to

have been completely overlooked by the Fourth Circuit in its

Opinion, specifically at pages 12-14. That Court like so many

others, becomes lulled into taking the allegations of the

affidavits at face value without looking at their logical

consistency or lack thereof. In this particular case, the logical

inconsistency, which should be fatal to the Government, is

the allegation on the one hand that normal investigative

techniques will not succeed, and the factual demonstration on

the other hand that normal investigative techniques are not

only succeeding in regard to the principals but as to

identifying the entire gambling operation itself. This case is

the exact situation envisioned in Staino, wherein the root and

the branches of the conspiracy are known to the Government

so that no reason appears for the allowance of a wiretap. It is

of utmost importance for this Honorable Court to deter the

Government from just applying for wiretaps in any case

regardless of the state of its information or investigation, and

a reversal of the Fourth Circuit and the United States District

Court for the District of Maryland would serve such a

purpose.

B. Lack of Minimization

Petitioner adopts the following from the decision of the

Fourth Circuit:

We agree, ... The wiretap statute provides that

.23

[t]he 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 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

alterations.

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

contain discretionary language; it is an absolute

command. Interceptions “shall” be recorded, if

“possible.” As another federal court has noted,

“the wiretap statute requires the recordation of

intercepted communications by any means

authorized by the chapter,...” United States v.

Buckhanon, 374 F.S. 611, 615 (D. Minn. 1973)

(emphasis in the original).? Here, the government

has made no attempt to justify its failure. It has not

demonstrated that recordation was impossible... .

(footnotes omitted)

Petitioner next urges, contrary to the Fourth Circuit,

that suppression of the evidence was the proper course in this

case for the following reasons:

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), affd, 508 F.2d 837 (6th Cir.

1975), where the application order failed to identify as

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 II

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.

Bernstein, 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 obtaining... intercept authority.”

Statutory 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 employment

of this extraordinary investigative device.’ In

contrast, violation of a statutory provision that does

not “affect the fulfillment of any of the reviewing

or approval functions required by Congress,” does

not render an interception unlawful within the

meaning of §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 II] 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. 1411, 1432 n. 407

and cases there cited (1974), minimization standards are more

often reviewed by the court after the fact than they are

approved oor disapproved 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 fragmentizes the

court’s inquiry as to transforms 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. §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 interceptions 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 interceptions is

a violation of the statute that has not only affected the

court’s reviewing function but has made proper review nearly

impossible. Petitioner submits that the blatant illegality of the

Government’s action in carrying out the interception order

has rendered the entire interception procedure unlawful, and

mandates total suppression of the evidence.

CONCLUSION

For all of the aforegoing reasons, it is respectfully

submitted that a writ of certiorari to the United States Court

of Appeals for the Fourth Circuit should be granted in this

Respectfully submitted,

PETER G. ANGELOS,

233 Equitable Building

Baltimore, Maryland 21202

727-0830

Attorney for Petitioner.

A. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 76-1663

United States of America,

ond Clerkley,

No. 76-1664

United States of America,

Julius Cottman,

No. 76-1665

United States of America,

Rufus Jones,

No. 76-1666

United States of America,

Robert R. London, a/k/a Fifi London,

No. 76-1667

United States of America,

Robert Himes,

Appellee,

Appellant.

Appellee,

Appellant.

Appellee,

A. 2

No. 76-1668

United States of America, Appellee,

Richard James Genco, Appellant.

No. 76-1669

United States of America, Appellee,

John A. Shade, Appellant.

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 expressed agreement with

this result. é

Harold 1. Glaser (Richard M. Karceski and Michael E.

Kaminkow on brief) for Appellants in 76-1666, 76-1665,

76-1664 and 76-1663; Peter G. Angelos for Appellant in

76-1668; (Howard L. Cardin on brief) for Appellant in

76-1669; (Jeffrey C. Hines on brief) for Appellant in 76-1667;

Marsha A. Ostrer, Assistant United States Attorney (Jervis S.

Finney, United States Attorney on brief) for Appellee in

16-1663, 76-1664, 76-1665, 76-1666, 76-1667, 76-1668 and

76-1669.

WINTER, Circuit Judge:

Defendant, together with others, were indicted by a

federal grand jury on a charge of violating 18 U.S.C. §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 by

wiretap. The district judge denied this motion, holding that

the government fully complied 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 fourteen 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

government’s evidence established that the operation was a

major “gambling lay off” business. A “lay off” operation

enables professional bookmakers to dimin.sh 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 (4 Cir. 1975), vacated

45 US.L.W. 3583 (U.S. Feb. 28, 1977) (No. 74-1486);

United States v. Bobo, 477 F.2d 974 (4 Cir. 1973), cert.

denied sub nom., Gray v. United States, 421 U.S. 909 (1975).

The proof that London, Genco and Isella were

partners in

ta i

A. 4

At trial, the government relied heavily upon evidence

secured through electronic surveillance. 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 intercepting devices at the Himes

residence.'

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

occurring, 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 telephone 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 continued 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

'- A “pen register” device is used to trace telephone

calls. A detailed explanation 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 known that numbers gambling was being

conducted, the pen register was augmented by an interception

device.

The affidavits supporting the applications 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 transacted 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 could be monitored while they

sought only surveillance of telephone calls at the Himes’

residence.

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.

II.

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

government conduct and the terms of the wiretap statute.

Electronic eavesdropping by law enforcement personnel

is governed by the federal wiretap statute, Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, as

amended, 18 U.S.C. §2510, et seg. The wiretap statute was

intended to make an accommodation between competing

goals of crime control and protection of the right to privacy.’

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] U.S. Code,

Cong. & Ad. News 2112, 2153..

?~- 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

development of informants against organized criminals.

In short, intercepting the communications of organized

criminal» is the only effective method of learning about

their activities.

— —_—-

A. 6

Defendants’ initial contention is that the wiretap oréers,

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. §§ 2515, 2518

(10)(a). The statute requires that the government apply for a

judicial order before electronic surveillance may begin. 18

U.S.C. §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. §§ 2518(1)(c), (3)(c).

Specifically, there must be a showing that “other investigative

procedures have been tried and have failed or ... reasonably

appear to be unlikely to succeed if tried or to be too

dangerous.” 18 U.S.C. §2518(1Xc).

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 to be reliable. The FBI was

apparently well aware of the roles pla;zd by London, Genco,

Footnote 2 Concluded:

[1968] U.S. Code, Cong. & Ad. News, 2112, 2159. At the

same time, Congress realized that unrestricted wiretapping

would completely undermine traditional notions of privacy.”

The tremendous scientific and technological

developments that have taken place in the last century

have made possible today the widespread use and abuse

of electronic surveillance techniques .... 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 commercial

concerns can be intercepted by an unseen auditor and

turned against the speaker to the auditor’s advantage.

Id. at 2154.

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.

A. 7

The affidavits concluded with the following recitation:

NEED FOR INTERCEPTION

1. 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” 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 cther 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

«SAU ee

A. 8

offenses. This is particularly true in regards to

evidence relating to the “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 testify to

the violation in question.

(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

A. 9

regarding the full scope and extent of the

operation. Witnesses, even if immunized, are

reluctant to incriminate themselves and their

close working associates. Together 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 to the manner in which the violations

are carried out, the interception of these

communications 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 degtee of need specified in the statute. We disagree.

The showing of need made pursuant to § 2518(1){c) is

“to be tested in a practical and commonsense fashion.”

[1968] U.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 (ie., 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

-%n >

A. 10

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 a telephone “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

wiretap evidence, alleging that the affidavits set forth

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

existence 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 investigative agents were able

to uncover the first layer of the operation, a

substantial likelihood existed that other persons

were involved in the same enterprise. 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

iceberg; 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 to be found,....

A. 11

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

the source of the “lay off” bets themselves, professional

bookmakers who “fueled” the operation and who would

simply find replacements once the four principals were sept

away.

Defendants attempt to distinguish Staino by arguing that

the four principals could have lead FBI agents to other

participants. In particular, 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. Infiltration was also

rejected as impractical. The government asserted that it sought

information concerning the highest levels of the conspiracy ;

infiltration 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 exaggeration, 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 ail possible

alternatives to wiretapping. Defendants specifically note that

Agent Huntley fails to mention physical surveillance and

observation of the four known principals. We reject this

argument.

A. 12

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

alternative, 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 v.

Vento, 533 F.2d 838, 849 & nn. 15-16 (3 Cir. 1976); United

States v. Robertson, 504 F.2d 289, 293 (S 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 government 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.

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]o prevent

improper invasion of the right of privacy and to curtail the

indiscriminate seizure of communications, ...*° United States

A. 13

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

United States vy. Giordano, 469 F.2d 522 (4 Cir. 1972), aff'd.

416 U.S. 505 (1974).? We believe that the requirement has

been met in the instant case.

“+ % The minimization requirement, along with the rest of

Title III, was drafted in response to Supreme Court decision

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

United States, 389 U.S. 347 (1967). [1968] U.S. Code, Cong.

& Ad. News, 2112, 2153, 2163.

In Berger, the Supreme Court invalidated a New York

eavesdropping statute as unconstitutional under the Fourth

and Fourteenth Amendments. Among the statute’s infirmities,

the Court noted a complete failure to prevent indiscriminate

wiretapping. [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,

53 S. 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, 6 S 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] are intended to meet the test of

the Constitution that electronic surveillance techniques

be used only under the most precise and discriminate

circumstances, which fully comply with the requirement

of particularity.

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

Bynum v. United States, cert. denied, 423 U.S. 952 (1975)

(Brennan, J., dissenting.)

Poy MPD HAS) EES

A. 14

The wiretap statute does not require that all innocent

communications be left untouched. Congress recognized that

legitimate investigations ~would often uncover harmless

conduct within the midst of its unlawful counterpart.

Accordingly, the wiretap statute merely provides ,that

unnecessary intrusions be minimized, or reduced to the

smallest degree possible. In testing compliance with this

requirement, the courts have proceeded on a case-by-case

basis, invoking a standard of reasonableness. See [1968] U.S.

Code, Cong. & Ad. News, 2112, 2192; United States v. Daly,

535 F.2d 434, 441 (8 Cir. 1976); United States v. Armocida,

515 F.2d 29, 42 (3 Cir.), cert. denied, 423 U.S. 858 (1975):

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

1975); United States v. James, 494 F.2d 1007, 1018 (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 ali

they reasonably could to avoid unnecessary intrustion.”

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

denied, 423 U.S. 858 (1975), quoting from United States v.

Tortorello, 480 F.2d 764, (2 Cir.), cert. denied, 414 U.S. 866

(1973) (emphasis in the original).

In analyzing a given case, the federal courts 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 83%, 852-53 (3 Cir. 1976); United States v.

Scott, 516 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.

A. 15

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] arge and sophisticated narcotics conspiracies 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 conspiractors and to delineate

the contours of the conspiracy.

United States v. Quintana, 508 F.2d 867, 874 (7 Cir. 1975).

In fact, the legitimate investigation of conspiracies may

necessttate 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), affd, 513 F.2d 533 (2 Cir.), cert. denied, 423 US.

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 cefendants 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

_.. ou = Eel

A. 16

members of the “lay off” operation — those who supported it

and who could be expected expected to support another if

the statute.

By analyzing the government’s expectations, courts

attempt to determine whether sufficient advance knowledge

was available to tailor the 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 in the

“lay off” system. Therefore the monitoring agents could not

assume that certain conversations with certain individuals

would clearly be irrelevant. Additionally, the government

chose to utilize electronic eavesdropping rather than a

telephone tap. Telephone taps enable police to divide

communications into discrete 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. 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.*

“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 conversations at

London’s office were in code. Special codes have continually

caused problems for law enforcement aoe especially

when dealing with narcotics conspiracies. See, e.g., United

AL17

A third and final consideration is the degree of judicial

supervision while the wiretap order is being executed. Where

the authorizing judge required and reviewed interim reports,

courts have been more willing to find a good faith attempt at

minimization. See United tes v. Quintana, 508 F.2d 867,

and cases cited therein. In the present case,

Judge Young required periodic reports at five day intervals.

The reports reflected, inter alia, the government's efforts at

minimization. This type of judicial scrutiny further supports

our conclusion that no statutory violation has accrued.

Defendants’ third and final contention deals with the use

of recording equipment. Defendants argue that the

government was required to record all conversations at

Footnote 5 Concluded:

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

denied, 419 U.S. 1020 (1974); United States v. Bynum, 485

F.2d 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),

affd, S13 F.2d 533 (2 Cir.), cert. denied, 423 U.S. 952

(1975); United States v. Cox, 462 F.2d 1293, 1330-01 (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 requirement).

A. 18

London’s office, rather than a portion dealing with alleged

gambling activities. We agree, but we do not believe. that in

this case reversal of the convictions is warranted.

The wiretap statute provides that:

[t} he 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 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

alterations.

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

discretionary language; it is an absolute command.

‘Interceptions “shall” be recorded, if “possible.” As another

federal court has noted, “the wiretap statute requires the

recordation of intercepted communications by any means

authorized by the chapter,...” United States v. Buckhanon,

374 F.S. 611, 615 (D. Minn. 1973) (emphasis in the original.’

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

News 2112, 2193 states that §2518(8)a) requires recording if

“practicable.” See text infra.

A. 19

Here, the government 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 communication or evidence derived therefrom “if the

disclosure of that information would be in violation of this

chapter.” 18 U.S.C. §2515. The circumstances which require

suppression under §2515 are, in turn, set out in §2518

(10a):

(i) the communication was unlawfully intercepted:

(ii) the order of authorization or approval under

' which it was intercepted is insufficient on its face;

or (iii) the interception 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 ofders- were insu/ficient 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

conversations at London’s office, were “unlawfully

intercepted” because of the failure to record ot

between the co-conspirators.

A. 20

‘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 congressional intention to limit

the use of intercept procedures to those situations clearly

calling for the employment of this extraordinary investigative

device.” United States v. Giordano, 416 U.S. at 527. In other

words, the violation must substantially 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 §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 recollection and bias. Tape recordings, on the other hand,

would be the best evidence and would be almost irrefutable if

_ their authenticity and physical integrity were guaranteed.

Accordingly, intercepted communications were to be

recorded, if at all possible, and introduced in their recorded

form.

The legislative history of §2518(8)a), though sparse,

supports this view of the statute.

Paragraph (8) [of §2518] sets out safeguards to

insure that accurate records will be kept of

intercepted communications.

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 safeguard the identity,

physical integrity, and contents of the recordings to

insure their admissibility in evidence.

A. 21

[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 wiretapping 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 §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. It follows that a failure to record, though

admittedly a violation of the statute, does not lead to

suppression and reversal of the convictions. This result is

dictated by the decisions in Donovan, Chavez and Giordano.

SIn 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 magnify its incriminating

effect by omitting related mitigating statements. But, in the

instant case, defendants do not allege or demonstrate that any

of the recorded communications were distorted or taken out

of context. While recordings 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 heve 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. 22

IV.

London, Jones and Cottman make an additional

contention regarding the jury instructions 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 parts.

AFFIRMED.

A. 23

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

IN THE MATTER OF THE APPLICATION OF THE

UNITED STATES OF AMERICA FOR AN ORDER

AUTHORIZING THE INSTALLATION OF A DEVICE

TO REGISTER TELEPHONE NUMBERS CALLED

FROM THE TELEPHONE NUMBER 301/679-6473

AFFIDAVIT

John D. Huntley, Jr., Special Agent, Federal Bureau of

Investigation, Baltimore, Maryland, being duly sworn states:

1.1 am an “investigative or law enforcement

officer... of the United States’’ within the meaning of

Section 2510(7) of Title 18, United States Code — that is,

an officer of the United States who is empowered by law

to conduct investigations and to make arrests for offenses

enumerated in Section 2516 of Title 18, United States

Code.

2. Your affiant seeks an order authorizing the use of a

device to register telephone numbers called from telephone

number (301) 679-6473 concerning offenses involving

violations of Section 1955 of Title 18, United States Code,

and a conspiracy to violate this statute which have been and

are being committed by Robert “Fifi” 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 known and unknown.

eae A. 24

3. I have participated in the investigation of these

offenses committed by those persons named above and as a

result of my present participation in this investigation and

of reports made to me by Agerits under my direction, I am

familiar with all circumstances of the offense. On the basis

of that familiarity, I allege the facts contained in the

paragraphs below to show that:

(a) There is probable cause to believe that Robert

“Fifi”? 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,

have been and are now presently engaged in an illegal

gambling business which makes use of communication

facilities for the purpose of conducting this illegal gambling

business and which involves five or more persons and has a

’ gross revenue of $2,000 or more in any single day and has

been and remains in substantially continuous operation for a

period in excess of 30 days. Through investigation

conducted by myself and other Special Agents of the

Baltimore Federal Bureau of Investigation Office, I believe

that this illegal gambling business operates in the following

manner:

Robert “Fifi” London, Albert Carmen Isella and

Richard “Dick” Genco are in partnership in the “lay-off”

part of an extensive illegal gambling business. This “lay-off”

partnership specializes in purchasing heavily bet numbers “or

other wagers from the lower level numbers operators and is

necessary for these backers to insure that if there were a

“hit” on a heavily bet number, they would not lose a great

deal of money. From my experience, I know that the

“lay-off” usually occurs between 2:00 p.m. and 4:00 p.m.

and is accomplished prior to the first digit of the winning

number being determined. Information set forth indicates

that Robert Leroy Himes and Susan Himes are handling the

lay-off office for London, Isella and Genco and that they

A. 25

cae sRebieson,: ony Ambrose | Robinson: = other

backers 9s,, yet. unknown, are. the. backers of large scale

illegal, ; numbers :lottesies! from. whom’. London ° will ‘take

Jay-off wagers. This: illegal: gambling, business’ is conducted in

violation. of. the: Annotated: Codé of Maryland, Article 27,

Section 240. (Bookmaking) and Section 356 (Lottery) and is

_thereby.:in violation. of Sections 1955 = of Title 18,

United States Code.

Ab) Thete is probable’ cause’ for: belief «that evidence

ofthese offenses willbe ‘obtained through the installation of

'@, device . to, register: telephone “numbers! called from the

telephone number. oe said registration being

herein aggliad fesitsrnmotni ori

j Hheisrodorio:

’ AY Theres:ié ‘podbebied | cause '- to 2idbeve’! that the

saloshoae, «mustiben | 361-679-6473: subscribed ‘to ‘in ‘the name

Of; Susan Mo Price;!4028:Erwin Drive,’ Joppaj Maryland, has

been and: .is; being: and» will, be used for: cafrying out the

offenses . ne ee ah

appears. more, fully: hereafter.2.: i motenrol

silo yi smempisd seit ;

to molizivne INFORMANT RELIABILITY

’Tnformant number one eS been. furnishing, information

to the Federal Bureau of Investigation, Baltimore, Maryland,

jalitting on Sa Bg ayy of the

L5i it att } asd area.

, by Tg number .one -has, been

cit dpvestigation .and has, always

be be accurate. Information, from this, informant has

resul quay t.. and. conviction ..of approximately 25

nda 99n he py renting. share, in. fi “ast two

rt ow

4 7

A. 26

Informant number two has been furnishing information

to the Federal Bureau of Investigation, Baltimore, Maryland,

for approximately one year, said information relating to

gambling activity in the Baltimore, Maryland, area. All of

the information furnished by informant number two has

been corroborated by independent investigation by the

Baltimore Office of the Federal Bureau of investigation and

the Baltimore City Police Department and has always proven

to be accurate. This informant has been associated with

members of the gambling community in Baltimore for over

10 years and has been involved in wagering activities for a

like period of time.

Informant number three has been fumishing

information to the Federal Bureau of Investigation,

Baltimore, Maryland, for approximately two years, said

information relating to gambling activity in the Baltimore,

‘Maryland area. All of the information furnished by

informant number three has been corroborated by

dependent investigation by the Federal Bureau of

Investigation and the Baltimore City Police Department and

has always proven to be accurate. Information from this

informant has resulted in the arrest and conviction of at

least six individuals on Federal gambling charges in the past

year. Also, information furnished by this informant and

subsequently turned over to the Baltimore City Police

Department has resulted in the arrest and conviction of

approximately eight individuals on various State Weptione

during the past year.

Informant number four has been furnishing information

to the Federal Bureau of Investigation, Baltimore, Maryland,

for approximately 10 years. This information has related to

gambling activity in the Baltimore area. This source has

associated with members of the Baltimore gambling

community for a number of years and has directly engaged

in wagering activities. Information from this informant has

resulted in the arrest and conviction of a major gambling

figure on Federal gambling charges. All of the information

A. 27

furnished by informant number four has been corroborated

by independent investigation conducted by the Federal

Bureau of Investigation and local authorities and has always

proven to be accurate.

Informant number five has been furnishing information

to the Federal Bureau of Investigation, Baltimore, Maryland,

for appreximately one year, said information relating to

gambling activity in the Baltimore, Maryland, area. All of

the information furnished by informant number five has

been corroborated by independent investigation by the

Federal Bureau of Investigation and that information has

always proven to be accurate. This informant has been

involved in wagering activities in the Baltimore area for

more than nine years and is personally acquainted with

many of the Baltimore gambling figures. Information

furnished by this informant has led to the arrest of eight

individuals on Federal gambling charges and the conviction

of one individual on Federal gambling charges. The

remaining seven are awaiting trial.

A. 28

FACTS AND CIRCUMSTANCES

A. GENERAL DESCRIPTION OF THE GAMBLING

BUSINESS

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

1967, Robert “Fifi” London was arrested for violation of

the wagering tax laws. The case was later dismissed because

? On June 26, 1974, your affiant reviewed Federal

Bureau of Investigation Identification Record number 388

A. 29

Isella® are in partnership in the major numbers layoff

operation for the Baltimore area. Informant number one

advised that London has a 75 percent interest in this

operation while Genco and Isella share a 25 percent

interest. Informant number Je learned of this through his

direct contact with Albert Isella.

Informant number one advised your affiant on June

24, 1974, that as of that date that Isella makes at least

one “lay-off” call daily between 3:00 and 3:30 p.m. Isella

makes this call to a numbers backer who lays-off to Isella.

Informant number one also stated that the backers of the

illegal numbers operation settle up with the lay-off people

3 On June 25, 1974, your affiant reviewed the Federal

Bureau of Investigation Identification Record for Albert

Isella under FBI record number 398 594 E. This record

indicated that Isella had been arrested on six different

occasions on gambling or gambling related charges in the

Baltimore area. Of these arrests, he was sentenced to one

year at the Maryland House of Correction, sentence

suspended, to pay $1,000 and costs.

Special Agents Don L. Hubbard and Robert H. Twigg

advised your affiant on June 25, 1974, that they were

conducting a surveillance of Albert Isella on March 27,

* 1974, at which time they observed him throw certain papers

out of his car on Philadelphia Road at approximately 9:54

a.m. Special Agent John F. Donahue advised your affiant

that he had recovered these papers in the middle of the

road directly in front of 8413 Philadelphia Road, Baltimore,

and that these same papers had been submitted to the FBI

Laboratory for analysis. The FBI Laboratory indicated that .

the submitted material was of the type found in and

associated with the numbers operation handling wagers of

three digit numbers. These items were of the type possessed

by one in the supervisory level of the operation as opposed

to a mere bettor. They also found that several of the

wagers were in even amounts which suggested the possibility

that these were layoff wagers.

—-.

——

A. 30

between Monday and Wednesday of each week for the

previous week’s work. Some of the backers appear

personally at London’s office, in the basement of 1202 N.

Charles Street for the purpose of discussing the financial

status of their accounts. Informant number one obtained

this information from those involved in this operation.

Informant number one advised that on Wednesday

moming, May 22, i974, Richard Genco was observed by

him in Robert London’s office in the basement of 1202

North Charles Street and that he had learned through

others involved in the illegal gambling business that Genco

and London had conversation in the office regarding

setting up the previous week’s “lay-off”. Informant number

one advised that Albert Isella advised him that he

personally goes to London’s office on Charles Street in

the mornings at the first of the week to discuss with

London matters that arise in relation to the “lay-off”.

Special Agent Thomas A. Kelley advised your affiant

that on June 17, 1974, he had maintained a surveillance

in the vicinity of 1202 North Charles Street beginning at

9:30 am. At approximately 9:44 am., Special Agent

Kelley observed Robert London come out of 1202 N.

Charles Street and place money in a parking meter where

a white Lincoln Continental, Virginia license DSG 857 was

parked. London then re-entered 1202 N. Charles Street. At

approximately 10:26 a.m., Special Agent Kelley observed

Albert Isella entering 1202 N.. Charles Street. Isella exited

this location at approximately 10:42 a.m.

Special Agent Don L. Hubbard advised your affiant

that on July 1, 1974, dufing the course of a surveillance at

1202 N. Charles Street, he observed Albert Isella park a

blue over white Chevrolet, Maryland license HH 4962 at

1202 N. Charles Street. This occurred at approximately

10:43 a.m. On this same date, your affiant observed Isella

entering 1202 N. Charles Street at approximately 10:44 a.m.

A. 31

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 1202 North Charles Street, Baltimore, Maryland, on the

morning of July 15, 1974, in order to obtain 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.

Informant number two advised your affiant on May 7,

1974, that Richard Genco and Robert “Fifi London are

conducting the major gambling “lay-off” operation for the

Baltimore area. Informant number two has learned of this

through conversations with Richard Genco and London

regarding the “lay-off” business. Informant number two

advised that as of this date an unknown male will call the

momaatag Bo ge Bors Bane eA cele sar Me

he had learned through conversations 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 two advised

that he had learned from Richard Genco during the same

period that Brzostek is laying off to Genco.

Informant number two further stated that he knew

through personal contact with Genco that Genco would

type of change to be made by the principal figure in the

“lay-off” business. Informant number two 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.

* On June 26, 1974, your affiant reviewed FBI record

number 827 215 G which indicated

once

Informant number two advised your affiant on June

11, 1974, that during the last week in May, 1974, the

11, 1974 that he had learned through conversations with

Orva Elerson “Lucky” Robinson during the past week that

Robinson’s numbers operation, which he estimated to be in

excess of $16,000 a week, was laying off to Robert “Fifi”

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.‘

5 On June. 26, 1974, your affiant reviewed FBI record

number 380 863 E for Orva Elerson Robinson which

indicated that he had five prior arrests. No dispositions were

available on this record.

Special Agent Kevin Foley advised your affiant on July

8, 1974, that he, along with another Special Agent of the

Baltimore FBi Of‘ice, interviewed Orva Elerson Robinson

regarding the alleged federal violation by Robinson. During

the course of this interview, Robinson stated that Ambrose

Wilson Robinson was his brother.

~ On June 26, 1974, Special Agert Byron E. Foy advised

your affiant that on the same date he checked the arrest

A. 34

Special Agent John C. Bonner advised your affiant that

on June 20, 1974, informant number four had adviscd him

that Ambrose Robinson was currently the backer in a major

numbers lottery which lays-off between $10,000 and

$12,000 a week to Robert “Fifi London. This source

learned of this information through conversations with one

of the principals. Informant number four 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 directly to

London’s office at 1202 N. Charles Street to collect the

money in order to pay-off the winners. _

; Special Agent Philip G. Cabaud, Jr., advised your

affiant that on June 19, 1974, he had maintained a physic

‘surveillance. in the vicinity of 1202 N. Charles Stre

Special Agent Cabaud advised that during the course of this

surveillance he had observed Robert “Fifi London at

approximately 10:41 am. exit 1202 North Charles Street

+» § (con’d)

record of Ambrose Wilson Robinson, date of birth April 28,

1915, at Central Records, Baltimore City Police Department,

Baltimore, Maryland, which revealed that Ambrose Wilson

Robinson, FBI Number 828 629 E, has an FBI record

indicating three arrests for gambling related violations, and

one arrest for bribery, all by the Baltimore City Police

Department. Robinson pleaded guilty and was fined $250.00

plus court costs for a gambling arrest dating back “to

October 19, 1957.

Baltimore City Police Department records further

revealed that on Ambrose Robinson’s most recent arrest for

bribery that he pleaded guilty, to’ attempting to bribe Sgt.

Howard Peacock, Baltimore City’ Police Department, to

influence him in the performance of his official duty in a

gambling related case entitled the State of Maryland vs

Alfred Robinson and Bernice Voss. Ambrose Robinson

received an eight year suspended sentence plus a $5,000 fine

plus court costs.

A. 35

and then re-enter this location at approximately 10:45 a.m.

At approximately 11:27 a.m. a stocky built Negro male was

observed. entering 1202 N. Charles Street and at

approximately 12:05 p.m. this same Negro male was

observed exiting 1202 N. Charles Street.

Special Agent William J. C. Agnew, Jr., advised your

affiant that .on this date he had observed the

aforementioned Negro male coming from the vicinity of

1202 N. Charles Street at approximately 12:05 p.m. and

entering a late model Cadillac bearing Maryland license GH

4752° and driving from the area.

Informant number five advised Special Agent David E.

Faulkner on May 31, 1974, who advised your affiant that

Robert John Thibou’ is presently backing a large scale

6 Oh June 24, 1974, your affiant caused a check to

be made. of the records of the Maryland Motor Vehicle

Administration through the Maryland Inter-Agency Law

Enforcement System (MILES) Computer which indicated

that Maryland license GH 4752 is for a 1971 four-door

Cadillac registered to Ambrose Wilson Robinson, 410 Ivy

Church Road, Baltimore, Maryland.

On June 26, 1974, Special Agent Philip G. Cabaud, Jr.

advised your affiant after viewing a Baltimore City Police

Department photograph dated June 13, 1972, of Ambrose

W. Robinson that this photograph was identical to the

individual. entering at 11:27 a.m. and exiting at 12:05 p.m.

from 1202 N. Charles Street on June 19, 1974.

7 On June 20, 1974, Special Clerk Patrick W. Marshall,

Baltimore Federal Bureau of Investigation, caused a review

to be made of the records of the Baltimore City Police

Department which indicated that Robert John Thibou had

been arrested on six different occasions by the Baltimore

City Police Department on various charges. In 1963 he was

charged with maintaining a house for gambling and fined

$1,000 plus costs. Also he was charged with operating and

maintaining a gambling device and fined $500 plus costs. On

three subsequent occasions involving gambling charges he

was either found not guilty or no disposition was available.

A. 36

numbers operation handling between $80,000 and $90,000

in weekly wagers. Informant number five advised that

Thibou is either a partner of Robert “Fifi” London or lays

off to London.

B. INFORMATION CONCERNING USE OF TELEPHONE

NUMBER (301) 679-6473 BY THE GAMBLING BUSINESS

Informant number five advised that Bobby Himes® is

presently making the lay-off calls for London. Informant

number five has learned this through conversations with a

principal in this lay-off operation. This principal in the

operation indicated to informant number five that London’s

lay-off business will total between $70,000 and $90,000

weekly in lay-off bets. Informant number five advised that

Himes handles the lay-off work from a telephone in his

home in the Pasadena, Maryland, area, and is paid

approximately $300 a week for this.

Informant number five advised Special Agent Jerry W.

Bastin on June 5, 1974, who advised your affiant that

Himes is presently making the lay-off calls from his home in

the Pasadena area. Informant number five advised that there

were two telephones at this location and the. telephone

which was not being used for handling the lay-off was

® On June 20, 1974, the records of the Baltimore City

Police Department were caused to be reviewed by Special

Clerk Patrick W. Marshall. These records indicated that

Robert Leroy Himes, 2803 Indiana Avenue, had been

arrested on approximately 20 occasions by the Baltimore

City Police Department and has been found guilty on five

different occasions on charges of larceny, assault, false

pretense, drunk on a public street and resisting arrest.

A. 37

telephone number 301-255-1328.° Informant number five

states that Himes made use of the second telephone at this

location to make the outgoing lay-off calls and when he was

out of town his wife, Susan, would handle the lay-off calls.

Informant number five advised Special Agent Jerry W.

Bastin on June 17, 1974, who advised your affiant that

Himes had been out of town during most of the last week

of May, 1974, and that during this period his wife handled

the lay-off calls in his absence.'°

On June 11, 1974, your affiant observed a 1969 green

Pontiac bearing Maryland license PS 8690'' and driven by

Robert Leroy Himes park in front of 1476 Park Lane,

Pasadena, Maryland, at approximately 11:44 p.m. This

vehicle remained at that location during the course of the

surveillance which terminated at 3:30 p.m. on the same

date. ~

% On June 24, 1974, your affiant caused a review to

be made of the records of the Chesapeake and Potomac

(C&P) Telephone Company which indicated that telephone

number 301-255-1328 is a non-published telephone installed

on February 5, 1974, in the name of Mrs. Susan M. Price

and located at 1476 Park Lane. These records also indicated

that telephone number 301-255-1320 is an auxiliary service

in the name of the above named individual at the same

location. _

'® See information furnished by informant number

two on page 11 of this affidavit.

1! On June 24, 1974, your affiant caused a check to

be masde of the records of the Maryland Motor Vehicle

Administration through the Maryland Inter-Agency Law

Enforcement System (MILES) Computer which indicated

that Maryland license PS 8690 is for a 1969 Pontiac,

two-door, registered to Susan May Himes, 1476 Park Lane,

Pasadena, Maryland.

a >

A. 38

On June 12, 1974, your affiant observed the

above-described Pontiac parked at 1476 Park Lane,

Pasadena, Maryland, at 10:15 a.m. This vehicle remained at

that location until 3:55 p.m. at which time Robert Himes,

an unknown white female, and a child exited 1476 Park

Lane and got into this Pontiac with Himes driving. This

vehicle proceeded from the area to Maryland Route 100 and

then on Maryland Route 2.

On June 17, 1974, Special Agent John F. Donohue

advised your affiant that he had initiated a surveillance on

this date in the ficinity of 1476 Park Lane, Pasadena,

Maryland, at 1:45 p.m. at which time he had observed the

above Pontiac parked in front of 1476 Park Lane. This

vehicle remained at this location from this time until

approximately 5:30 p.m. «=. which time the surveillance was

terminated.

On June 18, 1974, Special Agent John F. Donohue

advised your affiant that on this date he had maintained a

surveillance from 2:15 p.m. to 5:15 p.m. in the vicinity of

1476 Park Lane, Pasadena, during which time this vehicle

remained parked in front of this location.

On June 19, 1974, ‘Special Agents John F. Donohue

and Ronald B. Miller advised your affiant that on this date

at approximately 2:16 p.m. they observed a 1969 green

Pontiac bearing Maryland license PS 8690 driven by a white

male who appeared to ve identical with Robert Leroy

Himes turn off Bodkin Road onto Park Lane in Pasadena,

Maryland. At approximately 2:18 p.m. Special Agent John

F. Donohue observed this same vehicle parked at 1476 Park

Lane between 2:18 and 3:50 p.m. This vehicle remained

parked. at this location. At 3:56 p.m. Special Agents Ronald

B. Miller and John F. Donohue observed this same Pontiac

being driven by Robert Leroy Himes proceed from Park

Lane to Bodkin Road.

A. 39

On June 25, 1974, Special Agent John F. Donohue

advised your affiant that he had conducted a surveillance in

the vicinity of 1476 Park Lane, Pasadena, Maryland,

between 3:05 p.m. and 4:07 p.m. during which time this

vehicle was observed on several different occasions to be

parked in front of this location.

The records of the Chesapeake and Potomac (C&P)

Telephone Company, as checked by your affiant on June

26, 1974, indicated that telephone service to 1476 Park

Lane, Pasadena, Maryland, was to be discontinued as of

June 26, 1974. This service was transferred in the name of

Susan Price, 1028 Erwin Drive, Joppa, Maryland, effective

June 25, 1974. The numbers utilized on Erwin Drive are a

main number of 679-6477 and 679-6473 which is an

auxiliary number.

On Jane 26, 1974, Special Agents Philip G. Cabaud,

Jr., and Ronald B. Miller advised your affiant that on this

date at 11:45 a.m. they observed Robert Leroy Himes in

the doorway at 1028 Erwin Drive, Joppa, Maryland. A 1967

green Pontiac bearing Maryland license PA 5707'? and a

1969 Pontiac bearing Maryland license PS 8690 were

observed parked in the vicinity of this address. At 12:20

p.m. a check was again made at this address and the same

vehicles were observed to be parked in the same location at

this address. At 1:40 p.m. Robert Leroy Himes was

observed to be standing in the front yard at this address.

'2 On February 26, 1974, your affiant caused a check

to be made of the records of the Motor Vehicle

Administration for the State of Maryland Inter-Agency Law

Enforcement System (MILES) Computer which indicated

that Maryland license PA 5707 is for a 1967 Pontiac

two-door, registered to Susan May Himes, 1476 Park Lane,

Pasadena, Maryland, and described as a white female, 5°2”

tall, 120 pounds, date of birth June 8, 1948.

A. 40

On June 28, 1974, informant number five 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 Joppa, Maryland. This

move had occurred during the last week of June, 1974.

Informant number five further advised that 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 cailed him at this location on at least one

occasion to take care of matters that related to the

“lay-off” business. Himes 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 in the name of his wife

Susan and that they utilized the auxiliary phone to make

the daily lay-off calls to the different backers.

Informant number two advised your affiant on July 3,

1974, that he had beer 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 the lay-off call in

May with the exception of the last week in May when the

caller was a female. This source advised that this call

continued to be made between 3:00 and 3:30 each day.

Informant number two 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 offtce

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.

Special Agents Ronald B. Miller and Philip G. Cabaud,

Jr., advised your affiant that on July 1, 1974, they had

observed Robert Himes exit a green Pontiac, Maryland

license PS 8690 at 1028 Erwin Drive, Joppa, Maryland. This

A. 41

occurred at apptoximately 1:50 p.m. This vehicle was

observed to still be parked at this location at 3:15 p.m. on

this date.

Special Agent Ronald B. Miller advised your affiant

that on July 2 and 3, 1974, he had maintained surveillance

in the vicinity of 1028 Erwin Drive. On July 2, 1974,

between 3:00 and 3:30 p.m., he observed a green Pontiac,

Maryland license PA 5707 (previously noted to be registered

to Susan Himes) parked at 1028 Erwin Drive. On July 3.

1974, Special Agent Ronald B. Miller observed the two

Pontiacs previously noted to be registered to Susan Himes,

parked at 1028 Erwin Drive between approximately 12

noon at 2:00 p.m.

Informant number one advised your affiant on July 8,

1974, that for the past two weeks one of the individual

backers: who had previously been receiving a lay-off call

from Albert Isella was now receiving this call from an

individual known as Bobby or a woman identified as

Bobby’s wife. This source also advised that through

conversation by a principal in this gambling operation that

“Fifi” London was maintaining an office in Joppa,

Maryland, for the purpose of calling the offices of numbers

backers on a daily basis between the hours of 1:00 and

3:30 p.m. This source further advised that he had learned

that this individual in Joppa maintained his records on

water soluble paper and that once a day he would either:

(1) Call these records to London, Isella or Genco.

(2) See that the records are personally delivered to one

of the three named in (1) above.

Section 803 of Title VIII, entitled Syndicated

Gambling, or the “Organized Crime Control Act of 1970”,

Public Law 91-452, 90th Congress, approved October 15,

1971, amended chapter 95, Title 18, United States Code, by

FR FT.

A. 42

adding a new section, Section 1955, prohibition of illegal

gambling businesses. Section 801 of Title VIII of this Act

contains special findings that illegal gambling involves

widespread use of, and has an effect on, interstate

commerce and facilities thereof.

* NEED FOR INTERCEPTION

The registration of numbers called by the telephone

specified is necessary to the success of the investigation for

the following reasons:

1. 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” 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 to the “lay-off” part of a

gambling operation. I have found through my experience

A. 43

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.

relied upon to truthfully testify to the violations in

question.

(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 themselves and their close

working associates. Together 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 to the manner in which the violations are

carried out, the interception of these communications is the

A. 44

only available method of investigation which has a

reasonable likelihood of securing the evidence necessary to

prove the commission of this violaticn.

4. In view of the information developed, as set forth

above, the activity to be electronically covered is believed to

be a continuing conspiracy. It is therefore believed that the

evidence sought will be obtained on a continuing basis on a

number of days following the first receipt of the particular

communications which are the object of this request.

Therefore, it is requested that these interceptions not

terminate when the sought communications are first

obtained and that this authority continue for a period of 20

days thereafter.

/s) JOHN D. HUNTLEY, JR.

Subscribed and sworn to before me this 24th day of July,

1974.

/s/ (illegible)

ANNEX C

AUTOMOBILES TO BE SEARCHED

Description of Automobile Magistrate's Docket Number

1. 1974 Buick Station Wagon

Maryland License PN 2851

Vehicle Identification Number

4K35J4G143772 1-74-3248-M

2. 1974 Imperial, Four-door Sedan

Maryland License MW 6742

Vehicle Identification Number

YM43T4C 137342 1-74-3249-M

A. 45

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

(Misc No. 94 4)

IN THE MATTER OF THE APPLICATION

OF THE UNITED STATES OF AMERICA FOR

AN ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICATIONS

AFFIDAVIT

John D. Huntley, Jr., Special Agent, Federal Bureau of

Investigation, Baltimore, Maryland, being duly sworn states:

1. | am an “investigative or law enforcement officer. . . of

the United States” within the meaning of Section 2510 (7) of

Title 18, United States Code — that is, an officer of the United

States who is empowered by law to conduct investigations and

to make arrests for offenses enumerated in Section 2516 of

Title 18, United States Code.

2. Your affiant seeks authorization to intercept wire com-

munications to an from telephone number (301) 679-6473 sub-

scribed to by Susan M. Price, 1028 Erwin Drive, Joppa,

Maryland, concerning offenses involving violations of Section

1955 of Title 18, United States Code, and a conspiracy to vio-

late this statute which have been and are being committed by

Robert “Fifi” London, Albert Carmen Isella, Richard “Dick”

Genco, Robert Leroy Himes, Susan Himes, Robert John

Thibou, Melvin Eugene Brzostek, Orva Elerson “Lucky” Robin-

son, Ambrose Robinson, and others known and unknown.

3. I have participated in the investigation of these offenses

committed by those persons named above 2na as a result of my

present participation in this investigation and of reports made

to me by Agents under my direction, I ain familiar with all cir-

cumstances of the offense. On the basis of that familiarity, I

allege the facts contained in the paragraphs below to show that:

A. 46

(a) There is probable cause to believe that Robert

“Fifi” 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 known and unknown, have been

and are now presently engaged in an illegal gambling business

which makes use of communication facilities for the purpose of

conducting this illegal gambling business and which involves five

or more persons and has a gross revenue of $2,000 or more in

any single day and has been and remains in substantially con-

tinuous operation for a period in excess of 30 days. Through

investigation conducted by myself and other Special Agents of

the Baltimore Federal Bureau of Investigation Office, I believe

that this illegal gambling business operates in the following

manner:

Robert “Fifi” London, Albert Carmen Isella and Richard

“Dick” Genco are in partnership in the “lay-off” part of an ex-

tensive illegal gambling business. This “lay-off” partnership

specializes in purchasing heavily bet numbers or other wagers

from the lower level numbers operators and is necessary for

these backers to insure that if there were a “hit” on a heavily

bet number, they would not lose a great deal of money. From

my experience, I know that the “lay-off” usually occurs

between 2:00 p.m. and 4:00 p.m. and is accomplished prior to

the first digit of the winning number being determined. Infor-

mation set forth indicates that Robert Leroy Himes and Susan

Mae Himes, also known as Susan Mae Price, are working for

London, Isella, and Genco in the illegal gambling business and

as a function of this employment they will make daily calls ex-

cept on Sunday to the backers to determine which numbers are

to be laid-off. After determining the winning number for the

day from Acme News Service, they will again telephone the

backers.when necessary to advise them of any winning number

wagers which have been “laid-off”. Information set forth below

also shows probable cause to believe that Melvin Eugene

Brzostek, Robert John Thibou, Orva Elerson “Lucky”

Robinson and Ambrose Robinson and other backers as yet un-

known, are the backers of large scale illegal numbers lotteries

A. 47

from whom London will take lay-off wagers. I know from my

experience and the experience of other Special Agents of the

Federal Bureau of Investigation familiar with illegal gambling

activities in the Baltimore, Maryland, area, that the settling up

of accounts between numbers backers and lay-off operators

customarily occurs at least once each week.

This illegal gambling business is conducted in violation of

the Annotated Code of Maryland, Article 27, Section 240

(Bookmaking) and Section 356 (Lottery) and is thereby in

violation of Sections 1955 and 371 of Title 18, United States

Code.

(b) There is probable cause for belief that evidence of

these offenses will be obtained through the interception of wire

communications, authorization for said interception being

herein applied for.

_(c) There is probable cause to believe that the tele-

phone subscribed to . the name of Susan M. Price, 1028 Erwin

Drive, Joppa, Maryland, has been and is being and will be used

for carrying out the offenses set out in paragraph 3(a) above, all

of which appears more fully hereafter.

INFORMANT RELIABILITY

Informant number one has been furnishing information to

the Federal Bureau of Investigation, Baltimore, Maryland, for

approximately four years, said information relating to gambling

activity in the Baltimore area. All of the information furnished

by informant number one has been corroborated by independ-

ent investigation and has always proved to be accurate. Informa- —

tion from this informant has resulted in the arrest and convic-

tion of approximately 25 individuals on Federal gambling

charges in the past two years.

Informant number two has been furnishing information to

the Maryland State Police for approximately three years, said

A. 48

information relating to illegal gambling activity in the Balti-

more, Maryland, area. The Maryland State Police have advised

the Federal Bureau of Investigation that the information fur-

nished by this informant has resulted in the arrest and convic-

tion of four individuals for violation of the gambling laws of

Maryland and in the recovery of stolen property in other state

cases. The information furnished by informant number two has

been corroborated by independent investigation by the

Maryland State Police and has always proven accurate.

Informant number three has been furnishing information

to the Federal Bureau of Investigation, Baltimore, Maryland,

for approximately one year, said information relating to

gambling activity in the Baltimore, Maryland, area. All of the

information furnished by informant number three has been

corroborated by independent investigation by the Baltimore

Office of the Federal Bureau of Investigation and the Baltimore

City Police Department and has always proven to be accurate.

This informant has been associated with members of the

gambling community in Baltimore for over 10 years and has

been involved in wagering activities for a like period of time.

Informant number four has been furnishing information ‘>

the Federal Bureau of Investigation, Baltimore, Maryland, for

approximately two years, said information relating to gambling

activity in the Baltimore, Maryland, area. All of the information

furnished by informant number four has been corroborated by

independent investigation by the Federal Bureau of Investiga-

tion and the Baltimore City Police Department and has always

proven to be accurate. Information from this informant has

resulted in the arrest and conviction of at least six individuals

on Federal gambling charges in the past year. Also, information

furnished by this informant and subsequently turned over to

the Baltimore City Police Department has resulted in the arrest

and conviction of approximately eight individuals on various

state violations during the past year.

Informant number five has been furnishing information to

the Federal Bureau of Investigation, Baltimore, Maryland, for

A. 49

approximately 10 years. This information has related to

gambling activity in the Baltimore area. This source has

associated with members of the Baltimore gambling community

for a number of years and has directly engaged in wagering .

activities. Information from this informant has resulted in the

arrest and conviction of a major gambling figure on Federal

gambling charges. All of the information furnished by inform-

ant number five has been corroborated by independent investi-

gation conducted by the Federal Bureau of Investigation and

local authorities and has always proven to be accurate.

Informant number six has been furnishing information to

the Federal Bureau of Investigation, Baltimore, Maryland, for

approximately one year, said information relating to gambling

activity in the Baltimore, Maryland, area. All of the information

furnished by informant number six has been corroborated by

independent investigation by the Federal Bureau of Investiga-

tion and that information has always proven to be accurate.

This informant has been involved in wagering activities in the

Baltimore area for more than nine years and is personally

acquainted with many of the Baltimore gambling figures.

Information furnished by this informant has led to the arrest of

eight individuals on Federal gambling charges and the convic-

tion of one individual on Federal gambling charges and the

conviction of one individual on Federal gambling charges. The

remaining seven are awaiting trial.

FACTS AND CIRCUMSTANCES

A. INFORMATION CONCERNING SIZE AND SCOPE

OF THE GAMBLING BUSINESS

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

LT ea

FL" & ES WR)

A. 50

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 operation for the Baltimore area.

Informant number one also advised that London. has a 75 per-

cent interest. Informant number one learned this jnformation

through his direct conversations with Albert Isella during the

prior week.

1 On June 20, 1974, a review was caused to be made of

the records of the Baltimore City Police Department by Special

Clerk Patrick W. Marshall, Baltimore Office of the Federal

Bureau of Investigation who advised your affiant that these

records indicated that Robert “Fifi” London was arrested on

November 14, 1969, on charges of lottery, conspiracy to vio-

late lottery laws and violation of lottery laws. No disposition

was available.

On July 18, 1974, Paul R. Kramer, Deputy United States

Attorney, Baltimore, Maryland, advised that in May, 1967,

Robert “Fifi” London was arrested for violation of the wager-

ing tax laws. The case was later dismissed because of changes in

the wagering tax laws. London was charged and convicted in the

District of Maryland for income tax evasion and on February 4,

1972, London was sentenced to serve 30 months incarceration

and fined $20,000.

2 On June 26, 1974, your affiant reviewed Federal Bureau

of Investigation Identification Record number 388 14! C-for

Richard Genco which indicated he was arrested by the Balti-

more City Police Department in 1956 and charged with five

counts of armed robbery. He was subsequently found guilty and

sentenced to 12 years in the Maryland State Reformatory for

Men. In 1971, Genco was indicted by a Federal Grand Jury in

the District of Maryland and charged with violation of Title 18,

United States Code, Section 1955. This case was dismissed by

the Government in 1973.

3 On June 25, 1974, your affiant reviewed the Federal

Bureau of Investigation Identification Record for Albert Isella

A. 51

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 to a

numbers backer who lays-off to Isella. Informant number one

also stated that the backers of the illegal numbers operation

settle up their accounts with the lay-off people between Mon-

day and Wednesday of each week for the previous week’s work.

Some of the backers appear personally at London’s office in the

basement of 1202 North Charles Street* for the purpose of

discussing the financial status of their accounts. Informant num-

ber one obtained this information from a backer involved in this

operation.

(Footnote 3 continued)

under FBI record number 398 594 E. This record indicated that

Isella had been arrested on six different occasions on gambling

or gambling related charges in the Baltimore area. On one of

these arrests, he was sentenced to one year at the Maryland

House of Correction, sentence suspended, to pay $1,000 and

costs.

Special Agents Don L. Hubbard and Robert H. Twigg

advised your affiant on June 25, 1974, that they were conduct-

ing a surveillance on Albert Isella on March 27, 1974, at which

time they observed him throw. certain papers out of his car on

Philadelphia Road at approximately 9:54 a.m. Special Agent

John F. Donohue advised your affiant that he had recovered

these papers in the middle of the road directly in front of 8413

Philadelphia Road, Baltimore, and that these same papers had

been submitted to the FBI Laboratory for analysis. The FBI

Laboratory indicated that the submitted material was of the

type found in and associated with the numbers operation

handling wagers of three digit numbers. These items were of the

type possessed by one in the supervisory level of the operation —

as opposed to a mere bettor. They also found that several of the

wagers were in the even amounts which suggested the possibility

that these were lay-off wagers.

* On July 18, 1974, your affiant reviewed the records of

the Maryland Department of Licensing and Regulation which

re. eT TST ¥ =

A. 52

Informant number one advised that on Wednesday morn-

ing, 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 others involved in the

illegal gambling business that Genco and London had a conver-

sation 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 June 19, 1974, Special Agent Arthur S. Hamilton ad-

vised 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, that Isella settles up with London for the lay-off every

Monday morning between approximately 10:30 a.m. and 12:00

noon at London’s office at 1202 North Charles Street, Balti-

more, Maryland.

Informant number two is able to furnish this information

as a result of his association with principals of this particular

gambling operation and from having been present during one

such meeting between Isella and London, at 1202 North Charles

Street, Baltimore, Maryland.

Informant number three advised your affianton May 7,

1974, that Richard Genco and Robert “Fifi” London are cur-

rently conducting the major gambling “lay-off” operation for

the Baltimore area. Informant number three has learned this

(Footnote 4 continued)

disclosed that 1202 North Charles Street, Baltimore, Maryland,

is the address of the Aldon Bonding Company, an agency

licensed to underwrite bail bonds in the State of Maryland.

A. 53

information 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. Informant

number three stated that Genco will settle up with certain indi-

vidual backers on Monday, Tuesday, and Wednesday evenings

for the preWous week’s lay-off bets. The settling up involves an

exchange of money only and the backer is generally 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 personal observations this list con-

tained 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.

Informant number three advised on June 3, 1974, that he

had learned through conversations 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.

* On June 26, 1974, your affiant reviewed FBI record

number 827 215 G which indicated that Melvin Eugene

Brzostek was arrested once by the Baltimore City Police Depart-

ment in 1968 for lottery charges. No disposition on this charge

was available. The same record indicated that Brzostek was

arrested in 1972 on Federal gambling charges. A further review

of these records indicated that Brzostek subsequently pleaded

guilty to the Federal gambling charges.

A. 54

‘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 determined for the Baltimore

area. Informant number three advised 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 conversations with Genco and observa-

tions made by informant number three in London’s office in

the basement of 1202 North Charles Street that certain backers

settle up at London’s Office with London personally while

other backers settle up either with Genco or Isella at other loca-

tions. 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” from indi-

vidual 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 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 11,

1974, that he had learned through conversations with Orva

Elierson “Lucky” Robinson during the past week that Robin-

son’s numbers operation, which through personal observation

he estimated to be in excess of $16,000 a week, was laying off

to Robert “Fifi” London. This source further advised that he

had learned during the past week through individucls involved

A. 55

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.® Informant number four

advised your affiant on August 1, 1974, that through contact

with Orya Elerson “Lucky” Robinson that Robinson still main-

tained a large numbers operation and continued to lay-off num-

bers to Robert “Fifi” London.

® On June 26, 1974, your affiant reviewed FBi record

number 380 863 E for Orva Elerson Robinson which indicated

that he had five prior arrests. No dispositions were available on

this record.

Special Agent Kevin Foley advised your affiant on July 8,

1974, that he, along with another Special Agent of the Balti-

more FBI Office, interviewed Orva Elerson Robinson regarding

an alleged Federal violation by Robinson. During the course of

this interview, Robinson stated that Ambrose Wilson Robinson

was his brother.

On June 26, 1974, Special Agent Byron E. Foye advised

your affiant that on the same date he checked the arrest record

of Ambrose Wilson Robinson, date of birth April 28, 1915, at

Central Records, Baltimore City Police Department, Baltimore,

Maryland, which revealed that Ambrose Robinson, FBI Number

828 629 E, has an FBI record indicating three arrests for gam-

bling related violations, and one arrest for bribery, all by the

Baltimore City Police Department. Robinson pleaded guilty and

was fined $250.00 plus court costs for a gambling arrest dating

back to October 19, 1957.

Baltimore City Police Department records further revealed

that on Ambrose Robinson’s most recent arrest for bribery that

he pleaded guilty to attempting to bribe Sergeant Howard

Peacock, Baltimore City Police Department, to influence him in

the performance of his official duty in a gambling related case

entitled the State of Maryland vs. Alfred Robinson and Bernice

Voss. Ambrose Robinson received an eight year suspended

sentence plus a $5,000 fine plus court costs.

A. 56

Special Agent John C. Bonner advised your affiant that on

June 20, 1974, informant number five had advised him that

Ambrose Robinson was currently the backer of a major num-

bers lottery operation which lays-off between $10,000 and

$12,000 a week to Robert “Fifi” Lendon. This source learned

this information through conversation with one of the princi-

pals in this 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

Robert John Thibou’ is presently backing a large scale numbers

operation handling between $80,000 and $90,000 in weekly

wagers. Informant number six advised that Thibou is either a

partner of Robert “Fifi” London or lays off to London.

ROBERT “FIFT” LONDON — ALBERT ISELLA

SURVEILLANCE

Special Agent Thomas A. Kelley advised your affiant that

on June 17, 1974, he had maintained a surveillance in the

7 On June 20, 1974, Special Clerk Patrick W. Marshall,

Baltimore Federal Bureau of Investigation, caused a review to

be made of the records of the Baltimore City Police Department

which indicated that Robert John Thibou had been arrested on

six different occasions by the Baltimore City Police Department

on various charges. In 1963, he was charged with maintaining a

house for gambling and fined $1,000 plus costs. Also he was

charged with operating and maintaining a gambling device and

fined $500 plus costs. On three subsequent occasions involving

gambling charges he was either found not guilty or no disposi-

tion was available.

A. 57

vicinity of 1202 North Charles Street beginning at 9:30 A.M. At

approximately 9:44 A.M. Special Agent Kelley observed Robert

London come out of 1202 North Charles Street and place

money in a parking meter located in front of 1202 North

Charles Street. London then re-entered 1202 North Charles

Street. At approximately 10:26 A.M. Special Agent Kelley

observed Albert Isella entering 1202 North Charles Street. Isella

exited this location at approximately 10:42 A.M.

ALBERT ISELLA SURVEILLANCE

Special Agent Don L. Hubbard advised your affiant that

on July 1, 1974, at approximately 10:45 A.M. he observed

Albert Isella park a blue over white Chevrolet, Maryland license

HH 4962 in front of 1202 North Charles Street. On this same

date, your affiant observed Isella entering 1202 North Charles

Street at approximately 10:44 A.M. Special Agent Hubbard

advised that Isella was observed by him to exit North Charles

Street at approximately 11:10 A.M. on this date.

ROBERT “FIFI” LONDON — AMBROSE ROBINSON

SURVEILLANCE

Special Agent Philip G. Cabaud, Jr., advised your affiant

that on June 19, 1974, he had maintained a physical surveil-

lance in the vicinity of 1202 North Charles Street. Special

Agent Cabaud advised that during the course of this surveillance

he had observed Robert “Fifi” London at approximately 10:41

A.M. exit 1202 North Charles Street and then re-enter this loca-

tion at approximately 10:45 A.M. At approximately 11:27

A.M. a stocky built Negro male was observed entering 1202

North Charles Street and at approximately 12:05 P.M. this same

Negro male was observed exiting 1202 North Charles Street.

Special Agent William J. C. Agnew, Jr., advised your

affiant that on this date he had observed the aforementioned

Negro male coming from the vicinity of 1202 North Charles

Street at approximately 12:05 P.M. and entering a late model

A. 58

Cadillac bearing Maryland license GH 4752® and driving from

the area.

B. INFORMATION CONCERNING USE OF TELEPHONE

NUMBER (301) 679-6473 BY THE GAMBLING

BUSINESS

Informant number six advised Speciai Agent David E.

Faulkner on May 31, 1974, that Bobby Himes® is presently

making the lay-off calls for Robert “Fifi” London. Informant

number six has learned this through conversations with a prin-

cipal in the lay-off operation. This principal in the operation in-

dicated to informant number six that London’s lay-off business

® On June 24, 1974, your affiant caused a check to be

made of the records of the Maryland Motor Vehicle Administra-

tion through the Maryland Inter-Agency Law Enforcement

System (MILES) Computer which indicated that Maryland

license GH 4752 is for a 1971 four-door Cadillac registered to

Ambrose Wilson Robinson, 410 Ivy Church Road, Baltimore,

Maryland.

On June 26, 1974, Specia! Agent Philip G. Cabaud, Jr.,

advised your affiant after viewing a Baltimore City Police

Department photograph dated June 13, 1972 of Ambrose W.

Robinson that this photograph was identical to the individual

entering at 11:27 A.M. and exiting at 12:05 P.M. from 1202

North Charles Street on June 19, 1974.

® On June 20, 1974, the records of the Baltimore City

Police Department were caused to be reviewed by Special Clerk

Patrick W. Marshall. These records indicated that Robert Leroy

Himes, 2803 Indiana Avenue, had been arrested on approxi-

mately 20 occasions by the Baltimore City Police Department

and has been found guilty on five different occasions on charges

of larceny, assault, false pretense, drunk on a public street and

resisting arrest.

A. 59

will total between $70,000 and $90,000 weekly in lay-off bets.

Informant number six advised that Himes handles the lay-off

work from a telephone in his home in the Pasadena, Maryland,

area, and is paid approximately $300 a week for this.

Informant number six advised Special Agent Jerry W.

Bastin on June 5, 1974, who advised your affiant that Himes is

presently making the lay-off calls from his home in the

Pasadena area. Informant number six advised that there were

two telephones at this location and the telephone which was

not being used for handling the lay-off was telephone number

301-255-1328.'° Informant number six stated that Himes

made use of the second telephone at this location to make the

outgoing lay-off calls and when he was out of town his wife,

Susan, would handle the lay-off calls.

Informant number six advised Special Agent Jerry W.

Bastin on June 17, 1974, who advised your affiant that Himes

had been out of town during most of the last week of May,

1974, and that during this period his wife handled *he lay-off

calls in his absence. Informant number six has learned of the

above through a principal in the operation.

Informant number three advised your affiant on June 11,

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

'® On June 25, 1974, your affiant caused a review to be

made of the records of the Chesapeake and Potomac (C&P)

Telephone Company which indicated that telephone number

301-255-1328 is a non-published telephone installed on

February 5, 1974, in the name of Mrs. Susan M. Price and

lecated at 1476 Park Lane. These records also indicated that

telephone number 301-255-1320 is an individual at the same

location.

A GOTO . wi

ie ee ee

A. 60

by the male caller as before during the

period. Informant number three stated he had over-

that the reason that the woman had been

during the last week in May was because her husband,

the lay-off office, had been out of town

during that week and she had been entrusted with handling the

On June 11, 1974, your affiant observed a 1969 green

Pontiac bearing Maryland license PS 8690'' and driven by

Robert Leroy Himes park in front of 1476 Park Lane, Pasadena,

Maryland, at approximately 11:44 P.M. This vehicle remained

at that location during the course of the surveillance which

terminated at 3:30 P.M. on the same date.

On June 12, 1974, your affiant observed the above-

described Pontiac parked at 1476 Park Lane, Pasadena, Mary-

land, at 10:15 A.M. This vehicle remained at that location until

3:55 P.M. at which time Robert Himes, az unknown white

female, and a child exited 1476 Park Lane and got into this

Pontiac with Himes driving. This vehicle proceeded from the

area to Maryland Route 100 and then on Maryland Route 2.

On June 17, 1974, Special Agent John F. Donohue advised

your affiant that he had initiated a surveillance on this date in

the vicinity of 1476 Park Lane, Pasadena, Maryland, at 1:45

P.M. at which time he had observed the above Pontiac parked in

front of 1476 Park Lane. This vehicle remained at this locatjon

from this time until approximately 5:30 P.M. at which time the

surveillance was terminated.

'! On June 24, 1974, your affiant caused a check to be

made of the records of the Maryland Motor Vehicle Adminis-

tration through the Maryland Inter-Agency Law Enforcement

System (MILES) Computer which indicated that Maryland

license PS 8690 is for a 1969 Pontiac, two-door, registered to

Susan May Himes, 1476 Park Lane, Pasadena, Maryland.

A. 61

On June 18, 1974, Special Agent John F. Donohue advised

your affiant that on this date he had maintained a surveillance

from 2:15 P.M. to 5:15 P.M. in the vicinity of 1476 Park Lane,

Pasadena, during which time this vehicle remained parked in

front of this location.

On June 19, 1974, Special Agents John F. Donohue and

Ronald B. Miller advised your affiant that on this date at

approximately 2:16 P.M. they observed a 1969 green Pontiac

bearing Maryland license PS 8690 driven by a white male who

appeared to be identical with Robert Leroy Himes turn off

Bodkin Road onto Park Lane in Pasadena, Maryland. At

approximately 2:18 P.M. Special Agent John F. Donohue

observed this same vehicle parked at 1476 Park Lane between

2:18 and 3:50 P.M. This vehicle remained parked at this loca-

tion. At 3:56 P.M. Special Agents Ronald B. Miller and John F.

Donohue observed this same Pontiac being driven by Robert

Leroy Himes proceed from Park Lane to Bodkin Road.

On June 25, 1974, Special Agent John F. Donohue advised

your affiant that he had conducted a surveillance in the vicinity

of 1476 Park Lane, Pasadena, Maryland, between 3:05 P.M. and

4:07 P.M. during which time this vehicle was observed on

several different occasions to be parked in front of this location.

The records of the Chesapeake and Potomac (C&P) Tele-

phone Company, as checked by your affiant on June 26, 1974,

indicated that telephone service to 1476 Park Lane, Pasadena,

Maryland, was to be discontinued as of June 26, 1974. This

service was transferred in the name of Susan Price, 1028 Erwin

Drive, Joppa, Maryland, effective June 25, 1974. The numbers

utilized on Erwin Drive are a main number of 679-6477 and

679-6473 which is an auxiliary number.

On June 26, 1974, Special Agents Philip G. Cabaud, Jr.,

and Ronald B. Mill-r advised your affiant that on this date at

11:45 A.M. they observed Robert Leroy Himes in the doorway

at 1028 Erwin Drive, Joppa, Maryland. A 1967 green Pontiac

A. 62

bearing Maryland license PA 5707'? and a 1969 green Pontiac

bearing Maryland license PS 8690 were observed parked in the

vicinity of this address. At 12:20 P.M. a check was again made

at this address and the same vehicles were observed to be parked

in the same location at this address. At 1:40 P.M. Robert Leroy

Himes was observed to be standing in the front yard at this

address.

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 Joppa, Maryland. This move had occurred during

the last week of June, 1974. Informant number six further

advised that 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 loca-

tion on at least one occasion to take care of matters that related

to the “lay-off” business. Himes 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 in the name of his wife

Susan and that they utilized 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 the lay-off call in May with the exception

of the last week in May when the caller was a female. This

12 On February 26, 1974, your affiant caused a check to

be made of the records of the Motor Vehicle Administration for

the State of Maryland Inter-Agency Law Enforcement System

(MILES) Computer which indicated that Maryland license PA

5707 is for a 1967 Pontiac two-door, registered to Susan May

Himes, 1476 Park Lane. Pasadena, Maryland, and described as a

white female, 5°2” tall, 120 pounds, date of birth June 8, 1948.

A. 63

source advised that this call continued to be made between 3:00

and 3:30 each day.

Informant number three advised your affiant on July 18

and 30, 1974, that as of these dates 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 main-

tained by London. The source knows of this through direct con-

tact with the individual receiving this call.

Special Agents Ronald B. Miller and Philip G. Cabaud, Jr.,

advised your affiant that on July 1, 1974, they had observed

Robert Himes exit a green Pontiac, Maryland license PS 8690

at 1028 Erwin Drive, Joppa, Maryland. This occurred at ap-

proximately 1:50 P.™ This vehicle was observed to still be

parked at this location at 3:15 P.M. on this date.

Special Agent Ronald B. Miller -advised your affiant that

on July 2 and 3, 1974, he had maintained surveillance in the

vicinity of 1028 Erwin Drive. On July 2, 1974, between 3:00

and 3:30 P.M., he observed a green Pontiac, Maryland license

PA 5707 (previously noted to be registered to Susan Himes)

parked at 1028 Erwin Drive. On July 3, 1974, Special Agent

Ronald B. Miller observed the two Pontiacs previously noted to

be registered to Susan Himes, parked at 1028 Erwin Drive

between approximately 12 noon and 2:00 P.M.

Informant number one advised your affiant on July 8,

1974, that for the past two weeks one of the individual backers

who had previously been receiving a lay-off call from Albert

Isella was now receiving this call from an individual known as

Bobby or a woman identified as Bobby’s wife. This source also

advised that through conversation by a principal in this gam-

bling operation that “Fifi’’ London was maintaining an office in

Joppa, Maryland, for the purpose of calling the offices of num-

bers backers on a daily basis between the hours of 1:00 and

3:30 P.M. This source further advised that he had learned that

A. 64

this individual in Joppa maintained his records on water soluble

paper and that once a day he would either:

(1) Call these records to London, Isella or Genco.

(2) See that the records are personally delivered to

one of the three named in (1) above.

Informant number one advised Special Agent David E.

Faulkner on August 2, 1974, who advised your affiant, that

Robert Fifi London, Albert Isella and Richard Dick Genco con-

tinue as of this date to operate the major lay-off operation for

the Baltimore area. This source advised that he has learned this

information through direct contact with one of the principals

involved during the past week. Informant number one further

advised that he has learned through direct contact with a backer

who laid off to London during the past week that this individu-

al continues to receive a daily lay-off call from the same individ-

uals who have been making this call in the past. Source advised

that he had learned that this call was still currently made from

Fifi London’s “lay-off” office maintained in Joppa, Maryland.

Informant number six advised Special Agent David E.

Faulkner on August 6, 1974, who advised your affiant that as

of August 6, 1974, Bobby Himes and his wife, Susan, continue

to handle the lay-off office for Robert “Fifi” London at their

residence in Joppa, Maryland. This source advised that Himes

continues to be paid approximately $300 per week by London

and is scheduled to be paid Wednesday, August 7, 1974, for the

previous week's service. The source learned this information

through direct contact with one of the principals involved in

this operation during the past week. This source advised that

Acme News Service is presently providing information on race

results from which the winning number is determined. This

source further advised that Himes is currently using this service

to determine the winning number for lay-off purposes.

On July 24, 1974, United States District Judge R. Dorsey

Watkins granted an Order authorizing the use of a device to

A. 65

301-679-6473. subscribed to by Susan M. Price, 1028 Erwin

Drive, Joppa, Maryland. This Order was authorized for a period

of 20 days from the date of the attachment of this device or

until the attainment of the authorized objective.

Set fourth below are the relevant telephone numbers

called, the subscribers to the telephone numbers called, and the

dates and times that these numbers were called :!3

TELEPHONE NUMBER SUBSCPIBER DATES ANP TIITES CALLED

Location #1. 243-3519 Mrs. E. L. Cheatom August 1 - 5:52 p.m.

1922 East 3ist Street August 2 - 6:00 p.m.

Baltimore, Maryland August 6 - 5:58 p.m.

August 7 - 5:58 p.m.

August 8 - 5:59 p.m.

6:22 p.m.

Location #2. 255-€851 M. Francis August 3 - 6:43 p.m.

(See also $380" Lockwood Road 6:44 p.m.

e 437-1645) Pasadena, Maryland 6:45 p.m.

Location #3. 276-4016 Mrs. Cleo Macon August 5 - 12:29 p.m.

1738 North Broadway

Baltimore, Maryland

'3 From my experience I know that the phone man in

lay-off operation makes daily calls to the backers or to someone

designated by the backers to receive their lay-off wagers. I also

know that the call is usually made to each backer or his repre-

sentative at approximately the same time each day (except

Sunday), and that it is not unusual for the location of the

backers representatives who receive this call to change from

time to time in order to avoid detection. I also know that at

approximately 5:30 or 6:00 p.m. each day the phone man in

the lay-off office calls the news service in order to determine

the winning number. The phone man then customarily calls

back the backers who have had a win on a number which has

been laid off. In this telephone call arrangements are made con-

cerning financing the pay off on the winning number. It has also

been my experience that the principal figure or other high level

associates will make daily contact with the lay-off office in

order to determine how much lay-off has been taken on a

winning number. This call will be made after the winning num-

ber is determined which is usually after 4:00 p.m. This is done

in order for the principal to procure adequate funds to pay

individual backers who have laid-off a winning number.

ee le eet ae

— - on eee ee ee rr eee ee ee,

a ee, 6 BE ee ae =

ee ee ee ee es a. ae ee

Location #4.

Location #5.

Location #6.

Location #7.

Location #8.

location #9.

276-1439

285-5025

327-5723.

’

327-5830

342-0185

342-5589

A. 66

J. L. Kirk

Baltimore, Maryland

E. G. Doerr

1604 #4 Georges Court

Baltimore, Maryland

William H. Dudley

1717 N. Washington st.

Baltimore, Maryland

W. A. Wood

1816 N. Castle Street

Baltimore, Maryland

Lucille McFadden

1727 N. Washington St.

Baltimore, Maryland

Mrs. Isiah Holmes

3102 EB. Biddle Street

Baltimore, Maryland

; July 30 - 2:32 p.m.

4114 East Lombard Street August 2 - 2:37

August 3 -

August 5

August

nopust 3 =

August 1 -

August 3 -

August 6 -

2:32

.2:31

2:28

2:35

2:31

6:03

S03

6:20

6:23

6:01

p-m.

p.m.

p-m.

P- a.

p-m.

July 30 @ 1:07 p-m.

August 2 - 1:07 p.m.

August 5 -

August 6 -

August 7 -

August 8 -

1:15

12:32 p.m.

1sll

1:12

1:13

1:01

1:09

1:06

1:03

1:08

1:10

p.m.

p-n.

p-m.

p.m.

p-m.

p.m.

p-m.

July 30 - 3:16 p.m.

August 2 - 3:13 p.m.

August 3 -

August 5 -

3:31

3:34

3:00

3:10

3:11

3:15

4:50

6:01

1:03

6:16

6:05

1:09

6:00

6:01

6:00

p.m.

p.n.

p-m.

p.m.

p-m.

p.m.

p-m.

Pp-m.

p-n.

p.m.

p-m.

1:44" p.m.

6:04

5:58

5:59

p.m.

p-m.

p.m.

(3)

Location #10.

Location #11.

Locetion #12.

Location #13.

Location #14.

367-5197

367-7196

383-0959

437-0007

(See also

636-1845)

437-1645

(See also

255-6851)

A. 67

Sweetie Squ re

4909 Litchf eld

Baltimore, aryland

Reverend Mrs. Pearline

Brook

5015 Pimlico Road

Baltimore, Maryland

E'm and Elm Market

2901 Tlafton -venuec

Baltimore, Maryland

L. N. Holmes, Jr.

614 Lorca Avenue

Beitimore, Maryland

Peggy M. Francis

8380 Lockwood Road

Pasadena, Maryland

July 30 - 2:19 p.m.

3:22 p.m.

3:24 p.m.

3:25 p.m.

August 1 - 5:58 p.m.

August 2 - 3:23 p.m.

3:32 p.m.

August 3 - 3:21 p.m.

3:44 p.m.

3:48 p.m.

6:22 p.m.

August 5 = 3:26 p.m.

6:00 p.m.

6:01 p.m.

August 6 - 2:19 p.m.

2:22 p.m.

3:21 p.m.

5:53 p.m.

August 8 - 5:58 p.m.

July 30 - 2:20 p.m.

August 2 - 2:21 p.m.

5:57 p.m.

5:58 p.m.

August 3 - 2:18 p.m.

August 5 - 2:20 p.m.

August 6 - 2:22 p.m.

3:21 p.m.

August 7 - 2:17 p.m.

2:19 p.m.

August 8 - 2:19 p.m.

2:21 p.m.

August 2 ~ 2:27 p.m.

August 3 - 2:08 p.m.

August 6 - 12:58 p.m.

August 7 - 2:46 p.m.

August 8 - 1:59 p.m.

July 30 - 3:39 p.m.

August 2 - 3:50 p.m.

August 3 - 23:44 p.m.

August 5 - 3:45 p.m.

August 6 - 5:44 p.m.

August 7 - 3:43 p.m.

August 8 - 3:40 p.m.

August 1 - 5:53 p.m.

August 2 - 5:55 p.m.

August 3 - 2:58 p.m.

5:25 p.m.

5:52 p.m.

5:56 p.m.

§:43 p.m.

August 5 - 3:02 p.m,

5:54 p.m.

August 6 - 5:22 p.m.

5:48 p.m.

August 7 - 5:22 p.m,

A. 68

3006 Chelsea Torrace 3:38 p.m.

Baltimore, Maryland 3:42 p.m.

. 5:52 p.m.

July 31 - 3:32 p.m.

3:37 p.m.

3:43 p.m.

6:00 p.m.

August 1 bad 5:57 p-m.

4 ' August 2 - 3:26 p.m.

3:36 p.m.

5:59 p.m.

August 3 - 3:28 p.m.

3:32 p.m.

6:21 p.m.

August 5 - 3:38 p.m.

3:53 p.m.

6:02 p.m.

August 6 - 3:25 p.m.

3:31 p.m.

3:36 p.m.

5:55 p.m.

August 7 - 3:33 p.m.

August 8 - 3:24 p.m.

5:57 p.m.

Location $16. 483-9159 J. Berry July 30 - 1:25 p.m.

4823 Truesdale Avenue 1:27 p.m.

Baltimore, Maryland 1:35 p.m.

1:43 p.m.

1:47 p.m.

August 2 - 12:46 p.m.

l:ll p.m.

1:17 p.n.

1:50 p.m.

August 3 - 12:59 p.m.

1:00 p.m.

1:14 p.m.

1:41 p.m.

August 5 - 12:39 p.m.

1:1] p.m.

1:12 p.m.

1:24 p.m.

1:30 p.m.

1:35 p.m.

1:43 p.m. (2)

1:44 p.m.

1:45 p.m. (2)

1:46 p.m.

August 6 - 12759 p.m.

1:42 p.m.

August 7 - 12:54 p.m.

1:38 p.m.

August 8 - 12:50 p.m.

12:51 p.m.

1:38 p.m.

A. 69

Location #17. 539-8137 John G. Fowlkes

F 1501 Federa) Street

Baltimore, Maryland

Location #18. 547-0362 Miss S. J. West

; 734 W. Payette Street

Baltimore, Maryland

Location 419. 563-2128 R. Stokes

1716 E. Fayette Street

Baltimore, Maryland

Location #20. 566-9206 Solomon s. Lesane

1416 Poplar Grove St.

Baltimore, Maryland

July 30 - 12:07 p.m.

12:18 p.m.

August 2 - 12:13 p.m.

August 3 - 12:04 p.m.

August 5 - 12:02 p.m,

August 6 - 12:04 p.m.

August 7 - 12:05 p.m.

August 8 - 12:11 p.m.

July 30 = 3:31 p.m,

August 2 - 3:29 p.m.

August 3 - 3:32 p.m.

3:40 p.m.

August 5 - 3:32 p.m.

3:35 p.m.

3:42 p.m.

3:44 p.m.

3:49 p.m.

5:00 p.m.

July 30 - 1:25 p.m.

1:27 p.m.

1:29 p.m,

- 6:02 p.m.

1:1ll p.m.

1:30 p.m.

6:02 p.m.

August 3 - 1:30 p.m.

6:19 p.m.

August 5 - 1:12 p.m.

1:24 p.m.

6:06 p.m.

August 6 = 1:21 p.

This text is long and has been trimmed here. Open the source document for the complete record.

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.