Petition — Yarmosh v. United States

| supreme Coun 7} S.

em FIL ED

JUL 25 vil

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|

| .

IN THE | L MICHAEL RODAK, JR, CLERK

SUPREME COURT OF THE UNITEQ STATES

OCTOBER TERM, 1977

No. ' W77-130

JOHN YARMOSH, NICHOLAS BOTTA and

LAWRENCE MESSINA,

Petitioners,

.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

HAROLD BAER, JR.

Attorney for Petitioner,

JOHN YARMOSH

80 Pine Street

New York, New York 10005

Tel: (212) 344-2040

NORMAN L. GREENE

Of Counsel

JOSEPH A. FARALDO

Attorney for Petitioners

NICHOLAS BOTTA and

LAWRENCE MESSINA

125-10 Queens Boulevard

Kew Gardens, N.Y. 11415

212-544-6800

INDEX

; Page

OPINIONS BELOW... ccucccvcvscceces 2

JURISDICTION. ccccccccccccceseces 3

QUESTIONS PRESENTED... cececccces 3

STATUTES INVOLVED. -ccccccccccsces 4

STATEMENT OF THE CASE....seeeee5 12

REASONS FOR GRANTING THE WRIT... 18

A. IN DENYING YARMOSH'S

APPLICATION FOR A

SUPPRESSION HEARING, THE

DISTRICT COURT ABUSED

ITS DISCRETION UNDER

RULE 12(f£) OF THE

FEDERAL RULES OF

CRIMINAL PROCEDURE:

THIS COURT'S DECISION

IN UNITED STATES V.

DONOVAN HAD JUST

CREATED NEW LAW AND

ENTITLED YARMOSH TO

MOVE TO SUPPRESS AFTER

THE CUT-OFF DATE SET

FOR tg (| Pr 18

B. IN DENYING YARMOSH'S

APPLICATION, THE

DISTRICT COURT MIS-

CONSTRUED THE DECISION

OF THIS COURT IN UNITED

STATES V. DONOVAN...seeee++ 26

C. THE DENIAL OF YARMOSH'S , ‘ CITATIONS

APPLICATION HAS LED TO

A CONFLICT BETWEEN THE : TABLE OF CASES Page

SECOND AND EIGHTH ’

CIRCUITS ON THE RIGHT UNITED STATES v. DI GIRLOMO,

TO A HEARING OF A ~~550 F.2d 404 (8th Cir. 1577). 29,30

DEFENDANT CLAIMING A

DELIBERATE VIOLATION OF UNITED STATES v. DONOVAN,

THE NOTICE PROVISIONS aus: « 20 ke wee we

OF 18 U.S.C. §2518(8)(d).. 29 nt SC ie edidwnevecdece Oe BP~R8O,

20-30,

D. THE DENIAL OF PETI-

TIONERS' MOTION TO UNITED STATES v. ESPOSITO,

SUPPRESS THE WIRETAP 423 F.Supp. 908 (S.D.N.Y.

EVIDENCE AGAINST THEM ES AE a PP

ON THE GROUNDS OF THE

INSUFFICIENCY OF THE UNITED STATES v. KALUSTIAN,

AFFIDAVITS UNDER 18 ~ 529 F.od 565 (9th Cir.

U.S.C. §2518(1)(c) HAS DUDA heakidddaneddssiavecece 88

EFFECTED A CONFLICT

BETWEEN THE CIRCUITS...... 31 UNITED STATES v. PRINCIPIE,

~~ 531 F.2d 1132 (2d Cir.

CO Re BGs 6 66 6 0666006606 686668686 34 LDS) ccccccccccsccescescoceoce 21

ROOT. 6 nu sb dciedéeadéasicsccese 4 ’ UNITED STATES v. REYNOLDS,

300 F.Supp. 503 (D.D.C.

JUDGMENT OF UNITED STATES 1969) ccccccccccccccccccccccecs 19,20

COURT OF APPBALS.cocceoceceece A-1l a

UNITED STATES v. RIZZO,

DECISION OF HONORABLE ~~ 492 F.2dg 443 (2d Cir.

EDWARD WEINFELD ON APPLI- 1974), cert. denied

CATION BY PETITIONER SRy "Gala De Leet elccecesees 23

YARMOSH FOR LEAVE TO MOVE

TO SUPPRESS WIRETAP EVI-

DENCE AGAINST HIM ON TABLE OF STATUTES

JANUARY 26, DTT cccccccececcce A-3

18 U.S.C. CsT bc ccccccceeeccoccs 12

UNITED STATES v.

ESPOSITO, 423 F.Supp 18 U.S.C. G19 SD ccc ccc cccccccce 12

-D.N.Y. 1976) ecccccccces A-5

18 U.S.C. §2518(1)(C)ecccccceccs 4, 14,

31,33

-ii- a 7 -iii-

IN THE SUPREME COURT OF THE UNITED STATES

18 U.S.C. §2518(8)(d)wcccescces 3,5, OCTOBER TERM, 1977

28 G.8-Ce §1254(1) -ccccccccces 3 NO.

TABLE OF OTHER AUTHORITIES

JOHN YARMOSH, NICHOLAS BOTTA,

U.S. Sup. Ct. Rule 22(C).-.eee- 3 and LAWRENCE MESSINA, Petitioners,

F.R.Crim.P. Rule LZecccccscecs 4,18, Vv.

26

UNITED STATES OF AMERICA, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioners John Yarmosh,

Nicholas Botta, and Lawrence Messina

pray that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Second Circuit

entered in the above case on June 24,

1977, to the extent it affirmed their

convictions.

OPINIONS BELOW

The opinion of the United

States District Court for the Southern

District of New York denying motions to

Suppress made on behalf of petitioners on

December 20, 1976, is reported as

United States v. Esposito, 423 F. Supp.

908 (S.D.N.Y. 1976), and is annexed

hereto at p. A-5. The decision of Judge

Weinfeld denying Yarmosh's application

for leave to move on January 26, 1977, is

annexed hereto at p. A-3. No other

decisions of the District Court are

relevant to this petition.

The opinion of the United

States Court of Appeals for the Second

Circuit was delivered in open court

and is not available as of the date of

the filing of this petition.

JURISDICTION

The judgment of the United

States Court of Appeals for the Second

Circuit was entered on June 24, 1977,

affirming petitioners' convictions. p.

A-l. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(i) and

U.S. Sup.Ct. Rule 22(2).

QUESTIONS PRESENTED

(1) Whether the court erred in

refusing to permit petitioner Yarmosh to

move to suppress as evidence the tape of

his intercepted conversation on the

grounds that the Government had deli-

berately failed to give him timely

notice of the interception pursuant

to 18 U.S.C. §2518(8)(d), and to grant

Yarmosh a hearing in connection with

the motion, where the motion was made

past the cut-off date for motions set

-3-

pursuant to F.R. Crim. P. Rule 12(c),

but just after the decision in United

States v. Donovan, U.S. , 50 L.Ed.2d

661 (1977)?

(2) Whether an application in

support of an electronic surveillance

order sought in order to investigate

illegal gambling operations sufficiently

establishes the inadequacy of other

investigative techniques, pursuant to 18

U.S.C. § 2518(1)(c), where its allega-

tions of inadequacy substantially consist

of statements as to the difficulties of

investigating gambling operations in

general?

STATUTES INVOLVED

18 U.S.C. § 2518(1)

Each application for an order

authorizing or approving the intercep-

tion of a wire or oral communication

shall be made in writing upon oath

or affirmation to a judge of competent

~4-

jurisdiction and shall state the appli-

cant's authority to make such applica-

tion. 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 reasonably appear to

be unlikely to succeed if tried

Or to be too dangerous;..."

18 U.S.C. §2518(8) (4d)

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 communica-

tions as the judge may determine in his

discretion that is in the interest

-S<

of justice, an inventory which shall oe s, RULE 12 OF THE FEDERAL RULES

OF CRIMINAL PROCEDURE

include notice of --

(a) Pleadings and Motions.

(1) the fact of the entry of ‘ , ald .

Pleadings in criminal proceedings shall

the order or the application;

PP ; be the indictment and the information,

2 the date of the entry and

(2) y and the pleas of not guilty, guilty

the period of authorized, approved

and nolo contendere. All other pleas,

or disapproved interception

PP P ; and demurrers and motions to quash are

or the denial of the application; abolished, and defenses and objections

and , ‘ ;

raised before trial which heretofore

(3) the fact that during the

could have been raised by one or more

eriod wire or oral communications

P of them shall be raised only by motion

were or were not intercepted. a :

to dismiss or to grant appropriate

The judge, upon the filing of a motion ' ' e ; ,

sere Ser g 4 relief, as provided in these rules.

may in his discretion make available to

(b) Pretrial Motions. Any

such person or his counsel for inspection ;

defense, objection, or recuest which is

such portions of the intercepted communi- :; ,

capable of determination without the

cations, applications and orders as the :

, app trial of the general issue may be raised

judge determines to be in the interest , ; :

before trial by motion. Motions may

of justice. On an ex parte showing of ;

J P g be written or oral at the discretion of

od cause t judge of competent juris-

go ause *O 8 jU09 P 3 the judge. The following must be raised

diction the serving of the inventory re- , :

prior to trial:

quired by this subsection may be postponed.

-6- - ) . -7-

(1) Defenses and objections motions or requests and, if required,

based on defects in the institution of a later date of hearing.

the prosecution; or (d) Notice by the Government

(2) Defenses and objections of the Intention to Use Evidence.

based on defects in the indictment or (1) At the Discretion of the

information (other than that it fails Government. At the arraignment or as

to show jurisdiction in the court or soon thereafter as is practicabie, the

to charge an offense which objections government may give notice to the de-

shall be noticed by the court at any fendant of its intention to use speci-

time during the pendency of the pro- fied evidence at trial in order to

ceedings); or afford the defendant an opportunity

(3) Motions to suppress to raise objections to such evidence

evidence; or prior to trial under subdivision

(4) Requests for discovery (b)(3) of this rule.

under rule 16; or (2) At the Request of the

of charges or defendants under Rule 14. soon thereafter as is practicable the

(c) Motion Date. Unless defendant may, in order to afford an

otherwise provided by local rule, the Opportunity to move to suppress

court may, at the time of the arraign- evidence under subdivision (b) (3)

ment or as soon thereafter as practicable, of this rule, request notice of the

set a time for the making of pretrial government's intention to use (in

-8- 7 . -9-

its evidence in chief at trial) any

evidence which the defendant may be

entitled to discover under Rule 16

subject to any relevant limitations

prescribed in Rule 16.

(e) Ruling on Motion. A

motion made before trial shall be

determined before trial unless the court,

for good cause, orders that it be de-

ferred for determination at the trial

of the general issue or until after ver-

dict, but no such determination shall

be deferred if a party's right to appeal

is adversely affected. Where factual

issues are involved in determining a

motion, the court shall state its essen-

tial findings on the record.

(f) Effect of Failure to

Raise Defenses or Objections. Failure

by a party to raise defenses or ob-

jections or to make requests which must

be made prior to trial, at the time

-10-

set by the court pursuant to subdivi-

sion (c), or prior to any extension

thereof made by the court, shall con-

Stitute waiver thereof, but the court

for cause shown may grant relief from

the waiver.

(g) Records. A verbatim

record shall be made of all proceedings

at the hearing, including such findings of

fact and conclusions of law as are made

Orally.

(h) Effect of Determination.

If the court grants a motion based on

a defect in the institution of the

prosecution or in the indictment or

information, it may also order that

the defendant be continued in custody

Or that his bail be continued for a

specified time pending the filing of

a new indictment or information.

Nothing in this rule shall be deemed to

affect the provisions of any Act of

olie

Congress relating to periods of limi-

tations.

STATEMENT OF THE CASE

In an indictment filed in the

United States District Court for the

Southern District of New York on November

22, 1976, petitioners John Yarmosh,

Nicholas Botta, and Lawrence Messina were

charged in two counts: (1) conspiracy in

violation of 18 U.S.C. § 371; and (2)

participation in an illegal gambling

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

§ 1955. Petitioners pleaded guilty to

the conspiracy count. The substantive

count was dismissed on the date of

sentencing, March 14, 1977, by consent.

Petitioners were each sentenced to serve

One year and one day in jail.

Despite their guilty pleas,

petitioners had with the consent of the

government and the Court reserved their

right to appeal from any and all disad-

-12-

vantageous pre-trial rulings. These

included a ruling denying petitioners'

motions to suppress wiretap evidence

against them on December 20, 1976; and

with respect to petitioner Yarmosh only,

a ruling denying his application on

January 26, 1977, for leave to move to

Suppress wiretap evidence against him and

for a hearing on the issue of suppression.

Petitioners appealed to the

United States Court of Appeals for the

Second Circuit from their convictions on

the basis, among other things, that the

December 20, 1976, ruling had been

improper. In addition, Yarmosh appealed

on the ground that his January 26, 1977,

application had been improperly denied;

and from his sentence.

On June 24, 1977, the Second

Circuit affirmed the judgment of convic-

tion as to petitioners but remanded

Yarmosh for resentencing. As of the

al3eo

of all gambling operations. The follow-

date of this petition, Yarmosh has not

ing excerpt from one such affidavit is

been resentenced. Petitioners seek

illustrative:

review by this Court of the portion of

the judgment of the Second Circuit

affirming their convictions.

On July 10, 1975, United

States District Court Judge Robert L.

Carter signed a federal wiretap order,

pursuant to which conversations engaged

in by petitioners were allegedly inter-

cepted. Botta's and Messina's conversa-

tions were intercepted on July 17, 1975;

Yarmosh's on July 13, 1975.

The order was based on affida-

vits of Special Agent William Bradbury,

Jr., of the Federal Bureau of Investiga-

tion, which purported to explain the need

for the order, as required by 18 U.S.C.

§2518(1)(c). The need alleged substan-

tially consisted of the Agent's allega-

tions that electronic surveillance was

generally necessary in the investigation

-14-

"17. I know from my experience and

that of other agents that most

bookmaking operations dealing in

sports and horse race gambling

accept bets primarily on the tele-

phone, many times assigning code

names for the bettors making the

wagers and the bookmakers accepting

them. The only required personal

contact between the bettor and

bookmaker in these instances is when

they ‘settle up', that is, when they

balance their account and any money

Owed at that time by one or the

other is paid. These bets are

recorded by the bookmaker accepting

them on the telephone on a separate

"sheet' for each runner, who settles

- with the bettor. In addition, I

know that many times the person who

‘settles up' with the bettor is not

the same person who receives the bet

telephonically.

"18. My experience and the exper-

ience of other agents have shown

that gambling raids and searches of

gamblers and their gambling esta-

blishments, have not, in the past,

resulted in the gathering of physi-

cal or other evidence to prove all

elements of the offenses. I have

found through my experience and the

experience of other special agents

who have worked on gambling cases

that gamblers frequently do not keep

permanent records. If such records

o1S<

have been maintained, gamblers

immediately, prior to or during a

physical search, destroy them.

Additionally, records that have been

seized in the past gambling cases

hove generally not been sufficient

to establish elements of a Federal

offense because such records are

difficult to interpret and many

times are of little or no signifi-

cance without further knowledge of

the gambler's activities and nature

of the operation.

"19. The informants referred to in

this affidavit are unwilling to

testify against RICHARD ESPOSITO,

ARTHUR SONNENSCHEIN (a/k/a SUNSHINE),

ALEX NICHAS (a/k/a ALEX THE GREEK),

RITCHIE (LNU), DANNY KRAMER and

others as yet unknown, involved in

the gambling business, because of

fear for their personal safety.

"20. For the reasons enumerated in

paragraphs 17-19, all normal avenues

of investigation and prosecution

have been exhausted or have been

considered too risky to attempt."

Yarmosh received formal notice

of the interception of his conversation

on or about August 6, 1976 -- over one

year after the interception -- and some

eight months after Yarmosh had been

identified in the grand jury. He had

been named in neither the order nor the

-16-

application for the orcer.

On January 26, 1977, promptly

after the January 18, 1977, decision of

the United States Supreme Court in United

States v. Donovan, supra, Yarmosh applied

for leave to move to suppress his inter-

cepted conversation on the ground that

the government had deliberately failed to

comply with the notice provisions of 18

U.S.C. § 2518(8)(d); and to obtain a

hearing in connection with his motion.

The Honorable Edward Weinfeld had set

December 21, 1976, as the cut-off date

for Yarmosh to move to suppress and for a

hearing. Yarmosh's application for leave

to move was denied.

@lJ<-

REASONS FOR GRANTING THE WRIT

A.

IN DENYING YARMOSH'S APPLICA-

TION FOR A SUPPRESSION HEARING,

THE DISTRICT COURT ABUSED ITS

DISCRETION UNDER RULE 12(f) OF

THE FEDERAL RULES OF CRIMINAL

PROCEDURE: THIS COURT'S DECISION

IN UNITED STATES V. DONOVAN

HAD JUST CREATED NEW LAW

AND ENTITLED YARMOSH TO MOVE TO

SUPPRESS AFTER THE CUT-OFF DATE

SET FOR MOTIONS.

While the district court was

empowered pursuant to F.R.Crim.P. 12 to

set a cut-off date for motions, it also

had discretion pursuant to this Rule to

permit petitioner to make a motion after

that date. F.R.Crim.P. Rule 12 provides

in part:

"(c) Motion date: Unless otherwise

provided by local rule, the

court may, at the time of the

arraignment or as soon there-

after as practicable, set a

time for the making of pretrial

motions or requests .. .

* * 7

(£) Effect of Failure to Raise

Defense or Objections. Failure

by a party to raise defenses or

-18-

objections or to make requests

which must be met prior to

trial, at the time set by the

court pursuant to subdivi-

sion (c), Or prior to any

extension thereof made by the

court, shall constitute waiver

thereof, but the court for

cause shown may grant relief

from the waiver.” (pmphasis

added )

For instance, where new

law develops after the cut-off date, and

the motion based on such new law is made

promptly after that development, it

is an abuse of discretion not to permit

the motion to be made. This point was

recognized in United States v. Reynolds,

300 F.Supp. 503 (D.D.C. 1969). There,

the court refused to permit a defendant

to make a pre-trial motion after the

cut-off date, noting that defendant was

not relying on law created after that

date. But it clearly implied that had

defendant been relying on a change in the

law as the basis for his motion, it would

have permitted the motion to be made:

-19-

"The information, both factual and

legal, on which the April 28, 1969,

motion was based was at all times

available to defendants and yet they

failed to take appropriate ac-

tion at the time they filed their

first motion to dismiss." Reynolds,

supra, 300 F.Supp. at 506 (Emphasis

supplied).

"Thus the applicable legal princi-

ples were equally ‘notorious and

available' to defendants [before the

cut-off date]." Id.

A contrary rule would be

unjust, by penalizing a defendant for

failing to move when the law on which

his motion was made did not exist at the

time his motion had to be made. Applying

it here would deprive Yarmosh of substan-

tial rights.

The law in the Second Circuit

concerning grounds for suppression for

violation of the notice provisions

of 18 U.S.C. § 2518(8)(d) was substan-

tially changed by the Donovan decision.

Before Donovan, the Second Circuit rule

was that suppression could be obtained

only if movant could prove he had been

=-20-

prejudiced by a failure to receive timely

notice. This principle was stated as

follows in United States v. Rizzo, 492

F.2d 443 (2d Cir. 1974), cert. den. 417

U.S. 944:

"We believe, as indicated in United

States v. Manfredi at [488 F.2d

588,] 601 that the touchstone to the

determination whether to suppress

wiretap evidence on a claim of

failure of notice should be preju-

dice to the defendant. [Citation

omitted]. Here no claim of actual

prejudice has been made, nor do we

see how it could be, and thus,

we find that the district court did

not err in admitting evidence of

that one telephone call." Rizzo,

Supra, 492 F.2d at 447. See also

' United States v. Principie, 531 F.2d

1I32, 1141 (2a Cir TSTey- 6).

Since Yarmosh had suffered

no actual prejudice from any failure

to receive timely notice, any motion to

Suppress that he would have made prior to

Donovan would therefore have been frivolous.

But Donovan created a new basis

for suppression of special importance in

@-Sie

cases such as Yarmosh's, where a defen-

dant is only entitled to notice under 18

U.S.C. § 2518 (8)(d) in the discretion of

the judge who issued the wiretap order:

it imposed a new duty on the government

to supply information to the judge to

permit him to exercise informed discre-

tion; and implied that violation of this

duty, when deliberate, would warrant

suppression.

The theory that deliberate

violation of the notice provisions of 18

U.S.C. § 2518(8)(d) may be grounds for

suppression, stemmed from the following.

In refusing to suppress an intercepted

conversation although notice of the

interception had not been given to two

defendants, Donovan focussed on the fact

that the government had only inadvertent-

ly violated the notice provisions. It

strongly implied that inadvertence was a

crucial factor in its decision not to suppress:

=22@

"As a result of what the Government

labels ‘administrative oversight’,

respondents Merlo and Lauer were not

included in either list of names and

were never served with inventory

notice." Donovan, supra, 50 L.Ed.2d

at 663. (Emphasis supplied)

"Nor was suppression justified with

respect to respondents Merlo and

Lauer simply because the Government

inadvertently omitted their names

from the comprehensive list of all

identifiable persons whose conversa-

tions had been overheard." Donovan,

supra, 50 L.Ed.2d at 674. (Empha-—

Sis supplied)

"Counsel for respondents Merlo and

Lauer conceded at oral argument that

the failure to name those respondents

in the proposed inventory order was

not intentional .. ." Donovan,

Supra, 50 L.Bd.2d at 674 n.26.

mphasis supplied)

Furthermore, Donovan expressly

warned that a deliberate violation

of the notice provisions may warrant

suppression, stating:

"We are therefore not called upon to

decide whether suppression would be

an available remedy if the Govern-

ment knowingly sought to prevent the

District Court from serving in-

ventory notice on particular par-

ties." Donovan, supra, 50 L.Ed.2d at

674-5, n.26.

@33-

Also, it cautioned the government to fiable persons whose conversations have

adhere strictly to the notice require- been intercepted, for the purpose of

’

ments:

enabling the judge to exercise an in-

"(W]e reemphasize the suggestion we

made in United States v. Chavez,

that ‘strict adherence by the

Government to the provisions of

Title III would nevertheless be more

in keeping with the responsibilities

Congress has imposed upon it when

authority to engage in wiretapping

or electronic surveillance is

sought.' 416 U.S., at 580."

Donovan, supra, 45 U.S.L.W. at

Additionally, Justice Marshall in his

partial dissent in Donovan said:

"The Court's opinion implies that if

the violations of Title III [e.g. of

18 U.S.C. § 2518(8)(d)] considered

here had been intentional, the

result would be different ... .

This must be so, for surely the

Court would not tolerate the Govern-

ment’s intentional disregard of

duties imposed on it b aon ress."

Donovan, supra, 50 Ea at 662.

(Emphasis supplied)

The new duty with which the

government must comply where notice is

only discretionary is as follows: to

submit a complete list of all identi-

-24-

formed discretion:

"Moreover, where, as here, 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. Applying these

principles, we find that the Govern-

ment did not comply adequately with

§ 2518(8)(d), since the names of

respondents Merlo and Lauer were

not included on the purportedly

complete list of identifiable

persons submitted to the issuing

oe Donovan, supra, 50 L.Ed.2d

a °

This duty - which never existed

before Donovan in the Second Circuit -

was of extreme importance to persons such

as Yarmosh who were only entitled to

discretionary notice. Since the govern-

ment before Donovan had no identi-

fiable duties to perform in connection

with such notice, it would have been

almost impossible for them to have

=25-

committed any violations, let alone

deliberate ones, of the notice provi-

sions. But as a result of Donovan, there

were new duties imposed on the government

with which they arguably failed to

comply.

In summary, the Donovan deci-

sion created new law which was clearly

the kind of good cause for which F.R.Crim.P.

12(f) justified permitting a motion to be

made after the cut-off date for motions.

The failure of the court to permit

Yarmosh's motion to be made despite the

creation of such new law warrants

the reversal of Yarmosh's conviction and

a remand for a hearing.

B.

IN DENYING YARMOSH'S APPLI-

CATION THE DISTRICT COURT

MISCONSTRUED THE DECISION

OF THIS COURT IN UNITED

STATES V. DONOVAN

In his application of January

26, 1977, Yarmosh stressed that the

-26-

delay in giving him inventory notice may

have resulted from deliberate government

conduct:

"(TJhis is a willful or at least a

knowing failure by the government

+ « »" Transcript of Hearing On

Application For Leave To Move To

Suppress, January 26, 1977, p. 3.

He requested a hearing so that the issue

of deliberateness could finally be

determined.

The Court in denying the

application misconstrued the impact of

Donovan on prior Second Circuit law which

recognized only prejudice as grounds for

Suppression. The Court focussed only on

the issue of the existence of prejudice:

"Moreover, on the representation by

the Assistant United States Attorney

and taking into account the statement

made by attorney representing the

defendant, there is no possible

basis for any claim of prejudice in

this case. The case wilt proceed to

trial." (A-4) (Emphasis supplied)

The use of the prejudice

standard not only contravened the clear

-27=

implications of Donovan, but failed to

give defendants such as Yarmosh essential

protection against deliberate flouting of

the provisions of 18 U.S.C. § 2518(8)(d)

by the government. With prejudice as the

standard for suppression, the government

may effectively ignore its duty to inform

the court so long as the defendant cannot

meet his heavy burden of proving prejudice.

The Court further missed

the implications of Donovan by failing to

give Yarmosh a hearing on the issue of

deliberateness. Where the issue of

deliberateness is raised, the requirement

of a hearing must be fairly implied from

the Donovan decision, since only through

a hearing can the issue of deliberateness

be finally determined. A nearing is

particularly justifiable where, as here,

there was a substantial delay between

interception and notification of Yarmosh.

-28-

Cc.

THE DENIAL OF YARMOSH'S APPLI-

CATION BY THE DISTRICT COURT HAS

LED TO A CONFLICT BETWEEN THE

SECOND AND EIGHTH CIRCUITS ON

THE RIGHT TO A HEARING OF A

DEFENDANT CLAIMING A DELIBERATE

VIOLATION OF THE NOTICE PROVI-

SIONS OF 18 U.S.C. § 2518(8)(d)

Its failure to grant Yarmosh

a hearing on the issue of inadvertence

Places the Second Circuit squarely

in conflict with the decision of the

Eighth Circuit in the case of United

States v. Di Girlomo, 550 F.2d 404

(8th Cir. 1977) on the implications of

the Donovan decision.

In DiGirlomo, the government

had failed to supply the judge who issued

a federal wiretap order with the names

of three persons whose conversations had

been intercepted. ‘he three were not

named in the order or application for

the order and so were not entitled to

mandatory notice under 18 U.S.C.

-29-

§ 2518(8)(d). They received discretionary

notice, but only after 90 days after the

expiration of the wiretap order: after

the period in which notice must gen-

erally be given pursuant to 18 U.S.C. §

2518(8)(d).

The three argued that the

omission of their names from the list of

names given to the judge had been

intentional. The court noted that under

Donovan, intentional omission might

warrant suppression:

"The Court [in Donovan] indicated

that the question of whether suppres-

sion would be an available remedy if

the government knowingly sought to

prevent the district court from

serving notice on particular parties

was left undecided.” Di Girlomo,

supra, 550 F.2d at 407.

It held that in “light of the Donovan

decision, the appellees are entitled to a

hearing on. . . inadvertence..." Id.

The Court of Appeals for the Second Circuit,

on the other hand, has decided this case in

-30-

precisely the opposite manner and has

created substantial conflict between the

two circuits on this important matter.

It is respectfully submitted

that the court grant this writ in order

to resolve this conflict between the

Circuits.

D.

THE DENIAL OF PETITIONERS'

MOTION TO SUPPRESS THE WIRETAP

EVIDENCE AGAINST THEM ON THE

GROUNDS OF THE INSUFFICIENCY OF

THE AFFIDAVITS UNDER 18 U.S.C.

§ 2518(1)(c) HAS EFFECTED A

CONFLICT BETWEEN THE CIRCUITS

The allegations in Agent

Bradbury's affidavits concerning the

uselessness of conventional investiga-

tive techniques rested mainly on his con-

clusions as to the difficulties in in-

vestigating gambling operations in

general. These allegations were relied

on by Judge Weinfeld in his denial of the

motion to suppress, as he stated in part:

@3}-

",..-Agent Bradbury stated that

in his experience the records

of gambling operations are fre-

quently incomprehensible to the

uninitiated and are often de-

stroyed upon the execution of

search warrants." United States

Vv. ESpeeytoe supra, 423 F.Supp.

at Pp. ; Pp. oat >

Reliance on such allegations

conspiracies are tough to crack,

so the Government need show only

the probability that illegal

gambling is afoot to justify

electronic surveillance. Title

III does not support that view."

Kalustian, supra, 529 F.2d at

The affirmance by the Second

Circuit of the petitioners' convic-

to satisfy the requirements of 18 USC

tions has caused a conflict between it

§ 2518(1)(c) was plainly rejected by

~—

the Ninth Circuit in United States

and the Ninth Circuit as to the kinds of

allegations needed to satisfy the re-

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

quirements of 18 U.S.C. § 2518(1)(c).

1976). There the court stated.

It is respectfully requested that this

"They [the investigating offi-

cers] discarded alternative means

of further investigation because

‘knowledge and experience’ in

investigating other gambling cases

convinced them that ‘normal investi-

gative procedures’ were unlikely

to succeed. Agent Brent recites

that searches are often fruitless

because gamblers keep no records,

destroy them, or maintain them

in undecipherable codes..."

Court grant this petition to resolve

the conflict between the Circuits.

This affidavit does not

enlighten us as to why this

gambling case presented any in-

vestigative problems which were

distinguishable in nature or de-

gree from any other gambling

case. In effect the Government's

position is that all gambling

-32- =33<

CONCLUSION APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE

For the foregoing reasons, it

SECOND CIRCUIT

is respectfully submitted that this

At a stated Term of the

United States Court of Appeals for

the Second Circuit, held at the United

States Courthouse in the City of New

York, on the twenty-fourth day of

June, one thousand nine hundred and

seventy-seven.

Petition for a Writ of Certiorari be

granted.

Dated: Juiy 24, 1977

New York, New York

Harold Baer Jr.

Attorney for Petitioner

John Yarmosh

80 Pine Street

New York, New York 10005

212-344-2040

Present: HON. WILLIAM H. MULLIGAN

HON. MURRAY I. GURFEIN

HON. ELLSWORTH A. VAN

GRAAFEILAND

Circuit Judges,

Norman L. Greene a ee en a ae SF

Of Counsel United States of America,

Plaintiff-Appellee :

Vv. ,

Joseph A. Faraldo

Attorney for Petitioners

Nicholas Botta and Richard Esposito, Richard : 77-1147

Lawrence Messina Rizzo, Nicholas Botta, Law- 77-1149

125-10 Queens Boulevard rence Messina, John Yarmosh,: 77-1184

Kew Gardens, N.Y. 11415 John Iannone, Irving 77-1185

212-544-6800 Albahari, Joseph Falco, : 77-1227

Nicholas Renna, David 77-1228

Steinberg, Louis Maggio, :

Defendants,

Nicholas Botta, Lawrence :

Messina, John Yarmosh,

John Iannone, Irving :

Albahari, Joseph Falco,

David Steinberg,

Defendants-Appellants.

Appeal from the United States

=34-

A-1

District Court for the Southern Dis-

trict of New York.

This cause came on to be

heard on the transcript of record from

the United States District Court for

the Southern District of New York,

and was argued by counsel.

ON CONSIDERATION WHEREOF,

it is now hereby ordered, adjudged,

and decreed that the judgments of said

District Court be and they hereby are

affirmed as to all defendants-appel-

lants, except remanded for consider-

ation of resentencing as to defendant-

appellant John Yarmosh.

A. DANIEL FUSARO

Clerk

by

Arthur Heller

Deputy Clerk

DECISION OF HONORABLE EDWARD WEIN-

FELD ON APPLICATION BY PETITIONER

YARMOSH FOR LEAVE TO MOVE TO SUP-

PRESS WIRETAP EVIDENCE AGAINST HIM

ON JANUARY 26, 1977, AT P. 8-9

OF TRANSCRIPT OF HEARING ON

APPLICATION

THE COURT: “There really

are two matters before the Court now.

The first matter and the prime one is

whether or not the cut-off date for the

motions having been established and

the case having been set for trial,

motions should be entertained. I

set this case for trial, I believe on

December 15. Each defendant -- I

believe there are seven or more per-

haps...is represented by independent

counsel. In fact, the Court to avoid

a situation of a possible conflict

in representation required, the Court

recalls it, two defendants to engage

counsel other than counsel they have

previously retained in order to avoid

a conflict.

With so many defendats and so

many lawyers, it was, to say the least,

difficult to set a date for trial, and

finally the date was set, much later

than the Court wanted to set it, for

February 7, 1977.

I don't recall at this moment

when the cut-off date for motions was

fixed but it was sometime back. The

case has moved forward for trial, is

about to go to trial, and the Court

denies the application for leave to

make a motion.

Moreover, on the representa-

tion by the Assistant United States

Attorney and taking into account the

statement made by attorney represent-

ing the defendant, there is no basis

for any claim of prejudice in this

case. The case will proceed to trial."

UNITED STATES of America

Vv.

Richard ESPOSITO, a/k/a “Dixon,"

et al., Defendants.

No. 76 Cr. 1074.

United States District Court,

S.D. New York.

Dec. 21, 1976.

OPINION

EDWARD WEINFELD, District

Judge.

These eleven defendants are

charged in a two-count indictment with

conducting an illegal gambling business

and conspiring to do so, in violation

of Title 18, United States Code, sec-

tions 1955 and 371. They have made

pretrial motions for severance, to

strike alleged surplusage from the

indictment, to suppress wiretap evi-

dence, and for a hearing to determine

the fairness of pretrial voice identi-

fications.

MOTIONS BY DEFENDANTS

IANNONE AND ALBAHARI

Defendants Iannone and Alba-

hari move for a severance of their

trial on the grounds that the jury will

be unable to consider separately the

evidence against each of them if they

are tried with the other defendants

and that the testimony of codefendants,

who could not be called as witnesses

in a joint trial, is necessary to

establish both Iannone's and Albahari's

innocence.

The charges contained in

the indictment are not so complex or

cepfusing that the jury will not be

able to consider the evidence against

each defendant separately. The case

does not involve a large number of

defendants or numerous counts upon

which they will be tried, and it does

not present the likelihood of "“peri-

A-6

pheral" defendants being prejudiced

by evidence against codefendants that

does not also incriminate in. Un-

der such circumstances, no reason

exists to make an exception to the

well-established rule that joinder of

multiple defendants charged with a

single conspiracy will ordinarily

be proper.

{3} Iannone and Albahari

also move for a severance on the

ground that the testimony of their

1 See United States v. Miley, 513

F.2d 1191, 1209 (2d Cir.), cert.

denied, 423 U.S. 842, 96 S.Ct. 74,

46 L.£d.2d 62 (1975).

2 See, e.g., United States v.

Bernstein, 533 F.2d 775, 769 (2d Cir.

1976); United States v. Miley, 513

F.2d 1191, 1209 (20 Cir.), cert.

denied, 423 U.S. 842, 96 S.Ct. 74, 46

L.E£d.20 63 (1975); United States v.

Bynum, 485 a 490, 495-97 = Cir.

ITs, vacated on other grounds,

417 U.S. 903, 94 S.Ct. 5053, 41 L.Ed.2d

209 (1974); United States v. Melville,

312 F.Supp. 234, 235 (S.D.N.Y. 1970);

cf. United States v. Kahaner, 203

F.Supp. 78, B1-52 (S.D.N.Y. 1962).

A-7

codefendants, Steinberg and Rizzo, is

necessary to establish their inno-

cence. There is no indication that

Steinberg and Rizzo, if called at a

severed trial would waive their Fifth

Amendment rights and testify, nor is

there anything to indicate that if they

chose to testify their statements would

tend to exculpate Iannone and isaenin.”

Indeed, the court, with the consent

of the government, heard defense counsel

in camera, and nothing was presented

to establish that any testimony of

3 See United States v. Finkelstein,

526 F.2d 517, 523-25 (2d Cir. 1975),

cert. denied, 425 U.S. 960, 96 S.Ct.

1742, 48 L.Ed.2d 205 (1976); United

States v. Kahn, 381 F.2d 824,

(7th Cir.), cert. denied, 389 U.S.

1015, 88 S.Ct. 591, 19 L.Ed.2d 661

(1967); Gorin v. United States, 313

F.2d 641, 646 (lst Cir.), cert. denied

374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d

1052 (1963); United States v. Pilnick,

267 F.Supp. 791, 500 (S.D.N.Y. 1967);

cf. United States v. Marquez, 319

F.Supp. 1016 (1970), atrta— , 449 F.2d

89 (2d Cir. 1971).

A-8

Steinberg and Rizzo would be of an

exculpatory nature. Further, the

movants have not shown the existence of

circumstances entitling them to be

tried after their codefendants who,

even after a separate trial, may be

entitled to assert their Fifth Amend-

ment rights when called upon to testi-

fy by Iannone and iis. Thus,

the movants have not established that

the testimony of their codefendants

could be obtained or that such testi-

mony would be favorable to them; they

have not made a showing of sufficient

prejudice to warrant a severance.

[4] Defendants Iannone and

Albahari also move to strike references

to aliases in the indictment. The

government has represented, however,

4 See United States v. Finkelstein,

cert. denied, 425 U.S. 960, 96 S.Ct.

1742, FS L.Ed.2d 205 (1976).

A-9

that participants in the gambling opera-

tions charged in the indictment are

repeatedly referred to by these aliases

in wiretapped conversations; the aliases

will thus be relevant to the case and

will constitute part of the government's

proof at trial. Moreover, the aliases

at issue are not inherently prejudicial.

Under the circumstances, inclusion of

the aliases in the indictment is proper

and, indeed, may well serve to obviate

jury titan”

MOTIONS BY DEFENDANTS BOTTA

AND MESSINA

Defendants Botta and Messina,

5 See United States v. Miller, 381

F.2d 529, 536 (20 Cir. 1967), cert.

denied, 392 U.S. 929, 88 S.Ct. 2273,

20 L.Ed.2d 1387 (1968); United States

v. White, 386 F.Supp. 882, 885 (E.D.

Wis. 1974); United States v. Claytor,

52 F.R.D. 360, 361 (S-DLN.y 197

United States v. Addonizio, 313 F.Supp.

486, 491 (D.N.J. 1970), aff'd, 451

F.2d 49 (3d Cir.), cert. denied, 405

U.S. 936, 92 S.Ct. 945, 30 L.Ed.2d

812 (1972).

A-10

on behalf of all the defendants, have

made an omnibus motion relating, to the

government's electronic surveillance of

telephones which were used by the

alleged gambling wirerooms. These

wiretaps were conducted under orders

issued by Judges Palmieri and Carter

of this court on June ll and July 10,

1975, pursuant to Title 18, United

States Code, sections 2516-18.

[5] Defendants attack the

applications for wiretaping warrants

in several respects. First, they claim

that the affidavits in support of the

applications did not demonstrate prob-

able cause since they lacked sufficient

corroboration of the informants’ infor-

mation. However, the affidavits set

forth in detail the underlying circum-

Stances of the informants' observations

and the factual basis upon which it

was determined that each informant was

A-11l

reliable, namely their past furnishing of

truthful information. In addition, the

informants' statements were corroborated

both by information from other informants

and by the observations of the agents

themselves. The persons whom the infor-

mants claimed were operating a wireroom

with certain phone numbers at certain

times of the day were observed by the

agents at those times entering and

leaving the building where those phones

were located. Moreover when the agents

placed calls to those phone numbers a

person answering to the name "Ritchie,"

the name of a person whom the informants

said was a clerk in the wireroom answered

the phone. Taken as a whole these

affidavits are more than sufficient to

6

establish probable cause.

6 See United States v. Harris, 403

U.S. 573, 91 5.Ct. 2075, 29 L.Ed.2d

723 (1971); Spinelli v. United States,

393 U.S. 410, 69 5.ct. 564, 21 L.Ed.2d

A-12

[6] Defendants further contend

that the affidavits in support of the

applications were insufficient in that

they did not set forth

a full and complete statement

as to whether or not other in-

vestigative procedures have

been tried and failed or why

they reasonably appear to be un-

likely to succeed if tried or

to be too dangerous

as required by 18 U.S.C., section

2518(1)(c). However, the affidavits

of Special Agent Bradbury stated in

each case the reasons why other investi-

gative procedures were likely to be

fruitless. First, although the defen-

637 (1969); Aguilar v. Texas, 378 U.S.

108, 84 S.Ct. 1509, 12 L.Ed.2d 723

(1964); United States v. Tortorello,

342 F.Supp. 1025, 1037 (S.D.N.Y. 1972),

aff'd, 480 F.2d 764 (2d Cir.), cert.

denie , 414 U.S. 866, 94 S.Ct. 63,

38 L.Ed.2d 86 (1973); United States

v. Becker, 334 F.Supp. ’ -

(S.D.N.Y. 1971), aff'd. 461 F.2d 230

(2d Cir. 1972), vacated on other grounds,

417 U.S. 903, 94 S.Ct. 25597, 41

L.Ed.2d 208 (1974).

A-13

dants stress that the government had

received information from three infor-

mants, the fact remains that these

informants were unwilling to testify for

fear of their lives or personal safety

and that without their testimony there

was not nearly sufficient evidence to

obtain convictions. In addition, none

of the informants had access to the

inner workings of the conspiracy, since

two were merely bettors and one had

formerly been a low-level participant

in gambling operations. Second, most

of the gambling transactions in ques-

tion occurred over the telcpMOne, mak-

ing physical surveillance alain.”

Third, Agent Bradbury stated that in

his experience the records of gambling

7 See United States v. Steinberg,

525 F.2a lloo, 1130 (2d Cir. -

cert. denied, 425 U.S. 971, 96 S.Ct.

2167, 48 L.£d.2d 794 (1976).

A-14

Operations are frequently incomprehen-

sible to the uninitiated and are often

destroyed upon the execution of search

warrants. Under the circumstances set

forth in the affidavits, the requirements

of the statute were a”

[7] Defendants claim further

that the conversations intercepted

during the first wiretap wre sufficient

to establish the identity of the persons

in charge of the gambling operation and

that there was therefore no need for

a second wiretap. However the affidavit

in support of the application for the

second wiretap stated that the first

wiretap had not in fact revealed the

identity of all persons involved.

8 United States v. Hinton, 543 F.2d

1002, I010-I012 (2d Cir. 1976); United

States v. Steinberg, upra n.7; United

States v. Kerrigan, 514 F.2d 35 (Sth

Cir.), cert. denied, 423 U.S. 924, 96

S.Ct. 266, 46 L.Ed2d 249 (1975).

A-15

For «xample, the identity of "Ritchie,"

the wireroom clerk, was still unknown.

Thus the second application for a wire-

tap was properly granted.

[8] The defendants make a

further attack on the wiretap order.

Seizing upon a single phrase in the

applications, they claim that since

the government sought authorization

to intercept only "wire communications

emanating from the above-named premises,"

the orders, which authorized intercep-

tions of communications to and from the

premises, were overbroad. However, a

common sense reading of ee

and applications as a whole makes it

clear that authorization was sought to

9 See United States v. Ventresca, 380

U.S. 102, 106-09, 65 S.Ct. 741, 13

L.Ed.2d 684 (1965); United States v.

Tortorello, 480 F.2d 764, 780-614 (2d

Cir.), cert. denied, 414 U.S. 866, 94

S.Ct. 63, 38 L.Bd.2d 86 (1973).

A-16

intercept calls to and from the premises.

[9] Finally, defendants

Claim that they are “entitled to an

evidentiary hearing to determine the

fairness of the identification proce-

dures used to identify them as the voices

on the wiretaps." Acceptance of this

novel argument would require pretrial

hearings as to the admissibility of

every piece of evidence which the govern-

ment plans to use at trial. Identifi-

cation of a voice on a tape by a person

familiar with the speaker is not the

same as a lineup in which a victim or

witness confronts the defendant, a

Situation which “is peculiarly riddled

with innumerable dangers and variable

factors which might seriously, even

10 See United States v. Cafero, 473

F.2d 489, 502 (3d Cir. 1973), cert.

denied, 417 U.S. 918, 94 S.Ct. 2622,

aI L.Ed.2d 223 (1974).

A-17

10

ll ‘ ‘ }

crucially, derogate from a fair trial.” [10] Accordingly, the motion

The vice of a lineup is the possibility ‘ ‘ by defendants Botta and Messina is

of suggestiveness; the defendants have denied except with respect to their

not indicated how the government could Claims relating to the sealing of the

have "suggested" to the person making wiretap tapes, as to which an eviden-

the voice identification the identity tiaty hearing is required.

of a speaker when the defendants concede

that the government did not know who

those speakers were. At trial the de-

fendants will have ample opportunity

to contest by cross-examination the

validity of the voice ‘denkietaeeteen.

13 , °

There is no need for a hearing now.

ll United States v. Wade, 388 U.S.

218, 87 S.Ct. 1926, 1933, 18 L.Ed.2d

1149 (1967).

12 The government has indicated its

intention to subpoena voice exemplars

from the defendants for use at trial.

13 United States v. Albergo, 539 F.2d

860, 863-04 (24 Cir. ’ cert. denied,

U.S. , 97 S.Ct. 5295, 50

L.E£d.2d 611 (1976); cf. United States

v. Puco, 453 F.2d 539, 544 n.14 (2d

Cir. 1971).

ase i A-19