Appendix — Alfonso v. United States

IN THE

a

Supreme Court of the U ited States

OCTOBER TERM, 1977 L_MICHAEL RODAK, JR., CLERK

No. i on 90 <

ALFREDO FERNANDEZ “CHINO” “AL” ALFONSO, STEVE

GUGGINO, FRANK FRATERRIGO VEGA, LOUIS HENRY

“DK.”, “BACARDI” FIGUEREDO, SR., SAM VAGLICA AND

SAM CASTELLANO., JR.,

Petitioners,

versus

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Supplemental Appendix

JOHN S. MATTHEWS EVERETT Q. JONES

406 N. Morgan Street 215 Madison Street

Tampa, Florida 33602 Suite 305

Counsel for Petitioners, Tampa, Florida 33602

Sam Vaglica and Sam Counsel for Petitioner,

Castellano, Jr. Louis Henry Figueredo, Sr.

THOMAS J. HANLON, III ANTHONY F. GONZALEZ &

620 Madison Street BENNIE LAZARRA, JR.

Tampa, Florida 33602 202 Governor Street

Counsel for Petitioner, Tampa, Florida 33602

Steve Guggino Counsel for Petitioner,

Alfredo Alfonso

RALPH W. RINEHART

915 N. Tampa Street

Tampa, Florida 33602

Counsel for Petitioner,

Frank Vega

wage ee

ee er

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFREDO FERNANDEZ “CHINO” “AL” ALFONSO,

STEVE GUGGINO, FRANK FRATERRIGO VEGA,

LOUIS HENRY “DR.”, “BACARDI” FIGUEREDO, SR.,

SAM VAGLICA and SAM CASTELLANO, JR., and

HENRY “MR. GARCIA”, “THE MAN” TRAFFICANTE,

Defendants-Appellants.

No. 75-3564.

United States Court of Appeals,

Fifth Circuit.

May 19, 1977.

Defendants were convicted before the United States

District Court for the Middle District of Florida, Gerald B.

Tjoflat, J., of conspiracy and operating an illegal gambling

business, and they appealed. The Court of Appeals, Jameson,

District Judge, held that: (1) affidavit for wiretap order

sufficiently established that traditional investigative techniques

had been tried and failed; (2) those defendants who were not

named in wiretap order received notice thereof in sufficient time

to prepare a defense; (3) denial of motions for severance was

not abuse of discretion; (4) the “five persons” criteria of the

substantive statute is a jurisdictional requirement unrelated to

the criminal character of conduct; (5) evidence reread to the

jury in connection with its request to replay taped

conversations to the defendant did not unfairly favor the

Government and (6) gambling operations conducted by

independent bookmaker were not independent of the larger

sports-betting operation.

Affirmed

1. Telecommunications —496

Purpose of requirement that application for a wiretap

include a statement as to whether traditional investigative

procedures have been tried and failed or that they would not

succeed if tried is not to foreclose electronic surveillance until

every other imaginable method of investigation has been

unsuccessfully attempted but simply to inform the issuing judge

of the difficulties involved in the use of conventional

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techniques; furthermore, the statute contemplates that the

showing be tested in a practical and commonsense fashion. 18

U.S.C.A. § 2518(8)(d).

2. Telecommunications —496

Application for wiretap authorization satisfied require-

ment of showing of unfruitfulness of alternative investigative

procedures in view of its recitals that despite four months’

investigation there were no witnesses who could be relied on to

testify, that informants had refused to testify, that execution of

search warrant would be unlikely to implicate the major

controllers of the operation and that due to clandestine nature

of the operation only wiretapping offered a_ reasonable

likelihood of securing evidence necessary to apprehend the top

figures. 18 U.S.C.A. § 2518(1)(c).

3. Telecommunications —496

Service of notice of entry of wiretap order-on individuals

who are not named in the application but are overheard is

discretionary with the issuing judge. 18 U.S.C.A. § 2518(8)(d).

4. Searches and Seizures —7(10)

In the wiretap context, Fourth Amendment requirements

are substantially satisfied where actual notice is provided to

unnamed but overheard individuals in time for them to

accurately prepare a defense. 18 U.S.C.A. § 2518(8)(d);

U.S.C.A.Const. Amend. 4.

5. Searches and Seizures —7(10)

Where indictment was returned February 1, 1972,

defendants were arrested on March 2 and orally informed of

wiretaps, on September 14 the defendants who were not named

in the wiretap applications were sent written inventory notices,

transcripts of all intercepted conversations were made available

by January 4, 1973, and suppression hearing was not held until

April of 1975, there was no Fourth Amendinent violation since

the unnamed defendant had received notice of the wiretaps in

sufficient time to prepare a defense. U.S.C.A.Const. Amend. 4;

18 U.S.C.A. § 2518(8)(d).

6. Telecommunications —496

Requirement that the Government inform a judge issuing a

wiretap order of the general class or classes of individuals

ae SS we OR

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whose conversations have been intercepted was satisfied where

prosecutor testified that he informed the district court of every

single person who had been identified during the course of the

investigation and there was further testimony that background

information on such individuals had been furnished to the

court; such information was sufficient to permit the court to

exercise an informed discretion in determining whether any

legitimate privacy interest justified withholding inventory

notice. 18 U.S.C.A. § 2518(8)(d).

7. Telecommunications —496

Government's request that inventory notice of wiretap

authorization be limited to those individuals named in the

wiretap order did not violate statutory requirements since the

district court was in a position to exercise its informed

discretion in deciding whether any legitimate privacy interest

justified withholding inventory notice from certain parties to

the intercepted conversations; similarly, failure to send formal

inventory notice to individuals who were not named in the

order did not constitute a statutory violation. 18 U.S.C.A. §

2518(8)(d).

8. Criminal Law —394.3

Even if Government's request for limited inventory notice

of wiretap order or failure to send formal inventory notice

violate statutory requirements, suppression of the wiretap

evidence would not be required since postintercept notice was

not intended to serve as an independent restraint on resort to

the wiretap procedure. 18 U.S.C.A. § 2518(8)(d).

9. Constitutional Law —42.2(1)

Since defendants failed to bring their own conduct within

alleged constitutional deficiencies of Florida antiwagering

statute, the defendants, charged with operating an illegal

gambling business, were precluded from attacking the statute

on grounds of vagueness and overbreadth; defendants could

not be heard to argue that some hypothetical persons might be

improperly ensnared by the statute. 18 U.S.C.A. § 1955; West's

F.S.A. § 849.14.

10. Gaming —63(2)

Although word “gambling” is not specifically defined in

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Florida antiwagering statute, the word is used in its generic

sense. 18 U.S.C.A. § 1955; West's F.S.A. § 849.14.

11. Criminal Law —622(2)

Denial of motion to sever, as made during course of

prosecution for conspiracy and operation of an illegal gambling

business, was not an abuse of discretion absent showing of

likelihood of prejudice in the joint trial. Fed.Rules Crim.Proc.

rule 14, 18 U.S.C.A.; 18 U.S.C.A. §§ 371, 1955.

12. Criminal Law —622(2)

Refusal to grant alleged supervisor of gambling operations

a severance so as to permit alieged manager to give exculpatory

testimony was not abuse of discretion, notwithstanding

contention that the latter would not testify at a joint trial where

there was no real question of the manager's guilt and he had

nothing to lose by exculpating the supervisor and, perhaps,

could be rewarded and evidence corroborating identification of

supervisor's voice on intercepted conversations cast doubt on

credibility of proffered testimony that supervisor was not the

individual to whom the manager was speaking in the

intercepted conversations. 18 U.S.C.A. § 1955.

13. Witnesses —198(2)

Voice identification testimony of retired FBI agent, who

during his government career was engaged in investigation of

gambling operations but who following retirement was

employed by defendant's attorney as a private investigator and

who was called by the Government to identify defendant's

voice on certain tape recordings, did not violate the

attorney-client privilege, absent evidence that the witness had

participated with defense counsel in investigation and

preparation of the case or had received any confidential

information from the attorney.

14. Criminal Law —444

Former government agent’s statement that he had heard

defendant's voice some ten times was sufficient foundation for

his testimony identifying defendant's voice on certain tape

recordings of intercept telephone communications; that other

witnesses were available to provide identification was

immaterial, particularly since the witness was the agent most

familiar with defendant's voice.

ee

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15. Witnesses —363(2)

Trial court did not abuse its discretion in treating former

government agent as a hostile witness and permitting his

impeachment based on his relationship with defendant's

counsel, specifically, by showing that following retirement

from government service he was employed by counsel as a

private investigator, especially in view of his reluctance to

testify and evasiveness in his testimony as to identity of

defendant's voice on certain intercepted telephone communica-

tions. Federal Rules of Evidence, rule 607, 28 U.S.C.A.

16. Criminal Law —824(8)

Witnesses —380(5)

Testimony of three FBI agents with respect to retired

agent's positive identification of defendant's voice some two

days after expiration of wiretap order was admissible for

impeachment purposes in view of his cross-examination

testimony that he was not positive of the identification;

although limiting instruction would have been proper had

request therefor been made, failure to give such an instruction

sua sponte was not reversible error.

17. Conspiracy —48.2(2)

Gaming —62

The “five persons” criteria of federal statute making it an

offense to conduct a gambling business which is illegal under

state law is a jurisdictional requirement unrelated to the

criminal character of conduct; hence, trial court did not err in

failing to instruct that the defendants must have been aware

that the conspiracy involved at least five participants. 18

U.S.C.A. §§ 371, 1955.

18. Gaming —102

Failure to instruct that Florida gambling statutes did not

apply to pari-mutuel wagering was not er™>r, in prosecution for

conducting illegal gambling business, absent evidence that

gambling operation conducted by defendants constituted

pari-mutuel wagering. 18 U.S.C.A. §§ 371, 1955; West's F.S.A.

§ 849.14.

19. Witnuses —216

Disclosure of identity of confidential informants whose

information was used in securing wiretap order was not

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required absent evidence that the informants participated in the

activities for which the defendant was charged or that evidence

described by the informants was introduced at trial, much less

evidence that the informants implicated defendant. 18 U.S.C.A.

§ 2510 et seq.

20. Criminal Law —470

In view of cryptic nature of intercepted conversations,

which were often framed in jargon peculiar to the gambling

trade, it was proper to present expert testimony as to meanings

of the conversations and roles of the defendants; admission of

such testimony, as given by individual who qualified as expert

in bookmaking and gambling, was not improper as invading

ultimate issues of fact. 18 U.S.C.A. §§ 371, 1955.

21. Indictment and Information —81(5)

Where aliases were extensively used in intercepted

conversations and there was ample testimony to identify

defendants with the various aliases, it was not error to deny

motion to strike the aliases, as against contention that use

thereof in the indictment invaded the jury's province of

identification of the voices on tape recordings of intercepted

conversations. 18 U.S.C.A. §§ 371, 1955.

22. Criminal Law —859

Trial judge has broad discretion in responding to a jury

request that certain evidence be reread.

23. Criminal Law —1174(1)

Extreme length of the rereading proceedings, as occurred

following jury’s request to replay tape conversations of two

defendants, did not indicate prejudice per se.

24. Criminal Law —859

Ordering testimony relating to matters discussed on tape

recordings to be read in connection with replaying, at jury's

request, of tape recordings of conversations between two

defendants did not unfairly favor the Government where trial

court stated it would allow the reading of a portion of the

Government's case and then move to two defense witnesses

who dealt with identification but at later side bar conference

defense counsel advised the court that he wished only a part of

the examination of one witness read.

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25. Criminal Law —711

Defense counsel was not entitled to make additional

summations to the jury after certain evidence was reread at

jury's request; trial court properly followed format for final

argument specified in the criminal rules. Fed.Rules Crim.Proc.

rule 29.1, 18 U.S.C.A.

26. Criminal Law —859

In having certain testimony reread, at jury's request, the

trial court properly relied on notes of the official court reporter

rather than on daily copy of testimony prepared by state court

reporter.

27. Criminal Law —1166.13

Although statutory requirement that a court reporter

attend each session of district court and record all proceedings

in criminal cases had in open court is mandatory, failure to

comply does not constitute prejudicial error per se. 28 U.S.C.A.

§ 753(b)(1).

28. Criminal Law —1166.13

Failure to record all proceedings in connection with

rereading of certain testimony, as requested by jury, was not

reversible error per se; showing of prejudice was required. 28

U.S.C.A. § 753(b).

29. Gaming —98(1)

Government agent's testimony that based on intercepted

conversations he calculated that daily receipts of the enterprise,

on October 2, 9, and 10, were $15,569.00, $2,225.00 and

$12,897.00 respectively, was sufficient to establish the statutory

element of “gross revenue” for purpose of conviction of

operating an illegal gambling business. 18 U.S.C.A. § 1955.

30. Gaming —7%1)

Gambling operation conducted by independent bookmak-

er, who was shown to have regularly accepted lay-off bets from

sports-betting operation, had sufficient nexus with the latter so

as to warrant the bookmaker’s conviction as one of the

participants; prosecution under the federal statute was not

precluded on ground that the bookmaker’s gambling operation

was separate from that of the sports-betting operation. 18

U.S.C.A. § 1955.

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31. Gaming —7%1)

Congress’ purpose in enacting statute making it an offense

to operate an illegal gambling business was to include all

persons who participate in the operation of such a business,

including lay-off betters, and to exclude only customers. 18

U.S.C.A. § 1955.

Appeals from the United States District Court for the

Middle District of Florida.

Before BROWN, Chief Judge, AINSWORTH, Circuit

Judge, and JAMESON", District Judge.

JAMESON, District Judge:

The seven appellants were convicted, following a jury trial,

of conspiracy (Count I) and the operation of an illegal gambling

business (Count II), in violation of 18 U.S.C. §§ 371 and

1955.’ Upon consideration of the numerous alleged errors

urged by the appellants, we find no reversible error and affirm.

Facts

On September 30, 1971, Assistant United States Attorney

Dempsey presented to Judge Joseph Lieb of the United States

District Court for the Middle District of Florida an application

for electronic surveillance of three telephones suspected to be

involved in illegal gambling operations headquartered at 801

East Jean Street in Tampa, Florida. The application was based

on information supplied by four confidential informants who

* Senior District Judge of the District of Montana, sitting by designation.

1. 18 U.S.C. § 1955 provides in pertinent part:

“(a) Whoever conducts, finances, manages, supervises, directs, or

owns all or part of an illegal gambling business shall be fined not more

than $20,000 or imprisoned not more than five years, or both.

“(b) As used in this section—

(1) ‘illegal gambling business’ means a gambling business which—

“(i) is a violation of the law of a State or political subdivision in which it

is conducted;

(ii) involves five or more persons who conduct, finance, manage,

supervise, direct, or own all or part of such business; and

(iii) has been or remains in substantially continuous operation for a

— } excess of thirty days or has a gross revenue of $2,000 in any

sin ay.

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were bettors or observers of the illegal gambling operation.

Based on the information contained in the application and

supporting affidavit, Judge Lieb authorized electronic intercep-

tion of all gambling related conversations of “Steve Guggino,

.. . Frank Vega, . . . and others as yet unknown” conducted

over the three target telephones.

During the 15 day operative period of the order, ?

communications intercepted over the three telephones revealed

the existence of a sports betting operation dealing primarily

with football and baseball wagering. The Government's case,

based on the intercepted telephone conversations and other

evidence presented at the trial, established that Trafficante

occupied a supervisory position in the gambling operation and

served as a source for ‘line’ information (odds). Below

Trafficante in the hierarchy, Guggino-and Vega managed the

gambling enterprise and operated the Jean Street clearing house

as partners. While Guggino and Vega would on occasion accept

wagers from individual bettors, they generally disseminated

line information to, and accepted bets from, a network of

“writers”, ° acted as intermediaries between Trafficante and

the writers, and coordinated “lay-off” betting.‘ Vaglica,

Castellano, and Alfonso were writers, accepting bets from

individual bettors and channeling them to Guggino and Vega.

Figueredo was an independent bookmaker who acted as a

lay-off bettor for the Trafficante operation and exchanged line

information with Guggino and Vega.

2. The wiretap authority terminated on October 14, 1971, but was

extended for fifteen days by order of the court on October 15. Evidence .

obtained under the extension of the wiretap and all subsequent wiretap

orders was not used by the Government. The evidence was suppressed

under the holding of United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820,

40 L.E.d2d 341 (1974) since the extension and later orders were not

approved by either the Attorney General or a designated assistant attorney

general.

3. A “writer” is an agent of a bookmaker who accepts bets from

individuals and funnels them to the bookmaker.

4. “Lay-off" bets are bets between bookmakers made in an effort to

reach a mutually favorable balance in each bookmaker's bets. Because a

bookmaker charges a losing bettor a commission (usually ten percent) it is

to his advantage to place an even amount of wagers on both sides of a

contest so that regardless of who wins, the bookmaker receives a ten

percent net profit. In order to achieve this equilibrium, bookmakers engage

in lay-off betting with one another.

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The Government presented its case primarily by playing

tape recordings of the intercepted conversations, identifying the

voices thereon, and then having an expert explain the

significance of the conversation in the context of gambling.

Some of the tapes, which contained conversations conducted in

foreign languages, were translated into English by an

interpreter. Transcripts were made of the translations which

were read at trial following the playing of the tapes. Also

produced as witnesses were individuals who had placed bets

with several of the appellants.

At the conclusion of the eighteen day trial, the jury

convicted all appellants on both counts. Appellants were

sentenced to prison terms of varying duration.

Issues on Appeal

The issues raised by the various appellants may be

summarized as follows:

(1) Did the Government comply with the provisions of

Title II] of the Omnibus Crime Control and Streets Act of 1968,

18 U.S.C. § 2510, et seq?

(2) Is the Florida anti-wagering statute unconstitutionally

vague?

(3) Were appellants entitled to separate trials?

(4) Was the admission of John Ambler’s identification

testimony of Trafficante’s voice proper in all respects?

(S) Did the court properly instruct the jury in its main and

supplemental charges?

(6) Were the court’s various evidentiary and procedural

rulings correct?

(7) Did the court err in having various portions of the

record reread to the jury?

(8) Was the evidence sufficient to support the convictions?

Title II] Compliance

Requirements of 18 U.S.C. § 2518(1)(c)

18 U.S.C. § 2518(1)(c) requires that an application for an

order authorizing the interception of wire or oral communica-

tions must 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. . .”

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Prior to trial, Trafficante moved to suppress evidence

seized pursuant to the intercept application and order alleging,

among other violations, that “[t]he application did not contain

a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they

were unlikely to succeed if tried”. Trafficante contends that

denial of his motion was error, citing United States v.

Kalustian, 529 F.2d 585 (9 Cir. 1976). The Ninth Circuit there

found an affidavit insufficient which recited an F.B.1. agent's

conclusion that because of difficulties in securing evidence in

previous gambling cases, interception of the telephone

communications of a suspected gambling organization was the

“only available method of investigation” likely to secure

sufficient evidence to obtain a conviction. Because alternative

investigative procedures had not been tried and because the

Government had failed to show why investigative problems in

the case were any different “in nature or degree from any other

gambling case”, the court held that the requirements of §

2518(1)(c) had not been fulfilled.

[1] In reviewing the sufficiency of the affidavit here, it

must be noted that the purpose of section 2518(1)(c) “is not to

foreclose electronic surveillance until every other imaginable

method of investigation has been unsuccessfully attempted, but

simply to inform the issuing judge of the difficulties involved in

the use of conventional techniques”. United States v. Pacheco,

489 F.2d 554, 565 (5 Cir. 1974), cert. denied, 421 U.S. 909, 95

S.Ct. 1558, 43 L.Ed.2d 774 (1975). Furthermore, the statute

contemplates that “the showing be tested in a practical and

commonsense fashion”. S.Rep. No. 1097, 90th Cong., 2d Sess.,

1968 U.S. Code Cong. & Admin.News, pp. 2112, 2190.

[2] Viewed in light of these principles, we conclude that

the affidavit filed by Special F.B.I. Agent Kinne in conjunction

with the intercept application satisfied the requirements of §

2518(1)(c). Both the application and the affidavit stated that

normal investigative techniques were unavailing. The affidavit

disclosed an active investigation of the gambling operation

spanning a period of four months, during which F.B.I. agents

had conducted physical surveillance of the Jean Street clearing

house. In spite of this investigation, there were no witnesses

“who could be relied upon to testify”, and the informants had

refused to testify. Agent Kinne, who had “investigated matters

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relating to organized crime” for over four years and was

familiar with gambling operations, further averred that

execution of a search warrant was unlikely to implicate the

“major controllers” of the gambling operation. Due to the

“clandestine” nature of the operation, only wiretapping offered

a “reasonable likelihood” of securing evidence necessary to

prove the gambling violations and to apprehend the top figures

of the organization.° Viewed in a commonsense manner, these

allegations were sufficient to establish that traditional

investigative techniques had been tried and failed, and were not

reasonably likely to succeed if tried.

The decision in Kalustian does not persuade us to reach a

contrary conclusion. Unlike the affidavit in that case, the

affidavit here established that conventional investigative

techniques had been tried and were unsuccessful. The affidavit

did not, as in Kalustian, rely on mere conclusions of the affiant

based only on the affiant’s “knowledge and experience” in

investigating other gambling cases. Rather, this affidavit recited

specific instances in the investigation of this case where normal

techniques had been unfruitful. Kalustian is distinguishable.

Moreover, subsequent to Kalustian, the Ninth Circuit has

considered the sufficiency of affidavits to support applications

for wiretap interception in a number of cases,® most recently

5. The affidavit stated, in pertinent part:

“The interception of these criminal conversations is necessary because:

“1. All of the confidential informants have refused to testify in open court

and without their testimory, it would be impossible to obtain evidence of

this illegal business.

“2. If a search warrant were executed, it could result in the seizure of

gambling records; however, it would probably not tie in the major

controllers of this gambling organfization.

“3. There are no known witnesses who could be relied upon to testify to

these violations.

“4. Due to the clandestine manner in which this betting operation is carried

out, the interception of these communications is the only available means of

investigation which has a reasonable likelihood of securing the evidence

necessary to prove the commission of these violations as well as providing

evidence implicating the men who are the top controllers of this illegal

gambling business.”

6. Including United States v. Kerrigan, 514 F.2d 35 (9 Cir. 1975) cert.

denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975) and United States

v. Feldman, 535 F.2d 1175 (9 Cir. 1976), where the Ninth Circuit upheld the

validity of affidavits similar to the one here.

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in United States v. Spagnuolo, decided March 4, 1977, 549 F.2d

705. In an exhaustive and well considered opinion citing

decisions of the Ninth and other circuits subsequent to

Kalustian, the court said in part:

“These decisions permit us to make the following

observations. To show that ‘other investigative procedures

have tried and failed’ the affidavit must reveal that normal

investigative techniques have been employed in a good

faith effort to determine the identity of those violating the

law and to assemble sufficient evidence to justify their

prosecution and that these efforts have failed to achieve

their ends. The good faith effort need not have exhausted

all possible uses of ordinary techniques. What is required is

a showing that in the particular investigation normal

investigative techniques employing a normal amount of

resources have failed to make the case within a reasonable

period of time.”

The motion to suppress was properly denied.

Requirements of § 2518(8)(d)

18 U.S.C. § 2518(8)(d) requires that:

“(d) Within a reasonable time but not later than ninety

days after the filing of an application for an order of

approval under section 2518(7)(b) which is denied or the

termination 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 interception, or the denial of the

application; and

(3) the fact that during the period wire or oral

communications were or were not intercepted.”

The wiretap here was authorized on September 30, 1971,

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for a period of 15 days and was extended for an additional 15

days on October 15. Judge Krentzman’ on December 27, 1971,

granted a 30 day extension of time for service of notice required

by § 2518(8)(d) and granted a further 15 day extension on

January 24, 1972.

During the operative period of the wiretap orders,

Assistant United States Attorney Dempsey made written

reports every five days to Judge Lieb and then to Judge

Krentzman concerning information obtained on the wiretaps.

Dempsey discussed in detail with the judges the individuals who

were overheard and identified.° On February 4, 1972,

Dempsey informed Judge Krentzman of the Persons who were

named in the indictment returned February 1, but requested the

judge to limit inventory notice to those who were named in the

wiretap order— Vega and Guggino. Due to problems within the

Department of Justice regarding its wiretap authorization

procedures, it was anticipated that arrests pursuant to the

indictment would not be made for some time, which prompted

7. Upon Judge Lieb’s death on November 1, 1971, Judge Krentzman

took over the case. Judge Krentzman supervised the bulk of the wiretap

investigation.

8. Regarding his discussions with Judge Krentzman, Dempsey testified

at his suppression

“We discussed every single person who was a subject—who had been

identified during the course of this investigation, who had been identified

as participating in the particular operation.”

. a oe s >

“He wanted to know the personality—the people involved, where they

resided, what information we had as to their activities.”

es o os . es

“I made it a point in my conversations with Judge Krentzman to bring to

the attention of Judge Krentzman each of the individuals named in the

—in Mr. Kinne’s reports.”

Dempsey also had detailed discussions with Judge Krentzman about other

aspects of the operation:

“We discussed at great length, the law. I remember that. He [Judge

Krentzman] took 2 great deal of time in reviewing my application, as well

as the prior applications and the prior orders and the affidavits of the

agents.”

“We discussed the locations. We even discussed how the monitoring

was being accomplished, where it was being accomplished, what

cooperation the General Telephone Company was providing to us, what

_anguages were being employed.”

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the request for limited notice to minimize the potential for flight

of those indicted. Judge Krentzman complied with the request,

and on February 7, 1972, notice was served on Vega and

Guggino.

Only Vega and Guggino were required by statute to receive

inventory notice, since they were named in the wiretap order.

Vega contends that he was not served with notice of the

September 30 and October 15 wiretaps, but received notice only

of a spin-off wiretap. At a suppression hearing, the deputy

United States Marshal charged with serving the notice testified

that on February 7, 1972, he served copies of four inventory

notices on Vega, one of which concerned the September 30

wiretap. A return copy of the notice of the September 30

wiretap was received in evidence, showing that it had been

served on Vega on February 7. This factual issue was

determined against Vega by the district court.

[3] The remaining appellants were not named in the

September 30 order, but their conversations were overheard.

Although service of notice on unnamed but overheard

individuals is discretionary with the issuing judge, appellants

moved to suppress the wiretap evidence, contending that they

should have been served with notice. The motion to suppress

was denied. On appeal, appellants contend that Fourth

Amendment protections require that notice be given to

unnamed but overheard persons “promptly after the decision to

obtain an Indictment has been made”, citing United States v.

Chun, 503 F.2d 533 (9 Cir. 1974). Appellants further argue that

the Government's request for limited service of notice created a

violation of Title III. Finally, it is argued that although

_ appellants received the inventory order during discovery, this

was not a unilateral notice as required by § 2518(8)(d).

We begin our review of appellants’ contentions with a

consideration of the Fourth Amendment issue. The Ninth

Circuit in United States v. Chun, supra at 537, relied on by

appellants, stated:

“(W]e point out that the unnamed but overheard are also

entitled to Fourth Amendment protection. Specifically, we

believe that when the government intends to use the

contents of an interception or evidence derived therefrom,

A-16

to obtain an indictment against an unnamed but overheard

individual, such individual must be given notice promptly

after the decision to obtain an indictment has been made.”

503 F.2d at 537.°

But the court went on to note that “liJn this context, the

determination of what constitutes ‘promptly’ should focus on

whether the individual has been afforded a _ reasonable

opportunity to prepare an adequate response to the evidence

which has been derived from the interception.” 503 F.2d at 538.

The Eighth Circuit in United States v. Wolk, 466 F.2d 1143

(1972) held that suppression of wiretap evidence was not

required on either constitutional or statutory grounds merely

because inventory notice had not been served on unnamed and

overheard individuals, where those individuals “had actual

notice of the interceptions and were not prejudiced”. The

unnamed persons, although receiving no statutory inventory

notice, were informed of the wiretap at arraignment and were

thereafter allowed complete access to the tapes and transcripts.

In reaching its conclusion, the court said:

“To us the statute is concerned with adequate notice and

not formalities. The record demonstrates that the appellees

were sufficiently aware of the wiretap so as to be able to

seek suppression of the evidence on a number of grounds

. . . The appellees had adequate notice in this case, and

they have not shown that any prejudice resulted from the

failure of the Government to formally serve them with the

inventories.” 466 F.2d at 1146.

[4, 5] We agree with these circuits that in the wiretap

context, Fourth Amendment requirements are substantially

satisfied where actual notice is provided to unnamed but

9. On remand, the district court concluded as to the Fourth Amendment

issue:

“ ... Ll conclude that a conscious decision not to notice an unnamed but

overheard individual who was known to be tapped for indictment could

not withstand constitutional serutiny. If, as heid on appeal herein, the

unnamed but overheard defendant has a Fourth Amendment right to

right to privacy of the same dimensions as that of a named defendant,

post-use notice of a wiretap is required, and a failure to give such notice

would render the cverheard communication unlawfully

within the meaning of § 2518(10)(a).” United States v. Chun, 386 F.Supp.

91, 95-96 (D.Haw.1974).

A-17

overheard individuals in time for them to adequately prepare a

defense. We conclude that appellants received such notice here.

The original indictment’ was returned on February 1, 1972,

and appellants were arrested on March 2, 1972, when they were

orally informed of the wiretaps. On September 14, 1972,

appellants were sent written inventory notices “comparable in

content to those envisioned by § 2518(8)(d)”, and no later than

January 4, 1973, transcripts of all intercepted conversations

were made available to appellants. The suppression hearing was

not held until April, 1975 allowing appellants ample time to

prepare their defense. In these circumstances, we find no Fourth

Amendment violation.

[6] Aside from the constitutional issue is the question of

Government violation of Title III statutory requirements. First,

consideration must be given to whether the district court was

afforded an opportunity to exercise an informed discretion.

This question was recently addressed by the Supreme Court in

United States v. Donovan, — U.S. —, 97 S.Ct. 658, 50 L.Ed.2d

652 (1977). The Court there noted that, “In deciding whether

legitimate privacy interests justify withholding inventory notice

from parties to intercepted conversations, a judge is likely to

require information and assistance beyond that contained in the

application papers and the recordings of intercepted conversa-

tions: made available by law enforcement authorities.” 97 S.Ct.

at 669. The Court adopted the Ninth Circuit requirement that

the Government must inform the district court of “the general

class, or classes”, of “[individuals}] whose conversations have

been intercepted”, but also stated that where “the Government

chooses to supply the issuing judge with a list of all identifiable

persons rather than a description of the classes into which those

persons fall, the list must be complete.” 97 S.Ct. at 670. We

conclude that the Government satisfied this requirement.

Assistant United States Attorney Dempsey testified that he

informed the district court of “every single person . . . who had

been identified during the course of this investigation”. There

was further testimony that background information on these

people was furnished to the court. This was sufficient for the

court to exercise an informed discretion. We do not face the

problem present in Chun and Donovan of the failure of the

Government to inform the district court of the identity of

persons whose conversations were intercepted.

10. This indictment was twice superceded. Appellants were tried on the

second superceding indictment, which was returned on April 21, 1972.

A-18

[7, 8] The Government's request for limited notice did not

violate any provision of Title III since the district court was in a

position to exercise its informed discretion. Similarly, the

failure of the Government to send formal inventory notice to

appellants did not constitute a statutory violation. Notice to

appellants, who were unnamed in the wiretap order, rested

within the sound discretion of the court, which was properly

exercised. In any case, appellants received actual notice. As the

court in Wolk, supra at 1146, said, “We do not believe that the

use of formal inventories is an end unto itself. Surely neither the

Congress nor the constitution would require such emphasis of

form over substance. . .” See also United States v. Donovan,

supra, 97 S.Ct. at 674, fn. 26. We find no statutory violations of

Title II]. Even were we to agree with appellants’ argument,

suppression of the wiretap evidence would not be required since

“postintercept notice was [not] intended to serve as an

independent restraint on resort to the wiretap procedure”.

United States v. Donovan, supra at 674.

Vaglica independently contends that he was not served

with post-termination inventory notice, as ordered by the

district court. However, the order did not relate to the

interception here, but to a wiretap order approved on

November 12, 1971. As noted supra, all evidence seized under

the November 12 order was suppressed under Giordano.

Florida Anti-Wagering Statute

{9, 10] Pursuant to 18 U.S.C. § 1955, which defines an

illegal gambling business as one which “‘is a violation of the law

of a state . . . in which it is conducted”, the indictment charged

that the appellants’ gambling was in violation of § 849.14,

Florida Statutes Annotated (1965). Vega, joined by the other

appellants, argues that this statute is so “overbroad, vague and

11. Fla.Stat.Ann., § 849.14 provides:

“Whoever stakes, bets or ewages any money or other thing of value

upon the result of any trial or contest of skill, speed or power or

endurance of man or beast, or whoever receives in amy manner

whatsoever any money or other thing of value staked. bet or wagered, or

offered for the purpose of being staked, bet or wagered, by or for any

other person upon any such result, or whoever knowingly becomes the

custodian or depositary of any money or other thing of value so staked,

bet, or wagered upon any such result, or whoever aids, or assists, or

abets in any manner in any such acts all of which are hereby forbidden,

shall be guilty of gambling, and shall be punished by imprisonment not

exceeding six months or by fine not exceeding five hundred dollars.”

A-19

indefinite” that it “fails to apprise the public of the specific act

or acts prohibited”. Appellants do not attempt to bring their

own activities within the scope of this argument, but rather

argue that some hypothetical persons might be improperly

ensnared by the statute.

In view of appellants’ failure to b.ing their own conduct

within the alleged constitutional deficiencies of the statute, they

are precluded from attacking the statute on grounds of

vagueness and overbreadth. As the Supreme Court stated in

United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4

L.Ed.2d 524 (1960): “ . . . one to whom application of a statute

is constitutional will not be heard to attack the statute on the

ground that impliedly it might also be taken as applying to

other persons or other situations in which its application might

be unconstitutional.”

Moreover, we find no merit in appellants’ contention. As

this court noted in United States v. Pacheco, 489 F.2d 554, 564

(1974) cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774

(1975), while gambling is not specifically defined in the statute,

it is clear that “gambling” is used in its generic sense. We can

perceive no possibility of including the hypothetical persons

suggested by appellants as potential violators under any

reasonable construction of the statute.

Motions for Severance

[11] It is contended in Guggino’s brief that the court erred

in denying numerous motions for severance made during the

course of the trial pursuant to Rule 14, F.R.Crim.P. Appellants

argue in general terms that they were “prejudiced by evidence

not admissible to them individually” and the “court's many

cautionary instructions were inadequate” for the jury “to

distinguish the alleged acts of one co-defendant from the other”.

We do not agree. The court was careful throughout the trial and

in its charge to the jury to make it clear that the evidence should

be considered separately as to each defendant. Appellants have

failed to show “likeljhood of prejudice” in the joint trial. The

court did not abuse its discretion in denying their motions to

sever. See United States v. Crockett, 514 F.2d 64, 70 (5 Cir.

1975).

A-20

[12] Trafficante argues that he should have been granted a

severance to permit Guggino to give exculpatory testimony at a

separate trial. Trafficante submitted, with his severance

motion, an affidavit of Guggino in which Guggino asserted that

he would testify at a separate trial of Trafficante but not at their

joint trial. He averred that he would testify that Trafficante was

not the party to whom he spoke in intercepted telephone

conversations and that he would deny that several surveilled

meetings with Trafficante were related to illegal gambling.

Both sides rely on Byrd v. Wainwright, 428 F.2d 1017 (5

Cir. 1970), which established guidelines for the granting of a

severance where possible exculpatory evidence could be

presented by a co-defendant. As this court noted in United

States v. Cochran, 499 F.2d 380, 392 (1974) cert. denied, 419

U.S. 1124 95 S.Ct. 810, 42 L.Ed.2d 825 (1975), the “Byrd

guidelines provided that (1) the testimony must be exculpatory

in effect; (2) the testimony must be more than purely

cumulative, or of negligible weight or probative value; and (3)

there must be a likelihood that the co-defendant will be willing

to testify if the defendant is tried separately.”

Trafficante argues that all of these conditions were

satisfied. In Byrd, however, the court also recognized that the

trial judge may “make inquiry into the credibility or weight of

the potential testimony of the codefendant” and “is not required

to sever on patent fabrication”. 428 F.2d at 1021.

In United States v. Alejandro, 527 F.2d 423, 428 (5 Cir.

1976) cert. denied, — U.S. —, 97 S.Ct. 124, 50 L.Ed.2d 115, it

was recognized that the trial judge may also consider whether

the testimony of the codefendant is “contrary to his own penal

interest”. There the codefendant had been “caught redhanded”

and the court noted: “His effort to absolve his co-defendant cost

him nothing. It is not unusual under such circumstances for the

obviously guilty defendant to try to assume the entire guilt.”

We have a comparable situation here. There was no real

question of Guggino’s guilt. He had nothing to lose by

exculpating Trafficante and could perhaps be rewarded. The

evidence which corroborated Ambler’s identification of

Trafficante’s voice on the tapes also casts doubt on the

credibility of Guggino’s proffered testimony.

~ ot ks oe

ee ee

A-21

Under the circumstances the trial judge did not abuse his

discretion in denying the motions for severance.

Ambler's Voice Identification Testimony

John Ambler was called by the Government to identify

Trafficante’s voice on certain tape recordings. In 1971 Ambler

was a F.B.I. agent engaged in the investigation of the gambling

operations. He had heard Trafficante’s voice on some ten

occasions. At the time of trial Ambler had retired from the

F.B.I. and was employed by Trafficante’s attorney as a private

investigator. He was reluctant to testify, and as the judge found

in an in camera hearing, “would if he [could] tell as little and

forget as much as possible”. Called by the Government, Ambler

testified to two occasions on which he identified Trafficante’s

voice. On cross-examination the defense elicited testimony that

he was not positive of the identification. The court then

declared Ambler a hostile witness and permitted the

Government to elicit from Ambler that he had been retained by

Trafficante’s attorney as a private investigator. The Govern-

ment also called three F.B.1. agents to testify to Ambler’s

positive identification of Trafficante’s voice on November 1,

1971.

[13, 14] In contending that Ambler’s testimony should not

have been admitted, Trafficante argues, inter alia, that

Ambler’s testimony violated the attorney-client privilege, there

was insufficient predicate for the testimony, and it was

cumulative of other testimony. We find these contentions

without merit. There was no evidence that Ambler had

participated with Trafficante’s attorney in the investigation or

preparation of the case or had received any confidential

information from the attorney, so that no violation of the

attorney-client privilege is presented. Sufficient foundation was

laid for Ambler’s testimony when he stated he had heard

Trafficante’s voice some ten times. That other witnesses were

available to provide identification is immaterial, particularly in

view of the fact that Ambler was the agent most familiar with

Trafficante’s voice.

[15] Trafficante contends further that the court abused its

discretion in treating Ambler as a hostile witness and permitting

his impeachment based on his relationship with Trafficante’s

A-22

counsel. The common law rule prohibiting a party from

impeaching his own witness “bears little present relationship to

the realities of the criminal process”. Chambers v. Mississippi,

410 U.S. 284, 296, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297

(1973).'* In any event, in view of Ambler’s reluctance to testify

and evasiveness in his testimony, we conclude that the court did

not err in declaring him a hostile witness and allowing

impeachment through evidence of his present employment.

[16] Finally, Trafficante contends that the court erred in

allowing the three F.B.I. agents to testify with respect to

Ambler’s positive identification of Trafficante’s voice on

November 1, 1971. This evidence was properly admitted for

impeachment purposes. A limiting instruction would have been

proper had appellant requested it; but no request was made.

The failure to give the instruction sua sponte was not reversible

error. United States v. Hill, 481 F.2d 929, 932 (5 Cir. 1973),

cert. denied, 414 U.S. 1115, 94 S.Ct. 847, 38 L.Ed.2d 742

(1974).

Jury Instructions

[17] Appellants first contend that the court erred in failing

to instruct the jury that the defendants must be aware that the

conspiracy must involve at least five participants. It is well

settled, however, that the “five persons” criterion of § 1955 is a

jurisdictional requirement unrelated to the criminal character of

conduct. United States v. Pacheco, 489 F.2d 554, 558 (5 Cir.

1974); United States v. Tucker, 526 F.2d 279, 283-284 (5 Cir.

1976) cert. denied, — U.S. —, 97 S.Ct. 796, 50 L.Ed.2d 783

(1977). The argument here advanced by appellants was rejected

by the Sixth Circuit in an exhaustive opinion in United States v.

Leon, 534 F.2d 667, 674-675 (6 Cir. 1976). We conclude that the

district court did not err in refusing to give the requested

instruction.

[18] Nor is there merit in appellants’ contention that the

court erred in refusing to instruct the jury that the Florida

gambling statutes do not apply to pari-mutuel wagering. There

was no evidence suggesting that the gambling operation of

12. Rule 607, F.R.Evid., which became effective subsequent to the trial

of this case, specifically provides that, “The credibility of a witness may be

attacked by any party, including the party calling him.”

A-23

appellants fell within the requested instruction. The instructions

given were proper and adequate.

Evidentiary and Procedural Rulings

Disclosure of Confidential Informants

[19] Appellant Alfonso contends that the court erred in

denying his motion for disclosure of the identity of four

confidential informants. He relies primarily on Roviaro v.

United States, 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639

(1957), where the Court held: “Where the disclosure of an

informant’s identity, or of the contents of his communications,

is relevant to the defense of an accused, or is essential to a fair

determination of a cause, the privilege must give way.” The

Court continued:

“We believe that no fixed rule with respect to

disclosure is justifiable. The problem is one that calls for

balancing the public interest in protecting the flow of

information against the individual's right to prepare his

defense. Whether a proper balance renders nondisclosure

erroneous must depend on the particular circumstance of

each case, taking into consideration the crime charged, the

possible defenses, the possible significance of the informer’s

testimony, and other relevant factors.” 353 U.S. at 60,

61-62, 77 S.Ct. at 628. See also McCray v. Illinois, 386

U.S. 300, 310-312, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

Under the circumstances of this case, disclosure was not

required. There is no evidence that the informants had

participated in the activities for which Alfonso was charged or

that evidence described by the informants was introduced at the

trial. Nor is there any evidence that the informants implicated

Alfonso. The district court did not err in denying Alfonso’s

motion for disclosure of the identity of the informants.

Agent Harker's Testimony

[20] Philip Harker, who was qualified as an expert in

bookmaking and gambling, testified with respect to the

meaning of gambling jargon contained in intercepted telephone

conversations and the role of the appellants in the gambling

operation. Appellants argue that this testimony wrongly

invaded ultimate issues of fact to be determined by the jury. By

reason of the cryptic nature of the recorded conversations,

A-24

often framed in jargon peculiar to the gambling trade, it was

appropriate to present expert testimony to supply meaning to

the conversations and explain the roles of the appellants. See

United States v. Cirillo, 499 F.2d 872, 881 (2 Cir. 1974), cert.

denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974).

Aliases .

[21] The second superseding indictment referred to

appellants by their proper names, as well as by aliases used by

appellants to identify each other in the taped telephone

conversations. Appellants argue that the use of the aliases in the

indictment invaded the jury’s province of identification of the

voices on the tape. The aliases were extensively used in the

intercepted conversations, and there was ample testimony to

identify the appellants with the various aliases. Under these

circumstances the court did not err in denying appellants’

motion to strike the aliases. See United States v. Skolek, 474

F.2d 582, 586 (10 Cir. 1973); United States v. Miranda, 494 F.2d

783, 788 (S Cir. 1974).

Rereading Evidence to Jury

[22-25] After beginning its deliberations, the jury request-

ed the court to replay the taped conversations of Trafficante

and Figueredo. To prevent the jury from “ferreting out of

context” certain evidence, the court ordered the tapes to be

replayed for the jury together with the rereading, from the court

reporter's notes, of testimony of witnesses relating to the

matters discussed on the tapes. Appellants contend that they

were prejudiced by the rereading of the evidence, both because

of its excessive length’ and because the evidence which was

reread was slanted in favor of the Government.

It is well settled that a trial judge has broad discretion in

responding to a jury request that certain evidence be reread.

Pinckney v. United States, 352 F.2d 69 (5 Cir. 1965). As stated

in the ABA Standards Relating to the Administration of

Criminal Justice, Trial by Jury § 5.2(b) (1968):

“The court need not submit evidence to the jury for review

beyond that specifically requested by the jury, but in its

discretion the court may also have the jury review other

13. The rereading covered approximately one and one-half days of the

trial.

a ee eee +

ee ae ee eee ee

A-25

evidence relating to the same factual issue so as not to give

undue prominence to the evidence requested.”

The rereading procedure followed here evinces a concerted

effort by the court to insure that the evidence requested by the

jury was presented in a fair and complete manner and placed in

its proper context'* The evidence reread was closely related to

the material requested by the jury, and the manner of its

presentation indicated the court's complete impartiality. See

United States v. Gentile, 525 F.2d 252, 260-261 (2 Cir. 1975),

cert. denied, 425 U.S. 903, 96 S.Ct. 1493, 47 L.Ed.2d 753

(1976). The extreme length of the rereading proceedings does

not indicate prejudice per se; nor do we find any evidence of

prejudice in the record as recounted by appellants.

Neither do we find that the evidence reread unfairly

favored the Government, as Trafficante contends. At the

beginning of the rereading, the court stated that it would allow

-the rereading of a portion of the Government's case against

Trafficante and “then move to the two defense witnesses who

dealt with the voice identification of Henry Trafficante”. At a

later side bar conference, Trafficante’s attorney advised the

court that “out of the defense witnesses, the only part he

wishe[d] to have done in connection with Mr. Trafficante [was]

the short examination of Mr. Kinne” relating to a November 1,

1971, meeting. Thereafter, the court stated that while it would

not reread Kinne’s testimony, it would “play the two proffers

which [went] strictly to the Ambler capability of identifying

[Trafficante’s] voice . . .” In view of this, appellants’ arguments

that the trial court skewed the reread evidence in favor of the

Government is not well taken. We find that the court properly

exercised its discretion in rereading certain evidence to the

jury

14. As the court stated prior to the actual rereading of the evidence:

“We will do it like they [the jury] heard it in the first place. . . 1 am not

going to let it be done out of context, out of place, edited out or any other

fashion.

“. . . We will not distort the matter as it was presented to the Jury.”

15. Appellants also contend that the court erred in refusing to allow

them to make additional summations to the jury after the evidence had

been reread. The court properly followed the format for final arguments set

out in Rule 29.-1, F.R.Crim.P. Appellants were not entitled to additional

summations.

A-26

Record of Rereading

[26-28] Appellants also contend that the court erred in

failing to make a record of the rereading. 28 U.S.C. § 753(b)(1)

requires that a court reporter attend each session of district

court and record “all proceedings in criminal cases had in open

court”. Upon a review of the record we find that the court

carefully explained to the jury the procedure to be followed in

response to its request for the Trafficante tape. A record was

made of numerous objections and motions of counsel outside

the presence of the jury, colloquy between court and counsel,

and the rulings of the court.

Appellants contend, however, in a “Supplemental Affid-

avit” and supporting argument filed subsequent to oral

argument, that the district court erroneously failed to make a

record of the rereading of the evidence, objections, comments

of counsel, and court rulings made in open court in the course

of the rereading. Specifically the affidavit states that appellants

offered a daily copy of the testimony prepared by a state court

reporter; that the court sustained the Government's objection to

the use of that transcript, and held that only the notes of the

official court reporter be read; that there were discrepancies

between the notes of the two reporters, and objections were

made by counsel for appellants and overruled by the court.

While these proceedings are not shown in the transcript of the

record, appellants have failed to show they were prejudiced by

their omission.” In any event, the district court properly relied

on the notes of the official court reporter.

It is true, as appellants contend, that the cases are uniform

in holding that the requirements of 28 U.S.C. § 753(b) are

“mandatory, not permissive”. See, e. g., Calhoun v. United

States, 384 F.2d 180, 183 (5 Cir. 1967). The cases also agree,

however, that failure to comply with the statute does not

constitute prejudicial error per se. See, e. g., Strauss v. United

States, 311 F.2d 926 (5 Cir. 1963), cert. denied, 373 U.S. 910, 83

S.Ct. 1299, 10 L.Ed.2d 412 (1963). Rather, as this court stated in

United States v. Long, 419 F.2d 91, 94 (1969): “. . . in order to

require reversal, some specific error or prejudice resulting from

failure to record such proceedings must be called to the Court's

16. The same is true of the allegations in the supplemental affidavit and

argument with respect to the omission of other objections and comments of

counsel during the rereading of the testimony.

Dam te et ee

A-27

attention”. The rationale behind this requirement was stated by

this court in Addison v. United States, 317 F.2d 808, 811 (1963):

“Obviously even though a failure of the court reporter to report

the arguments of counsel were an error per se, such error would

not be available to appellants to work a reversal without a

caine that it was prejudicial error. Rule 52(a) F.R.Crim.

roc.”

Nowhere, either in their briefs or in their Supplementary

Affidavit, do appellants specify any prejudice arising from the

court's failure to require all of the court proceedings to be

recorded. “This fact alone destroys appellants{’] position,

Addison v. United States, supra at 811, and distinguishes the

present case from those in which this Court has reversed

convictions for failure to record proceedings.” United States v.

Long, supra at 94."

Nor do we find any merit in the contention of appellant

Vega that the reinstruction of the jury following the rereading

of the evidence was confusing or improper. “®

Sufficiency of Evidence

Gross Revenue

[29] Appellants argue that the Government failed to show

that their gambling operations had a gross revenue of $2,000 in

any single day. F.B.I. Agent Harker, however, testified that

based upon the intercepted conversations, he calculated that the

daily receipts of the enterprise on October 2, 9, and 10, 1971

were $15,569.00, $2,225.00 and $12,897.00 respectively. This

17. United States v. Selva, 546 F.2d 1173 (5 Cir. 1977), cited in

appellants’ supplemental argument, is distinguishable. There no record was

made of counsel's argument, and the case was remanded for a hearing “for

the purpose of supplementing the record, if possible, to disclose what

transpired during the closing arguments at the trial”. We find no basis in

the affidavit and argument of appellants’ counsel to require this procedure.

18. The court instructed the jury, inter alia, that “Count I of the

indictment further alleges that the defendants would use these means to

carry out their conspiracy”. (Emphasis added.) The court then specified the

allegations with respect to the participation of each of the appellants

without repeating the reference to Count I. The use of the phrase “these

means” manifestly refers to the allegations thereafter set forth with respect

to the various defendants.

A-28

testimony was sufficient to establish the statutory element of

“gross revenue”. See United States v. Sacco, 491 F.2d 995, 1001

(9 Cir. 1974) (en banc.)

Trafficante

Trafficante attacks the sufficiency of the evidence upon the

supposition that the recorded interception of his conversations

was inadmissible. We have held, supra, that these recordings

were properly admitted and that F.B.I. Agent Ambler’s

identification of Trafficante’s voice was sufficient. Other

evidence corroborated this identification. In particular,

Trafficante and Guggino were observed meeting following a

recorded telephone conversation in which the caller and

Guggino agreed to meet at that time and place. The evidence as

a whole was sufficient to sustain Trafficante’s conviction.

Figueredo

{30, 31] Figueredo contends that his gambling operation

was separate from that of Trafficante, precluding prosecution

under 18 U.S.C. § 1955, which requires participation by five or

more persons. The proof, however, established a nexus between

the gambling operations of Trafficante and Figueredo. The

evidence showed that Figueredo regularly accepted lay-off bets

from the Trafficante operation. As this court held in United

States v. Joseph, 519 F.2d 1068, 1071 (1975), it was the intent of

Congress in enacting § 1955 to include all persons who

participate in the operation of a gambling business, including

lay-off bettors, and to exclude only customers of the business.

Conclusion

We find no reversible error and affirm the convictions of

all of the defendants.

A-29

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 3564

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

ALFREDO FERNANDEZ “Chino” “AL” ALFONSO, STEVE

GUGGINO, FRANK FRATERRIGO VEGA, LOUIS HENRY

“Dr.”, “Bacardi” FIGUEREDO, SR., SAM VAGLICA and SAM

CASTELLANO, JR. and HENRY “MR. GARCIA”, “THE

MAN” TRAFFICANTE,

Defendants-Appellants.

Appeal from The United States District Court for the

Middle District of Florida

ON PETITION FOR REHEARING

(July 11, 1977)

Before Brown, Chief Judge, AINSWORTH, Circuit Judge, and

JAMESON’, District Judge.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

denied.

*Senior Judge of the District of Montana, sitting by

designation.

ENTERED FOR THE COURT:

/s/ William J. Jameson

United States District Judge