# Petition — Landmesser v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2164%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 855 ## Text 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 NGS a oa 4 haga ane eue ee cadens ci cena ii 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. 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Fae Nay yu ey Srna Wid THO ke SN |—& “On 13x900 a's ee ee ee ee ee ae | = ~ | 98L0-SZ YD YISS3WONY] WWITTIM Hd3SOP $5 RETA] Ty -ATAT 10) FANOD JORIGSICG S94CIG poazIup WwW OVE Ed GNY Naw Sone: < a ay ps y IWWOR3430 SA EOUAWY JO SIINIS paytUN Siti 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.