Petition — Stone v. United States
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Supreme Court, U. $,
FILED |
NOV 14 1977
AEL RODAK, JR., CLERK
In The
Supreme Court
of the United States
OCTOBER TERM, 1977
No P69)
JOHN ELI STONE, RICHARD CARL BIGGS,
JOHN DAYTON RITTER, and
JAMES WILLIAM WINNINGHAM,
Petitioners,
Vv.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
LESTER L. MAY
KENNETH A, HERRIDGE
Suite 2950, One Main Place
Dallas, Texas 75250
Attorneys for Petitioners
BSOUTHMWRETEAN LAW PRESS ~~ DALLAS TEXAS te ea, 2
Page
INGORCOAURMOPICIOS 0c icc c ere cree eee eeeennnes ii
CPICRIONS BOIOW vecicccrcccccccncscecccccccccvoece 2
Opinions Below oo... 6. cece nns TYLTTTTTT TT TT 1» 8
GUPIBGIOUIOR cescccrcccrccccccrererccccececseneecees 2
Questions Presented 6.0... eee eens 2
Statutes Involved ..... 6. eee eens See 4
StatementoftheCase 0... cic cece eee e eens 4
Reasons for Granting the Writ ......0.0..0.6.606000055 6
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BE vccccnccccnneeceeeecceeececeesesceeeeccsoonse 8
BER ceconccccccceccccccccccestessccescccccceesene 9
BW ccccccescescccscccncccceccecossccccccccstens 16
Y ccccccncecccccccccccceecccenecsececesceccecne 19
COMGRMBIOR cecccccccceccccccccccccccccccccnsccccs 20
Certificate Of Service® . 0... cece eee eee ee eees 23
Appendices
PBBOMEARA cecccccccccccccccvcccvcccccccees A-l
POG occcccccccccecenccccccccccscoses A-15
PGES occcccccccccccccvcccsccdeccccess A-16
ABBOMEED ocvcccccccccccccsecccccccccccecs A-17
PAGER ccccccccccscccccecccvcpecccecees A-22
PORE occcccccvcceseccccccvececcscccss A-52
ABBOMEIBGS coccccrecccccccccccsccceccceces A-56
PGR TE ccc ccccccccceccceccccecccescens A-57
PADPOMERME ccccccccccccccccceccccnccveseces A-70
ii
Index to Authorities
Cases: Pape
Elkin v, United States, 364 U.S. 206, 4 L.Ed,
2d 1669, 80S8.CT. 1437 (1960)
Tehan v. Shott, 328 U.S, 406, 15 L.Bd.2d 453, 86
D.C, GIO (IGTS) oc cccrrccccvccrcccccsccccescececees 13
Terry v. Ohio, 392 U.S, 1, 20 L.Bd.2d 889, 88
DFO REDO CRTOSD cecccccccccccccceccedeccceveccees 13
United States v. Acon, 513 F.2d 513 (3d Cir.,
1975)
United States v. Boone, 348 F.Supp. 168 (B.D.
WO GOVE SOC Cece eadsncncccrccccarccsdcceecocccoss i8
United States v. Calandra, 414 U.S. 338, 38
L.Ed.2d 561,94 8.Ct. 613 (1974)... 0.6.66 ccc c cc, 13
United States v. Chavez, 416 U.S. 562, 40 L..Hd.2d
ee as MIE « 0'5.000:06600060000 0060000000 12
United States v. Donovan, 429 Us. 4 413, 97 S.Ct.
658, 50 L. Bd.2d 652 (1977)
United States v. Doolittle, 507 F.2d 1368 (5th
Cir, 1975) en banc, 518 F.2d 500 (Sth Cir.,,
PU 0000) 6:6600.0600560 60065406 5600006000000006065 i4
United States v. Giordano, 416 U.S. 505, 40
L.Ed.2d 341, 948.Ct, 1820(1974)....., 12, 16,17,18,19
United States of America v. Kale Kalustian,
et al,, 529 F.24 585 (9th Cir., 1976) ............, 8,9,21
United States v. Lamonge, 458 F.2d 197 (6th
Cir., 1972)
United States v. weeepeien 341 F.Supp, 1107
eG MEN 9-004.00605 00050506000 6000 Re ERe KA Sess 1h
United States v. Pellicei, 604 F.2d 1106 (ist
LMT 5 dU. ndlon Uc veeidepeenbekéssadeiawausamse is
United States v, Skiaro':, 506 F.2d 837 (Sth
Cir,, 1975)
— Ot ee
iii
Index to Authorities — (Continued)
Statutes: Page
Title 18, United States Code:
Bection 1904 cic cc cree eeeeeeeeeeeeweeeennnee 4
Beotion 10GB] io. iiivcsccvccvevvveveevevevseevees 4
Bection 10BH5 ccc ccc reece cree eee eeweeeneenees 4
BHection VIO ccc cc ccc rcceereevereecveewnnens 3,9
Gection BBB occ ccc ccc vcvvvveveeveeveevevvene 4
BHection BB1S ..cc ci cc cv cccvvevevevevveeevenvens 4
Section 2H16(1) oc. cree cece eeeeeeneennnes 16,18
BectloONn VBS occ rics ccrcvevvvvevvevveveevvnes 4,15
Section QiG(A) ccc iccccscveceeeevevvvvevegees 19
Section V1B(l) ccc ccc cceeeveeveeeeeeeneees 4
Section 2H1B(4)(@) occ ccc eee eee e ene nnnes 6
Section QH1B(1O)(A) ocr eee eens a)
Title 28, United States Code:
BGection 1254(1) 0... ccc c cece cece eeeeeeeeeeenees 2
Bection 1651 oni vccvcvvvvsevvevvvsvvevvevesvens 2
BectioNn BINS on. ccvcvrvevevevvevevevevesevvvees 2
Federal Rules of Criminal F rocedure:
tC) en eh cc 2
In The
Supreme Court
of the United States
OCTOBER TERM, 1977
JOHN ELI STONE, RICHARD CARL BIGGs,
JOHN DAYTON RITTER, and
JAMES WILLIAM WINNINGHAM,
Petitioners,
V.
THE UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
John Eli Stone, Richard Carl Biggs, John Dayton
Ritter and James William Winningham (hereinafter
sometimes collectively referred to as ‘Petitioners’’)
respectfully file this their Petition requesting this
Court to issue its Writ of Certiorari to review the
Judgment and Opinion of the United States Court of
Appeals for the Fifth Circuit entered on September 1.
1977.
2
OPINIONS BELOW
Fifth Circuit The Opinion of the Court of Appeals
for the Fifth Circuit (Appendix A,
infra, pp. A-1 to A-14) has not as yet
been reported. An Order has been
rendered, but not reported, denying
the Application of Petitioners for Stay
of Mandate.
District Court The oral opinion of the District Court
denying the Motion of Petitioners to
Suppress Evidence was not reported
but is set forth in Appendix B, infra.
p. A-15).
JURISDICTION
The Judgment of the Court of Appeals (Appendix A
infra, p. A-1) was entered on September 1, 1977 ond
Petitioners’ timely Application for Rehearing was
denied on October 14, 1977 (Appendix C, infra, p. A-16).
The jurisdiction of this Court is invoked pursuant to
28 United States Code, Section 1651, 28 United States
Code, Section 2106, 28 United States Code. Section
1254(1) and Rule 37(b) of the Federal Rules of Criminal
Procedure.
QUESTIONS PRESENTED
The evidence leading to conviction of Petitioners
consisted of intercepted tape recorded telephone
conversations from two (2) public pay telephones to
which all the Petitioners, as well as others, were
parties. A Motion to Suppress the intercepted com-
munications was overruled by the District J udge. The
3
questions presented are concerned with whether the
communications were intercepted in accordance with
the strict requirements specified by the provisions of
Title 18, United States Code, Section 2510, et seq. The
issues are as follows:
1. Whether the Order signed by Judge William
M. Taylor authorizing the interception of such
communications was insufficient upon its face
since it did not reflect the date when it was en-
tered or signed by the Judge.
2. Whether the application and affidavit forming
the basis for the Order authorizing interception
was insufficient by reason of failing to contain a
full and complete statement as to whether other
investigative procedures had been tried and
failed or why other investigative procedures
appear to be unlikely to succeed or to be too
dangerous.
3. Whether the interception of such
communications was made in conformity with
the Order of Authorization signed by the District
Judge.
4. Whether the intercepted communications
should have been suppressed as evidence since
Acting Attorney General Robert Bork author-
ized the Application to the District Judge for an
Order authorizing the interception of such com-
munication.
5. Whether the intercepted communications
should have been suppressed as evidence since
the tape recordings were not taken before the
District Judge, who had entered the Order of
Authorization, for sealing under his direction
4
immediately upon termination of the
interception.
STATUTES INVOLVED
This case involves consideration of 18 United States
Code, Sections 2515, 2516, 2518 and 1955. These are
reprinted in Appendix H, infra, pp. A-57 to A-69 and
Appendix I, infra, pp. A-70 to A-72.
STATEMENT OF THE CASE
Reuben Goldstein, Anthony Paul Diadone and these
four Petitioners were charged by a ten count
Indictment returned in the Northern District of Texas
with having violated Title 18, United States Code,
Sections 1955, 1084 and 1952.
This is a wiretapping case. The evidence consisted
of intercepted tape recorded telephone conversations
to which all the Petitioners, as well as others, were
parties. Petitioners filed a Motion to Suppress the
intercepted communications as evidence and the
Trial Judge overruled all the contentions therein con-
tained. The same issues raised there and in the Fifth
Circuit Court are the same as are presented before this
Court.
Authorization for interception of the communica-
tions was supplied by an Order entered by the
Honorable William M. Taylor, Jr., United States
District Judge for the Northern District of Texas
(Appendix D, infra, pp. A-17 to A-21). It authorized the
Federal Bureau of Investigation to intercept
telephone communications to and from two coin
operated public telephones located at Denny’s
Restaurant, 3130 West Mockingbird Lane, Dallas,
9)
Texas. Nowhere does the Order reflect the date when it
was entered or signed by the Judge.
The Order states that, since the two telephones were
located in a public restaurant and were coin operated,
interception could take place only when John E. Stone
was a party to the conversation.
The Order provided that the interceptions could
continue only “for a period of fifteen days from the
date of this Order.”" (Emphasis supplied.) The Order
also required that the Judge be given reports on the
fifth, tenth, and fifteenth days during the course of the
interceptions.
To obtain the foregoing Order, Harold S. Jaquet,
Assistant United States Attorney, filed an appli-
cation accompanied by an affidavit executed by
Robert Bryant, Special Agent, Federal Bureau of
Investigation. (Appendix E, infra, pp. A-22 to A-51).
At the time the Application was presented to Judge
Taylor, Mr. Jaquet assured the Judge that the voice of
John Eli Stone was well known and easily identifiable
to the F.B.I.
Robert H. Bork, Acting Attorney General, specially
designated the Assistant Attorney General in charge
of the Criminal Division to authorize the application
for the Order authorizing the interception of the
communications. (Appendix G, infra, p. 56).
The interceptions took place from November 20,
1973, through December 4, 1973. Three five day reports
were submitted to Judge Taylor during the course of
the interception. (Appendix F, infra, pp. A-52 to A-55).
Almost immediately after the interceptions
6
commenced Mr. Jaquet learned that the F.B.I. Agents
conducting the wiretaps were having difficulty ascer-
taining the presence or absence of Mr. Stone in
Denny’s Restaurant and in identifying his voice but
this information was not communicated, however, to
Judge Taylor.
The original tape recordings were placed in boxes
and taken before Judge Taylor on December 17, 1973.
This was almost two weeks after the interception had
been terminated.
REASONS FOR GRANTING THE WRIT
I.
The Order Authorizing the Interception of
Communications Was Invalid On Its Face.
The Order signed by Judge Taylor authorizing the
interception was insufficient on its face. Judge
Taylor’s Order was not dated and since the absence of
a date on the wiretap order made the duration of the
order unlimited by its own terms, the interceptions
should have been suppressed.
Title 18, United States Code, Section 2518(4)(e)
requires that the Order of Authorization specifically
set forth the period of time during which the inter-
ception is authorized and Section 2518(5) states that
no order may authorize or approve the interception of
any oral or wire communications for “any period
longer than is necessary to achieve the objective of
the authorization, or in any event longer than thirty
days.”
Directly in point is United States v. Lamonge, 458
7
F.2d 197 (6th Cir., 1972), where the Sixth Circuit held
that the absence of a date on the wiretap Order made
the duration of the Order unlimited by its own terms,
thereby invalidating the Order. Moreover, the
addition of a date nunc pro tunc there, as was done
here, did not save the Order because it was facially
invalid when used.
The Fifth Circuit Court of Appeals has drawn a
distinction between Lamonge and this case in that
while the Order here was received by the District
Clerk shortly after it was signed by Judge Tayior and
was stamp dated by the Clerk November 20, 1973, the
Order in Lamonge had no date stamped on it.
However, there is no mention in Lamonge as to the
absence of a date stamped on the order by the Clerk. In
any event, a stamp date by the Clerk is certainly quite
different from a date entered on an Order by the
Presiding Judge.
lhe issue here is not whether Judge Taylor signed
the Order on November 20, 1973, but whether, at the
time it was used, it was a valid Order. Whether he did
or did not sign it on that date does not change the fact
that the wiretap authorization was on its face invalid
at the time it was used. United States v. Lamonge,
supra. Therefore, the interceptions should have been
suppressed.
The Order was not used by Judges and Lawyers but
by law enforcement officers whose authority to listen
to the innermost conversations of others have been
carefully circumscribed by Congress and the Fourth
Amendment.
Il,
The Order Authorizing the Interceptions Was
Based Upon an Application and Affidavit
Which Did Not Contain a Full and Complete
Statement as to Whether or Not Other Investi-
gative Procedures Had Been Tried and Failed
or Why Other Investigative Procedures Ap-
peared to be Unlikely to Succeed or to be Too
Dangerous.
The application and affidavit forming the basis of
the Order entered by Judge Taylor were insufficient as
a matter of law because the affidavit did not contain a
full and complete statement as to whether or not other
investigative procedures had been tried and failed or
why other investigative procedures appeared to be
unlikely to succeed or to be too dangerous, as required
by Title 18, United States Code, section 2518(1),
The opinion of the Fifth Circuit Court of Appeals is
diametrically opposed to the opinion rendered by the
United States Court of Appeals for the Ninth Circuit in
United States of America v. Kale Kalustian, et al,, 529
F.2d 585 (9th Cir,, 1976),
The affidavit relied upon in the instant case was
executed by Robert Bryant, an F.B.I, Agent. Para-
graphs 19 and 20 of the Affidavit (Appendix B, infra,
pp. A-49 to A-51) contain the only indication as to
whether or not other investigative procedures have
been tried and failed or why other investigative pro-
cedures appear to be unlikely to succeed if tried or to
be too dangerous. Information contained in those two
paragraphs is concerned exclusively with the expe-
rience of the Affiant and other F.B.I, Agents who
handle gambling investigations, There is no detail as
to whether or not actual other investigative pro-
cedures have been tried or why they would probably
fail if they were tried,
The Ninth Circuit Court of Appeals in Kalustian
pointed out that Title 18,United States Code, Section
2510, et seq. “absolutely prohibits electronic sur-
veillance by the Federal Government except under
carefully defined circumstances and after securing
judicial authority’ and “procedural steps provided in
the Act requires strict adherence.’ Moreover, the
Ninth Circuit went on to point out that “other inves-
tigative techniques were usually slower and more
difficult" but “unless they have been tried and failed
or reasonably appear to be unlikely to succeed if tried
or to be too dangerous, Title 18 United States Code,
Section 2510, et seq. does not allow wiretapping to .e-
place them.” The identical affidavit was utilized in
Kalustian as was utilized here and the Court said the
statute was not satisfied and the Order of Authoriza-
tion was invalid,
Il,
The Interception of Communications Was Not
Made In Conformity With the Order of Author-
ization Entered by Judge William M. Taylor.
Title 18, United States Code, Section 2518(10)(a) says
specifically that the contents of intercepted
communications must be suppressed if ‘the intercep-
tion was not made in conformity with the order of
authorization or approval.” Judge Taylor Ordered
(Appendix D, p. A-20), that these two “pay” tele-
phones
10
“... May be monitored only when it has been
determined by surveillance that John Eli Stone is
within the premises in which the telephones are
located and may be intercepted only when it has
been determined by voice identification that John
Eli Stone is party to the conversation,”
Harold Jaquet, the Assistant United States Attorney
who handled the application for the wiretap and
supervision thereof, testified that he assured Judge
Taylor, before the order was signed, that the voice of
John Eli Stone was well known and easily identi-
fiable to the F.B.I, Then, Judge Taylor ordered Mr.
Jaquet to make reports on the 5th, 10th, and 15th days
during the time the interceptions were taking place as
an extra added precaution because these were public
telephones.
The Fifth Circuit Court of Appeals stated in its
opinion: “a
“The complications experienced by the agents
were communicated to Judge Taylor in written
and oral reports submitted at the end of each five
day segment of the period of interception, as per
the interception order.”
The Court was, however, mistaken in this statement.
Mr. Jaquet testified as follows:
“Q. You at no time advised Judge Taylor
during the existence of this wiretap that any
difficulty was being had identifying, of course,
the voice of Mr. Stone.?
A. No, sir.
Q. So we may assume that Judge Taylor was
of the mind that he had been originally when he
authorized the tap, that Mr. Stone's voice was one
11
easily identifiable by those conducting the sur-
veillance?
A. True.”
Mr. Jaquet also testified that he only reported to
Judge Taylor those violations of Judge Taylor's Order
that were specifically set forth in the three five day
reports (which appear on pp. A-52 to A-55 of Appendix
F’.) Those three reports show nothing more than one or
two violations of the Court's order when, in truth and
in fact, there were a multitude of violations.
The Fifth Cireuit Court of Appeals has observed
that the monitored telephones were located in places
not well suited for surveillance and monitoring
agents encountered unexpected difficulty in identi-
fying Stone's voice, However, once again, this is
contrary to the assurances given to Judge Taylor
before he signed the Order authorizing the wiretap in
the first place.
These were, after all, two public “pay” telephones
accessible to the general public and located at a place
not far from what was then a busy international air-
port (Love Field in Dallas, Texas), It would have been
unthinkable to exciude the precautions taken by
Judge Taylor because they were absolutely necessary
to insure that only those parties to this investigation
would have their conversations listened to,
Suppression is demanded for a ‘failure to satisfy
any of those statutory requirements that directly and
substantially implement the congessional intention
to limit the use of intercepted procedures to those
situations clearly calling for the employment of this
12
extraordinary device,’ United States v. Giordano, 416
U.S. 505, 40 L.Bd.2d 341, 94 S.Ct, 1820 (1974),
This Court has taken the position that not “every
failure to comply fully with any requirement
provided in Title III would render the interception of
wire or oral communications unlawful.” United
States v. Chavez, 416 U.S, 562, 40 L.Ed.2d 390, 94 8.Ct.
1849 (1974), When, however, Congress intended a
particular provision to play acentral role in guarding
against unwarranted use of wiretapping or electronic
surveillance, then the interceptions must be sup-
pressed as evidence, United States v. Chavez, supra.
For example, where the issuing Judge was incor-
rectly informed as to which designated official had
authorized the application this was not substan-
tial because the Justice Department had performed
its task of prior approval. United States v. Chavez,
supra, However, failure to satisfy the statutory re-
quirement of prior approval by specified Justice De-
partment officials was a central role in the statutory
scheme because it bypassed a congressionally
imposed limitation on the use of the intercept pro-
cedure, United States v. Giordano, supra. Again,
failure of an intercept application to identify all those
likely to be overheard in incriminating situations did
not play a “substantial role’ with respect to the
additional authorization of the intercept order where
the statutorily imposed preconditions as to judicial
authorization were satisfied, and the issuing Judge
was simply unaware that additional persons might be
overheard in incriminating conversations because
“in no meaningful sense can it be said that the
13
presence of that information as to additional targets
would have precluded judicial authorization of the
intercept." United States v. Donovan, 429 U.S. 413, 97
S.Ct, 658, 50 L.ED.2d 652 (1977).
It cannot be doubted that suppression is required
when the interception is not made in conformity with
the order of authorization because the authorization
order certainly plays a central role in intercept cases.
The statute says that suppression is required if the
Order is violated.
In Elkins v. United States, 364 U.S. 206, 4 L.Ed.2d
1669, 80 S.Ct. 1437 (1960), this Court pointed out that
the exclusionary rule is designed to deter future
unlawful police conduct and effectuate the guarantee
of the Fourth Amendment against unreasonable
searches and seizures:
The rule is caloulated to prevent, not to repair.
Its purpose is to deter — to compe! respect for the
constitutional guarantee in the only effectively
available way — by removing the incentive to
disregard it.-- See also United States v. Calandra,
414 U.S. 338, 38 L.Bd.2d 561, 94 S.Ct, 613 (1974);
Tehan v. Shott, 328 U.S. 406, 15 L.£d.2d 453, 868.Ct,
459 (1966); and Terry v. Ohio, 392 U.S, 1,20 L.Ed.2d
889, 88 S.Ct. 1868 (1968),
As the Court stated in United States v. Calandra,
supra, the rule is one judicially created to safeguard
Fourth Amendment rights generally through its
deterrent effect. Aside from the fact that the wiretap
statute requires suppression for failure to follow the
intercept order, the exclusionary rule formulated by
the Supreme Court requires suppression, What deter-
rent effect will there be if the F.B.I, is allowed to
14
intercept conversations under circumstances where
they have been specifically proscribed from doing 80?
One of the members of this Court could have easily
used one of those pay telephones to discuss personal
business as could any other citizen or Counsel for
these Petitioners, Some examples of conversations
which were listened to by the F.B.I, are (1) a con-
versation between one Bill Ruth and a stock
brokerage firm wherein Mr. Ruth was inquiring as to
the trading price of stcok, (2) two individuals discuss-
ing a foothall game, neither of which was John Stone,
and (3) an entire conversation between gentlemen
named Eddie Haynes and Dick Melvin. There are
others,
This is more than was involved, for example, in
United States v. Doolittle, 507 F.2d 1368 (Sth Cir., 1975),
en banc, 518 F.2d 500 (Sth Cir,, 1975), relied upon by the
Fifth Circuit Court of Appeals in its opinion rendered
in this cause, There, the Court said that there was no
question but that some irrelevant and personal por-
tions of gambling conversations were intercepted as
well as certain nonpertinent conversations, Minimi-
zation was involved in that case but that is not the
point here. The Court was not dealing with such an
Order as was entered in this case, was not concerned
with a public telephone and no representations to the
Presiding Judge were apparently there made that the
voice of the primary target defendant was easily
identifiable. Presumably, there was no representa-
tion made to the Judge that the building where the
telephone was located would be under surveillance.
15
These Petitioners respectfully request the Court to
draw distinction between “minimization” as required
by Title 18, United States Code, Section 2518, and the
failure of the Government to intercept conversations
in conformity with the Order of Authorization,
because the two are separate and distinct items.
Different rules of law are applicable. The question of
“minimization” has been raised in a number of cases
but it always involved personal, as opposed to public,
telephones. Naturally, an otherwise valid wiretap
should not be rendered invalid because of the simple
inclusion of some irrelevant, personal and nonperti-
nent conversations of the suspected parties or those
who might be using their telephone. But, this is not
what we are dealing with here.
The facts involved here reflect numerous violations
of Judge Taylor's order pertaining to interception
occurring while John E. Stone was not in the
restaurant as well as interceptions when he was nota
party io the conversation. The “minimization” cases
relate solely to interception of communications not
dealing with the subject matter of the investigation.
The Court below said, in its opinion, “the fact that
most of unauthorized interceptions occurred while
voice identification was being made... .” is signifi-
cant. (Emphasis supplied). The fact also is, however,
that many of the unauthorized interceptions
involved entire conversations to which John E. Stone
was not a party.
The sum total is that either the F.B.I. has to inter-
cept in conformity with the Court's Order or it does
not. The statute mandates that the Court’s Order be
16
followed or the interceptions shall be suppressed.
Suppression is warranted in this case because the
record is replete with instances where the Court's
Order was violated.
IV.
The Order Authorizing the Interceptions Is
Invalid Because the Attorney General Who
Specially Designated an Assistant Attorney
General to Authorize the Application for the
Wiretap Was Only an “Acting” Attorney General.
Title 18, United States Code, Section 2516(1) re-
quires that the Attorney General, or an Assistant
Attorney General specially designated by the
Attorney General, authorize the application to a
Federal Judge for an Order authorizing the
interception of communications.
In United States v. Giordano, supra, this Court re-
viewed the legislative history of the requirement that
only the Attorney General, or one of his specially
designated Assistant Attorneys General, could
authorize the applications. In discussing the report of
Congress pertaining to this particular Section, the
Court stated:
“This reportis particularly significant in that it
not only recognizes that the authority to apply for
Court Orders is to be narrowly confined but also
declares that it is to be limited to those respon-
sive to the political process .. .” (Emphasis
supplied)
In Footnote Nine to its Opinion, the Court points out
that the Attorney General is appointed by the
President, by and with the advice and consent of the
seer
—— een
17
Senate, as are the nine Assistant Attorneys General.
The Court went on to say that neither the Executive
Assistant to the Attorney General nor any other of-
ficer in the Department of Justice except the Attorney
General or a specially designated Assistant Attorney
General, could authorize an application to a Federal
Judge for an Order of Interception and
“ ... itis apparent that Congress desired to cen-
tralize and limit this authority where it was
feasible to do so, a desire easily implemented in
the Federal establishment by confining the
authority to approve wiretap applications to the
Attorney General or a designated Assistant
Attorney General.”
Here, Robert H. Bork, the Acting Attorney General,
executed an instrument specially designating Henry
Petersen, an Assistant Attorney General, to author-
ize the application to Judge Taylor in this case.
In United States v. Acon, 513 F.2d 513 (3d Cir.,1975)
the court reviewed these statutory provisions and the
language of this Court in Giordano. The Third Circuit
went on to say:
“Defendants assert that an Acting Assistant
Attorney General cannot be designated specially
under Section 2516(1) to authorize wiretaps. With
this point, we agree.
In Giordano, improper authorization by the
Attorney General’s Executive Assistant rendered
the interception unlawful and subject to suppres-
sion under Section 2518(10)(a)(i). According to the
Court, Congress sought to restrict the use of elec-
tronic surveillance by restricting the power to
authorize wiretaps to a small group of senior
Justice Department officials. Violations of this
18
significant provision, therefore, were sufficient
to warrant suppression.
In the present case, the Government argues that
an Acting Attorney General is not the same as the
Attorney General’s Executive Assistant.
Although for other purposes this may be true, we
cannot agree in this context. Congress has
created a very narrow and specific authorization
power. An Acting Assistant Attorney General is
not mentioned in the statute. Neither does an
Acting Assistant Attorney General meet the Su-
preme Court's test of political responsiveness. As
such, an Acting Attorney General who has not
been appointed by the President and confirmed by
the Senate, may not be designated to authorize
wiretaps under Section 2516(1)."" (Emphasis
supplied).
The Court went on to note that several District Court
Opinions have held that an acting officer is outside
the scope of Section 2516(1), citing United States v.
Narducci, 341 F.Supp. 1107 (E.D. Pa., 1972) and United
States v. Boone, 348 F.Supp. 168 (E.D. Va., 1972).
The Third Circuit also stated “we note but decline to
follow a contrary holding in United States v. Pellicci,
504 F.2d 1106 (ist Cir., 1974).
The issue involved in Pellicci is the situation in-
volved here, where Robert Bork authorized the
application to the Judge for a wiretap order and the
Court there concluded the statute was complied with.
However, the reasoning of the Court in United
States v. Acon, supra, is obviously in line with the re-
quirements of the United States Supreme Court as set
forth in United States v. Giordano, supra.
19
V.
The Tape Recordings of the Intercepted Com-
munications Were Not Taken Before Judge
William M. Taylor for Sealing Under His Di-
rection Immediately Upon Termination of the
Interception.
Title 18, United States Code, Section 2518(a) re-
quires that
‘Immediately upon the expiration of the period
of the Order, or extensions thereof, such record-
ings shall be made available to the Judge issuing
such order and sealed under his directions.”
(Emphasis supplied).
F.B.I. Agent Robert Bryant testified that the inter-
ception terminated on December 4, 1973. However, the
contents were not made available to Judge Taylor
“immediately” but instead were taken before Judge
Taylor on December 17, 1973, some two weeks
subsequent to the termination of the interception.
No justification was offered for disregarding the
statute and failing to take the tapes immediately
before Judge Taylor for sealing. It just simply wasn't
done, although the statute requires it.
In United States v. Giordano, supra, this Court made
it abundantly clear that the purpose of the wiretap-
ping statute was effectively to prohibit, on the pain of
criminal and civil penalties, all interceptions of oral
and wire communications, except those specifically
provided for in the statute. The Court went on to
emphasize those specific requirements made by the
statute for the protection of individual rights and
unequivocally stated that one such requirement is
20
official control of the custody of any recordings or
tapes produced by the interceptions.
The Fifth Circuit ruled in United States v. Sklaroff,
506 F.2d 837 (5th Cir., 1975), that a delay of 14 days in
taking the recordings to the Judge who issued the
interception order was not enough to require
suppression, but at the same time the Court said that
“the purpose of this provision of the statute is to safe-
guard the recordings from editing or alteration.”
Further, that the Government accounted for the delay.
Here, the Government did not account for the delay.
The Fifth Circuit also stated in this case that sup-
pression was not required absent a showing by the
Petitioners that they had been prejudiced by the delay
or that the integrity of the interceptions had been in
any way disturbed. However, this is not what the
statute says. It states only that they will ‘“immedi-
ately’’ be taken. Two weeks later is not “immediate-
ly.” Like every other provision of the statute, this
particular provision is designed obviously to protect
the rights of those whom the Government seeks to
wiretap and no justification exists for the recordings
not being taken before Judge Taylor immediately sub-
sequent to December 4, 1973.
CONCLUSION
Surely not another case has existed where the facts
demonstrate a complete failure to comply with the
wiretapping statute. Error after error was committed
by the Government in this case, beginning with the
Attorney General in authorizing the Application to
Judge Taylor, continuing with a defective
21
Application and Affidavit, the securing of an order
facially defective and, finally, carrying on through
the actual wiretapping itself where the wiretapping
was not completed in conformity with the Order of
Authorization.
The Court of Appeals for the Fifth Circuit has
rendered an opinion in this case which conflicts with
the opinion rendered by the Court of Appeals for the
Third Circuit in United States v. Acon, supra, with
reference to whether an “Acting” Attorney General
may authorize an Application to a United States
District Judge for an Order allowing interception of
communications.
The opinion rendered by the Court of Appeals for the
Fifth Circuit in this case conflicts with the opinion
rendered by the Court of Appeals for the Sixth Circuit
in United States v. Lamonge, supra, with reference to
whether an undated order authorizing the
interception of communications is defective upon its
face.
The Court of Appeals for the Fifth Circuit has
rendered an opinion in this case which conflicts with
the opinion rendered by the Court of Appeals for the
Ninth Circuit in United States v. Kalustian, supra, as
to the necessity of the F.B.I. pursuing other
investigative procedures prior to obtaining an Order
authorizing interception of communications.
The Supreme Court should grant its Writ of Certi-
orari in order to resolve the conflicts which exist
between the Circuit Courts of Appeal as outlined
above and, after consideration of this case, reverse the
Judgment and opinion of the Court of Appeals for the
Fifth Circuit,
Respectfully submitted,
ESTER L. MAY “:
KENNETH A, HERRIDG
Suite 2950, One Main Place
Dallas, Texas 75250
Attorneys for Petitioners
CERTIFICATE OF SERVICE
True and correct copies of the above and foregoing
Petition for Writ of Certiorari were mailed, postage
prepaid, to Charles Cabaniss, Assistant United States
Attorney, Northern District of Texas, Dallas Division,
Federal Building, 1100 Commerce Street, Dallas,
Texas, and to The Solicitor General, Washington,
D.C., on the 14th day of November, 1977.
ches Z, oy
ee ea TE
A-l
APPENDIX A
United States Court of Appeals,
Fifth Circuit.
Sept. 1, 1977.
United States of America,
Plaintiff-Appellee,
Vv
Anthony Paul Diadone, John Eli Stone, Richard Car!
Biggs, Reuben Goldstein, and John Dayton Ritter,
Defendants-Appellants.
United States of America,
Plaintiff-Appellee,
Vv.
James William “Puny” Winningham,
Defendant-Appellant.
Nos. 75-2991, 75-3222.
Appeals from the United States District Court for
the Northern District of Texas.
Before TUTTLE, THORNBERRY, and TJOFLAT,
Cireuit Judges.
THORNBERRY, Circuit Judge:
Appellants, defendants below, stand convicted of (1)
conducting an illegal gambling business in violation
of 18 U.S.C. § 1955, and (2) using wire communi-
cations in interstate commerce to engage in the
business of betting or wagering in violation of 18
U.S.C, § 1084', Much of the evidence was stipulated,
and most of it emerged through wiretaps placed on
defendant Stone's telephone and on two public pay
' Not all of the defendants were convicted of both of these
crimes. All defendants except Biggs were convicted of violating
§ 1084. Defendants Stone and Biggs were also convicted of vio.
lating § 1955
A-2
telephones in defendant Stone's restaurant. The
government claimed authority for the tap under an
order issued by Judge Taylor of the Northern District
of Texas, The defendants moved to suppress the
evidence intercepted through these taps, as well as
evidence obtained by reason of the interceptions. The
trial court denied the motion, and the case proceeded
to trial and conviction.
Defendants raise a total of twelve issues on appeal.
Most of these issues concern the admissibility of the
evidence intercepted through the wiretaps. Some
defendants raise additional claims unconnected to the
wiretap order, The defendants’ arguments on these
issues do not merit reversal of the convictions. We
affirm the district court as to all defendants.
I,
All of the defendants contend that the trial court
erred in refusing to suppress the contents of
intercepted oral communications because the order
authorizing interception was not dated at the time it
was signed by the district court. In essence,
defendants urge that since the order authorizing the
wiretapping was not dated when it was signed, the
interception was authorized for a period of time
unlimited by the order. This is impermissible under 18
U.S.C. §2518(4)(e), and Berger v. New York, 388 U.S. 41,
87 S.CT. 1873, 18 L.Bd.2d 1040 (1967). After a hearing
where Harold Jaquet, former Assistant United States
Attorney in charge of investigation in this case, and
FBI Special Agent Bryant testified that Judge Taylor
signed the order authorizing the interception of wire
communications on November 20, 1973, the order was
A-3
amended nune pro tune pursuant to F.R.Crim. P, 36.
Rule 36 allows the correction of ‘clerical mistakes in
judgments, orders or other parts of the record and
errors in the record arising from oversight and
omission.”
Defendants rely primarily upon a Sixth Circuit
case, United States v. Lamonge, 458 F.2d 197 (6 Cir.
1972), cert. denied, 409 U.S, 863, 93 8.Ct. 153, 34 L.Ed.2d
110 (1972). Lamonge held that the absence of adate ona
wiretap order makes the duration of the order
unlimited, thereby invalidating the order. The
addition of a date nunc pro tune did not save the order
— it was facially invalid and the evidence obtained
under it should have been suppressed.
The instant case differs from Lamonge in at least
one important respect. The order in Lamonge had no
date stamped on it, while the order in this vase was
received by the district court clerk shortly after it was
signed by Judge Taylor, and was stamp-dated by the
clerk November 20, 1973,
In view of the fact that the order authorizing
interception in this case was dated when it was
received by the district court clerk on the same day
that it was signed by Judge Taylor, we hold that the
failure to date the order at the time it was signed by
Judge Taylor was a clerical mistake that could be
corrected under Rule 36, To the extent which this
result departs from that reached by the Sixth Circuit
in Lamonge, we decline to follow the Sixth Circuits
path.
Eee
A-4
Il,
Defendants Stone, Biggs, and Goldstein contend
that the trial court erred in denying the motion to
suppress because the order authorizing the
interception was based upon an insufficient
application and affidavit. The controlling statute, 18
U.S.C. § 2518(1)(c), requires every application for a
wiretap or interception order to contain, inter alia, ‘a
full and complete statement as to whether or not other
investigative procedures have been tried and failed or
why they reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” The claimed defect in
this case is that the affidavit did not contain such afull
and complete statement.
The purpose of the “full and complete statement”
requirement, as expressed by cases decided by our
Circuit, is to inform the issuing judge of the
difficulties involved in the use of the conventional
techniques, rather than to establish that every other
imaginable mode of investigation would be
unsuccessful, United States v. Pacheco, 489 F.2d 544
(5 Cir. 1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 49
L,.Ed.2d 774 (1975). The tests for sufficiency of the
statement of facts directs the court to take a common
sense view of the statement. United States v.
Robertson, 504 F.2d 289 (5 Cir. 1974), cert. denied, 421
U.S. 913, 95 S.Ct. 1568, 43 L.Ed.2d 778 (1975).
Agent Bryant's thirteen page affidavit supporting
the application sets forth the details of the gambling
operations as related to various agents by six confi-
dential informants. The affidavit asserted that
A-5
~
conventional surveillance techniques had proven and
were likely to be ineffective because most of the
gambling activity transpired over the telephone. A
search of defendant's residences would likely be
ineffective, asserts affiant, because gambling opera-
tions frequently maintan only temporary records
which often are in cypher. Furthermore, during raids
to seize such records, gambling operators frequently
destroy what records they have. Finally, afiant
asserts that the government's informers will not
testify at trial because of fear for their safety.
We have held a similar statement of facts sufficient
to justify the grant of an interception order. See
United States v. McCoy, 539 F.2d 1050 (5 Cir. 1976)
(McCoy II). In McCoy II, we stated:
[TJhe possibility that wiretaps may almost
always be approved in similar bookmaking cases
does not thake “formalities” of §§ 2518(1)(c) and
(3)(c). The application must still contain the “full
and complete statement’. The decision whether to
order a wiretap is then to be made by the district
court exercising its discretion. See United States
v. Smith, [9 Cir.] 519 F.2d [516] at 518. That court,
in an effort to make the § 2518(3)(c) finding, “May
require the applicant to furnish additional
testimony or documentary evidence in support of
the application”. 18 U.S.C. § 2518/2). In the
absence of additional evidence a wiretap order
might well be denied. We do not, therefore, judici-
ally abrogate §§ 2518(1)(c) and (3)(c) with respect
to § 1955 investigations. We simply hold that the
district court’s discretion was exercised here
upon sufficient factual representations.
539 F.2d at 1056.
A-6
The instant statement, when considered with the facts
averred, likewise satifies the relevant standards.
ITI.
Defendants Stone and Biggs argue that the trial
court erred in refusing to suppress the intercepted
communications because the application to Judge
Taylor did not have proper authorization. 18 U.S.C. §
2516(1) permits application for an interception order
only upon the authorization of the Attorney General
or an Assistant Attorney General specially
designated by the Attorney General. The authori-
zation in this case was executed by Assistant
Attorney General Henry Petersen. He issued the
authorization under power delegated to him by Acting
Attorney General Robert H. Bork. Bork, goes the
defendant's argument, was not an Attorney General
and therefore could not authorize the application and
could not delegate the power to do so.
We have previously held that in such matters
Acting Attorney General Bork stood in the shoes of
the Attorney General and possessed the powers of the
Attorney General. See United States v. McCoy, 539
F.2d 1050, 1054 (5 Cir. 1976) (McCoy II); United States v.
McCoy, 515 F.2d 962, 963 (5 Cir. 1975), cert. denied, 423
U.S. 1059, 96 S.Ct. 795, 46 L.Ed.2d 649 (1976) (McCoy I).
See also United States v. Pellicci, 504 F.2d 1106, 1107 (1
Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42
L.Ed.2d 821 (1975): “There is no basis for concluding
that one ‘acting’ as Attorney General has fewer than
all the powers of that office.’’ This asserted deficiency
in the authorization does not doom the interception
order.
A-7
IV.
Defendants Stone, Biggs, Winningham, and
Goldstein contend that the interception of wire
communications was not made in conformity with the
order of authorization signed by Judge Taylor. As to
the pay telephones in the restaurant, the order re-
stricted monitoring to those times when Stone was in
the restaurant and permitted interception of only
those calls to which Stone was a party. Defendants
argue that the wiretap evidence in question should
have been suppressed because of approximately 92
violations of these aspects of Judge Taylor's order.
and because Judge Taylor was not told of all the
unauthorized interceptions during the court of the
wiretaps.
In United States v. Doolitle, 507 F.2d 1368 (5 Cir.
1975), en banc, 518 F.2d 500 (5 Cir. 1975), cert. dismissed
as to petitioner Baxter, 423 U.S. 1008, 96 S.Ct. 439, 46
_.Ed.2d 380 (1975), cert. denied sub nom. Anderson v.
United States U.S. 97 S.Ct. 1172, 51 L.Ed.2d
580 (1977), sub nom. Malloway v. United States,
U.S. 97 S.Ct. 1173, 51 L.Ed.2d 580 (1977), sub nom.
Doolittle v. United States, id. this court also
confronted an attack upon the scope of the inter-
ceptions authorized by court order. “There is no
question that some irrelevant and personal portions
of gambling conversations were intercepted or that
certain nonpertinent conversations were intercepted.
But this is inherent in the type of interception
authorized by Title III, and we do not view the simple
inclusion of such conversations, without more, as
vitiating an otherwise valid wiretap. 507 F.2d at 1372.
A-8
So long as the monitoring agent listened to each call
only long enough to determine whether it dealt with
the subject matter of the district court's order, the inter-
ception of irrelevant conversations would not render
all of the intercepted conversations inadmissible. See
United States v. Armocida, 515 F.2d 29 (3 Cir’, cert.
denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84 (1975).
In the hearing on defendant's motion to suppress,
Mr. Jaquet, the Assistant United States Attorney in
charge of the interception, testified that as to the taps
on the pay telephone: (1) sometimes, there was
difficulty in determining whether Stone was in the
restaurant and, in fact, Stone left the premises on
several occasiosn without being observed; (2) the
monitored telephones were located in places not well
suited for surveillance; (3) monitoring agents
encountered unexpected difficulty in identifying
Stone's voice; and (4) the complications experienced
by the agents were communicated to Judge Taylor in
written and oral reports submitted at the end of each
five-day segment of the period of interception, as per
the interception order.
In view of the foregoing factors related by Mr.
Jaquet and the fact that most of the unauthorized
interceptions occurred while voice identification was
being made, the district court acted properly in
denying defendant’s motion to suppress on this
ground.
V.
Defendants Stone and Biggs contend that the
district court erred in refusing to grant their motion to
A-9
suppress because the tape recordings of intercepted
conversations were not taken to Judge Taylor
immediately upon the expiration of the authorized
interception period. 18 U.S.C. § 2518(8)(a). The tapes
were not taken to Judge Taylor until about two weeks
after the order expired.
The government relies upon United States v.
Sklaroff, 506 F.2d 837, 840 (5 Cir. 1975), cert. denied, 423
U.S. 874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975) (Sklaroff I),
where this court held that a fourteen day delay did not
amount to a violation of § 2518(8)(a) where there was
- no showing of prejudice to the defendants and the
government accounted for the delay. The defendants
have not shown that they were prejudiced by the delay
or that the integrity of the interceptions was in any
way disturbed. There was no error in refusing to sup-
press the evidence on this basis.
VI.
Defendant Goldstein argues that the government
failed to serve him with a notice of inventory as
required by § 2518(8)(d).
The interception period was in November and
December of 1973. According to the government,
Goldstein’s voice was identified in April or May of
1974; Goldstein's attorney was told during August of
1974 that Goldstein had been overheard, and Gold-
stein was compelled to appear before the grand jury in
Dallas during that same month. An additional
inventory notice ws mailed to Goldstein on April 7,
1975. The hearing on defendants’ motion to suppress
did not occur until June 6, 1975.
A-10
Section 2518(8)(d) provides that within ninety days
after the termination of the authorized interception
period, the issuing judge “shall cause to be served, on
the persons named in the order .. ., and such other
parties to intercepted communications as the judge
may determine in his discretion that it is in the
interest of justice” an inventory notice, informing
these persons of the existence and dates of the inter-
ception. The statute does not require that inventory
notice be sent to persons not named in the order. The
judge acts in his discretion. United States v. Donovan,
429 U.S. 413, 97 S.Ct. 658, 669, 50 L.Ed.2d 652 (1976).
Since Goldstein was not named in the order?, the
judge was not required to send him inventory notice
under § 2518(8)(d). Still, Goldstein actually received
the equivalent of inventory notice ten months before
the hearing on the motion to suppress. The district
court committed no error when it denied this claim in
the motion to suppress.
VIL.
Defendant Ritter contends that the wiretap evidence
should have been suppressed as to him because he
was known to be involved in the gambling trans-
actions in question, but was not named in the
application for the wiretaps.
If the government has probable cause to believe that
an individual is engaged in the criminal activity
under investigation and expects to intercept that
individual’s conversations over the tapped
® We do not understand Goldstein to argue that his name should
have been included in the application and order.
A-11
telephones, his name must be included in the applica-
tion to intercept. United States v. Donovan, 429 U.S. at
427-428, 97 S.Ct. at 668, 50 L.Ed.2d at 667-668.
Although Ritter was a known gambler, the
government contends that he was not known to be
involved in the gambling operation being
investigated, and that his voice was not identified
until December 4, 1973 (the date of the termination of
the authorized interception period). After it was
discovered that Ritter was involved, a notice of
inventory was sent to him on February 11, 1974.
Even if the application should have contained
Ritters’ name, the failure to do so does not compel
suppression of the interceptions. United States v.
Donovan, 429 U.S. at 435-437, 97 S.Ct. at 672-73, 50
L.Ed.2d at 672-673; United States v. Alfonso, 552 F.2d
605 (5 Cir. 1977); United States v. Sklaroff, 552 F.2d
1156 (5 Cir. 1977) (Sklaroff II).
VIII.
Defendant Ritter also argues that the order author-
izing the installation of pen register devices was
defective because it contained errors in the digits of
the telephone listed.
One of the numbers listed in the pen register order is
358-0996. The order authorizes installation of pen
registers on certain numbers, including 384-0996.
Agent Bryant’s affidavit correctly identifies the
number as 368-0996.
The government states that the variance is
immaterial, citing United States v. Doolittle, supra,
and United States v. Sklaroff, supra (Sklaroff I). In
A-12
Sklaroff I, the court found that an error in one digit in
one telephone number, and the transposition of two
digits in an exchange number (691, stated as 961), were
clerical errors and presented no ground for
suppression. 506 F.2d at 840. Similarly, the court in
Doolittle held that one incorrect digit in one of four
telephone numbers was an immaterial variation from
the actual number which did not warrant reversal of
the district court’s decision. 507 F.2d at 1371.
The application for interception, the order author-
izing interception, and Bryant's affidavit all
contained the correct number, 368-0996. Therefore, we
hold that the errors in the order to install pen registers
were clerical. The district court properly denied
Ritter’s motion to suppress.
IX.
Defendant Goldstein argues that the provisions of
18 U.S.C. §§ 2510-2520, which permit wiretapping and
electronic surveillance, contravene the First, Fourth,
Fifth, and Sixth Amendments to the Constitution.
This argument has no merit. We have twice held that
the challenged statutes do not contravene these
constitutional safeguards. United States v. Sklaroff
(Sklaroff I), 506 F.2d at 840; United States v. Doolittle,
507 F.2d at 1370.
X.
Defendants Stone and Biggs contend that the trial
court did not find five ox more persons who conducted,
financed, managed, supervised, directed, or owned all
or part of the alleged illegal gambling business, as
A-13
required for a violation of 18 U.S.C. § 1955.
According to United States v. Bridges, 493 F.2d 918,
921 (5 Cir. 1974), “almost anyone who works in the
gambling enterprise counts towards making up the
minimum five ...’’ See also United States v. Ciamacco,
362 F.Supp. 107, 111 (W.D.Pa. 1973): “It is well estab-
lished that all participants in the operation of an
illegal gambling business, except customers placing
bets, are conducting that business for purposes of §
1955. ...”
On page 405 of the Record, the district court stated in
the “Findings by the Court on Stipulations of
Evidence” that Stone was involved in an illegal
gambling business in which five or more persons
shared responsibilites. A similar finding with regard
to 3iggs is found on page 408 of the Record. There is no
challenge to the evidentiary support for these
findings. The district court's findings satisfy § 1955.
XI.
Stone and Biggs further contend that Count One of
the indictment should have been dismissed because it
alleged that these defendants “owned” all or part of
the gambling business, whereas the government
stated in its response to defendants’ Motion for a Bill
of Particulars that the owners of the alleged illegal
gambling business were unknown.
This argument has no merit. Although the govern-
ment’s response to item 18(d) of the Motion fora Bill of
Particulars states that the names and addresses of all
owners were unknown, it continues to say that the
names and addresses of the owners probably include
A-14
the names listed in 18B as participants. Stone and
Biggs were listed in 18B. By including the words “and
owners’ in the indictment the government was
merely stating another way that Stone and Biggs
could be in violation of § 1955, and that it was not
incumbent upon the government to prove that they
were the “owners.” It was only necessary that Stone
and Biggs participated in the gambling operations in
one of the ways listed in the indictment.
XII.
The final argument raised by defendants Stone and
Biggs is that there is sufficient evidence to support
their convictions. Defendant Biggs contends that the
evidence reflects that he was a bettor and not a book-
maker. Both Stone and Biggs assert that the evidence
in the record is insufficient to support their
convictions because certain stipulations of evidence
were never formally admitted into evidence.
Stipulation of Evidence Number 1 states that Biggs
relayed line (or odds) information to Stone, and that
Biggs and Stone instructed one another to place bets
on certain games. This evidence indicates that Biggs
was not merely a bettor, but was actually a partici-
pant in the operation. See United States v. Milton, 555
F.2d 1198 (5 Cir. 1977).
Likewise, the record reflects that the stipulations in
question were admitted into evidence. R. Vol. VII at
33-37. There is no error here.
Accordingly, the judgment of the district courtis,in
all respects,
AFFIRMED.
A-15
APPENDIX B
[77] MR. PRATHER:
Your honor, briefly, there are cases that hold actual
notice satisfies the inventory situation, and certainly
Mr. Goldstein and his attorney received actual notice
of the wiretap, and that notice came even before the
Motion to Suppress and before trial and that has been
held to be sufficient.
The unauthorized calls, we do not deny that there
were unauthorized calls. There were attempts made to
minimize the unauthorized calls and those reported,
written as well as verbal, to Judge Taylor, and he was
made aware of those.
As far as Mr. Ritter, his notice and his satisfaction, I
would merely state that Mr. Emerson has got his facts
confused about a telephone call, receipt of tapes by
Agent Cecil and that whole scope of events up there,
and merely Ritter received notice and his rights have
not been violated.
We ask the Court to overrule the Motion to
Suppress.
THE COURT:
I do think there are some problems that are doubtful
in this case, but I'm going to overrule the Motion.
If there are other Motions to be considered, take
them up with the District Attorney and he will come to
me and have them set.
MR. BURNETT:
Well, Your Honor, there is one that is of the. . . [78]
A-16
APPENDIX C
UNITED STATES COURT OF APPEALS
Fifth Circuit
Office of the Clerk
October 14, 1977
TO ALL PARTIES LISTED BELOW:
No. 77-2991 & 75-3222 — U.S.A. V. Diadone, et al.,
U.S.A. v. Winningham
Dear Counsel:
This is to advise that an order has this day been
entered denying the petition( ) for rehearing** and no
member of the panel nor Judge in regular active
service on the Court having requested that the Court
be polled on rehearing en banc (Rule 35, Federal Rules
of Appellate Procedure; Local Fifth Circuit Rule 12)
the petition( ) for rehearing en banc has also been
denied.
See Rule 41, Federal Rules of Appellate Procedure for
issuance and stay of the mandate.
Very truly yours,
Edward W. Wadsworth, Clerk
By Brenda M Hauck
Deputy Clerk
**on behalf of all appellants,
cc:
Mr. L. N. Westerlace
Messrs. Lester L. May
Kenneth Herridge
Messrs. Douglas G. Crosby
Stephen Stein
Messrs. Cecil Emerson
Robert T. Baskett
Messrs. Charles D. Cabaniss
Robert C. Prather
Mr. Warren Burnett
Richard J. Clarkson
.
*
A-17
APPENDIX D
In The United States District Court
For the Northern District of Texas
Dallas Division
In the Matter of Application of the United States
for an Order Authorizing the Interception
of Wire Communications
Misc. No. W-I-3-5
ORDER
Authorizing Interception of Wire Communications
To: Special Agents of the Federal Bureau of Investigation
Application under oath having been made before me
by Harold S. Jaquet, an Assistant United States At-
torney assigned to the Northern District of Texas at
Dallas, and an “investigative or law enforcement
officer” as defined in Section 2510(7) of Title 18, United
States Code, for an Order authorizing interceptions of
wire communications pursuant to Section 2518 of Title
18, United States Code, and full consideration having
been given to the matter set forth therein, the Court
finds:
(a) There is probable cause to believe that
JAMES PETER VOURAS, EDGAR HAYNES,
ISADORE MAX MILLER, GARY FRIARSON,
JOHN ELI STONE, ANTHONY PAUL DIADONE,
and others as yet unknown, have been and are
now committing offenses involving the interstate
transportation of wagering odds, the operation of
an illegal gambling business and use of interstate
telephone facilities to aid in racketeering in
violation of Title 18, United States Code, Sections
1084, 1952, 195 and Article 652(a), Texas Penal
Code, in the Northern District of Texas and the
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aforementioned individuals are conspiring to
commit the above offenses in violation of Title 18,
United States Code, Section 371.
(b) There is probable cause to believe that par-
ticular wire communications concerning these
offenses will be obtained through the interception,
authorization for which is hereby given. In
particular, these wire communications will
concern the receiving of betting odds and
information, the conducting of an illegal
gambling business, the interstate travel to
distribute the proceeds of an illegal gambling
business, and the identities of unknown co-
conspirators involved in the above offenses.
(c) Normal investigative procedures either
have been tried without success or reasonably
appear unlikely to succeed if continued, or rea-
sonably appear unlikely to succeed if tried.
(d) There is probable cause to believe that in
carrying out the offenses detailed above that
Edgar Haynes, John Eli Stone, Anthony Paul
Diadone and others as yet unknown, have usedand
are using the following telephones:
(214) 351-9106 subscribed as a public tele-
phone located inside the Denny's Restaurant,
3130 W. Mockingbird Lane, Dallas, Texas:
(214) 352-0252 subscribed as a public tele-
phone located inside Denny’s Restaurant,
3130 W. Mockingbird Lane, Dallas, Texas;
(214) 368-0996 subscribed to Val May Stone at
8548 Pickwick, Apt. B, Dallas, Texas.
WHEREFORE, it is hereby ORDERED that:
Special Agents of the Federal Bureau of
Investigation are authorized pursuant to application
by the Assistant Attorney General of the Criminal
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Division, The Honorable Henry E. Petersen, who has
been specifically designated by the Acting Attorney
General of the United States, The Honorable Robert H.
Bork, to exercise the power conferred on him by
Section 2516 of Title 18, United States Code, tointercept
wire communications concerning the above-described
offenses of Edgar Haynes, John Eli Stone, Anthony
Paul Diadone and others as yet unknown, to and from
the following telephones:
(214) 351-9106 subscribed as a public telephone
located inside the Denny’s Restaurant, 3130 W.
Mockingbird Lane, Dallas, Texas;
(214) 352-0252 subscribed as a public telephone
located inside Denny’s Restaurant, 3130 W.
Mockingbird Lane, Dallas, Texas;
(214) 368-0996 subscribed to Val May Stone at 8548
Pickwick, Apt. B, Dallas, Texas.
and to install such devices.
Such interception shall not terminate
automatically when the type of communications
described above have first been obtained, but shall
continue until communications are intercepted which
reveal the manner in which James Peter Vouras.
Edgar Haynes, Isadore Max Miller, Gary Friarson,
John Eli Stone, Anthony Paul Diadone, and others as
yet unknown, participate in the interstate sending,
receiving, disseminating and publiction of wagering
odds and information, the operation of an illegal
gambling business and the interstate travel to
distribute the proceeds of an illegal gambling
operation, in violation of Title 18, United States Code,
Section 1084, 1952, 1955 and Article 652(a), Texas
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Penal Code, and a conspiracy to commit such offenses
in violation of Title 18, United States Code, Section
371; and which reveal the identities of their con-
federates, their places of operation, and the nature of
the conspiracy involved therein, or for a period of
fifteen (15) days from the date of this Order, whichever
is earlier.
It is further ORDERED upon request of applicant
that the Southwestern Bell Telephone Company, a
communication carrier as defined in Section 2510(10)
of Title 18, United States Code, shall furnish the
applicant forthwith all information, facilities and
technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of
interference with the services that such carrier is
according the persons whose communications are to
be intecepted, and the furnishings of such facilities or
technical assistance by Southwestern Bell Telephone
Company to be compensated for by the applicant at
the prevailing rates.
Providing that the above-described wire
communications to and from the coin-operated tele-
phones bearing numbers (214) 351-9106 and (214) 352-
0252 may be monitored only when it has been
determined by surveillance that John Eli Stone is
within the premises in which the telephones are
located and may be intercepted only when it has been
determined by voice identification that John Eli Stone
is a party to the conversation.
PROVIDING FURTHER THAT this authorization
to intercept wire communications shall be executed
as soon as practicable after signing of this Order and
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shall be conducted in such a way as to minimize the
interception of communications not otherwise
subject to interceptions under Chapter 119 of Title 18,
United States Code, and must terminate upon the
attainment of the authorized objective, or in any
event, at the end of fifteen (15) days from the date of
this Order.
PROVIDING ALSO THAT Harold S. Jaquet shall
provide the Court with a report on the 5th, 10th, and
15th day following the date of this Order showing
what progress has been made toward achievement of
the authorized objective and the need for continued
interception.
W. M. Taylor
United States District Judge
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APPENDIX E
In The United States District Court
For the Northern District of Texas
Dallas Division
In the Matter of Application of the United States
for an Order Authorizing the Interception of
Wire Communications
Misc No. W-I-3-5
' APPLICATION
Harold S. Jaquet, an Assistant United States
Attorney at Dallas, Texas, in the Northern District of
Texas, United States Department of Justice, being
duly sworn, states:
1. He is an “investigative or law enforcement
officer ... of the United States” within the meaning of
Section 2510(7) of Title 18, United States Code, that is,
he is an attorney authorized by law to prosecute or
participate in the prosecution of offenses enumerated
in Section 2516 of Title 18, United States Code.
2. Pursuant to the authority vested in him by
Section 2516 of Title 18, United States Code, the Acting
Attorney General of the United States, The Honorable
Robert H. Bork, has specifically designated the
Assistant Attorney General in charge of the Criminal
Division, The Honorable Henry E. Petersen, to
exercise the power conferred on him by Section 2516
of Title 18, United States Code, to authorize this appli-
cation. Under the power delegated to him by special
designation of the Acting Attorney General, the
Assistant Attorney General of the Criminal Division
has authorized this application. Attached to this
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application as Exhibit A are a copy of the Order of the
Acting Attorney General specifically designating the
Assistant Attorney General of the Criminal Division
to act in these matters and a copy of the memorandum
of authorization of the Assistant Attorney General of
the Criminal Division, The Honorable Henry E.
Petersen.
3. This application seeks authorization to
intercept wire communications of John Eli Stone,
Anthony Paul Diadone, Isadore Max Miller, Gary
Friarson, James Peter Vouras, Edgar Haynes and
others as yet unknown, concerning offenses
enumerated in Section 2516 of Title 18, United States
Code, that is, offenses involving the interstate trans-
mission of wagering odds and information, the
operating of an illegal gambling business and use of
interstate telephone facilities in aid of a racketeering
enterprise in violation of Sections 1084, 1952 and 1955
of Title 18, United States Code, Article 652(a), Texas
Penal Code, and a conspiracy to commit such
offenses, in violation of Section 371 of Title 18, United
States Code, which offenses have been committed and
are being committed by John Eli Stone, Anthony Paul
Diadone, Isadore Max Miller, Gary Friarson, James
Peter Vouras, Edgar Haynes and others as yet
unknown.
4. He has discussed all the circumstances of the
above offenses with Special Agent Robert M. Bryant
of the Dallas, Texas, Office of the FBI, who has partici-
pated in the conduct of the investigation herein, and
has examined the affidavit of Special Agent Bryant
(attached to this application as Exhibit B and
A-24
incorporated by reference herein) which alleges the
facts therein, in order to show that:
(a) There is probable cause to believe that John
Eli Stone, Anthony Paul Diadone, Isadore Max Miller,
James Peter Vouras, Gary Friarson, Edgar Haynes
and others as yet unknown have been and are now
committing offenses involving the interstate trans-
mission of wagering odds and information and the use
of interstate telephone facilities in aid of
racketeering, the operation of an illegal gambling
business by five or more persons, which illegal
business has a gross revenue substantially in excess
of two thousand dollars in a single day, in violation of
Sections 1084, 1952 and 1955 of Title 18, United States
Code, Article 652(a), Texas Penal Code, in the
Northern District of Texas and the aforementioned
individuals are conspiring to commit the above
offense in violtion of Section 371 of Title 18, United
States Code.
(b) There is probable cause to believe that
particular wire communications of John Eli Stone,
Anthony Paul Diadone, Edgar Haynes and others as
yet unknown and unidentified, concerning the aove
offenses will be obtained through such interceptions,
authorization for which is applied for herein. In
particular, these wire communications will concern
the interstate transmission of wagering odds and
information, the placing and accepting of bets and
wagers and the identities of unknown conspirators
involved in the above offenses.
(c) The attached affidavit contains a full and
complete statement explaining why normal investi-
A-25
gative procedures either have been tried and have
failed or reasonably appear unlikely to succeed if
continued or reasonbly appear unlikely to succeed if
tried.
(d) There is probable cause to believe that,
carrying out the offense detailed above, John Eli
Stone, Anthony Paul Diadone, Edgar Haynes and
others as yet unknown are using the telephone
bearing numbers:
(214) 351-9106 subscribed as a public phone
located at Denny’s restaurant, 3130 West
Mockingbird Lane, Dallas, Texas;
(214) 352-0252 subscribed as a public telephone
located at Denny’s Restaurant, 3130 West
Mockingbird Lane, Dallas, Texas;
(214) 368-0996 subscribed as Val May Stone. 8548
Pickwick, Apartment B, Dallas, Texas.
5. No previous applications are known to have
been made to judges of competent jurisdiction for
authorization to intercept or for approval of inter-
ception of wire or oral communications involving any
of the same persons, facilities or places specified
herein.
WHEREFORE, your applicant believes that
probable cause exists to believe that Edgar Haynes,
John Eli Stone, Anthony Paul Diadone, Isadore Max
Miller, Gary Friarson, James Peter Vouras and others
as yet unknown and unidentified have benn and are
now committing offenses involving the interstate
transportation of wagering odds and information,
interstate travel in aid of racketeering, the opera-tion
of an illegal gambling business, in the Northern
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District of Texas, in violation of Title 18, United States
Code, Sections 1084, 1952, 1955, Article 652(a), Texas
Penal Code and a conspiracy in violation of Title 18,
United States Code, Section 371; that Edgar Haynes,
John Eli Stone, Anthony Paul Diadone and others as
yet unidentified have used, are using and will
continue to use the telephones described above in
connection with the commission of the above-
described offenses; and that communications of the
above-named persons concerning th oe offenses will
be obtained through the interception, authorization
for which is herewith applied for; and that normal
investigative procedures reasonably appear unlikely
to succeed if tried.
On the basis of the allegations contained in this
application and on the affidavit of Special Agent
Bryant attached hereto and made a part hereof, affiant
requests this Court to issue an Order, pursuant to the
power conferred on it by Section 2518, Title 18, United
States Code, authorizing Special Agents of the
Federal Bureau of Investigation to intercept wire
communications to and from the above-described
telephones until communications are intercepted
which reveal the full and complete identities of all co-
conspirators, the manner in which the above-named
persons and others as yet unknown participate in the
interstate transmission of wagering odds and
information, and the operation of an illegal gambling
business and which reveal the identities of their
confederates and their places of operation, or for a
period of fifteen days from the date of this Order,
whichever is earlier.
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The Court's attention is invited to the fact that the
telephone lines bearing numbers (214) 571-9106 and
(214) 352-0252 are coin-operated telephones
ostensibly available for public use. However, these
telephones are primarily used by John Eli Stone in the
conduct of the illegal gambling business to which this
appliction for an interception order is applicable.
Although the usual minimization procedures
requiring the termination of an interception of
conversations not involving these offenses will apply
to interceptions from these phones, I propose the
application of additional safeguards to minimize the
interception of those communications whose inter-
ception is not authorized. Accordingly, I propose in
addition to the usual minimization procedures that
your Order provide that the agents of the Federal
Bureau of Investigation monitor wire communi-
cations to and from the telephone lines bearing
numbers (214) 351-9106 and (214) 352-0252 only when it
has been determined by surveillance that John Eli
Stone is within the premises in which the telephones
are located and intercept such wire communications
only when it has been determined by voice identifi-
cation that John Eli Stone is a party to the conver-
sation to be intercepted.
It is further requested that this Court issue an
Order pursuant to the power conferred on it by Section
2518(4)(3) of Title 18, United States Code, directing
that the Southwestern Bell Telephone Company, a
communication common carrier as defined in Section
2510(10) of Title 18, United States Code, shall furnish
the applicant forthwith all information, facilities and
A-28
technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of
interference with the services that such carrier is
according the person whose communications are to be
intercepted, the furnishing of such facilities or tech-
nical assistance by the Southwestern Bell Telephone
Company to be compensated for by the applicant at
the prevailing rates.
HAROLD S. JAQUET, Asst.
United States Attorney
Northern District of Texas
Sworn to and subscribed before me this 20th day of
November, 1973.
/s/ W.M. Taylor, Jr.
United States District Judge
A-29
In The United States District Court
For the Northern District of Texas
Dallas Division
In the Matter of Application of the United States
for an Order Authorizing the Interception of
Wire Communications
AFFIDAVIT
Robert M. Bryant, Special Agent, Federal Bureau of
Investigation, Dallas, Texas, being duly sworn,
states:
1. lam aninvestigative or law enforcement officer of
the United States within the meaning of Section 2510
(7) of Title 18 United States Code — that is an officer of
the United States who is empowered by law to conduct
investigations of and to make arrests for offenses
enumerated in Section 2516 of Title 18, United States
Code. I have been a Special Agent with the Federal
Bureau of Investigation for five years, of which the
last three I have been assigned exclusively to investi-
gating violations of the Federal Gambling Statutes.
2. This affidavit seeks authorization to intercept
wire communications concerning offenses involving
violations of Sections 1084, 1952, 1955, Title 18 United
States Code, and Article 652.a, Section 1 of Texas
Penal Code, and a conspiracy to commit the aforesaid
offenses in violation of Title 18, United States Code,
Section 371, which have been and are now being
committed by John Eli Stone, Anthony Diadone, Eddie
Haynes, James Peter Vouras, Isadore Max Miller,
Gary “Buddy” Friarson, and others as yet unknown.
3. I have personally conducted the investigation of
this offense and because of my personal participation
in this investigation and of reports made to me by
A-30
other Agents of the Federal Bureau of Investigation,
and officers of the Fort Worth and Dallas, Texas Police
Departments, I am familiar with all the
circumstances of the offenses. Based on this familiar-
ity, I allege the facts contained in the paragraphs
below to show that:
(1) The transmitting of bets, wagers, and/or
information used in assisting in the placing of bets
and wagers from one state to another and thence to other
states is a violation of Title 18, United States Code,
Sections 1084 and 1952. And further that the carrying
on, operation and financing of a gambling business
involving five or more persons for a period in excess
of thirty days which grosses $2,000 or more in any
single day is a violation of 18, United States Code,
Section 1955, and Article 652.a Texas Penal Code. And
finally that any illegal combination of persons to
accomplish an end prohibited by any one of the three
above-mentioned Sections of 18, United States Code,
is a conspiracy prohibited by 18, United States Code
371.
(2) There is probable cause to believe that John
Eli Stone, Anthony Paul Diadone, Isadore Max Miller,
James Peter Vouras, Eddie Haynes, Gary Buddy
Friarson and others as yet unknown have been, are
now committing and will continue to commit offenses
against the laws of the United States, that is:
(a) The above-named individuals and others
as yet unknown are now and have been since May
of 1972, engaged in a comprehensive gambling
enterprise which receives the “line” and the
“steam” or “hot" teams on a weekly basis from
Las Vegas, Nevada, and then transmits the ‘line’
to various gamblers in other cities in Texas and
moreover, the above-named individuals take bets
a .
A-31
from numerous unknown individual bettors and
at the same time place bets for themselves and
John Eli Stone based upon the “steam” teams.
Steam teams are those which are considered by
the odds makers to be the best team to bet on.
Known co-conspirators operate generally in the
following manner: Anthony Paul Diadone
transmits the weekly line and the “hot” teams
from Las Vegas, Nevada, to John Eli Stone in
Dallas, Texas. John Eli Stone receives this infor-
mation at either of two locations, Denny's Restau-
rant, Dallas, Texas, or his home on Pickwick
Street in Dallas, Texas. John Eli Stone then trans-
mits the “line” by either phone or word of mouth
to Isadore Max Miller at Miller's home on
Valleydale Drive, Dallas, Texas. Isadore Miller
makes book for John Eli Stone at the Chateau-
briand Restaurant with the aid and assistance of
James Peter Vouras, also known as the “Greek”.
or at his residence located at 11144 B Valleyview
Drive, Dallas, Texas, at telephone number (214)
363-5166. Stone also passes the line to James Peter
Vouras. Gary “Buddy” Friarson, Eddie Haynes,
and others yet unknown, who conduct
bookmaking and money operations of their own.
All of the individuals depend on John Eli Stone
for information in which these bookmaking and
money moving enterprises are carried on.
(b) The heart of this bookmaking operation is
carried on at Denny’s Restaurant, 3130 West
Mockingbird. At this location, which is a one
story structure, are located three telephones, they
are (214) 351-5762, listed to J. E. Stone and Mary
Lou Million, 3130 West Mockingbird, (214) 351-
9106, which is a pay telephone located in the
kitchen of Denny’s Restaurant, and (214) 352-0252,
which is a pay telephone located in the rear of the
public dining area in a hallway of Denny’s
Restaurant. John Eli Stone also utilizes
A-32
telephone number (214) 368-0996, listed to Val
May Stone, 8548 Pickwick, Apartment B, Dallas,
Texas, and (214) 368-5905, also located at 8548
Pickwick, Apartment B, Dallas, Texas, is in the
name of Mrs. H. H. Hensley.
(3) The above described illegal gambling
business is also in violation of the laws of the State of
Texas, Article 652.a, Section 1, Texas Annotated penal
Code, and Dallas City Ordinance 30.81.
(4) There is probable cause to believe that
telephone numbers (214) 351-9106, (214) 352-0252, and
(214) 368-0996, are being used by John Eli Stone,
Anthony Diadone, Eddie Haynes, James Peter
Vouras, Isadore Max Miller, Gary Buddy Friarson,
and others vet unknown, in carrying out the offenses
detailed above, all of which appear more fully
hereinafter.
Background Information
on Principle of Co-Conspirators
1. John Eli Stone is a white male, American, date
of birth, 3/30/12, and according to the 1973 Dallas,
Texas City Directory is listed as manager of Denny's
Restaurant, located 3130 West Mockingbird. Stone
resides at 8548 Pickwick, Apartment B, Dallas, Texas,
with his wife, Val May Stone.
2. Anthony Paul Diadone, also known as
Anthony Paul Daidone, is married to John Eli Stone’s
daughter, white male American, born 11/16/23, and
resides at 1901 Beverly Way, Las Vegas, Nevada.
Diadone is employed by the Stardust Hotel in Las
Vegas, Nevada.
3. Isadore Max Miller, white male American,
date of birth 10/9/12, old time professional
=" ene $e
A-33
bookmaker, and known to Dallas. Texas police as
partner of John Eli Stone since early 1960s.
4. Gary Buddy Friarson, white male American,
date of birth, 6/23/38, has been employed as a
nightclub owner and booking Agent for various talent
in the Dallas area and is close associate of John Eli
Stone.
5. James Peter Vouras, Sr., also known as the
“Greek”, white male American, date of birth, 9/4/11,
is the owner and operator of the Chateaubriand
Restaurant, 2515 McKinney, Dallas, Texas. He is a
long time associate of John Eli Stone.
6. Edgar D. Haynes, also known as Eddie
Haynes, white male American, date of birth, 3/27/26,
Shamrock, Texas, is a close associate of John Eli
Stone and sometime employee of Denny's Restaurant,
3130 West Mockingbird, Dallas, Texas.
FACTS AND CIRCUMSTANCES
4. On 8-8-66 Special Agent Lee Y. Murphy, IRS
Intelligence told FBI Special Agent Harold J.
Edgerton that on 7-24-66 at approximately 10:30 AM
he (Murphy) was driving through the intersection of
Webb Chapel Road and Northwest Highway, Dallas,
Texas, when he saw John Eli Stone entering a public
telephone booth located at that intersection. Because
John Eli Stone had previously been investigated by
IRS Intelligence, Murphy parked his car and stepped
into the phone booth next to the phone booth occupied
by John Eli Stone. Murphy saw John Eli Stone writing
numbers and baseball teams in a small notebook.
Murphy watched John Eli Stone take down what
appeared to Murphy to be a “line” on baseball games
for approximately six minutes at which time John Eli
A-34
Stone left the phone book and drove off. Murphy then
obtained the number of the pay phone John Eli Stone
had used (FL2-0047). Several days later Murphy
checked the long distance tolls on FL2-0047; this check
revealed that on 7-24-66 at approximately 10:30 AM,
FL2-0047 had been used to call 735-8509 in Las Vegas,
Nevada. A check of the telephone listing in Las Vegas,
by Murphy revealed that 735-8509 was listed to one
Anthony Diadone at 2675 Sherwood, Apartment 7, Las
Vegas, Nevada.
5. During September, 1972, Detective Roy Lee Low-
ery of the Dallas Organized Crime Strike Force told
affiant that he (Lowery) had conducted a surveil-
lance of John Eli Stone during May and June, 1972,
because he (Lowery) had received information that
John Eli Stone was one of the major bookmakers and
suppliers of “line” information in the Dallas area and
that John Eli Stone received the “line” from Las Vegas
by telephoning Las Vegas from the Dallas Airline
Terminal located at Love Field. On 5-3-72, Lowery saw
John Eli Stone enter Love Field at approximately
11:10 AM and walk to a pay telephone station located
near the Delta concourse. Lowery saw John Eli Stone
make two telephone calls from the pay phone and then
leave the airport. Lowery then checked the phone
from which John Eli Stone placed the two calls and
determined the number to be (214) 352-0095.
On 5-10-72, Lowery observed one Isadore Max Miller,
a person whom Lowery described as a close associate
of John Eli Stone, enter the Love Field Terminal at
approximately 10:55 AM and leave at approximately
11:40 AM.
On 5-17-72, Lowery saw John Eli Stone enter the Love
A-35
Field Terminal at approximately 11:35 AM and leave
at approximately 12:15 PM.
On 5-18-72, Lowery again saw John Eli Stone enter the
Love Field Terminal at approximately 11:35 AM and
walk down the Delta concourse. After shuffling about
for a short time John Eli Stone walked to a group of
public telephones located near Gate 29. Lowery saw
John Eli Stone make several telephone calls from the
number-two pay station.
On 5-19-72, Lowery saw John Eli Stone again enter the
Love Field Terminal at approximately 2:08 PM and
leave at approximately 2:40 PM.
On 6-3-72, Lowery saw John Eli Stone enter the Love
Field Terminal at approximately 11:15 AM and walk
straight to the Delta concourse where he used pay
telephones numbered (214) 352-0216 and (214) 352-0095
to make several calls for approximately 15 minutes.
Pursuant to a subpoena duces tecum Southwestern
Bell Telephone Company furnished the toll records
for (214) 352-0095 which reveal that on 6-3-72, (214) 352-
0095 was used at 11:19 AM to place a call to (702) 735-
8509 in Las Vegas, Nevada. A check of the telephone
listings in Las Vegas reveals that on 6-3-72 (702) 735-
8509 was listed to one Anthony Diadone, 1901 Beverly
Way, Las Vegas, Nevada.
6. Detective Sgt. Roy Vaughn, Dallas Texas Police
Department, currently assigned to the Dallas
Organized Crime Task Force furnished affiant the
following information on September 11, 1972.
On September 11, 1972, Sgt. Vaughn told affiant that
he (Sgt. Vaughn) had been told by a confidential
informant (S#1) that: During the early part of
September, 1972, S#1 had aconversation with John Eli
A-36
Stone at Mr. Stone’s restaurant in Dallas, Texas.
During this conversation Mr. Stone told S#1 that he
(Mr. Stone) was “bringing in” the “line” from Las
Vegas on a weekly basis; that his source was his son-
in-law, Anthony Diadone, who was employed by the
Stardust Hotel.
During September, 1973, affiant and Sgt. Vaughn had
a meeting to discuss John Eli Stone. During this
meeting Sgt. Vaughn told affiant that S#1 had, during
late August and early September, 1973, renewed
contact with John Eli Stone and that during this 1973
contact John Eli Stone told S#1 that he still received
the “line” from his son-in-law, Anthony Diadone of
Las Vegas. S# stated that Mr. Stone told S#1 that
Anthony Diadone furnished “line” information on a
daily basis and furnished the “Hot Teams” or “Steam
Teams.” S#1 also stated that during the September,
1973, meeting he (S#1) had with Mr. Stone, Mr. Stone
advised S#1 that Isadore Miller would be taking bets
based on “his” line. S#1 was advised by Mr. Stone that
Isadore Max Miller was to receive a percent of the net
profit from the gambling business when the 1973
football season is over. John Eli Stone continued to
describe his “business” by stating to S#1 that James
Peter Vouras, sometimes known as “The Greek”, was
“moving money” for John Eli Stone. The term
“moving money” means, according to S#1 that John
Eli Stone will on a regular basis tell Jimmy “Greek”’
Vouras which teams to bet and then Vouras places
bets with John Eli Stone’s money.
S#1 stated to Sgt. Vaughn that according to Stone,
generally on Tuesday, Vouras will ‘settle up” with
Stone. S#1 has been a confidential informant of Sgt.
Vaughn for two years and has furnished high level
SS ee ee
named amine awe
. owe Oe. ee tone Ke
A-37
criminal intelligence during that time. Information
furnished by S#1 has, in the past, led to arrests of three
Dallas bookmakers. Sgt. Vaughn has investigated all
information given him by S#1 and has never found of
it to be false.
7. A confidential informant who for the purpose of
this affidavit will be identified as S#2 advised FBISA
F. Vincent Cesare of the Dallas Office, who in turn
advised your affiant the following: On October 12,
1972, S#2 told SA Cesare that he (S#2) had, during
early October, 1972, placed a number of bets with John
Eli Stone by phoning (214) 368-0996. S#2 stated that at
that time John Eli Stone demanded a minimum bet of
at least $200.00. On October 12, 1972, S#2 told SA
Cesare that in order to “settle up” with John Eli Stone.
S#2 went to Stone’s restaurant on West Mockingbird
in Dallas, Texas, to pay Stone the money he owed him.
S#2 is a bettor, especially on football games and has
furnished reliable information on six past occasions
during the last 13 months, which has been verified by
independent investigation by the FBI. Further, S#2
has been a businessman in the Dallas community for
three years and enjoys a good reputation for being a
truthful person.
8. A confidential informant who for the purpose of
this affidavit will be known as S#3 has advised affiant
of the following: On November 3, 1972, S#3 told affiant
that John Eli Stone was receiving the moves on the hot
teams from his son-in-law, Anthony Diadone of Las
Vegas, Nevada. S#3 further stated that he (S#3) was
present at the Denny’s Restaurant located on West
Mockingbird Lane in Dallas, Texas, on the weekend of
October 28, 1972, when John Eli Stone answered a
telephone call which Stone stated was from Anthony
A-38
Diadone and received that weekend picks from
Diadone. S#3 further stated that, according to Stone,
Isadore Max Miller handles the bookmaking end of
Stone’s gambling business. S#3 further advised
affiant that Stone had approximately twenty bettors
and that these twenty bettors placed their bets with
Isadore Max Miller. These bettors, S#3 has observed,
settle up with Miller at either the Denny's Restaurant
or at the Chateaubriand Restaurant, a Dallas
restaurant owned by Jimmy “Greek” Vouras and a
place frequented by gamblers, con-men and criminal
defense and a piace frequented by gamblers, con-men
and criminal defense attorneys. S#3 further advised
affiant that he (S#3) had seen numerous individuals
whom he (S43) knew to be gamblers, come into Stone’s
restaurant and “settle up” with either Stone or Miller.
S#3 further stated that John Eli Stone told S#3 that
Isadore Miller receives 25 percent of the net profit of
the bookmaking operation they (Stone and Miller)
run,
On January 15, 1973, S#3 advised affiant that John Eli
Stone had told S#3 during the week of January 8, 1973,
that he was still receiving the “line” from Anthony
Paul Diadone of Las Vegas on basketball games and
that Stone told S#3 that he would bring in a baseball
line for a few selected plays.
On April 26, 1973, S#3 told affiant that John Eli Stone
had told S#3 during the week of April 22, 1973 that he
(Stone) was going to Las Vegas to see his son-in-law,
Anthony Paul Diadone, who Stone indicated, is
conducting a bookmaking operation out of his
(Diadone's) pocket. $#3 further advised Affiant that he
(S#3) had seen John Eli Stone booking bets on baseball
games and betting the “hot” teams, which he (Stone)
A-39
received from Diadone during the week of April 26,
1973. S#3 went on to state that according to Stone,
Jimmy “Greek” Vouras and Gary “Buddy” Friarson
were “moving” money for Stone on baseball games.
On August 9, 1973, S#3 told affiant that John Eli Stone
had gone to Dallas Love Field Airport at
approximately 11:30 a.m. during the week of August6,
1973, where he (Stone) received the baseball and
football lines at the public telephone booths in the
main lobby at Love Field. S#3 advised that John Eli
Steve had told S#3 this information.
C1: September 5, 1973, S#3 told affiant that John Eli
Stone had told S#3 during the week of September 1.
1973 that Isadore Max Miller was going to handle the
bookmaking end of Stone’s gambling business.
During the week of September 1, 1973, S#3 advised the
affiant that John Eli Stone had told him that he (Stone)
was now reviewing the daily football line from
Anthony Paul Diadone at his restaurant over one of
the pay phones. S#3 stated that he had observed John
Eli Stone receive line information on telephone
number (214) 352-0252, during the week of September
1, 1973. S#3 further stated that Stone had told S#3 that
Isadore Max Miller was sitting on the phones “taking
bets from bettors” at his residence at telephone
number (214) 363-5166. S#3 further advised affiant that
John Eli Stone told S#3 that Miller receives 25 percent
of the net profit from the gambling business for
running Stone’s book.
On September 27, 1973, S#3 advised affiant that as a
result of being in the Denny’s Restaurant when the
line and the hot teams came in, and of talking with
John Eli Stone, he (S#3) had learned that as of
September 27, 1973, Jimmy “Greek” Vouras, Gary
A-40
“Buddy” Friarson, Eddie Haynes and several indi-
viduals S#3 was not familiar with were all “mov-
ing money” for John Eli Stone within the last 24
hours.
On October 11, 1973, S#3 advised the affiant that within
the last 24 hours, S#3 had been in Denny’s Restaurant
and seen John Eli Stone go to the rear of Denny’s
Restaurant and answer pay telephone number (214)
351-9106. Stone then returned and stated to S#3 that he
had just gotten the line from Anthony Paul Diadone.
Stone stated to S#3 that the line and hot teams comes
in daily over either number (214) 351-9106 or (214) 352-
0252. S#3 further stated that according to Stone,
Isadore Miller continues to run Stone’s bookmaking
operation from Miller’s home phone which S#3 gave
as (214) 363-5166. S#3 advised affiant that according to
Stone, that money moving operation end of Stone’s
gambling business, which S#3 had been told is still in
operation since Jimmy “Greek’’ Vouras, Eddie
Haynes and Gary “Buddy” Friarson are presently
betting Stone’s money.
S#3 advised the affiant on October 21, 1973 that S#3 had
called John Eli Stone at telephone number (214) 368-
0996 for the “hot” teams. Stone told S#3 that the
college steam teams were Pittsburgh, Howard, Air
Force, Brown and North Carolina. S#3 was called by
Stone on October 21, 1973 and advised that Cincinnati
and San Francisco were hot teams in the pros.
S#3 advised the affiant on November 1, 1973 that he
had called Stone during the week of October 22, 1973 at
(214) 368-0996 and received the following teams:
Jets/Denver, Dallas/Philadelphia, Pittsburgh/Cin-
cinnati, and San Francisco/ Atlanta.
—
ea aan
A-41
S#3 advised the affiant he had contacted Stone twice
on October 29, 1973 at telephone number (214) 351-9106
and (214) 352-0252, and received Buffalo as the hot
team in the game with the Kansas City Chiefs, and
also received Cincinnati as the hot team in the game
on November 4, 1973 with Dallas.
S#3 advised the affiant on November 1, 1973 that the
following people are moving money for the Stone-
Miller operation:
1) Eddie Haynes
2) Jimmy Vouras
3) Gary “Buddy” Friarson
S#3 advised he knows these individuals are moving
money for Stone and Miller because John Eli Stone
has told him this on numerous occasions and as
recently as October 30, 1973.
S#3 further advised your affiant on November 1, 1973
that S#3 had been told by John Eli Stone on October 29.
1973 that Stone still is receiving the Diadone line from
Las Vegas, Nevada over the pay phone at Denny's
restaurant.
On November 1, 1973, S#3 advised affiant that S#3
estimated the total handle of the Stone-Miller book-
making operation to be at $250,000 per week during
peak of football season.
On November 5, 1973, S#3 advised your affiant that on
November 4, 1973 he had called Stone at telephone
number (214) 368-0996 and John Eli Stone gave S#3
several hot teams.
I believe S#3’s information concerning Stone's
gambling business to be reliable because S#3 has been
an FBI informant for five years and during that time
he has furnished information which has led to the
A-42
arrest of eleven bookmakers on Federal charges and
has contributed to the arrest of sixteen bookmakers on
municipal charges. S#3 has been and remains a close
personal friend of John Eli Stone. Moreover, the long
distance toll records (both to be shown later) show
that a large number of calls leave the Denny's Restau-
rant for Las Vegas. I believe much of the information
given by S#3 in the past has been corroborated by
independent investigation.
9. On November 27, 1972, a confidential informant
(S#4) advised affiant that he (S#4) bets with Isadore
Max Miller, who, S#4 described as an agent of John Eli
Stone. S#4 advised that he (S#4) bets with Miller by
calling him at (214) 363-5166 and by settling up with
Miller on Tuesdays at the Chateaubriand Restaurant
on McKinney Street in Dallas, Texas. S#4 further
advised that he would, from time to time leave an
envelope containing cash at the Chateaubriand with
Jimmy “Greek” Vouras.
On August 21, 1973, S#4 told affiant that he (S#4) had
phoned Isadore Max Miller at (214) 363-5166 during
the weekend of August 18, 1973 and had placed bets
with Miller on the pro football games and that on
August 20, 1973, the following Monday, S#4 had left
his losings at the Chateaubriand Restaurant with
Jimmy Vouras. S#4 further advised that he, S#4, had
been put on as a player with Miller by Vouras, the
owner of the Chateaubriand Restaurant and had been
betting with Miller for over a year and that on at least
one occasion he (S#4) had settled up with John Eli
Stone at Stone’s restaurant on Mockingbird Lane for
the bets he had made with Isadore Max Miller.
On September 24, 1973, S#4 advised that he (S#4) had
within the last 48 hours placed six bets ranging from
— oe ee ee cee ee
A-43
$200 to $500 per game with Isadore Max Miller by
phoning Miller on (214) 363-5166.
On October 16, 1973, S#4 stated that he (S#4) had placed
a bet on the Cowboys-Redskins football game played
on October 8, 1973 with Isadore Miller by phoning
Miller on (214) 363-5166 and that he (S#4) had settled
up with Jimmy Vouras at the Chateaubriand
Restaurant.
I believe the information which S#4 has furnished the
affiant as he has been an informant for the FBI for over
a year and has furnished information on ten occasions
which always proved to be truthful by independent
investigation.
10. On January 29, 1973, affiant had a conversation
with a person (S#5) who stated that within the past
week Isadore Max Miller had told S#5 that he (Miller)
had been John Eli Stone’s phoneman for the 1972
football season and had received 25 percent of the net
profit from Stone’s business which had am
rani ounted to
During the month of August, 1973, I had another
conversation with S#5 at which time S#5 told affiant
that Isadore Max Miller told S#5 that he (Miller) was
again working for Stone on a 25 percent of the profits
basis for the 1973 football season and that Miller had
told S#5 that Stone would get the line from Anthony
Paul Diadone of Las Vegas.
I believe S#5’s information to be reliable because
independent investigation of much of the information
S#5 has given in the past has shown the information to
be truthful. S#5 has given information which has led
to the arrest of five bookmakers on Federal charges. I
believe S#5 to be credible because he is a rather small-
A-44
time bookmaker who would be in a position to
associate himself with others like himself.
11. On September 26, 1973, an individual (S#6) hada
conversation with Stan Pruitt of the Ft.Worth Metro
Squad. Mr. Pruitt in turn told FBI SA Ronald K.
Jannings who relayed S#6’s information to affiant.
On September 26, 1973, S#6 stated that S#6 had been
told by Stone that Stone and Miller were operating a
bookmaking business out of Stone’s restaurant. This
business, S#6 stated, was run by Stone and Miller by
Stone’s receiving the “line” from Anthony Paul
Diadone, Stone's son-in-law who is employed by the
Stardust Hotel in Las Vegas. Diadone, S#6 went on to
state, is also responsible for providing the steam to
Stone and Stone in turn relays the steam and the line
to Ft. Worth, Texas. S#6 stated that Stone told S#6 that
he (Stone) was lucky to have a son-in-law in Las
Vegas because if there was so much as one-point
change in Las Vegas Stone would get a call and thatif
there was something “wrong” he (Stone) would
likewise be advised by Diadone. By “wrong” S#6
explained, was meant that if any of the pro football
games were fixed or any of the referrees had been
bribed, Stone would find out about it. S#6 further
stated that he, S#6, had been inside Stone's restaurant
several times during the past three weeks and had
seen Stone using the pay phones to receive the line
and make book. S#6 stated that business was so brisk
that Stone would get caught between phones and have
to switch from one to the other.
I believe S#6 to be credible and reliable because Stan
Pruitt of the Ft. Worth Police. has indicated to me that
A-45
S#6 has given the Ft. Worth Police information in the
past which has proven to be true and correct. Further,
I know S#6 to be a gambler who has, in the past,
associated with John Eli Stone. Moreover, S#6’s
information is corroborated by the observations (see
below) of FBI SA Crillon C. Payne, II.
i2. On October 22, 1973, FBI SA Crillon C. Payne, II
told affiant that he had entered the Denny’s
Restaurant at approximately 10:00 a.m. on October 20,
1973 and stayed until approximately 10:30 a.m. During
that time (214) 352-0252, a pay phone, and (214) 352-
5762, a house phone, were ringing constantly. During
this time they would be answered by various
individuals, who would state that Stone was notin. On
October 21, 1973, Sunday, Payne again entered Stone's
restaurant at approximately 9:30 a.m. and saw John
Eli Stone and Eddie Haynes all answering the two
way pay phones and the restaurant phone, (214) 351-
5762. All three phones were, Payne states, ringing
constantly. Payne overheard some unknown
individual state to Stone, “I want to put a 1,000 on
Oakland.” However, Stone’s response was not
overheard as he (Stone) had to answer one of the pay
phones before he could answer the unknown indivi-
dual. At approximately 10:00 p.m., Stone left the
restaurant and as he was leaving, Payne overheard
him say, “Somebody be sure and get those phones.” At
approximately 10:30 p.m., Payne saw one of the
waitresses answer one of the phones and Payne over-
heard the following:
Unknown Waitress: “I said this was Denny’s.”
“No, he’s not here.”
13. The records of Southwestern Bell Telephone
show (214) 351-5762 subscribed to J. E. Stone and Mary
A-46
Lou Million and located at Denny’s Restaurant, 3130
W. Mockingbird Lane, Dallas, Texas. A review ofall of
the long distance calls from (214) 351-5762 shows the
following: From June 1, 1973 to September 29, 1973,
(214) 351-5762 was used to place long distance calls.
Twenty were to (702) 735-8509 in Las Vegas, Nevada,
show (702) 735-8509 to be subscribed to Anthony
Diadone.
The records of Southwestern Bell Telephone show
(214) 351-9106 to be a public pay telephone located
inside the Denny’s Restaurant, 3130 W. Mockingbird
Lane, Dallas, Texas. A review of the long distance
tolls from (214) 351-9106 shows: From June 13, 1973 to
September 19, 1973, 45 long distance calls were made
from (214) 351-9106; 12 were to the Diadone number in
Las Vegas.
The records of Southwestern Bell, Dallas, show (214)
352-0252 listed as a public telephone located inside
Denny’s Restaurant, 3031 W. Mockingbird Lane,
Dallas, Texas. A review of the long distance tolls from
(214) 352-0252 shows: From June 4, 1973 to September
11, 1973, (214) 352-0252 was used to make long distance
calls; 15 of the 152 long distance calls were to the
Diadone number in Las Vegas.
The three phones located in the Denny’s Restaurant
on Mockingbird Lane were used to place
approximately 269 long distance calls, 59 of which
were to the Diadone number in Las Vegas.
The records of Southwestern Bell Telephone show two
telephones installed at 8548 Pickwick, Apartment B,
Dallas, Texas (Stone’s residence). (214) 368-0996 is
subscribed to in the name of Val May Stone and
located at 8548 Pickwick, Apartment B, Dallas. (214)
368-5905 is subscribed to in the name of one Mrs. H. H.
A-47
Hensley, 8548 Pickwick, Apartment B, Dallas. The
long distance tolls of (214) 368-0996 reflect that between
May 10, 1973 and September 26, 1973, 42 long distance
calls were placed, 15 of which were to the Diadone
number in Las Vegas, Nevada. The long distance tolls
of (214) 368-0996 from June 8, 1973 to August 6, 1973
reflect: 13 long distance calls, two of which were to the
Diadone number.
The records of Southwestern Bell Telephone
Company, Dallas, Texas, reflect that (214) 363-5166 is
subscribed to in the name of Isadore Miller, 11144B
Valleydale Drive, Dallas, Texas 75230.
The above information was furnished by Mrs. Katy
Halford, Office of the Area Security Manager, South-
western Bell Telephone Company, Dallas, Texas,
pursuant to a subpoena iuces tecum dated May 29,
1973.
14. The records of the FBI show the following arrests
for the individuals named above:
ISADORE MILLER — arrested 1938 for ‘betting
on horse racing; August 13, 1949 arrested for
vagrancy; November 20, 1964 arrested for
accepting wagers without a Federal stamp; on
April 2, 1965 sentenced to 30 days — $5,000 fine
and one year probation.
JOHN ELI STONE — On March 28, 1929 arrested
for “operating a con game; November 16, 1929
arrested for swindling; July 23, 1930 arrested for
“being a fugitive from justice; February 13, 1934
arrested in a gambling investigation; April 4,
1938 arrested for felony theft; August 7, 1943
arrested for gambling — $12 fine; November 8,
1946. December 2, 1961 arrested for bookmaking;
June 29, 1963 arrested accepting wagers withouta
Federal stamp; convicted September 24, 1964 —
A-48
sentenced to $6,000 — three years probation and 60
days.
ANTHONY PAUL DIADONE — no arrests.
JAMES PETER VOURAS — On November 6, 1964,
arrested accepting wagers without tax stamp; 30
days to serve — $4,000 fine — three years
probation.
EDDIE HAYNES — no arrests.
GARY FRIARSON — no arrests.
15. No previous applications are known to have been
made to judges of competent jurisdiction for
authorization to intercept or for approval of inter-
ception of wire or oral communications involving any
of the same persons, facilities or places specified
herein.
16. Surveillances conducted during the past three
months show that John Eli Stone lives at 8548
Pickwick, Apartment B, Dallas, Texas. Affiant has
seen Stone over the past few months at least twice a
week and based on these observations it may be said
that Stone divides his time between the Pickwick
address and the Denny’s Restaurant located at 3031
West Mockingbird Lane, Dallas, Texas. Surveillances
conducted by affiant and FBI SA F. Vincent Cesare
indicate that Isadore Max Miller lives at 11144B,
Valleydale Drive, Dallas, and divides his time
between the Valleydale address, Stone’s restaurant
and the Chateaubriand Restaurant located at 2515
McKinney, Dallas, Texas.
17. Conventional methods of investigation are not
likely to achieve success. None of the confidential
informants named in this affidavit are willing to
testify against any of the co-conspirators.
A-49
18. Wherefore, affiant believes that probable cause
exists to believe that Anthony Paul Diadone, John Eli
Stone, Isadore Max Miller, James Peter Vouras, Eddie
Haynes, Gary Friarson and others yet unknown and
unidentified have been, are presently and will
continue in the future (1) to transmit and cause to be
transmitted over the telephone wagering odds and
wagering information from Las Vegas, Nevada, to
Dallas, Texas, in violation of 18 USC 1084; and (2) to
conduct and finance and manage a gambling business
in violation of 18 USC 1955 and Article 652a Texas
Penal Code; and (3) to travel between the State of
Nevada and the State of Texas for the purpose of
transporting the proceeds of an illegal gambling
business, in violation of 18 USC 1952 and (4) to
conspire, combine and enter into an illegal agreement
among themselves and others to violate the above
three laws, in violation of 18 USC 371. Affiant further
believes that the telephones, numbered and listed
below have been, are presently and will continue in
the future to be used, as described above, in connection
with the above outlined offenses.
(214) 352-9106 subscribed as a pay phone located at
Denny's Restaurant, 3031 West Mockingbird Lane,
Dallas, Texas.
(214) 352-0252 subscribed as a public telephone
located at Denny's Restaurant, 3031 West Mocking-
bird Lane, Dallas, Texas.
(214) 368-0996 subscribed as Val May Stone, 8548 Pick-
wick, Apartment B, Dallas, Texas.
19. My experience and the experience of other
Agents has shown even though gambling
“customers” are identified, they are unwilling to
furnish information to law enforcement Agents or
A-50
officials inquiring into gambling activities. This is
even more true when the “customer is a professional
gambler himself and is requested to give information
concerning a gambling operation. Experience has
further established that even though telephone toll
records are available, which may suggest a person is
engaged in illicit gambling, the records themselves
are not sufficient to prove the gambling activities.
Standard investigative techniques have not
succeeded in providing evidence to sustain prosecu-
tion in this case and would only succeed to a limited
degree in establishing that John Eli Stone and
Anthony Paul Diadone and others are involved in
gambling activities on the telephone. Furthermore,
such investigative techniques as physical surveil-
lance and examination of the records obtainable on
John Eli Stone and Anthony Diadone offer little
probability of success in securing presentable
evidence. Based upon my knowledge and experience
as a Special Agent of the FBI in the investigation of
gambling cases and my association with other
Special Agents who have conducted investigations of
gambling activities, normal investigative procedures
reasonably appear to be unlikely to succeed in estab-
lishing that John Eli Stone and Anthony Diadone and
others as yet unknown are involved in gambling
activities on the telephone in violation of Federal
laws. My experience and the experience of other
Agents have shown that gambling raids and searches
of gamblers and their gambling establishments have
not, in the past, resulted in the gathering of physical
or other evidence to prove all elements of the offenses.
I have found that through my experience and the
experience of other Special Agents, who have worked
on gambling cases, that other gamblers frequently do
A-51
not keep permanent records. If such records have been
maintained, gamblers, immediately prior to or during
a physical search, sometimes destroy these records.
Additionally, records that have been seized in the past
gambling cases have generally not been sufficient to
establish the elements of Federal offenses, because
such records are difficult to interpret and many times
are of little or no significance without further know]-
edge of the gambler's activity. Further, informants
who have furnished information in this affidavit
concerning the gambling activities of John Eli Stone
and Anthony Paul Diadone and others will not testify
because they fear for their lives. Therefore, the inter-
ception of these telephone communications is the
only available method of investigation which has a
reasonable likelihood of securing the evidence neces-
Sary to prove violations of these statutes.
20. Conventional methods of law enforcement are
likely to fail; and affiant is of the belief that communi-
cations of the above-named persons concerning these
offenses will be obtained through the interception for
a period of 15 days, authorization for which is applied
for herein, as normal investigative procedures have
proven unsuccessful.
Robert M. Bryant,
Special Agent, FBI
Sworn to and subscribed to before me this 20th day of
November, 1973.
U.S. District Judge
A-52
APPENDIX F
In the United States District Court
for the Northern District of Texas
Dallas Division
In the Matter of the Application
of the United States for an Order
Authorizing an Interception
of Wire Communications
Report
During the first five days of interception numerous
interceptions of a local and interstate nature regard-
ing transportation of wagering odds in the conduct of
an illegal gambling business were made.
One unauthorized interception was made from one
of the public telephones at the Denny's Restaurant on
Mockingbird Lane. Said interception took place when
voice identification between the person intercepted
and that of Mr. John Eli Stone proved to be very much
alike. The Court’s attention is invited to the fact that
the defendant, Stone, was present in the residence
when said interception was made.
FRANK D. McCOWN
United States Attorney
/s/ Harold S. Jaquet
HAROLD S., JAQUET, Assist.
United States Attorney
A-53
In the United States District Court
for the Northern District of Texas
Dallas Division
In the Matter of the Application
of the United States for an Order
Authorizing an Interception
of Wire Communications
REPORT
During the second five days of interception of the
numbers referred to in the Court’s Order, numerous
interceptions concerning illegal gambling and the
interstate transportation and travel of gambling
information and persons were intercepted.
During the second five-day period there was the
apparent unauthorized interception from one of the
phones listed in the Court’s Order. Said interception
was of one Anthony Diadone while he was present at
Denny’s Restaurant on Mockingbird Lane. The facts
surrounding this unauthorized interception are as
follows: Mr. Stone, the target defendant, was present
in the restaurant and used the telephone. He then gave
the telephone to Anthony Diadone who continued a
conversation Mr. Stone had initiated. The Court's
attention is invited to the fact that the defendant, Mr.
Stone, was in fact present in the restaurant and his
voice was identified on the telephone and therefore the
two pre-conditions to interception have been
satisfied.
Numerous calls from unidentified sources have
A-54
been intercepted on all phones. These sources either
placed bets or requested the line from one of the
targeted defendants.
WHEREFORE, the government prays that the Court
allow interception on all phones to continue for five
more days.
FRANK D. McCOWN
United States Attorney
/s/ Harold S. Jaquet
HAROLD S. JAQUET, Assist.
United States Attorney
A-55
In the United States District Court
for the Northern District of Texas
Dallas Division
In the Matter of the Application
of the United States for an Order
Authorizing an Interception
of Wire Communications
REPORT
During the final five days of authorized inter-
ception, numerous interceptions of an interstate
nature were obtained. These interceptions indicate
that wagering odds and information were trans-
ported from Dallas, Texas, to Oklahoma and perhaps
other states.
This information was transmitted to Dallas from
Las Vegas, Nevada. All interception has stopped. At
this particular time application is being made for one
extension and three separate and distinct authoriza-
tions.
FRANK D. McCOWN
United States Attorney
/s/ Harold S. Jaquet
HAROLD S. JAQUET, Assist.
United States Attorney
A-56
APPENDIX G
OFFICE OF THE ATTORNEY GENERAL
Washington, D. C. 20630
Special Designation of Assistant Attorney General
In Charge of the Criminal Division to Authorize
Applications for Court Orders Authorizing Inter-
ception of Wire or Oral Communications
Order No. 548-73
By virtue of the authority vested in me by 28 U.S.C.
509, 510, 5 U.S.C. 301, and 18 U.S.C. 2516, I hereby
specially designate the Assistant Attorney General in
charge of the Criminal Division to exercise the power
conferred by Section 2516 of Title 18, United States
Code, to authorize applications to a Federal judge of
competent jurisdiction for orders authorizing the
interception of wire or oral communications by the
Federal Bureau of Investigation or a Federal agency
having responsibility for the investigation of the
offense as to which such application is made, when
such interception may provide evidence of any of the
offenses specified in Section 2516 of Title 18, United
States Code.
/s/ Robert H. Bork
Acting Attorney General
October 23, 1973
A-57
APPENDIX H
Portions of Chapter 119
Wire Interception and Interception
of Oral Communications
TITLE 18
§2515 Prohibition of use as evidence of intercepted
wire or oral communications
Whenever any wire or oral communications has
been intercepted, no part of the contents of such com-
munication and no evidence derived therefrom may
be received in evidence in any trial, hearing, or other
proceeding in or before any court, grand jury, depart-
ment, officer, agency, regulatory body, legislative
committee, or other authority of the United States, a
State, or a political subdivision thereof if the dis-
closure of that information would be in violation of
this chapter.
Added Pub.L. 90-351, Title III, § 802, June 19, 1968, 82
Stat. 216.
§ 2516 Authorization for interception of wire or oral
communications
(1) The Attorney General, or any Assistant
Attorney General specially designated by the
Attorney General, may authorize an application toa
Federal Judge of competent jurisdiction for, and such
judge may grant in conformity with section 2518 of
this chapter an order authorizing or approving the
interception of wire or oral communications by the
Federal Bureau of Investigation, or a Federal agency
having responsibility for the investigation of the
A-58
offense as to which the application is made, when
such interception may provide or has provided
evidence of—
(a) any offense punishable by death or by
imprisonment for more than one year under
sections 2274 through 2277 of title 42 of the United
States Code (relating to the enforcement of the
Atomic Energy Act of 1954), or under the
following chapters of this title: chapter 37
(relating to espionage), chapter 105 (relating to
sabotage), chapter 115 (relating to treason), or
chapter 102 (relating to riots);
(b) a violation of section 186 or section 501(c)
of title 29, United States Code (dealing with
restrictions on payments and loans to labor
organizations), or any offense which involves
murder, kidnapping, robbery, or extortion, and
which is punishable under this title;
(c) any offense which is punishable under the
following sections of this title: section 201
(bribery of public officials and witnesses),
section 224 (bribery in sporting contests),
subsection (qd), (e), (f). (g). (h), or (i) of section 844
(unlawful use of explosives), section 1084 (trans-
mission of wagering information), section 1503
(influencing or injuring an officer, juror or
witness generally), section 1510 (obstruction of
criminal investigations), section 1511
(obstruction of State or local law enforcement),
section 1751 (Presidential assassinations, kid-
napping, and assault), section 1951 (interference
with commerce by threats or violence), section
1952 (interstate and foreign travel or
transportation in aid of racketeering enterprise),
section 1954 (offer, acceptance, or solicitation to
influence operations of employee benefit plan),
section 1955 (prohibition of business enterprises
of gambling), section 659 (theft from interstate
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shipment), section 664 (embezzlement from
pension and welfare funds), section 2314 and 2315
(interstate transportation of stolen property),
section 19.3 (violations with respect to racketeer
influenced and corrupt organizations) or section
351 (violations with respect to congressional
assassinations, kidnaping and assault);
(d) any offense involving counterfeiting
— under section 471, 472, or 473 of this
title;
(e) any offense involving bankruptcy fraud or
the manufacture, importation receiving, conceal-
ment, buying, selling, or otherwise dealing in
narcotic drugs, marihuana, or other dangerous
drugs, punishable under any law of the United
States;
(f) any offense including extortionate credit
+ ona under sections 892, 893, or 894 of this
title; or
(g) Any conspiracy to commit any of the
foregoing offenses.
(2) The principal prosecuting attorney of any State
or principal prosecuting attorney of any political
subdivision thereof, if such attorney is authorized
by a statute of that State to make application to a
State court judge of competent jurisdiction for an
order authorizing or approving the interception of
wire or oral communications, may apply to such judge
for, and such judge grant in conformity with section
2518 of this chapter an order authorizing, or approving
the interception of wire or oral communications by
investigative or law enforcement officers having
responsibility for the investigation of the offense as
to which the application is made, when such
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interception may provide or has provided evidence of
the commission of the offense of murder, kidnapping,
gambling, robbery, bribery, extortion, or dealing in
narcotic drugs, marihuana or other dangerous drugs,
or other crime dangerous to life, limb, or property,
and punishable by imprisonment for more than one
year, designated in any applicable State statute
authorizing such interception, or any conspiracy to
commit any of the foregoing offenses.
Added Pub.L. 90-351, Title III, §, June 19, 1968, 82 Stat.
216, and amended Pub.L. 91-452, Title VIII, §1X, §902(a),
Title XI, § 1103, Oct. 15, 1970, 84 Stat. 940, 947, 959;
Pub.L. 91-644, Title IV, § 16, Jan. 2, 1971, 34 Stat. 1891.
§ 2518 Procedure for interception of wire or oral
communications
(1) Each application for an order authorizing or
approving the interception of a wire or oral communi-
cation shall be made in writing upon oath or affirma-
tion to a judge of competent jurisdiction and shall
state the applicant's authority to make such appli-
cation. Each application shall include the following
information:
(a) the identity of the investigative or law
enforcement oficer making the application, and
the officer authorizing the application;
(b) a full and complete statement of the facts
and circumstances relied upon by the applicant,
to justify his belief that an order should be issued,
including (i) details as to the particular offense
that has been, is being, or is about to be
committed, (ii) a particular description of the
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nature and location of the facilities from which or
the place where the communication is to be inter-
cepted, (iii) a particular description of the type of
communications sought to be intercepted, (iv) the
identity of the person, if known, committing the
offense and whose communications are to be
intercepted;
(c) afullandcomplete statement as to whether
or not other investigative procedures have been
tried and failed or why they reasonably appear to
be unlikely to succeed if tried or to be too
dangerous;
(d) astatement of the period of time for which
the interception is required to be maintained. If
the nature of the investigation is such that the
authorization for interception should not
automatically terminate when the described type
of communication has been first obtained, a
particular description of facts establishing
probable cause to believe that additional com-
munications of the same type will occur there-
after;
(e) a full and complete statement of the facts
concerning all previous applications known to
the individual authorizing and making the appli-
cation, made to any judge for authorization to
intercept, or for approval of interceptions of, wire
or oral communications involving any of the
same persons, facilities or places specified in the
application, and the action taken by the Judge on
each such application; and
(f) where the application is for the extension
of an order, a statement setting forth the results
thus far obtained from the interception, or a
reasonable explanation of the failure to obtain
such results.
(2) The judge may require the applicant to furnish
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additional testimony or documentary evidence in
support of the application.
(3) Upon such application the judge may enter an ex
parte order, as requested or as modified, authorizing
or approving interception of wire or oral communi-
cations within the territorial jurisdiction of the court
in which the judge is sitting, if the judge determines
on the basis of the facts submitted by the applicant
that —
(a) there is probable cause for belief that an
individual is commiting, has committed, or is
about to commit a particular offense enumerated
in section 2516 of this chapter:
(b) there is probable cause for belief that
particular communications concerning that
offense will be obtained through such
interception;
(c) normal investigative procedures have
been tried and have failed or reasonably appear to
be unlikely to succeed if tried or to be too
dangerous;
(d) there is probable cause for belief that the
facilities from which, or the place where, the wire
or oral communications are to be intercepted are
being used, or are about to be used, in connection
with the commission of such offense, or are leased
to, listed in the name of, or commonly used by
such person.
(4) Each order authorizing or approving the inter-
ception of any wire or oral communication shall
specify —
(a) the identity of the person, if known, whose
communications are to be intercepted;
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(b) the nature and location of the communi-
cations facilities as to which or the place where,
authority to intercept is granted;
(Cc) @ particular description of the type of
communication sought to be intercepted, and a
statement of the particular offense to which it
relates;
(d) the identity of the agency authorized to
intercept the communications, and of the person
authorizing the application; and
(e) the period of time during which such
interception is authorized, including a statement
as to whether or not the interception shall auto-
matically terminate when the described
communication has been first obtained.
An order authorizing the interception ofa wire or oral
communication shall, upon request of the applicant,
direct that a communication common carrier.
landlord, custodian or other person shall furnish the
applicant forthwith all information, facilities, and
technical assistance necessary to accomplish the
interception unobtrusively and with a minimum of
interference with the services that such carrier, land-
lord, custodian, or person is according the person
whose communications are to be intercepted. Any
communication common carrier, landlord, custodian
or other person furnishing such facilities or tech-
nical assistance shall be compensated therefor by the
applicant at the prevailing rates.
(5) No order entered under this section may
authorize or approve the interception of any wire or
oral communication for any period longer than is
necessary to achieve the objective of the
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authorization, nor in any event longer than thirty
days. Extensions of an order may be granted, but only
upon application for an extension made in accordance
with subsection (1) of this section and the court
making the findings required by subsection (3) of this
section. The period of extension shall be no longer
than the authorizing judge deems necessary to
achieve the purposes for which it was granted and in
no event for longer than thirty days. Every order and
extension thereof shall contain a provision that the
authorization to intercept shall be executed as soon as
practicable, shall be conducted in such a way as to
minimize the interception of communications not
otherwise subject to interception under this chapter,
and must terminate upon attainment of the authorized
objective, or in any event in thirty days.
(6) Whenever an order authorizing interception is
entered pursuant to this chapter, the order may
require reports to be made to the judge who issued the
order showing what progress has been made toward
achievement of the authorized objective and the need
for continued interception. Such reports shall be
made at such intervals as the judge may require.
(7) Notwithstanding any other provision of this
chapter, any investigative or law enforcement officer,
specially designated by the Attorney General or by
the principal prosecuting attorney of any State or
subdivision thereof acting pursuant to a statute of
that State, who reasonably determines that —
(a) anemergency situation exists with respect
to conspiratorial activities threatening the
nationa! security interest or to conspiratorial
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activities characteristic of organized crime that
requires a wire or oral communication to be inter-
cepted before an order authorizing such
on can with due diligence be obtained,
an
(b) there are grounds upon which an order
could be entered under this chapter to authorize
such interception,
may intercept such wire or oral communication of an
application for an order approving the interception is
made in accordance with this section within forty-
eight hours after the interception has occurred, or
begins to occur. In the absence of an order, such inter-
ception shall immediately terminte when the
communication sought is obtained or when the appli-
cation for the order is denied, whichever is earlier. In
the event such application for approval is denied, or
in any other case where the interception is termina-
ted without an order having been issued, the contents
of any wire or oral communication intercepted shall
be treated as having been obtained in violation of this
chapter, and an inventory shall be served as provided
for in subsection (d) of this section on the person
named in the application.
(8)(a) The contents of any wire or oral communi-
cation intercepted by any means authorized by this
chapter shall, if possible, be recorded on tape or wire
or other comparable device. The recording of the
contents of any wire or oral communication under
this subsection shall be done in such way as will
protect the recording from editing or other alter-
ations. Immediately upon the expiration of the period
of the order, or extensions thereof, such recordings
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shall be made available to the judge issuing such
order and sealed under his directions. Custody of the
recordings shall be wherever the judge orders. They
shall not be destroyed except upon an order of the
issuing or denying judge and in any event destroyed
except upon an order of the issuing or denying judge
and in any event shall be kept for ten years. Dupuoats
recordings may be made for use or disclosure
pursuant to the provisions of subsections (1) and (2) of
section 2517 of this chapter for investigations. The
presence of the seal provided for by this subsection, or
a satisfactory explanation for the absence thereof,
shall be a prerequisite for the use or disclosure of the
contents of any wire or oral communication or
evidence derived therefrom under subsection (3) of
section 2517.
(b) Applications made and orders granted under
this chapter shall be sealed by the judge. Custody of
the applications and orders shall be wherever the
judge directs. Such applications and orders shall be
disclosed only upon a showing of good cause before a
judge of competent jurisdiction and shall not be
destroyed except on order of the issuing or denying
judge, and in any event shall be kept for ten years.
(c) Any violation of the provisions of this
subsec..on may be punished as contempt of the
issuing or denying judge.
(d) Within a reasonable time but not later than
ninety days after the filing of an applicatio2 for an
order of approval under section 2518(7)(b) which is
denied or the termination of the period of an order or
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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 inter-
ception, or the denial of the application; and
(3) the fact that during the period wire or oral
communications were or were not intercepted.
The judge, upon the filing of a motion, may in his
discretion make available to such person or his
counsel for inspection such portions of the
intercepted communications, applications and orders
as the judge determines to be in the interest of justice.
On an ex parte showing of good cause to a judge of
cometent jurisdiction the serving of the inventory
required by this subjsection may be postponed.
(9) The contents of any imtercepted wire or oral
communication or evidence derived therefrom shal]
not be received in evidence or otherwise disclosed in
any trial, hearing, or other proceeding in a Federal or
State court unless each party, not less than ten days
before the trial, hearing, or proceeding, has been
furnished with a copy of the court order, and
accompanying application, under which the
interception was authorized or approved. This ten-
day period may be waived by the judge if he finds that
it was not possible to furnish the party with the above
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information ten days before the trial, hearing, or pro-
ceeding and that the party will not be prejudiced by
the delay in receiving such information.
(10)(a) Any aggrieved person in any trial, hearing,
or proceeding in or before any court, department,
officer, agency, regulatory body, or other authority of
the United States, a State, or a political subdivision
thereof, may move to suppress the contents of any
intercepted wire or oral communication, or evidence
derived therefrom, on the grounds that—
(i) the communication was unlawfully
intercepted;
(ii) the order of authorization or approval under
which it was intercepted is insufficient on its face;
or
(iii) the interception was not made in conformity
with the order of authorization or approval.
Such motion shall be made before the trial, hearing, or
proceeding unless there was no opportunity to make
such motion or the person was not aware of the
grounds of the motion. If the motion is granted, the
contents of the intercepted wire or oral communi-
cation, or evidence derived therefrom, shall be treated
as having been obtained in violation of this chapter.
The judge, upon the filing of such motion by the
aggrieved person, may in his discretion make avail-
able to the aggrieved person or his counsel for
inspection such portions of the intercepted communi-
cation or evidence derived therefrom as the judge
determines to be in the interests of justice.
(b) In addition to any other right to appeal, the
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United States shall have the right to appeal from an
order granting a motion to suppress made under
paragraph (a) of this subsection, or the denial of an
application for an order of approval, if the United
States attorney shall certify to the judge or other
official granting such motion or denying such appli-
cation that the appeal is not taken for purposes of
delay. Such appeal shall be taken within thirty days
after the date the order was entered and shall be
diligently prosecuted.
Added Pub.L. 90-351-Title III, § 802, June 19, 1968, 82
Stat. 218 and amended Pub.L. 91-358, Title II, § 211(b),
July 29, 1970, 84 Stat. 654.
A-70
APPENDIX I
ion 1955
Title 18, United States Code, Section
Prohibition of Illegal Gambling Business
(a) Whoever conducts, finances, manages, super-
vises, directs, or owns all or part of an illegal
gambling business shall be fined not more tHan
$20,000 or imprisoned not more than five years, or
both.
(b) As used in this section —
(1) “illegal gambling business” means 4
gambling business which —
(i) is a violation of the law of a State or po-
litical 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 bstantially
iii) has been or remains in subs'
pe Aorcmal operation for a period in excess
of thirty days or has a gross revenue of
$2,000 in any single day.
“cambling” includes but is not limited to
al-eumiiie, ,oshmnaiing. maintaining ae
machines, roulette wheels or dice tables, hc
conducting lotteries, policy, bolita or number
games, or selling chances therein.
(3) “State” means any State of the United —
the District of Columbia, the commonwealth _
Puerto Rico, and any territory or possession 0
the United States.
(c) If five or more persons conduct, finance,
manage, supervise, direct, or own all or part of a
ee
A-71
gambling business and such business operates for
two or more successive days then, for the purpose of
obtaining warrants for arrests, interceptions, and
other searches and seizures, probable cause that the
business receives gross revenue in excess of $2,000 in
any single day shall be deemed to have been
established.
(d) Any property, including money, used in
violation of the provisions of this section may be
seized and forfeited to the United States. All pro-
visions of law relating to the seizure, summary, and
judicial forfeiture procedures, and condemnation of
vessels. vehicles, merchandise, and baggage for
viclation of the customs laws: the disposition of stich
vessels, vehicles, merchandise, and baggage or the
proceeds from such sale; the remission or mitigation
of such forfeitures; and the compromise of clainis and
the award of compensation to informers in respect of
su. forfeitures shall apply to seizures and
. rieltires incurred or alleged to have been incurred
under toe provisions of this section, insofar as
applicab]< ndnot inconsistent with such provisions.
Such duties as are imposed upon the collector of
customs or any other person in respect to the seizure
and forfeiture of vessels. vehicles, merchandise. and
baggage under the customs laws shai! be pertormed
with respect to seizures and forfeitures of property
used or intended for use in violation of this section by
such officers, agents, or other persons as may be
designated for that purpose by the Attorney General.
(e) This section shal! not apply to any bingo game,
lottery, or similar game of chance conducted by an
A-72
organization exempt from tax under paragraph (3) of
subsection (c) of section 501 of the Internal Revenue
Code of 1954, as amended, if no part of the gross
receipts derived from such activity inures to the
benefit of any private shareholder, member, or
employee of such organization except as
compensation for actual expenses incurred by him in
the conduct of such activity.
Added Pub.L. 91-452, Title VIII, § 803(a), Oct. 15, 1970,
84 Stat. 937.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.