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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977

## 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

-
s

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.

2

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.”

3

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).

4

REASONS FOR GRANTING THE WRIT
I.

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:

5

“| 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

6

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.

(c) There is probable cause to believe that the
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

9

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,

10

“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.”

11

(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

12

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.

13

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

15

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.”

s
z
i
4
g

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

16

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

17

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

18

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 ‘

2

obtain authorization for electronic surveillance on the claim
that infiltration was not a practical method to pursue in order

19

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

20

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

21

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.

—

22

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).

24

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

25

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.

26

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,

v.
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.

AS

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.

A.

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.

(c) There are no known witnesses who
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.

C.
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.

4
i

ee

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.

—-.

——
he

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.

(c) There are no known witnesses who could be
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

=r

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
assoc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2084%3A1. Public record. Not legal advice.