Petition — Landmesser v. United States

Supreme Court, U. &

~ PILE A gy

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

i

JOSEPH WILLIAM LANDMESSER - .- Petitioner

versus

UNITED STATES OF AMERICA - -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK E. HADDAD, JR.

529 Kentucky Home Life Building

Louisville, Kentucky 40202

Counsel for Petitioner

July / , 1977

WESTERFIELO-BONTE CO., 619 W. KENTUCKY~P.©O. BOX 3251, LOUISVILLE, KY.

PAGE

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i <1. cell. ius Laameeaks toayk ehaereees 1- 2

niin Ga ik cath de KG o's.geldnce aloaehanes 2

a a ee a 2

Constitutional and Statutory Provisions Involved.... 3- 5

Statement of the Case.................cc cece cece ee BT

Reasons for Granting the Writ..................... 8-23

a CetiiWencunldt ceuesgksbamnees on ade 23-24

LG AS adaueea he tdsusceevavcdesecedevedenve 25-73

A. Sixth Cireuit Court of Appeals Opinion........ 25-33

B. Sixth Cireuit Court of Appeals Order Denying

Petition for Rehearing. ..........cccscscccscces 34

C, Sixth Cireuit Court of Appeals Order Staying

Mandate Pending Certiorari.................. 35

D. District Court, Western District of Kentucky,

Judgment and Commitment Order............ 37

K. Application of the United States Attorney for

an Order Authorizing the Interception of Wire

EDs oF No cbWevecechedecitecccies 39-44

F. Affidavit of Special Agent John R. Morello in

ES Gr CIID 0 6 ci tiwcn ci cvesisecses 45-73

AUTHORITIES

Constitutional Provisions: ose

United States Constitution Fourth Amendment.... 3

Statutes:

Federal Statutes:

DS oc ccc ccccoctcesssccccnecess 8, 5

Op Py Gen vv kn ccnnessscccceccesss coven 10

Oe WE MI ov ccccnss soccdsccesscencevens 5, 10, 11

18 U.S.C. §2518(1)(¢c)...... 2, 3-4, 6, 9, 12, 16, 20, 21, 23

16 WEG, GRBIBIS lO)... 0c cccccccccescvccsseces 12, 16

18 U.8.C. $2518(8)(d).........ee0e0. 2, 4, 6, 7, 9, 21, 22

18 U.S.C. §2518(10)(a)(i)..........-. 4—5, 9-10, 11, 21

Oy Pe IEP ccc cascccncsscsvessoncece 2

Cases:

Berger v. New York, 388 U. 8S. 41 (1967)......... 16

Gelbard v. United States, 408 U. S, 41 (1972)..... 11

United States v. Cacace, 529 F. 2d 1167 (5th Cir.

1976), cert. denied 426 U.S. 908...........55. 14

United States v. DiGirlomo, 550 F. 2d 404 (8th Cir.

dag dickdee deh antks des sahsbavhaeniakees 23

United States v. Donovan, U.S. __, 50 L. Ed.

Ge Gee Tk BEE, wi cosnccsatrceseoscecns 22

United States v. Giordano, 416 U.S. 505 (1974) .11, 13, 20

United States v. Kalustian, 529 F. 2d 585 (9th Cir.

eee ere Tey 18, 20

United States v. Kerrigan, 514 F. 2d 35 (9th Cir.

1975), cert. denied 423 U. S, 924...........4.. 16

United States v. Pezzino, 535 F. 2d 483 (9th Cir.

1976), cert. denied... .......ccsevcccvevcevees 13

United States v. Spagnuolo, __._. F. 2d —_ (9th

GT, GE Bee Bec ccc cc ccccccescccsscocsews 13

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1976

No.

JOsEPH WILLIAM LANDMESSER . - Petitioner

v.

Unirep Srares ov AMERICA . : Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIROUIT

The Petitioner, JosepH WuintiaAm LANDMESSER, re-

spectfully prays that a Writ of Certiorari issue to

review the Order and Opinion of the United States

Court of Appeals for the Sixth Cireuit, entered in this

proceeding on April 18, 1977,

OPINIONS BELOW

The Order and Opinion of the Cowt of Appeals,

entered on April 18, 1977 (Appendix A) is reported at

—— F, 2d -—. The Order of the Court of Appeals

overruling Petitioner’s Petition for Rehearing was

entered on June 3, 1977 (Appendix B). The Judgment

2

and Commitmeut Order of the District Court for the

Western District of Kentucky at Louisville (Appendix

C), entered on March 4, 1976 is not reported.

JURISDICTION

The Order of the Court of Appeals for the Sixth

Circuit (Appendix A) was entered on April 18, 1977;

and a timely Petition for Rehearing was denied by

Order of the Court of Appeals for the Sixth Circuit

(Appendix B) on June 3, 1977. This Court’s jurisdic-

tion is invoked pursuant to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Whether the wiretap evidence should have been

suppressed where it was obtained in violation of 18

U.S.C, §2518(1) which requires that each application

for an order authorizing electronic surveillance shall

include a full and complete statement as to whether or

not other investigative procedures have been tried and

failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous.

2. Whether wiretap evidence should have been sup-

pressed where the Government knowingly did not

comply with the District Court’s Order directing

service of inventory on Petitioner, as required by 18

U.S.C. §2518(8)(d) to be served within ninety (90)

days after the termination of the period of the wiretap

authorization.

—

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution provides that,

The right of the people to be secure in their

persous, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no warrauts shall issue but upon prob-

able cause, supported by oath or affirmation, and

particularly describing the place to be searched,

and the person or things to be seized.

The charging statute in this criminal proceeding is

18 U.S.C. §1084(a), Transmission of wagering infor-

mation; penalties, which provides as follows:

(a) Whoever being engaged in the business of

betting or wagering knowingly uses a wire com-

munication facility for the transmission in inter-

state or foreign commerce of bets or wagers or

information assisting in the placing of bets or

wagers on any sporting event or contest, or for the

transmission of a wire communication which en-

titles the recipient to receive money or credit as a

result of bets or wagers, or for information assist-

ing in the placing of bets or wagers, shall be fined

not more than $10,000 or imprisoned not more than

two years, or both.

The following provision of Title 18 of the United

States Code are applicable on this Petition:

§2518. Procedure for wire or oral communications

(1) Each application for an order authorizing

or approving the interception of a wire or oral

4

communication shall be made in writing upon oath

or affirmation to a judge of competent jurisdiction

and shall state the applicant’s authority to make

such application. Each application shall include

the following information:

(c) a full and complete statement as to

whether or not other investigative procedures

have been tried and failed or why they reason-

ably appear to be unlikely to succeed if tried

or to be too dangerous;

(8)(d) Within a reasonable time but not later

than ninety days after . . . the termination of the

period of an order or extension thereof, the issuing

or denying judge shall cause to be served, on the

persons named in the order or the application, and

such other parties to intercepted communications

as the judge may determine in his discretion that

is in the interest of justice, an inventory which

shall include notice of —

(1) the fact of the entry of the order or

the application ;

(2) the date of the entry and the period of

authorized, approved or disapproved intercep-

tion, or the denial of the application; and

(3) the fact that during the period wire or

oral communications were or were not inter-

cepted.

*

(10)(a) Any aggrieve’ person in any trial,

hearing, or proceeding in or before any court, de-

partment, officer, agency, regulatory body, or other

authority of the United States, a State, or a politi-

eal subdivision thereof, may move to suppress the

?

contents of any intercepted wire or oral communi-

eation, or evidence derived therefrom, on the

grounds that-—

(i) the communication was unlawfully in-

tercepted ....

*

* *

§2515. Prohibition of use as evidence of intercepted

coramunications

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communieation and no evidence derived therefrom

may be received in evidence in any trial, hearing,

or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body,

legislative committee, or other authority of the

United States, a State, or a political subdivision

thereof if the disclosure of that information would

be in violation of this chapter.

STATEMENT OF THE CASE

After waiving jury trial, Petitioner Landmesser

was found guilty in the District Court of the use of a

telephone in interstate commerce for the transmission

of wagering information in violation of 18 U.S.C.

§1084(a). The case was tried on a stipulation of facts.

All of the evidence against the Petitioner was ob-

tained as a result of telephone wiretaps of another

defendant’s home. It is conceded that without the

wiretap evidence, there would have been no case against

the Petitioner.

Petitioner appealed to the Court of Appeals on the

grounds that the wiretap evidence should have been

6

suppressed because the application for the order au-

thorizing electronic surveillance did not contain a full

and complete statement of the adequacy of other in-

vestigatory procedures, as required by 18 U.S.C. §2518

(1) (e); and because Petitioner did not receive inven-

tory notice of the wiretap within the requisite time

period as required by 18 U.S.C. §2518(8)(d). The

Court of Appeals affirmed the District Court’s failure

to suppress. [Sixth Circuit Opinion, Appendix A.]

A more detailed account of what actually took place

in this case is as follows:

On December 13, 1974, the United States Attorney

for the Western District of Kentucky tendered an

Application for electronic surveillance of one of the

other defendants in this case pursuant to 18 U.S.C.

§§2510-2520. [United States Attorney’s Application,

Appendix E.] This Application was supported by

F.B.I. Special Agent John R. Morello’s Affidavit.

[Agent Morello’s Affidavit, Appendix F.]

Agent Morello’s Affidavit, submitted to the Court

on December 13, 1974, included what purported to be a

statement as to whether or not other investigative pro-

cedures had been tried and failed or why they reason-

ably appeared to be unlikely to succeed if tried or to be

too dangerous. [Paragraph 21, Agent Morello’s Affi-

davit, Appendix F, pp. 71-72. ]

Ou the basis of the documents before it, the Court

found probable cause (statutory compliance), and en-

tered Orders authorizing electronic surveillance. Dur-

ing the course of electronic surveillance, conversations

incriminating Petitioner and others were overheard,

‘

The Court entered aun Order directing service of

inventory on March 12, 1975, ordering that Petitioner

and others be served with a copy of the inventory by

‘certified or registered mail, return postage requested

. .’ The Government mailed a certified letter to

Petitioner at the following address:

JOSEPH W. LANDMESSER

316 Maple Road

Garden City

Chester, PA. 19014

The letter was returned to the Government on March

18, 1975 marked,

‘*No such street.’’

Thereafter, the Government made no further attempt

or effort whatsoever to serve Petitioner with a copy of

the inventory, as required by 18 U.S.C. §2518(8) (d)

and as ordered by the Court. The statutory period of

ninety (90) days after the termination of the period of

the wiretap authorization iapsed with required service

not accomplished as to Petitioner.

The District Court denied Petitioner’s motions to

suppress, and the Petitioner was convicted. Petitioner

appealed the conviction to the Court of Appeals for the

Sixth Circuit, raising issues now presented by this

Petition. The Opinion of the Court of Appeals affirmed

Petitioner’s conviction [Appendix A]. A timely Pe-

tition for Rehearing was denied by the Court of Ap-

peals [Appendix B].

Petitioner’s Motion for Stay of Mandate Pending

Certiorari was granted by the Court of Appeals on

June 15, 1977 [Appendix C].

8

REASONS FOR GRANTING THIS WRIT

1. The electronic surveillance evidence was ob-

tained in violation of 18 U.S.C. §§2510ff. and should

not have been used to convict Petitioner.

2. This Court now has the opportunity to clarify

the important questions of statutory construction and

application raised by this Petition.

3. The facts and the law of the present case require

reversal.

A. Introductory.

The Fourth Amendment to the United States Con-

stitution provides that,

The right of the people to be secure in their

persons, houses, papers, and effects, against un-

reasonable searches and seizures, shall not be vio-

lated, and no warrants shall issue but upon prob-

able cause, supported by oath or affirmation, and

particularly describing the place to be searched,

and the person or things to be seized [Emphasis

added].

Title ILI of the Omuibus Crime Control and Safe

Streets Act of 1968, 82 Stat. 211-225, 18 U.S.C. §§2510-

2520, which prescribes the procedure for securing

judicial authority to intercept wire communications in

the investigation of specified offenses, implements the

Fourth Amendment with regard to electronic surveil-

lance.

For purposes of this Petition, the relevant provi-

sions of 18 U.S.C. §§2510-2520, implementing the

Fourth Amendment, are set forth as follows:

~~

ltl ences CR teetthdine ok .

9

=~

§2518. Procedure for wire or oral communications.

(1) Each application for an order authorizing

or approving the interception of a wire or oral

communication . . . shall include the following

information:

* +

(c) a full and complete statement as to

whether or not other investigative procedures

have been tried and failed or why they reason-

ably appear to be unlikely to succeed if tried

or to be too dangerous;

* +

(8)(d) Within a reasonable time but not

later than ninety days after . . . the termina-

tion of the period of an order or extensions

thereof, the issuing or denying judge shall

cause to be served, on the persons named in the

order or the application, and such other parties

to intercepted communications as the judge

may determine in his discretion that is in the

interest of justice, an inventory which shall

include notice of —

(1) the fact of the entry of the order or

the application ;

(2) the date of the entry and the period of

authorized, approved or disapproved inter-

ception, or the denial of the application; and

(3) the fact.» *uring the period wire or

oral communicati ... were or were not inter-

cepted [Emphasi: ied}.

* * *

(10(a) Any aggrieved person in any trial,

hearing, or proceeding in or before any court,

department, officer, agency, regulatory body,

or other authority of the United States, a

10

State, or a political subdivision thereof, may

move to suppress the contents of any inter-

cepted wire or oral communication, or evi-

dence derived therefrom, on the grounds that-

(i) the communication was unlawfully in-

tercepted ....

* * +

§2515. Prohibition of use as evidence of inter-

cepted communications.

Whenever any wire or oral communications lias

been intercepted, no part of the contents of such

communication and no evidence derived therefrom

may be received in evidence in any trial, hearing,

or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body,

legislative committee, or other authority of the

United States, a State, or a political subdivision

thereof if the disclosure of that information would

be in violation of this chapter.

Civil and criminal remedies are provided for viola-

tions of these statutory requirements implementing the

Fourth Amendment. 18 U.S.C. §§2511, 2520.

In 1974, this Court stated that the clear intent of

such detailed legislation was to limit electronic surveil-

lance to surveillance conducted in strict accordance with

statutory procedures and only in the specifie cireum-

stances enumerated by the statute.

The purpose of the legislation, which was

passed in 1968, was effectively to prohibit, on the

pain of criminal and civil penalties, all intercep-

tions of oral and wire communications, except those

specifically provided for in the Act. . . .

11

Congress legislated in considerable de-

tail in providing for applications and orders

authorizing wiretapping and evinced the clear in-

tent to make doubly sure that the statutory author-

ity be used with restraint and only where the cir-

cumstances warrant the surreptitious interception

of wire and oral communications. United States

v. Giordano, 416 U. 8. 505, 515 (1974).

Congress has provided a statutory basis for suppres-

sion of wiretap evidence. 18 U.S.C. §2515 prohibits

the introduction of wiretap evidence or its fruits ‘‘if

the disclosure of that information would be in viola-

tion of this chapter.’’ Specific grounds for suppres-

sion spelled out in 18 U.S.C. §2518(10)(a) include

whenever ‘‘(i) the communication was unlawfully

intercepted. . . .”’ United States v. Giordano, supra,

416 U. 8. at 524; Gelbard v. United States, 408 U.S.

41, 46 (1972).

This Court has broadly construed the legislative

designation ‘‘unlaw/ully intercepted.”

The words ‘unlawfully intercepted”’ are them-

selves not limited to constitutional violations, and

we think Congress intended to require suppression

where there is failure to satisfy any of those statu-

tory 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 extra-

ordinary investigative device. United States v.

Giordano, supra, 416 U. 8. at 527.

This Petition demonstrates two instances in which

wiretap evidence was ‘unlawfully intercepted”’ so that

12

the wiretap evidence should not have been used to

convict Petitioner.

B. The wiretap evidence should have been sup-

pressed when it was obtained in violation of 18 U.S.C.

§2518(1) which requires that each application for an

order authorizing electronic surveillance shall include

a full and complete statement as to whether or not other

investigative procedures have been tried and failed or

why they reasonably appear to be unlikely to succeed if

tried or to be too dangerous.

Title III specifically requires, as central to the

statutory scheme, that each application for electronic

surveillance shall contain:

a full and complete statement as to whether or not

other investigative procedures have been tried and

failed or why they reasonably appear to be un-

likely to succeed if tried or to be too dangerous.

18 U.S.C. §2518(1) (e).

Title III further specifically requires, as central to

the statutory scheme, that no order authorizing elec-

tronic surveillance may be entered without a prior

judicial determination that

normal 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(3) (e).

This Court has specifically construed subsections

(1)(¢) and (3)(¢) to mean what they say.

13

Congress legislated in considerable detail in pro-

viding for applications and orders authorizing

wiretapping and evinced the clear intent to make

doubly sure that the statutory authority be used

with restraint and only where the circumstances

warrant the surreptitious interception of wire and

oral communications. These procedures were not

to be routinely employed as the initial step in

criminal investigation. Rather, the applicant must

state and the court must find that normal investiga-

tive procedures have been tried and failed or rea-

sonably appear to be unlikely to succeed if tried

or to be too dangerous. §§2518(1) (e) and (3) (ec).

[Emphasis added.] United States v. Giordano,

416 U.S. 505, 515 (1974).

The various Circuit decisions have consistently held

that the required statement regarding normal investiga-

tive procedures must be a statement particularized to

the case at hand.

[T]he affidavit, read in its entirety, must give a

factual basis sufficient to show that ordinary in-

vestigative procedures have failed or will fail in

the particular case at hand. [Emphasis added. ]

United States v. Spagnuolo, —— F. 2d .

(9th Cir. March 4, 1977).

- * *

(The affidavit] discussed all of the normal tech-

niques that had been tried and failed, and in re-

spect of those untried, the affidavit gave reasons

why they would not work in this particular case.

[Emphasis added.] United States v. Pezzino, 535

F. 2d 483, 484 (9th Cir. 1976).

14

See especially the detailed particularity of the affidavit

approved in United States v. Cacace, 529 F. 2d 1167

(Sth Cir. 1976), and reproduced in note 1, at 1168,

The affidavit in the present proceeding DID NOT

GIVE A FACTUAL BASIS SUFFICIENT TO

SHOW THAT ORDINARY INVESTIGATIVE

PROCEDURES HAVE FAILED OR WILL FAIL

IN THE PARTICULAR CASE AT HAND.

In the present proceeding, the requirement of 18

U.S.C. §2518(1) (c) was not satisfied by the affidavit of

Agent Morello as to normal investigative procedures.

Agent Morello’s affidavit (Appendix F) states, in

pertinent part:

Continuation of normal investigative proce-

dures reasonably appears unlikely to succeed.

[Agent Morello’s Affidavit, Appendix F, p. 46.]

[and]

Interception of communications requested

herein are necessary in order to identify the vari-

ous co-conspirators and to learn the full scale

illegal gambling business. Normal investigative

techniques such as surveillances, reviews of tele-

phone records and interviews have been tried with-

out success and reasonably appear to be unlikely

to succeed if further tried. Surveillances and

interviews of potential witnesses have failed to

provide evidence necessary to sustain convictions

of PAUL ROBERT RHODES, KENNETH

RAYMOND VOTTELER and others for viola-

tions of Title 18, Sections 371 and 1955, United

States Code. The execution of search warrants on

the persons and premises listed in the foregoing

paragraphs would be unlikely to provide the evi-

15

dence necessary to sustain successful prosecution

under these statutes. My previous investigations

have revealed that bookmakers normally maintain

sketchy, if any, records and frequently code the in-

formation coutained ii. (.eir records and if they

have the opportunity, they will destroy the records.

Even if seized, the records would be unlikely to

provide the specific evidence necessary to show the

extent of the illegal gambling business and the

full degree of participation in the business by

PAUL ROBERT RHODES, KENNETH RAY-

MOND VOTTELER and others. Witnesses inter-

viewed concerning the illegal gambling activities

being conducted by PAUL ROBERT RHODES,

KENNETH RAYMOND VOTTELER and others

have failed to provide specific evidence of the

violation because the witnesses are hesitant to dis-

euss their knowledge of the gambling operation

for fear of reprisal against them by RHODES,

VOTTELER and others. Informants CS-1, CS-2,

aud OS-3 have refused to testify for fear of phy-

sical and financial reprisals against them by

RHODES, VOTTELER and others.

For the reasons set forth above, the only reason-

able method of developing the necessary evidence

of violations committed by the above named indi-

viduals and others, whose identities are unkhown,

is to intercept wire communications of PAUL

ROBERT RHODES, KENNETH RAYMOND

VOTTELER and others to and from the tele-

phones described above. [Agent Morello’s Affi-

davit, Appendix F, pp. 71-72.]

The content of Agent Morello’s affidavit as to normal

investigative procedures is: 1) uot sufficiently partic-

16

ularized to the case at hand; and 2) mostly boilerplate

or conclusory in approach.

Boilerplate statements as to normal investigative

procedures in applications for electronic surveillance

authority have been condemned.

[BJoilerplate recitation of the difficulties of

gathering usable evidence in bookmaking prosecu-

tions is not a sufficient basis for granting a wiretap

order. To hold otherwise would make §2518(1) (c)

and (3)(c) mere formalities in bookmaking cases.

United States v. Kerrigan, 514 F. 2d 35, 38 (9th

Cir. 1975), cert. denied.

In the present proceeding, the statement as to normal

investigative procedures specified only that surveil-

lances and interviews had been conducted and that

telephone records had been reviewed. The statement

used typical boilerplate language to state that searches

of persons and premises would not likely be fruitful

because ‘‘bookmakers normally maintain sketchy, if

any, recordsand . . . they will destroy the records.”

The statement further recited the familiar refrain that

‘witnesses are hesitant to discuss their knowledge’’

and informants ‘‘have refused to testify.”

Agent Morello’s affidavit does not inform the judge

as to why other investigative methods—far less exten-

sive and intrusive than eavesdropping—had not been

utilized.

Few threats to liberty exist which are greater than

that posed by the use of eavesdropping devices.

Berger vy. New York, 388 U.S. 41, 63 (1967).

—

17

Agent Morello’s affidavit does not state that an in-

vestigation of other police records had been conducted

or would be unsuccessful, or why. The affidavit does

not refer to the results of previous wiretaps as other

investigatory methods. The affidavit fails to show that

search warrants had even been sought. Agent Morello’s

affidavit doesn’t even consider another basic form of

investigation in gambling cases—the use of questioning

or interrogation under an immunity grant. Nor does

the Agent postulate the use of infiltration by under-

cover agents to overcome the difficulties presented by

reluctant witnesses and refusing informants.

Even where the affidavit states conclusions as to

surveillances, interviews, and reviews of telephone

records, the affidavit clearly does not specify as to the

facts of those investigative procedures. The affidavit

does not render ‘‘a fyll and complete statement”’ as to

those investigative ideas,

Even where the affidavit states conclusions as to

search warrants on the persons and premises involved,

the affidavit does not specify as to those investigative

procedures of search and scizure, except to narrate the

Agent” forecast based on his ‘‘previous investiga-

t' as."° ~ ne affidavit does not render ‘‘a full and com-

plete s.c.cment”’ as to the investigative procedures of

search and seizure.

Even where the affidavit alleges conclusions as to

the difficulties involved in obtaining information and

testimony from witnesses and informants, the affidavit

does not specify as to the actual difficulties involved, ex-

cept to recite the usual refrain that the witnesses and

18

informants generally fear ‘‘reprisals.”” The affidavit

does not render ‘‘a full and complete statement”’ as to

investigations by witness and informant.

It is submitted that mere conclusions in an affidavit

are insufficient to justify a search warrant.

Mere conclusions by the affiant are insufficient

to justify a search warrant, Aguilar v. Texas, 378

U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)

ora wiretap order. More specifically, they do not

provide facts from which a detached judge or

magistrate can determine whether other alterna-

tive investigative procedures exist as a viable

alternative. United States v. Kalustian, 529 F. 2a

585, 590 (9th Cir. 1976).

In the present proceeding, the statement failed to

provide sufficient facts as to whether other investiga-

tive procedures existed as a viable alternative to the

extraordinary devices of electronic surveillance. Agent

Morello’s statement is replete with general expressions

such as:

Interception of communications . . . are neces-

a

Normal investigative techniques . . . reason-

ably appear to be unlikely to succeed.

The execution of search warrants . . . would

be unlikely to provide the evidence necessary. ...

My previous investigations have revealed.

Even if seized, the records would be unlikely to

provide the specific evidence necessary. . . .

19

the only reasonable method . . . is to

intercept wire communications. .

[Agent Morello’s Affidavit, Appendix F, pp. 71-

72. ]

These expressions are the baldest sort of conclusions

applicable to ANY POTENTIAL CASE, not specifi-

cally to ‘‘the particular case at hand,’’ as required by

the cases and the statute.

The expressions contained in the Ninth Circuit’s

review of the Kalustian statements mirror the expres-

sions contained in Agent Morello’s statement in the

present proceeding.

The affidavits set forth facts from which prob-

able cause to infer the operation of a gambling

conspiracy could be gleaned. Nearly all of these

‘‘facts” trickled into the ears of FBI agents

through the efforts of a series of professional

gamblers and bookmakers. Unfortunately, as the

affidavits attest, none of the underworld informants

are willing to testify. The refusal of the inform-

ants to testify is a matter for the court to con-

sider in authorizing electronic surveillance. How-

ever, standing alone, it may not be sufficient. Evi-

dence of telephone numbers used by the bookmak-

ing operation and the identities of some of the

conspirators could not successfully support a

prosecution without that testimony.

Consequently, the investigating officials decided

electronic surveillance was imperative. They dis-

carded alternative means of further investigation

because ‘‘knowledge and experience”’ in investigat-

ing other gambling cases convinced them that

‘normal investigative procedures’’ were unlikely

20

to succeed. Agent Brent recites that searches are

often fruitless because gamblers keep no records

destroy them, or maintain them in undecipherable

codes. Use of the phone company’s records alone

is inconclusive. Kalustian, supra, 529 F. 2d at 589.

The language of the Kalustian affidavits mirrors the

language of the statements at bar.

In Kalustian, the Ninth Circuit applied this Court’s

finding that electronic surveillance is “‘not to be

routinely employed as the initial step in criminal in-

vestigation” [United States v. Giordano, supra, 416

U. 8. at 515] to hold that the statements were insuf-

ficient as to normal investigative procedures.

The affidavit does not enlighten us as to why

this gambling case presented any investigative

problems which were distinguishable in nature or

degree from any other gambling case. In effect

the Government’s position is that all gambling

conspiracies are tough to crack, so the Government

need show only the probability that illegal gam-

bling is afoot to justify electronic surveillance.

Title III does not support that view. Kalustian

supra, 529 F. 2d at 589.

The affidavit at bar also failed to indicate why this

case presented any investigative problems which were

distinguishable from any other gambling case. The

affidavit at bar did not provide ‘‘a full and complete

statement”’ as to the exhaustion or dangerousness of

other investigative procedures as explicitly required by

18 U.S.C. §2518(1) (e).

a tA

21

Because the affidavit in the present proceeding

failed to provide the ‘‘full and complete statement”’ as

to normal investigative procedures in the particular

ease at hand as required by 18 U.S.C. §2518(1)(c), it

is respectfully submitted that the wiretap evidence

below was ‘‘unlawfully intercepted’’ within the mean-

ing of 18 U.S.C. §2518(10) (a) (i), so that the wiretap

evidence should have been suppressed.

C. Wiretap evidence should have been suppressed

where the Government knowingly did not comply with

the District Court’s Order directing service of inven-

tory on Petitioner, as required by 18 USK. §2518

(8)(d) to be served within ninety (90) days after the

termination of the period of the wiretap authorization.

In the present proceeding, the Government did not

comply with the requirements of 18 U.S.C. §2518

(8) (d) (1) (2) (3), quoted above, by knowingly prevent-

ing compliance with the Court’s Order and the statu-

tory command to serve inventory notice on the Peti-

tioner. Petitioner’s name was included in the In-

ventory of the Court’s Order Directing Service of In-

ventory, entered on March 12, 1976. However, Peti-

tioner never received service of inventory notice. Ap-

parently, the United States mailed a registered letter

containing the inventory notice to:

JOSEPH W. LANDMESSER

316 Maple Road

Garden City

Chester, PA. 19014

But this letter was returned by the post office marked,

‘*No such street.”’

AL

At the point when the letter returned marked, ‘‘ No

such street,’? the Government knew the inventory

notice HAD NOT REACHED THE PETITIONER.

The Government knew the statutory mandate and the

Court’s Order had not been complied with. Yet the

Government did nothing.

By this omission to comply with statute and

order, the Government knowingly prevented satisfac-

tion of Petitioner’s fundamental constitutional {Fourth

Amendment], statutory [18 U.S.C. §2518(8)(d)], and

judicial [Order of March 12, 1976] right to be informed

that he had been the subject of electronic surveillance.

This Court has recently held, in United States v.

Donovan, —— U. 8S. ——, 50 L. Ed. 2d 652 (January

18, 1977), that postintercept notice was not “intended

to serve as an independent restraint on resort to the

wiretap procedure.’’ Donovan, supra, 50 L. Ed. 2d at

675,

The fact that discretionary notice reached 39

rather than 41 identifiable persons does not in itself

mean that the conversations were unlawfully inter-

cepted. IJd.,50 L. Ed. 2d at 674.

Thus, an ordinary failure to serve inventory notice

would not of itself be grounds for suppression. How-

ever, this Court in Donovan, explicitly noted that sup-

pression might be an available remedy if the Govern-

ment knowingly sought to prevent the service of in-

ventory notice.

Counsel for respondents Merlo and Lauer con-

ceded at oral argument that the failure to name

25

those respondeuts in the proposed inventory order

was not intentional . . . and we are therefore

not called upon to decide whether suppression

would be an available remedy if the Government

knowingly sought to prevent the District Court

from serving inventory notice on particular

parties. Id., note 26, 50 L. Ed. 2d at 674.

See, United States v. DiGirlomo, 550 F. 2d 404, 407

(8th Cir. 1977). In the present proceeding, Petitioner

eannot concede that the Government’s failure to serve

inventory notice on him was unintentional. The

Government knew perfectly well that service had not

been accomplished when the mailing returned marked,

‘‘No such street.’’ The Government failed in its duty

to then obtain a correct address and achieve service.

Petitioner now calls upon this Court, on the facts

of this case, to decide that suppression is an available

remedy where the Government knowingly has pre-

vented compliance with the statute and order requiring

service of inventory on Petitioner, the very issue left

undecided by this Court in Donovan. '

CONCLUSION

Because the application for an order authorizing

electronic surveillance did not include a full and com-

plete statement as to whether or not other investigative

procedures have been tried and failed or why they rea-

sonably appear to be unlikely to succeed if tried or to

be too dangerous, in violation of 18 U.S.C. §2518(1),

and because the Government knowingly prevented com-

pliance with the District Court’s Order directing serv-

24

ice of inventory on Petitioner and the statutory

mandate of 18 U.S.C. §2518(8)(d) that service of in-

ventory be made within ninety (90) days after the

termination of the period of the wiretap authorization,

the wiretap evidence against Petitioner should have

been suppressed, so that Petitioner was unfairly con-

victed. It is therefore respectfully submitted that a

Writ of Certiorari should issue in this case granting

review of Petitioner’s unfair conviction.

Respectfully submitted,

FRANK FE, Happap, Jr.

529 Kentucky Home Life Building

Lonisville, Kentucky 40202

Counsel for Petitioner

APPENDIX

25

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1540

Unrrep States oy America - - Plaintiff-Appelilee

v,

Josep Wititam LanpMesser - ~- Defendant-Appellant

tell nt a

Appeal from the United States District Court

for the Western District of Kentucky

=

ORDER—Decided and Filed April 18, 1977

Before CetesrezzE, McCree and Enos, Circuit Judges.

Enoet, Circuit Judge. After waiving jury trial, appel-

lant Landmesser was found guilty in the district court of

the use of a telephone in interstate commerce for the trans-

mission of wagering information in violation of 18 U.S.C.

§1084(a). The facts at the trial were largely stipulated,

and the sole issue on Landmesser’s appeal is whether the

district court properly denied his motion to suppress inter-

cepted wire communications.

Landmesser claims that the wiretap evidence should

have been suppressed because the application for the arder

authorizing electronic surveillance did not contain a full

and complete statement of the adequacy of other investiga-

26

tory procedures, as required by 18 U.S.C. §2518(1) (ce);

because the application was not made upon oath or affirma-

tion as required by 18 U.S.C. §2518(1); and because appel-

lant did not receive inventory notice of the wiretap within

the requisite time period as requi

equired by 18 U.S.C.

(8)(d). We affirm. y C. §2518

I. ADEQUACY OF OTHER INVESTIGATORY

PROCEDURES

Section 2 , WATS

” penne 518(1)(¢) requires the application for an order

= a full and complete statement as to whether or not

other investigative procedures have been tried and

failed, or why they reasonably appear to be unlikely to

succeed if tried, or to be too dangerous.

Appellant vigorously asserts that th

e government’ -

pliance with this demand is to be measured by the Sisnines

of paragraph 21 of the affidavit of F.B.I. Special Agent

John R. M : ; '

ri orello, which contains the following represen-

21. Interception of communications requested

herein are necessary in order to identify the various

co-conspirators and to learn the full scale illegal

gambling business. Normal investigative techniques

such as surveillances, reviews of telephone records and

interviews have been tried without success and reason-

ably appear to be unlikely to succeed if further tried

Surveillances and interviews of potential witnesses

have failed to provide evidence necessary to sustain

convictions of Paul Robert Rhodes, Kenneth Raymond

Votteler and others for violations of Title 18 Sections

371 and 1955, United States Code. The execution of

search warrants on the persons and premises listed in

the foregoing paragraphs would be unlikely to provide

27

the evidence necessary to sustain successful prosecu-

tion under these statutes. My previous investigations

have revealed that bookmakers normally maintain

sketchy, if any, records and frequently code the infor-

mation contained in their records and if they have the

opportunity, they will destroy the records. Even if

seized, the records would be unlikely to provide the

specific evidence necessary to show the extent of the

illegal gambling business and the full degree of par-

ticipation in the business by Paul Robert Rhodes,

Kenneth Raymond Votteler and others. Witnesses

interviewed concerning the illegal gambling activities

A» being conducted by Paul Robert Rhodes, Kenneth Ray-

mond Votteler and others have failed to provide specific

evidence of the violation because the witnesses are

hesitant to discuss their knowledge of the gambling

operation for fear of reprisal against them by Rhodes,

Votteler and others. Informants CS-1, CS-2 and CS-3

have refused to testify for fear of physical an. finan-

cial reprisals against them by Rhodes, Votteler and

others.

For the reasons set forth above, the only reasonable

method of developing the necessary evidence of viola-

tions committed by the above named individuals and

others, whose identities are unknown, is to intercept

wire communications of Paul Robert Rhodes, Kenneth

Raymond Votteler and others to and from the tele-

phones described above.

The foregoing paragraph, appellant urges, is wholly

conclusory and consists only of boiler-plate generalizations.

He places heavy reliance upon United States v. Kalustian,

529 F. 2d 585 (9th Cir. 1975). He complains that the affi-

davits in each case are of comparable vagueness and pro-

perly subject to the observation of the court in Kalustian

that:

28

The affidavit does not enlighten us as to why this

gambling case presented any investigative problems

whieh were distinguishable in nature or degree from

any other gambling case. In effect the Government’s

position is that all gambling conspiracies are tough to

erack, so the government need show only the proba-

bility that illegal gambling is afoot to justify electronic

surveillance. Title III does not support that view,

United States v. Kalustian, supra, at 589.

The language of §2518(1)(c) is “simply designed to

assure that wiretapping is not resorted to in situations

where traditional investigative techniques would suffice to

expose the crime.” United States v. Kahn, 415 U. 8. 143

153, n. 12 (1974). “These procedures were not to be 1

tinely employed as the initial step in criminal investigation.”

United States v. Giordano, 416 U. 8. 505, 515 (1974). At the

same time the purpose “is not to foreclose electronic sur-

veillance until every other imaginable method of investiga-

tion has been unsuccessfully attempted, but simply to in-

form the issuing judge of the difficulties involved in the use

of conventional techniques.” United States v. Pacheco, 489

F’. 2d 554, 565 (5th Cir. 1974), cert. denied, 421 U. 8. 909.

Nor need a wiretap be used only as a last resort. United

States v. Kerrigan, 514 F. 2d 35, 38 (9th Cir. 1975), cert.

denied, 423 U. 8. 924. Rather the Congress intended that

the showing envisioned by §2518(1) (ce) be tested “in a prac-

tical and common sense fashion.” §. Rep. No. 1097, 1968

U.S. Cong. Code & Ad. News, p. 2190. :

Two circuits have held that “considerable discretion”

rests with the issuing judge in deciding whether other in-

vestigative methods might be successfully employed. United

States v. Smith, 519 F. 2d 516, 518 (9th Cir. 1975) ; United

States v. Daley, 535 F. 2d 434, 438 (8th Cir. 1976). The

Third Circuit, in United States v. Armocida, 515 F. 2a 29

38, (3rd Cir. 1975), observed without further Gesusten

29

that the only requirement is that there be a “factual predi-

cate” in the affidavit. The Seventh Circuit in United States

v. Anderson, 542 F. 2d 428, 431 (7th Cir. 1976), has held

that the “government’s burden of establishing compliance

with [subsection 2518(1)(c)] is not great.” Accord, Armo-

cida, supra. In United States v. Woods, 544 F. 2d 242, 297

(6th Cir. 1976), we set out without discussion the pertinent

portion of an affidavit and held its language sufficient.

In United States v. Steinberg, 525 F. 2d 1126 (2d Cir.

1975), the court was faced with language in an affidavit

which would appear to be even more conclusory than that

in Kalustian. While acknowledging that more information

should have been included, the Second Circuit nevertheless

recognized the difficulty in proving a negative, and ob-

served “that wiretapping is particularly appropriate when

the telephone is routinely relied on to conduct the eririinal

enterprise under investigation. United States v. Steinberg,

supra, at 1130. To like effect, see United States v. Bobo,

477 F. 2d 974 (4th Cir. 1973), cert. denied, 421 U.S. 909.

United States v. Daley, 535 F. 2d 434 (8th Cir. 1976) ; In re

Dunn, 507 F. 2d 195 (1st Cir. 1974).

While the prior experience of investigative officers is

indeed relevant in determining whether other investigative

procedures are unlikely to succeed if tried, a purely con-

clusory affidavit unrelated to the instant case and n

showing any factual relations to the circumstances at hand

would be, in our view, an inadequate compliance with the

statute. We agree with the Eighth Circuit that “the mere

fact that the affidavit before us rested im part on state-

ments that would be equally applicable to almost any

gambling case does not render the affidavit insufficient.”

United States v. Matya, 541 F. 2d 741, 745 (1976), cert.

denied 45 U.S.L.W. 3558 (emphasis in original). What is

required in addition, however, is information about par-

ticular facts of the case at hand which would indicate that

wiretaps are not being “routinely employed as the initial

JU

step in criminal investigation.” Giordano, supra, at 515.

See also, United States v. Vento, 533 F. 2d 838, 850 n. 19

(3rd Cir. 1976).

Paragraph 21 of the Morello affidavit, taken by itself,

runs perilously close to the generalized conclusions con-

demned in Kalustian. We do not believe, however, that we

are required to read the paragraph in isolation from the

remainder of the affidavit which was before the magistrate

at the time the application was made. Paragraph 21 read

in conjunction with the preceding twenty paragraphs of

Morello’s affidavit and the sworn application of United

States Attorney Long provided the magistrate with a de-

tailed outline of the activities which led to the application

and thus furnished an ample factual background to support

the more conclusory allegations in paragraph 21. We do

not see why, in approaching the statutory requirement in a

practical and common sense fashion, the magistrate should

base his decision in this regard upon less than the entire

application. So viewed, it is fully adequate, for the other

allegations gave him the ample opportunity to understand

just what witnesses were involved, which ones were confi-

dential informers, what they knew and what they did not

know, and what their relationship to the case and to the

defendants was. From the very specific allegations, it was

well within the province of the magistrate to conclude that

the statutory requirement had been met.

Il. REQUIREMENT OF OATH OR, AFFIRMATION

Section 2518(1) provides that

Each application for an order authorizing or approv-

ing the interception of a wire or oral communication

shall be made in writing upon oath or affirmation to a

judge of competent jurisdiction .. .

The application for the wiretap here is signed and sworn to

by a United States Attorney. Accompanying the applica-

31

tion and specifically incorporated by reference therein is

the affidavit of Special Agent Morello. Morello’s affidavit

specifically refers to and incorporates an “affidavit” by

Special Agent Harold S. Harrison, J r. for the apparent

purpose of complying with the provisions of Section 2518

(1)(e) requiring a full statement about previous applica-

tions for the intercept of communications of the same

person. Harrison’s statement, however, while attached to

the Morello and Long affidavits, is itself unsigned and

unsworn. It is for this reason that appellant claims that

the application itself is not upon oath or affirmation as

required by the statute. We find this claim to be wholly

without merit. The application itself was properly signed

and sworn to by a properly authorized United States At-

torney before a United States District Judge. Because

that application specifically incorporates both the Morello

and Harrison statements, it is in our view immaterial

whether the latter were also made upon oath or affirmation.

We see no difference between this method and the incor-

poration of the same facts as hearsay in the application

itself. Harrison’s status as a Special Agent for the F.B.I.

confers sufficient indicia of reliability to warrant the in-

ference that the hearsay evidence was credible.

Ill. SERVICE OF INVENTORY NOTICE

Finally, appellant claims that suppression of the wire-

tap evidence is required because of a purported violation

of 62518(8)(d) which requires the service of an inventory

notice within ninety days after termination of the period of

the wiretap authorization order. Landmesser’s name was

included in the inventory furnished by the government to

the court following completion of the wiretap. The district

court ordered service of notice on March 12, 1975 to a

number of people including Landmesser. This order is

admittedly within ninety days of the termination of the

intercept. However, an error in Landmesser’s address re-

32

sulted in that notice not actually being received by him.

On its own motion, an ex parte order was later entered by

the district court and effectively served upon Landmesser

approximately 75 days prior to the original day scheduled

for trial. Because the latter order was issued more than

90 days after the termination of the wiretap, Landmesser

claims that there was a fatal non-compliance with the

statute.

Heavy reliance is placed by Landmesser upon the de-

cision of this cireuit in United States v. Donovan, 513 F. 2d

337, (6th Cir. 1975). There defendants Merlo and Lauer,

although not named in the wiretap application but dis-

covered and identified by the government during the course

of interceptions, were omitted from the proposed order

submitted to the district court. A majority of the court

found that the failure to notify Merlo and Lauer was fatal

to the admissibility of the evidence gained by the wiretaps.

The Supreme Court reversed. United States v. Donovan,

45 U.S.L.W. 4115 (U.S. Jan. 18, 1977). While it recognized

that a violation of the statute did occur in the government’s

failure to provide the district judge with a complete list of

identifiable persons who had been subject to the wiretap

and while the statutory requirement of notice was un-

doubtedly important, the Supreme Court found nothing in

the legislative history suggesting that Congress intended

the requirement to play “a central, or even functional, role

in guarding against unwarranted use of wiretapping or

electronic surveillance.” Donovan, supra, at 4122, quoting

United States v. Chavez, 416 U.S. at 578. Suppression of

the evideice was therefore unwarranted.

There is nothing in the record here to suggest any bad

faith by the government in the abortive attempt to serve

notice on Landmesser at the improper address nor is there

any showing of any actual prejudice. See, Donovan, supra,

at 4121 n. 23, 4122 n. 26. Under such circumstances we

need not determine whether a good faith mailing of the

}

35

notice to an incorrect address is even a violation of the

statute. Even if we were to hold that the government’s

failure to serve Landmesser the inventory notice ordered

by the district court was a violation of §2518(8)(d), this

violation would not justify suppression of the intercepted

communications any more than the violations considered in

Donovan justified suppression of the evidence challenged

in that case.

Affirmed.

34

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1540

Unirep States or AMERICA - - Plaintiff -A ppellee

v.

Joseph Wiiuiam LanpMesser - - Defendant-Appellant

ORDER—Filed June 3, 1977

Before Cetesrezze, McCreer* and Encet, Circuit Judges.

Appellant having filed a petition for rehearing with this

court, and this court having considered said petition and

being duly advised in the premises,

Ir Is Onverep that the petition for rehearing be and it is

hereby denied.

Entered by Order of the Court.

(s) John P. Hehman, Clerk

*Honorable Wade H. McCree, Jr. resi :

not participate in this order. r. resigned on March 28, 1977 and did

35

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 76-1540

Unirep States or AMERICA . - Plaintiff-A ppellee

v.

JosepH Wiutuiam LanpmesserR - - Defendant-Appellant

On Appeal from the United States District Court

for the Western District of Kentucky

ORDER—STAY OF MANDATE PENDING CERTIORARI

—Filed June 15, 1977

Tus Marrer coming on to be heard upon Defendant-

Appellant’s Motion, pursuant to Federal Rules of Appellate

Procedure 41(b) for a stay of the mandate herein, and the

Court being advised,

Ir Is OrnpDERED:

That no mandate of this Court issue herein for a period

of thirty (30) days from this date, and that if within the

period of 30 days there is filed with the Clerk of this Court

a certificate of the Clerk of the Supreme Court of the

United States that a Petition for Writ of Certiorari, record

and brief have been filed, with proof of service thereof

under Section 3 of Rule 33 of the Supreme Court, the stay

hereby granted shall continue until the final disposition of

the case by the Supreme Court.

Entered by Order of the Court.

(s) John P. Hehman, Clerk

37

APPENDIX D

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39

APPENDIX E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

No.

IN THE MATTER OF THE APPLICATION OF THE

UNITED STATES FOR AN ORDER AUTHORIZ-

ING THE INTERCEPTION OF WIRE COMMUNI-

CATIONS

APPLICATION—Filed December 13, 1974

George J. Long, Jr., a United States Attorney being

duly sworn, states:

1. Affiant is 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

. affiant is an attorney authorized by law to prosecute

or participate in the prosecution of offenses enumerated in

Section 2516 of Title 18, United States Code.

2. Affiant has been authorized to make this application

for an order authorizing the interception of wire communi-

cations by the Attorney General of the United States, the

Honorable William B. Saxbe, pursuant to the power con-

ferred on him by Section 2516 of Title 18, United States

Code. Attached to this application as Exhibit A are the

letter of notification of approval from the United States

Department of Justice Criminal Division, and a copy of the

Attorney General’s memorandum of authorization.

40.

3. This application seeks authorization to intercept

wire communications of Joseph Anthony Mark Albers,

Fred Joseph Wehby, Charles Burkhardt, Paul Robert

Rhodes, Carl (Last Name Unknown), Foch Louis Karem,

Jr., Kenneth Raymond Votteler, Jimmy (Last Name Un-

known), and others as yet unknown, concerning offenses

enumerated in Sections 1955 and 371 of Title 18, United

States Code, that is . . . offenses involving the conducting,

financing, managing, supervising, directing and owning of

all or part of a gambling business in violation of Kentucky

Revised Statutes, Chapter 436, Sections 436.200, 436.400,

436.450 and 436.490, and thereby in violation of Section

1955 of Title 18, United States Code, and the conspiracy to

commit such offenses in violation of Section 371 of Title 18,

United States Code, which violations are being committed

by Joseph Anthony Mark Albers, Fred Joseph Wehby,

Charles Burkhardt, Paul Robert Rhodes, Carl (Last Name

Unknown), Foch Louis Karem, Jr., Kenneth Raymond

Votteler, Jimmy (Last Name Unknown), and others as yet

unknown.

4. Affiant has discussed all circumstances of the above

offenses with Special Agent John R. Morello of the Louis-

ville, Kentucky, Office of the Federal Bureau of Investiga-

tion, who has directed and conducted the investigation

herein, and affiant has examined the affidavit of Special

Agent Morello (attached to this application as Exhibit B

and incorporated by reference herein) which alleges the

facts therein in order to show that:

(a) there is probable cause to believe Joseph

Anthony Mark Albers, Fred Joseph Wehby, Charles

Burkhardt, Paul Robert Rhodes, Carl (Last Name Un-

known), Foch Louis Karem, Jr., Kenneth Raymond

Votteler, Jimmy (Last Name Unknown), and others as

yet unknown, have committed and are committing

offenses involving the conducting, financing, managing,

41

supervising, directing, and owning all or part of a

gambling business in violation of Kentucky Revised

Statutes, Chapter 436, Sections 436.200, 436.440,

436.450, and 436.490, and thereby in violation of Section

1955, Title 18, United States Code, and a conspiracy to

commit such offenses in violation Section 371, of Title

18, United States Code.

(b) There is probable cause to believe that particu-

lar wire communications of Joseph Anthony Mark

Albers, Fred Joseph Wehbv, Charles Burkhardt, Paul

Robert Rhodes, Carl (Last Name Unknown), Foch

Louis Karem, Jr., Kenneth Raymond Votteler, Jimmy

(Last Name Unknown), and others as yet unknown,

concerning these offenses will be obtained through the

interception, authorization for which is herewith ap-

plied for. In particular, these wire communications

will concern the conducting of a large scale gambling

operation utilizing wagering on sports contests and

horse races, will concern the financing and operation of

the illegal gambling business, the identity of the par-

ticipants, the precise nature and scope of the illegal

activity, and the relationships of the enterprise with

other gambling activities. In addition, the communica-

tions are expected to constitute admissible evidence of

the commission of the offenses.

(c) The attached affidavit contains a full and com-

plete statement explaining why normal investigative

procedure either have beer tried and have failed or

reasonably appear unlikely to succeed if continued and

reasonably appear unlikely to succeed if tried.

(d) There is probable cause to believe that tele-

phone numbers 502-456-4731, listed in the name of

Marie Toth, and 502-459-3372, listed in the name of

Arthur Toth, located at 103 Breckinridge Square,

Louisville, Kentucky, and telephone numbers 502-228-

42

3120, listed in the name of R. L. Foley, 502-228-3131,

listed in the name of Honey Foley, and 502-228-8043,

listed in the name of J. W. Jones, located at Lot 7,

Oldham Acres, Prospect, Kentucky, have been used and

are being used by Joseph Anthony Mark Albers, Fred

Joseph Wehby, Charles Burkhardt, Paul Robert

Rhodes, Carl (Last Name Unknown), Foch Louis

Karem, Jr., Kenneth Raymond Votteler, Jimmy (Last

Name Unknown), and others as yet unknown, in con-

nection with the commission of the above-described

offenses.

5. The following is a full and complete statement of

the facts concerning all previous applications known to the

individual authorizing and making this application, made

to any judge for authorization to intercept, and for approval

of interceptions, or wire or oral communications involving

any of the same persons, facilities, or places specified in

this application, and the action taken by the judge on each

such application.

(a) On December 14, 1972, an order authorizing the

interception of wire communications of individuals was

signed by the Honorable John P. Fullam, United

States District Court, Eastern District of Pennsyl-

vania. As a result of this order authorizing the inter-

ception of wire communications, Paul Robert Rhodes

was intercepted in conversation with the individuals

named in the order.

(b) On October 31, 1974, United States District

Judge Mac Swinford, Eastern District of Kentucky,

Covington, Kentucky, issued on order authorizing the

interception of wire communications of individuals,

including Paul Robert Rhodes, Joseph Anthony Mark

Albert, Fred Joseph Wehby, and Charles Burkhardt.

a ee

OC

43

Wherefore, affiant believes that probable cause exists to

believe that Joseph Anthony Mark Albert, Fred Joseph

Wehby, Charles Burkhardt, Paul Robert Rhodes, Carl (Last

Name Unknown), Foch Louis Karem, Jr., Kenneth Ray-

mond Votteler, Jimmy (Last Name Unknown), and others

as yet unknown, have engaged in the commission of of-

fenses involving the conducting, financing, managing,

supervising, directing or owning of all or part of the gam-

bling business in violation of Section 1955 of Title 18,

United States Code, and a conspiracy to commit such

offenses in violation of Section 371 of Title 18, United

States Code; that Joseph Anthony Mark Albers, Fred

Joseph Wehby, Charles Burkhardt, Paul Robert Rhodes,

Carl (Last Name Unknown), Foch Louis Karem, Jr., Ken-

neth Raymond Votteler, Jimmy (Last Name Unknown),

and others as yet unknown, have used the telephone numbers

502-456-4731, listed in the name of Marie Toth, and 502-

459-3372, listed in the name of Arthur Toth, located at 103

Breckinridge Square, Louisville, Kentucky, and telephone

numbers 502-228-3120, listed in the name of R. L. Foley,

502-228-3131, listed in the name of Honey Foley, and 502-

228-8043, listed in the name of J. W. Jones, located at

Lot 7, Oldham Acres, Prospect, Kentucky, in connection

with the above-described offenses; that communications of

Joseph Anthony Mark Albers, Fred Joseph Wehby, Charles

Burkhardt, Paul Robert Rhodes, Carl (Last Name Un-

known), Foch Louis Karem, Jr., Kenneth Raymond

Votteler, Jimmy (Last Name Unknown), and others as yet

unknown, concerning these offenses will be intercepted on

the above-described telephones; and that normal investi-

gative procedures appear unlikely to succeed.

On the basis of the allegations contained in this applica-

tion and on the basis of the affidavit of Special Agent John

R. Morello (attached hereto), affiant requests this court to

issue an order pursuant to the power conferred on it by

Section 2518, of Title 18, United States Code, authorizing

44

the Federal Bureau of Investigation of the United States

Department of Justice to intercept wire communications on

the above-described telephones until communications are

intercepted which reveal the manner in which Joseph An-

thony Mark Albers, Fred Joseph Wehby, Charles Burk-

hardt, Paul Robert Rhodes, Carl (Last Name Unknown),

Foch Louis Karem, Jr., Kenneth Raymond Votteler, Jimmy

(Last Name Unknown), and others as yet unknown, par-

ticipate in the conducting, financing, managing, supervising,

directing, and owning of all or part of an illegal gambling

business, and which reveals the identities of their con-

federates, their methods of operation, and the nature of

the conspiracy involved therein, or for a period of fifteen

(15) days from the date of that order, whichever is earlier.

It is further requested that this Court issue an order

pursuant to Section 2518(4)(e) of Title 18, United States

Code, directing that South Central Bell Telephone Com-

pany, a communication common carrier as defined in Sec-

tion 2510(10) of Title 18, United States Code, shall furnish

the applicant forthwith all information, facilities and tech-

nical assistance necessary to accomplish this interception

unobstrusively and with a minimum of interference with

the services that such carrier is accorded the person whose

communications are to be intercepted, the furnishing of

such facilities and technical assistance by the South Central

Bell Telephone Company to be compensated for by the

applicant at the prevailing rates.

(s) George J. Long, Jr.

United States Attorney

Louisville, Kentucky

Subscribed and sworn to before me this 13th day of

December, 1974.

(s) Charles M. Allen

United States District Judge

Western District of Kentucky

——

ee em ce 1 nel Se Ae Sl Be

45)

APPENDIX F

AFFIDAVIT—Filed December 13, 1974

John R. Morello, Special Agent, Federal Bureau of In-

vestigation, Louisville, Kentucky, being duly sworn, states:

1. I 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 of and to make arrests for offenses enumer-

ated in Section 2516 of Title 18, United States Code.

2. This affidavit seeks authorization to intercept wire

communications concerning offenses involving violations

of Section 1955, Title 18, United States Code, and the con-

spiracy to commit the aforesaid offenses in violation of

Title 18, United States Code, Section 371, which have been

and are now being committed by Joseph Anthony Mark

Albers, Fred Joseph Wehby, Charles Burkhardt, Paul

Robert Rhodes, Carl (Last Name Unknown), Foch Louis

Karem, Jr., Kenneth Raymond Votteler, Jimmy (Last

Name Unknown), and others as yet unknown.

3. I have personally conducted the investigation of

these offenses. Because of my personal participation in this

investigation and because of reports made to me by other

Special Agents of the Federal Bureau of Investigation

(FBI), I am familiar with all the circumstances of the

offense. Based on this familiarity, I allege the facts con-

tained in the paragraphs below to show that:

(a) There is probable cause for belief that Joseph

Anthony Mark Albers, also known as “Legs” and “Hill-

billy”; Fred Joseph Wehby, also known as “Fre. .”;

Charles Burkhardt, also known as “Charlie”; Paul Ronert

Rhodes; Carl (Last Name Unknown); Foch Louis Karem,

Jr.; Kenneth Raymond Votteler, also known as “Kenny”;

Jimmy (Last Name Unknown), and others as yet unknown,

46

have been and are now committing and will continue to

commit offenses against the United States that is to say,

conducting, financing, managing, supervising, directing, or

owning all or part of an illegal gambling business, which

has been or remains in substantially continuous operation

for a period in excess of thirty (30) days or has a gross

revenue of $2,000 in any single day in violation of Kentucky

Revised Statutes, Chapter 436, Sections 436.200, 436.440,

436.450 and 436.490, (prohibiting the placing and the ac-

cepting of bets on sports contests, keeping a room for gam-

bling, acting as an agent or an employee of another in

keeping premises where bets are placed and betting or

transmitting bets on horse races other than authorized Ken-

tucky races) and therefore, in violation of Title 18, United

States Code, Section 1955, and/or conspiring to commit the

above offenses in violation of Title 18, United States Code,

Section 371.

(b) There is probable cause for belief that wire com-

munications concerning these offenses will be obtained

through wire interceptions, authorization for which is ap-

plied for herein.

(c) Continuation of normal investigative procedures

reasonably appears unlikely to succeed.

(d) There is probable cause to believe that the follow-

ing telephone numbers are being used to carry out the

offenses detailed above, all of which appear more fully

hereinafter:

(1) Telephone number 502-456-4731 which is listed to

be in service at 103 Breckinridge Square, Louisville, Ken-

tucky, in the name of Marie Toth.

(2) Telephone number 502-459-3372 which is listed to

be in service at the address 103 Breckinridge Square,

Louisville, Kentucky, in the name of Arthur Toth.

(8) Telephone number 502-228-3120 which is listed to

R. L. Foley, Lot 7, Oldham Acres, Pospect, Kentucky.

~ a mie At ee

47

(4) Telephone number 502-228-3131 which is listed to

be in service at Lot 7, Oldham Acres, Prospect, Kentucky

in the name of Honey Foley. -

(5) Telephone number 502-228-8043, which is listed to

be in service at the address Lot 7, Olhdam Acres, Prospect

Kentucky, in the name of J. W. Jones. )

(e) Section 801 of Title 8 of the Organized Crime Con-

trol Act of 1970, Publie Law 91-452, 91st Congress, October

15, 1970, contains special findings that illegal gambling

involves the wide-spread use of and has an effect upon

interstate commerce and the facilities thereof.

4. From my five years experience in the investigation

of gambling offenses and from consultations with other

Special Agents of the Louisville, Kentucky office of the

Federal Bureau of Investigation, I know that a bookmaker

hopes to achieve the ideal situation of having equal

amounts of money wagered on each participating team in

a sports event. In this way, the bookmaker cannot be the

loser no matter what the outcome of the contest is for he

keeps a small premium on each bet placed with him. The

bookmaker then operates on a profit margin. He does not

gamble on the outcome of the event.

(a) I further know that in order for a bookmaker to

balance his books, it is almost always necessary for him

to have another bookmaker to replace the bets which un-

balances his books, so if those bets win, he will be covered

by his bookmaker, i.e., insurer. This second bookmaker

is known as a “lay-off bookmaker” and the process is

known as “laying-off.” This bookmaker’s bookmaker must

also balance his books, thus the process may be repeated

many times over and involve people in various areas of

the country.

(b) A bookmaker must also receive and furnish line

information and quick horse race results. The line is the

point spread or odds in an athletic contest or horse race.

49

The quick race results are necessary to stimulate betting

activity and to enable him to operate his gambling opera-

tion with the greatest chance of profit.

(c) Line information usually initiates the first call of

the day with each person. The bookmaker will receive a

line from a handicapper who specializes in determining

what the odds will be in an athletic contest or horse race.

The bookmaker will then furnish the line to his customers

who will study it, compare it with other lines and then

make wagers. The quick horse race results are received

throughout the day within a short period of time after a

particular horse race is run. To do this, constant access to

a telephone is a necessity.

(d) During previous investigation of illegal gam-

bling activities, it has been determined that bookmakers

frequently obtained telephone service at their handbooks in

fictitious names to avoid detection by law enforcement

agencies.

5. No previous applications are known to have been

made to Judges of competent jurisdiction for authoriza-

tion to intercept or for approval of interception of wire or

oral communications involving any of the same persons,

facilities, or places specified herein, except as noted here-

inafter in Paragraph 19 and Paragraph 5 of affidavit of

Special Agent Harold S. Harrison, Jr.

FACTS AND CIRCUMSTANCES

6. I am personally acquainted with a confidential

informant hereinafter referred to as Confidential Source

One (CS-1), who has furnished reliable information con-

cerning gambling activities in the Louisville, Kentucky,

area for the past six (6) months. Information furnished

by CS-1 has been corroborated by separate, independent

investigations conducted by Special Agents of the Federal

Bureau of Investigation and CS-1 has never been known to

provide false or misleading information.

8) eet Lae

49

CS-1 has gained information concerning illegal gambling

activities through personal contacts with bookmakers in

the Louisville, Kentucky, area. Information furnished by

CS-1 has resulted in at least three (3) arrests on State

gambling charges.

On June 28, 1974, CS-1 advised me that CS-1 had been

placing wagers with Paul Rhodes and an individual sub-

sequently identified as Nicholas Iacona on a substantially

continuous basis for the past six (6) months at telephone

numbers 502-636-3706 and 502-636-3707.

On August 28, 1974, CS-1 advised Special Agents

Eugene N. Thomeczek and John R. Morello that (CS-1

determined from persons that CS-1 knows places wagers

with Rhodes, that Rhodes and Iacona were utilizing Louis-

ville, Kentucky. telephone number 502-635-7461 to operate

a gambling business.

7. On September 6, 1974, Special Agent Edwin H.

Kilers, Federal Bureau of Investigation, Louisville, Ken-

tucky, advised me that he is acquainted with a confidential

source hereinafter referred to as Confidential Source Two

(CS-2), who has furnished him on at least one hundred

(100) occasions in the past ten (10) years, reliable in-

formation concerning gambling activities. Information

furnished by this informant has been correhorated through

separate investigations by Special Agent Eilers and other

Agents of the Federal Bureau of Investigation and CS-2

has never been known to furnish false or misleading in-

formation. Information furnished by CS-2 has resulted in

at least fourteen (14) gambling arrests.

CS-2 is and has been an inveterate gambler through-

out entire life and has gained information concerning

illegal gambling activities through personal contacts with

bookmakers in the Louisville, Kentucky, area.

On September 6, 1974, Special Agent Edwin H. Eilers,

supra, advised me that CS-2 had advised him on the same

date that CS-2 learned from a Louisville, Kentucky, book-

50

maker that Paul Rhodes and an unknown individual are

operating a handbook on South Preston Street, Louisville,

Kentucky, utilizing telephone number 502-635-7461. The

bookmaker further related to CS-2 that Rhodes was han-

dling lay-off action amounting to one thousand dollars

($1,000) to five thousand dollars ($5,000) on a single sports

wager and Rhodes was handling in excess of ten thousand

dollars ($10,000) a day in illegal wagers.

8. On September 10, 1974, September 11, 1974, Septem-

ber 17, 1974, September 18, 1974, September 24, 1974, and

September 26, 1974, CS-1 advised me that CS-1 continued

to contact Paul Rhodes and Nick Iacona at Louisville,

Kentucky, telephone number 502-635-7461 in order to ob-

tain line information on college and professional football

games and professional baseball games and thereafter used

this information to place wagers on baseball and football

games with Rhodes and Iacona.

On September 30, 1974, CS-1 advised me that CS1

learned from Paul Rhodes that Nick Iacona had left the

Louisville, Kentucky, area.

CS-1 advised me on the same date that on September

28, 1974, that CS-1 had contacted Paul Rhodes at telephone

number 502-635-7461, and placed a wager on the Pittsburgh-

University of Southern California football game. The bet

was Pittsburgh +8'% points.

On October 16, 1974, CS-1 advised me that Paul Rhodes

had moved his handbook operation to telephone number

502-459-3372. OS-1 stated that on October 15, 1974, CS-1

telephoned Rhodes at telephone number 502-459-3372 and

placed wagers on horse races and World Series baseball

game with Rhodes. CS-1 further advised me on October

16, 1974, that on October 16, 1974, CS-1 contacted Rhodes

at telephone number 502-459-3372, and placed wagers on

two professional football games and the World Series base-

ball game after receiving line information from Rhodes

regarding the above mentioned sports contests.

:

'

i

D1

On October 18, 1974, CS-1 advised me that Paul Rhodes

continued to operate a handbook using telephone numbers

902-459-3372 and 502-456-4731. (CS-1 stated that Rhodes

accepted a wager from CS-1 on a World Series baseball

game on October 17, 1974, over telephone 502-459-3372.

On October 29, 1974, CS-1 advised me that during the

period of October 21-26, 1974, an unknown male was accept-

ing wagers over telephone numbers 502-459-3372 and 502-

456-4731. CS-1 stated that on October 28, 1974, CS-1 con-

tacted Rhodes at telephone number 502-459-3372, and

placed a wager on a professional football game played on

the evening of October 28, 1974.

On November 15, 1974, CS-1 advised Special Agent

Kugene N. Thomeczek, supra, and myself that Paul Rhodes

continues to operate a handbook over telephone numbers

502-459-3372 and 502-456-4731 and Rhodes is assisted in

this handbook by an individual known to CS-1 as Carl

(Last Name Unknown). CS-1 advised that CS-1 had con-

tacted Rhodes at telephone number 502-456-4731 on Novem-

ber 11, 1974, and placed a wager on the St. Louis Cardinals,

who were playing the Minnesota Vikings in a professional

football game on November 11, 1974. On November 13,

1974, CS-1 contacted Rhodes at telephone number 502-

459-3372 and placed a wager on the Kentucky Colonels-New

York Nets professional basketball game. On November 14,

1974, CS-1 contacted Carl (Last Name Unknown) at tele-

phone number 502-459-3372 and placed a wager on the

Florida Blazers-Southern California Sun professional foot-

ball game with Carl (Last Name Unknown). During the

time CS-1 was receiving line information from Carl (Last

Name Unknown) and placing the wager with Carl (Last

Name Unknown), CS-1 overheard Paul Rhodes talking in

the background.

On November 18, 1974, CS-1 advised me that on Novem-

ber 17, 1974, CS-1 had contacted Carl (Last Name Un-

known) at telephone number 502-456-4731 and placed

oz

wagers on at least three (3) professional football games to

be played on November 17, 1974. On November 18, 1974,

CS-1 contacted Carl (Last Name Unknown) over telephone

number 502-459-3372 and placed a wager on the Denver

Broncos-Kansas City Chiefs professional football game to

be played on November 18, 1974. After placing the wager

with Carl (Last Name Unknown), CS-1 advised me that

CS-1 taiked to Paul Rhodes concerning an account balance.

On December 5, 1974, CS-1 advised me that he con-

tacted Carl (Last Name Unknown) at telephone number

502-459-3372 and requested line information concerning a

professional football game. Carl replied that the line

would not be available until later that evening. CS-1 asked

Carl if CS-1 could speak to Paul Rhodes and Car! replied

that Rhodes was not in, but would return to his, Rhodes’,

apartment on December 6, 1974.

9. On November 19, 1974, I was advised by Special

Agent Edwin H. Eilers, supra, that on November 18, 1974,

(S-2 advised him that an individual CS-2 knows as a

Louisville bookmaker told CS-2 that he was told by Paul

Rhodes that he, Rhodes, continues to handle lay-off wagers

on sports contests at telephone numbers 502-459-3372 and

502-456-4731.

10. On November 19, 1974, Special Agent Edwin H.

Kilers, supra, advised me that he is acquainted with a con-

fidential informant hereinafter referred to as Confidential

Source Three (CS-3), who has furnished him on at least

thirty (30) oceasions in the past eight (8) years reliable

information concerning gambling. Information furnished

by this informant has been corroborated through separate

investigations by Special Agent Filers and other Agents

of the Federal Bureau of Investigation and CS-3 has never

been known to furnish false or misleading information.

Information furnished by CS-3 has resulted in at least

twenty two (22) gambling arrests.

Pre

Oo

On November 14, 1974, CS-3 advised Special Agent

Kilers that CS-3 learned through co>tect with a Louisville

bookmaker that the bookmaker lays off sports and horse

race wagers through Paul Rhodes.

11. On July 26, 1974, I caused a check of the Law

Information Network of Kentucky (LINK) which revealed

that 1974 Kentucky license L87-917 is listed to Paul Rhodes,

2101 Sherwood Avenue, Louisville, Kentucky 40205, for

use on a 1968 Volkswagen, two door, Vehicle Identification

Number (VIN) 118534206.

On November 19, 1974, Bob Rauchfuss, Jefferson County

Motor Vehicle License Bureau, advised me that 1974 Ken-

tucky license M54-461 is listed to Paul Rhodes for use on

a 1971 Pontiac Catalina, four door sedan, VIN 252691P-

580171, at 2101 Sherwood Avenue, Louisville, Kentucky

40205.

During my conduct of the investigation concerning

Paul Rhodes and Nicholas Iacona, myself and other Special

Agents of the Federal Bureau of Investigation have con-

ducted spot checks in the vicinity of 2072 South Preston

Street, Louisville, Kentucky, and have observed the afore-

mentioned automobiles on the following dates and times

indicated:

Date Time Vehicle

July 26, 1974 1:30 p.m. 1968 Volkswagen

Bearing 1974

Kentucky License

L87-917

July 29, 1974 1:19 p.m. 1968 Volkswagen

and Bearing 1974

3:41 p.m. Kentucky License

L87-917

August 7, 1974 4:15 p.m. 1968 Volkswagen

Bearing 1974

Kentucky License

L,87-917

Agents

Special Agents

Eugene N. Thomeezek

and John R. Morello

’

Special Agents

Larry C. Bond and

Eugene N. Thomeczek

Special Agents

John Michael Koziol

and John R. Morello

Date

August 14, 1974

August 15, 1974

August 21, 1974

August 23, 1974

August 28, 1974

August 29, 1974

September 3, 1974

September 4, 1974

12:37 p.m.

1:23 p.m.

and

2:04 p.m.

12:05 p.m.

1:44 p.m.

2:58 p.m.

4:12 p.m.

3:07 p.m.

3:29 p.m.

D4

Vehicle

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917

1968 Volkswagen

Bearing 1974

Kentucky License

L,87-917

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917

1971 Pontiae

Bearing 1974

Kentucky License

M54-461

1971 Pontiac

Bearing 1974

Kentucky License

M54-461

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917 and

1971 Pontiae

Bearing 1974

Kentucky License

54-461

Agents

Special Agents

Eugene N. Thomeczek

and John R. Morello

Special Agent

John R. Morello

Special Agents

Eugene N. Thomeezek

and John R. Morello

Special Agents

Bartley J. Gort.

John R. Moreliv and

Eugene N. Thomeczek

Special Agents

Eugene N. Thomeczek,

Larry C,. Bond and

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

RW ie ee th Meee

ate es

Date

September 11, 1974

September 18, 1974

September 19, 1974

September 22, 1974

September 25, 1974

September 25, 1974

September 27, 1974

September 30, 1974

Time

2:35 p.m.

and

2:50 p.m.

12:57 p.m.

2:27 p.m.

and

4:05 p.m.

1:05 p.m.

and

2:15 p.m.

1:07 p.m.

and

2:20 p.m.

1:25 p.m.

12:33 p.m.

2 :25 p.m.

Vehicle

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917 and

1971 Pontiac

Bearing 1974

iicentucky License

M54-461

1971 Pontiae

Bearing 1974

Kentucky License

M54-461

1971 Pontiae

Bearing 1974

Kentucky License

M54-461

1971 Pontiac

Bearing 1974

Kentucky License

M54-461

1968 Volkswagen

Bearing 1974

Kentucky License

L87-917

1971 Pontiac

Bearing 1974

Kent’ ky License

M54- 4

1971 Pontiae

Bearing 1974

Kentucky License

M54-461

1971 Pontiae

Bearing 1974

Kentucky License

M54-461

Agents

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

Special Agent

John R. Morello

October 1, 1974

October 2, 1974

o6

Date Time Vehicle Agents

1:15 p.m. 1971 Pontiac Special Agents

Bearing 1974 Larry C. Bond and

Kentucky License John R. Morello

M54-461

12:30 p.m. 1971 Pontiac

Bearing 1974

Kentucky License

M54-461

Special Agent

John R. Morello

On August 13, 1974, at 11:45 a.m., Special Agent Eugene

N. Thomaczek and myself observed Nicholas lacona enter

the premises at 2072 South Preston Street, Louisville, Ken-

tucky.

On August 26, 1974, at 2:14 p.m., Special Agent Eugene

N. Thomaczek and myself observed Nicholas lacona enter

the premises at 2072 South Preston Street, Louisville, Ken-

tucky.

On September 11, 1974, at 2:50 p.m., I observed Nicholas

Iacona enter the front door at 2072 South Preston Street,

Louisville, Kentucky.

On September 25, 1974, at 1:07 p.m., I observed Nicholas

Iacona seated in a 1968 beige Volkswagen, bearing 1974

Kentucky license L87-917, which was parked in the vicinity

of 2072 South Preston Street, Louisville, Kentucky.

On September 27, 1974, at 12:35 p.m., I observed Paul

Rhodes enter the premises at 2072 South Preston Street,

Louisville, Kentucky.

On October 15, 1974, I determined that Paul Rhodes

resides at Apartment 103 Breckinridge Square, Louisville,

Kentucky, and on November 24, 1974, CS-1 advised me

that Arthur Toth formerly resided at 103 Breckinridge

Square, Louisville, Kentucky, with Paul Rhodes. CS-1

further advised me that sometime in September or early

October, 1974, CS-1 was at the Breckinridge Square Apart-

ments during which time Toth told CS-1 he had recently

returned from Pennsylvania and was going to leave the

57

Louisville, Kentucky, area permanently and move to Texas.

Special Agent Edwin H. Eilers, Supra, Special Agent

Eugene N. Thomeczek, Supra, and myself have observed a

1971 Pontiae Catalina, silver gray in color, with a white

top, bearing 1974 Kentucky license M54-461, parked in the

vicinity of 103 Breckinridge Square on the following dates

at the times indicated:

Date Time Agents

October 15, 1974

3:58 p.m. Special Agents

Eugene N. Thomeczek

and John R. Morello

November 14, 1974 3:14p.m. Special Agent

and Edwin H. Eilers

5:16 p.m.

November 15, 1974 4:22 p.m. Special Agent

Edwin H. Eilers

12. On May 8, 1974, Special Agent Edwin H. Eilers,

Supra, advised me that on May 3, 1974, CS-2 advised him

that CS-2 learned from a Louisville bookmaker that Foch

Karem, Jr., told him that he, Foch Karem, Jr., has been

exchanging lay-off wagers with Kenny Votteler at tele-

phone number 502-228-3131.

13. On June 28, 1974, CS-1 advised me that for the

past six (6) months CS-1 has been placing horse race wagers

with Kenny Votteler and Kenny (last name unknown) at

telephone numbers 502-228-3120 and 502-228-3131 on a sub-

stantially daily basis.

On July 18, 1974, CS-1 advised me that CS-1 continued

to place wagers with Kenny (Last name unknown) at tele-

phone numbers 502-228-3120 and 502-228-3131 and CS-1 had

placed wagers on horse races over these numbers on July

15, 1974, July 16, 1974, and July 18, 1974.

On July 30, 1974, CS-1 advised me that on an almost

daily basis from July 18, 1974, until July 28, 1974, ('S-1 has

58

placed wagers with Kenny and another unknown male at

telephone numbers 502-228-3120 and 502-228-3131.

On August 19, 1974, CS-1 advised me that on August

17, 1974, CS-1 placed wagers with an unknown male over

telephone number 502-228-3131 and after placing the wagers

with the unknown male, CS-1 spoke with an individual

whose voice CS-1 recognized as that of Kenny Votteler.

14. On September 13, 1974, Special Agent Edwin H.

Kilers, Supra, advised me that on September 6, 1974, that

C'S-2 learned from a Louisville bookmaker, who was toid

by Foch Karem, Jr., that he, Foch Karem, Jr., and Kenny

Votteler were operating a handbook accepting wagers on

sports contests and horse races and were exchanging lay-

off wagers with Paul Rhodes.

On October 18, 1974, Special Agent Eilers advis Q

that on September 23, 1974, CS-2 advised him that CS-2 was

told by a Louisville bookmaker, who was told by Kenny

Votteler that he, Kenny Votteler, had been joined in his

handbook in Oldham County, Kentucky, by Foch Karem,

Jr. The handbook operator further advised CS-2 that he

was told by Votteler that he, Votteler, was using telephone

number 502-228-3131 to operate the handbook and con-

tinued to exchange lay-off wagers with Paul Rhodes.

15. On October 16, 1974, CS-1 advised me that CS-1

contacted Kenny Votteler at telephone number 502-228-3131

and placed wagers on several horse races with Votteler.

On October 18, 1974, CS-1 advised me that during the

afternoon of October 17, 1974, CS-1 contacted Kenny Vot-

teler at telephone number 502-228-3131 and placed a wager

on a horse race.

On October 23, 1974, CS-1 advised me that on October

22, 1974, CS-1 had contacted an individual who referred

to himself as Foch, over telephone number 502-228-3120 and

placed a wager on a horse race.

On November 15, 1974, CS-1 advised Special Agent

Eugene N. Thomeezek, Supra, and myself that on Novem-

oY

ber 11, 1974, CS-1 contacted Kenny Votteler over telephone

number 502-228-3151 and thereafter placed several wagers

on horse races.

CS-1 also advised he had contacted Foch on November

14, 1974, at telephone number 502-228-3120, and placed

wagers on three (3) horse races.

On November 18, 1974, CS-1 advised me that CS-1 had

contacted Jimmy (last name unknown) at telephone num-

ber 502-228-3131 on November 15, 1974, and had placed

wagers with Jimmy (last name unknown). On November

18, 1974, CS-1 advised that CS-1 contacted Kenny Votteler

at telephone number 502-228-3131 and had placed wagers

on at least two (2) horse races to be run November 18, 1974.

On December 4, 1974, CS-1 advised me that on December

2, 1974, CS-1 contacted Jimmy (Jast name unknown), tele-

phone number 502-228-3120, and placed a wager on a horse

race. During the time CS-1 was on the telephone, CS-1

overheard Foch Karem, Jr., talking on one of the other tele-

phones at the same location as 502-228-3120. After placing

the wager with Jimmy (last name unknown), CS-1 asked

where Kenny Votteler was and Jimmy replied that Votteler

was not there at the present time. On the same date, CS-1

advised me that Kenny Votteler’s handbook grosses approx-

imately ten thousand dollars to fifteen thousand dollars per

day in wagers as Votteler has been a bookmaker for several

years and has a large number of customers. On December

0, 1974, CS-1 advised me that CS-1 telephonically contacted

Foch Karem, Jr., at telephone 502-228-3131 and placed a

wager on a horse race.

16. On November 19, 1974, Special Agent Edwin H.

Hilers, Supra, advised me that on November 18, 1974, CS-2

advised him that an individual that CS-2 knows as a Louis-

ville, Kentucky, bookmaker told CS-2 that he was told by

Foch Karem, Jr., that he, Foch Karem, Jr., and Kenny

Votteler continue to operate a handbook in Oldham County,

Kentucky, utilizing telephone number 502-228-3131. CS-2

60

was further informed by the bookmaker that Karem, Vot-

teler and Rhodes exchange lay-off action on sports contests

and horse races.

17. On August 5, 1974, Special Agent Edwin H. Eilers,

Supra, and myself observed a white Oldsmobile with black

top, bearing 1974 Kentucky license L81-922, parked in the

driveway at Lot Seven (7), Riverside Drive, Oldham Acres,

Prospect, Kentucky. Also parked in the driveway at this

same address was a late model green Oldsmobile.

On August 27, 1974, Special Agent Peter G. Knese,

Louisville Office, Federal Bureau of Investigation, and

myself observed a green Oldsmobile, bearing 1974 Kentucky

license L31-057 parked in the driveway at Lot Seven (7),

Riverside Drive, Oldham Acres, Prospect, Kentucky. The

Oldsmobile observed appeared to be identical to the Olds-

mobile observed by myself and Special Agent Eilers at the

same location on August 5, 1974.

On August 5, 1974, I caused a check of the Law Informa-

tion Network of Kentucky (LINK) which revealed 1974

Kentucky license L81-922 is listed to Kenneth R. Votteler,

6725 Carolyn Road, Louisville, Kentucky, 40214, for use on

a 1967 Oldsmobile, four door, VIN 384397M199284.

On August 27, 1974, I caused a check of the Law Infor-

mation Network of Kentucky (LINK) which revealed that

1974 Kentucky license L31-057 is listed to Carol Crady,

1709 San Jose, Louisville, Kentucky 40216, for use on a

1970 Oldsmobile, VIN 354390N291443.

On November 20, 1974, Special Agent Eugene N. Tho-

meezek advised me that at 11:21 a.m. on that date, he had

observed a brown 1971 Ford, bearing 1974 Kentucky license

L89-347 occupied by two white males, on Rose Island Road

in Oldham County, Kentucky. <A surveillance was insti-

tuted on that vehicle at that time and at 11:25 a.m., that

vehicle was observed to park at Lot Seven (7), Oldham

Acres, Oldham County, Kentueky. At 11:27 a.m., it was

ee ee we a ee so

Mire Elite et

ee oy Oe a

61

observed that both the occupants of the car were no longer

in the car.

On Novewpber, 20, 1974, I caused a check of Law Informa-

tion Network of Kentucky (LINK) which revealed that

1974 Kentucky license L89-347 is listed to Foch L. Karem,

Sr., 667 Armory Place, Louisville, Kentucky, 40202, for use

on a 1971 Ford, four door, VIN 1U68S183559.

On December 6, 1974, Bob Rauchfuss, Jefferson County

Motor Vehicle License Bureau, advised me that 1974 Ken-

tucky license K86-743, is registered to Foch L. Karem, Jr.,

1604 South Third Street, Louisville, Kentucky, for use on

a 1973 Cadillac, Vehicle Identification Number 6L47S3Q-

443199. An inquiry through the National Crime Informa-

tion Center revealed that this vehicle was reported to the

Louisville, Kentucky, Police Department as being stolen

on May 5, 1974, by Fock Karem, Jr., 667 Armory Place,

Louisville, Kentucky. Records of the Louisville Police

Department Auto Theft Squad revealed that the 1973

Cadillac bearing 1974 Kentucky license K86-743 had not

been recovered.

Spot checks in the early morning and late evening hours

in the vicinity of Lot 7, Oldham Acres, Prospect, Kentucky,

revealed no vehicles or activity at that address. Telephone

calls to Louisville, Kentucky, telephone numbers 502-228-

3120, 502-228-3131 and 502-228-8043 during early morning

and late evening hours have not been answered.

18. (a) Pursuant to a subpoena duces tecum issued by

the United States Clerk of Court, Western District of Ken-

tucky, Louisville, Kentucky, A.J. Besendorf, State Security

Manager, South Central Bell Telephone Company, 534

Armory Place, Louisville, Kentucky, on August 23, 1974,

made available telephone numbers 502-456-4731, in the

name of Maric Toth, 103 Breckinridge Square, Louisville,

Kentucky, 40220, and telephone number 502-459-3372 in the

name of Arthur Toth, 103 Breckinridge Square Louisville,

Kentucky, 40220,

62

(b) Pursuant io the same subpoena duces tecum, Mr.

Besendorf made available telephone toll records concern-

ing Louisville, Kentucky, telephone numbers 502-636-3706,

502-363-3707, 502-635-7461 and 502-635-7462 with the period

beginning June 1, 1974, and ending July 31, 1974. A review

of the records revealed that telephone numbers 502-636-3706

and 502-636-3707 was a Rotary Telephone System which

had been changed to telephone numbers 502-635-7461 and

502-635-7462 which was also a Rotary Telephone System.

These telephones were listed to Telaad, 2072 South Preston

Street, Louisville, Kentuc! - 40217. A review of toll charges

reported against these telephones for the period beginning

June 1, 1974, and ending July 31, 1974, revealed a total of

twenty-five (25) calls to Covington, Kentucky, telephone

numbers 606-331-6135 and 606-331-6136.

(c) Pursuant to a subpoena duces tecum issued by the

United States Clerk of Court, Eastern District of Kentucky,

Lexington, Kentucky, A. J. Besendorf, State Security Man-

ager, South Central Bell Telephone Company, 534 Armory

Place, Louisville, Kentucky, on October 8, 1974, made avail-

able telephone toll records concerning Louisville, Kentucky,

telephone numbers 502-635-7461 and 502-635-7462 for the

period beginning August 1, 1974, through September 30,

1974, in the name of Telaad, 2072 South Preston Street,

Louisville, Kentucky 40217. Responsible party for the tele-

phone service was listed as Paul Rhodes. From the period

beginning August 12, 1974, through September 10, 1974,

a total of twenty-four (24) long distance calls were made

to Covington, Kentucky, telephone numbers 606-331-6135

and 606-331-6136 and charged to Louisville, Kentucky, tele-

phone numbers 502-635-7461 and 502-635-7462.

(d) See Attached Affidavit of Special Agent Harold S.

Harrison, Jr., Paragraph 25 (g).

(e) Pursuant to a subpoena duces tecum issued by the

United States Clerk of Court, Western District of Kentucky,

Louisville, Kentucky, A. J. Besendorf, State Security Man-

oes al ll

eee tg

OR MO od Oo Lethe ot bien

63

ager, South Central Bell Telephone Company, 534 Armory

Place, Louisville, Kentucky, on August 23, 1974, made avail-

able telephone records relating to Prospect, Kentucky, tele-

phone number 502-228-8043 in the name of J. W. Jones,

Oldham Acres, Lot Seven (7), Prospect, Kentucky. This

telephone service is billed to J. W. Jones, Oldham Acres,

General Delivery, Prospect, Kentucky 40059.

Pursuant to the same subpoena duces tecum, telephone

records concerning Prospect, Kentucky, telephone number

002-228-3131 were made available. Telephone number 502-

228-3131 is listed to Honey Foley, Lot Seven (7), Oldham

Acres, Prospect, Kentucky 40059. Charges for this number

are billed to R. L. Foley, 8005 Afterglow Drive, Lot 566,

Louisville, Kentucky 40214.

Pursuant to the same subpocia duces teeum, A. J. Besen-

dorf on August 23, 1974, made available telephone records

concerning telephone number 502-228-3120 which is listed

to R. L. Foley, Oldham Acres, Lot Seven (7), Prospect, Ken-

tucky 40059. Charges for this number are billed to R. L.

Foley, 8005 Afterglow Drive, Louisville, Kentucky 40214.

On March 26, 1973, Paul Robert Rhodes was located at

1607 Lucia Avenue, Louisville, Kentucky, by Special Agent

Eugene N. Thomeczek and me at which time he admitted

having two (2) telephones at that address under fictitious

names, those being G. Phillips and Paul Robert. One Arthur

Edward Toath was also located at 1607 Lucia Avenue, on

that date at which time Toath was residing with Rhodes.

Subsequent investigation indicates Toath no longer re-

sides in the Louisville, Kentucky, area.

Special Agent Eugene N. Thomeezek advised me on

November 25, 1974, that during his investigation concern-

ing Kenneth Raymond Votteler from February 10, 1972,

through December 12, 1973, he determined that Honey Lee

Foley, nee Durham, is the stepdaughter of Kenneth Ray-

mond Votteler and that Foley resided with her husband,

64

Richard L. Foley at 8005 Afterglow Drive, Louisville, Ken-

tucky. Investigation concerning J. W. Jones, including

criminal and driver’s license checks has failed to identify

any J. W. Jones residing at Lot Seven (7), Oldham Acres,

Prospect, Kentucky 40059.

(f) See attached Affidavit of Special Agent Harold 8.

Harrison, Jr., Paragraphs 25(a), 25(b), and 25(d).

19. Attached herewith and incorporated into this affi-

davit is an affidavit of Special Agent Harold S. Har-

rison, Jr,

20. On October 31, 1974, U. S. District Judge Mac

Swinford, Eastern District of Kentucky, at Covington, Ken-

tucky, issued an order authorizing the interception of com-

munications to and from Erlanger, Kentucky, telephone

numbers 606-331-6135 and 606-331-6136, and an order au-

thorizing the use of mechanical recording devices to identify

the telephone numbers contacted from the above telephones.

The interception of these communications was effected by

Special Agents of the Federal Bureau of Investigation on

October 31, 1974, continuing through November 11, 1974.

On November 18, 1974, Special Agent Eugene N. Thome-

ezek, Federal Bureau of Investigation, Louisville, Ken-

tucky, advised me that he has listened to a portion of each

recorded conversation obtained during the above court

authorized wire interception, and that this interception

indicated that Joseph Anthony Mark Albers, Fred Joseph

Wehby, and Charles Burkhardt accepted and placed illegal

wagers on football games and horse races over telephone

numbers 606-331-6135 and 606-331-6136 on each day during

the interception. Albers and Wehby were regularly in tele-

phonic contact with Glen Brockell, Clarence “Peanuts”

Liefling, Jr., and others, concerning lay-off wagers, line

information, and race results during this period.

The following conversations were monitored between

Foch Louis Karem, Jr., Kenneth Raymond Votteler, an un-

Canter ety Otlrks nnd Sha cit Sc te SK

at lp eomtbce:

65

known male known only as J immy (Last Name Unknown),

and the Albers telephone handbook:

On November 1, 1974, Foch Lonis Karem, Jr., tele-

phonically contacted Albers at telephone number 606-

331-6136, attempting to lay-off a wager on a horse run-

ning at Thistledown Race Track, which Albers had to

refuse to accept because “everybody quit dealing

‘Thistle’ up here after last year.”

At 3:30 p.m. on November 1, 1974, Albers telephon-

ically contacted Kenneth Raymond Vottler at tele-

phone number 1-502-228-3120 and layed-off a total of

$400.00 in horse race wagers. They discussed race

results during this call.

At 5:19 p.m. on that same date, Albers telephon-

ically contacted Foch Louis Karem, Jr., at telephone

number 1-502-228-3131, and exchanged horse race re-

sults with him,

At 1:51 p.m. on November 2, 1974, Albers telephon-

ically contacted Kenneth Raymond Votteler at tele-

phone number 1-502-228-3131 to check the starting time

of a football game. Albers told Votteler that the game

was already started, and he did not want “Fausty”

(Foch Louis Karem, Jr.) to be “past posted.” Votteler

said, “Well he appreciates it and so do I.”

At 11:47 a.m. on November 3, 1974, Foch Louis

Karem, Jr., telephonically contacted Charles Burk-

hardt at telephone number 606-331-6135 and obtained

the results of races run at the Chicago, Detroit, and

Jersey race tracks.

At 3:40 p.m. on November 4, 1974, Albers telephon-

ically contacted an individual at telephone number

1-502-228-3120. Due to technical difficulties, no definite

conclusion could be reached as to the identity of the

person called by Albers. During the call, Albers placed

a $440.00 football lay-off wager and agreed that he

66

owed “them” nineteen and a quarter ($1,925.00) from

wagers previously placed. When it was discovered that

Albers’ figure was “fifteen little dollars off”, he changed

the amount owed to “nineteen forty ($1,940.00).”

Albers told the person called that he would send Bill

over to pay this amount unless “he” wanted to come

“up there.”

At 1:26 p.m. on November 5, 1974, Foch Louis

Karem, Jr., telephonically contacted Albers at tele-

phone number 606-331-6135, and Albers told Karem

that he had a “package” (payoff) for him. They

agreed during this call and a call at 5:32 p.m. to meet

at the “Beverly” (Beverly Hills Night Club) to settle

up at 9:00 p.m. that night.

On the evening of November 5, 1974, Special Agents

John W. Gill, Larry C. Bond, and Eugene N. Thomeczek

observed Albers at the bar at the Beverly Hills Night Club,

Southgate, Kentucky, at precisely 9:00 p.m. Foch Louis

Karem, Jr., entered the bar and walked directly to the bar

where he engaged Albers in conversation. A few minutes

later, these two men walked from the bar area to the dining

room where they both sat down at the same table.

At 12:10 p.m. on November 7, 1974, Albers telephon-

ically contacted telephone number 1-502-228-3131 and

spoke with an individual. Due to technical difficulties,

no definite conclusion could be reached as to the iden-

tity of the person called by Albers. During the call,

Albers layed-off $260.00 n horses running at Louis-

ville on that date.

At 2:07 p.m. on the same date, Albers telephonically

contacted telephone number 1-502-228-3131 and spoke

with Jimmy (Last Name Unknown) to obtain the re-

sults of horse races already run on that date.

At an ee

ie me

a ae

67

At 3:04 p.m. on November 7, 1974, Albers tele-

phonically contacted telephone number 1-502-228-3131

and spoke with Jimmy (Last Name Unknown), from

whom he obtained race results. When Albers indicated

he wanted to lay-off more wagers on the horse named

Swish Swish, Jimmy said “Here, wait a minute, I’ll let

you talk to Foch.” Albers talked to Karem. Karem

confirmed that they had already layed money off on

Swish Swish, and that “I already got eleven dollars

($1,100.00), I don’t think I can go (lay-off) anywhere.”

Albers then layed-off a hundred dollars ($100) on

Swish Swish and Lady Rochelle, both running in the

seventh (7th) race at Churchill Downs that date.

Albers explained that when he tried to lay-off money

earlier on Swish Swish, Karem’s telephones had been

busy, so he had to lay the money off to another party.

Karem asked, “How many numbers have you got

there?” Albers replied, “I got 3131 and 3120.” Karem

furnished the other telephone number as “8043” with

the same prefix. Albers confirmed this number by stat-

ing 228-8043.

At 4:23 p.m. on that same date, Albers telephonically

contacted Jimmy (Last Name Unknown) at telephone

number 1-502-228-3131 to obtain the results of horse

races.

At 12:56 p.m. on November 9, 1974, Albers placed

outgoing calls to telephone numbers 1-502-228-3120 and

1-502-228-3131 and received busy signals. He then

telephonically contacted Jimmy (ast Name Unknown)

at telephone number 1-502-228-8043. After establish-

ing that Albers owed $260.00, Albers layed-off $300.00

to Jimmy on horse races.

At 2:13 PM, Albers again contacted Jimmy at tele-

phone number 1-502-228-3131, obtained race results and

layed-off $200.

68

At 11:35 AM, Karem telephonically contacted Albers

at telephone number 606-331-6135, and after obtaining

race results from Charles Burkhardt, Albers furnished

Karem his football line for Sunday’s games. Albers

asked if Karem was going to be in his “office” that day,

and Karem stated, “Yeah, I’ll be here until about four.”

Albers stated, “I owe you seven sixty,” and Karem

replied, “That’s right on the button.”

At 2:27 PM on November 6, 1974, Bill Deering called

Fred Joseph Wehby and inquired of Foch’s telephone

numbers and Wehby firnished them as 1-502-228-3131

and 1-502-228-3120.

On December 11, 1974, Special Agent Eugene N.

Thomeczek advised me that on that date he telephon-

ically contacted an individual who identified himself as

“Jim” over Louisville, Kentucky telephone number

228-8043. Jim’s voice is identical to that of the in-

dividual identified as Jimmy (Last Name Unknown)

monitored during the court authorized interception de-

scribed in paragraph 20 above.

On December 6, 1974, Special Agent John M. Barry,

Federal Bureau of Investigation, Covington, Kentucky,

advised me that on November 22, 1974, at 11:40 AM

and on November 28, 1974, at 1:34 PM, he had observed

the automobiles registered to and normally driven by

Albers and Wehby near Building C, 3908 Lori Drive,

Erlanger, Kentucky.

On November 23, 1974, at 12:40 PM, Special Agent

Barry observed Albers’ vehicle and a Buick LeSabre,

bearing 1974 Kentucky license A9-762 registered to

Charles Burkhardt, Highland Heights, Kentucky, at

that same address.

The following conversations were intercepted pursuant

to this court authorized wire interception to and from Paul

Robert Rhodes:

ie ie ate ADP s

pe RS tat Dati, + stead Tew

fri dOe teil .ce . 6d Sle

tele MW Chat OOS whee hat eh

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paharventiees “Six.

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nl cites shen

69

At 2:39 PM on November 1, 1974, Rhodes telephonically

contacted Albers at telephone number 606-331-6135. Albers

layed-off a total of ninety dollars ($90.00) in horse race

wagers with Rhodes, accepted eighty dollars ($80.00) in

horse race wagers from Rhodes and then accepted a two

hundred forty dollar ($240.00) college football bet from

Rhodes.

At 3:25 PM on November 2, 1974, Albers telephonically

contacted Rhodes at telephone number 1-502-456-4731 and

obtained the results of one of the races bet by Rhodes the

previous date. They agreed Albers owed Rhodes five hun-

dred forty-one dojlars ($541.00).

At 3:09 PM on November 4, 1974, Rhodes telephonically

contacted Albers at telephone number 606-331-6136 to

change the figure agreed upon, November 2, 1974, to six

hundred seventy-six dollars ($676.00) since Rhodes had

made a mistake in computing the pay-off. Albers layed-off

two hundred dollars ($200) in horse race wagers during

this call.

At 1:18 PM on November 5, 1974, Rhodes contacted

Albers at telephone number 606-331-6135 and settled their

account at exactly five hundred dollars ($500). Rhodes

told Albers he was going to the track on that date and

Albers touted him on two horses running at Churchill

Downs on that date. Because both horses were running

against lost odds, Albers commented that one had to book

the horse rather than bet it.

At 1:19 PM on November 6, 1974, Rhodes telephonically

contacted Albers at telephone number 606-331-6135 during

which call Albers layed-off a one hundred dollar ($100)

horse race wager.

At 12:36 PM Rhodes telephonically contacted Albers at

telephone number 606-331-6135. After they agreed that

~ ATiers-owed Rhodes six hundred dollars ($600.00), Albers

layed-off one hundred eighty dollars ($180.00) in horse race

wagers with Rhodes.

70

At 2:33 PM on November 7, 1974, Rhodes telephonically

contacted Albers at telephone number 606-331-6136 and

layed-off a total of one hundred forty dollars ($140.00) in

horse race wagers. He placed a twenty-dollars ($20) win

and twenty dollars ($20.00) place wager on Lady Rochelle

in the seventh race at Churchill Downs and parlayed that

horse with a horse in the sixth race at Churchill Downes,

twenty dollars ($20.00) across ($60.00). Rhodes told Albers

to “spread it around out there, I got a pretty good order

(lay-off bet) across.”

Sometime later that date at 4:31 PM, Albers telephoni-

cally contacted telephone number 1-502-459-3372 and due to

technical difficulty, no positive identification could be made

of the person called. During this eall, Albers placed one

hundred forty dollars ($140.00) in lay-off wagers then fur-

nished his football line during which time he referred to the

person called as “Paul.” Albers then accepted nine hundred

sixty dollars ($960.00) in football wagers.

The voices identified during the above interception as

Albers, Wehby, Leifling, Karem, Vottler, Brockell, Burk-

hards, Rhodes and Jimmy (Last Name Unknown), were

identified by Special Agents of the Federal Bureau of In-

vestigation, Louisville, Kentucky, based on prior interviews

of those individuals; through the context of the monitored

telephone calls*or through other investigative techniques

including surveillances.

On November 27, 1974, United States Magistrate Robert

C. Cetrulo, Covington, Kentucky, issued an order for Special

Agents of the Federal Bureau of Investigation to install

mechanical recording devices on telephone numbers 606-

331-6135 and 606-331-6136, Erlanger, Kentucky, to identify

the telephone numbers contacted from those telephones.

This mechanical recording began November 29, 1974.

On December 11, 1974, Special Agent Harold S. Harrison,

Jr., Federal Bureau of Investigation, Covington, Kentucky,

el i ke ee a ee ee er ee eee ee Ne ee rns ok ane ea i fe eee eee eee ek ee ery a oe

— on |

L.

71

advised me that he had reviewed the mechanically recorded

telephone numbers contacted from the Erlanger, Ken-

tucky, telephone numbers with the following pertinent in-

formation:

Number Duration

Date Contacted Time of call

December 3, 1974 1-502-456-4731 1:53PM 4minutes

December 5, 1974 1-502-228-3120 2:19PM Less than

one minute

December 5, 1974 1-502-228-3131 2:19PM 4minutes

December 5, 1974 1-502-456-4731 3:45PM 3 minutes

December 6, 1974 1-502-456-4731 4:58PM 4 minutes

December 6, 1974 1-502-228-3131 6:04PM 1minute

December 9, 1974 1-502-228 120 12:22PM 2 minutes

December 9, 1974 1-502-456-4731 12:25PM 2 minutes

December 9, 1974 1-502-228-3120 3:26PM _ Less than

one minute

December 9%, 1974 1-502-228-3131 3:27PM 4minutes

December 16, 1974 1-502-228-3120 2:15PM 3 minutes

December 10, 1974 1-502-456-4731 2:24PM Less than

one minute

December 10, 1974 1-502-459-3372 2:24PM 2 minutes

December 10, 1974 1-502-228-3131 4:51PM 1minute

21. Interception of communications requested herein

are necessary in order to identify the various co-con-

spirators and to learn the full seale illegal gambling busi-

ness. Normal investigative techniques such as surveillances,

reviews of telephone records and interviews have been tried

without success and reasonably appear to be unlikely to

succeed if further tried. Surveillances and interviews of

potential witnesses have failed to provide evidence neces-

sary to sustain convictions of Paul Robert Rhodes, Kenneth

Raymond Votteler and others for violations of Title 18,

oP §

i2

Sections 371 and 1955, United States Code. The execution

of search warrants on the persons and premises listed in

the foregoing paragraphs would be unlikely to provide the

evidence necessary to sustain successful prosecution under

these statutes. My previous investigations have revealed

that bookmakers normally maintain sketchy, if any, records

and frequently code the information contained in their

records and if they have the opportunity, they will destroy

the records. Even if seized, the records would be unlikely

to provide the specific evidence necessary to show the extent

of the illegal gambling business and the full degree of par-

ticipation in the business by Paul Robert Rhodes, Kenneth

Raymond Votteler and others. Witnesses interviewed con-

cerning the illegal gambling activities being conducted by

Paul Robert Rhodes, Kenneth Raymond Votteler and others

have failed to provide specific evidence of the violation

because the witnesses are hesitant to discuss their knowl-

edge of the gambling operation for fear of reprisal against

them by Rhodes, Votteler and others. Informants CS-1,

CS-2 and CS-3 have refused to testify for fear of physical

and financial reprisals against them by Rhodes, Votteler

and others,

For the reasons set forth above, the only reasonable

method of developing the necessary evidence of violations

committed by the above named individuals and others,

whose identities are unknown, is to intercept wire com-

munications of Paul Robert Rhodes, Kenneth Raymond

Votteler and others to and from the telephones described

above.

The activity to be electronically covered is believed to

be a continuous criminal conspiracy and I submit on the

basis of the facts and cireumstances detailed in Paragraphs

six (6) through twenty (20) that there is probable cause to

believe that the evidence sought will be obtained on a con-

tinuing basis succeeding the first interception of the par-

Fh te te a ee

Shabana gmtlih Maithh? sea BM tet 2 ROR NONE cao ao Ay hiintes

7

ticular communications which are the object of this request

for interception.

Wherefore, I submit that an order from this court per-

mitting the interception of wire communications that such

interception of wire communications shall not automatically

terminate upon the first interception that reveals the names

in which Joseph Anthony Mark Albers, Fred Joseph Wehby,

Charles Burkhardt, Paul Robert Rhodes, Carl (Last Name

Unknown), Foch Louis Karem, Jr., Kenneth Raymond

Votteler, Jimmy (Last Name Unknown) and others as yet

unknown, participate in the use of telephone facilities for

the transmission of bets and wagering information, but

shall continue until these interceptions reveal the identities

of the confederates of the above listed individuals and place

or places of operation and the nature of the conspiracy in?

volved therein or for a period of fifteen (15) days from the

date of the order, which ever is earlier.

(s) John R. Morello

Special Agent

Federal Bureau of Investigation

United States Department of Justice

Subscribed and sworn to before me this 13th day of

December, 1974.

(s) Charles M. Allen

Judge, United States District Court

Western District of Kentucky