Petition — Variano v. United States

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ae Supreme Court, U.S, -

“AUG 9R 1077

MICHAEL RODAK, JR., CLERK

In THE

Supreme Court of the United States

October Term, 1977.

No 687° 315

PETER VARIANO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

-_—— ——

_—- —-

Irvine ANOLIK

Attorney for Petitioner

225 Broadway

New York, N. Y. 10007

(212) 732-3050

<—— + awe se

TABLE OF CONTENTS.

Petition for Writ of Certiorari to

the United States Court of

Appeals for the Second

Circuit . ° ° °

Opinion Below . . . °

Jurisdiction . ° ° °

Questions Presented ° °

Statutes Involved . ° °

Background of the Case ° .

Point I. The dismissal of the con-

spiracy count precluded the

submission of the substantive

count (18 U.S.C. §1955) to

the jury since §1955 itself

necessarily requires joint or

concerted action by at least

five persons. A fortiori the

Court should not have submit-

ted it . . ° . °

Page

qo FO WwW NY ND F&F

ii.

Page

Point II. There were only four

defendants on trial, although

a number of other conspira-

tors were alluded to during

the trial. Since the trial

judge didn't marshall the

evidence and did not instruct

the jury on the effect of his

dismissal of the conspiracy

count, coupled with the fact

that he did not delineate

which five or more persons

were linked with Variano, it

is obvious that the jurors

might well have been divided

on the issue of which group

of five persons was involved

in the crime, and that the

verdict was therefore not

unanimous ° a . , : 12

iii.

Page

Point III. The petitioner was

prejudiced when the witness

Millow, called by the Gov-

ernment, asserted his Fifth

Amendment privilege against

self-incrimination in the

presence of the jury; an

occurrence the Government

could well have anticipated . 16

Point IV. It was ipso facto pre-

judicial to have joined

these defendants and peti-

tioner in the same trial,

especially in view of the

fact that the court found

that more than one conspir-

acy had been presented by

the evidence . . Fe ° - 19

iv.

Page

Point V. Tapes of electronic

surveillance were not timely

sealed, nor were they pro-

perly minimized . ° ° . 20

A. In connection with the

electronic surveillance,

error was committed by a

voice identification

hearing in the presence

of the jury during which

the prosecutor in

essence vouched that the

contested voice was that

of petitioner . . . 22

Conclusion. The petition for

certiorari should be

granted. ° . ° ° ° 23

Page

Opinion of the United States

Court of Appeals for the

Second Circuit ° ° ° ° 24

Order on Petition for Rehearing . 37

Order of the Supreme Court of

the United States Extending

Time to File Petition for

Writ of Certiorari ° ° ° 40

Order of Affirmance ° ° . ° 42

TABLE OF CASES.

Alderman v. United States, 394

U. 8S. 165 ; ; ° , ° 21

Brady v. Maryland, 373 U. S. 83 ° 18

Bruton v. United States, 391 U. S.

123. —=Ct«y ° ° ° ° ° ° 17

Delli Paoli v. United States, 352

U. Be 232 . ° . . 2 17

vi.

Fletcher v. United States, 332 F.

2d 724 (1964, D. C. Cir.)

Hyde v. United States, 225 U. S.

347 . : ° ; ° °

Kotteakos v. United States, 328

U. S. 750, 773-74 ° °

Krulewitch v. United States, 336

U. S. 440, 457 ° , °

Namet v. United States, 373 U. S.

179, 186 . ; . ° °

People v. Nicoletti, 35 N. Y. 2d

249 . ° ; ° . °

People v. Pollock, 21 N. Y. 2d

209 . ° ° ° ; °

People v. Sher, 38 N. Y. 2d 600

Street v. New York, 394 U. S. 576,

Stromberg v. California, 283 U. S.

359, 367-68 (1930) . .

Page

-ll,

vii.

Page

United N. Y. & N. J. Sandy Hook

Pilots Assn. v. Halecki, 358

U. S. 613, 619 (1959) ° ‘ 16

United States v. Bertolotti, 529

F. 24 149 (2 Cir. 1975) . ‘ 11

United States v. Driscoll, 449

F. 2d 894, 898 (lst Cir.

1971) ‘ ‘ ‘ ° ° ‘ 16

United States v. Gigante, 2 Cir.

1976, 538 F. 2d 502 . ‘ ‘ 21

United States v. Guterma, 281 F.

2d 742, 747 (2 Cir. 1960) ° 15

United States v. Maloney, 2 Cir.,

262 F. 2d 535 at 537 (2 Cir.

1959) ‘ ° ° ‘ ° .17, 18

United States v. Natelli, supra ° 15

Yates v. United States, 354 U. S.

298, 312 (1957) . ‘ ° ‘ 14

viii.

U.S.C. §371 ‘ °

U.S.C. §1955 ° o 2,

U.S.C. §§2510-2520 .

U.S.C. §1254 (i) °

S. Sup. Ct. Rule 22(2)

S. Constitution:

Fourth Amendment .

Fifth Amendment .

Sixth Amendment .

4, 6,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

No. °

-—-— 98 == we wee e ee we we we wee ew we eo = ».4

PETER VARIANO,

Petittoner,

ate

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

Petitioner, Peter Variano, respect-

fully prays that this Court grant a Writ

of Certiorari to the United States Court

of Appeals for the Second Circuit to re-

view that Tribunal's determination of

March 14, 1977, whereby it affirmed a

judgment of the United States District

Court for the Southern District of New

York convicting the petitioner and others

of violating 18 U.S.C. 1955 (gambling)

after trial before Carter, D.J., and a

jury.

Permission of an Associate Justice

of the Supreme Court was obtained allow-

ing petitioner until August 28, 1977, to

file this Petition.

OPINION BELOW.

The opinion of the Court of Appeals,

2nd Circuit, is reproduced in this Peti-

tion as an Appendix.

JURISDICTION. .

The jurisdiction of this Court is

predicated upon 28 U.S.C. §1254(i) and

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

for rehearing was denied on June 29,

1977, but Associate Justice Thurgood

Marshall signed an order extending peti-

tioner's time to file this Petition until

August 28, 1977.

QUESTIONS PRESENTED.

1. Whether the dismissal of the Con-

spiracy Count by the trial judge after the

Government's case, precluded the submis-

sion of the substantive count under 18

U.S.C. §1955 which rests on a conspiracy

theory since it requires five or more

persons to be acting in concert to con-

stitute a violation thereof?

A. This raises the adjunct question

as to whether the submission of the 18

U.S.C. §1955 count constituted double

jeopardy and collateral estoppel.

2. Whether prejudicial error was

perpetrated when the prosecution's wit-

ness, Francis Millow, was permitted to

invoke the privilege against self incrim-

ination in the presence of the jury?

3. Whether petitioner was denied a

fair trial by virtue of the fact that the

trial judge never marshalled the evi-

dence and moreover never informed the

jurors which "five or more" persons could

be involved with Variano to constitute a

violation of 18 U.S.C. §1955?

A. This presents the concomitant

problem of whether the jurors were unan-

imous in their verdict since they could

have divided on which group of "five or

more persons” were allegedly involved

with Variano to violate §1955.

4. Whether petitioner was deprived

of a fair trial by virtue of the trial

court's refusal to dismiss the indictment

or at least suppress the electronic sur-

veillance because there was no minimiza-

tion of the interception by such elec-

tronic surveillance?

5. Whether the error set forth in

Question 4, supra, was exacerbated by an

apparent failure to properly seal the

tapes?

6. Whether a mass conspiracy trial

such as this ipso facto prejudiced the

petitioner since it precluded a fair

trial because of the spill over effect

of the prejudice and the impossibility

of the jurors to properly segregate the

facts as to one defendant from the

others?

7. Whether the petitioner was de-

prived of a fair trial by the omission

of the trial judge to inform the venire-

men what the effect of his dismissal of

the conspiracy count was with respect to

their consideration of evidence admitted

only on a conspiracy theory, especially

since more than one conspiracy was held

to have been proved by that judge?

- .) ee

A. Even assuming evidence could be

adduced on a conspiracy theory because

it was charged in the indictment, could

the jury consider evidence dealing with

a conspiracy never charged in the indict-

ment which in fact occurred herein?

STATUTES INVOLVED.

The Fourth, Fifth, and Sixth Amend-

ments of the U. S. Constitution are in-

volved, as 18 U.S.C. §§1955 and 2510-

2520, as well as 371.

BACKGROUND OF THE CASE.

Petitioner and seven others were

initially charged in a two-count true

bill, dated April 14, 1976, with conduct-

ing an illegal gambling business in vio-

lation of 18 U.S.C. §1955 and conspiracy

to do so under 18 U.S.C. §371 (Counts II

and I, resp.).

Motions to suppress certain tapes of

electronic surveillance were made in ad-

vance of trial, but Judge Carter denied

them. Four of the defendants pleaded

guilty, Evangelista reserving his right

of appeal. Motions to suppress were made

and denied with respect to certain

searches and seizures as well.

The government sought to prove the

existence of numbers, sports and horse-

racing gambling operations in Westches-

ter and Bronx Counties in New York begin- |

ning in 1968 and continuing until 1975.

It is the law of the case that more

than one conspiracy was presented by the

government, but since only one was

charged in the indictment, the trial

Court dismissed the conspiracy charge

altogether.

The prosecution adduced evidence

that customers placed bets with "runners"

to tn cree

who delivered them to "Pick-up" men, who

in turn brought the bets into the "bank,"

the so-called hub of the operation.

Bearing in mind that the conspiracy

count was dismissed and that it was

necessary that "five or more persons"

are involved in the substantive charge

which alone was the subject of the con-

viction (§1955 of title 18 U.S.C.), it

is important to note that the evidence

against Variano, the petitioner herein,

came from the lips of Angelina David aad

to a lesser extent from an agent, Douglas

Wilhelmi.

Only four persons were on trial, al-

though a number of others were mentioned

during the trial. There is no way of de-

termining which "five or more persons"

the jury relied upon so far as Variano

is concerned, since the trial judge never

instructed the jurors on this important

issue, nor did it marshall the evidence.

Our position is that once the con-

spiracy charge was dismissed, the charges

under §1955 should have been dismissed

at least against petitioner, since there

was insufficient evidence as a matter of

law linking him with "five" persons, let

alone more than five.

During the government's case, the

witness Francis Millow was counted upon

to clinch the case against Variano and

others. Millow however, had indicated

that he would not testify and would claim

his Fifth Amendment privilege against

self incrimination if called. The Gov-

ernment did call him and he did take the

"Pifth”" in the presence of the jury and

in fact was then held in contempt by the

trial judge, thus creating egregious

error. Manifestly, no evidence against

petitioner was adduced from this witness,

thus rendering the case insufficient.

The trial prosecutor created addi-

tional error aided by the Court when he

was permitted to conduct a voice identi-

fication hearing in the presence of the

jurors during which he in effect indi-

cated that the questioned voice was in

fact that of the petitioner.

POINT I.

THE DISMISSAL OF THE CONSPIRACY COUNT PRE-

CLUDED THE SUBMISSION OF THE SUB-

STANTIVE COUNT (18 U.S.C. §1955) TO

THE JURY SINCE §1955 ITSELF NECES-

SARILY REQUIRES JOINT OR CONCERTED

ACTION BY AT LEAST FIVE PERSONS.

A FORTIORI THE COURT SHOULD NOT HAVE

SUBMITTED IT.

We realize that this Court has ac-

cess to all of the proceedings and briefs

and papers filed with the courts below.

We wish to emphasize that a perusal of

the trial transcript will reveal that the

trial judge found that the conspiracy

charge could not and should not be sub-

mitted because more than one conspiracy

was presented by the Government, al-

though only one was charged in the in-

dictment.

. Since §1955 necessarily involved

five or more persons, we maintain that

the substantive charge too had to be

dismissed.

This Court held in Kotteakos v.

United States, 328 U. S. 750, 773-74 mi-

tiple conspiracies could not be presented

to a jury, at least not where only one

was charged in the indictment. See,

United States v. Bertolottt, 529 F. 24

149 (2 Cir. 1975).

ne ete

POINT II.

THERE WERE ONLY FOUR DEFENDANTS ON TRIAL,

ALTHOUGH A NUMBER OF OTHER CONSPIR-

ATORS WERE ALLUDED TO DURING THE

TRIAL. SINCE THE TRIAL JUDGE DIDN'T

MARSHALL THE EVIDENCE AND DID NOT

INSTRUCT THE JURY ON THE EFFECT OF

HIS DISMISSAL OF THE CONSPIRACY

COUNT, COUPLED WITH THE FACT THAT

HE DID NOT DELINEATE WHICH FIVE OR

See also, Fletcher v. United States,

332 F. 2d 724 (1964, D. C. Cir.), and

People v. Pollock, 21 N. Y. 2d 209.

POINT IV.

IT WAS IPOS FACTO PREJUDICIAL TO HAVE

JOINED THESE DEFENDANTS AND PETI-

TIONER IN THE SAME TRIAL, ESPE-

CIALLY IN VIEW OF THE FACT THAT THE

COURT FOUND THAT MORE THAN ONE CON-

SPIRACY HAD BEEN PRESENTED BY THE

EVIDENCE.

The trial Court denied a severance.

The mass conspiracy trial has been con-.

demned and it is patent that a fair trial

is virtually impossible.

It may be argued that since only

four defendants among many conspirators

actually went to trial here, the "mass"

trial was not as pronounced as in some

other cases.

But this Court must bear in mind

that there was more than one conspiracy

presented herein and thus severances

should have been granted or the evidence

should more carefully have been explained

and the Court should have marshalled it

for the jury (see, Krulewttch v. United

States, 336 U. S. 440, 457; Hyde v.

United States, 225 U. S. 347, and Kottea-

kos v. United States, 328 U. S. 750,

773).

POINT V.

TAPES OF ELECTRONIC SURVEILLANCE WERE NOT

TIMELY SEALED, NOR WERE THEY PROPER-

LY MINIMIZED.

The law is clear that if the Govern-

ment elects to utilize electronic sur-

veillance, it must apply etrictissimt

juris standards in observing the statutes

under which such surveillance is conduc-

ted.

at nn a er en el

Le He CPT = Ae OO

In the case at bar, it is not dis-

puted that there was no minimization

since the tape machine was never turned

off during the period of surveillance,

and there was a delay in sealing.

It is manifest that in 18 U.S.C.

2510-2520 that prompt sealing is re-

quired and that minimization if mandated

as well.

See, United States v. Gigante, 2

Cir. 1976, 538 F. 2d 502; People v. Sher,

38 N. Y. 2d 600; and Pecple v. Nicoletti,

35 N. Y. 2d 249. Cf. Alderman v. United

States, 394 U. S. 165.

-A-

IN CONNECTION WITH THE ELECTRONIC SUR-

VEILLANCE, ERROR WAS COMMITTED BY A

VOICE IDENTIFICATION HEARING IN THE

PRESENCE OF THE JURY DURING WHICH

THE PROSECUTOR IN ESSENCE VOUCHED

THAT THE CONTESTED VOICE WAS THAT

OF PETITIONER.

During the trial, an issue had to

be resolved as to whether a voice on a

tape was that of petitioner. This was

ft.

during Agent Wilhelmi's testimony at a

voice identification hearing conducted

in the presence of the jury. Conducting

this hearing in the jury's presence was

error enough, since if the Court ruled

it out, the veniremen would have heard

much about it already. Be that as it

may, the prosecutor told the court and

jury that he expected the Agent to iden-

tify the disputed voice as that of Vari-

ano (see Trial Tr. 1154-1167).

CONCLUSION.

THE PETITION FOR CERTIORARI SHOULD BE

GRANTED.

Respectfully submitted,

IRVING ANOLIK,

Attorney for Petitioner.

OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT.

Nos. 431, 364, 418

432, 472, ,473—September Term, 1976.

(Argued November 29, 1976 Decided March 14, 1977.)

Docket Nos. 76-1335, 76-1358, 76-1359,

76.1360, 76-1354, 76-1442

SS oe

Unirep States or AMERICA,

Appellee,

—against—

Peter Variano, Henry Bucci, ANTHONY RussiLLo, MICHAEL

DeMicHar.Ls, JoHN Monaco, and MicnaeL MvANGELISTA,

Defendants-A ppellants.

Before:

Moorr, ANpFRSoN and FEtnseEna,

Circuit Judges.

—+or

Appeal from judgments, entered in the United States

District Court for the Southern District of New York,

Honorable Robert L. Carter, Judge, convicting appellants

of conducting an illegal gambling business in violation of

18 U.S.C. § 1955. ares

All convictions affirmed.

ment of Justice, New York, N.Y. (Robert

| Mrionart D. Aszuca, Special Attorney, Depart-

B. Fiske, Jr., United States Attorney for

the Southern District of New York, Audrey

Strauss, Assistant United States Attorney,

of Counsel), for Appellee.

Irvine ANouix, Esq., New York, New York, for

Defendant-A ppellant Variano.

JERALD RosexTuat, Esq., New York, New York

(Irving Katcher, of Counsel), for Defen-

dant-Appellant Bucci.

B. Atan Semuer, Esq., New York, New York,

for Defendant-Appellant Russillo.

Epwarp Panzer, Esq., New York, New York

(Julia P. Heit, of Counsel), for Defendant-

Appellant DeMichaels.

ARMENDE Lesser, Esq., New York, New York,

for Defendant-Appellant Monaco.

Harotp Dusuirer, Esq., New York, New York

(Paul A. Victor, of Counsel), for Defen-

dant-Appellant Evangelista.

Moore, Circuit Judge:

Peter Variano, Henry Bucci, Anthony Russillo, Michael

DeMichaels, John Monaco and Michael Evangelista appeal

from judgments convicting them of conducting an illegal

gambling business in violation of 18 U.S.C. §1955.

' Appellants and seven other defendants were initially

charged in a two-count indictment, dated April 14, 1976,

with conducting an illegal gambling business in violation

of 18 U.S.C. $1955 (Count IT) (“the substantive count’)

and with conspiring to conduct an illegal gambling busi-

ness in violation of 18 U.S.C. §371 (Count I) (“the con-

2296

spiracy count”). On April 26, 1976, an evidentiary hearing

was held before Judge Carter of the Southern District of

New York, to resolve various motions to suppress made

by several of the defendants. Judge Carter denied all of

the motions. On April 27 appellant Evangelista and three

of the other defendants pleaded guilty to the substantive

count of the indictment. Evangelista reserved his right

to appeal the denial of his motion to suppress.

The trial before Judge Carter and a jury commenced

on that same day. At the close of the Government’s case,

Judge Carter dismissed the conspiracy count on the

ground that there was a variance between the Govern-

ment’s theory and its proof: the Government’s evidence

made out a case of multiple conspiracies, rather than the

single conspiracy alleged in the indictment. The defen-

dants had also moved to dismiss the substantive count,

and they now asserted that this dismissal was required

by Judge Carter’s dismissal of the conspiracy count. Judge

Carter denied the motion.

None of the defendants offered any evidence. The sub-

stantive count went to the jury. On May 6 the jury re-

turned guilty verdicts as to appellants Variano, Bucci,

RuSsillo, DeMichaels, and Monaco, and one of the other

defendants. Judge Carter entered judgments of convic-

tion as to Evangelista on June 8, and as to the other five

appellants on July 8.

Each of the appellants raises several issues on appeal-—

the “spillover” of evidence from the dismissed conspiracy

count to the remaining substantive count, a variance in

the proof as to the substantive count, insufficiency of the

evidence as to certain of the appellants, prejudice result-

ing from a Government witness’ invocation of the Fifth

Amendment and his citation for contempt in front of the

jury, an illegal search and seizure, improprieties in wire-

2297

tap procedure, and prejudicial remarks by a Government

witness and by the prosecutor.

We have considered each of the issues raised very care-

fully and discuss several of them below. We find all of the

issues to be without merit and we affirm the convictions.

Facts

The Government’s evidence established the existence of

numbers, sports and horse gambling operations in the

Bronx and Westchester beginning in 1968 and continuing

until 1975. The cast of characters varied, but the pyra-

midal set-up remained essentially the same: Customers

placed their bets with “runners” in the local candy store,

soda shop, or bar. “Pick up” men collected the wagers for

the runners and brought them into the “bank”—the nerve

center of the operation. The wagers were in envelopes

bearing the runner’s code on the outside. Each runner

was referred to as an “account”. At the hank, the wagers

were tallied and when the results of-the numbers, sports

or horse events in question came in, the “hits’’ were also

tallied. A “tape” was then made recording each account’s

total tal!y of wagers and hits. The bank determined how

much money each account owed its customers, and placed

this amount in an envelope. The envelopes were delivered

to the individual runners who then paid off their winning

customers, after deducting their own commissions.

Michael Yannicelli' was the “bank” of the operation here

in question from 1968 until 1972. Michael Calise* testified

1 Yanicelli pleaded guilty to both counts of the indictment on April 27,

1976. He has not appealed.

Michael Calise was initially indicted for the crimes of promoting

gambling in the first degree and possession of gambling records in the

first degree. He then jumped bail but was later apprehended. He agreed

to cooperate with the Government after being permitted to plead guilty

to a misdemeanor and receiving a suspended sentence.

2298

that he worked as a “runner” and as a “pick-up man” for

the operation during this period. He stated that appellant

DeMichaels was one of Yannicelli’s accounts. DeMichaels

was what was known as a “half-sheet dealer.” Rather than

taking bets from customers himself, he had several runners

working for him. In each week that he came out ahead—

i.e., the wagers placed with his runners were greater than

his customers’ hits—he split his profits with Yannicelli.

Conversely, when hits exceeded wagers, Yannicelli paid the

customers and recoveréd the amount paid from DeMichaels

the next time he came out ahead. Calise stated that Francis

J. Millow* was one of DeMichaels’ runners.

The evidence showed that DeMichaels and Millow con-

tinued collecting wagers after 1972, but that in this later

period, their accounts were with appellant Variano, rather

than with Yannicelli. Variano’s operation was broader

than Yannicelli’s—it encompassed gambling on football

games, as well as on numbers and horses. Variano’s one-

time girlfriend, Angelina David, testified that, at Variano’s

request, she did the bookkeeping for the football end of

the operation. David stated that she accompanied Variano

to various motels where he met his pick-up men and col-

lected their wagers and money. Each Saturday Variano

gave David bags containing the money and wagers. David

tallied the wagers and delivered her computations to

Variano. Variano received the results of the football

games on Sunday night and he and appellant Bucci then

determined which bettors, if any, had made “hits”. They

made a master tape of each account’s wagers and hits and

delivered envelopes to each account containing the money

it owed its bettors. :

3 Millow is an unindicted co-conspirator who was granted immunity by

the Government and was subpoenaed to testify at appellants’ trial.

2299

_aa-

There was evidence that Millow, and appellants Bucci,

Russillo and DeMichaels all had accounts with Variano.

The “pick-up” network appears to have been slightly more

complicated than the one during the earlier “Yannicelli”

period. Bucci, Russillo and DeMichaels apparently de-

livered some of their wagers to Millow, who in turn phoned

them to appellant Evangelista.‘ Evangelista placed the

wagers on coded slips of paper and gave them to several

people, including appellant Monaco. The Government’s evi-

dence establishing this network included gambling records

and paraphernalia seized from various of the appellants,

physical surveillance of their comings and goings, and

electronic surveillance of their telephone conversations.

At the close of the Government’s case, Judge Carter de-

termined that at least two, and possibly three, distinct

time frames had been set forth. He concluded that the

Government had made out a case of multiple conspiracies,

rather than the single conspiracy alleged in the indictment.

On the ground of this variance between the Government’s

theory and its proof, Judge Carter dismissed the con-

spiracy count.

DISMISSAL OF THE Consprracy CouNT

After Judge Carter dismissed the conspiracy count, ap-

pellants moved that he also dismiss the substantive count

on two grounds: (1) the Government was collaterally

estopped from proving the substantive count once the sim-

ilar conspiracy count had been dismissed; and (2) there

was a prejudicial “spillover” of evidence admitted solely

because of the conspiracy count. Judge Carter refused to

dismiss the substantive count. With this refusal we agree.

4 Theresa Belardo testified that Evangelista paid her in order to use her

telephone for incoming calls during set bours each day.

Little need be said regarding the first prong of appel-

lants’ argument — collateral estoppel. Variano and De-

Michaels contend that since the substantive statute, 18

U.S.C. §1955,5 requires the participation of “five or more

persons”, it requires conspiratorial conduct, and thus once

Judge Carter had determined that there was no single con-

spiracy, the Government was collaterally estopped from

proving a violation of the substantive statute.

The doctrine of collateral estoppel does not apply to

the facts of this case. Judge Carter did not find that there

was no conspiracy; he found that there was no single con-

spiracy. He found one conspiracy in existence during the

period from 1968 tc 1972, and at least one other, distinct

conspiracy in the period from 1973 to 1974. In this later

period Judge Carter named two groups of five persons

the evidence linked to one aonther: Variano, Colletti,

Bucci, Russillo anc \fillow; and Picciano, Ostrander, Mo-

naco, Evangelista and Murty.’ As to the earlier period,

Judge Carter named only Centore and DeMichaels, but

5 18 U.S.C. $1955 provides in part as follows:

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

owns all or part of an illegal gambling business shal] be fined not

more than #20,000 or imprisoned not more than five years, or hoth.

(b) As used in this section— :

(1) “illegal gambling business” means a gambling business

whiech—

(i) is a violation of the law of a State or political subdivi-

sion in which it is conducted;

. (ii) involves five or more persons who conduct, finance, man-

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

(iii) has been or remains in substantially continuous oper-

ation for a period in excess of thirty days or has a gross revenue

of $20,000 in any single day.

6 Murty pleaded guilty to Count II and the jury found Picciano guilty

of Count II. Neither has appealed. The jury found Ostrander not

guilty.

2301

stated that it was his recollection that “a larger number

of people” were involved. We would add to Judge Carter’s

recollection the names Calise, Yannicelli, and Millow. Thus,

when Judge Carter’s dismissal of the conspiracy count is

analyzed, it becomes clear that it had no collateral estoppel

effect whatsoever on the remaining substantive count of

the indictment.

The second prong of appellants’ argument for dismissal

of the substantive count is that the dismissal of the con-

spiracy count removed the only reason for the prejudicial

joinder of the defendants. Moreover, evidence which had

been admitted solely on the ground of the conspiracy count

had a “spillover effect” on the remaining substantive count.

The law in this Circuit is clear. Appellants can only suc-

ceed in this argument if they show bad faith on the part

of the Government in bringing the conspiracy charge, or

if they show prejudice. United States v. Aiken, 373 F.2d

294 (2d Cir. 1967). See also, United States v. Bentvena,

319 F.2d 916 (2d Cir.), cert. denied, 375 U.S. 940 (1963) ;

United States v. Branker, 395 F.2d 881 (2d Cir. 1968),

cert. denied, 393 U.S. 1029 (1969); United States v. Miley,

513 F.2d 1191 (2d Cir.), cert. denied, 423 U.S. 842 (1975) ;

and United States v. Ong, 341 F.2d 331 (2d Cir. 1976).

Only one appellant, Bucci, alleges bad faith on the part

of the Government. He states conclusorily that the Gov-

ernment’s sole purpose in bringing the conspiracy charge

was to “inundate the jury with the weight of governmental

activities, state and federal; spiced with violence and cor-

ruption in a mass trial.” (Bucci Brief at 14.) What Bucci

ignores is that the Government had good reason to believe

that its conspiracy charge would be supported by its evi-

dence at trial. The Government was counting on Millow’s

testimony to tie together the two time frames found hy

Judge Carter. Millow had been granted immunity, and

thus the Government was genuinely surprised when he

refused to testify. The Government’s good faith in this

case is evident. ‘

Appellants’ allegations of prejudice cause us more hesi-

tation. This Court, in the past, has looked at several fac-

tors, including the number of substantive counts, the num-

ber of defendants, the length of the trial, the extent of

the permissible evidence against each defendant, and the

extent of the judge’s cautioning instructions to the jury.

Thus in United States v. Branker, supra, the Court found

prejudice as to three of the eight defendants, who were

charged in only a few of the 80 counts, and whose names

appeared in only a very small part of the transcript of

the five-week trial.

Here, on the other hand, the trial lasted only eight days

and involved only one substantive count. The only testi-

mony which was admissible solely on account of the con-

spiracy was a portion of Calise’s testimony on the first

day of trial. Judge Carter continually instructed the jury

against use of this testimony, and the jury’s questions and

its split verdict evidenced an understanding of these in-

structions. In sum, we fiud no prejudice resulting to de-

fendants from their joinder at trial.

Mit.tow’s InvocaTIOon or THE FirtH .AMENDMENT

We also find no prejudice resulting to any of the de-

fendants from Millow’s invocation of the Fifth Amendment

and citation for contempt by Judge Carter in front of the

jury. Millow had been granted immunity, and the Govern-

went had no reason to suspect that he would refuse to

testify when he took the stand—the Government could not

conduct a dress rehearsal.

Judge Carter handled the unfortunate situation reason-

ably. Immediately after Millow asserted his Fifth Amend-

ment privilege, Judge Carter excused the jury and ex-

plained to Millow that he was required to testify under

his grant of immunity. Judge Carter then recalled the

jury and directed the Government to ask Millow the same

question he had previously refused to answer.’ When

Millow said that he needed the assistance of his attorney

because he was afraid of perjuring himself, Judge Carter

cited him in contempt.

Appellants’ allegation of prejudice from this incident—

that the jury was left with the impression that Millow’s

silence was caused by his fear of appellants—is highly

speculative. Moreover, it appears to be an afterthought

as none of the appellants requested a curative instruction

at the trial.

Searcn or Mownaco’s Car

Monaco moved to suppress the introduction of gambling

records seized from his car under the following circum-

stances: On September 3, 1974, Officer Janes Trotta of

the Yonkers Police Department observed Monaco driving

in a car with a cracked windshield. Knowing, in addition,

from a prior incident, that Monaco did not have a valid

driver’s license, Trotta caused Monaco to stop. After con-

firming that Monaco had no license, Trotta informed him

that he would be issued a summons and that his car would

be impounded. Trotta then entered Monaco’s car to drive

it to police headquarters for impoundment. As he pulled

away from the curb, the gambling records in question

fell from the sun visor.

Monaco has not contested this version of the facts, as

testified to by Officer Trotta, and on these facts, the seizure

7 Millow had already answered five questions about his persona! back-

ground. He asserted his Fifth Amendment privilege when he was asked

whether he knew appellant Bucci. When Millow refused to answer this

question, the Government refrained from asking him any furtler ques-

ticns.

2304

was clearly legal. Once Trotta learned that Monaco did

not have a license, it was not “unwarranted either in terms

of state law or sound police procedure,” Cady v. Dom-

browski, 413 U.S. 433, 447 (1973), for him to move the

car off the street himself. Moreover, Trotta’s entry into

the car was a proper incident to Monaco’s impending

arrest. The lawfulness of his seizure of the ‘gambling

«records which thereupon came into plain view is beyond

question. Harris v. United States, 390 U.S. 234, 236 (1968) ;

United States ex rel. LaBelle v. LaVallee, 517 F.2d 750,

755 (2d Cir. 1975), cert. denied, 423 U.S. 1062 (1976).

Tue Wrretap Evipence

Evangelista moved to suppress tapes of telephone con-

versations to which he was a party on the ground that he

y received no post-termination notice, in violation of N.Y.

j Crim. Proc.L. §700.50(3).*

4 On November 8, 1976, Westchester County Judge Rich-

ard Daronco issued a wiretap order on the phone of An-

thony J. Millow. Among the conversations subsequently

intercepted on this phone were several between Francis

Millow and appellant Evangelista. Fourteen days after

the termination of a renewal order for the wiretap on Mil-

low’s phone, Judge Daronco directed the issuance of notice

to sixteen persons. Evangelista was not.one of the sixteen.

The Government’s explanation is that Evangelista’s voice

was not identified on the tapes.

Since Evangelista was not named in the wiretap war-

rant, his right to receive post-termination notice was in

gg ON¥.Crim. Proe.L. §700.50(3) provides, in pertinent part, as follows:

“Within a reasonable time, but in no case later than ninety days

after termination of an eavesdropping warrant .. . written notice

. . must be personally served upon the person named in the war-

vent and such other parties to the intercepted communications as the

justice may determine in his discretion is in the interest of justice.”

the discretion of Judge Daronco. If, in fact, Evangelista’s

voice was not identified after reasonable efforts, then the

failure to give him notice was clearly not an abuse of

discretion.

Moreover, even if, as Evangelista contends, the Govern-

ment should have recognized his voice on the tapes in

question,® the failure to give him notice does not require

suppression of the tapes. We held in United States v.

Principie, 531 F.2d 1132 (2d Cir. 1976), cert. denied,

45 U.S.L.W. 3586 (March 1, 1977), that the defendant must

show prejudice before a motion to suppress will be granted

on the ground ofsa failure to give post-termination notice,

in violation of N.Y. Crim. Proe.L. §700.50(3) and 18

U.S.C. § 2518(8)(d). This point, which was in dispute

among the circuits, was resolved by the Supreme Court in

United States v. Donovan, 45 U.S.L.W. 4115 (January 18,

1977). Reversing a Sixth Circuit holding that the failure

to give notice, even absent a showing of prejudice, man-

dated suppression, the Court stated:

“Nothing in the structure of the Act [Title III of

the Omnibus Crime Control and Safe Streets Act of

1968, 18 U.S.C. §§ 2516-2520] or this legislative his-

tory suggests that incriminating conversations are

unlawfully intercepted’ [and thus required to be sup-

pressed under 18 U.S.C. § 2518(10)(a)] whenever

parties to those conversations do not receive discre-

tionary inventory notice as a result of the Govern-

ment’s failure to inform the District Court of their .

identities. . . . The fact that discretionary notice

reached 39 rather than 41 identifiable persons dues not

9 Evangelista notes that he was under physical surveillance during the

period of the wiretap and that at the moment of his arrest on Decem-

ber 31, 1974, be was on the phone and being recorded.

in itself mean that the conversations were unlawfully

intercepted.**”

e e s @

26 *ee

“Moreover, respondents Merlo and Laver were not prejudiced by their

failure to receive post-intercept notice. . . . [T]he Government made avail-

able to all defendants the intercept orders, applications, and related

papers. .. . And in response to pretrial discovery motions, the Govern-

ment produced transcripts of the intercepted conversations.” 45 U.S.

L.W. at 4122.

Evangelista, similarly, was not prejudiced by the failure

to provide him with notice. Six weeks before the trial, the

Government provided Evangelista with all of the orders,

applications and other papers relating to the wiretaps in

question, and in addition, made duplicate tape recordings

available for his inspection. Thus under these circum-

stances, in the absence of any showing of prejudice, Judge

Carter’s denial of Evangelista’s motion to suppress was

correct.’®

Convictions affirmed.

Evangelista argues that the New York wiretap statute involved here,

N.Y. Crim. Proc.L. §700.50(3), is more restrictive than the federal stat-

ute involved in Donovan, 18 U.S.C. §2518(d), and that the New York

statute mandates suppression, even absent a showing of prejudice. We

rejected this interpretation of the New York statute in Principie, 531

F.2d at 1142, n.12 and reject it again here. People v. Brenes, 385 N.Y.S.

2d 530 (App. Div., Ist Dept., 1976), cited by Evangelista, holds merely

that suppression is mandated in the case of a “blatant violation” by

the police of the minimization requirements of the New York statute.

In that case, the police bai used an automatic device which “tapped and

taped every single telephone conversation in full, including those con-

cededly non-pertinent.” 385 N.Y.S. 2d at 532. Such a violation is a far

greater interference with the “congressional intention to limit the use

of intercept provedures,” United States v. Giordano, 416 U.S, 505, 627

' (1974) than is the failure to give )ost-termination notice.

2307

ORDER ON PETITION FOR REHEARING.

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT.

At a Stated Term of the United

States Court of Appeals,

in and for the Second

Circuit, held at the Uni-

ted States Court House,

in the City of New York,

on the twenty-ninth day

of June, one thousand

nine hundred and seventy-

seven.

PRESENT: HON. LEONARD P. MOORE,

HON. ROBERT P. ANDERSON,

HON. WILFRED FEINBERG,

Circuit Judges.

UNITED STATES OF AMERICA,

Platnttiff-Appellee,

JOHN MONACO, PETER VARIANO, MICHAEL

DEMICHAELS, MICHAEL EVANGELISTA,

LAWRENCE CENTORE, ANTHONY RUSSILLO,

HENRY BUCCI, FRANK GALELLA, JAMES

OSTRANDER, WILLIAM MURTY, ALFONSO

COLETTI, MICHAEL PICCIANO,

Defendants,

PETER VARIANO, JOHN MONACO, MICHAEL

DEMICHAELS, ANTHONY RUSSILLO,

HENRY BUCCI, MICHAEL EVANGELISTA,

Defendants-Appellantes.

76-1335.

A petition for a rehearing having

been filed herein by counsel for the

appellant Peter Variano

Upon consideration thereof, it is

Ordered that said petition be and

hereby is DENIED.

A. DANIEL FUSARO

. Clerk.

ORDER OF THE SUPREME COURT OF THE UNITED

STATES EXTENDING TIME TO FILE PETI-

TION FOR WRIT OF CERTIORARI.

SUPREME COURT OF THE UNITED STATES.

No. A-37

PETER VARIANO,

Petitioner,

UNITED STATES.

UPON CONSIDERATION of the applica-

tion of counsel for petition,

IT IS ORDERED that the time for

filing a petition for writ of certiorari

in the above-entitled cause be, and the

41 :

same is hereby, extended to and includ-

ing August 28, 1977.

Dated this 19th day of

July, 1977.

/s/THURGOOD MARSHALL

Associate Justice of

the Supreme Court of

the United States

ORDER OF AFFIRMANCE.

UNITED STATES COURT OF APPEALS,

SECOND CIRCUIT.

At a Stated Term of the United

States Court of Appeals,

in and for the Second

Circuit, held at tne Uni-

ted States Court House,

in the City of New York,

on the fourteenth day of

March, one thousand nine

hundred and seventy-seven.

PRESENT: HON. LEONARD P. MOORE,

HON. ROBERT P. ANDERSON,

HON. WILFRED FEINBERG,

Circuit Judges.

-—-—e8 #- ee wweweneneneneneenseene eae awe =e = X

UNITED STATES OF AMERICA,

Platinttff-Appellee,

JOHN MONACO, PETER VARIANO, MICHAEL

DEMICHAELS, MICHAEL EVANGELISTA,

LAWRENCE CENTORE, ANTHONY RUSSILLO,

HENRY BUCCI, FRANK GALELLA, JAMES

OSTRANDER, WILLIAM MURTY, ALFONSO

COLETTI, MICHAEL PICCIANO,

Defendante,

PETER VARIANO, JOHN MONACO, MICHAEL

DEMICHAELS, ANTHONY RUSSILLO,

HENRY BUCCI, MICHAEL EVANGELISTA,

Defendantse-Appellante.

76-1335.

Appeal from the United States Dis-

trict Court for the Southern District

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 judgment of said District Court

be and it hereby is affirmed.

s/A. DANIEL FUSARO

Clerk.

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