Opposition — Iannone v. United States

. | No. 77-946

Yn the Suyreme Gourt of the Bnited Stxtes

Octroper TERM, 1977

JOHN IANNONE AND IRVING ALBAHARI, PETITIONERS

Vv.

Unrrep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCREE, Jr.,

Solicitor General,

BENJAMIN B. CIVILETTI,

Assistant Attorney General,

JEROME X. FEIT,

JAMES A. HUNOLT,

Page

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CITATIONS

Cases:

Crain v. United States, 162 U.S. 625_...------------- 9

Garland v. Washington, 232 U.S. 642....--.--------- 9

United States v. Angelini, 565 F. 2d 469, petition for

a writ of certiorari pending, No, 77-938___....---- 7

United States v. Bermudez, 526 F. 2d 89, certiorari

Sy Ge WG Se crtrtcrcnniticnnmocnsntnane 11

United States v. Bow, 530 F. 2d 1258.--.--.---------- 11

United States v. Cohen, 530 F. 2d 43, certiorari denied,

CP Fae iedetiiinwatitiininniinennneenee 7

United States v. DiMuro, 540 F. 2d 503, certiorari

Sane. GED Tl Be eceeenemreeationneccse 11

United States v. Friedman, 445 F. 24 1076, certiorari

denied sub nom. Jacobs v. United States, 404 U.S.

GD cibinenenncscacendammenengendemsenaineee 10-11

United States v. Fury, 554 F. 2d 522, petition for a writ

of certiorari pending, No. 76-6828__..........---- 8

United States v. Gigante, 538 F, 2d 502_......-..---- 8

United States v. Poeta, 455 F. 2d 117, certiorari denied,

CHB WEE, GOR een ctetnitecttigcetenncanenescce 8

United States v. Ricco, 421 F. Supp. 401_------------- 7

United States v. Rogers, 469 F. 2d i817_--.--.------- 9

United States v. Scafidi, 564 F. 2d 633, petitions for a

writ of certiorari pending, Nos. 77-1002, 77-1003,

77-1004, 77-6026, 77-6035, 77-6165_..........------ 8

(1)

BEST GOPY AVAILABLE

II

Cases—Continued

United States v. Schaefer, 510 F, 2d 1307, certiorari page

SE GIS Fe itnciintinnctctmnincnninddn 11

United States vy. Sklaroff, 506 F. 2d 837, certiorari

denied, 423 U.S. 874... .......--.-----..-----.-. , 7

Vitello v. United States, 425 F. 2d 416, certiorari

Gaede, G69 Gy Be cnittiiiemnibccatievnsiiidedinn 11

Wisniewski v. United States, 353 U.S. 901_......._- ae 8

Statutes and rule:

18 U.S.C. 371_- ecmpesesiqnesetecaguiiaets 3

ee 2,3,9,10

fl Es ae 8

te a ee a an 2, 6,7

PUES Be Ge Cinananasccspectinatsinmemeneie -

In the Supreme Gourt of the Gaited. States

OcroBER TERM, 1977

No. 77-946

JOHN IANNONE AND IRvING ALBAHARI, PETITIONERS

v.

Untrep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIROUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The court of appeals affirmed without opinion (Pet.

App. 29-31). The opinion of the district court deny-

ing petitioners’ motion to suppress is reported at 423

F. Supp. 908.

JURISDICTION

The judgment of the court of appeals was entered

on June 24, 1977, and a petition for rehearing was

denied on December 5, 1977. The petition for a writ

of certiorari was filed on January 3, 1978. The juris-

diction of this Court is invoked under 28 U.S.C. 1254

(1).

(1)

2

QUESTIONS PRESENTED

1. Whether there was a delay in sealing the record-

ing of a court authorized wire interception of peti-

tioner Tannone’s conversation,

2. Whether the failure to rearraign petitioner

Albahari upon the return of a superseding indictment

constituted reversible error.

3. Whether the jury instructions were proper.

4. Whether the evidence showed multiple

conspiracies,

STATUTES INVOLVED

18 U.S.C, 1955 provides in pertinent part:

(a) Whoever conducts, finances, manages,

supervises, directs, or owns all or part of an

illegal gambling business shall be fined not more

than $20,000 or imprisoned not more than five

years, or both,

(b) As used in this section—

(1) “illegal gambling business” means a

gambling business which—

« ” ” ” ”

(ii) involves five or more persons who

conduct, finance, manage, supervise, direct,

or own all or part of such business; * * *

” ” ” ”

18 U.S.C. 2518(8) (a) provides:

The contents of any wire or oral eommunica-

tion intercepted by any means authorized by

this chapter shall, if possible, be recorded on

tape or wire or other comparable device. The

recording of the contents of any wire or oral

communication under this subsection shall be

3

done in such a way as will protect the recording

from editing or other alterations, Immediately

upon the expiration of ‘ae period of the order,

or extensions thereof, such recordings shall be

made available to the judge issuing such order

and sealed under his directions. * * * The

presence of the seal provided for by this sub-

section, or a satisfactory explanation for the

absence thereof, shall be a prerequisite for the

use or disclosure of the contents of any wire or

oral communication or evidence derived there-

from under subsection (3) of section 2517,

STATEMENT

After a jury trial in the United States District

Court for the Southern District of New York, pe-

titioners, along with others,’ were convicted of en-

gaging in an illegal gambling business, in violation

of 18 U.S.C. 1955, and conspiracy to commit that

offense, in violation of 18 U.S.C, 371, Petitioner John

Iannone was senterced to concurrent terms of im-

‘prisonment for one year and one day. Petitioner

Irving Albahari was sentenced to concurrent terms

of two years’ imprisonment, with 18 months

suspended, The court of appeals affirmed without

opinion,

1, The evidence at trial showed that from October

1974 until November 1975 Richard Esposito super-

*Co-defendants Joseph Falco and David Steinberg were also

convicted at the joint trial. Co-defendants Richard Rizzo, Richard

Esposito, Louis Maggio, and Nicholas Renna pleaded guilty to the

substantive charge. Co-defendants John Yarmosh, Nicholas Botta,

and Lawrence Messina pleaded guilty te the conspiracy charge.

4

vised an illegal gambling business known as the

“Dixon Operation,” which handled sports wagers in

amounts of $300,000 to $1,000,000 a week (Tr. 58-59,

123-124, 276-277). The wagers were transmitted by

telephone to wireroom clerks located at various apart-

ments in Manhattan (Tr. 125, 269-270). Petitioners

were employed as runners; their duties were to induce

bettors to place wagers with the operation, collect

debts, and pay out winnings (Tr. 60-62, 101-105, 122,

265-274). In late December 1974, Robert Breindel

arranged for petitioner Albahari to operate his own

wireroom (Tr. 135-136),

In order to avoid the possibility of substantial losses,

the Dixon Operation regularly laid off excess bets to

the ‘‘National Operation,” run by Joseph Falco, the

*‘Commander I Operation,” run by Nicholas Renna,

and the “Mr. White Operation,” run by Nicholas

Botta, Lawrence Messina, and Joseph Yarmosh (Tr.

129-135, 277-278, 410-430).

2. Much of the evidence at trial was derived from

court-authorized electronic surveillance. The first court

order, authorizing electronic surveillance for 20 days

unless the objective of the surveillance was attained

sooner, was entered on June 11, 1975 (H. Ex. 1; H.

Tr. 5-6)." A number of gambling-related conversations

* Robert Bi vindel, a prosecution witness, was also involved in

supervision of the Dixon Operation until he was arrested by local

law enforcement officials in January 1975 (Tr, 58-59).

*“FH, ‘T'r.” refers to the one volume transerjpt of the pretrial

hearing held on December 20, 1976. “H. Ex.” refers to exhibits

introduced at that hearing.

were intercepted between June 11 and June 15, 197

(H, Tr. 7). On June 14, 1975, conversations were in-

tercepted in which bettors were advised that the wire-

room would be moved two days later (H. Tr. 8-9). No

conversations were intercepted on June 16 and 17, and

the supervising attorney was informed of the ap-

parent change in location of the wireroom to a nearby

location (H. Tr. 11, 87-88).

The wireroom had changed location on a previous

oceasion, and there was no indication that the move

was permanent (H. Tr, 8-18), The FBI agent in

charge of the surveillance was aware that it is cus-

tomary to continue to accept wagers in a vacated wire-

room from bettors who are uninformed of the gam-

bling operation’s new location (H. Tr, 12-1%). The

agent also knew that gambling related calls other than

bets are often made from abandoned wirerooms (H.,

Tr. 12-13). Therefore, the FBI agent and the

supervising attorney decided to continue the elec-

» tronic surveillance (H. Tr. 88). No significant activity

occurred in the old wireroom, and the surveillance was

discontinued on June 23, 1975 (H. Tr. 15, 92-95). The

authorizing judge was unavailable that day; the tapes

were therefore sealed on the following day (H. Tr. 15,

* These conversations included one in which petitioner Iannone

participated. Petitioner Albahari was identified by Breindel as a

member of the operation but was not overheard during either

interception.

80-81), The parties stipulated that the original tape

recordings were not altered or edited in any way prior

to sealing (H. Tr, 101-105),"

ARGUMENT

1, Petitioners claim (Pet. 10-18) that the tapes of

the interception conducted pursuant to the court order

of June 11, 1975, should have been suppressed be-

cause of a delay in sealing them, But 18 U.S.C.

2518(8)(a) directs that tapes of intercepted conver-

sations are to be presented to the issuing judge for

sealing “[i]mmediately upon the expiration of the

* * * order.’ The order involved here authorized

interception for 20 days, or until the objective of the

investigation was achieved (H. Ex. 1). Surveillance

was terminated on June 23, 1975, when it became evi-

dent that it was no longer effective, and the tapes

were sealed on June 24, The order did not expire by

its terms until July 1, 1975. There was thus no delay

in sealing the tapes. Petitioner’s contention that there

was an eight-day delay is apparently based on the

erroneous assumption that the objective of the

investigation was achieved by June 16, when the wire-

room moved to the new location. Instead, as the super-

* Electronic surveillance was also conducted at various locations

pursuant to a second court order. Petitioners do not discuss any

claims relating to that surveillance, in which neither was over-

heard, They do, however, adopt the arguments in the petition for

certiorari filed by their co-conspirators Yarmosh, Botta, and Mes-

sina (Pet, 4), That petition (No, 77-135), which was denied on

November 14, 1977, raised claims relating to the second surveil-

lance. We are sending petitioners copies of our brief in opposition

in No, 77-135, upon which we rely,

7

vising attorney testified, the decision to terminate the

interception was based on the conclusion a week later

that “the investigative objectives of [the June 11

order] could not be reached” by continued inter-

ception of the target phones (H. Tr. 92), Cf. United

States v. Ricco, 421 F. Supp. 401, 406-407 (8.D.

N.Y.).

Even assuming that the tapes should have been

sealed immediately after the last gambling-related

call was intercepted on June 15, the agents’ decision

that the interception should be continued because of

the possibility that the phones might continue to be

used for gambling-related purposes was reasonable

and constituted the “satisfactory explanation” for the

brief delay in sealing required by Section 2518(8) (a),

as the district court concluded (H. Tr. 115). The

court’s resolution of this primarily factual question is

consistent with the manner in which other courts have

applied the sealing requirement in cases involving

brief delays.’

*The Seventh Circuit has upheld delays of 9 and 58 days in

sealing to permit clarification of portions of duplicate tapes found

to be inaudible during transcription (United States vy. Angelini,

565 F, 2d 469 (C.A, 7), petition for a writ of certiorari pending,

No, 77-938). The Fifth Circuit has upheld a five-day delay in seal-

ing during which time the tape recordings were transcribed

(United States v. Cohen, 530 F, 2d 48 (C.A, 5), certiorari denied,

429 U.S. 855), and a 14-day delay where “(t]he government ac-

counted for the delay by showing that the recordings remained in

the FBI evidence room for seven days and that the additional

seven days were used in the preparation of search warrants”

(United States v. Sklaroff, 506 F, 2d 837, 840-841 (C.A, 5), certi-

orari denied, 423 U.S, 874). The Second Circuit has upheld a

United States v. Gigante, 5388 F. 2d 502 (C.A. 2),

upon which petitioners rely (Pet. 12-17), is elearly

distinguishable. In that case, the delays in sealing

ranged from eight months to more than a year, the

government offered “no explanation whatsoever” for

the delays (538 F. 2d at 504), and “haphazard pro-

cedures’ were followed in handling the tapes (dd. at

505). There is absolutely no reason to doubt that, if

confronted with similar circumstances, the panel that

decided this case would, like the court in Gigante,

have held that suppression was proper.’

2. The original indictment returned on Novem-

ber 22, 1976, named petitioner Albahari and included

the alias “Brooklyn.” Petitioner Albahari was ar-

raigned less than two weeks later. A superseding in-

dictment was filed on January 31, 1977, in which the

seven-day sealing delay that was primarily the result of the gov-

ernment attorney's preparations for trial (/’nited States v. Scafidi,

564 F, 2d 633, 641 (C.A. 2), petitions for a writ of certiorari pend-

ing, Nos. 77-1002, 77-1003, 77-1004, 77-6026, 77-6035, 77-6165),

and six and thirteen day delays caused by efforts to have the issuing

judge, instead of another judge, seal the tapes (United States v.

Fury, 554 F, 2d 522, 5383 (C.A, 2), petition for » writ of certiorari

pending, No, 76-6828 ; United States v. Poeta, 455 F.2d. 117 (C.A.

2), certiorari denied, 406 U.S, 048). (The interceptions involved

in Fury and Poeta were conducted pursuant to New York law. The

sealing requirement of the state statute does not differ materially

from that of 18 U.S.C, 2518(8) (a). See United States v. Fury,

supra, 554 F, 2d at 533; see also 18 U.S.C, 2516(2). The tapes here

were sealed on June 24, rather than June 23, because the issuing

judge was not available on the 23d (H. Tr. 15, 80-81).

’ Even if this case were inconsistent with Gigante, such an intra-

circuit conflict would be for the court of appeals to resolve. Wis-

niewski vy. United States, 353 U.S, 901, 902.

v

name “Brooklyn’’ was deleted.* Petitioner Albahari

elaims (Pet. 22-26) that the trial court lacked juris-

diction to try him since he was not arraigned on the

superseding indictment.

However, lack of formal arraignment is not reversi-

ble error unless prejudice is shown. Garland v. Wash-

ington, 232 U.S. 642, 645; United States v. Rogers,

469 F. 2d 1317 (C.A. 5).” At trial, when petitioner’s

counsel moved to dismiss the indictment for failure

to rearraign petitioner, he conceded that he knew of

the superseding indictment (Tr. 465). Indeed, the

trial court concluded that counsel was “fully aware

that there was a superseding indictment” (Tr. 466).

In these circumstances, petitioner was not prejudiced

by the absence of a formal rearraigument.”

3. Petitioners urge (Pet. 18-22) that the jury in-

structions were insufficient because they failed to

identify the five persons alleged to have been involved

in the violation of 18 U.S.C. 1955. They assert that,

_ since there were only four defendants, and since Sec-

tion 1955 applies to participation in an _ illegai

gambling business that “involves five or more per-

® Petitioner incorrectly states (Pet. 7-8) that the alias “AC” was

inserted in the superseding indictment.

* Crain v. United States, 162 U.S. 625, upon which petitioner

relies (Pet. 26), was overruled by Garland v. Washington, supra.

© Petitioner Albahari asserts (Pet. 24) that he was prejudiced

because he had attempted on cross-examination to establish that

he was not “Brooklyn.” But the fact that petitioner may have

asked unnecessary questions on cross-examination does not demon-

strate prejudice. The original indictment contained Albakari's

real name, and Breindel identified him by that name (Tr. 102).

10

sons,” the jury may have disagreed concerning the

identity of the other participants in the business. But

jury unanimity concerning the identity of: the other

participants in the business was not required. The

court correctly instructed the jury that the participa-

tion of five or more persons,in the business was an

essential element of the crime that the government

was required to prove beyond a reasonable doubt (Tr.

568-569, 587-588) and defined the type of participa-

tion required to bring an individual within the

prohibition of Section 1955 (Tr. 587-588). Finally, it

emphasized that each count and each defendant was

to be considered separately, and that the jury was to

return a verdict of guilty only if it unanimously con-

cluded that the government had proved the essential

elemnents of the crime charged by the required degree

of proof (Tr. 604-605). Under these instructions, the

jury could not have reached its guilty verdicts unless

it was unanimously convinced that each defendant

had participated in an illegal gambling business in-

volving at least five persons.” That is all that is neces-

sary to establish a violation of Section 1955, and any

jury disagreement about the identities of the other

participants in the enterprise was irrelevant. Cf.

United States v. Friedman, 445 F. 2d 1076, 1084 (C.A.

1 Tn fact, as the district court noted (Tr. 596), the scope and size

of the Dixon Operation was not seriously challenged ; instead, each

defendant simply asserted that he was not a participant. Indeed,

two confessed participanis in the operation, Breindel and Daniel

Kramer, testified at trial.

1]

9), certiorari denied sub nom. Jacobs v. United States,

404 U.S. 958.”

In any event, petitioners’ failure to object to the

instructions concerning the number of participants or

to request any further instructions—which is not

surprising in light of the fact that the size of the

enterprise was not seriously contested—bars their

present claim. Rule 30, Fed. R. Crim. P.; United

States v. Bermudez, 526 F. 2d 89, 97 (C.A. 2), cer-

tiorari denied, 425 U.S. 970; Vitello v. United States,

425 F. 2d 416, 423 (C.A. 9), certiorari denied, 400

U.S. 822.

4. Petitioners’ final contention (Pet. 26-28), that

the evidence showed multiple conspiracies, is also

without merit and is wholly inappropriate for review

by this Court. Petitioners claim that the evidence

showed only that there were separate enterprises that

“from time to time” laid off bets to each other. It is

clear, however, that the gambling business prohibited

by 18 U.S.C. 1955 includes those who regularly accept

lay off bets. E.g., United States v. DiMuro, 540 F. 2d

503, 508 (C.A. 1), certiorari denied, 429 U.S. 1038;

United States v. Box, 530 F. 2d 1258, 1265-1266 (C.A.

5); United States v. Schaefer, 510 F. 2d 1307, 1312

(C.A. 8), certiorari denied, 421 U.S. 975, 978. The

jury was twice instructed that “[w]hether a person ec-

cepting layoff bets knowingly associates himself with

12 The cases upon which petitioners rely (Pet. 19-22) are in-

apposite, since they involve instructions that permitted the jury

to return a guilty verdict on an erroneous legal theory. There is no

such problem here.

12

the conspiracy * * * is a question of fact for you to

decide’ (Tr. 574, 611). Each time, the court carefully

explained the factors relevant to that determination.

Petitioners do not challenge these instructions; this

Court need not review the jury’s factual conclusion

that the evidence showed a single conspiracy.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Wape H. McCreg, Jr.,

Solicitor General.

BenjaMIn R. CrviLettt,

Assistant Attorney General.

JEROME M. Ferr,

JaMes A. HUNOLT,

Attorneys.

Marcu 1978.

U.S. GOVERNMENT PRINTING OFFICE: 1978