Opposition — Smaldone v. United States

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Iu the Supreme Court of the United States

OCTOBER TERM, 1977

CLARENCE M. SMALDONE, et al., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

PAUL J. BRYSH,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

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Page

ETE TIT AT TT He 1

Jurisdiction ___ re aa el ae © Bern 1

Questions presented = = 2

ENT Ee PETE nee eT 3

IESG Se © Ce aE re 6

ip ESET SE OT Ene Ne OREN 22

CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165. 14

Alford v. United States, 282 U.S. 687 19

Henderson v. Kibbe, No. 75-1906, decided

May 16, 1977 _ 11

McGrath v. Vinzant, 528 F. 2d 681, certio-

rari dismissed, 426 U.S. 902 20

Namet v. United States, 373 U.S. 179 ___. 21

Roviaro v. United States, 353 U.S. 53 __. 18

Smith v. Illinois, 390 U.S. 129 19, 20

United States v. Abramson, 553 F.2d

1164, certiorari denied, June 27, 1977

(No. 76-1672) _ 17

United States v. Alvarez, 469 F. 2a 1065. 19

United States v. Armocida, 515 F.2d 29,

certiorari denied sub nom. Gazal v.

v. United States, 423 U.S. 858 14

United States v. Bow, 5380 F.2d 1258... -s—s-« 9, 13

United States v. Brick, 502 F.2d 219 16

United States v. Bridges, 493 F.2d 918. 10, 11

United States v. Brodson, 528 F.2d 214 __ 15

United States v. Crockett, 506 F.2d 759,

certiorari denied, 423 U.S. 824 20

I!

Cases—Continued

United States v. Donovan, 429 U.S. 413 __.

United States v. Edwards, 503 F.2d 838,

certiorari denied, 420 U.S. 977

United States v. Kahn, 415 U.S. 143 ____.

United States v. Kalustian, 529 U.S. 585 _

United States v. Leon, 534 F.2d 667

United States v. Marrifield, 515 F.2d 877.

United States v. Mattucci, 502 U.S. 883_.

United States v. Pezzino, 535 F.2d 483 __

United States v. Poms; 484 F.2d 919 ____.

United States v. Robertson, 504 F.2d 289,

certiorari denied, 421 U.S. 913

United States v. Sklaroff, 552 F.2d 1156

United States v. Smaldone, 485 F.2d 1333,

certiorari denied, 416 U.S. 986...

United States v. Snow, 521 F.2d 730, cer-

tiorari denied, 423 U.S. 1090 .

United States v. Snyder, 505 F.2d 595, © cer-

tiorari denied, 420 U.S. 993

United States v. Tarter, 522 F.2d 520 ___-

United States v. Turner, 528 F.2d 143,

certiorari denied sub nom. Grimes v.

United States, 423 U.S. 996 _

United States v. Turzitti, 547 F. 2d 1008,

certiorari denied, April 18, 1977 (No.

I

United States v. Vento, 533 F. 2d 838 _

Constitution and statutes:

United States Constitution, Fifth Amend-

ment

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Ill

Constitution and statutes—Continued Page

Omnibus Crime Control and Safe Streets

Act of 1968, Title III, as amended, 18

U.S.C. 2510 et seq.:

Ee es 14

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18 U.S.C. 2518(1) (ce) —--------.--- 15, 17

18 U.S.C. 2518(7)(b) ----....------------ 15

ib fT ee 15

18 U.S.C. 2518(10) (a) ------------ 14

18 U.S.C. 1955 _. __2, 3, 6, 11, 12, 14, 17

Miscellaneous:

Federal Rules of Criminal Procedure,

Rule 30 . a 11

Federal Rules of Evidence:

Rule = ° si casted aliaaslasaleenntaalie 17

Rule 611 - siaesen epadaanenibe 18

H.R. Rep. No. 91-1549, 91st : at 2d

Son. (1978) —______________— 9

S. Rep. No. 1097, 90th Cong. »» 2a Sess.

(1968) I> ADs Tanwe ee eo TI 15

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-17

CLARENCE M. SMALDONE, et al., PETITIONERS

OF

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is not reported.

JURISDICTION

The judgment of the court of appeals was entered

on April 7, 1977. A petition for rehearing with a

(1)

2

suggestion of rehearing en bane was denied on June

3, 1977. The petition for a writ of certiorari was

filed on July 2, 1977. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the district court’s instructions di-

rected the jury to include individuals who should

not have been included among the “five or more

persons” that the government must prove partici-

pated in an illegal gambling business under 18 U.S.C.

1955.

2. Whether conversations of petitioner Reeb, inter-

cepted pursuant to court-ordered electronic surveil-

lance, were properly admitted into evidence.

3. Whether evidence of prior criminal activity of

petitioner Villano was properly admitted.

4. Whether the district court committed reversible

error in allowing the prosecutor to ask leading ques-

tions on redirect examination.

5. Whether the district court erred in refusing to

order the disclosure of the identities of government

informants.

6. Whether the district court properly limited de-

fense counsel’s cross-examination of an FBI agent

regarding the agent’s home address,

7. Whether the prosecutor acted improperly in

asking a witness questions that he had reason to

believe the witness would refuse to answer on Fifth

Amendment grounds, when the prosecutor was pre-

pared to and immediately did offer the witness im-

munity. :

STATEMENT

Following a jury trial in the United States Dis-

trict Court for the District of Colorado, each peti-

tioner was convicted of one or more counts of a three-

count indictment charging the operation of an il-

legal gambling business, in violation of 18 U.S.C.

1955 and 2.' The court of appeals affirmed (Pet.

App.).

1. The evidence at trial proved the existence of

three distinct bookmaking businesses in the Denver

area, The first of these (Count III) began in Au-

gust 1972 and continued through the 1972 football

season. Dave Waters was the “phone man,” dissem-

inating line information and accepting wagers over

the telephone (Tr. 433). He was hired by petitioner

Villano (Tr. 429-434), who had set up the book-

1 Petitioner Smaldone, charged in all three counts, was con-

victed on Count III and was sentenced to four years’ impris-

onment and a fine of $15,000. Petitioner Reeb was convicted

on all three counts and was sentenced to concurrent four-

year prison terms and a fine of $7,500 (on Count III). Peti-

tioner Villano, charged in Counts I and III, was convicted

on Count III and was sentenced to four years’ imprisonment

and a fine of $15,000. Petitioner Whalen was charged in and

convicted on Count I and was sentenced to five years’ impris-

onment (all but six months of which was suspended in favor

of probation) and a fine of $3,000. Petitioner Gardner was

charged in and convicted on Counts II and III and was

sentenced to concurrent five year prison terms (all but six

months of which was suspended in favor of probation) and a

fine of $3,000 (on Count III).

4

making business and who accepted wagers and col-

lected money from several bettors in the early fall

(Tr. 312, 1269, 1404-1406). Later in the fall Waters

was paid by petitioner Smaldone (Tr. 440-442), who

also “settled with” several bettors (Tr. 1517).

Petitioner Reeb regularly called bettors concerning

their accounts and met with and collected money from

bettors (Tr. 388-391, 660, 665, 1153-1164, 1170-1171,

1273, 1279, 1410, 1491). Petitioner Gardner also

collected money from bettors (Tr. 1411, 1491). Ray

Rodriguez (also known as Tom) was hired by Waters,

with petitioner Villano’s knowledge, to assist Waters

with his duties as the “phone man” (Tr. 459-460).

Jack Shaner regularly transmitted bets to Villano,

on his own behalf and on behalf of others (Tr. 322,

326, 335, 450). For these efforts Villano paid him

$40 or $50 from time to time (Tr. 323-324). Shaner

testified that he took bets from others and was there-

fore able to protect himself against loss in making

bets (Tr. 350). He also testified that “I’d take some

bets and then I’d bet them off. I’d shave points, yeah.

I’d get a point or two on the game and then try to

catch the teams in the middle” (Tr. 354; see also Tr.

358-360, 362).

Jerry Woodward placed bets with Shaner, gen-

erally amounting to between $1,000 and $3,000 per

weekend, on behalf of himself and from four to seven

others (Tr. 286-295). He testified that Shaner would

call him and give him “the line” and would regu-

larly drive from Denver to Colorado Springs to settle

their accounts (Tr. 289). Woodward relayed “the

5

liie” from Shaner to the other individuals whose bets

he placed with Shaner (Tr. 298).

The second bookmaking business (Count II) co-

incided with the 1973 football season. Kenneth Zeig-

ler was the “phone man” (Gov’t Exs. 109, 109A, 110;

Tr. 847-850, 1494-1498), and petitioners Reeb and

Gardner collected money from and paid money to

bettors (Tr. 1167, 1171-1172, 1274-1279, 1414-1423).

John Salanitro and Paul Cappelano, Omaha _book-

makers, provided Reeb with line information and ac-

cepted “lay-off” bets (Gov’t Exs. 118, 119; Tr. 950-

959, 999-1005).* Ellis Smith, another bookmaker,

received line information from and made “lay-off”

bets with Ziegler, which he “settled with’ petitioner

Reeb (Tr. 742-744) .*

The third bookmaking business (Count I) began

in August 1974 and continued into the spring of

1975. Larry Lay was the “phone man” (Tr. 145-

146, 150, 152, 1032-1033). Lay received line in-

formation from petitioner Reeb, who also collected

2To avoid losing money, bookmakers generally attempt to

take an even amount of bets on each side of a contest. They

make their money by requiring bettors to put up more money

than they stand to win. In this case, for example, petitioners’

customers generally had to put up $11 for each $10 they stood

to win. A “lay-off” bet is usually a bet between two book-

makers who have too many bets on opposite sides of a con-

test and who seek.to balance their accounts (see Tr. 740).

* Smith had at least one “employee,” who took bets for him

and received a percentage of the profits (Tr. 738).

*Lay testified that he accepted approximately $25,000 to

$35,000 in wagers per weekend (Tr. 1048-1049).

6

money from and paid money to bettors (Tr. 1169,

1171-1172, 1252, 1262, 1276-1277, 1279, 1367, 1417,

1427). Petitioner Whalen also “settled with” bettors

(Tr. 1339-1343, 1352-1355).

Persons named “Jack” and “Mike” collected money

from bettors and placed bets with Lay (Tr. 152-153,

1062, 1081, 1278, 1366). George Iantorno, a book-

maker (Tr. 1008), placed lay-off bets with Lay (Tr.

1009-1011).

ARGUMENT

1. a. 18 U.S.C, 1955 prohibits illegal gambling

businesses that, inter alia, involve “five or more

persons.” Count III of the indictment in this case

charged an illegal gambling business in 1972 and

1973. Petitioners Smaldone, Reeb, Villano, and Gard-

ner were convicted on that count. At trial, the gov-

ernment contended that, in addition to those four,

Waters (the “phone man’) and his hiree, Rodriguez

(or “Tom”), were involved, as were Shaner and

Woodward.° Petitioners claim (Pet. 17-26) that if

the jury had been properly instructed it would not

have included Woodward or Shaner among the “five

or more persons” whose participation in the illegal

gambling business the government was obliged to

prove. Petitioners also assert that, if it had been

°*The government also contended that co-defendant Raso

participated in the 1972-1973 gambling business, but Raso was

acquitted and we do not seek to include him as one of the

five individuals whose participation was necessary to the

convictions under Count III.

7

properly instructed, the jury would have counted ei-

ther Smaldone or Villano, but not both, as making

up the “five or more persons,” since in petitioners’

view the evidence showed that those two petitioners

participated in the gambling business seriatim rather

than simultaneously. Petitioners appear to concede

that Waters could have been properly counted (Pet.

22, n. 4), and they say nothing about Rodriguez.

Those two, added to petitioners Reeb and Gardner,

and either Smaldone or Villano, make “five or more

persons.” Thus, even if petitioners were correct in

arguing that Woodward and Shaner should have been

excluded, and that either Smaldone or Villano should

have been counted, but not both, we submit that the

government proved its case, for there is no basis for

concluding that the jury might have included Wood-

ward and Shaner among the “five or more persons”

and not Waters and Rodriguez—whose connection

with the gambling business was more direct—as well.

In any event, petitioners’ objections to the district

court’s instructions are unpersuasive. Although the

petition does not specify any particular respect in

which the instructions were erroneous, we take peti-

tioners’ argument to be that the district court defined

the word “conduct” too broadly, failed to distinguish

among different categories of individuals who may

have had dealings with the illegal gambling business,

and thereby “directed” (Pet. 21) the jury to in-

clude persons who should not have been included

among the “five or more persons” necessary to a Sec-

8

tion 1955 violation.’ The court defined “conduct” as

follows (Tr. 1699) :

As used in the statute, the term “conduct”

means to operate, carry on, cause to function,

or to play any role in the furtherance of the

gambling business, whether the defendant is on

the highest or the lowest level of activity. The

term includes everyone who participates in the

operation of the gambling business, regardless

of how minor his or her role may be, and wheth-

er or not that person is labelled or termed an

agent, a runner, a collector, a salesman, a phone

man, a clerk, lookout, independent contractor,

layoff man, or some similar term.

*In the district court, after the charge, defense counsel

made the following objection (Tr. 1716-1717):

MR. BARIS: * * * Your Honor, we will object to the

word “conduct” as contained in your instructions.

THE COURT: Very well.

MR. BARIS: I think it is over-broad, and not within

the concept of the statute, and includes many persons

within illegal activity that should not have been included.

There’s no definition of words such as “independent

contractors” and “layoff men” which I heard, terms that

ought to be defined and are not known in the common

knowledge of jurors.

THE COURT: Well, have you got a definition of

layoff men and independent contractors you would like

to tender?

MR. BARIS: _I don’t have one with me.

See also petitioners’ brief in the court of appeals at page 11

(“* * * in the evidence, argument and instructions, there

were no delineations of the various categories which may or

may not be included. As a result, the convictions in this case

resulted from the jury’s being directed to include persons who

must not under the law be counted * * *”).

9

This definition was not overbroad. Congress in-

tended Section 1955 to apply

generally to persons who participate in the own-

ership, management, or conduct of an illegal

gambling business. The term “conducts” refers

both to high level bosses and street level employ-

ees.

H.R. Rep. No. 91-1549, 91st Cong., 2d Sess. 53

(1970). See United States v. Bow, 530 F.2d 1258,

1264 (C.A. 5).

Petitioners assert (Pet. 18, 22) that Woodward and

Shaner were mere bettors rather than participants in

the illegal gambling business, but the district court

clearly instructed the jury that bettors were not to

be counted (Tr. 1699):

The only person not included is a mere bettor

who is entitled simply to his own winnings on

his wagers, and who did not otherwise partici-

pate in the gambling business. As used in the

statute, the term “finance”, “manage”, “super-

vise”, “direct’”’, and “own” are simply given their

normal accepted meaning.

The jury may properly be assumed to have followed

the court’s instructions: if they counted Woodward

and Shaner it was because they found those two to

have been participants in rather than mere bettors

with the gambling business. As the court of appeals

correctly ruled (Pet. App. A2-A3), the evidence was

clearly sufficient to have warrantcd such a finding

(see pp. 4-5, supra). Thus, even assuming that the

jury counted Woodward and Shaner, but not Waters

10

and Rodriguez, their conclusion that “five or more

persons” were involved in the illegal gambling busi-

ness was sound as a matter of fact and law.

Petitioners’ claim that the jury may have counted

both petitioners Smaldone and Villano, and that, if it

did, then the verdict must be overturned, is also un-

persuasive. Petitioners do not indicate where the

record supports their contention (Pet. 14-15, 23-24)

that Smaldone and Villano did not participate simul-

taneously in the gambling business. Presumably it is

based on the testimony of Waters that after Villano

went to jail on September 20, 1972, Smaldone began

to perform some of his managerial duties (Tr. 439-

442). Contrary to petitioners’ suggestion (Pet. 23-

24), however, this testimony did not oblige the jury

to conclude that Smaldone and Villano were never in-

volved in the gambling business together; rather, it

supports the government’s position that they partici-

pated in the business simultaneously, for it is unlikely

that Villano would have turned over his managerial

duties to a newcomer.

. Petitioners assert (Pet. 23) that the decision below

conflicts with that of the Fifth Circuit in United

States v. Bridges, 493 F.2d 918 (C.A. 5). In Bridges

the court held that under Section 1955 the govern-

ment must prove that “five or more persons” partici-

pated in the illegal gambling business for at least 30

days: a gambling business that was conducted, for

exainple, by three persons for 15 days and then by

two other persons for the next 15 days would not fall

within the reach of the statute. Petitioners argue

= * =

11

that the district court’s instruction did not advise the

jury of this requirement, and that in affirming their

convictions the court below has therefore disagreed

with Bridges.

Petitioners did not, however, object to the district

court’s instructions on this ground. The district court

instructed the jury that the 30-day test “applies to

the gambling business as an enterprise. It does not

apply to any single defendant” (Tr. 1700). That in-

struction did not explicitly advise the jury that they

had to find that five persons were involved on each

of the 30 days the gambling business was in opera-

tion, but it was unquestionably correct (and in no

way inconsistent with Bridges) in stating that the

30-day test “does not apply to any single defendant,”

and that is the only aspect of the instruction to which

petitioners objected (Tr. 1717). Thus, petitioners

failed to preserve and therefore waived the objection

to the instructions that they now assert (see Hender-

son v. Kibbe, No. 75-1906, decided May 16, 1977, slip

op. 8; Rule 30, Fed. R. Crim. P.). Moreover, on the

facts of this case there is no conflict with Bridges,

since the court below has simply ruled—as it should

have—that to convict under Section 1955 the govern-

ment need not prove that each individual defendant

participated in the gambling business for the full 30

days.’

7 The Sixth Circuit, in addition to the Fifth, has held that

under 18 U.S.C. 1955 the government must prove that at

least five persons were involved in the illegal gambling busi-

12

b. Under Count II, charging a conspiracy during

1973, the government alleged that the participants

were petitioners Smaldone, Reeb, and Gardner, as well

as Ziegler (the “phone man’) and bookmakers Salini-

tro, Cappellano, and Smith. Petitioners Reeb and

Gardner were convicted. Petitioners assert (Pet. 25-

26) that it would have been improper for the jury

to count Salinitro, Cappellano, and Smith. But those

individuals were shown to have exchanged “line” in-

formation with the gambling business and to have

regularly accepted “lay-off” bets from it (see p. 5,

supra). That showing was sufficient to allow the jury

to find that they were participants rather than mere

bettors. United States v. Turzitti, 547 F.2d 1003

ness for ali 30 days. United States v. Tarter, 522 F.2d 520.

Both the Fifth and Sixth Circuits have also held that the

government need not prove that any individual participant

was so involved. United States v. Marrifield, 515 F.2d 877

(C.A. 5); United States v. Mattucci, 502 F.2d 883 (C.A. 6).

In United States v. Smaldone, 485 F.2d 1333, 1351 (C.A. 10),

certiorari denied, 416 U.S. 936, the court held that under

Section 1955 the government does not have to show “that

each ccnductor was involved in the gambling business for

more than thirty days or generated at least $2000 gross reve-

nue in a single day. These requirements refer to the gambling

operation and not to individuals.” In that case, as in this one,

the litigated issue was not whether five or more persons must

participate for more than 30 days, but whether each particular

defendant must have participated for that period in order to be

found guilty. There is, in sum, no basis for concluding that the

Tenth Ci cuit would construe the pertinent requirements of

Section 1955 differently from the Fifth and Sixth Circuiis in

cases raising these issues.

13

(C.A. 7), certiorari denied, April 18, 1977 (No. 76-

1296) ; United States v. Box, supra.*

c. Petitioners Reeb and Whalen were convicted on

Count I, charging an illegal gambling business in

1974. In addition, the government contended that

Lay (the “phone man”) as well as Jack and Mike

(who collected money from bettors and placed bets

with Lay) and Iantorno (a bookmaker who placed

“lay-off” bets with Lay) were involved. Petitioners

assert that it would have been improper for the jury

to have counted Iantorno (Pet. 25-26). Aside from

the fact that there were five participants even ex-

cluding Iantorno, he could have been properly counted

for the same reasons that the jury could have prop-

erly counted Salanitro, Cappellano, and Smith as part

of the illegal gambling business charged in Count II.

2. In November, 1973, telephone conversations be-

tween petitioner Reeb and Omaha bookmaker John

Salanitro were intercepted pursuant to electronic sur-

veillance on Salanitro’s telephone authorized by order

of the United States District Court for the District

of Nebraska. Petitioners contend that evidence of

these conversations was improperly introduced at

trial due to lack of compliance with Title III of the

8 United States v. Leon, 534 F.2d 667 (C.A. 6), said by

petitioners to conflict with the decision below (Pet. 25), is

distinguishable, for there the government did not establish

that bets placed by a bookmaker were in fact “lay-of” bets (id.

at 677).

14

Omnibus Crime Control and Safe Streets Act of 1968,

as amended, 18 U.S.C. 2510 et seg.°

a. First, petitioners contend (Pet. 27-28) that evi-

dence obtained by means of the wire interception

should not have been disclosed absent a disclosure

order under 18 U.S.C. 2517(5), because the “offense”

specified in the application and order of authorization

was different from the “offense” to which the inter-

cepted conversations pertained. But the order of au-

thorization specified that the interceptions were to be

undertaken to investigate violations of 18 U.S.C. 1955

by Salanitro, other named Omaha bookmakers, and

“others as yet unknown.” The intercepted conversa-

tions between Reeb and Salanitro were used at trial

as evidence of a violation of Section 1955 involving,

inter alia, Salanitro. Thus, the offense in connection

with which the evidence was used was encompassed

within the terms of the order. This case therefore

does not present the question that petitioners pro-

pound—i.e., whether an order under 18 U.S.C. 2517

(5) is required for use of intercepted conversations

in connection with a factually distinct offense against

the same statute as that specified in the order, and,

if so, whether the failure to obtain a disclosure order

is a ground for suppression of evidence. Compare

® Petitioner Reeb alone has standing to raise these issues,

since none of the other petitioners were parties to the inter-

cepted conversations or were named in the application. See

18 U.S.C. 2510(11), 2518(10)(a); Alderman v. United

States, 394 U.S. 165; United States v. Armocida, 515 F.2d

29 (C.A. 3), certiorari denied sub nom. Gazal v. United States,

423 U.S. 858.

See ee eee =

15

United States v. Vento, 533 F.2d 838, 854-855 (C.A.

3), and United States v. Brodson, 528 F.2d 214 (C.A.

7).

b. Petitioner Reeb also complains (Pet. 28-29)

that the government failed to serve her with an in-

ventory notice of the November 1973 interception, as

required by 18 U.S.C. 2518(7)(b). As the court of

appeals observed, however (Pet. App. A4), Reeb’s

voice was not identified until October 1975. At that

time Reeb’s counsel was advised of the wire intercep-

tion evidence, was permitted to listen to the inter-

cepted conversations in which Reeb participated, and

was given transcripts of the intercepted conversations

(Supp. Hearing (10/31/75) Tr. 23-25). Thus, Reeb

was given more information than that to which she

was entitled under Section 2518(7) (b). Furthermore,

in United States v. Donovan, 429 U.S. 413, 438-439,

this Court held that a good faith failure by the gov-

ernment to comply with the inventory notice require-

ment is not ground for suppression under 18 U.S.C.

2518(10).

c. Finally, petitioners contend (Pet. 29-33) that

the government’s application for authorization of elec-

tronic surveillance did not contain “a full and com-

plete statement as to whether or not other investiga-

tion procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if

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

2518(1)(c). The requirements of this Section are

satisfied if the application and its supporting affidavit,

viewed in a practical and common sense fashion (S.

Rep. No. 1097, 90th Cong., 2d Sess. 101 (1968)),

16

demonstrate to the court that traditional investigative

techniques will be inadequate to expose the full scope

of the criminal activity under investigation or the

identity of the participants therein. See, e.g., United

States v. Kahn, 415 U.S. 148, 153 n. 12; United

States v. Sklaroff, 552 F. 2d 1156, 1159 (C.A. 5);

United States v. Turner, 528 F.2d 148, 152 (C.A. 9),

certiorari denied sub nom. Grimes v. United States,

423 U.S. 996; United States v. Robertson, 504 F.2d

289, 293 (C.A. 5), certiorari denied, 421 U.S. 913;

United States v. Brick, 502 F.2d 219, 224 (C.A. 8).

The court of appeals properly concluded (Pet. App.

A5-A6) that this test was satisfied here. The affidavit

of FBI Special Agent O’Brien outlined seven months

of investigative activity, including physical surveil-

lance, that had failed to produce sufficient evidence to

sustain a prosecution. The affidavit also included in-

formation from five confidential informants, each of

whom was unwilling to testify due to concern for his

safety.” Finally, the affidavit stated that the book-

making activities under investigation were conducted

in a highly secret manner and that most of the indi-

viduals involved appeared to be “surveillance con-

scious.” In short, the affidavit, which showed both

that other investigative techniques had failed and that

they were unlikely to succeed in the future, satisfied

*° Because the reluctance of certain informants to testify

was due to fear for their safety, rather than concern about

possible prosecution, it is not clear that their full cooperation

could have been obtained through use of subpoenas and grants

of immunity.

Se a a ee eee

<n met 2 ee

17

the requirements of 18 U.S.C. 2518(1)(c)." See

United States v. Abramson, 553 F.2d 1164 (C.A. 8),

certiorari denied, June 27, 1977 (No. 76-1672), in

which the affidavit involved in this case was upheld

in connection with another prosecution. See also

United States v. Sklaroff, supra.

3. Petitioners contend (Pet. 34-36) that the trial

court improperly permitted the government to intro-

duce evidence that Villano had been involved in book-

making prior to the periods of time covered by the

indictment. Under Rule 404(b), Fed. R. Evid., how-

ever, evidence of other crimes is admissible to show

“motive, opportunity, intent; preparation, plan, knowl-

edge, identity, or absence of mistake or accident.”

Here, Villano’s prior bookmaking activity was prop-

erly admitted to show a continuing scheme or plan,

and the duration of bookmaking activity was in turn

relevant to show that the bookmaking businesses

were of the type covered by 18 U.S.C. 1955, The

district court confined the inquiry to the general

nature of Villano’s activity (see Tr. 268-269) and

gave limiting instructions as to the purpose for

which the evidence was admitted (see Tr. 325, 378-

379).”

11 The court of appeals properly distinguished (Pet. App.

A5-A6) United States v. Kalustian, 529 F.2d 585 (C.A. 9),

cited by petitioners (Pet. 31). There the affidavit was based

primarily on the experience of federal agents in other gam-

bling cases. In United States v. Pezzino, 535 F.2d 483 (C.A.

9), the Ninth Circuit held that an affidavit similar to the one

here involved was sufficient to pass muster under Kalustian.

12 Contrary to petitioners’ assertion (Pet. 34 n. 5), the

limiting instruction was not confusing (Tr. 378-379). The

aT ERE TE eT LT a

18

4. Petitioners argue (Pet. 36-39) that the district

court erroneously allowed leading questions on redi-

rect examination. Petitioners do not, however, cite

any instance in which leading questions were used on

redirect examination to elicit testimony that was

more damaging to them than that elicited on direct

examination. Accordingly in the circumstances of

this case, there is no need to consider the correctness

of the court of appeals’ ruling (Pet. App. A6) that

the district court did not abuse its discretion under

Rule 611, Fed. R, Evid., for petitioners have failed

to show reversible error in any event.

5. Petitioners contend (Pet. 39-42) that the dis-

trict court improperly refused to direct the govern-

ment to disclose the identities of informants who

had given information to FBI Agent Malone.

This Court held in Roviaro v. United States, 353

U.S. 53, that as a general rule the government is

privileged to withhold the identities of its confidential

informants, but that the privilege must give way

“where the disclosure of an informant’s identity,

or of the contents of his communication, is relevant

court charged the jury that evidence of bookmaking outside

the times covered by the indictment was introduced “for the

very limited purpose of showing a plan, scheme, or common

operation.” The court went on to instruct that the statements

of any defendant may be considered against other defendants

only if a concert of action was shown. Contrary to peti-

tioners’ suggestion, the existence of a conspiracy count is not a

prerequisite for the latter instruction. E.g., United States v.

Snow, 521 F.2d 730, 736 (C.A. 9), certiorari denied, 423 U.S.

1090; United States v. Snyder, 505 F.2d 595 (C.A. 5), certio-

rari denied, 420 U.S. 998.

ee ee ee ee ee

een woe ee - ~ -

19

and helpful to the defense of an accused, or is es-

sential to a fair determination of a cause * * *” (id.

at 60-61). In this case there has been no showing

that the identities of the informants would have been

helpful to petitioners, and petitioners have offered no

persuasive reason to believe that their interest in

knowing the identities of the informants outweighed

the government’s interest in maintaining confidenti-

ality. In these circumstances, petitioners were at

most entitled to have the district court conduct an

im camera inspection of the materials relating to the

informants. See United States v. Alvarez, 469 F.2d

1065 (C.A. 9); United States v. Poms, 484 F.2d 919

(CA. 4); United States v. Edwards, 503 F.2d 838

(C.A. 9), certiorari denied, 420 U.S. 977. The district

court conducted such an examination and concluded

that disclosure of the identities of the informants was

unnecessary because none “could have any testimony

which would be helpful” to petitioners (Pet. App.

A6). That essentially factual determination does not

warrant further review by this Court.

6. Relying on Smith v. Illinois, 390 U.S, 129, peti-

tioners contend (Pet. 43-45) that the district court

erred in refusing to permit defense counsel] to ask

FBI Agent Malone his home address. This Court’s

opinion in Smith, however, expressly recognizes the

propriety of limiting cross-examination in the in-

terests of protecting the witness (id. at 133, quoting

Alford v. United States, 282 U.S. 687). A legitimate

concern for the personal safety of a witness would

appear to be one of the more compelling reasons for

20

restricting the scope of cross-examination. Jd. at

133-134 (concurring opinion of Mr. Justice White,

joined by Mr. Justice Marshall) ; McGrath v. Vinzant,

528 F.2d 681 (C.A. 1), petition for a writ of certio-

rari dismissed, 426 U.S. 902; United States v. Crock-

ett, 506 F.2d 759 (C.A. 5), certiorari denied, 423

U.S. 824. Although an affirmative showing of po-

tential danger may be necessary where the basis of

concern was for the safety of the witness is not ap-

parent (see Smith v. Illinois, supra, 390 U.S. at 133-

134) (concurring opinion of Mr. Justice White, joined

by Mr. Justice Marshall), such a showing is hardly

necessary where, as here, both the nature of the of-

fense and the occupation of the witness make the

concern for the witness’s safety obvious. McGrath v.

Vinzant, supra.

Malone’s name, occupation, and business address

were on record. The narrow limitation upon cross-

examination imposed by the district court was rea-

sonably necessary for the protection of the safety of

a law enforcement officer and cannot be said to have

prejudiced petitioners in any respect.

7. Petitioners contend (Pet. 45-48) that the prose-

cuting attorney acted improperly when he called

witness Jerry Woodward to the stand and asked him

a question that he had reason to know Woodward

would decline to answer on_ self-incrimination

grounds. Woodward did decline to answer; upon

the prosecutor’s application he was granted immu-

nity, and direct examination proceeded.

There was no impropriety in the action of the

oan dew a

te i a

- oe

21

prosecutor. In each of the cases petitioners cite (Pet.

47-48), the prosecutor called a witness with reason

to know he would invoke his Fifth Amendment privi-

lege, but with no intention of granting immunity.

Such a situation poses the danger that, from the in-

vocation of the privilege or from the prosecutor’s

questions, the jury will draw inferences that the de-

fendant will be unable to rebut, since meaningful

cross-examination of the witness is effectively pre-

cluded. This danger is not present where, as here, a

grant of immunity follows the refusal to answer

questions, for in such a case the defense has full op-

portunity to test the witness’s testimony on cross-

examination. Thus the court of appeals correctly ré-

jected petitioners’ claim in this regard.”

18 Even where the government does not grant immunity, a

witness’s invocation of his privilege against self-incrimination

is not per se reversible error. If the instances in which the

privilege is claimed are not of great significance in the con-

text of the entire trial and the government has not deliber-

ately attempted to profit from the refusal of witnesses to

testify, reversal is not required. Namet v. United States, 373

U.S. 179.

22

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

PAUL J. BRYSH,

Attorneys.

SEPTEMBER 1977.

& wv. Ss. Coveenment prinrine orrice; 1977 245703 62

J

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