Opposition — Leppo v. United States

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REUBEN ‘GOLDSTEIN, PETITIONER 7

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R A WRIT OF CERTIORARI TO.

}:COURT OF APPEALS FOR

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INDEX

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CITATIONS

Cases:

Bowman Dairy Co. v. United States, |

Ca aa te]... -, en 9

Brady v. Maryland, 373 U.S. 83 .......cccccceceeeceeeeeeee 11

Doyle v. Ohio, 426 U.S. GIO .............cccccssccccseeceeees 11

Egger v. United States, 509 F. 2d 745,

certiorari denied, 423 U.S. 842 0.0.0... 12

Moore vy. Illinois, 408 U.S. 786 .o....cccccccccccecceeeeeeee 11

United States v. Agurs, 427 U.S. 97 ...cccccccc cece eee 11

United States v. Armocida, 515 F. 2d 26,

certiorari denied, 423 U.S. 858.000.0000. 5

United States v. Brick, 502 F. 2d 219 «0.0... 5-6

United States v. Donovan, 429 U.S. 413 ......00..004. 8

United States v. Haro-Portillo, 531

Fc Se UD eecencanedebdiadiiitieciditieniiaidiiilindinitniniaes 12

i

il ili

Page | Page

Cases continued: Statutes and rule:

United States v. Hinton, 543 F. 2d 1002 .......... 5. 6 | Se I a ld a ae) od a 3

United States v. Kahn, 415 U.S. 143.0... 5 Se ar a ee 2

United States v. Kalustian. Fe ERS

§29 F. 2d S85 TOP POPP OCR C OPEC OCC C OCC OC OCC CCC CCCP Ce eee eee ee eee ee ee 6 1&8 U.S.C. 2518(1)(c) Pe De IS Ok Tee bal ad 3. 4. 5. 6

United States v. Kirk, 534 F. 2d : .

1262. certiorari denied June 27, 1977 Wi ak Lt Mas ee 4

Oe I ieciesciesietirnipninnseailnniitieiininpiniesite 6 __ Miscellaneous:

United States v. Marcello, 423 F. 2d S. Rep. No. 1097, 90th Cong. 2d Sess.

993. certiorari denied, 398 U.S. 959 .............0000... 9 SR en eon ree ite bee T 5. 6

United States v. Nixon, 418 U.S. 683 ..........0ccceee i)

United States v. Pachecho, 489 F. 2d

554. certiorari denied, 421 U.S. 554 wooo. 6

United States v. Pezzino, 3 i Eee 7

United States v. Robertson, 504 F. 2d

289, certiorari denied, 421 U.S. 913.00... 5

United States v. Scully, 546 F. 2d 255,

certiorari denied, 430 U.S. 970 .......................0000 7

United States v. Scibelli, 549 F. 2d 222,

certiorari denied June 7, 1977 (No. 76-

SUITE shih heinintigniisinncavepesenemnmmntinsapatahiadiadiidlannpiniatieiiinaeia 5

United States v. Smith, 519 F. 2d S16... 6

United States v. Spagnuolo,

Se in ED SEND deieabdinsendabeomssbebiinahndiinmenoniniiindidinnndaiaiie 7

United States v. Turner, 528 F. 2d 143,

certiorari denied sub nom. Grimes

V. United I, I I 7

Wisniewski v. United States, 353 U.S.

NS SE COINS OR eS. SEM DIR POLE ES IO RRS OM 7

In the Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-164

EARL LEPPO, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 77-169

REUBEN GOLDSTEIN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)!

is not yet reported.

‘Pet. App.” refers to the Appendix in No. 77-164.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered

on May 27, 1977. Petitions for rehearing were denied

on June 30, 1977. The petitions for a writ of certiorari

were filed on July 29, 1977. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the applications for orders to conduct

electronic surveillance of petitioners sufficiently establish-

ed that other investigative methods were inadequate or

unlikely to succeed.

2. Whether the evidence against petitioner Leppo that

derived from the electronic surveillance should have been

suppressed because the applications for authority to

conduct that surveillance failed to identify him as a

person known to be engaged in the commission of the

offense under investigation.

3. Whether the trial court erred in quashing petitioner

Leppo’s subpoena duces tecum seeking documents

relating to his motion to suppress the testimony derived

from the electronic surveillance.

4. Whether the government withheld favorable

evidence from petitioner Leppo relating to the identifica-

tion of his voice on the tapes.

5. Whether a government witness’ spontaneous re-

ference to petitioner Leppo’s silence upon being given

Miranda warnings denied him due process.

STATUTE INVOLVED

18 U.S.C. 2518 provides in pertinent part:

(1) Each application for an order authorizing * * *

the interception of a wire * * * communication * * *

shall include the following information:

(b) a full and complete statement of the facts

and circumstances relied upon by the applicant,

to justify his belief that an order should be issued,

including * * * (iv) the identity of the person, if

known, committing the offense and whose com-

munications are to be intercepted;

(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 to dangerous;

*+_ *+ * © *

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioner

Leppe was convicted on five counts and petitioner

Goldstein on four counts of using interstate telephone

facilities to carry on unlawful gambling activity, in

violation of 18 U.S.C. 1952. Petitioner Leppo was

sentenced to five concurrent terms of one year’s

imprisonment and fined $5,000. Petitioner Goldstein was

sentenced to four concurrent terms of three years’

imprisonment.’ The court of appeals affirmed (Pet. App.

A).

The evidence established that between June 13 and July

8, 1973, petitioners used interstate telephone facilities to

carry on unlawful gambling activity. Petitioner Goldstein,

operating from Las Vegas, would telephone Martin

Sklaroff, a Miami bookmaker, and give him information

2Co-defendant Martin Sklaroff was sentenced to four

years’ imprisonment and fined $5,000.

4

relating to professional baseball, including the “line” (the

odds on the outcome of the game). Several minutes later

petitioner Leppo, a bookmaker operating in the Boston

area, would call Sklaroff, receive the line information,

which was usually unchanged from the line Sklaroff

received from Goldstein, and then place substantial bets

with Sklaroff. During the 15 days of interception,

Sklaroff accepted bets from petitioner Leppo and others

amounting to more than $500,000.

ARGUMENT

1. Both petitioners contend that the applications for

electronic surveillance did not satisfy the requirements of

18 U.S.C. 2518(1)(c) because they did not explain why

“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.” Scrutiny of the affidavits

(CA App. 21, 53)3, however, fully supports the conclusion

reached by the courts below that the applications

satisfactorily demonstrated that ordinary investigative

methods were not adequate to discover the full scope of

the gambling operation and produce evidence necessary

for a successful prosecution.

The affidavits accompanying the government’s appli-

cations for intercept orders informed the court that

the FBI agent in charge of this case had conducted several

months of investigation into Sklaroff’s illegal gambling

activities and that, through the use of eight informants,

the government had gathered information indicating that

Sklaroff was using several telephone lines in Miami to

“CA App.” refers to Volume | of the appendix in the court of

appeals, a copy of which we are lodging with the Clerk of this Court.

“R.” preceded by a volume number indicates the separately paginated

record on appeal. “Tr.” indicates the trial transcript.

5

conduct a bookmaking business (CA App. 21, 23, 28-30,

33-35, 39-40). By examining telephone company records

the FBI Agent had determined the subscribers of these

numbers (id. at 25). Surveillance of Goldstein and

Sklaroff, among others, had also been employed, and it

was known that each had been previously convicted of

gambling-related offenses (id. at 23, 24, 28, 31-33, 35-39).

The affidavits further stated that this evidence was

insufficient for a prosecution of the suspects for unlawful

gambling activity, since the FBI did not know the content

of the telephone calls between Goldstein and Sklaroff,

and all of the government’s informants were unwilling to

testify due to fear for their personal safety (id. at 23, 40,

42, 71-73). The affidavits also informed the court that it

was the agent’s experience that search warrants were

inadequate because gambling records were often kept on

either “flash” or water soluble paper, and even if not

destroyed they were often sketchy and rarely established

provable connections between all the participants in the

illegal enterprise (id. at 40-41, 71-73).

The requirements of 18 U.S.C. 2518(1)(c) are satisfied

when the application and supporting affidavit, viewed in a

practical and commonsense fashion (S. Rep. No. 1097,

90th Cong., 2d Sess. 101 (1968)), provide a sufficient

factual basis for the issuing judge to conclude that

conventional investigative techniques will be inadequate

to expose the full scope of the criminal activity under

investigation or the identity of the participants therein.

See, e.g., United States v. Kahn, 415 U.S. 143, 153 n. 12;

United States v. Scibelli, 549 F. 2d 222, 226(C.A. 1), cer-

tiorari denied June 7, 1977 (No. 76-1212); United States v.

Hinton, 543 F. 2d 1002, 1011 (C.A. 2); United States v.

Armocida, 515 F. 2d 26, 38 (C.A. 8), certiorari denied,

423 U.S. 858; United States v. Robertson, 504 F. 2d 289,

293 (C.A. 5), certiorari denied, 421 U.S. 913; United

6

States v. Brick, 502 F. 2d 219, 224 (C.A. 8). Moreover,

“[M]erely because a normal investigative technique is

theoretically possible, it does not follow that it is likely”

(S. Rep. No. 1097, supra, at 101). Congress did not intend

“to preclude resort to electronic surveillance until after all

other possible means of investigation have been ex-

hausted by investigative agents.” United States v.

Hinton, supra, 543 F. 2d at 1011. Here, the affidavits

indicate that alternate investigative procedures were either

attempted and found to be ineffective or not tried because

it was the opinion of the agent, based upon his experience

and the particular facts of this case,* that no benefit

would be derived therefrom. They therefore satisfied the

requirements of 18 U.S.C. 2518(1)(c). United States v.

Pachecho, 489 F. 2d 554, 555 (C.A. 5), certiorari denied,

421 U.S. 554; United States v. Smith, 519 F. 2d 516, 518

(C.A. 9); United States v. Kirk, 534 F. 2d 1262, 1274

(C.A. 8), certiorari denied June 27, 1977 (No. 75-7001).

Petitioners argue, however, that the decision in this case

is in conflict with the Ninth Circuit’s decision in United

States v. Kalustian, 529 F. 2d 585. We acknowledge that

the Kalustian panel appears to have interpreted 2518

(1)(c) to require greater specificity in the supporting

affidavits than has been required by other courts. But that

opinion has not been followed in any other circuit’ and

does not even represent the consistent view of the Ninth

‘These included the facts that the subjects of the investigation were

experienced gamblers, who had previously been convicted of federal

gambling offenses, and that the informants with whom they dealt

had spent most of their adult lives as gamblers or bookmakers.

‘See, e.g.. United States v. Scibelli, supra, United States v. Hinton,

supra; United States v. Kirk, supra.

7

Circuit.© Indeed, in United States v. Spagnuolo, 549 F.

2d 705 (C.A. 9), the court recognized that its circuit's

decisions in this area “often lead to results difficult to

harmonize” and tried “to promulgate a manageable

standard by which to judge affidavits under 2518(1)(c).”

549 F. 2d at 709-710. The standard it adopted is that “the

affidavit, read in its entirety, must give a factual basis

sufficient to show that ordinary investigative procedures

have failed or will fail in the particular case at hand * * *.

An affidavit composed solely of conclusions unsupported

by particular facts gives no basis for a determination of

compliance with 2518(1)(c). Kalustian teaches no more

than that.” 549 F. 2d at 710. The Ninth Circuit standard

as promulgated in Spagnuolo was clearly met here.

Accordingly, even assuming that some conflict remains

between the standard used in the Ninth Circuit and

elsewhere’, this case does not directly present that issue.

*For example, in United States vy. Pezzino, 535 F. 2d 483 (C.A. 9),

the Ninth Circuit held that an affidavit not unlike the one here

involved was sufficient. See also United States v. Scully, 546 F. 2d

255 (C.A. 9), certiorari denied, 430 U.S. 970; United States v. Turner,

528 F. 2d 143 (C.A. 9), certiorari denied sub nom. Grimes v.

United States, 423 U.S. 996.

’Since no other court of appeals has followed Kalustian, and since

the Department of Justice has since Kalustian made efforts to

conform its applications to the stringent standards of that case (the

present applications were submitted two years before the Kalustian

decision), we have not believed it justified to ask this Court to review

those cases that we have lost in the Ninth Circuit on the basis of this

issue. Moreover, this Court has, since the time of the Ka/lustian

decision, declined numerous requests to review decisions from the

Ninth Circuit and other circuits alleged to be in conflict with

Kalustian (see. e.g., cases cited supra. notes 5 and 6). and nothing

has happened recently to justify any change in this Court's refusal to

review what is, at heart, an intra-circuit conflict of little continuing

importance. Cf. Wisniewski v. United States, 353 U.S. 901.

8

2. Petitioner Leppo contends that the omission of his

name in the application for electronic surveillance

violated 18 U.S.C. 2518 (1)(biv), which provides that an

intercept application should contain, inter alia, “the

identity of the person, if known, committing the offense

and whose communications are to be intercepted.” He

urges that this alleged omission required suppression of

the intercepted telephone calls as to him, since the

omission is per se indicative of governmental bad faith.

The facts as presented to the district court in a pre-trial

hearing indicate that, although the government knew that

petitioner Leppo was committing gambling offenses, it

had no reason to believe that petitioner was com-

municating with Sklaroff over the target telephone lines.

It was discovered only after the interceptions that

petitioner contacted Sklaroff from pay telephones,

charging the calls to Michele Fortune and reimbursing her

later (Tr. 142, 145, 147-149). Although Fortune was also

under investigation, there was no evidence at the time to

connect her with petitioner (Tr. 23-25). The district court

therefore properly denied petitioner’s motion to suppress,

ruling that the government did not have probable cause to

believe Leppo would be overheard on the telephones

being monitored (Tr. 50).

In any event, even assuming arguendo (as did the court

of appeals, Pet. App. 12), that petitioner Leppo should

have been identified in the applications, this Court's

decision last term in United States v. Donovan, 429 U.S.

413, holds that the omission does not justify suppression

of his intercepted conversations. The Court in Donovan

found it unnecessary to consider whether suppression

might be appropriate if “Government agents knowingly

failed to identify [known participants] for the purpose of

keeping relevant information from the District Court that

9

might have prompted the court to conclude that probable

cause was lacking” (429 U.S. at 436, n. 23). Although

petitioner Leppo argues that this case presents that issue

(Pet. No. 77-164, pp. 6-7), the record does not support

any such assertion. Indeed, petitioner hiniself claims only

that the omission was deliberately made “[f]or the sole

purpose of expediting [the] investigation” (id. at 7), not

that the identification of Leppo would have been in any

way relevant to the district court’s determination of

probable cause.

3. Petitioner Leppo further contends (Pet. No. 77-164,

p. 7) that the district court erred in quashing his subpoena

duces tecum for production of FBI investigatory docu-

ments related to his motion to suppress evidence ob-

tained through the interception. The documents sought

by petitioner consisted of two telegrams and one letter

sent to the Boston FBI office by the Miami FBI office

between June 15 and July 12, 1973. The first communica-

tion instructed the FBI to discontinue surveillance of

petitioner because the first intercept had been terminated.

The other documents requested identification of a voice,

thought to be petitioner's, intercepted in a June 13th

conversation. Petitioner originally requested these docu-

ments in a discovery motion. After failing to obtain

them by that means, he subpoenaed the agent in charge of

the investigation.

The district court quashed the subpoena on the ground

that petitioner was improperly attempting to use Rule 17,

Fed. R. Crim. P., to circumvent the limitations imposed by

Rule 16 on discovery of materials in the possession of the

government. See Bowman Dairy Co. v. United States, 341

U.S. 214, 220; United States v. Nixon, 418 U.S. 683, 698-

700; United States v. Marcello, 423 F. 2d 993, 1006 (C.A.

5), certiorari denied, 398 U.S. 959. Whatever the merits of

10

that ruling, petitioner received copies of the documents at

trial (Tr. 858-861, 879-880)* and used them to support his

suppression claim at a post-trial hearing, where they were

considered by the district court in ruling on petitioner's

motion (Tr. 904). Thus, even if the subpoena should not

have been quashed, petitioner was not harmed, since he

received and used the material he sought.

4. Petitioner Leppo argues (Pet. No. 77-164, p. 7) that

the district court erred in denying his pre-trial motion for

identification of two persons who had listened to the tapes

and had been unable to identify petitioner’s voice. The

district court held that the government would be required

to identify only any persons who had told the FBI that

the voice on the tapes was not petitioner Leppo’s—not

persons who were simply unable to express any opinion

concerning the identity of the speaker.

Petitioner Leppo’s motion for identification itself

reveals that he had already been told the identity of

one of the individuals, Sidney Covich (III R. 670). At

trial, the identification of Covich was confirmed, and

the other person who could not recognize petitioner

Leppo’s voice was identified as FBI Agent John Jansen

(Tr. 360). Petitioner Leppo brought the inability of both

Covich and Jansen to identify Leppo’s voice to the

attention of the jury through cross examination (Tr. 451,

753)’ and argued to the jury that this inability cast doubt

“The documents were apparently made available to the trial judge,

who, after in camera inspection, provided petitioner with the

relevant items.

*Although the court indicated that it would permit Covich to testify

directly to his inability to identify Leppo’s voice (Tr. 369), counsel

elected to bring this out by cross-examining an FBI agent (Tr. 753).

Agent Jansen was himself cross-examined about his failure to identify

the voice (Tr. 451).

on the other identification evidence (Tr. 996). According-

ly, even if petitioner Leppo was entitled to the disclosure

of persons who could not identify his voice on the tapes

(but cf. Brady v. Maryland, 373 U.S. 83; Moore v.

Illinois, 408 U.S. 786, 794), he received and used that

information. Petitioner does not suggest that he was in

any way injured by the timing of the disclosure and noth-

ing in the record suggests such injury. There is, in any

event, no obligation to disclose even exculpatory infor-

mation in advance of trial, United States v. Agurs, 427

U.S. 97, 108.

5. Finally, petitioner Leppo contends (Pet. No. 77-164,

pp. 7-8) that a witness’ passing reference to Leppo’s si-

lence upon being given Miranda warnings violated his

Fifth Amendment rights.

While the prosecution was laying the foundation for the

introduction of evidence seized from Leppo, a govern-

ment agent testified that: “] executed a search warrant to

his person, and he was advised of his rights according to

the Advice of Rights Form” (Tr. 408). Defense counsel for

codefedant Sklaroff objected, stating “The Government

has not provided us with any statements of any witnesses

and therefore | would object to this line of questioning”

(Tr. 409). The court overruled the objection and the

witness, apparently speaking to defense counsel, stated

spontaneously that petitioner “declined to make any

statement.” /bid. The court immediately instructed the

jury that petitioner had no duty to come forward with any

evidence or make any statement and that they should

disregard the agent’s response (Tr. 409-410), and it

repeated this instruction, without specific reference to the

incident, in its final charge (Tr. 1058).

It is clear that the prosecution did not plan to reveal

petitioner's silence, much less to ask the jury to draw any

conclusion from it. Cf. Doyle v. Ohio, 426 U.S. 610.

12

Instead, the witness’ spontaneous response to a defense

objection was simply an effort by the witness to explain to

counsel what had transpired. Accordingly, this testimony

did not violate petitioner Leppo’s Fifth Amendment

rights. United States v. Haro- Portillo, 531 F. 2d 962, 963-

964 (C.A. 9). Moreover, considering the weight of the

evidence against petitioner, the irrelevance of his silence

when he was searched to any issue in dispute at trial, and

the court's strong curative instructions. any possible error

was harmless beyond a reasonable doubt. See Egger v.

United States, 509 F. 2d 745, 747 (C.A. 7), certiorari

denied, 423 U.S. 842.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

WapbeE H. McCree, Jr..

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JosePu S. Davies, JR..,

SARA CRISCITELLI,

Attorneys.

DECEMBER 1977.

DOJ-1977-12