# Petition — Stone v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0048%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1064 ## Text 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 BD cccceeeeccecdecceeeeetececbccccsccencncecsaces 6 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 A-18 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 A-19 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 A-20 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 A-21 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 A-22 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 A-23 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 A-26 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. A-27 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 A-59 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, sell [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0048%3A1. Public record. Not legal advice.