Petition — Freeman v. United States

‘Spam to he eT

FILED

MAR 14 1980

Supreme Court of the United, States a ee

IN THE i

os

October Term, 197%

TODS Sarssose

CLARENCE ELDON FREEMAN,

Petitioner,

UAY

UNITED STATES OF AMERICA.

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BURTON MARKS

_ 9911 West Pico Boulevard

Los Angeles, California 90035

(213) 553-0142

Counsel for Petitioner

‘Dean-Standefer, 326’ Main St., Huntington Beach, Ca. 92648 - (714) 536-7161

4

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oat

TOPICAL INDEX

Petitioner prays that a writ of certiorari

issue to review the judgment and opinion

of the United States Court of Appeals

eg I ear

MS ee a are a Se re

ig ae. eae oa Wie 6 cee e500 00

EE Pre ee ee,

Statutory Provisions Involved ................

i i rs, eer eeerewesccre

Reasons for Granting the Writ ................

1. The decision below, to the extent that

it upholds the § 1955 conviction of a

“lay-off” source, conflicts with the

decisions of the Fifth and Sixth Cir-

cuits in United States v. Box, 530 F.2d

1258 (Sth Cir. 1976), and United States

v. Leon, 534 F.2d 667 (6th Cir. 1976)

2. Section 1955 is unconstitutionally vague

as applied, in violation of the due process

clause, for its application for persons who

“conduct” gambling businesses does not

sufficiently inform gamblers that it

applies to those who accept “lay-off”

EEN EES OR ar

ii

TABLE OF AUTHORITIES CITED

Cases Page

Bouie v. Columbia, 378 U.S. 347 (1964) ........ 9, 10

Conally v. General Construstion Co.,

ee ee ee ED ib chia sewn 6 0 Ha p< 10

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .... 10

United States v. Baker, 589 F.2d 1008

GS NINE coos wee oP Ke ak en eg se 5, 6

United States v. Box, 530 F.2d 1258 :

Be a ye” EE ee ee rr ere 5, 6, 7, 8, 9, 10

United States v. Campion, 560 F.2d 751

| SE Bo: re Ao ae ee 7

United States v. George, 568 F.2d 1064

Oe ee EE 5 as *, “i-aca id Ok wwe bbe eo 0a 7

United States v. Gezek, 527 F.2d 552

Pe ate SUPE oS cae whats Von wuss eae 7

United States v. Harris, 460 F.2d 1041

Se SEED. fs nie eG wks we ue ove k's 6

United States v. Harriss, 347 U.S. 612 (1954) .... 9

United States v. Leon, 534 F.2d 667

SE SPUR i's Spl pee tlaies Gee ols Fd els 5, 6, 7

United States v. Mattucci, 502 F.2d 883

NC RIPE es SA Vee bap eas 60 3,8 6

United States v. McHale, 495 F.2d 15

Se I 0 0 ee BE, 3's ow backs 0 wade 7

United States v. Riehl, 460 F.2d 454

SU TD kk te NE HN Kae eee ees 6

TABLE OF AUTHORITIES CITED

Cases (cont'd) Page

United States v. Sacco, 491 F.2d 995

i Be TL. 2 Re ine ce ee 6,7

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

(8th Cir. 1975) (Lay, J., dissenting) ...... 8

United States Code

Title 18

Be ee Vali £4 2h Kaden 2, 3, 4, 5, 6, 7, 8, 9, 10

Title 28

3 | San epobe hme enya ea a oa 2

oe Fg

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1979

| NSED

CLARENCE ELDON FREEMAN,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States:

Clarence Eldon Freeman respectfully prays that a writ

of certiorari issue to review the judgment and opinion of the

United States Court of Appeals for the Ninth Circuit entered

oo =

in this proceeding on November 21, 1979. STATUTORY PROVISIONS INVOLVED

OPINION BELOW , United States Code, Title 18:

_ 81955. Prohibition of Illegal Gambling Businesses:

The unreported opinion of the Court of Appeals t :

| “(a) Whoever conducts, finances, manages,

’ appears in the Appendix to this petition. No opinion

was rendered by the District Court for the Central “ supervises, directs, or owns all or part of an illegal

District of California. gambling business shall be fined not more than

| $20,000 or imprisoned not more than five years, or

both.

JURISDICTION ““(b) As used in this section—

“*(1) ‘illegal gambling business’ means a

The judgment of the Court of Appeals for the Ninth gambling business which—

Circuit was entered on November 21, 1979, A timely peti- “(i) is a violation of the law of a

tion for rehearing en banc was denied on February 13, 1980, State or political subdivision in which it

and this petition for a writ of certiori was filed within 30 is conducted;

days of that date. This Court’s jurisdiction is invoked “(ii) involves five or more persons

under 28 U.S.C. 8 1254(1). fe who conduct, finance, manage, supervise,

direct, or own all or part of such business;

QUESTIONS PRESENTED “a

““(iii) has been or remains in substan-

1. Whether a bookmaker’s acceptance of “lay-off” tially — operation for a period in

bets is sufficient to make him a person who “conducts” : evi Jad eed me or has a gross revenue

a gambling business in conjunction with the person placing of $2, in any single day.

those bets, within the meaning of 18 U.S.C. § 1955. | wad icc sried aeuchetimiecaoratall

to pool-selling, bookmaking, maintaining slot

machines, roulette wheels or dice tables, and

conducting lotteries, policy, bolita or numbers

games, or selling chances therein.

“(3) ‘State’ means any State of the United

States, the District of Columbia, the Common-

Se tliat:

2. Whether the inclusion of “lay-off” sources as

persons “conducting” gambling businesses within the

meaning of § 1955 makes the statute unconstitutionally

vague, as applied here, for failing to give adequate notice

of its scope.

ee

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refused to accept bets from Bergen.

It was stipulated that Freeman would have testified

ot that he did not know that Bergen was involved with others

in a bookmaking operation, but that he believed that Bergen .

was betting for himself or for a friend. It was stipulated that

Freeman would have testified that he thought that three or

four of Bergen’s bets were bets that Bergen had accepted

but did not want to keep.

Finally, it was stipulated that Freeman would have

testified that he did not subscribe to scratch sheets, sports

publications, or information services, but that his sole

sources of information regarding betting odds and “lines”

were the Los Angeles Times and Seymour Bergen.

wealth of Puerto Rico, and any territory

or possession of the United States.”

STATEMENT OF THE CASE

It was stipulated in the District Court that Clarence

Eldon Freeman was overhear’ engaging in telephone con-

versations with co-defendants Bergen and Kail and that, |

based upon those conversations, special agent Francis . }

Cross would testify that it was his expert opinion that: ;

“|. . defendant Freeman was a ‘lay-off’

source for Bergen’s bookmaking operations.

He manages as well a separate gambling oper-

ation. Bergen used both Freeman and Gary

Hallman as sources for ‘lay-off wagering.’

‘Lay-off wagering,’ an integral part of a book-

making business, is rebetting with another

gambling operation on heavily bet games or

horse races in order to create what the book-

maker feels is a favorable balance of wagering

and in order to reduce the possibility of substan-

tial loss.”

It was further stipulated that Clarence Eldon Freeman,

if called and sworn, would testify that he had known Seymour

Bergen for two and one-half years but had not met any of the

other members of the alleged gambling business prior to indict-

ment. Further, Freeman would have admitted that he accept-

ed bets from Bergen several times during July and August of 4

1975, but did not do so on a daily basis or tell Bergen that he “ @

would accept any bets that Bergen did not want. It was further

stipulated that Freeman would testify that he sometimes

6 .

- ote pi lieaIete! Ages ee

REASONS FOR GRANTING THE WRIT

1. The Decision Below, To The Extent That It Up-

holds The § 1955 Conviction Of A “‘Lay-Off”

Source, Conflicts With The Decisions Of The

Fifth And Sixth Circuits In United States v. Box,

$30 F.2d 1258 (Sth Cir. 1976), And United States

v, Leon, $34 F.2d 667 (6th Cir. 1976).

The issue presented here is whether the acceptance

of “lay-off”! bets makes their acceptor a member of the

bettor’s gambling organization within the meaning of

8 1955. |

rT a,

Section 1955 makes a federal crime the association facts are shown. The factors that could support the

of five or more persons who “conduct, finance, manage, . conviction of a person accepting lay-off bets are:

supervise, direct, or own all or part of an illegal gambling a “Evidence that the individual provided a

business.” Persons who play an integral part in the main- regular market for a high volume of such

tenance of an illegal gambling business “conduct”’ that bets, or held himself out to be available for

business within the meaning of § 1955. United States v. such bets whenever bookmakers need to

Sacco, 491 F.2d 995 (9th Cir. 1974). : make them; evidence that the individual

While there seems to be no dispute among the Cir- performed any other substantial service for

cuits that § 1955 applies to such persons as doorkeepers, ' ‘ the bookmaker’s operation, as for example,

United States v. Mattucci, 502 F.2d 883 (6th Cir. 1974), | in the supply of line information; or evidence

watchmen, card dealers, United States v. Harris, 460 F.2d | that the individual was conducting his own

1041 (Sth Cir. 1972), and street runners, United States v. illegal gambling operation and was regularly

Riehl, 460 F.2d 454 (3rd Cir. 1972), there is a clear con-. exchanging lay-off bets with other book-

flict among the Circuits as to whether the acceptance of makers.”

“lay-off bets” is sufficient to make the person accepting United States v. Box, supra, 530 F.2d

those bets a person who “conducts” a gambling business at 1266.

in conjunction with the person placing the bet. ; See also United states v. Leon, supra (exchange of line

In United States v. Box, 530 F.2d 1258 (Sth Cir. | information as well as bets is not sufficient to show the

1976), and United States v. Leon, 534 F.2d 667 (6th requisite concert of purpose required by § 1955); United

Cir. 1976), the Fifth and Sixth Circuits held that the States v. Campion, 560 F.2d 751 (6th Cir. 1977) (limited

acceptance of lay-off bets alone could not support the. exchange of information and bets does not suggest the

conviction of the person accepting those bets as one who “significant or sustained impact upon the gambling enter-

“conducts” a gambling enterprise in conjunction with the prise” required by § 1955); United States v. Gezek, 527

person placing the bets. According to the Box court, evi- F.2d 552, 557-58 (8th Cir. 1975).

dence that a person has accepted lay-off bets will not In contrast, the Fourth, Seventh and Ninth Circuits

support his or her conviction under § 1955 uniess other . | have held those who accept lay-off bets to be included

within the ambit of § 1955. United States v. George,

Ree See a 568 F.2d 1064 (4th Cir. 1978); United States v. McHale,

particularly

maker Known as iayoff bet this wager placed as biftheluyingett E 495 F.2d 15 (7th Cir. 1974); and United States v. Sacco,

a tine de gnc. | the prevaling profit Sebel as inited Staiee | supra. The evidence presented here—that Clarence Free-

v. Baker, $89 F.2d 1008, 1013 n. 9 ( . 1979). Sorat aea man accepted lay-off bets from $ R Seal

aii

thus sustain Freeman’s conviction in at least three Cir-

cuits while being insufficient in two others. The evidence

of Freeman’s involvement with Bergen did not show any

of the factors listed in Box as supportive of a 8 1955 con-

viction of a person who accepts lay-off bets. There was

no evidence that Freeman provided a regular market for

a high volume of lay-off bets, or that he held himself out

to be available for such bets whenever Bergen needed to

make them, or that he performed any other substantial

service for Bergen—such as supplying line information,

or that he conducted his own illegal gambling operation

and was regularly exchanging lay-off bets with other

bookmakers. Freeman, like Box, was not shown by the

evidence to be anything more than a lay-off source for a

bookmaker. He was not shown to be engaged in the

same business as Bergen, United States v. Schaefer, 510

F. 2d 1307, 1315 n. 4 (8th Cir. 1975) (Lay, J., dissenting),

and his conviction should therefore have been reversed.

“Gambling,” said the Fifth Circuit in Box, “becomes

a federal offense only when a person is charged with more

than betting, and evidence that a person accepted lay-off

bets, without more, is insufficient to expel that person

from section 1955’s sanctuary of bettordom.” United

States v. Box, supra, 530 F.2d at 1267. The decision here |

is in conflict with the Fifth Circuit’s decision in Box and

unduly expands the scope of § 1955. A writ of certiorari

should therefore issue to review the decision in this case.

2. Section 1955 Is Unconstitutionally Vague As

Applied, In Violation Of The Due Process Clause,

For Its Application For Persons Who “Conduct”

*

ae

~9—

Gambling Businesses Does Not Sufficiently

Inform Gamblers That It Applies To Those

Who Accept “Lay-Off” Bets.

A basic principle of due process requires “that

a criminal statute must give clear warning of the conduct

that it makesacrime ... : ” Bouie v. Columbia, 378

U.S. 347, 350-51 (1964).

“The constitutional requirement of definite-

ness is violated by a criminal statute that fails

to give a person of ordinary intelligence fair

notice that his contemplative conduct is for-

bidden by the statute. The underlying principle

is that no man shall be held criminally respon-

sible for conduct which he could not reasonably

understand to be proscribed.”

United States v. Harriss, 347 U.S. 612,

617 (1954).

Here, 81955 applies to persons who “conduct”

gambling businesses. It does not, on its face, apply to

persons who accept lay-off bets from gambling businesses.

Thus, the Fifth Circuit held in United States v. Box, supra,

that § 1955 does not apply to lay-off sovrces. The Ninth

Circuit, on the other hand, has held to the contrary. Here,

and in other cases, the Ninth Circuit has sustained the con-

victions of lay-off sources as persons who “conduct”

gambling businesses within the meaning of § 1955.

The strained construction of § 1955 by the Ninth

Circuit does violence to the words of the statute as well

as the due process laws. The statute applies to persons

~10—

who “conduct” gambling businesses and not to those who

accept bets from them. To apply it to those who accept

‘lay-off bets makes it “a-statute which . . . forbids. . .

the doing of an act.in terms so vague that men of common

intelligence must necessarily guess at its meaning and differ

as to its application,” and, thus, one which violates the due

process laws. Connally v. General Construction Co., 269

U.S. 385, 391 (1926).

The construction of § 1955 by the Ninth Circuit,

unlike that of the Fifth Circuit in Box, makes the statute

-unconstitutional as applied. It allows speculation as to the

statute’s scope, a result which cannot be tolerated:

“No one may be required at peril of life,

— liberty or property to speculate as to the

_meaning of penal statutes. All are entitled

to be informed as to what the State commands

or forbids.”

Lanzetta v. New Jersey, 306 U.S. 451,

453 (1939); Bouie v. Columbia, supra,

378 U.S. at 351.

CONCLUSION

For the reasons set forth above, a writ of certiorari

should issue to review the judgment and opinion of the

Court of Appeals for the Ninth Circuit.

Respectfully submitted,

BURTON MARKS

Counsel for Petitioner

APPENDIX

es cae ow

APPENDIX

OPINION OF THE COURT BELOW

In the United States Court of Appeals for the Ninth

Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee

versus

EDWARD KAIL, Defendant-Appellant

- No. 78-1633;

SEYMOUR BERGEN, Defendant-Appellant

- No. 78-1643;

RUSSELL CALLAHAN, Defendant-Appellant

- No. 78-1772;

CLARENCE ELDEN FREEMAN, Defendant-Appellant

- No. 78-1677.

[Filed November 21, 1979]

Appeal from the United States District Court for the

Central District of California

Before: WALLACE and TANG, Circuit Judges, and

BATTIN,* District Judge

TANG, Circuit Judge.

The defendants, Edwin Kail, Seymour Bergen, Russell

Callahan, and Clarence Freeman, together with two persons

“Honorable James F. Battin, United States District Judge for the District of

Montana, sitting by designation.

Appendix 2.

unnamed as defendants, were indicted on one count of

conducting a gambling business, in violation of 18 U.S.C.

§ 1955. Bergen was also indicted on a second count, inter-

state transmission of wagering information in violation of

18 U.S.C. §& 1084 and 2. After they unsuccessfully moved

to suppress evidence obtained by wiretaps, the defendants

consented to be tried on a stipulation of facts and were

found guilty on all counts. They now appeal, raising

numerous issues but primarily emphasizing the legality of

the wiretap. We affirm the convictions.

I

On July 29, 1975, the Government received author-

ization to intercept wire communications from six tele-

phone numbers that were subscribed to by three of the

defendants. The indictment was not returned against the

defendants until November 1977. Consequently, Bergen

and Kail first contend that the indictment should have

been dismissed because of preindictment delay.

Preindictment delay does not implicate the speedy

trial guarantee of the sixth amendment, although in some

instances it might violate the due process clause of the

fifth amendment. United States v. Marion, 404 U.S. 307

(1971); United States v. Lovasco, 431 U.S. 783 (1977).

The due process test for impermissible preindictment

delay requires a delicate balancing of the circumstances

of each case. Arnold v. McCarthy, 566 F.2d 1377, 1383

(9th Cir. 1978). Primarily, the court must compare the

gravity of the actual prejudice to the reasons for the

delay. Id.; see Lovasco, 431 U.S. at 79.

Bergen and Kail conclusively alleged that they have

Appendix ae

been prejudiced by the loss of memory due to time and by

the loss of possible witnesses to their activities. They do

not, however, specify what they might have forgotten or

who are the possible witnesses that they were unable to

secure. Nor do they allege that the Government delayed

bringing the indictment to obtain a tactical advantage. In

these circumstances, their due process claim is unsubstan-

tial. Arnold, 566 F.2d at 1383-85.

II

Pursuant to the provisions of Title III of the Omni-

bus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

88 2510-20, government agents obtained an order author-

izing the interceptions of telephone communications by

the defendants. The defendants raise a variety of reasons

why the wiretap order was illegal. None are meritorious.

A. The Constitutionality of 18 U.S.C. § 2518.

The defendants argue that the procedure specified

in § 2518 for obtaining a wiretap is unconstitutional. This

argument has previously been rejected by the court. United

States v. Turner, 528 F.2d 143 (9th Cir. 1975), cert. denied,

429 U.S. 837 (1976). |

B. Alleged Misrepresentations in the Affidavit.

The Government’s application for a wiretap was

supported by the lengthy affidavit of FBI agent Darrell

Shaver. In paragraph 45 of the affidavit, Shaver averred

that confidential informants stated that even if they were

Appendix

immunized and given protective custody they would be

unwilling to testify at any proceedings for fear of their

safety. In the district court, Bergen offered to prove that

an informant, Gary Hallman, had never been asked to

testify, but if asked, would have testified, although reluc-

tantly. The defendants thus contend that the offer of proof

exhibited a material misrepresentation in the Shaver affidavit,

warranting invalidation of the wiretap order.

Assuming that Hallman was one of the confidential

informants referred to in the affidavit, the defendants have

not persuaded us that there were material misrepresentations

in Shaver’s affidavit. The fact that Hallman was admittedly

unwilling to testify demonstrates that any misrepresentation

in the affidavit was not material. Furthermore, there were seven

confidential informants mentioned by Shaver in the affidavit.

C. The Requirements of § 2518(1)(c).

To show the necessity for a wiretap, the application

must include a full and complete statement as to whether

other investigative procedures have been tried and failed

or why they reasonably appear to be unlikely to succeed

if tried or would be too dangerous. 18 U.S.C. 8 2518(1Xc).

See, e.g., United States v. Martinez, 588 F.2d 1227, 1231

(9th Cir. 1978). The defendants contend that the Shaver

affidavit lacked sufficient particularity to meet this require-

ment of necessity. !

1 , .

ite the defendants’ lengthy arguments concerning our prior discussions

of § 2518(1)(c), we Sotiine retrace the lines drawn in the numerous decisions

of the court. See United States v. Baker, 589 F.2d 1089, 1091 (9th Cir. 1979).

Appendix 5.

Viewing, as we must, the affidavit as a whole, id.,

we find that the Shaver affidavit did not consist of bald,

conclusory statements, but instead provided sufficient

particularized detail to demonstrate the need for a wire-

tap in the discrete circumstances of this case. The lengthy

Shaver affidavit describes in considerable detail the history

of the three-month investigation of the bookmaking oper-

ation prior to the application for the wiretap. Besides

the personal observations of the government agents, the

affidavit discloses the substance of information obtained

from seven confidential sources, each of whose reliability

is documented. Each source had some contact with either

Bergen, Callahan, or Kail involving gambling in some way.

The sources revealed that Bergen operated a large bookmaking

business. They described Kail as the “back office” clerk of

Bergen’s Los Angeles operation, and Callahan as Bergen’s

Palm Springs agent who “‘settles-up” when he is in Los Angeles.

Through. both their sources and personal observations, the gov-

ernment agents were able to learn names, dates, and locations

of ‘the gambling operations.

_ Despite the success of the investigation using normal

investigative techniques, the affidavit pointed out the defi-

ciencies and limitations of the investigation. No one inter-

viewed knew more than two participants in the operation.

Additionally, Bergen changed the manner of operations,

such as telephone numbers and methods of payment and

collection, because he learned of the FBI surveillance from

persons interviewed by the FBI. As a result, the information

obtained from those interviewed became stale, and the possi-

bility that Bergen would avoid detection increased. The

agents also undertook physical surveillance of the persons

Appendix 6.

named in the application and noted some contacts among

the principals, but surveillance was generally unsuccessful

in fully establishing the elements of the offense. The affi-

davit further described the reluctance of informants to

testify, the futility of infiltration, and the limitations of

employing telephone toll records in uncovering the nature

of Bergen’s operation. In short, the affidavit enabled the

court to ascertain that the application was not intended

to be used as a first step in the investigation, but an alter-

native that was necessary because of the limitations that

the agents had encountered when using normal investiga-

tive techniques. See United States v. Spagnuolo, 549

F.2d 705, 710 (9th Cir. 1977).

Although the affidavit was not as detailed with respect °

to Callahan when compared with its description of Bergen

and Kail, the affidavit read as a whole established the futility

of using normal investigative procedures for all of the prin-

cipals. “A particularized showing . . . may be established

. not only by a minutia of detail discretely directed, but

by persuasive facts pertaining in common to all of the prin-

cipals and their telephones.” United States v. Baker, 589

F.2d 1008, 1012 (9th Cir. 1979). Such was the case here.

D. Prior Conversations.

Callahan contends that the failure to set forth

previous interceptions of his couiversations violated

§ 2518(1)(e). Section 2518(1)(e) requires that the

application set forth a statement concerning all previous

applications, not interceptions, known to the person

making the present application. By disclosing in paragraph

Appendix , 5

55 of the affidavit that he was aware that there had been

previous applications for wiretaps of Callahan’s phones,

Shaver complied with § 2518(1)(e). As Callahan concedes,

Shaver did not have to disclose all previous interceptions

of Callahan’s conversations. See United States v. Florea,

541 F.2d 568, 576 (6th Cir. 1976), cert. denied, 430 U.S.

945 (1977).

Ill

After obtaining the wiretap order, government agents

installed a pen register to learn the telephone numbers that

were dialed on the monitored telephones. They did not ob-

tain authorization to use this device. The defendants con-

tend that a separate order was necessary to allow the govern-

ment to use the pen register in conjunction with the wiretap.

Because pen registers do not intercept the contents of

communications, they are not within the scope of Title III,

United States v. New York Tel. Co., 434 U.S. 159 (1977),

and therefore, to install a pen register, the Government need

not show compliance with Title III requirements. See United

States v. Falcone, 505 F.2d 478, 482 (3rd Cir. 1974), cert.

denied, 420 U.S. 955 (1975).

This does not mean that no authorization for the use

of pen registers is required. However, once a valid wiretap

order has been issued, as here, there need not be separate

authorization for the pen register. Jd. It is already possible

to decipher the telephone numbers of outgoing calls by the

use of a wiretap and tape recorder. The pen register, by auto-

matically translating electrical impulses into the numbers

dialed, avoids the need to interpret what has been recorded

from the wiretap. This mechanical refinement provided by

Appendix 8.

the pen register is thus comprehended within the terms of

the wiretap order, making separate authorization unneces-

sary. Id. If, as defendants argue, the Government must

support the use of the pen register by a showing of probable

cause that showing is met by satisfying the probable cause

requirements for obtaining the wiretap, see New York Tele-

phone Company, 434 U.S. at 168-69.

IV

In support of his motion to suppress the information

obtained by the wiretaps, Callahan argued that statements

contained in the Shaver affidavit were derived from wire-

taps, subsequently found illegal, that were made in connec-

tion with the Vicki Balos case. In respo:.se, Shaver filed an

affidavit stating that none of the statements pertaining to

Callahan were derived from the Balos wiretaps. After a

post-trial Alderman (Alderman v. United States, 394 U.S.

165 (1969) ) hearing, the district court found that the

Government had sustained its burden of showing that the

affidavit was not derived from illegal wiretap.

The district court’s finding was not clearly erroneous.

Shaver explicitly denied that his information was derived

from the illegal wiretap. Other than asserting the existence

of the Balos wiretap, Callahan provided no evidence to

demonstrate that the Shaver affidavit was tainted. The

district court reasonably relied on Shaver’s affidavit dis-

claiming that his information was tainted.

V

In connection with his request for an Alderman

hearing, Callahan moved_.on the day before trial for

cee RP Eg, 6 Bmore

. .

° -

Appendix 9.

discovery of various items, including access to the affidavit

requesting the Balos wiretap and recordings of Balos inter-

ceptions; the Government’s files in the Balos prosecution;

names and address of all persons monitored in the Balos

wiretap or with knowledge of the wiretap; and access to

the Government’s file in his case. The court held an Alder

man hearing and allowed discovery of the Balos affidavit

and transcripts of some of the interceptions. Callahan

nevertheless contends that the district court unreasonably

restricted his access to discovery.

Even if a defendant makes a preliminary showing of

taint, he is not entitled to unlimited access to Government

files; the extent of discovery is left to the discretion of the

district court. Alderman, 394 U.S. at 185. There was no

abuse of discretion in this case.

In November the district court issued an order that a

hearing would be held if there were contested discovery

matters. The partiés stipulated that no hearing was neces-

sary because there were no contested discovery matters.

Callahan did not make his request for discovery until

January 20, 1978, one working day before trial. Like

the district court, we find it inconceivable that the defend-

ant was not aware of the Balos action much earlier. De-

spite the untimeliness of Callahan’s request, the district

court allowed limited discovery. Particularly in view of

the fact that Callahan provided no specific evidence of

taint, we find that the district court’s handling of Calla

han’s discovery request to be reasonable.

VI

The defendants, without citation of authority,

Appendix 10.

contends that 18 U.S.C. 8 1955 is unconstitutional because

it overreaches Congress’ powers under the Commerce Clause.

This precise contention was rejected in United States v. Sacco,

491 F.2d 995 (9th Cir. 1974) (en banc).

VI [sic]

Finally, Feldman [sic] contends that the evidence was

insufficient to prove that he committed a violation of § 1955.

The two stipulations, supplemented by the Government’s

exhibits of the wiretap transcripts, revealed that on nine or ten

occasions Freeman accepted bets from Bergen. Although Free-

man believed that some of these bets were for Bergen’s personal

account, it appears that Freeman was being regularly used as a

lay-off source for the Bergen bookmaking operation. The wire-

tap transcripts are particularly revealing. They showed that

Freeman accepted bets from the Bergen operation that he

knew were lay-off bets, and furthermore, that Freeman

exchanged line information with the operation. It can also

be reasonably inferred from the transcripts that Freeman

was conducting a betting operation of his own. In short,

Freeman was not just an occasional and unknowing recipient

of lay-off bets from the Bergen operation, but was sufficiently

involved in the operation to have committed a violation of

8 1955. See United States v. Baker, 589 F.2d 1008, 1013-14

(9th Cir. 1979).

Conclusion

The convictions are affirmed.

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA )

) ss.

County of Orange )

I, the undersigned, say: I am and was at all times herein mentioned, a citizen

of the United States and employed in the County of Orange, over the age of

eighteen years and not a party to the within action or proceeding; that

My business address is 326% Main Street, Huntington Beach, California 92648,

thaton MARCH __, 1980, I served the within PETITION FOR WRIT OF

CERTIORARI (FREEMAN vs. UNITED STATES) on the following named

parties by depositing three copies thereof, enclosed in a sealed envelope with

postage thereon fully prepaid, in the United States Post Office in the City of

Huntington Beach, California, addressed to said parties at the addresses as

follows:

SOLICITOR GENERAL OF TEH UNITED STATES

U. S. Department of Justice

Washington, D. C. 20530

UNITED STATES ATTORNEY

FOR THE CENTRAL DISTRICT OF CALIFORNIA

U. S. Courthouse

312 North Spring Street

Los Angeles, California 90012

I declare under penalty of perjury that the foregoing is true and correct.

Executed on March _, 1980, at HUNTINGTON BEACH, CALIFORNIA.

D. A. Standefer

Original and 40 copies to the SUPREME COURT OF THE UNITED STATES

via EXPRESS MAIL - marked “DEADLINE FILING DATE 3-14-80.

DOCKET FEE ATTACHED TO ORIGINAL COPY.

Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648

(714) 536-7161