Opposition — Schepici v. United States

| Troe Court, U. $,

FILED }

} Nov 261977

No. 77-166 ;

MICHAEL RODAK, JR,, CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1977

ANDREW SCHEPICI, JOSEPH MASTRULLO,

JOHN BRADANESE, and

CHARLES PALAZZOLO, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCree, Jr.,

Solicitor General, —

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

SARA CRISCITELLI,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the United States

OcTOBER TERM, 1977

No. 77-166

ANDREW SCHEPICI, JOSEPH MASTRULLO,

JOHN BRADANESE, and

CHARLES PALAZZOLO, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

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

reported at 560 F. 2d 448.

JURISDICTION

The judgment of the court of appeals was entered on

June 30, 1977. The petition for a writ of certiorari was

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

invoked under 28 U.S.C. 12541).

QUESTION PRESENTED

Whether the applications for orders authorizing

electronic surveillance sufficiently established that other

investigative methods were inadequate.

(1)

2

STATEMENT

Following a non-jury trial in the United States District

Court for the District of Massachusetts, petitioners were

convicted of conducting an illegal gambling business in

violation of 18 U.S.C. 1955 and 2.' The court of appeals

affirmed (Pet. App. A).

The evidence at trial consisted of a lengthy stipulation

of facts and a transcript of telephone calls intercepted

pursuant to judicially authorized electronic surveillance

conducted on telephone lines used by petitioners

Mastrullo, Bradanese, and Schepici and co-defendants

Santarpio and Bruun.? This evidence demonstrated that

petitioners together conducted a gambling enterprise

doing business in excess of $2,000 per day (see, e.g.,

Stipulation II, IV, V, and VIII). The primary bookmaking

business was owned and managed by co-defendants

Hurley and Santarpio (Stipulation |, Il). Petitioners

Schepici, Palazzolo, and Mastrullo conducted their own

operations, in the course of which they exchanged

information with and made and accepted wagers from

each other and their co-defendants (Stipulation IV, VI,

VIII). Petitioner Bradanese was an employee of Mastrullo

and assisted him in the enterprise (Stipulation IX).

‘Petitioners received the following sentences: Schepici. two years’

imprisonment, of which 18 months was suspended, and two years of

probation during which he must pay a fine of $5.000: Palazzolo. two

years’ imprisonment. of which 21 months was suspended. and 2i

months of probation during which he must pay a fine of $5,000:

Mastrullo. one year’s imprisonment. which was suspended. and two

years of probation during which he must pay a fine of $3.000:

Bradanese. one vear’s imprisonment. which was suspended. and two

years of probation. during which he must pay a fine of $500 (C.A.

App. 161B-161E). “C.A. 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.

2There were three sets of monitored conversations: The first

interception. over telephone lines used by Santarpio and Bruun. was

pursuant to Order No. 74-303-G and was conducted trom December

19. 1974 through January 5. 1975 (Stipulation A. II. III). The other

3

Petitioners’ sole contention (Pet. 5-12) is that the ap-

plication for electronic surveillance did not show in

sufficient detail that “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,” as

required by 18 U.S.C. 2518(1)(c). The supporting

affidavits, however, belie this contention.

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

if the application and its supporting affidavit, viewed in a

practical and common sense fashion (S. Rep. No. 1097,

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

factual basis for the issuing authority to conclude that

traditional investigative techniques will be inadequate to

expose the full scope of the criminal activity under

investigation or the identity of the participants therein.

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

United States v. Sklaroff, 552 F. 2d 1156, 1159 (C.A. 5),

petitions for certiorari pending, Nos. 77-164 and 77-169;

United States v. Turner, 528 F. 2d 143, 152 (C.A. 9),

certiorari denied sub nom. Grimes v. United States, 423

U.S. 996; United States v. Robertson, 504 F. 2d 289, 293

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

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

Scibelli, 549 F. 2d 222, 226 (C.A. 1), certiorari denied,

June 6, 1977 (No. 76-1212); United States v. Armocida,

515 F. 2d 29, 38 (C.A. 3), certiorari denied sub nom.

Gazal v. United States, 423 U.S. 858. The applications in

the present case provide such a factual basis.

interceptions were pursuant to Order No. 75-19-M and were

conducted from January 18. 1975. through February 3. 1975. over

telephone lines used by Mastrullo and Bradanese. and from January

21. 1975. through February 3. 1975. over lines used by Schepici

(Stipulation A. VIII. IX. IV). Palazzolo was heard talking to Schepici

(Stipulation V1).

4

In the affidavit accompanying the initial application,

F.B.1. Agent Daly detaiied the facts and circumstances

surrounding the offense and the targets’ participation.?

The affidavit showed (C.A. App. 27-44) that the gov-

ernment’s inforination up to that point derived from three

months of visual surveillance, the use of three reliable

informants. evidence seized (pursuant to a warrant) by

state officers that implicated other members of the

conspiracy, and state records that showed that at least five

of the persons named by the informants had previously

been convicted of gambling-related offenses. This

cumulation of evidence, however. was not sufficient to

insure that a violation of 18 U.S.C. 1955 could be proved

at a trial. since the informants refused to testify out of

fear for their personal safety (C.A. App. 42). While the

visual surveillance supplied probable cause to believe that

certain individuals were implicated, that surveillance

could not provide evidence as to the bookmaking

activities because they were carried on inside private

homes (id. at 41). Moreover, in Agent Daly’s experience,

the use of search warrants would also be ineffective

because gambling records often were sketchy, contained

code names, and rarely established provable connections

between all the participants in the illegal enterprise (id. at

41-42)—indeed, his experience was borne out in this

particular case by the fact that after the seizure of

evidence by state authorities only one individual was

convicted (id. at 38-39). Finally, drawing on his four

‘The initial application (C.A. App. 21) resulted in an order dated

December 4. 1974. which was not implemented (Pet. App. 17). The

affidavit supporting that order (C.A. App. 27-44) was incorporated

by reference into the application for the December 19. 1974 order

(C.A. App. 61). and both of the earlier affidavits were incorporated

by reference into the final application (C.A. App. 89).

—

5

years’ experience and involvement in over 100 gambling

investigations, Agent Daly concluded that, because most

of the activity occurred in private homes and by telephone,

continued surveillance and other normal investigative

techniques would be unsuccessful (C.A. App. 27, 41).

In the succeeding affidavits (C.A. App. 58-66, 87-99)

Daly pointed out that in his experience persons engaged in

illegal gambling frequently moved their base of operation

in order to avoid detection, and that at least two suspects

in this investigation had done so before. Daly also noted

that the prior interception had revealed the involvement

of other persons whose identities were as yet unknown to

the government. and that continued electronic sur-

veillance was necessary to establish the identities of these

persons.

In sum, the facts detailed in the affidavits showed

that alternate investigative procedures were first at-

tempted and found to be ineffective. As the court of

appeals correctly noted (Pet. App. 20-21 n. 4), the

government was not required to offer the informants

immunity or protective custody as an incentive for them

to testify. Nor was it required to explain its failure to

utilize other possible procedures. “[T]he purpose of the

requirement in section 2518(1)(c) is not to foreclose

electronic surveillance until every other imaginable

method of investigation has been unsuccessfully attempt-

ed.” United States v. Pacheco, 489 F. 2d 554, 565 (C.A.

5), certiorari denied, 421 U.S. 909. See also 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). Here, normal investigatory

methods were followed and found to be insufficient.

Others were not attempted because it was the opinion of

the agent, based on considerable experience, that no

benefit would be derived therefrom. The statutory

requirements were thus satisfied.

6

Petitioners allege, however, that the decision in this

case conflicts with the Ninth Circuit's decisions in United

States v. Kalustian, 529 F. 2d 585, and United States v.

Spagnuolo, 549 F. 2d 705. Petitioners recognize (Pet. 10)

that the decision below is consistent with the generally

prevailing interpretation of 18 U.S.C. 2518(1)(c). We

acknowledge that the Kalustian panel in the Ninth Circuit

appears to have interpreted that Section to require

somewhat greater specificity in the supporting affidavits

than has been required by other courts. But that opinion

does not represent the consistent view of that circuit,* nor

does Spagnuolo require even greater specificity than

Kalustian, as petitioners suggest (Pet. 11). Instead, the

court in Spagnuolo 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 section

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

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

the Ninth Circuit held that an affidavit not unlike 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,

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

States, 423 U.S. 996.

;

assuming that some conflict remains between the standard

used in the Ninth Circuit and elsewhere,’ this case does

not directly present that issue.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapDE H. McCRrEE, JR..,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

SARA CRISCITELLI,

Attorneys.

NOVEMBER 1977.

‘Since no other court of appeals has followed Ka/ustian, and since

the Department of Justice has since Aalustian made efforts to

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

present applications were submitted about a vear before the Aalustian

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 Kalustian

decision. declined numerous requests to review decisions from the

Ninth Circuit and other circuits alleged to be in conflict with

Kalustian (see. e.g.. United States \. Scibelli. 549 F. 2d 222 (C.A. 1).

certiorari denied, June 6. 1977 (No. 76-1212): United States v. Kirk.

supra. United States v. Scully. supra. 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 littl continuing

importance. Cf. Wisniewski \. United States. 353 U.S. 901.

DOJ-1977-11