Opposition — Berlin v. United States

i) i:

In the Supreme Court of the United States

OcTOBER TERM, 1977

IRVING BERLIN, ET AL., PETITIONERS

Vv. °

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCree, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT, |

VINCENT L. GAMBALE,

Altorneys,

Department of Justice,

Washing*on D.C. 20530.

2 eee

In the Supreme Court of the United States

OcTOBER TERM, 1977

No. 77-548

IRVING BERLIN, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The court of appeals affirmed without opinion (Pet.

App. A).

JURISDICTION

The judgment of the court of appeals was entered on

September 12, 1977. The petition for a writ of certiorari

was filed on October 12, 1977. The jurisdiction of this

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

QUESTIONS PRESENTED

1. Whether the affidavits accompanying the application

for an order authorizing electronic surveillance sufficient-

ly established that other investigative methods were

inadequate.

(1)

2

2. Whether the search of petitioner Sarfaty’s wife's

purse before she was permitted to leave their apartment

during the execution of a search warrant violated the

Fourth Amendrient.

STATEMENT

Following a jury-waived trial in the United States

District Court for the Northern District of Georgia,

petitioners were convicted of conducting an_ illegal

gambling business in violation of 18 U.S.C. 1955 and 2.!

The court of appeals affirmed (Pet. App. A).

The evidence at trial consisted of a stipulation of facts

that demonstrated that petitioners together conducted a

gambling enterprise in violation of state law that did

business in excess of $2,000 per day (Pet. 4).

ARGUMENT

1. Petitioners contend (Pet. 11-12) that the application

for the electronic surveillance from which much of the

prosecution's evidence was derived did not show in

sufficient detail that “other investigative procedures have

been tried and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous,” as

required by 18 U.S.C. 2518(iX(c). The supporting af-

fidavits, however, belie this contention.?

‘Petitioners Berlin, Edelstein, and Sarfaty were sentenced to

imprisonment for a year and a day and were ordered to serve two

years’ probation and to pay fines of $3,000 each. Petitioners Singer

and Jarrett were sentenced to four months’ imprisonment to be

followed by two years’ probation, and to pay fines of $2,000 each

(C.A. App. 7).

-An initial affidavit dated November 7, 1974, accompanied an

application for installation of “touch-tone decoders” that disclose the

numbers ‘ialed from the target telephones. That affidavit was

incorporated by reference into the affidavit of December 4, 1974, the

adequacy of which is contested by petitioners. An affidavit dated

December 11, 1974, which included information derived from the

previously authorized surveillance, was submitted with a final

application. We are lodging copies of these affidavits with the Clerk

of this Court.

3

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

the application and its supporting affidavit, viewed in a

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

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

factual basis for the issuing authority to conclude that

traditional investigative techniques will be inadequate to

expose the full scope of the criminal activity under

investigation or the identity of the participants therein.

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

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

petitions for a writ of certiorari pending, Nos. 77-164 and

77-169; United States v. Scibelli, 549 F. 2d 222 (C.A. 1),

certiorari denied, June 6, 1977, No. 76-1212; United

States v. McCoy, 539 F. 2d 1050 (C.A. 5), certiorari

denied, 431 U.S. 919; United States v. Armocida, 515 F.

2d 29, 38 (C.A. 3), certiorari denied sub nom. Conti v.

United States, 423 U.S. 858; United States v. Brick, 502

F. 2d 219 (C.A. 8). The application in the present case

provides such a factual basis.

In the December 4, 1974 affidavit ac ompanying the

application, F.B.1. Agent Gary W. Hart detailed the facts

and circumstances surrounding the offense and the

targets’ participation. The affidavit averred that the

government's information up to that point derived from

visual observation over a three month period, the use

of three reliable informants, the use of court author-

ized “touch-tone decoders” that revealed the telephone

numbers to which illegal wagers were forwarded, and

telephone company records. This cumulation of evidence,

however, was not sufficient to insure that a violation of 18

U.S.C. 1955 could be proved at a trial, since the

informants refused to testify out of fear for their personal

safety. While the sources of information noted above

supplied probable cause to believe certain individuals

were implicated, they could not provide evidence as to the

4

bookmaking activities that were carried on inside private

residences and offices. Moreover, in Agent Hart's

experience, the use of search warrants would be

ineffective because gambling records often were sketchy,

difficult to interpret, and easy to destroy. Finally, drawing

on his more than four years’ experience in investigating

illegal gambling activities, Agent Hart concluded that

continued surveillance and other normal investigative

techniques would be unsuccessful. This was a sufficient

showing to warrant authorization of the intercept orders.

“[T]he purpose of the requirement in section 2518(1)(c)

is not to foreclose electronic surveillance until every other

imaginable method of investigation has been un-

successfully attempted.” United States v. Pacheco, 489 F.

2d 554, 565 (C.A. 5), certiorari denied, 421 U.S. 909. See

also United States v. Kirk, 534 F. 2d 1262, 1274(C.A. 8),

certiorari denied, June 27, 1977, No. 75-7001. Here,

normal investigative methods were followed and found to

be insufficient. Others were not attempted because it was

the opinion of the agent, based on considerable ex-

perience, that no benefit would be derived therefrom. The

statutory requirements were thus satisfied.

Petitioners allege, however, that the decision in this

case conflicts with the Ninth Circuit’s decision in United

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

the Kalustian panel appears to have interpreted 18 U.S.C.

2518 to require somewhat greater specificity in the

supporting affidavits than has been required by other

courts. But that opinion has not been followed in any

other circuit) and does not even represent the consistent

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

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

ss —_—?

5

view of the Ninth Circuit.4 Indeed, in United States v.

Spagnuolo, 549 F. 2d 705 (C.A. 9), the court recognized

that its circuit’s decisions in this area “often lead to results

difficult to harmonize” and tried “to promulgate a

manageable standard by which to judge affidavits under

section 2518(1)(c).” 549 F. 2d at 709-710. The standard it

adopted is that “the affidavit, read in its entirety, must

give a factual basis sufficient to show that ordinary

investigative procedures have failed or will fail in the

particular case at hand * * *. An affidavit composed

solely of conclusions unsupported by particular facts gives

no basis for a determination of compliance with section

2518(1\c). Kalustian teaches no more than that.” 549 F.

2d at 710. The Ninth Circuit standard as promulgated in

Spagnuolo was clearly met here. Accordingly, even

assuming that some conflict remains between the standard

used in the Ninth Circuit and elsewhere, this case does not

directly present that issue.>

4See United States v. Pezzino, 535 F. 2d 4&3 (C.A. 9); United

States v. Scully, 546 F. 2d 255 (C.A. 9), certiorari denied, 430 U.S.

970; United States v. Turner, 528 F. 2d 143(C.A. 9), certiorari denied

sub nom. Grimes vy. United States, 423 U.S. 996.

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

the Department of Justice has after Ka/ustian made efforts to conform

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

applications were submitted about six months before the Kalustian

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

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

issue. Moreover, this Court has, since the time of the Kalustian

decision, declined numerous requests to review decisions from the

Ninth Circuit and other circuits alleged to be in conflict with

Kalustian (see e.g., cases cited supra, notes 3 and 4); and nothing has

happened recently to justify ary change in this Court's refusal to

review what is, at heart, an int’ a-circuit conflict of little continuing

importance. Cf. Wisniewski v. '/nited States, 353 U.S. 901.

6

2. Petitioners’ contention (Pet. 13) that evidence seized

from Mrs. Sarfaty’s purse should have been suppressed is

without merit. During the search of the Sarfaty apartment

pursuant to a warrant, Mrs. Sarfaty, who was there when

the F.B.1. agents arrived at approximately 7:30 a.m. (Pet.

9), stated that she wished to leave the premises. An agent

reasonably suspected that evidence might be secreted in

the purse she intended to take with her; accordingly, the

purse was searched before she was permitted to remove it

from the apartment.® The search revealed two $10,000

certificates of deposit and a bank safe deposit box key

that was among the objects specifically authorized to be

se.zed.’

Petitioners assert that the search of the purse was

equivalent to a search of Mrs. Sarfaty’s person (Pet. 13-

14). But petitioners have no standing to assert an invasion

of Mrs. Sarfaty’s personal Fourth Amendment rights.

Alderman v. United States, 394 U.S. 165, 171-175; United

States vy. Lisk, 522 F. 2d 228, 230 (C.A. 7), certiorari

denied, 423 U.S. 1078; Mabra v. Gray, 518 F. 2d 512, 513

(C.A. 7). In any event, the search of the purse, which was

among the Sarfaty possessions that were in the apartment

when the agents arrived with the search warrant, was

simply an incident of the apartment search. Therefore, in

the circumstances of this case, the search of the purse was

clearly reasonable under the Fourth Amendment. See

United States v. Micheli, 487 F. 2d 429, 431-432 (C.A. 1);

*The clothing that Mrs. Sarfaty selected to wear was also inspected

by an agent before she put it on and left the apartment. However,

since that inspection produced no evidence there is no occasion to

consider the propriety of that search.

“The bank safe deposit box was subsequently searched pursuant to

a warrant. Petitioners do not challenge the legality of that search.

= — ee er ee eee ---—

-

United States v. Johnson, 475 F. 2d 977, 979 (C.A. D.C.):

United States v. Teller, 397 F. 2d 494, 497-498 (C.A. 7),

certiorari denied, 393 U.S. 937; Walker v. United States,

327 F. 2d 597, 600 (C.A. D.C.), certiorari denied, 377 U.S.

956. Compare United States v. Branch, 545 F. 2d 177, 181-

182 (C.A. D.C.).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Wape H. McCree, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. FEIT,

VINCENT L. GAMBALE,

Attorneys.

DECEMBER 1977.

DOJ-1977-12