Petition — Riniolo v. United States

iv

Supreme Court, U. §,

° FILED

JUL 5S )977

IN THE ¥

Supreme Court of the United States

October Term, 1976

No. 77-20

SALVATORE S. RINLOLO,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PHILIP B. ABRAMOWTTZ, Esq.,

IRVING M. SIIUMAN, Ese.,

Attorneys for Petitioner,

2600 Main Place Tower,

Buffalo, New York 14202.

(716) 854-4300.

(Girnoss, Sauman, Laup & Davin,

of Counsel.

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BATAVIA TIMES, APPELLATE COURT PHINTERe ~~

&. GERALD ELEPS, BF PRERERTATiVE

20 CRATER OT.. Batavia, BH. ¥. tecne

Fee bas-oaer

TABLE OF CONTENTS.

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I. Petitioner's conviction cannot be con-

stitutionally sustained where the only evidence in

the affidavit used to support the search warrant

which established Federal jurisdiction was based on

the uncorroborated triple hearsay statement of a

prostitute known to be prone to lying who admitted

in court under oath that the statement she gave to

secure the search warrant was in fact false ...... 5

Il. This case should be remanded to a different

judge for sentencing because Judge Brieant allowed

his sentencing to be influenced by erroneous mat-

ters totally outside the record ............00c0es 8

SE icon cas cnecdeeashesbinncesecsanedsensas 10

Appendix

“A"—Opinion of the United States Court of Appeals

for the Second Circuit .........cccecssensecnees Al

“B"—Opinion of the United States District Court for

iY.

the Western District of New York ..............

TABLE OF CASES.

Mapp v. Warden, New York State Correctional In-

stitutional, 531 Fed 2nd 1167, 1171 ...............

Townsend v. Burke, 334 US 736.........ccceceeeees

United States v. Brouillette, 478 Fed 2nd 1171 (Sth Cir-

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U.S.

U.S.

U.S.

U.S.

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Vv

Vv

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. Karathanos, 531 Fed 2nd 26, 31 (2nd cir 1976)

. Lollins, 522 Fed 2nd 160, 162 (2nd cir 1975).

. Perry, 385th 2nd 356 at 358 (2nd circuit 1967)

Page

6,8

6

7

7

Preliminary Statement

Petitioner is a married man and the father of four children

who prior to his conviction had never been convicted of a

crime, At sentencing the trial Judge himself stated that the

sentence report prepared by the Probation Department stated

that the Petitioner had “been a good father to your own

children and the daughter of the co-defendant”.

Petitioner stood trial on four substantive counts and one

count of conspiring to transport women in interstate com-

merce for the purpose of prostitution. The trial Judge

dismissed one of the substantive counts before the case went

to the jury and said about the remaining counts". . . I will

let them go to the jury, but I think they are awfully thin...”

(309, emphasis applied).

Petitioner was acquitted of the remaining subsiantive

counts and was convicted only of the conspiracy count. The

trial Judge, after noting that the Petitioner had had no prior

criminal conviction and had been a good father, sentenced

the Petitioner to two and one-half years in prison. The Court

commented about this case which had been prosecuted by the

Organized Crime Task Force:

“and here there is this tremendous income, and where

did it go? That suggests an air of mystery and suggests

that an organization exists with respect to this business

oo.

There was, however, no proof whatsoever of organized crime

in this case and at best there was speculation on the Judge's

part to support the trial Judge’s theory about organized

crime.

Further the only proof in the case that established the

Federal element to secure the crucial search warrant was ad-

mitted to be a lie by the key government informer when she

took the witness stand and was put under oath.

—r Ee

IN THE

Supreme Court of the United States

October Term, 1976

SALVATORE S. RINIOLO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

Petitioner, Salvatore S. Riniolo, prays that a writ of cer-

tiorari issue to review the judgment of the United States Court

of Appeals for the Second Circuit entered in May, 1977.

Opinions Below

The opinion of the Court of Appeals is as yet, unreported.

It is printed in Appendix A.

The opinion of the District Court in denying the sup-

pression motion has not been reported. It is printed in Ap-

pendix B.

Jurisdiction

Following a jury trial, Petitioner was found guilty in the

United States District Court for the Western District of New

2

York (Brieant J sitting by designation) of conspiring to trans-

port women in interstate commerce for the purpose of

prostitution in violation of 18 USC 371.

Petitioner appealed to the United States Court of Appeals

for the Second Circuit and his conviction was affirmed.

Petition for a writ of certiorari is filed within sixty days of

the decision of the Second Circuit, an extension of time

having been granted by Mr. Justice Marshall in an Order

dated May 25, 1977. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

Constitutional Provision Involved

AMENDMENT IV

Statute Involved

18 U.S.C. 371

Questions Presented

1. Whether Petitioner’s conviction can be constitutionally

sustained where the crucial element of Federal jurisdiction in

the Affidavit in support of the search warrant was based on

admittedly perjured testimony, and where no attempt what-

soever was made to corroborate the truthfulness of the

Statement.

2. Whether the trial court’s comments concerning

“organized crime” at the time of the sentencing, despite the

fact that there was not even a hint of organized crime,

requires that this case be remanded to a different Judge for

resentencing.

3

Statement of Facts

The Petitioner, who has no prior criminal record who has

admittedly “been a good father to your own children and to

the daughter of the co-defendant” (23) (refers to pages of the

sentencing transcript dated 10/28/76) was convicted for

conspiring to transport women in interstate commerce for the

purpose of prostitution, after having been acquitted of the

four substantive counts in the indictment. He was sentenced

to a term of imprisonment of two and one-half years.

This case originated when a search warrant was issued

giving agents of the Federal Bureau of Investigation the right

to search two residences where they believed that the

Petitioner was living. In order to establish the Federal

element—the interstate aspect of the crime—the Magistrate

who issued the warrant relied on a triple hearsay statement of

a prostitute who had allegedly stated that Linda Ferguson, a

madam of a house of ill repute in Buffalo, New York, had

contacted her by telephone in Boston, Massachusetts and told

her to take a bus to Buffalo for the purpose of engaging in

prostitution. The information as received by the Magistrate

was that the prostitute who was believed to be “Joyce

Williams” (but who also used the name of Darlene Bagetta)

told a Buffalo Police officer, who told an FBI agent, who told

the Magistrate in an affidavit that “Joyce Williams” or

“Darlene Bagetta” had stated that Linda Ferguson had

telephoned her in Boston, Massachusetts and asked her to

come to Buffalo to engage in prostitution. There was no

corroboration of this triple hearsay statement of a prostitute

whose name could not even be verified.

At trial, however, under oath, Joyce Williams testified that

the arrangements for her to come to Buffalo to work as a

4

prostitute were made through her pimp in Albany, New York,

and that consequently, the statement used in her affidavit to

secure the search warrant was admitted to be perjury (trial

transcript p. 145).

Despite the fact that the police officer, Detective Sergeant

Dayka testified that prostitutes are people who do have no

qualms about telling the truth and specifically “do give dif-

ferent names and different addresses” as a style of their life,

the search warrant was upheld at a suppression hearing.

At the trial there was absolutely no evidence to show that

the defendant had ever crossed state lines to transport any

woman for the purpose of prostitution, that he had ever

crossed a state line in an attempt to induce someone to engage

in prostitution, that he had ever made a telephone call out of

state (or for that matter in state) in order to lure anyone into

prostitution. Further, no one had ever called him from out of

state in an attempt to secure his assistance to have a woman

engage in prostitution.

It is undisputed that all the arrangements of the business, of

getting the girls in, of setting up house rules, of splitting the

money with the girls, and of running the house were handled

by Linda Ferguson. Linda called Betty Grand (another

madam) at times to obtain girls (56-59). She called Flora

Majusick several times to get her to work for her (72-77). She

arranged with Raymond Pandelli for Rita Burchill (108, 109)

and with Harold Nelson for Darlene Bagetta to come to Buf-

falo (145, 146). She called Ellen Cameo in Boston to work for

her (133-135).

Although there was evidence at the trial for the jury to con-

clude that the Petitioner was aware of Linda Ferguson’s

business, that is a far cry from making the Petitioner a pimp

of an interstate organized crime prostitution ring. In fact,

0

ea

5

Linda Ferguson testified that she had no pimp and she felt

that all pimps were leeches (223) and Rita Burchill testitied

that Linda Ferguson had told her that she was crazy to work

for a pimp, “that I would do better by myseif” (130).

Far from being the pimp who headed an interstate organized

crime prostitution ring, Salvatore Riniolo is in fact a middle

class gentleman of Italian descent who lives together with his

wife of 17 years and their children in a rented $185 a month

apartment, who was unable to pay for his younger childrens

parochial tuition because of financial hardship and who

owned a 5 year old car on which there was a loan outstanding

(291-292).

REASONS FOR GRANTING THE WRIT

I.

Petitioner’s conviction cannot be constitutionally sus-

tained where the only evidence in the affidavit used to

support the search warrant which established Federal

jurisdiction was based on the uncorroborated triple hear-

say statement of a prostitute known to be prone to lying

who admitted in court under oath that the statement she

gave to secure the search warrant was in fact false.

It is clear that a Federal officer in seeking a search warrant

must “present evidence ample to establish probable cause that

a Federal crime has been committed” (emphasis added) (U.S.

v. Brouillette, 478 Fed. 2nd 1171 (Sth circuit 1973).

In Brouillette supra, the Fifth Circuit said

“to establish the probability of a crime under 18 USC

Section 1952 it seems necessary to present facts concern-

ing the state law being violated and the manner in which

interstate commerce is involved in the violation”’

Brouillette, supra at 1176 (emphasis added).

6

With respect to the case at bar, the only information sub-

mitted to the Magistrate in support of the government’s ap-

plication for warrant authorizing the search at two residences

where it was believed that the Petitioner resided was contain-

ed in an Affidavit authored by Special Agent Ronald Hawley

of the Federal Bureau of Investigation.

Agent Hawley’s affidavit which he used to support the

Federal jurisdictional element of interstate commerce was

based solely on the uncorroborated testimony of an admitted

prostitute who told a Buffalo Police officer who told the FBI

agent who told the Magistrate that Linda Ferguson had called

her long distance in Boston, Massachusetts to ask her to come

to work in Buffalo.

The District Court in denying Petitioner’s motion to sup-

press found that the Brouillette requirement of showing the

existence of a Federal crime had been fulfilled by Joyce

Williams’ statement that Linda had told her to take a bus to

Buffalo to engage in prostitution.

What the question boils down to is whether the issuing

Magistrate had a “substantial basis for crediting this hearsay”

United States v. Harris, 403 US 573, 581, United States v.

Karathanos, 531 Fed 2nd 26, 31 (2D cir 1976).

Although in one sense the prostitute who referred to herself

both as Joyce Williams and Darlene Bagetta was an informant

admitting her own commission of a crime, this does not

elevate her statement to a “substantial basis for crediting the

hearsay” United States v. Harris, 403 US 573, 581.

This is particularly so because the police officer who had

received the original information indicated that prostitutes

because of the nature of their business often times tend to

lead a life of deceit and often “do give different names and

different addresses” than really exist (hearing page 52).

>

Most significantly in this regard, at trial Joyce Williams

a/k/a Darlene Bagetta testified that the arrangements for her

to come to Buffalo to work as a prostitute were made through

her pimp in Albany, New York, Harold Nelson (trial tran-

script page 145). Furthermore, she stated that she herself was

in Albany when she first learned that she was going to work

for Linda Ferguson (trial transcript page 146). Consequently

she admitted under oath that she had lied in giving the state-

ment used to secure the search warrant.

While the Second Circuit Court of Appeals has properly

stated the law that—

“the accuracy of the information provided by the in-

formant is not relevant. Probable cause is established if

the facts alleged by the informant, if true, establish

illegality and the affiant has reasonable grounds for

believing in the truth of the allegations.”” U.S. v. Perry,

385th 2nd 356 at 358. (2nd Circuit 1967, emphasis add-

ed).

—it is submitted that particularly in dealing with a person

whose whole life is deceit, and who frequently gives “dif-

ferent names and different addresses” (hearing page 52),

more than the mere fact that she admitted a crime should be

required, to support a federal search warrant.

It would for example have been very simpie to have re-

quired the government to obtain relevant telephone company

records. Such records are a common, corroborative device.

See U.S. v. Lollins, 522 Fed 2nd 160, 162 (2D cir 1975) and

Mapp v. Warden, New York State Correctional Institutional, 531

Fed 2nd 1167, 1171.

It is submitted that with the Federal courts already over-

crowded and with ir*ormant testimony subject to great

scrutiny, this court sto © —xquire strict observance of the

principal that to establish the federal element necessary to

secure a warrant, strict observance must be given to the re-

quirement that there must be a “substantial basis” for

crediting the hearsay. U.S. v. Harris, 403 U.S. 573, 581.

This court should not let that standard of proof sink to the

level of accepting at face value whatever a prostitute says to a

police officer—again particularly in this case where the

prostitute was shown to have actually lied and where the

policeman testified at the suppression hearing that he knows

that prostitutes do “give different names and different ad-

dresses” (hearing page 52).

This case should be remanded to a different judge for

sentencing because Judge Brieant allowed his sentencing

to be influenced by erroneous matters totally outside the

record.

This Court has said that a sentence based upon erroneous

information requires that the sentence be set aside. Townsend

v. Burke, 334 US 736.

Petitioner is a man who has been married and who has lived

with his wife for 17 years, who has 4 children and who the

Court stated had “been a good father to your own children”.

(page 23 of sentencing). Many people of substance and stand-

ing in the community, according to the record, sent letters of

recommendation to the Court on Appellant's behalf.

Aside from the fact this case was prosecuted by the

Organized Crime Strike Force and aside from the fact that the

defendant is of Italian ancestry there is not one iota of proof

in the case to in any way indicate that “organized crime” was

involved in this case. Yet the judge at sentencing said

— tts thy

9

“and here there is this tremendous income, and where

did it go? That suggests an air of mystery and suggests

that an organization exists with respect to this business

_o. Oe

The Petitioner stands before this Court as a man without a

prior conviction, an admittedly good father and husband,

(albeit somewhat errant), a man who worked honestly most of

his life to support himself and those who depended upon him

and a man whose ties in the community were such that many

people wrote the court on his behalf.

Linda Ferguson, who is the admitted madam of the house

who had run the business by her own admission for 8 or 9

years received a sentence of probation. Linda Ferguson was

the one who admitted receiving the proceeds of the business,

and whom the girls had to split their earnings with. There was

not one iota of testimony to prove that Petitioner received

anything from the business. Not one witness ever saw, or

heard of him receiving any of the proceeds.

It is submitted that where the “organized crime” stigma has

been identified as one of the major reasons for a particular

sentence, it is incumbent upon a court to justify that sentence

by relating it to specific facts found either in the trial or the

presentence report. In this case it was found in neither place.

In this case the suspicion can only be figments of a judge's

imagination.

10 Al

Conclusion APPENDIX “A”

’ For all these reasons the Court should grant this Petition Opinion of the United States Court of

it of jorari.

or a writ of Certiorari Appeals for the Second Circuit

Respectfully submitted, UNITED STATES COURT OF APPEALS

PHILIP B. ABRAMOWITZ, Esq. and For the Second Circuit

IRVING M. SHUMAN, Esq.,

Attorneys for Petitioner,

2600 Main Place Tower,

Buffalo, New York 14202,

(716) 854-4300.

Gross, Shuman, Laub & David,

of Counsel.

—,

—

a a,

No. 1112—September Term, 1976

Docket No. 76-1583

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

SALVATORE S&S. RINIOLO,

Defendant-Appellant.

Before:

Waterman and Gurfein) Circuit Judges,

and Blumenfeld, District Judge.*

Appellant seeks reversal of his conviction in the United

. States District Court for the Western District of New York af-

ter a jury trial, Brieant, U. S. District Judge, $.D.N.Y., sitting

by designation, convicting appellant of having conspired with

a co-defendant to violate federal prostitution laws. He

presents three claims for appellate consideration.

* Of the District of Connecticut, sitting by designation.

A2

Appendix ‘‘A’'—Opinion of the United States Court

of Appeals for the Second Circuit.

Philip B. Abramowitz, Buffalo, New York (Gross,

Shuman, Laub & David, of counsel) for Defendant-

Appellant.

Henry Walker, Attorney, Department of Justice,

Washington, D.C. (Richard J. Arcara, U.S. Attorney,

W.D.N.Y., Dennis P. O’Keefe and William G. Otis, At-

torneys, Department of Justice, of counsel), for Plaintiff-

Appellee.

Per Curiam:

After a trial by jury in the Western District of New York

appellant was convicted of having ccenspired with one Linda

Ferguson to violate the federal laws relative to prostitution,

18 U.S.C, §$§ 2421, 2422, 2423, and 1952. The

18 U.S.C. § 371 conspiracy count was one of five counts con-

tained in the indictment, the other four alleging the com-

mission of specific substantive offenses by the two defen-

dants. Linda Ferguson pled guilty before trial. Appellant

stood trial. At the conclusion of the government's case one of

these counts charging substantive offenses was dismissed by

the court, and the jury acquitted appellant on the other sub-

stantive counts. Upon appeal from his conviction on the con-

spiracy count appellant claims that the evidence adduced at

the trial was insufficient to support his conviction, that an af-

fidavit executed by a government officer in support of two

search warrants did not establish probable cause to believe

that federal crimes were being committed at the addresses set

forth in the warrants, and that the sentence appellant re-

ceived of 2'/2 years of imprisonment was excessive.

A3

Appendix ‘‘A’’—Opinion of the United States Court

of Appeals for the Second Circuit.

We affirm the conviction and do not disturb the challenged

sentence.

We have carefully examined the transcript of the trial; and,

as we must, we consider the evidence in the light most

favorable to the governmen’ Glasser v. United States, 315

U.S. 60, 80 (1942), and fine ‘vat it was sufficient to support

appellant’s conviction on the conspiracy charge.

As to the claim that the affidavit in support of the motion

for the issuance of the two search warrants was inadequate to

support their issuance, we concur with Chief Judge Curtin

who, after holding a suppression hearing, wrote a lengthy

reasoned opinion that there was indeed probable cause to

issue the warrants.

Lastly, we point out that the sentence claimed to be ex-

cessive was well within the permissible statutory maximum of

five years’ imprisonment and a $10,000 fine, and we find no

impermissible factors which would justify our disturbing the

sentence imposed by the trial judge.

a ¢

APPENDIX “B”

Opinion of the United States District Court for

the Western District of New York

UNITED STATES DISTRICT COURT

Western District of New York

UNITED STATES OF AMERICA,

Plaintiff,

vs.

SALVATORE A. (“Sam’’) RINIOLO,

Defendant.

CR-74-53

The defendant is charged in a five-count indictment with

various violations of 18 U.S.C. §$371, 1952, and 2421 et seq.

The defendant has moved to suppress the fruits of searches at

829 Elmwood Avenue (lower) and Apartment 401, 200

Niagara Street in the City of Buffalo, conducted pursuant to

two search warrants issued on the same day as the searches,

January 21, 1974, by the United States Magistrate, Edmund

Maxwell. The suppression hearing was held before this court

on November 3, 1975, and the following constitutes the

court’s findings of fact and conclusions of law.

by. of the search warrants issued in this case were based

or .‘«ntical affidavits executed by Special Agent Ronald Lee

Hawiey of the Federal Bureau of Investigation (FBI). The af-

B2

Appendix ‘‘B’’—Opinion of the United States District Court

for the Western District of New York.

fidavit relies on information obtained from three different

informers (hereafter referred to as Sources I, II and III).

Agent Hawley was personally familiar with Source I, but not

Sources II and III, whose information was relayed to him by

Sergeant Dayka of the Buffalo Police Department and Agent

Taylor of the FBI.

The defendant argues that the search warrants were invalid

because there was not a sufficient showing made for the

Magistrate to find probable cause. To answer this argument,

the court must analyze the affidavit to determine whether

there was sufficient information presented as to the reliability

of the three sources, and as to the underlying circumstances

set forth by each source. Aguilar v. Texas, 378 U.S. 108 (1964);

Spinelli v. United States, 393 U.S. 410 (1969).

SOURCE I

The affidavit for the search warrants in question provided

the following information relative to Source I:

Source I is known to Special Agent John F. McAuliffe,

who is working with Your Affiant in this matter, to be a

gainfully employed citizen who has no criminal involve-

ment other than the apparent violation of Section 230.05

(N. Y. P. L.—Patronizing a Prostitute) as described

herein. Source I has been a customer of the prostitution

operation carried on by Linda Ferguson from her

residence, 829 Elmwood Avenue (Lower), Buffalo, for

approximately two years. Your Affiant believes Source I

to be legally reliable because of his declarations against

a te Ne ee ORD ee eet Hee ~

D ~ -nenst eons ee as Ne te te

B3

Appendix “B’—Opinion of the United States District Court

for the Western District of New York.

penal interest as described herein, his otherwise respec-

table position in the community and the fact that Source I

has provided information in the past concerning other

prostitution operations which have been consistently cor-

roborated by independent investigation conducted by

Special Agents of the Federal Bureau of Investigation.

During the second week of October, 1973, Source I, in

the presence of Your Affiant and Special Agent John F.

McAuliffe, telephoned Linda Ferguson at 829 Elmwood

Avenue, Buffalo. Source I, who used a code name, was

instructed by Ferguson to wait thirty minutes then go to

200 Niagara Street, Apartment 401, Buffalo, New York.

At the specified time on that date, Source I went to the

above-mentioned address and was admitted by the

prostitute in residence. Source I had sexual intercourse

with the prostitute and paid her forty dollars.

Subsequently, within the past ten days, Source I made

similar arrangements with Ferguson and was directed

again to the same apartment at 200 Niagara Street. Then

Source I had sexual intercourse with a prostitute who

identified herself as “Darlene,” who said she was from

Albany and had previously worked as a prostitute in

Boston. Your Affiant believes that this is ‘Joyce

Williams” described below because she had sutures down

the center of her forehead as did Williams when arrested

on January 18, 1974. Source I paid “Darlene” more than

$20 dollars. (RLH EFM}.

It is clear from paragraph one above, that there was a suf-

ficient statement made as to the reliability of Source I. The

B4

Appendix ‘‘B’’—Opinion of the United States District Court

for the Western District of New York.

fact that Source I provided information in the past which was

consistently corroborated by independent investigation is

controlling. United States v. Rollins, 522 F.2d 160, 164 (2d Cir.

1975), United States v. Sultan, 463 F.2d 1066 (2d Cir. 1972).

It is also clear from paragraphs two, three and four above,

that there were sufficient underlying facts set forth to indicate

how Source I came by his information. Both Agents Hawley

and McAuliffe were working with Source I when he contacted

and patronized a prostitute through Linda Ferguson in Oc-

tober, 1973, and this information was updated by additional

first-hand information provided by Source I only 10 days

before the search. Such information is clearly a basis for a

finding of probable cause.

SOURCE II

Source II is identified in the affidavit as Joyce Williams,

also known as “Darlene,” with Agent Hawley believed was

the same prostitute Source I patronized 10 days before the

search. The affidavit states:

On or about January 18, 1974, at approximately 11:37

PM, Officer Anthony Gawron of the Buffalo Police De-

partment (who has since provided Your Affiant with the

information contained herein) arrested a female who

identified herself as “Joyce Williams” (W/F/8- 15-54) and

gave a home address of 75 St. Alphunsus, Boston,

Massachusetts. At the time of arrest, this female had

sutures running down the center of her forehead. The

arrest was predicated upon an offer by the said Joyce

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a

BS

Appendix *‘B’’—Opinion of the United States District Court

for the Western District of New York.

Williams to engage in sexual intercourse and fellatio with

Officer Gawron (who was then and there operating in

civilian clothing) for the sum of $25.00. She was charged

with Prostitution in violation of Section 230.00 of the

Penal Law of the State of New York.

Subsequently, at the station house, Detective Sergeant

Raymond Dayka (who is working with Your Affiant on

this matter) took the following statement from Joyce

Williams, who was completely advised of her Miranda

Rights:

Williams identified a photograph of the said Linda

Ferguson and stated that she had been contacted by

Ferguson in Boston, Massachusetts by telephone and was

directed by Ferguson to come to Buffalo, New York by

bus for purposes of engaging in prostitution, which

Williams did, on or about January 16, 1974. Williams

further stated that Ferguson arranged for her (Williams)

to stay in Apartment 401 at 200 Niagara Street and to

engage in prostitution by appointment at that location.

Williams agreed to split the profits on a 50/50 basis with

Ferguson. Williams stated that she had worked as a

prostitute in both Albany and Boston. Williams further

identified a police department photograph of Salvatore

Riniolo as having been present with Linda Ferguson

during conversation when some of the arrangements were

finalized. After Williams had given the statement, which

incriminated Riniolo and Ferguson, Williams placed a

call by dialing Ferguson’s telephone number of 883-9186

(which Your Affiant known/from New York Telephone

B6

Appendix ‘‘B’’—Opinion of the United States District Court

for the Western District of New York.

Co. Records [RLH EFM] to be listed to Ferguson at 829

Elmwood Avenue (Lower), Buffalo, New York) and

talked to the party on the other end. After that Williams

returned and refused to give any further statement. She

advised the officers that a lawyer was being obtained for

her.

The person who provided information in this statement is a

confessed participant in the crime charged. In such a

situation, the usual rules of reliability do not apply. As stated

by the Second Circuit in United States v. Miley, 513 F.2d 1191,

1204 (2d Cir. 1975):

To require a showing of previous reliability by such a

person would, as in the case of a victim or a witness,

make his information totally unavailable, despite the

peculiar likelihood of its accuracy. Such information is

toto coelo removed from a “meager report” that “could

easily have been obtained from an offhand remark heard

at a neighborhood bar”, as to which prior history of

providing accurate information is required, Spinelli v.

~ United States, . . . (Citations omitted).

Source II admitted to engaging in acts of prostitution in both

Albany and Boston. In the affiant’s report of the statement

made to Sergeant Dayka, Source II identified defendants

Ferguson and Riniolo by photograph, stated that she arrived

in Buffalo on or about January 16, 1974, and that it was ar-

ranged for her to stay at 200 Niagara Street, Apartment 401 and

to engage in prostitution there. The officer further indicated

that Source II called Linda Ferguson’s phone number after

her arrest. Her date of arrival in Buffalo and the location of

heey: 6 wSen ee eetos ees

Senet a en

B7

Appendix “‘B’—Opinion of the United States District Court

for the Western District of New York.

the premises at which she was to stay are corroborated by the

information provided by Source I. The phone number she

called was known by the affiant’s corroboration to belong to

Linda Ferguson. The declaration against interest and the

degree of corroboration between the information provided by

Sources I and II, as well as the independent corroboration

provided by the affiant, are sufficient to establish a basis for

crediting the report of Source II. United States v. Harris, 403

U.S. 573 (1971), United States v. Miley, supra.' Finally, the in-

formation regarding Ferguson’s phone cail to Source II, while

Source II was still in Massachusetts, provides the federal ele-

ment of the offenses under investigation. United States v.

Brouillette, 478 F.2d 1177 (Sth Cir. 1973).

' At the suppression hearing, the Government informed the defense that

statements made by Source II subsequent to the execution of the search

warrants were in conflict with the earlier statement she gave to Detective

Sergeant Dayka. These subsequent statements were not introduced at the

hearing nor was Source II called to testify. In United States v. Sultan, 463

F.2d 1066, 1070 (2d Cir. 1972), the court dealt with this issue and resolved

it by stating: “. . . probable cause is not to be defeated because an in-

formart is later proved to have lied, as long as the affiant accurately

represented what was told to him.”

The defense called Detective Sergeant Dayka as a witness at the sup-

pression hearing and introduced his written report of his conversation with

Source II. Sergeant Dayka stated that his written report was the basis for

the information he conveyed to affiant Hawley. Affiant Hawley testified

that everything he had put in the affidavit regarding Source II came from

his conversation with Detective Sergeant Dayka and/or Dayka’s written

report of the arrest. While the written police report of the conversation

with Source II is not reproduced in the affidavit, the two documents are not

inconsistent. There was no showing at the hearing that the affiant made a

reckless or intentional misstatement, or that either the affiant or Dayka

knew that any of the information was false. The conflicts in Source II's

statements, therefore, have no bearing on the finding of probable cause.

Appendix “B''—Opinion of the United States District Court

for the Western District of New York.

The information provided by Source III was related to the

affiant by a Special Agent of the FBI. The affidavit states:

During late 1972, Source III was brought to Buffalo from

another state for purposes of engaging in prostitution.

Source III was taken to Linda Ferguson and Salvatore

Riniolo (whose photographs she identified sub-

sequently), both of whom were then living together at 829

Elmwood Ave., Buffalo. Source ITI remained in Buffalo

approximately one week working as a prostitute for

Ferguson and Riniolo. From conversations and first-

hand observations during this period, Source III was able

to report that Riniolo acts as Linda Ferguson's pimp and

is the manager of the Ferguson operation, actually

having contact with the prostitute in residence,

This information, standing alone, could not provide a basis

for a finding of probable cause because it refers to a period of

time more than a year prior to the date of the affidavit.

Schoeneman vy. United States, 317 F.2d 173 (D.C.Cir. 1963).

However, this information was corroborated and updated by

Sources I and II. Among other things, Source I said that he

had been a customer of the Ferguson operation for two years.

The address given as the residence of Riniolo and Ferguson

by Source III is corroborated by the independent in-

vestigation of the FBI by surveillance as late as November,

1973. Moreover, Source III's information provides general

background about the criminal activity of the defendants, and

this may be considered by the Magistrate as one important

element of probable cause. United States v. Tramunti, 513 F.2d

1087, 1101, n.19 (2d Cir. 1975), cert. denied, 423 U.S. 832

(citing United States v. Harris, supra, 403 U.S. at 583).

RN A

he A A A

BY

Appendix ‘‘B’’—Opinion of the United States District Court

for the Western District of New York.

Source III's reliability is based on the fact that her in-

formation was corroborated, as set forth above, that her

statements were a declaration against interest, and that she

testified to the same facts before a federal grand jury. In the

affidavit, she is said to have admitted working as a prostitute

for one week late in 1972. This declaration against interest

carries its own indicia of credibility sufficient for a finding of

probable cause. Harris, supra, at 853. The fact that Source III

testified under oath before a federal grand jury may not of it-

self be a basis for credibility but, when her information is

corroborated as it has been here, it may at least be considered

as an indicia of credibility. See James v. United States, 416

F.2d 467, 473 (Sth Cir. 1969), cert. denied, 397 U.S. 907 (1970).

All of the above leads to the conclusion that the Magistrate

was correct in finding Source III was reliable.

The defendant argues that even if there was probable cause,

the warrants are defective because there was no connection

shown between the items sought and the premises to be search-

ed. This argument relies on the fact that none of the sources

of information made reference to any personal observation of

the items on the premises to be searched. This argument is

without merit. Depending on the nature of the crime and the

items being sought, the connection may be made on grounds

other than personal observation. United States v. Lucarz, 430

F.2d 1051, 1055 (9th Cir. 1970). it was entirely reasonable,

under the circumstances of this case, for the Magistrate to

conclude that the items sought were being utilized to carry

out the illegal activity. United States v. Scherfman, 442 F.2d

1352, 1355 (2d Cir. 1971), cert. denied, 405 U.S. 919. Ad-

ditionally, the description of the items was particular enough

because

B10

Appendix “B’’—Opinion of the United States District Court

for the Western District of New York.

{[wjhen circumstances make an exact description of in-

strumentalities [of a crime], a virtual impossibility, the

searching officer can only be expected to describe the

generic class of items he is seeking.

James, supra, at 473, United States v. Auterbridge, 375

F.Supp. 418, 420 (S.D.N.Y. 1974).

Similarly, the defendant's argument that the warrants

failed to adequately describe the premises must be rejected.

The descriptions of the premises as Apartment 401, 200

Niagara Street, Buffalo, New York, and 829 Elmwood

Avenue (Lower), Buffalo, New York, are sufficiently par-

ticular to meet the standard set forth in United States v. Steele,

No. |, 267 U.S. 498, 503 (1935), that it is sufficient if the

description is such that officers with a search warrant can

with reasonable effort ascertain and identify the place in-

tended. Furthermore, a de cription similar to the ones in this

case was upheld in United States v. Gomes, 42 F.R.D. 347

(S.D.N.¥. 1967).

Therefore, for all of the aforesaid reasons, the court finds

that probable cause for the search existed, and that the items

were seized properly. The defendant's motion to suppress is

denied.

So ordered.

JOHN T. CURTIN,

John T. Curtin,

United States District Judge.

Dated: August 18, 1976.