Petition — Trafficante v. United States

- te

Supreme Coug, U.S

Sw ELLED #€

al AGA 1977

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States —

OCTOBER TERM, 1977

No. 77-328

IN THE

HENRY TRAFFICANTE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

LAW OFFICES OF HENRY GONZALEZ

620 Madison Street

Tampa, Florida 33602

HENRY GONZALEZ

Attorney for Petitioner

INDEX

Page

Cee ree Os FEDS AT RB IRS oc cece 1

Nai in OS NO ee 'éie aaa 1

ds wes educa sd emma dendee 2

Des ied ics ci cccceccecsveces 2

ey) gt ns oe oe 2

REASONS FOR GRANTING THE WRIT ................ 2

CN eRe VS ree 0 bcs MoM AG bed Tease. 5

pt Ce eT) See re 6

APPENDIX:

Opinion of the U.S. Court of Appeals for a

a RR MRE a Ona A-1, A-32

EE ood Tako odee boWek ob 50000 004n A-32

TABLE OF CASES

Opper v. United States,

EE a a ar 3

Byrd v. Wainwright,

ce a ene ebe bees 3

United States v. Echeles,

pO a er 3

United States v. Burke, i

495 F.2d 1226 (Sth Cir. 1974)... 0. ccc cece ec evees 3

United States v. Cochran, i

I, Nn sk. oe iccnenereveccese 3

United States v. Diez,

IY I nc c's ce cccccccecenescene 3

United States v. Martinez,

PR | RR ee ae eee 4

ee =

: IN THE 3

Supreme Court of the United States

OCTOBER TERM, 1977

No. —

HENRY TRAFFICANTE,

Petitioner,

-vDS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the Fifth

Circuit, entered on May 19, 1975, affirming the judgment of the

United States District Court for the Middle District of Florida

upon a jury conviction of violations 18 U.S.C. Secs. 371 and

1955.

OPINION BELOW

The opinion of the United States Court of Appeals

affirming the judgment of the District Court is reported at 552

F.2d 605 (Sth Cir. 1977). As part of this Petition the reported

case appears in the Appendix, pp A-1.

JURISDICTION

This Petition is brought under Rule 19 1. (b), Rules of the

Supreme Court of the United States, and 28 U.S.C. 1254 (1),

investing this Court with jurisdiction.

2

QUESTIONS PRESENTED

A. Whether 28 USC §753(b)(1) is mandatory and

whether a trial court's refusal to provide the means of a

complete transcript of trial proceedings deprives Petitioners of

their “right” to Appellate review in a criminal case under the

Federal Rules of Appellate Procedure.

B. Whether the District Court in denying the Motion for

Severance on behalf of Petitioner, Trafficante, violated

Petitioner's right to a fair and impartial trial.

STATUTES AND FEDERAL RULES INVOLVED

The provision of 28 USC §753(b)(i), Fifth Amendment of

the Constitution of the United States and Rule 14 of Federal

Rules of Criminal Procedure.

STATEMENT OF THE CASE

A. The Petitioner, Henry Trafficante, adopts the

Statement of the Case of the Petition for Writ of Certiorari filed

by co-defendants, Alfredo Fernandez “Chino” “Al” Alfonso,

Steve Guggino, Frank Fraterrigo Vega, Louis Henry “Dr.”,

“Bacardi” Figueredo, Sr., Sam Vaglica and Sam Castellano, Jr.

B. Your Petitioner filed pre-trial Motion for Severance

and duly renewed said motions at different stages of the

proceedings each time additionally bringing forth to the Court

substantive grounds for the granting of the severance. The Trial

Court denied Motion for Severance and was affirmed by the

Fifth Circuit Court of Appeals in its opinion.

REASONS FOR GRANTING THE WRIT

A. The Petitioner, Henry Trafficante, adopts the Reasons

For Granting the Writ of the Petition for Writ of Certiorari filed

3

by the co-defendants, Alfredo Fernandez “Chino” “Al”

Alfonso, Steve Guggino, Frank Fraterrigo Vega, Louis Henry —

“Dr.”, “Bacardi” Figueredo, Sr., Sam Vaglica and Sam

Castellano, Jr.

B. The decision of the Court of Appeals erroneously fails

to decide an important question of Federal law which has

not been but should be settled by this Court, and said

decision is in conflict with the decision of another Court of

Appeals on the same matter.

The thrust of Petitioner's appeal centered upon the

question whether the District Court properly denied severance

to this Petitioner and further whether examination of this

Petition far exceeded the guide lines and confines of the Federal

Rules of Evidence.

It is Petitioner's contention that the Appellate Court has

side stepped the fundamental issues presented in Petitioner's

appeal in that it did not fully comprehend decided case law not

only of the Fifth Circuit Court of Appeal but of the other courts

which had direct relevancy and applicability to the severance

issue.

Under the provisions of Rule 14 FRCP it is well established

that granting of a severance is within the sole discretion of the

Trial Judge. Opper v. U.S., 348 U.S. 84 (1954) but it is

Petitioner's strong urging herein that the Appellate Court in

sustaining the decision of the Trial Court not to grant a

severance has not followed the prevailing and controlling law of

the Fifth Circuit and other courts which clearly mandate a

severance in the case at Bar. Byrd v. Wainwright, 428 F.2d 1017

(Sth Cir. 1970); U.S. V. Echeles, 352 F.2d 892 (7th Cir. 1965);

U.S. v. Burke, 495 F.2d 1226 (Sth Cir. 1974); U.S. v. Cochran,

499 #.2d 380 (Sth Cir. 1974); and U.S. v. Diez, 515 F.2d 892 (Sth

Cir. 1975). |

4

As an example of the Appellate Court not following the

decision of that very court cites U.S. v. Martinez, 486 F.2d 415

(Sth Cir. 1973), in which it says:

“Under Rule 14 of the Federal Rules of Criminal

Procedure, it is established that the granting of a motion

for a severance is a matter within the discretion of the trial

judge. Opper v. United States, 1954, 348 U.S. 84,75SCt.

158, 99 L.Ed. 101; Smith v. United States, 5 Cir. 1967, 385

F.2d 34, 37. When an appellant challenges the refusal of a

trial judge to grant a motion to sever, he shoulders the

burden of making a clear showing that ‘prejudice resulting

in the denial of a fair trial’ flowed from the failure to grant

the motion. United States v. Nakaladski, 5th Cir. 1973, 481

F.2d 289; United States v. lacovetti, 5th Cir. 1972, 466 F.2d

1147, 1153, Smith v. United States, supra.

The question then is whether depriving one defendant

of the opportunity to use the exculpatory testimony of a

pr ri amounts to ‘prejudice resulting in the denial

a fair -

by

ing relief from prejudicial joinder provisions of Rule 14,

F.R.Crim.P. But the criteria are similar, and in Byrd this

Circuit was presented with the opportunity to consolidate

testimony was sought, op.cit. at 1020; Smith v.

United States, supra, at 38; (ii) the movant should show to

the Court's satisfaction that the co-defendant will in

SS

5

mov ant’s defense, which ‘might be restated in terms of the

extent of potential prejudice to the defendant if the

defendant is tried without the opportunity to elicit the

co-defendant's testimony’, op.cit. at 1020; United States v.

Echeles, 7 Cir. 1965, 352 F.2d 892, 897-898.

The Fifth Circuit in the case at bar by its opinion has

alleged a new concept wherein it has now placed a trial court in

the positioi: of determining credibility of a witness-co-defend-

ant. It has done so by evaluating the weight-credibility of the

proffered evidence to be given by a co-defendant. This is an

untenable position which no appellate court should authorize a

trial Judge to consider in motions for severance. The Fifth

Circuit Court of Appeals has by its opinion minimized the

presumption of innocence that all defendants are clothed with

prior to trial, during trial and only until such time as a jury

decides contrary in accordance with the law as applied to the

facts. -

C CONCLUSION

For these reasons, a writ of certiorari should issue to review

the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

LAW OFFICES OF HENRY, GONZALEZ

Tampa, Florida 33602

Attorney for Petitioner

6

PROOF OF SERVICE

I HEREBY CERTIFY that all parties required to be served

herein have been served and further certify that three copies of

the foregoing Petition for Writ of Certiorari have been served

upon the United States Solicitor General, Department of

justice, Washington, D.C. 20530, and upon John L. Briggs,

United States Attorney for the Middle District of Florida,

United States Post Office Building, Tampa, Florida, this _/7 _

day of August, 1977.

LAW OFFIGES OF Y GONZALEZ

HENRY

—

APPENDIX

—_-——

A-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFREDO FERNANDEZ “C'HINO” “AL” ALFONSO,

STEVE GUGGINO, FRANK FRATERRIGO VEGA,

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

SAM VAGLICA and SAM CASTELLANO. JR., and

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

Defendants-Appellants.

No. 75-3564

United States Court of Appeals,

Fifth Circuit

May 19, 1977

Defendants’ were convicted before the United States

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

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

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

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

sufficiently established that traditional investigative techniques

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

named in wiretap ofder received notice thereof in sufficient time

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

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

substantive statute is a jurisdictional requirement unrelated to

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

jury in connection with its request to replay taped

conversations to the defendant did not unfairly favor the

Government and (6) gambling -operations conducted by

independent bookmaker were not independent of the —

sports-betting operation.

Affirmed.

1. telecommunications —496

Purpose of requirement that application for a wiretap

include a statement as to whether traditional investigative

have been tried and failed or that they would not

succeed if tried is not to foreclose electronic surveillance until

every other imaginable method of investigation has been

A-2

unsuccessfully attempted but simply to inform the issing judge

of the difficulties involved in the use of conventional

techniques; furthermore, the statute contemplates that the

showing be tested in a practical and commonsense fashion. 18

U.S.C.A. § 2518(8)(d).

2. Telecommunications —496

Application for wiretap authorization satisfied require-

ment of showing of unfruitfulness of alternative investigative

procedures in view of its recitals that despite four months’

investigation there were no witnesses who could be relied on to

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

search warrant would be unlikely to implicate the major

controllers of the operation and that due to elandestine nature

of the operation only wiretapping offered a reasonable

likelihood of securing evidence necessary to apprehend the top

figures. 18 U.S.C.A. § 2518(1)(c).

3. Telecommunications —496

Service of ‘notice of entry of wiretap order on individuals

who are not named in the application but are overheard is

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

4. Searches and Seizures —7(10)

In the wiretap context, Fourth Amendment requirements

are substantially satisfied where actual notice is provided to

unnamed but overheard individuals in time for them to

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

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

5. Searches and Seizures —7(10)

Where indictment was returned February 1, 1972,

defendants were arrested on March 2 and orally informed of

wiretaps, on September 14 the defendants who were not named

in the wiretap applications were sent written inventory notices,

transcripts of all intercepted conversations were made available

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

April of 1975, there was no Fourth Amendment violation since

the unnamed defendant had received notice of the wiretaps in

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

18 U.S.C.A. § 2518(8)(d).

A-3

6. Telecommunications —496

Requirement that the Government inform a judge issuing a

wiretap order of the general class or classes of individuals

whose conversations have been intercepted was satisfied where

prosecutor testified that he informed the district court of every

single person who had been identified during the course of the

investigation and there was further testimony that background

information on such individuals had been furnished to the

court; such information was sufficient to permit the court to

exercise an informed discretion in determining whether any

legitimate privacy interest justified withholding inventory

notice. 18 U.S.C.A. § 2518(8)(d).

7. Telecommunications —496

Government's request that inventory notice of wiretap

authorization be limited to those individuals named in the

wiretap order did not violate statutory requirements since the

district court was in a position to exercise its informed

discretion in deciding whether any legitimate privacy interest

justified withholding inventory notice from certain parties to

the intercepted conversations; similarly, failure to send formal

inventory notice to individuals who were not named in the

pig hivg! not constitute a statutory violation. 18 U.S.C.A. §

1 :

8. Criminal Law —394.3

Even if Government's request for limited inventory notice

of wiretap order or failure to send formal inventory notice

violate statutory requirements, suppression of the wiretap

evidence would not be required since postintercept notice was

not intended to serve as an independent restraint on resort to

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

9. Constitutional Law —42.2)1)

Since defendants failed to bring their own conduct within

alleged constitutional deficiencies of Florida antiwagering

statute, the defendants, charged with operating an illegal

gambling business, were precluded from attacking the statute

py 2a pele mame a a! migh

not to argue that some hypo persons t be

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

F.S.A. § 849.14.

A-4

10. Gaming —63(2)

Although word “gambling” is not specifically defined in

Florida antiwagering statute, the word is ued in its generic

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

11. Criminal Law —622(2)

Denial of motion to sever, as made during course of

prosecution for conspiracy and operation of an illegal gambling

business, was not an abuse of discretion absent showing of

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

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

12. Criminal Law —622(2)

Refusal to grant alleged supervisor of gambling operations

a severance so as to permit alleged manager to give exculpatory

testimony was not abuse of discretion, notwithstanding

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

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

nothing to lose by exculpating the supervisor and, perhaps,

could be rewarded and evidence corroborating identification of

supervisor's voice on intercepted conversations east doubt on

credibility of proffered testimony that supervisor was not the

individual to whom the manager was speaking in the

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

13. Witnesses —198(2)

Voice identification testimony of retired FBI agent, who

during his government career was engaged in investigation of

gambling operations but who following retirement was

employed by defendant's attorney as a private investigator and

who was called by the Government to identify defendant's

voice on certain tape recordings, did not violate the

attorney-client privilege, absent evidence that the witness had

participated with defense counsel in investigation and

preparation of the case or had received any confidential

information from the attorney.

14. Criminal Law —444

Former government agent's statement that he had heard

defendant's voice some ten times was sufficient foundation for

his testimony identifying defendant's voice on certain tape

recordings of intercept telephone communications; that other

witnesses were available to provide identification was

A-5

immaterial, particularly since the witness was the agent most

familiar with defendant's voice.

15. Witnesses —363(2)

Trial court did not abuse its discretion in treating former

government agent as a hostile witness and his

impeachment based on his relationship with t's

counsel, specifically, by showing that following retirement

from government service he was employed by counsel as a

private investigator, especially in view of his reluctance to

testify and evasiveness in his testimony as to identity of

defendant's voice on certain intercepted telephone communica-

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

16. Criminal Law —824(8)

Witnesses —380(5)

Testimony of three FBI agents with respect to retired

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

days after expiration of wiretap order was admissible for

impeachment purposes in view of his cross-examination

testimony that he was not positive of the identification;

although limiting instruction would have been proper had

request therefor been made, failure to give such an instruction

sua sponte was not reversible error.

17. Conspiracy —48.2(2)

Gaming —62

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

offense to conduct a gambling business which is illegal under

state law is a jurisdictional requirement unrelated to the

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

failing to instruct that the defendants must have been aware

that the conspiracy involved at least five participants. 18

U.S.C.A. §§ 371, 1955. |

18. Gaming —102

Failure to instruct that Florida gambling statutes did not

apply to pari-mutuel was not error, in prosecution for

illegal ling business, absent evidence that

gam operation conducted the defendants constituted

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

849.14.

A+

19. Witnesses —216

Disclosure of identity of confidential informants whose

information was used in securing wiretap order was not

required absent evidence that the informants participated in the

activities for which the defendant was charged or that evidence

described by the informants was introduced at trial, much less

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

2510 et seq.

20. Criminal Law —470

In view of cryptic nature of intercepted conversations,

_ which were often framed in jargon peculiar to the gambling

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

of the conversations and roles of the defendants; admission of

such testimony, as given by individual who qualified as expert

in bookmaking and gambling, was not improper as invading

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

21. Indictment and Information —81(5)

Where aliases were extensively used in intercepted

conversations and there was ample testimony to identify

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

motion to strike the aliases, as against contention that use

thereof in the indictment invaded the jury's province of

identification of the voices on tape recordings of intercepted

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

22. Criminal Law —859

Trial judge has broad discretion in responding to a jury

request that certain evidence he reread.

23. Criminal Law —1174(1)

Extreme length of the rereading proceedings, as occurred

following jury’s request to replay tape conversations of two

defendants, did not indicate prejudice per se.

24. Criminal Law —859

Ordering testimony relating to matters discussed on tape

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

pe ms dy tape recordings of conversations between two

ts did not unfairly favor the Government where trial

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

Government's case and then move to two defense witnesses

A-7

who dealt with identification but at later side bar conference

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

the examination of one witness read.

25. Criminal Law —711

Defense counsel was not entitled to make additional

summations to the jury after certain evidence was reread at

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

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

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

26. Criminal Law —859

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

trial court properly relied on notes of the official court reporter

rather than on daily copy of testimony prepared by state court

reporter.

27. Criminal Law —1166.13

Although statutory requirement that a court reporter

attend each session of district court and record all proceedings

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

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

§ 753(b)(1).

28. Criminal Law —1166.13

Failure to record all proceedings in connection with

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

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

U.S.C.A. § 753(b).

29. Gaming —98(1)

Government agent's testimony that based on intercepted

conversations he calculated that daily receipts of the enterprise,

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

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

element of “gross revenue” for purpose of conviction of

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

30. Gaming —7%1)

Gambling operation conducted by independent bookmak-

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

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

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

A#

participants; prosecution under the federal statute was not

precluded on ground that the bookmaker’s gambling operation

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

U.S.C.A. § 1955.

31. Gaming —79%1)

Congress’ purpose in enacting statute making it an offense

to operate an illegal gambling business was to include all

persons who participate in the operation of such a business,

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

U.S.C.A. § 1955.

Bennie Lazzara, Jr., Anthony F. Gonzalez, Tampa, Fia.,

for Alfonso.

t) Thomas J. Hanlon, III, Tampa, Fla. (Court appointed) for

Guggino.

Virgil M. Wheeler, Jr., New Orleans, La., Henry Gonzalez,

Tampa, Fla., for Trafficante.

Ralph W. Rinehart, Tampa, Fla. (Court appointed), for

Vega.

Everett Q. Jones, Tampa, Fla. (Court appointed), for

Figueredo.

John S. Matthews, Tampa, Fla., for Vaglica and

Castellano.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Robert J.

Erickson, Vincent R. Alto, Sp. Atty., Mervyn Hamburg, Atty.,

Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeals from the United States District Court for the

Middle District of Florida.

Before BROWN, Chief Judge, AINSWORTH, Circuit

Judge, and JAMESON’, District Judge.

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

A-9

JAMESON, District Judge:

The seven appellants were convicted, following a jury trial,

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

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

1955: Upon consideration of the numerous alleged errors

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

Facts

On September 30, 1971, Assistant United States Attorney

Dempsey presented to Judge Joseph Lieb of the United States

District Court for the Middle District of Florida an application

for electronic surveillance of three telephones suspected to be

involved in illegal gambling operations headquartered at 801

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

on information supplied by four confidential informants who

were bettors or observers of the illegal gambling operation.

Based on the information contained in the application and

supporting affidavit, Judge Lieb authorized electronic intercep-

tion of all gambling related conversations of “Steve Guggino,

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

over the three target telephones.

During the 15 day operative period of the order,’

communications intercepted over the three telephones revealed

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

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

(1) ‘Mooel pambling benineny’ bling business which

(1) ’ means a gam which—

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

is conducted; _ '

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

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

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

fi

A-10

the existence of a sports betting operation dealing primarily

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

based on the intercepted telephone conversations and other

evidence presented at the trial, established that Trafficante

occupied a supervisory position in the gambling operation and

served as a source for “line” information (odds). Below

Trafficante in the hierarchy, Guggino and Vega managed the

gambling enterprise and operated the Jean Street clearing house

as partners. While Guggino and Vega would on occasion accept

wagers from individual bettors, they generally disseminated

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

“writers”,’ acted as intermediaries between Trafficante and

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

Castellano, and Alfonso were writers, accepting bets from

individual bettors and channeling them to Guggino and Vega.

Figueredo was an independent bookmaker who acted as a

lay-off bettor for the Trafficante operation and exchanged line

information with Guggino and Vega.

The Government presented its case primarily by playing

tape recordings of the intercepted conversations, identifying the

voices thereon, and then having an expert explain the

significance of the conversation in the context of gambling.

Some of the tapes, which contained conversations conducted in

foreign languages, were translated into English by an

interpreter. Transcripts were made of the translations which

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

with several of the appellants.

At the conclusion of the eighteen day trial, the jury

convicted all appellants on both counts. Appellants were

sentenced to prison terms of varying duration.

A-11

Issues on Appeal

The issues raised by the various appellants may be

summarized as follows:

(1) Did the Government comply with the provisions of

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

18 U.S.C. § 2510, et sea?

(2) Is the Florida anti-wagering statute unconstitutionally

vague?

(3) Were appellants entitled to separate trials?

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

testimony of Trafficante’s voice proper in all respects?

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

supplemental charges?

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

rulings correct?

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

record reread to the jury?

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

; Title III Compliance

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

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

order authorizing the interception of wire or oral communica-

tions must include “a full and complete statement as to whether

or not other investigative procedures have been tried and failed

or they reasonably appear to be unlikely to succeed if tried

or to be too dangerous. . .”

A-12

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

529 F.2d 585 (9 Cir. 1976). The Ninth Circuit there found an

affidavit insufficient which recited an F.B.I. agent's conclusion

that because of difficulties in securing evidence in previous

gambling cases, interception of the telephone communications

of a suspected gambling organization was the “only available

method of investigation” likely to secure sufficient evidence to

obtain a conviction. Because alternative investigative proce-

dures had not been tried and because the Government had

failed to show why investigative problems in the case were any

different “in nature or degree from any other gambling case”,

the court held that the requirements of § 2518(1)(c) had not been

fulfilled.

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

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

foreclose electronic surveillance until every other imaginable

method of investigation has been unsuccessfully attempted, but

simply to inform the issuing judge of the difficulties involved in

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

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

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

contemplates that “the showing be tested in a practical and

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

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

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

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

with the intercept application satisfied the requirements of §

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

normal investigative techniques were unavailing. The affidavit

disclosed an active investigation of the gambling operation

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

had conducted physical surveillance of the Jean Street clearing

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

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

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

relating to organized crime” for over four years and was

familiar with gambling operations, further pri Mar that

execution of a search warrant was unlikely to the

“major controllers” of the gambling . to the

“clandestine” nature of the operation, wiretapping offered

a “reasonable likelihood” of securing evidence necessary to

A-13

prove the gambling violations and to sogubend the top figures

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

allegations were sufficient to establish that traditional

investigative techniques had been tried and failed, and were not

reasonably likely to succeed if tried.

The decision in Kalustian does not persuade us to reach a

contrary conclusion. Unlike the affidavit in that case, the

affidavit here established that conventional investigative

i had been tried and were unsuccessful. The affidavit

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

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

investigating other gambling cases. Rather, this affidavit recited

specific instances in the investigation of this case where normal

techniques had been unfruitful. Kalustiar is distinguishable.

Moreover, subsequent to Kalustian, the Ninth Circuit has

considered the sufficiency of affidavits to support applications

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

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

705. In an exhaustive and well considered opinion citing

decisions of the Ninth and other circuits subsequent to

Kalustian, the court said in part:

“These decisions permit us to make the following

observations. To show that ‘other investigative procedures

5. The affidavit stated, in pertinent part:

“The interception of these criminal conversations is necessary because:

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

court and without their testimony, it would be impossible to obtain

evidence of this illegal business.

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

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

controllers of this gambling organization.

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

Due to the clandestine

“4. tot manner in which this betting operation is

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

means of investigation which has a reasonable likelihood of security the

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

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

illegal gambling business.”

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

denied, 423 U.S. 924, 96 8.Ct. 266, 46 L..Ed.2d 249 (1975) and United States

v. Feldman, 536 F.2d 1175 (9 Cir. 1976), where the Ninth Circuit upheld the

validity of affidavits similar to the one here.

A-14

have tried and failed’ the affidavit must reveal that normal

investigative techniques have been employed in a good

faith effort to determine the identity of those violating the

law and to assemble sufficient evidence to justify their

prosecution and that these efforts have failed to achieve

their ends. The good faith effort need not have exhausted

all possible uses of ordinary techniques. What is required is

a showing that in the particular investigation normal

investigative techniques employing a normal amount of

resources have failed to make the case within a reasonable

period of time.”

The motion to suppress was properly denied.

Requirements of § 2518(8)(d)

18 U.S.C. § 2518(8)(d) requires that:

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

days after the filing of an application for an order of

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

termination of the period of an order or extensions thereof,

the issuing or denying judge shall cause to be served, on the

persons named in the order or the application, and such

other parties to intercepted communications as the judge

may determine in his discretion that is in the interest of

justice, an inventory which shall include notice of —

(1) the fact of the entry of the order or the application;

(2) the date of the entry and the period of authorized,

approved or disapproved interception, or the denial of the

application; and

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

communications were or were not intercepted.”

The wiretap here was authorized on September 30, 1971,

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

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

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

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

January 24, 1972.

Judge Lieb's death on November 1, 1971, Judge Krentzman took

sania case. Judge Krentzman supervised the bulk of the wiretap

investigation.

A-15

During the operative period of the wiretap orders,

Assistant United States Attorney Dempsey made written

reports every five days to Judge Lieb and then to Judge

Krentzman concerning information obtained on the wiretaps.

Dempsey discussed in detail with the judges the individuals who

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

Dempsey informed Judge Krentzman of the persons who were

named in the indictment returned February 1, but requested the

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

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

Department of Justice regarding its wiretap authorization

procedures, it was anticipated that arrests pursuant to the

indictment would not be made for some ye which prompted

the request for limited notice to minimize the potential for flight

of those indicted. Judge Krentzman complied with the request,

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

Guggino.

Only Vega and Guggino were required by statute to receive

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

Vega contends that he was not served with notice of the

September 30 and October 15 wiretaps, but received notice only

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

United States Marshal charged with serving the notice testified

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

notices on Vega, one of which concerned the September 30

8. Regarding his discussions with Judge Krentzman, Dempsey testified

at the suppression hearing:

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

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

as participating in the svowrthe scape

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

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

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

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

the—in Mr. Kinne's

also had detailed discussions with Judge Krentzman about

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

Krentzman) took a great deal of time in reviewing my application, as weil

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

was , ’

scene eStats fonper msanoeg es coe

languages were being employed.”

A-16

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

wiretap was received in evidence, showing that it had been

served on Vega on February 7. This factual issue was

determined against Vega by the district court.

[3] The remaining appellants were not named in the

September 30 order, but their conversations were overheard.

Although service of notice on unnamed but overheard

individuals is discretionary with the issuing judge, appellants

moved to suppress the wiretap evidence, contending that they

should have been served with notice. The motion to suppress

was denied. On appeal, appellants contend that Fourth

Amendment protections require that notice be given to

unnamed but overheard persons “promptly after the decision to

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

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

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

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

appellants received the inventory order during discovery, this

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

We begin our review of appellants’ contentions with a

consideration of the Fourth Amendment issue. The Ninth

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

appellants, stated:

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

entitled to Fourth Amendment protection. Specifically, we

believe that when the government intends to use the

contents of an interception or evidence derived therefrom,

to obtain an indictment against an unnamed but overheard

individual, such individual must be given notice promptly

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

503 F.2d at 537.”

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

issue:

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

overheard individual who was known to be for indictment could

not withstand constitutional scrutiny. If, as on appeal herein, the

unnamed but overheard defendant has a Fourth Amendment right to

privacy of the same dimensions as that of a named defendant, post-use

notice of a wiretap is required, and a failure to give such notice would

render the overheard communication unlawfully intercepted within the

ay — United States v. Chun, 386 F.Supp. 91, 96-96

(D.Haw.1974).

<= ne a

A-17

But.the court went on to note that “[iJn this context, the

determination of what constitutes ‘promptly’ should focus on

whether the individual has been afforded a reasonable

opportunity to prepare an adequate response to the evidence

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

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

(1972) held that suppression of wiretap evidence was not

required on either constitutional or statutory grounds merely

because inventory notice had not been served on unnamed and

overheard individuals, where those individuals “had actual

notice of the interceptions and were not prejudiced”. The

unnamed persons, although receiving no statutory inventory

notice, were informed of the wiretap at arraignment and were

thereafter allowed complete access to the tapes and transcripts.

In reaching its conclusion, the court said:

“To us the statute is concerned with adequate notice and

not formalities. The record demonstrates that the appellees

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

seek suppression of the evidence on a number of grounds

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

they have not shown that any prejudice resulted from the

failure of the Government to formally serve them with the

inventories.” 466 F.2d at 1146.

Roving We agree with these circuits that in the wiretap

context, Fourth Amendment requirements are substantially

satisfied where actual notice is provided to unnamed but °

overheard individuals in time for them to adequately prepare a

defense. We conclude that appellants received such notice here.

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

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

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

appellants were sent written inventory notices “comparable in

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

January 4, 1973, transcripts of all

A-18

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

Government violation of Title III statutory irements. First,

consideration must be given to whether the district court was

afforded an opportunity to exercise an informed discretion.

This question was recently addressed by the Supreme Court in

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

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

legitimate privacy interests justify withholding inventory notice

from parties to intercepted conversations, a judge is likely to

require information and assistance beyond that contained in the

application papers and the recordings of intercepted conversa-

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

at 669. The Court adopted the Ninth Circuit requirement that

the Government must inform the district court of “the general

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

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

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

persons rather than a description of the classes into which those

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

conclude that the Government satisfied this requirement.

Assistant United States Attorney Dem testified that he

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

been identified during the course of this investigation”. There

was further testimony that: background information on these

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

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

problem present in Chun and Donovan of the failure of the

Government to inform the district court of the identity of

persons whose conversations were intercepted.

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

position to exercise its informed discretion. Similarly,

failure of the Government to send formal inventory

Ls

appellants did not constitute a statutory violation.

appeionss, whe wane eunamnes, ie Shp. wien. aants sm

within the sound discretion of the court, was properly

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

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

ppladdespealy: vapeene le vaipstde = plenresjun: iy ws canter

—

Se eee

A-19

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

suppression of the wiretap would not be required since

postintercept notice was [not] intended to serve as an

independent restraint on resort to the wiretap procedure”.

United States v. Donovan, supra at 674.

Vaglica independently contends that he was not served

with post-termination inventory notice, as ordered by the

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

interception here, but to a wiretap order approved on

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

the November 12 order was suppressed under Giordano.

Florida Anti-Wagering Statute

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

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

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

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

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

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

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

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

own activities within the “my of this argument, but rather

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

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

A-20

constitutional will not be heard to attack the statute on the

ground that impliedly it might also be taken as applying to

other persons or other situations in which its application might

be unconstitutional.”

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

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

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

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

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

perceive no possibility of including the hypothetical persons

suggested by appellants as potential violators under any

reasonable construction of the statute.

Motions for Severance

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

in denying numerous motions for severance made during the

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

argue in general terms that they were Dome gow by evidence

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

cautionary instructions were inadequate” for the jury ‘

distinguish the alleged acts of one co-defendant from the wo

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

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

be considered ately as to each defendant. Appellants have

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

court did not abuse its discretion in denying their motions to

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

1975).

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

seve. ance to permit Guggino to give exculpatory testimony at a

separate trial. Trafficante submitted, with his severance

motion, an affidavit of Guggino in which Guggino asserted that

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

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

not the party to whom he spoke in intercepted telephone

conversations and that he would deny that several surveilled

meetings with Trafficante were related to illegal gambling.

Both sides rely on Byrd v. Me may sa gs 1017 (5

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

severance where possible exculpatory evidence be

tg ee ———

A-21

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

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

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

guidelines pire that (1) the testimony must be exculpatory

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

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

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

to testify if the defendant is tried separately.”

Trafficante argues that all of these conditions were

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

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

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

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

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

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

was recognized that the trial judge may also consider whether

the testimony of the codefendar* is “contrary to his own penal

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

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

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

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

We have a comparable situation here. There was no real

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

exculpating Trafficante and could perhaps be rewarded. The

evidence which corroborated Ambler’s identification of

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

credibility of Guggino’s proffered testimony.

Under the circumstances the trial judge did not abuse his

discretion in denying the motions for severance.

Ambler's Voice Identification Testimony

John Ambler was called by the Government to identify

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

was a F.B.1. agent engaged in the investigation of the gambling

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

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

F.B.1. and was employed by Trafficante’s attorney as a private

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

A-22

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

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

testified to two occasions on which he identified Trafficante’s

voice. On cross-examination the defense elicited testimony that

he was not positive of the identification. The court then

declared Ambler a hostile witness and permitted the

Government to elicit from Ambler that he had been retained by

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

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

positive identification of Trafficante’s voice on November 1,

1971.

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

have been admitted, Trafficante argues, inter alia, that

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

was insufficient predicate for the testimony, and it was

cumulative of other testimony. We find these contentions

without merit. There was no evidence that Ambler had

participated with Trafficante’s attorney in the investigation or

preparation of the case or had received any confidential

information from the attorney, so that no violation of the

attorney-client privilege is presented. Sufficient foundation was

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

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

available to provide identification is immaterial, particularly in

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

Trafficante’s voice.

[15] Trafficante contends further that the court abused its

discretion in treating Ambler as a hostile witness and permitting

his impeachment based on his relationship with Traffican:te’s

counsel. The common law rule prohibiting a party from

impeaching his own witness “bears little present relationship to

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

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

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

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

not err in declaring him a hostile witness and allowing

impeachment through evidence of his present employment.

ee F.R.Evid., Dh org Agnes ous pga hedipechag a

of this case, specifically provides credibility Seeaee m7

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

A-23

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

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

Ambler’s positive identification of Trafficante’s voice on

November 1, 1971. This evidence was properly admitted for

impeachment . A limiting instruction would have been

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

The failure to give the instruction sua sponte was not reversible

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

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

(1974).

Jury Instructions

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

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

conspiracy must involve at least five participants. It is well

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

jurisdictional requirement unrelated to the criminal character of

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

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

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

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

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

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

district court did not err in refusing to give the requested

instruction.

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

court erred in refusing to instruct the jury that the Florida

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

was no evidence suggesting that the gambling operation of

appellants fell within the requested instruction. The instructions

given were proper and adequate. -

Evidentiary and Procedural Rulings

Disclosure of Confidential Informants

[19] Appellant Alfonso contends that the court erred in

denying his motion for disclosure of the identity of four

tial

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

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

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

A-24

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

Court continued:

“We believe that no fixed rule with respect to

tee Ee ee eee

erroneous must depend on the particular circumstance of

each case, taking into consideration the crime charged, the

possible defenses, the possible of the informer’s

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

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

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

Under the circumstances of this case, disclosure was not

required. There is no evidence that the informants had

participated in the activities for which Alfonso was charged or

that evidence described by the informants was introduced at the

trial. Nor is there any evidence that the informants implicated

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

motion for disclosure of the identity of the informants.

operation. Appellants argue that this testimony wrongly

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

reason or the cryptic nature of the

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

appropriate to present expert testimony to

the conversations and explain the roles of the appellants. See

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

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

|

Rereading Evidence to Jury

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

ed the court to replay the taped conversations of Trafficante

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

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

matters discussed on the tapes. Appellants contend that they

were prejudiced by the rereading of the evidence, both because

i length’ and because the evidence which was

reread was slanted in favor of the Government.

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

responding to a jury request that certain evidence be reread.

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

in the ABA Standards Relating to the Administration of

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

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

beyond that specifically requested by the jury, but in its

discretion the court may also have the jury review other

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

undue prominence to the evidence requested.”

The rereading procedure followed here evinces a concerted

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

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

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

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

a Re

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

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

er ae

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

A-26

presentation indicated the court's complete impartiality. See

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

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

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

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

prejudice in the record as recounted by appellants.

Neither do we find that the evidence reread unfairly

favored the Government, as Trafficante contends. At the

beginning of the rereading, the court stated that it would a'low

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

Trafficante and “then move to the two defense witnesses who

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

later side bar conference, Trafficante’s attorney advised the

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

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

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

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

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

which [went] strictly to the Ambler capability of identifying

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

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

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

exercised its discretion in rereading certain evidence to the

jury."

Record of Rereading

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

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

requires that a court reporter attend each session of district

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

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

carefully explained to the jury the procedure to be followed in

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

made of numerous objections and motions of counsel outside

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

and the rulings of the court.

A-27

Appellants contend, however, in a “Supplemental Affid-

avit” and supporting argument filed subsequent to oral

argument, that the district court erroneously failed to make a

record of the rereading of the evidence, objections, comments

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

of the rereading. Specifically the affidavit states that appellants —

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

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

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

official court reporter be read; that there were discrepancies

between the notes of the two reporters, and objections were

made by counsel for appellants and overruled by the court.

While these proceedings are not shown in the transcript of the

record, appellants have failed to show they were prejudiced by

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

on the notes of the official court reporter.

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

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

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

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

however, that failure to comply with the statute does not

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

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

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

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

require reversal, some specific error or prejudice resulting from

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

attention”. The rationale behind this requirement was stated by

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

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

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

not be available to appellants to work a reversal without a

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

roc.”

Nowhere, either in their briefs or in their Supplementary

Affidavit, do appellants specify any prejudice arising from the

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

recorded. “This fact alone destroys appellants|'] position,

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

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

counsel during the rereading of the testimony.

A-28

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

present case from those in which this Court has reversed

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

Long, supra at 94."

Nor do we find any merit in the contention of appellant

Vega that the reinstruction of the jury following the rereading

of the evidence was confusing or improper."

Sufficiency of Evidence

Gross Revenue

[29] Appellants argue that the Government failed to show

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

any single day. F.B.1. Agent Harker, however, testified that

based upon the intercepted conversations, he calculated that the

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

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

testimony was sufficient to establish the statutory element of

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

(9 Cir. 1974) (en bane).

Trafficante

Trafficante attacks the sufficiency of the evidence upon the

supposition that the recorded interception of his conversations

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

were properly admitted and that F.B.1. Agent Ambler’s

identification of Trafficante’s voice was sufficient. Other

evidence corroborated this identification. In particular,

Trafficante and Guggino were observed meeting following a

recorded telephone conversation in which the caller and

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

a whole was sufficient to sustain Trafficante’s conviction.

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

’ supplemental argument, is distinguishable. There no record was

the of the record, if possible to disclose what

d the corneas ah Ds rece neem ©

the vit and argument of appellants’ counsel to require procedure.

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

indictment further that defendants would use these means to

carry out their a added.) The court then specified the

allegations with respect to the of each of-the appellants

participation

repeating the reference to Count I. The use of

means” manifestly refers to the allegations thereafter set with respect

to the various defendants.

A-29

Figueredo

(30, 31] Figueredo contends that his gambling operation

was separate from that of Trafficante, precluding prosecution

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

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

the gambling operations of Trafficante and Figueredo. The

evidence showed that Figueredo regularly accepted lay-off bets

from the Trafficante operation. As this court held in United

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

Congress in enacting § 1955 to include all persons who

participate in the operation of a gambling business, including

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

Conclusion

We find no reversible error and affirm the convictions of

all of the defendants.

| Plaintiff-Appellee,

v.

EDWARD GRADY PARTIN,

Defendant-Appellany.

UNITED STATES OF AMERICA,

Plaintiff-Appel}ee,

HAROLD SYKES,

Defendant-Ayspellant.

UNITED STATBS OPAMERICA,

Plaintiff-Appellee,

v.

O. RON E RUSSEL,

Deferdant-Appellant.

UNITEDSTATES OF AMERICK,

-laintiff-Appellee,

Vv.

DON MARION) UX and HUGH MARIO UX,

Defendants-Appellants.

et, 1-1 te. 1) aU all 7-41).

A-30

United States Court of Appeals,

Fifth Circuit.

May 19, 1977.

On remand from the Court of Appeals, 493 F.2d 750 and

514 F.2d 1244, defendants were convicted in the United States

District Court for the Western District of Louisiana at

Shreveport, Nauman S. Scott, Chief Judge, of conspiring to

obstruct the due administration of justice and they appealed.

The Court of Appeals, Lewis R. Morgan, Circuit judge, held

that: (1) it was error in one trial to instruct the jury that only

slight evidence was required to connect a particular defendant

with the conspiracy; (2) grand jury which issued the indictment

had jurisdiction to investigate suspected witness trampering; (3)

evidence of activities of one defendant prior to the

commencement of the conspiracy was properly admitted; (4)

trial court did not err in refusing to hold hearing to determine

competency of defendant to testify despite evidence that his

diabetic condition was not completely under control; (5) trial

court did not err in refusing to recuse itself; (6) change of venue

was properly denied; (7) severance was properly denied; (8)

instruction on requirement that the attempt to impede the due

administration of justice be corrupt was sufficient; and (9)

instruction on the witness security program was proper.

Reversed in part and affirmed in part.

1. Conspiracy —48.2(1)

Criminai Law —1172.2

Instruction that, once the existence of the agreement or

common scheme of conspitacy is shown, slight evidence is all

that is required to connect a particular defendant with the

conspiracy conflicts with the proposition that every act of guilt

must be established beyond a reasonable doubt; giving of the

instruction is reversible error.

2. Grand Jury —26

Where indictment being considered by grand jury was

brought in the Eastern District of Louisiana and the events

involved were centered there, and where one witness who had

been subpoensed by the Government had been out of sight for a

long time so that district attorney could only make an educated

A-31

guess as to where and by whom, if anyone, the witness had

been put in fear of his life, grand jury in the Eastern District of

Louisiana had authority to investigate possible witness

tampering in connection with the underlying indictment even

though, in bindsight, it was shown that no obstruction of justice

had yet occurred. 18 U.S.C.A. § 1503.

3. Grand Jury —36

Even if grand jury had been proceeding without

jurisdiction, proper method for witness to contest its

jurisdiction to issue subpoena was to file motion to quash, not

to ignore the subpoena.

4. Conspiracy —34

Defendant could be convicted of conspiring to obstruct the

due administration of justice by conspiring to induce another to

commit perjury. 18 U.S.C.A. § 1503.

5. Witnesses —297(9) |

Witness may not claim the privilege against self-incrimina-

tion out of the fear that he will be prosecuted for perjury for

what he is about to say; witness may claim that privilege if his

new testimony might suggest that he has perjured himself in

testifying on the same subject in a prior proceeding.

U.S.C.A.Const. Amend. 5.

6. Criminal Law —1130(2)

Failure of counsel to give citations to portions of the record

from which it quotes is unacceptable and may have dire

consequences for the party, especially where the case involves a

consolidated appeal with 50 volumes of record and a number

more of supplementary record. Fed.Rules App. Proc, rule 28(e),

28 U.S.C.A.

7. Criminal Law —661

In defendant's trial for conspiracy to obstruct justice, in

which parties had prepared a stipulation, which covered events

through October 3, 1972, in order to permit the jury to

understand the background of the case, evidence of activities

between October 3 and November 9, the date on which the

conspiracy was alleged to have started, was properly admitted

to bridge the gap in time between that covered by the

stipulation and that covered by the indictment so that jury

A-32

would not become confused and have to speculate about the

period. 18 U.S.C.A. § 1503.

8. Criminal Law —625

Letter in which physician stated that defendant's subjective

story given to the physician was that he had had a near collapse

in the courtroom with a deviation from rationality in speech

and manner as result of diabetes problem was insufficient to

require trial court to hold a hearing to determine whether the

defendant had been competent at the time that he testified

where the self-serving account contained in the letter was

directly at odds with the district court's first hand observation.

18 U.S.C.A. § 4244.

9. Judges — 47(2)

Fact that judge who presided at defendant's retrial

following remand had pre-

The Petitioner, Henry Trafficante, adopts the Appendix of

the Petition for Writ of Certiorari filed by co-defendants,

Alfredo Fernandez “Chino” “Al” Alfonso, Steve Guggino,

Frank Fraterrigo Vega, Louis Henry “Dr.”, “Bacardi” Figuer-

edo, Sr., Sam Vaglica and Sam Castellano, ‘Jr.