Petition — GOLDSTEIN v. UNITED STATES (Nos. 77-724, 77-690)

17 Supreme Cc

FILED

NOV 11 1977

\

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1977

Noo @9"%24

REUBEN GOLDSTEIN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OSCAR B, GOODMAN, ESQ,

1600 Valley Bank Plaza

300 South Fourth Street

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorney for Petitioner

REUBEN GOLDSTEIN

LT Ce

Washington, OC « CLO PUBLISHERS © LAW PRINTING CO. « (202) 399.0625

OPINIONS BELOW

JURISDICTION

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .. .

STATUTES INVOLVED . .

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Il. THE GOVERNMENT FAILED TO COMPLY

A CONFLICT EXIST WITHIN THE CIRCUITS

AS TO THE INTERPRETATION OF WHAT

IS REQUIRED PURSUANT TO THE DIC.

TATES OF 18 USC. 2518 (1c) .........,

WITH THE PROVISIONS CONTAINED IN

TITLE 18 US.C.A, 2518 (1)(c) SINCE THE

AFFADAVIT SUBMITTED WAS BASED ON

CONCLUSORY ALLEGATIONS AND DID

NOT PROVIDE SUFFICIENT FACTS FROM

WHICH A DETACHED JUDGE COULD DE-

TERMINE WHETHER ALTERNATE, VIABLE

INVESTIGATIVE PROCEDURES EXISTED:

SUCH FAILURE REQUIRES SUPPRESSION

OF THE SEIZED CONVERSATIONS ......

Il. THE GOVERNMENT'S ATTEMPT TO COM.

PLY WITH TITLE 18 US.C.A, §2518 (8)(d)

WAS INADEQUATE AND SUCH FAILURE TO

SO COMPLY IS GROUNDS FOR SUPPRES-

SION OF THE SEIZED CONVERSATIONS .

IV. THE COURT'S ORDER AUTHORIZING THE

INTERCEPTION OF WIRE COMMUNICA.

TIONS WAS LEGALLY INSUFFICIENT IN

THAT THE DATE OF THE ORDER'S ENTRY

WAS OMITTED AS MANDATED BY TITLE

18 U.S.C, §2518 (4)(e) AND SUCH OMISSION

IS GROUNDS FOR SUPPRESSION OF THE

SEIZED CONVERSATIONS ..........55.

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CERTIFICATE OF SERVICE BY MAILING .............. 14

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TABLE OF AUTHORITIES

Cases:

Berger v, New York, 388 U.S. 41 (1967) . nie ae ae ee

Berger v. United States, 388 U.S. 41, 63(1971) . 2éenae» ON

Katz v. United States, 389 U.S. 347(1967) .......000000e 13

Osborn v, United States, 385 U.S. 323(1966) ............. 13

United States v. Chun, 503 F.2d $533 (9th Cir,, 1974) ........ 12

United States v. Kalustian, 529 F.2d 585 (9th Cir.,

AI SS tp Een Emer ee AR a RPE a eo eae ee 9,10, 11

United States v, Lamonge, 458 F.2d 197 (6th Cir.,

1972), cert. denied, 409 U.S. 863, 93 S.Ct. 183,

| RR 8) Oo: errr rr rrr errrr rs 12

United States v. Ventresca, 380 U.S, 102, 109 (1965) ........ 11

Statutes:

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I OUEe ca vcclete Won seteccewervesseuseees 4

UE DED cece reedecescceceese ee eeaseeee 4

ET AS" Perrererrrerererere i

IBUSBC.A. 8 2SIB (ING) 0. crccvcnsevcvecee 2,3,5,7,9,10

18 U.S.C. § 2518 (4Mfe). ow cece reer ween eens 3,8,12,13

RUS Sot © 1) Te) |) ee eee 4

18 U.SC.A. $2518 (BMG)... crc vc cr sven svvcvens 2,3,7,8

WBUSBL. SIZSSC) oc cccccesccessscvessccvesevers 2

Other Authorities:

Senate Report 1097, 90th Congress, Second Session

101 U.S, Code and Administrative News, 1968 ......... 10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

REUBEN GOLDSTEIN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The Petitioner, REUBEN GOLDSTEIN, respectfully

prays that a Writ of Certiorari issue to review the

opinion and judgment of the United States Court of

Appeals for the Fifth Circuit entered in this proceeding

on September 1, 1977. A petition for rehearing and a

suggestion for rehearing en banc was denied on October

14, 1977,

ty

OPINIONS BELOW

The opinions of the United States Court of Appeals

for the Fifth Circuit, not yet reported, appear in

Appendix “A” attached hereto.

JURISDICTION

This Court's jurisdiction is invoked under 28 U.S.C,

§1254(1).

QUESTIONS PRESENTED FOR REVIEW

|. Whether a conflict is present between the Circuit

Courts of Appeal as to the interpretation of Title 18

U.S.C.A. §2518(1(c).

2, Whether the Government's attempt to comply

with Tithe 18 U.S.C.A, §2518(1)(c) was inadequate in

that the affidavit submitted for this purpose was

conclusory and did not provide sufficient facts from

which a detached judge could determine whether

alternate, viable investigative procedures existed, and

whether such failure to so comply is grounds for

suppression of the seized conversations,

3. Whether the Government's attempt to comply

with Title 18 U.S.C.A. §2518(8)(d) was inadequate and

whether such failure to so comply is grounds for

suppression of the seized conversations,

4. Whether the court's order authorizing the inter-

ception of wire communications was legally insufficient

in that the date of the order's entry was omitted as

mandated by Title 18 U.S.C. §2518(4\e) and whether

such omission is grounds for suppression of the seized

conversations.

STATUTES INVOLVED

Title 18 US.C.A. §2518(1 cc): Title 18 U.S.C.A.

§2518(4y(e): and Title 18 US.C.A. §2518(8)(d).

Procedure for interception of wire or oral communica-

tions.

(1) Each application for an order authorizing or

approving the interception of a wire or oral

communication s/al/ be made in writing upon oath

or affirmation to a judge of competent jurisdiction

and shall state the applicant’s authority to make

such application. Each application s/a// include the

following information:

*x* * *

(c) 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.

x * *

(4) Each order authorizing or approving the

interception of any wire or oral communication

shall specity —

*x* * *

(e) the period of time during which such

interception is authorized, including a statement as

to whether or not the interception shall auto-

matically terminate when the described communi-

cation has been first obtained.”

* * *

(8) (d) Within a reasonable time but not later

than ninety days after the filing of an application

for an order of approval under section 2518(7)(b)

which is denied or the termination of the period

of an order or extensions thereof, the issuing or

denying judge shall cause to be served, on the

persons named in the order or the application, and

such other parties to intercepted communications

as the judge may determine in his discretion that is

in the interest of justice, an inventory which shall

include notice of —

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

application;

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

authorized. approved or disapproved interception,

or the denial of the application; and

(3) the fact that during the period wire or

oral communications were or were not intercepted.

(Emphasis Supplied)

STATEMENT OF THE CASE

Petitioner GOLDSTEIN and five co-defendants were

indicted for alleged violations of 18 U.S.C. §1084, 18

U.S.C. §1952 and 18 U.S.C. §1955 in the United

States District Court for the Northern District of Texas

in November of 1974. Pretrial motions were filed by

the defendants including motions to suppress evidence

derived from electronic interceptions under color of 18

U.S.C. 2516(1)(c). The District Court denied the

motions to suppress on all grounds and the case was set

for trial on June 24, 1975.

Prior to the commencement of the trial. all

defendants executed and filed waivers of trial by jury.

Additionally, all defendants executed certain stipula-

tions concerning the testimony which the Government

would have produced and the entire case was submitted

to the District Court.

The Petitioner, GOLDSTEIN. stipulated to the facts

relative to Count 5 of the indictment and _ the

Government dismissed all other counts against the

Petitioner.

On June 30, 1975, the District Court filed its

findings as to Petitioner, and found Petitioner guilty of

Count 5 of the indictment which charged a violation of

18 U.S.C. §1084. Following the convictions and

sentencing, this Petitioner, along with his co-defendants,

appealed the judgments to the United States Court of

Appeals for the Fifth Circuit and that Court affirmed.

The Petitioner contends that the Government at-

tempted to fulfill the requirement of 18 U.S.C.

§2518(1)(c) through an affidavit submitted by Special

Agent ROBERT M. BRYANT of the Federal Bureau of

Investigation. The Petitioner herein submits that the

language contained in the affidavit referred to above is

simply bald conclusions, and not facts from which the

Attorney General or the authorizing judge could have

properly determined whether normal investigative proce-

dure were viable alternatives to electronic surveillance.

Petitioner submits that a review of the affidavit of

Agent BRYANT in this case indicates that the

Government did not need to resort to wiretapping. and

was lacking in its showing that other investigative

techniques “reasonably appear to be unlikely to succeed

if tried’’. It is submitted that, in this case, a search of

6

certain premises would have resulted in sufficient

information being seized to enable the Government to

prove the violations alleged in the indictment. The

Government knew the locations of several key “offices”

of the business, and had telephone toll records

indicating contacts with other locations where book-

making activities occurred. Sufficient probable cause

existed to obtain search warrants. The affidavit did not

contain any facts from which it could be said that-the— —

execution of search warrants would not result in the

obtaining of evidence against members of the alleged

business, other than a bald conclusion of the affiant

that such normally does not occur. Agent BRYANT

stated that during such searches, records are sometimes

destroyed. The seizure of these records would have

proven the existence of the business, would have shown

the monetary amount handled by the business, and

would have resulted in the identification of the

individuals in the offices taking the telephone calls and

keeping the records. This evidence, taken together with

the other evidence listed in the affidavit (excluding the

informants’ information), would have provided evidence

probative of the violations alleged in the indictment.

All of the above discussion excluded any mention of

testimony from the informants. Agent BRYANT stated,

as a bald conclusion, that these informants had stated

that they would be unwilling to testify. Petitioner

GOLDSTEIN contended, as a similar bald conclusion,

that every affidavit for wire interception involving

gambling offenses states the same conclusion. Further,

it is submitted that based on the policy of the Federal

Bureau of Investigation not to divulge the identity of

an informant, this statement is probable included

without the affiant ever having checked with the

informant as to whether or not he would testify.

Further, nowhere in the affidavit or in the proceedings

below was there any mention of questioning the

informants after having granted them immunity.

Petitioner contended that all of the above indicates

that the attempt by Agent BRYANT to comply with

18 U.S.C. §2518(1)(c) falls substantially short of the

statutory requirement of a full and compiete statement

as to why other investigatory procedures appear to be

unlikely to succeed. The application simply presented

bald conclusions similar in style and content to

numerous previous wiretap applications. In this case, it

is submitted that the evidence contained in the

affidavit, combined with the evidence which would have

been seized pursuant to search warrants, would have

been sufficient to prove this case without a wiretap.

The affidavit indicated in broad “boiler-plate” terms the

opposite result. Further, with the tool of immunity

being available to the Government, it is submitted that

at least a verifiable effort be made to ascertain whether

the granting of such to the informants would have

accomplished the end sought by the Government rather

than resorting to the use of wiretapping.

Petitioner further contended before the Fifth Circuit

Court of Appeals that the District Court erred in

denying Petitioner GOLDSTEIN’S motion to suppress

evidence based on non-compliance with Title 18 U.S.C.

§2518(8)(d). In compliance with 18 USC.

§2518(8)(d), the Government sought and obtained

authority to notify by way of inventory five individuals

who had been intercepted and identified during the

electronic surveillance. Petitioner GOLDSTEIN was not

one of those five persons. Three of said persons, like

GOLDSTEIN were not named in the Order authorizing

electronic surveillance.

During the evidentiary hearing on the defendants’

motion to suppress. Assistant United States Attorney

JAQUET testified that GOLDSTEIN was identified in

April or possibly May of 1974 and that said

information was conveyed to Mr. JAQUET by Agent

BRYANT. In spite of this information knewn to Mr.

JAQUET in April or possibly May of 1974, Judge

TAYLOR was never informed that additional persons

had been intercepted and identified and GOLDSTEIN

never received an inventory notice as contemplated by

18 U.S.C. §2518(8)(d).

Petitioner further contended before the Fifth Circuit

Court of Appeals that the District Court erred in

denying the defendants’ motion to suppress evidence

based on non-compliance with Title 18 U.S.C.

§2518(4)(e) in that the Order authorizing electronic

surveillance in the instant matter was signed by the

Honorable W.M. TAYLOR but was not dated by Judge

TAYLOR. The Order was stamped by the Court Clerk

“Received Nov. 20, 1973.”

During the evidentiary hearings on the defendants’

motion tO suppress there were introduced certain

documents which reflected that Judge TAYLOR'S

Order was entered November 19, 1973, rather than

November 20, 1973.

9

REASONS FOR GRANTINC THE WRIT

I.

A CONFLICT EXISTS WITHIN THE CIR-

CUITS AS TO THE INTERPRETATION OF

WHAT IS REQUIRED PURSUANT TO THE

DICTATES OF 18 U.S.C. 2518(1)(c).

The Fifth Circuit in the instant case reaches a

conclusion which is in conflict with the Ninth Circuit's

decision in United States vy. Kalustian, 529 F.2d 585

(9th Cir... 1975). a copy of which is set forth in

Appendix “B” attached hereto.

THE GOVERNMENT FAILED TO COMPLY

WITH THE PROVISIONS CONTAINED IN

TITLE 18 U.S.C.A. 2518(1)(c) SINCE THE

AFFIDAVIT SUBMITTED WAS BASED ON

CONCLUSORY ALLEGATIONS AND DID

NOT PROVIDE SUFFICIENT FACTS FROM

WHICH A DETACHED JUDGE COULD

DETERMINE WHETHER’ ALTERNATE,

VIABLE INVESTIGATIVE PROCEDURES

EXISTED: SUCH FAILURE REQUIRES

SUPPRESSION OF THE SEIZED CONVER-

SATIONS.

In support of this argument. the Petitioner, REUBEN

GOLDSTEIN. relies upon United States vy. Kalustian.

529 F.2d 585 (9th Cir.. 1975). in which the Ninth

Circuit Court of Appeals held that affidavits that rely

on conclusory allegations and boiler-plate language to

10

show the unavailability of other investigative techniques

are insufficient to meet the standard set forth in Title

18 U.S.C.A,. 2518¢1)(c) which provides that applications

for wire interceptions include:

“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,”

After a comparison of the assertions in this affidavit

with those of Aalustian, it is submitted that. the

statements herein are no more adequate in satisfying

Section 2518(1)c) than those in the Aa/lustian case.

Nowhere in the present application does the Govern-

ment adequately show why other investigatory tech-

niques are not adequate for this particular case. The

mere conclusions of the affiant, based upon his

experience and the experience of others, and the fact

that in the past searches do not normally result in

adequate evidence, are insufficient and do not “provide

facts from which a judge or magistrate could determine

whether other alternative investigative procedures exist

as a Viable alternative’, United States », Kalustian,

supra,

Senate Report 1097, 90th Congress, Second Session

101, U.S. Code and Administrative News, 1968, pages

2112, 2190 (1968) contains a statement that “normal

investigative procedure would’ include’ for ex-

ample, ... general questioning or interrogation under an

immunity grant... (Emphasis Supplied). Apparently,

in this case, such a procedure was entirely overlooked.

Agent BRYANT stated, as a bald conclusion, that these

informants had stated that they would be unwilling to

testify. Again, Petitioner submits. as a similar bald

conclusion, that every affidavit for wire interception

involving gambling offenses states the same conclusion;

the application simply presented bald conclusions

similar in style and content to numerous previous

Wiretap applications,

Wiretapping must only, be authorized if the precise

requirements of Title IIl are conformed to by the

Government; “Few threats to liberty exist which are

greater than that posed by the use of eavesdropping

devices”. Berger ». United States, 388 U.S. 41, 63

(1971). This Court's review of the wiretap authorization

must insure compliance with the statute, and must

insure that the issuing judge performed his duties

properly and did not “serve merely as a rubber stamp

for the police’. United States vy, Ventresca, 380 U.S.

102, 109 (1965),

Notwithstanding the deficiency of the affidavit in the

instant case under the Aalustian standard, the Court

Below indicated that the Fifth Circuit’s opinions

preclude a reading of the affidavit in the same fashion

as would the Ninth Circuit,

THE GOVERNMENT'S ATTEMPT TO COM.-

PLY WITH TITLE 18 U.S.C.A. §2518(8)(d)

WAS INADEQUATE AND SUCH FAILURE

TO SO COMPLY IS GROUNDS FOR SUP-

PRESSION OF THE SEIZED CONVERSA-

TIONS.

Petitioner GOLDSTEIN respectfully submits that his

intercepted conversations should be suppressed by this

| )

Honorable Court due to the Government's failure to

notify Judge TAYLOR of GOLDSTEIN’S interception

und identification, United States », Chun, 503 F.2d 533

(9th Cir, 1974); 386 F. Supp. 91 (U.S.D.C,, 1974),

Even though GOLDSTEIN was not named in_ the

authorization order, he was entitled to a judicial

determination as, to whether the interests of justice

required that he be served with an inventory notice.

IV.

THE COURT'S ORDER AUTHORIZING

THE INTERCEPTION OF WIRE COMMUNI-

CATIONS WAS LEGALLY INSUFFICIENT

IN THAT THE DATE OF THE ORDER’S

ENTRY WAS OMITTED AS MANDATED

BY TITLE 18 U.S.C, §2518(4)(e) AND

SUCH OMISSION IS GROUNDS FOR SUP-

PRESSION OF THE SEIZED CONVERSA-

TIONS.

In support of this argument, the Petitioner, REUBEN

GOLDSTEIN, relies upon United States v. Lamonge,

458 F.2d 197 (oth Cir, 1972), cert, denied, 409 U.S.

-863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972), Lamonge

held that the absence of a date on a wiretap order

makes the duration of the order unlimited, thereby

invalidating the order. The addition of a date nunc pro

func did not save the order -it was facially invalid and

the evidence obtained under it should have been

suppressed. The Fifth Circuit Court of Appeals herein

“declines to follow the Sixth Circuit's path,”

Title 18 U.S.C, §2518(4) clearly sets forth the

mandatory specifications which must be contained in

13

any interception order, By the omission of the date it

was issued, the Order in the instant case fails to meet

the mandatory requirements of Title 18 U.S.C.

§ 2518(4)(e). As a further result of the failure of the

Order to include the date it was entered, the period of

time during which the interception was authorized

became vague and ambiguous and thus, the Order on its

face did not meet the specificity requirements of Berger

» New York, 388 U.S. 41 (1967): Karz v. United

States, 389 U.S. 347 (1967) and Osborn », United

States, 385 U.S, 323 (1966),

In the instant case, the fact that the Order was

stamped by the District Court Clerk “Received

November 20, 1973" and that the Assistant United

States Attorney testified that it was signed by Judge

TAYLOR on November 20, 1973, should not be

decisive.

CONCLUSION

Because of the inconsistency in the standards set

forth by these decisions, and since these issues are the

few issues which remain extant in the challenge to

affidavits and applications in wiretap situations, it is

respectfully requested that the Petition for a Writ of

Certiorari should be granted,

Respectfully submitted,

OSCAR B, GOODMAN, ESQ.

1600 Valley Bank Plaza

300 South Fourth Street

Las Vegas, Nevada 89101

Telephone: (702) 384-5563

Attorney for Petitioner:

REUBEN GOLDSTEIN

14

CERTIFICATE OF SERVICE

BY MAILING

The undersigned hereby certifies that three true and

correct copies of the above and foregoing Petition for a

Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit was, on this 11 day of November,

1977, mailed, postage prepaid, to the Honorable WADE

H. McCREE, JR... Solicitor General, United States

Department of Justice, Washington, D.C, 20530.

CLB PUBLISHERS

hy

APPENDIX “A”

UNITED STATES of America,

Plaintiff-Appellee,

v.

Anthony Paul DIADONE, John Eli Stone, Richard Carl

Biggs, Reuben Goldstein, and John Denton Ritter,

Defendants-Appellants. =

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

James William “Puny’’ WINNINGH AM,

Defendant-Appellant.

Nos. 75-2991, 75-3222.

United States Court of Appeals,

Fifth Circuit.

Sept. 1, 1977,

In prosecutions before the United States District

Court for the Northern District of Texas, Sarah T.

Hughes, J., all defendants bi: one were convicted of

using wire communications in interstate commerce to

engage in business of betting or wagering; two

defendants were convicted of conducting an_ illegal

gambling business; all defendants’ appeals in the two

2a

cases were consolidated. The Court of Appeals,

Thornberry, Circuit Judge, held that: (1) failure to date

wiretap order at time it was signed by judge was a

clerical mistake that could be corrected under Rule 36;

(2) 13-page affidavit for wiretap concerning claimed

gambling violations, when considered with the facts

averred, satisfied the relevant standards for a “full and

complete statement”; (3) acting Attorney General could

delegate power to assistant attorney general to

authorize wiretap application; (4) interruption of

irrelevant conversations could not render all of

intercepted conversations inadmissible; (5) fact that tape

recordings of intercepted telephone conversations were

not taken to judge until about two weeks after wiretap

order expired did not require suppression of evidence;

(6) defendant who had not been named in wiretap

order was not entitled to an inventory notice, and (7)

errors in the order to install pen registers were clerical

and could not afford basis for motion to suppress,

Affirmed,

1. Telecommunications 496

In view of fact that order authorizing telephone

interception was dated when it was received by district

court ¢lerk on same day that it was signed by judge,

failure to date order at time it was signed by judge was

a clerical mistake that could be corrected under Rule

36. Fed.Rules Crim,Proc. rule 36, 18 U.S.C.A,

2. Telecommunications 496

Purpose of “full and complete statement” require-

ment for application for a wiretap or interception order

3a

is to inform issuing judge of difficulties involved in use

of conventional techniques, rather than to establish that

every Other imaginable mode of investigation would be

unsuccessful; the test for sufficiency of the statement

of facts directs court to take a commonsense view of

the statement. 18 U.S.C.A. §2518(1)(c).

3. Telecommunications 496

Thirteen page affidavit for wiretap concerning

claimed gambling violations. when considered with the

facts averred, satisfied the relevant standards for a “full

and complete statement” required by statute. 18

U.S.C.A. §2518(1)(c).

4. Telecommunicatipns 496

Acting Attorney General stood in shoes of Attorney

General and possessed powers of Attorney General and

thus could delegate power to assistant attorney general

to authorize wiretap application. 18 U.S.C.A. §2516(1).

5. Criminal Law 394.3

Under circumstances, including fact that most of

unauthorized telephone interceptions had occurred

while voice identification was being made, the interrup-

tion of irrelevant conversations could not render all of

the intercepted conversations inadmissible.

6. Criminal Law 394.3

Fact that tape recordings of intercepted telephone

conversations were not taken to judge until about two

4a

weeks after wiretap order expired did not require

suppression of evidence, absent showing that defendants

had been prejudiced by the delay or that the integrity

of the interceptions had been in any way disturbed. 18

U.S.C.A. §2518(8)(a).

7. Telecommunications 496

Defendant who had not been named in wiretap order

was not entitled to an inventory notice informing him

of the existence and dates of the interception. 18

U.S.C.A. §2518(8)(d).

8. Telecommunications 496

If Government has probable cause to believe that an

individual is engaged in criminal activity under

investigation and expects to intercept that individual's

conversations over the tapped telephones, his name

must be included in the application to intercept.

9. Criminal Law 394.3

Even if application for wiretap should have contained

name of defendant who, although a known gambier,

Government contended was not known to be involved

in the gambling operation under investigation and that

his voice was not identified until date of termination of

authorized interception period, failure of application to

contain defendant’s name did not compel suppression

of the interceptions.

Sa

10. Criminal Law 394.3

Where application for wiretap, the order authorizing

interception and agent’s affidavit all contained the

correct telephone number, errors in the order to install

pen registers were clerical and could not afford basis for

motion to suppress.

11. Constitutional Law 82

Searches and Seizures 7(1)

Telecommunications 492

Statutes which permit wiretapping and electronic

surveillance under order do not contravene the First,

Fourth, Fifth, or Sixth Amendments to Constitution.

18 US.C.A. §§1955, 2510-2520; U.S.C.A.Const.

Amends. 1, 4, 5, 6.

12. Gaming 98(1)

District court’s finding that defendants were involved

in an illegal gambling business in which five or more

persons shared responsibilities were sufficient for

purposes of statute requiring a minimum of five in

gambling enterprise. 18 U.S.C.A. § $1955, 2510-2520.

13. Indictment and Information 144.1(1)

Indictment for conducting an illegal gambling busi-

ness was not required to be dismissed on asserted

ground that it alleged that defendants “owned” all or

part of the gambling business, whereas Government

stated in its response to motion for bill of particulars

that owners were unknown, since by including the

6a

words “and owners” in the indictment, the Government

was merely stating another way that defendant could be

in violation and it was not incumbent upon Govern-

ment to prove that they were the “owners.” 18

U.S.C.A. §1955.

14. Stipulations 14(10)

Stipulation of evidence that defendant relayed line,

or odds, information to codefendant, and that defen-

dant and codefendant instructed one another to place

bets on certain games indicated that defendant was not

merely a bettor, but was actually a participant in the

operation. 18 U.S.C.A. §1955.

Appeals from the United States District Court for the

Northern District of Texas.

Before TUTTLE, THORNBERRY,. and TJOFLAT,

Circuit 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 communications 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 telephones in defendant

'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

violating § 1955.

Ta

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 all 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.

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.Ed.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

8a

20. 1973, the order was amended nunc pro tunc

pursuant to F.R.Cnm.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 or 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 S.Ct. 153, 34 L.Ed.2d

110 (1972). Lamonge held that the absence of a date

on a wiretap order makes the duration of the order

unlimited, thereby invalidating the order. The addition

of a date nunc pro tunc 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 case 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.

[1] 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 Circuit’s path.

9a

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 a full and complete statement.

[2] The purpose of the “full and complete state-

ment’ 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 554 (5 Cir. 1974),

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

774 (1975). The test for sufficiency of the statement of

facts directs the court to take a common sense view of

the statement. United States vy. Rober on, 504 F.2d

289 (5 Cir. 1974), cert. denied, 421 U.S. 913, 95 S.Ct.

1568, 43 L.Ed.2d 778 (1975).

[3] Agent Bryant’s thirteen page affidavit supporting

the application sets forth the details of the gambling

Operation as related to various agents by six confi-

dential informants. The affidavit asserted that conven-

tional surveillance techniques had proven and were

likely to be ineffective because most of the gambling

10a

activity transpired over the telephone. A search of

defendants’ residences would likely be ineffective,

asserts affiant, because gambling operations frequently

maintain only temporary records which often are in

cypher, Furthermore, during raids to seize such records,

gambling operators frequently destroy what records

they have. Finally, affiant 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, §39 F.2d 1050 (5 Cir. 1976) (McCoy

/1). In McCoy 11, we stated:

[T]he possibility that wiretaps may almost always

be approved in similar bookmaking cases does not

make “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 ».

Smith, (9 Cir} S19 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,

judicially 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.

§39 F.2d at 1056,

The instant statement, when considered with the facts

averred, likewise satisfies the relevant standards.

[4] 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 authorization 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 defendants’ 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 vy. MeCoy, 539

F.2d 1050, 1054 (5 Cir. 1976) (McCoy 11); 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) (MeCoy 1). 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,

12a

IV,

[5] 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

restricted 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. Doolittie, 507 F.2d 1368 (S 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 L.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

', United Siates, 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 interceptions 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. So long as the monitoring agent listened to

a

13a

each call only long enough to determine whether it

dealt with the subject matter of the district court's

order, the interception of irrelevant conversations would

not render all of the intercepted conversations inadmis-

sible. See United States vy, Armocida, §1§ 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 defendants’ motion to suppress.

Mr, Jaquet, the Assistant United States Attorney in

charge of the interception, testified that as to the taps

on the pay telephones: (1) sometimes, there was

difficulty in determining whether Stone was in the

restaurant and, in fact, Stone left the premises on

several Occasions without being observed; (2) the

monitored telephones were located in places not well

suited for surveillance; (3) monitoring agents encoun-

tered 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

defendants’ motion to suppress on this ground,

V.

[6] Defendants Stone and Biggs contend that the

district court erred in refusing to grant their motion to

l4a

suppress because the tape recordings of intercepted

conversations were not taken to Judge Taylor immedi-

ately upon the expiration of the authorized interception

period, The government bears a duty to surrender the

tapes to the court immediately upon completion of the

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,

$06 F.2d 837, 840 (5 Cir. 1975), cert. denied, 423 US.

874, 96 S.Ct. 142, 46 L.Ed.2d 105 (1975) (Sklaroff 1),

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

suppress the evidence on this basis.

VI.

[7] 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 Goldstein

was compelled to appear before the grand jury in Dallas

during that same month, An additional inventory notice

ee

a a A lA it et a a,

1Sa

was mailed to Goldstein on April 7, 1975, The hearing

on defendants’ motion to suppress did not occur until

June 6, 1975,

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 interception, 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,

VII.

Defendant Ritter contends that the wiretap evidence

should have been suppressed as to him because he was

known to be involved in the gambling transactions in

*We do not understand Goldstein to argue that his name

should have been included in the application and order.

l6a

question, but was not named in the application for the

wiretaps.

{8] 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 telephones,

his name must be included in the application to

intercept. United States v, Donovan, 429 US, at

427-428, 97 S.Ct. at 668, 50 L.Ed.2d at 667-668,

Although Ritter was a known gambler, the govern-

ment 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,

{9} Even if the application should have contained

Ritter’s name, the failure to do so does not compel

suppression of the interceptions. United States »,

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 », Sklaroff, 552 F.2d

1156 (5 Cir. 1977) (Sklaroff 11).

Vill.

Defendant Ritter also argues that the order authoriz-

ing 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

17a

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 imma-

terial, citing United States v. Doolittle, supra, and

United States v. Sklaroff, supra (Sklaroff 1). \n Sklaroff

/, 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.

[10] The application for interception, the order

authorizing 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.

[11] 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 Constitu-

tion.

This argument has no merit. We have twice held that

the challenged statutes do not contravene these

constitutional safeguards. United States ». Sklaroff

18a

(Skleroff 1), 506 F.2d at 840: United States vy.

Doolittle, 507 F.2d at 1370.

X.

Defendants Stone and Biggs contend that the trial

court did not find five or more persons who conducted,

financed, managed, supervised, directed, or owned all or

part of the alleged illegal gambling business, as 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

established that all participants in the operation of an

illegal gambling business, except customers placing bets,

are conducting that business for purposes. of

i

[12] 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

responsibilities. A similar finding with regard to Biggs 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.

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19a

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.

[13] This argument has no merit. Although the

government’s response to item 18(d) of the Motion for

a 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

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.

XI.

The final argument raised by defendants Stone and

Biggs is that there is insufficient evidence to support

their convictions. Defendant Biggs contends that the

evidence reflects that he was a bettor and not a

bookmaker. Both Stone and Biggs assert that the

evidence in the record is insufficient to support their

20a

convictions because certain stipulations of evidence

were never formally admitted into evidence.

[14] Stipulation of Evidence Number | 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 participant

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 court is, in

all respects,

AFFIRMED.

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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. DAIDONE, 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 /s/ Brenda M. Hauck

Deputy Clerk

**on behalf of all appellants,

cc: Mr. L.N. Westerlace Ms. Judith A. Shepherd

Messrs. Lester L. May Messrs. Charles D. Cabaniss

Kenneth Herridge Robert C. Prather

Messrs. Douglas G. Crosby Mr. Warren Burnett

Stephen Stein Richard J. Clarkson

Messrs. Cecil Emerson

Robert T. Baskett

’

|

Ib

APPENDIX B

UNITED STATES of America,

Appellee,

} v.

Kale KALUSTIAN, Appellant.

UNITED STATES of America,

Appellee,

v.

Patrick Dale POND, Appellant.

UNITED STATES of America,

Appellee,

Re 6 ea OE Oe ee hae eee Bt

v.

Stanley Norman GRAY, Appellant.

UNITED STATES of America,

Appellee,

v.

David SELDITCH, Appellant.

i ee TD

UNITED STATES of America,

Appellee,

v.

Otto Vincent MARINO, Appellant.

UNITED STATES of America,

Appellee,

v.

Leopold OBEZO, Appellant.

ee er

2b

UNITED STATES of America,

Appellee,

v.

Mable Linda CUCCIA, Appellant.

No. 74-3314, 74-3315, 74-3305,

74-3264 and 74-3265.

United States Court of Appeals,

Ninth Circuit.

Aug. 4, 1975.

As Amended Dec. 11, 1975.

Rehearing and Rehearing En Banc

Denied March 25, 1976.

Defendants were convicted in the United States District Court

for the Central District of California, Manuel L. Real, J., of

illegal gambling activities, and they appealed. The Court of

Appeals, Skopil, District Judge, held that affidavit in support of

application for wiretap order was insufficient where it contained

mere conclusions and failed to set forth facts adequately showing

why traditional investigating techniques of alleged gambling

activities by certain named individuals were not sufficient, the

Court also held that in order to obtain a wiretap order the

Government must inform reviewing judge of every technique

which was customarily used in police work in investigating the

type of crime involved, and explain why each of them has either

been unsuccessful or is too dangerous or unlikely to succeed

because of particular circumstances of the case, and an

individual’s right to privacy which authorization statute seeks to

preserve demands no less; it was further held that evidence

gathered through invalidly issued wiretap order and its exten-

sions was not admissible.

Reversed and remanded.

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3b

1. Telecommunications 496

Procedural steps provided in the Omnibus Crime Control and

Safe Streets Act pertaining to electronic surveillance require

strict adherence. 18 U.S.C.A. §2510 et seq.

2. Telecommunications 496

The Omnibus Crime Control and Safe Streets Act of 1968

was written to create limited authority for electronic surveillance

in investigation of specified crimes thought to lie within the

province or organized criminal activities. 18 U.S.C.A. §2510 et

seq.

3. Telecommunications 496

Judicial review of wiretap authorization is limited and affidavit

in support thereof should not be interpreted in a hypertechnical

manner but should be interpreted in a commonsense manner.

4. Telecommunications 496

Within prescribed limits, a close scrutiny must be exercised to

determine whether wiretap orders conformed to act authorizing

such orders and the review must insure that issuing magistrate

properly performed his function and did not serve merely as a

rubber stamp for the police. 18 U.S.C.A. §2510 et seq.

5. Telecommunications 496

Affidavit in support of application for wiretap order was

insufficient where it contained mere conclusions and failed to set

forth facts adequately showing why traditional investigating

techniques of alleged gambling activities by certain named

individuals were not sufficient. 18 U.S.C.A. §2518(1)(c).

6. Telecommunications 496

In order to obtain a wiretap order the Government must inform

reviewing judge of every technique which was customarily used

in police work in investigating the type of crime involved, and

explain why each of them has either been unsuccessful or is too

dangerous or unlikely to succeed because of particular circum-

stances of the case, and an individual’s right to privacy which

authorization statute seeks to preserve demands no rest. 18

U.S.C.A. §2518.

4b

7. Searches and Seizures 3.6(3)

Telecommunications 496

Mere conclusions by an affiant are insufficient to justify a

search warrant, or a wiretap order and do noi provide a basis

upon which a detached judge can determine whether other

alternative investigative procedures exist as viable alternatives.

8. Criminal Law 394.3

All evidence gathered through electronic surveillance pursuant

to an invalid wiretap order and its extensions was inadmissible.

18 U.S.C.A. §2518.

Arthur Lewis (argued), Los Angeles, Cal., for appellant in No.

74-3314.

James A. Twitty, Sp. Atty. (argued), Dept. of Justice, Los

Angeles, Cal., for appellee in No. 74-3314.

Edward I. Gritz, Los Angeles, Cal., for appellant in No. 74-

3315.

James A. Twitty, Sp. Atty., Los Angeles, Cal., for appellee in

No. 74-3315.

David S. Sperber, Los Angeles, Cal., for appellant in No. 74-

3305.

William D. Keller, U.S. Atty., Los Angeles, Cal., for appellee

in No. 74-3305.

Lee A. Freeman (argued), Los Angeles, Cal., for appellant in

No. 74-3264. ,

Kevin O’Malley (argued), U. S. Dept. of Justice, Los Angeles,

Cal., for appellee in No. 74-3264.

James Edward Green (argued), Van Nuys, Cal., for appellant

in No. 74-3265. .

Kevin F. O'Malley (argued), U. S. Dept. of Justice, Los

Angeles, Cal., for appellee in No. 74-3265.

Sb

OPINION

Before ELY and HUFSTEDLER, Circuit Judges, and

SKOPIL,* District Judge.

SKOPIL, District Judge:

Appellants seek review of their convictions for illegal gambling

activities. 18 U.S.C. § §1955 and 2. They claim their motions

for suppression of evidence were improperly denied. They also

argue that there was insufficient evidence to sustain the verdicts.

According to the Government, confidential informants ‘‘ad-

vised” federal agents in 1971 that defendant Kalustian was

operating a bookmaking operation from the Topper Club (Club)

in Rosemead, California. Defendants Pond and Marino, among

others, were identified as agents for the operation. On December

20, 1971, the Department of Justice sought court orders

authorizing wire taps on three telephones at the Club, one at

defendant Stempke’s residence, and one at the residence of

Patricia Jackson. The application was authorized by Attomey

General John Mitchell and granted on December 20, 1971. 18

U.S.C. §2518(1)(c) provides that such applications shall

include

‘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 Government attempted to fulfill that requirement through

affidavits supplied by Special FBI Agent James Brent (Affi-

davits), which essentially contained the following represen-

tations:

“The informants named herein have all said that they will

not testify to information they have provided, even if

granted immunity. * * *

*Honorable Otto R. Skopi!, Jr., United States District Judge for the Distnet

of Oregon, sitting by designation.

6b

“Experience has further established that even though

telephone toll records are available which indicate 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 prosecution in this case and would only

succeed to a limited degree in establishing that Kale

Kalustian, also known as Kelly, Patrick Dale Pond, Otto

Vincent Marino, Patricia Jackson, Bill Stempke, and others

as yet unknown, are involved in gambling activities over the

telephone subscribed to in the name of the Topper Club.***

‘Furthermore, such investigative techniques as physical

surveillance and the records obtainable on Kale Kalustian,

also known as Kelly, Patrick Dale Pond, Otto Vincent

Marino, Patricia Jackson, Bill Stempke, and others as yet

unknown, contain little probability of success in securing

presentable evidence. Based upon my knowledge and

experience as a Special Agent of the Federal Bureau of

Investigation in the investigation of gambling cases and my

association with other Special Agents who have conducted

investigation of gambling activities, normal investigative

procedures appear to be unlikely to succeed in establishing

that the above individuals are involved in gambling

activities over the aforementioned telephones in violation of

Federal laws. My experience and the experience of other

Agents has shown that gambling raids and searches of

gamblers and gambling establishments have not, in the past,

resulted in the gathering of physical or other evidence to

prove all elements of the offense. I have found through my

experience and the experience of other Special Agents, who

have worked on gambling cases, that gamblers frequently do

not keep permanent records. If such records have been

maintained, gamblers, immediately prior to or during a

physical search, sometimes destroy the records. Addition-

ally, records that have been seized in past gambling cases

have generally not been sufficient to establish elements of

Federal offenses because such records are difficult to

interpret, and many times are of little or no significance

without further knowledge of the gamblers’ activities.

Therefore, the interception of these telephone communica-

tions is the only available method of investigation which has

tied ae tee

7b

a reasonable likelihood of securing the evidence necessary

to prove violation of these statutes. * *

“Wherefore, because of the existence of facts and

underlying circumstances of the continuing investigation

listed above in paragraphs 4 through 32b, I submit that the

probable cause as submitted in paragraphs 3a, 3b and 3d

exists; that the extensive normal investigative procedures

tried, as set forth in paragraphs 4 through 32b, have failed

to gather evidence necessary to sustain prosecution for

violation of the offenses enumerated in paragraph 3a, and

reasonably appear unlikely to succeed; * * *”’

Appellants contend that their motions to suppress the wiretap

evidence should have been granted because the Government's

application did not satisfy 18 U.S.C. §2518(1)(c). They argue

that the supporting affidavits contain bald conclusions rather

than facts from which the Attorney General and the judge could

determine whether “normal investigative procedures’ were

viable alternatives to electronic surveillance. §2518(3)(c).

{1} Title III of the Omnibus Crime Control and Safe Streets

Act of 1968 (Act), 18 U.S.C. §2510 et seq., absolutely

prohibits electronic surveillance by the federal government

except under carefully defined circumstances and after securing

judicial authority. Procedural steps provided in the Act require

strict adherence. United States v. Giordano, 416 U.S. 505, 94

S. Ct. 1820, 40 L.Ed.2d 341 (1974). The importance of these

procedures reflects the dual purpose of Title III, which is to

(1) [protect] the privacy of wire and oral communica-

tions, and (2) [delineate] on a uniform basis the circum-

stances and conditions under which the interception of wire

and oral communications may be authorized.”’ S. Rep. No.

1097, 90th Cong., 2d Sess., 1968 U.S. Code Cong. &

Admin. News, pp. 2112, 2153 (hereinafter cited as

“History’’).

[2] Title III was written to create limited authority for

electronic surveillance in the investigation of specified crimes

thought to lie within the province of organized criminal activity.

History, pp. 2153-2163. It was designed to conform to prevailing

constitutional standards. Berger v. New York, 388 U.S. 41, 87

8b

S. Ct. 1873, 18 L.Ed.2d 1040 (1967); Katz v. United States,

389 U.S. 347, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967). The

restraint with which such authority was created reflects the

legitimate fears with which a free society entertains the use of

electronic surveillance. As stated in Berger, supra, “Few threats

to liberty exist which are greater than that posed by the use of

eavesdropping devices’. 388 U.S. at 63, 87 S. Ct. at 1885.

Section 2518(1)(c) of the Act

“is patterned after traditional search warrant practices and

present English procedure in the issuance of warrants to

wiretap by the Home Secretary. [citation omitted] The

judgment [of the judge or magistrate] would involve a

consideration of all the facts and circumstances. * * *

Merely because a normal investigative technique is

theoretically possible, it does not follow that it is likely. See

Giancana v. United States, 352 F.2d 921 (7th Cir. 1965),

cert. denied, 382 U.S. 959, 86 S. Ct. 437, 15 L.Ed.2d 362;

New York v. Saperstein, 2 N.Y.2d 210, 159 N.Y. $.2d

160, 140 N.E.2d 252 (1957). What the provision envisions

is that the showing be tested in a practical and common-

sense fashion. Compare United States v. Ventresca, 386

U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965).” History,

p. 2190.

[3,4] Our review of the wiretap authorization is limited. We

are reminded that

“fw]here [the underlying circumstances in the affidavit] are

detailed, where reason for crediting the source of the

information is given, and when a magistrate has found

probable cause, the courts should not invalidate the warrant

by interpreting the affidavit in a hypertechnical, rather than

a commonsense, manner.”’ United States v. Ventresca,

supra at 109, 85 S. Ct. at 746.

Within our prescribed limits, however, the utmost scrutiny must

be exercised to determine whether wiretap orders conform to

Title III. The Act has been declared constitutional only because

of its precise requirements and its provisions for close judicial

scrutiny. United States v. Bobo, 477 F.2d 974 (4th Cir. 1973);

United States v. Cox, 449 F.2d 679 (10th Cir. 1971), cert.

denied, 406 U.S. 934, 92 S. Ct. 1783, 32 L.Ed.2d 136 (1972);

9b

United States v. Cox, 462 F.2d 1293 (8th Cir. 1972). Our view

of wiretap orders must ensure that the issuing magistrate properly

performed his function and did not “serve merely as a rubber

stamp for the police”. Ventresca, supra at 109, 85 S. Ct. at 746.

The affidavits set forth facts from which probable cause to

infer the operation of a gambling conspiracy could be gleaned.

Nearly all of these “facts” trickled into the ears of FBI agents

through the efforts of a series of professional gamblers and

bookmakers. Unfortunately, as the affidavits attest, none of the

underworld informants are willing to testify. The refusal of the

informants to testify is a matter for the court to consider in

authorizing electronic surveillance. However, standing alone, it

may not be sufficient. Evidence of the telephone numbers used

by the bookmaking operation and the identities of some of the

conspirators could not successfully support a prosecution

without that testimony.

Consequently by investigating officials decided electronic

surveillance was imperative. They discarded alternative means

of further investigation because “knowledge and experience” in

investigating other gambling cases convinced them that “normal

investigative procedures’ were unlikely to succeed. Agent Brent

recites that searches are often fruitless because gamblers keep no

records, destroy them, or maintain them in undecipherable

codes. Use of the phone company’s records alone is incon-

clusive.

The affidavit does not enlighten us as to why this gambling

case presented any investigative problems which were distin-

guishable in nature or degree from any other gambling case. In

effect the Government's position is that all gambling conspiracies

are tough to crack, so the Government need show only the

probability that illegal gambling is afoot to justify electronic

surveillance. Title III does not support that view.

“Congress legislated in considerable detail in providing

for applications and orders authorizing wiretapping and

evinced the clear intent to make doubly sure that the

Statutory authority be used with restraint and only where

the circumstances warrant the surreptitious interception of

10b

wire and oral communications. These procedures were not

to be routinely employed as the initial step in criminal

investigation. Rather, the applicant must state that the court

must find that normal investigative procedures have been

tried and failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous.” United States v.

~ Giordano, supra. (emphasis added).

The Government’s position is further undetermined by the

activity of other crimefighting organizations. California, among

other states, deprives its policemen of electronic surveillance in

all cases. This has not prevented them from successfully

prosecuting gambling crimes.

Obviously electronic surveillance can facilitate criminal

investigation. Because other investigative techniques are usually

slower and more difficult, Congress did not require exhaustion of

“all possible’’ investigative techniques before orders for wiretaps

could be issued. U.S. v. Smith, 519 F.2d 516 (9th Cir., 1975).

But Title III does not allow wiretapping to replace such other

techniques unless they ‘“‘have been tried and failed or reasonably

appear to be unlikely to succeed if tried or to be too dangerous”.

[5,6] The Government failed in this case to satisfy 18 U.S.C.

§2518(1)(c). Its application did not adequately show why

traditional investigative techniques were not sufficient in this

particular case. A judge reviewing a wiretap application is

handicapped without such a showing. Title III and the

individual’s right to privacy, which it seeks to preserve, demand

no less than a full and complete statement of underlying

circumstances. )

[7] Mere conclusions by the affiant are insufficient to justify a

search warrant, Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509,

12 L.Ed.2d 723 (1964), or a wiretap order. More specifically,

they do not provide facts from which a detached judge or

magistrate can determine whether other alternative investigative

procedures exist as a viable alternative.

{8} The trial court’s order denying appellants’ motions for

suppression of electronic surveillance evidence is reversed, and

all consolidated cases are remanded for a new trial. All evidence

we eee,

11lb

gathered through electronic surveillance pursuant to the original

§2518 order and its extensions shall not be admitted in

subsequent proceedings.

In view of that ruling, the other issues on appeal are not

reached.

REVERSED and REMANDED.