Petition — Bergen v. United States

IN THE : MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1979

No. 49-1573

SEYMOUR BERGEN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

RICHARD G. SHERMAN

Sixth Floor

6420 Wilshire Boulevard

Los Angeles, CA 90048

(213) 658-6800

Counsel for Petitioner

IN THE TOPICAL INDEX

SUPREME COURT OF THE UNITED STATES

Term 1979

October TABLE OF AUTHORITIES

No.

OPINION BELOW

SEYMOUR BERGEN, JURISDICTION

Petitioner, QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

bela INVOLVED

OF AMERICA

UNITED STATES ' STATUTORY PROVISIONS INVOLVED

dent.

ee STATEMENT OF THE CASE

° STATEMENT OF THE FACTS

. PETITION FOR A WRIT OF CERTIORARI ‘ REASONS FOR GRANTING THE WRIT

TO THE UNITED STATES COURT OF :

APPEALS FOR THE NINTH CIRCUIT I THE CASE AT BENCH-IS IN DIRECT

CONFLICT WITH PREVIOUS DECI-

SIONS OF THE NINTH CIRCUIT,

CONTRAVENES THE CLEAR CONGRES-

SIONAL INTENT UNDERLYING THE

RICHARD G. SHERMAN WIRETAP STATUTE, AND CONSTI-

TUTES AN UNWARRANTED DILUTION

Sixth Floor OF THE "FULL AND COMPLETE

6420 Wilshire Boulevard STATEMENT" REQUIREMENTS OF

Los Angeles, CA 90048 TITLE 18, UNITED STATES CODE,

(213) 658-6800 § 2518(1) (c).

Counsel for Petitioner , II THE CASE AT BENCH IS IN CON-

FLICT IN PRINCIPLE WITH THE

STANDARDS ESTABLISHED BY THIS

HONORABLE COURT IN FRANKS v.

' DELAWARE.

CONCLUSION

APPENDIX OPINION AND JUDGMENT OF

THE UNITED STATES COURT

OF APPEALS FOR THE NINTH

CIRCUIT; ORDER OF THE

UNITED STATES COURT OF

APPEALS FOR THE NINTH

CIRCUIT DENYING PETITION

FOR REHEARING EN BANC

ii.

le

TABLE OF AUTHORITIES

Cases

Franks v. Delaware

UeBe a

98 S.ct. 2674 (1978) 23,

United States v. Giordano

416 U.S. 525 (1974)

United States v. Kahn

415 U.S. 143 (1974)

United States v. Kalustian

529 F.2d 585

(9th Cir. 1976) 23,

United States v. Kerrigan

514 ¥.2a 35

(Sth Cir. 1975)

United States v. Spagnuolo

549 F.2d 705

(9th Cir. 1977)

United States v. Ventresca

380 U.S. 102 (1965)

Statutes

18 U.S.C. § 2

18 U.S.C. § 1084

18 U.S.C. § 1955

18 U.S.C. §§ 2510-2520

18 U.S.C. § 2515

18 U.S.C. § 2518

30, 33

18

18

19, 20

ao, af

21,..25

ais 2

19

So, i7

-

18° U.8.¢C. § 2516(1) (c) - 3, 5, 27, 29, 28

iii.

Statutes

18 U.S.C. § 2518(3) (c)

28 U.S.C. § 1254(1)

Constitution

United States Constitution

Fourth Amendment

Act

Omnibus Crime Control and

Safe Streets Act of 1968

Title III

iv.

28

18

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1979

No.

SEYMOUR BERGEN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

The petitioner, Seymour Bergen,

respectfully prays that a writ of certio-

rari issue to review the judgment and

opinion of the United States Court of

Appeals for the Ninth Circuit entered in

this proceeding on November 21, 1979.

OPINION BELOW

The Opinion of the United States

Court of Appeals for the Ninth Circuit,

not yet reported, appears in the Appendix

hereto. No opinion was rendered by the

United States District Court for the

Central District of California.

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit

was entered on November 21, 1979. A

timely petition for rehearing en banc was

denied on February 13, 1980. By order of

the Honorable William H. Rehnquist,

Associate Justice of the Supreme Court of

the United States, dated March 3, 1980,

petitioner was granted an extension of

time within which to file a petition for

writ of certiorari up to and including

April 11, 1980. This petition is filed

prior to April 11, 1980. The jurisdiction

of this Honorable Court is invoked under

Title 28, United States Code § 1254(1).

2.

QUESTIONS PRESENTED

WHETHER ESSENTIALLY BOILERPLATE

CONCLUSIONARY AVERMENTS APPLICABLE

TO ANY GAMBLING INVESTIGATION MEET

THE “FULL AND COMPLETE STATEMENT"

REQUIREMENT OF TITLE 18, UNITED

STATES CODE, § 2518(1)(c), OR THE

"PARTICULARITY" REQUIREMENTS OF THE

FOURTH AMENDMENT, SUFFICIENT TO

AUTHORIZE THE INTERCEPTION OF TELE-

PHONE COMMUNICATIONS.

WHETHER A SUBSTANTIAL NONFRIVOLOUS

OFFER OF PROOF THAT AN AFFIDAVIT FILED

IN SUPPORT OF AN ORDER AUTHORIZING THE

INTERCEPTION OF TELEPHONE COMMUNICA-

TIONS CONTAINS MATERIAL FALSE MISRE-

PRESENTATIONS WITH RESPECT TO THE WILL-

INGNESS OF AN INFORMANT TO TESTIFY IN

THE CONTEXT OF TITLE 18, UNITED STATES

CODE § 2518(1)(c) REQUIRES THE HOLDING

OF AN EVIDENTIARY HEARING AND THE

GRANTING OF A MOTION TO SUPPRESS.

CONSTITUTIONAL PROVISIONS INVOLVED

or before any court .. . if the

disclosure of that information

The Fourth Amendment to the Constitu- : ,

would be in violation of this

tion of the United States provides that: 5

chapter."

"The right of the people to be

secure in their persons, houses, Title 18, United States Code § 2518,

papers, and effects, against un- at all times pertinent to these proceed-

reasonable searches and seizures, ings, provided, in pertinent part, that:

shall not be violated, and no "(1) Each application for an

Warrants shall issue, but upon order authorizing or approving

probable cause, supported by Oath the interception of a wire or

or affirmation, and particularly oral communication shall be made

describing the place to be searched in writing upon oath or affirma-

and the persons or things to be . tion to a judge of competent

seized." jurisdiction and shall state the

applicant's authority to make

such application. Each applica-

STATUTORY PROVISIONS INVOLVED f ;

tion shall include the following

information:

Title 18, United States Code § 2515, * * *

rovides, in pertinent part, that:

p ’ Pp ’ "(c) a full and complete

TE SERS OE AES statement as to whether or not

munication has been intercepted,

no part of the contents of such

communication and no evidence

derived therefrom may be re-

ceived in evidence in any trial,

investigative procedures have

been tried and failed or why

they reasonably appear to be

unlikely to succeed if tried

; . or to be too dangerous;

hearing, or other proceeding in A g ,

*

4.

*

DB.

"(3) Upon such application the

judge may enter an ex parte order,

as requested or as modified,

authorizing or approving inter-

ception of wire or oral communi-

cations within the territorial

jurisdiction of the court in which

the judge is sitting, if the judge

determines on the basis of the

facts submitted by the applicant

that ---

* et *

"(c) normal investigative pro-

cedures have been tried and have

failed or reasonably appear to be

unlikely to succeed if tried or

to be too dangerous;"

STATEMENT OF THE CASE

By a two count indictment of the

Grand Jury dated November 22, 1977, peti-

tioner, Seymour Bergen, was charged in

Count I, together with codefendants Kail,

Freeman and Callahan, with conducting a

gambling business in violation of Title

18, United States Code § 1955. Count II

6.

charged petitioner Bergen alone with

interstate transmission of wagering in-

formation in violation of Title 18, United

States Code §§ 1084 and 2.

Petitioner entered a plea of not

guilty and moved the District Court to

suppress all of the telephone communica-

tions intercepted by the Government pur-

suant to wiretap authorizations obtained

under Title 18, United States Code §§

2510-2520. The grounds for suppression,

as contended by petitioner, asserted, in

pertinent part, that the Government affi-

davit in support of the order authorizing

interception of said telephone conversa-

tions (1) was conelusionary in nature and

failed to comply with the "full and com-

plete statement" re _uirements of Title 18,

United States Code § 2518; and (2) con-

tained materially false statements warrant-

ing, preliminarily, an evidentiary hearing,

and ultimately, suppression of the tele-

phone communications intercepted.

The District Court denied the motions

without an evidentiary hearing, whereupon

the question of the guilt or innocence of

the petitioner was submitted to the

7.

District Court without a jury upon stipu-

lated facts. Petitioner was found guilty

as charged. On Count I petitioner was

sentenced to the custody of the Attorney

General for imprisonment for a term of

thirty (30) months and was fined $10,000.00.

On Count II petitioner was sentenced to

the custody of the Attorney General for a

term of two (2) years and was fined

$10,900.00. The terms of imprisonment

were to run concurrently. Petitioner is

presently at liberty upon bond pending

appeal in the amount of $15,000.00.

STATEMENT OF THE FACTS

From July 29, 1975 through August 7,

1975, the Government intercepted telephone

conversations pursuant to the July 29,

1975 order of the District Court author-

izing the same. Said order was issued on

the basis of the July 29, 1975 application

of the. Government supported by the affi-

davit of FBI agent Darrell Shaver. The

interceptions and the evidentiary fruits

thereof formed the bulk of the evidence

8.

ose

against petitioner and the matters set

forth in the stipulation of facts upon

which the question of guilt or innocence

was submitted to the District Court.

Petitioner's motion to suppress concerned

the interceptions and their evidentiary

fruits.

The affidavit of Shaver set forth

information received from seven informants

as to various aspects of the Government

investigation. In paragraph 45 of the

affidavit, the lead paragraph of that por-

tion of the affidavit explaining the "need

for interception," the affiant averred

that "Confidential informants referred to

herein have stated even if immunized and

given protective custody they would be

unwilling to testify at any proceedings

for fear of their safety." At the pro-

ceedings in the District Court on the

motion of petitioner to suppress evidence

it was stipulated as the defense offer of

proof that one Gary Hallman was one of the

informants designated in the Shaver affi-

davit and that Hallman would testify as

follows:

"(T)hat he had given information

to agents of the Federal Bureau of

Investigation on a number of occa-

sions over a number of years; that

he discussed with agents of the FBI

Mr. Seymour Berge.w and Mr. Seymour

Bergen's gambling activities; that

he never was asked by agents of the

FBI whether he would refuse to

testify, whether he wanted to testi-

fy; that he was never told that he

would be granted immunity; that he

never told agents that he would re-

fuse to testify even if granted

immunity; that had he been told or

asked to testify he would have been

reluctant to, would have preferred

not to testify, but had he been

told that his testimony was required

I believe he would have testified.

"More particularly, had he been

granted immunity, he would have

testified rather than go to jail".

The remainder of the Shaver affidavit

bearing upon the "need for interception"

contained the following recitals:

10.

"46. Physical surveillances have

been conducted on numerous occa-

sions on Seymour Bergen and the

individuals named in this affi-

davit. The addresses of 22848

Sparrow Dell Drive, Calabasas,

California, and 20742 Clarendon

Street, Los Angeles, California,

have been surveilled, but they

have been generally unsuccessful

in fully establishing the elements

of the subject violations and

identities of all conspirators.

Contacts have been noted between

principals of the operation, how-

ever, such surveillance has not

been conclusive.

"47. Investigation involving

Seymour Bergen and his associates

previously mentioned has been con-

ducted by the Los Angeles Office

of the Federal Bureau of Investi-

gation since April 1973. During

this time normal investigative

techniques have been employed and

have failed to provide adequate

proof of all the elements of a

li.

violation of Title 18, United

States Code, § 1955 (Operating

an Illegal Gambling Business).

"48. This investigation has

revealed that during the past

two years Seymour Bergen's book-

making operation has continually

changed, both as to the manner of

operation and as to the people

involved. The principals in the

operation have varied according

to the time. Former employees of

the operation have been inter-

viewed, however, they can provide

only that information which they

were familiar with at the time of

their employment. Also, on sev-

eral occasions those people in-

terviewed have told Seymour Bergen

of the Federal Bureau of Investi-

gation's inquiry regarding his

illegal gambling activities, at

which time he drastically altered

his operation by changing person-

nel, telephone numbers, and “pay

and collect" methods.

12.

"49. The telephone numbers in

the operation are changed fre-

quently; the methods used to

"settle up" or "pay and collect"

are changed, utilizing at various

times either personal contacts

with bettors or mailing of monies

or checks in order to "settle up".

Many bettors have been inter-

viewed, however, their knowledge

extends only to the telephone

number and individual being called,

and they have no knowledge of the

overall operation.

"50. Additionally, Affiant and

other Special Agents of the

Federal Bureau of Investigation

have given thorough consideration

to infiltration of this group:

however, based upon my experience

and the experiences of other

Special Agents knowledgeable in

investigating bookmaking, this

procedure does not appear likely

to succeed. Bookmakers operate

in such 4 manner as to secrete

themselves from police detection

Live

and are extremely cautious in

involving new people in their

operation, either as employees

or as bettors. In addition, if

an Agent were successful in in-

filtrating the organization, he

would only learn the identities

of one or two people with whom

he dealt and would not know the

other parties involved or the

complete nature of the operation

nor would he be able to obtain

sufficient proof as to all ele-

ments of a violation of Title

18, United States Code § 1955.

"51. Telephone toll records have

been obtained periodically on the

telephone numbers used at various

times by Seymour Bergen and his

associates, and they reveal num-

erous calls between the principals

in the bookmaking operation, but

they do not reveal the nature of

the contacts between the conspira-

tors or the exact functions they

serve in the Seymour Bergen book-

making operation.

14.

"52. I have found that 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 re-

cords have been maintained,

gamblers immediately prior to

or during a physical search some-

times destroy the records. Ac-

cordingly, records that have

been seized in past gambling

cases have generally not been

sufficient to establish the ele-

ments of a Federal offense be-

cause such records are difficult

to interpret and many times are

of little or no significance

without further knowledge of the

gambler's activities. Therefore,

utilization of the information

furnished by Sources One through

Seven in paragraphs 5 through 44

above to obtain search warrants

for the premises of the conspira-

tors in this case would be un-

likely to result in sufficient

15.

evidence to prove the elements

of violation of Title 18, United

States Code § 1955.

"55. Most of the individuals who

have been identified in this con-

spiracy are known to me and to

other Special Agents of the

Federal Bureau of Investigation

to be longtime participants in

criminal activities and would be

likely to lie under oath unless

confronted with the facts which

would force them to tell the

truth. At this time such facts

are not available to the Govern-

ment, therefore, Grand Jury in-

vestigation with grants of

immunity appear reasonably un-

likely to succeed.

"S4. For the reasons set forth

in preceding paragraphs 45 through

53, normal methods of investi-

the necessary evidence of viola-

tions is to intercept wire com-

munications to and from telephone

numbers 213-888-1737, 213-888-6065,

213-346-0117, 213-346-5537,

714-325-0196, and 714-325-5271,

which will reveal the details of

the operation of the illegal gam-

bling business described above."

REASONS FOR GRANTING THE WRIT

THE CASE AT BENCH IS IN DIRECT

CONFLICT WITH PREVIOUS DECISIONS

OF THE NINTH CIRCUIT, CONTRAVENES

THE CLEAR CONGRESSIONAL INTENT

UNDERLYING THE WIRETAP STATUTE,

AND CONSTITUTES AN UNWARRANTED

DILUTION OF THE "FULL AND COM-

PLETE STATEMENT" REQUIREMENTS OF

TITLE 18, UNITED STATES CODE,

§ 2518(1) (c).

gation have been attempted and Title 18, United States Code, § 2518

have failed or reasonably appear (1) (c), requires that each application

unlikely to succeed and the only for an order authorizing the interception

reasonable method of developing of wire or oral communications include:

16. 17.

"A full and complete statement as

to whether or not other investiga-

tive procedures have been tried

and failed or why they reasonably

appear to be unlikely to succeed

if tried or to be too dangerous;"

Violation of this requirement will

result in suppression not based on the

judicially fashioned exclusionary rule,

but rather upon the provisions of Title

III of the Omnibus Crime Control and

Safe Streets Act of 1968. United States

v. Giordano, 416 U.S. 525, 515 (1974).

This provision was included so as to

guarantee that a necessity does in fact

exist where a wiretap order is requested.

Wiretaps are "not to be routinely em-

ployed as the initial step in a criminal

investigation." United States v.

Giordano, supra, at 515. The requirement

assures that wiretapping is not resorted

to in situations where traditional inves-

tigative techniques should suffice to

expose the crime. United States v. Kahn,

415 U.S. 143 (1974).

18.

In light of these considerations, the

admonition of the Court of Appeals for

the Ninth Circuit in United States v.

Kalustian, 529 F.2d 585 (9th Cir. 1976),

takes on major significance: Federal

courts must review wiretap orders to "in-

sure that the issuing magistrate properly

performed his function and did not 'serve

merely as a rubber stamp for the police'."

United States v. Kalustian, supra, quoting

from United States v. Ventresca, 380 U.S.

102, 109 (1965).

The Ninth Circuit in Kalustian, supra,

reviewed an affidavit in support of a

wiretap application similar to that in

the case at bench, and, after defining

the standards of § 2518(c), concluded the

affidavit to be defective.

Defendants in Kalustian, as in the

instant case, were charged with violating

18 U.S.C. § 1955. The court first set

out the pertinent parts of the affidavit

and then discussed the general congres-

sional intent behind § 2518(1), as

follows:

"Title III was written to create

limited authority for electronic

a9.

the

surveillance in the investigation

of specific crimes thought to lie

within the providence of organized

crime. It was designated to con-

form to prevailing constitutional

standards (citations omitted).

The restraint with which such

authority was granted reflects the

legitimate fears with which a free

society entertains the use of

electronic surveillance."

Turning to the affidavit in question,

Ninth Circuit in Kalustian stated:

"The affidavit does not enlighten

us as to why this gambling case

presented any investigative pro-

blems which were distinguishable

in nature or degree from any other

gambling case. In effect, the

government's position is that all

gambling cases are tough to crack,

so the government need only show

that probability that illegal

gambling is afoot to justify

electronic surveillance. Title

III does not support this view."

20.

In United States v. Kerrigan, 514 F.2d

35 (9th Cir. 1975), the Ninth Circuit

warned against the use of “boilerplate

recitations" in wiretap applications"

"We agree with appellants that

boilerplate recitations of the

difficulty of gathering usable

evidence in bookmaking prosecu-

tions is not sufficient basis for

granting a wiretap order. To

hold otherwise would be to make

§ 2518(1)(c) and 3(c) mere for-

malities in bookmaking cases."

More recently in United States v.

Spagnuolo, 549 F.2d 705 (9th Cir. 1977),

the Ninth Circuit clarified the type of

showing required to sustain a wiretap

application under the statute:

", . . The affidavit must reveal

that . .. in the particular

investigation normal investiga-

tive techniques employing a

normal amount of resources have

failed to make the case within

a reasonable period of time.

"Where such techniques have not

21.

been so employed the sufficiency

of the affidavit depends on

whether there is a showing that

under the particular circumstances

of the case the employment of such

techniques appear ‘unlikely to

succeed if tried or to be too

dangerous." Any such showing re-

quires setting forth an adequate

factual history of the investiga-

tion and a description of the

criminal enterprise sufficient to

enable the district judge to deter-

mine independently of an agent's

assertions with respect to his or

other agents' experiences, that

ordinary investigative techniques

very likely will not succeed or

that their use will imperil life

or in some other specific way be

too dangerous. (Emphasis added) ."

An application composed solely or

largely of conclusions unsupported by parti-

cular facts gives no basis to a district

judge to make the determinations necessary

under the statute. Until the instant case,

the Ninth Circuit had charted a clear and

22.

consistent path in its interpretation of

the wiretap statute. In the case at

bench, however, the Ninth Circuit has

directly and inexplicably contradicted

its holding in Kalustian, supra, and

created a conflict within the Ninth Cir-

cuit as well as the other Circuit Courts

which have had occasion to interpret the

statute. An examination of the instant

wiretap applicaton reveals that it fails

to comply with the requirements of the

wiretap statute, yet the Ninth Circuit

has ignored its own holding in Kalustian,

supra, in affirming the conviction below.

The affidavit here reveals that

police informants had completely infil-

trated the gambling speration run by

defendant Bergen. These informants knew

many of the persons involved with the

operation of the business, bet directly

with the front office of the operation

and Bergen personally, and also had per-

sonal conversations with Bergen in which

Bergen confided that he was running the

gambling operation and in which Bergen

disclosed much about the operation and

personnel involved therein.

+

These informants knew the telephone

numbers employed by Bergen, many of the

front office personnel, which personnel

were to be replaced, and the name of

codefendant Kail, as well as his function

as a back office clerk, and the telephone

numbers.

These informants, seven in all, pro-

vided extensive information to the FBI

about the structure, personnel, and ex-

tent of the gambling business. Corrobo-

ration of much of the information was

obtained by surveillance of Kail and

Bergen, administrative telephone sub-

poenas for codefendant Callahan's toll

records, and similar investigative

procedures.

Despite the extensive infiltration

of the gambling operation, the affidavit

concluded that normal investigative tech-

niques would not be successful because

(1) informants were unwilling to testify

because of fear for their safety, (2)

surveillance had been generally ‘unsuc-

cessful', (3) normal investigative

techniques had failed to provide proof

24.

of all the elements of the offense, (4)

and that the government had difficulty

in establishing its case.

The basis for these conclusions is

wholly absent from the affidavit. As in

Kalustian, supra, the affidavit is

couched in conclusory jargon which, like

the "boilerplate" allegations condemned

in Kerrigan, supra, fails to provide

facts to support the allegations.

The affidavit fails to set forth what

‘normal investigative techniques' were

employed or considered, the number of

agents involved in the investigation,

the number of customers questioned or

offered immunity, or the length of the

investigation.

To support its conclusion, the FBI

affiant relied on the same shopworn

"boilerplate" recitation rejected by the

Ninth Circuit in Kerrigan, Kalustian and

Spagnuolo, supra. The only reasons given

to support the allegation that infiltra-

tion will be unsuccessful is that it was

given “thorough consideration". The only

"facts" to suppert the conclusion is a

25.

recitation of the experience of other

special agents knowledgeable in bookmak-

ing matters who concluded that the

procedure does not appear likely to

succeed.

Reference to the general secretive

nature of bookmakers and the difficulty

of learning of more than one or two

persons in an organization was relied

upon to excuse implementing each and

every possible normal investigative

technique. These general conclusions

about a gambling organization are particu-

larly inappropriate in the instant case

where extensive infiltration had already

occurred and where many of the members

of the organization, and their respective

functions, were already known to the FBI.

Most disturbing is the allegation

that informants were unwilling to testify

for fear of reprisal. Not only is there

nothing but the bald allegation of the

affiant to support the claim, but the

stipulation concerning informant Gary

Hallman reveals the claim to be fraudu-

lent and false. Had the issuing judge

been aware that at least one of the seven

26.

informants had never even been asked to

testify, his determination on the suffi-

ciency of the affidavit may have been

quite different.

Significantly, the Ninth Circuit in

Kalustian, supra, at 592, stated that

"the refusal of the informants to testify

is a matter for the court to consider in

authorizing electronic surveillance.

However, standing alone it is not suffi-

cient." (Emphasis added).

The claim is further suspect where

one considers that there is no allegation

that any one in the Bergen organization

is claimed to have either threatened or

actually employed force to collect a

gambling debt.

The claim of frightened informants,

like the allegation of the unavailability

of conventional methods, is wholly self-

serving and devoid of factual basis.

Taken as a whole, the affidavit here

lacks any good faith showing on the part

of the government that in this particular

investigation normal investigative tech-

niques had failed or were likely to fail

within a reasonable period of time.

27.

For the foregoing reasons, the Court

below was in error in finding compliance

with the requirements of Title 18, United

States Code §§ 2518(1)(c) and 3(c).

II

THE CASE AT BENCH IS IN CONFLICT

IN PRINCIPLE WITH THE STANDARDS

ESTABLISHED BY THIS HONORABLE

COURT IN FRANKS v. DELAWARE

In Franks v. Delaware (1978) _U.S.__,

__, 98 S.Ct. 2674, 2676-2677, this Honor-

able Court established that "where the

defendant makes a substantial preliminary

showing that a false statement knowingly

and intentionally, or with reckless dis-

regard for the truth, was included by the

affiant in the warrant affidavit, and if

the allegedly false statement is necessary

to the finding of probable cause, the

Fourth Amendment requires that a hearing

be held at the defendant's request. In

the event that at that hearing the allega-

tion of perjury or reckless disregard is

established by the defendant by a prepond-

erance of the evidence, and, with the

affidavit's false material set to one

28.

side, the affidavit's remaining content

is insufficient to establish probable

cause, the search warrant must be voided

and the fruits of the search excluded to

the saiie extent as if probable cause was

lacking on the face of the affidavit."

The case at bench cannot be reconciled

with the decision in Franks.

The stipulation with respect to the

proffered testimony of Gary Hallman, one

of the seven informants designated in the

wiretap authorization was:

"(T]hat he had given information

to agents of the Federal Bureau of

Investigation on a number of occa-

sions over a number of years; that

he discussed with agents of the

FBI Mr. Seymour Bergen and Mr.

Seymour Bergen's gambling activi-

ties; that he never was asked by

agents of the FBI whether he would

refuse to testify, whether he

wanted to testify; that he was

never told that he would be

granted immunity or could be

granted immunity; that he never

told agents that he would refuse

29.

to testify even if granted immunity;

that had he been told or asked to

testify he would have been reluctant

to, would have preferred not to

testify, but had he been told that

his testimony was required I believe

he would have testified.

"More particularly, had he been

granted immunity, he would have

testified rather than go to jail."

In paragraph 45 of the affidavit, the

lead paragraph of that portion of the

affidavit explaining the “need for inter-

ception", however, the affiant averred

that "Confidential informants referred to

herein have stated even if immunized and

given protective custody they would be

unwilling to testify at any proceedings

for fear of their safety."

This court, in Franks v. Delaware,

98 S.Ct. 2674 (1978), established that in

limited circumstances a defendant may

challenge the truthfulness of factual

statements made in affidavits supporting

a search warrant. Franks, supra, held

that the defendant must make a substantial

30.

preliminary showing supported by affida-

vits or otherwise reliable statements of

witnesses that an affiant's declaration

is untruthful. The misstatements must be

deliberately false or made with reckless

disregard for the truth. Additionally,

they must be material to the finding of

probable cause.

The omission, or misstatement, con-

cerning the position of informant Hallman

is highly material, contrary to the posi-

tion taken by the Court of Appeals in the

case at bench. At page 4, lines 7-11,

the Court below stated:

The fact that Hallman was admit-

tedly unwilling to testify demon-

strates that any misrepresentation

in the affidavit was not material.

Furthermore there were seven con-

fidential informants mentioned by

Shaver in the affidavit. (slip

opinion).

Despite the statement by the Circuit

Court here that Hallman was unwilling to

testify, the stipulation as to Hallman's

testimony reveals that he was reluctant

31.

to testify but although he would prefer

not to testify, he would have done so if

told that his testimony was required.

There is a substantial difference

between reluctance to testify and unwill-

ingness to testify; the difference is not

merely a matter of form. Simply put,

Hallman was willing to testify, albeit

reluctantly.

The omission of that information was

both material and sufficient to invali-

date the application if found to be

deliberate.

Admittedly, it is not possible to

determine without an evidentiary hearing

whether the misstatement was negligently

or intentionally included. It seems

certain, however, that if the issuing

judge had known at least one informant

was willing to testify, contrary to the

allegations of Shaver, he may have

decided either to interview the inform-

ants in camera, call for additional

testimony, or declined to issue the

authorization.

32.

Only the holding of an evidentiary

hearing on the question of the avail-

ability of the informants and their

willingness to testify could conclusively

determine whether the Hallman omission

was intentional or inadvertent. As

counsel for Bergen requested a hearing

on that issue both before the district

trial judge and the Court of Appeals

panel, a remand to the trial court for

such a hearing seems appropriate. The

statement in the wire interception appli-

cation that all the informants have re-

fused to testify even if granted immunity

and protective custody was clearly false;

whether it was deliberately false should

be further explored to determine whether

a violation under Franks, supra, has

been made out. 2/

1/ With appropriate paraphrasing, the

recitations above with respect to

the reasons for granting the writ are

excerpted from the Petition for Writ of

Certiorari filed on behalf of codefendant

Edwin Kail.

33.

CONCLUSION

For all of the reasons set forth

above, a writ of certiorari should issue

to review the judgment and Opinion of

the United States Court of Appeals for

the Ninth Circuit.

Respectfully submitted,

RICHARD G. SHERMAN

Counsel for Petitioner

34.

APPENDIX

Rt

ee Te

NOV 12 1979

RICHARD H. DEANE

Clerk,

U.S. Court

of Appeals

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs.

EDWARD KAIL,

Defendant-Appellant

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs. |

SEYMOUR BERGEN,

Defendant-Appellant

UNITED STATES OF AMERICA,

vs.

RUSSELL CALLAHAN,

Defendant-Appellant

UNITED STATES OF AMERICA,

Plaintiff-Appellee

vs.

CLARENCE ELDEN FREEMAN,

Defendant-Appellant

A-l.

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78-1633

78-1643

78-1772

78-1677

OPINION

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 un-

named 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, in-

terstate transmission of wagering infor-

mation, 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.

* Honorable James F. Battin, United

States District Judge for the District

of Montana, sitting by designation.

A-2.

I

On July 29, 1975, the Government re-

ceived authorization to intercept wire

communications from six telephone numbers

that were subscribed to by three of the

defendants. The indictment was not re-

turned 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 impli-

cate the speedy trial guarantee of the

sixth amendment, although in some in-

stances 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 imper-

missible preindictment delay requires a

delicate balancing of the circumstances

of each case. Arnold v. McCarthy, 566

F.2d 1377, 1383 (9th Cir. 1978). Pri-

marily, the court must compare the

gravity of the actual prejudice to the

reasons for the delay. Id.; see Lovasco,

431 U.S. at 79.

A-3.

Bergen and Kail conclusively alleged

that they have been prejudiced by the

loss of memory due to time and by the

loss of possible witnesses to their acti-

vities. They do not, however, specify

what 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

unsubstantial. Arnold, 566 F.2d at 1383-

85.

II

Pursuant to the provisions of Title

III of the Omnibus Crime Control and Safe

Streets Act of 1968, 18 U.S.C. §§2510-20,

government agents obtained an order autho-

rizing 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 affi-

davit of FBI agent Darrell Shaver. In

paragraph 45 of the affidavit, Shaver

averred that confidential informants

stated that even if they were immunized

and given protective custody they would

be unwilling to testify at any proceed-

ings 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 reluctantly.

The defendants thus contend that the

offer of proof exhibited a material

A-5.

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 mis-

representations in Shaver's affidavit.

The fact that Hallman was admittedly un-

willing 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 too

dangerous. 18 U.S.C. §2518(1)(c). See,

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

1227, 1231 (9th Cir. 1978). The defen-

dants contend that the Shaver affidavit

lacked sufficient particularity to meet

A-6.

1/

this requirement of necessity.=

Viewing, as we must, the affidavit as

a whole, id., we find that the Shaver

affidavit did not consist of bald, con-

clusory statements, but instead provided

sufficient particularized detail to demon-

strate the need for a wiretap in the dis-

crete circumstances of this case. The

lengthy Shaver affidavit describes in

considerable detail the history of the

three-month investigation of the book-

making operation 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 confiden-

tial sources, each of whose reliability

is documented. Each source had some con-

tact with either Bergen, Callahan, or

Kail involving gambling in some way.

1/ Despite the defendants' lengthy argu-

ments concerning our prior discussions

of §2518(1)(c), we decline to retrace the

lines drawn in the numerous decisions of

the court. See United States v. Baker,

589 F.2d 1089, 1091 (9th Cir. 1979).

The sources revealed that Bergen operated

a large bookmaking business. They des-

cribed 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 isin Los Angeles.

Through both their sources and personal

observations, the government agents were

able to learn names, dates, and locations

of the gambling operations.

Despite the success of the investiga-

tion using normal investigative techniques,

the affidavit pointed out the deficiences

and limitations of the investigation. No

one inteiviewed knew more than two parti-

cipants 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 in-

terviewed by the FBI. As a result, the

information obtained from those inter-

viewed became stale, and the possibility

that Bergen would avoid detection in-

creased. The agents also undertook physi-

cal surveillance of the persons named in

the application and noted some contacts

A-8.

among the principals, but surveillance

was generally unsuccessful in fully estab-

lishing the elements of the offense. The

affidavit further described the reluctance

of informants to testify, the futility of

infiltration, and the limitations of em-

ploying telephone toll records in uncov-

ering 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 agents had encountered when using

normal investigative techniques. See

United States v. Spagnuolo, 549 F.2d 705,

4A0 (OGh Cis. 2977s

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

principals. "A particularized showing

- « « May be established .. . not only

by a minutia of detail discretely direc-

ted, but by persuasive facts pertaining

in common to all of the principals and

their telephones." United States v.

A-9.

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

conversations violated §2518(1) (e).

Section 2518(1)(e) requires that the ap-

plication set forth a statement concern-

ing all previous applications, not inter-

ceptions, known to the person making the

present application. By disclosing in

paragraph 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, (6th Cir.

1976), cert. denied, 430 U.S. 945 (1977).

IIt

After obtaining the wiretap order,

government agents installed a pen register

to learn the telephone numbers that were

dialed on the monitored telephones. They

A-10.

did not obtain authorization to use this

device. The defendants contend that a

separate order was necessary to allow the

government 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 authoriza-

tion 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. Id. It is already

possible to decipher the telephone num-

bers of outgoing calls by the use of a

wiretap and tape recorder. The pen

register, by automatically translating

electrical impulses into the numbers

dialed, avoids the need to interpret

A-ll.

what has been recorded from the wiretap.

This mechanical refinement provided by

the pen register is thus comprehended

within the terms of the wiretap order,

making separate authorization unnecessary.

Id. If, as defendants argue, the Govern-

ment 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 Telephone

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

wiretaps, subsequently found illegal,

that were made in connection with the

Vicki Balos case. In response, 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)) hear-

ing, the district court found that the

A-12.

Government had sustained its burden of

showing that the affidavit was not de-

rived 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 reason-

ably 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 discovery of various

items, including access to the affidavit

requesting the Balos wiretap and record-

ings of Balos interceptions; the Govern-

ment's files in the Balos prosecution;

names and address of all persons moni-

tored in the Balos wiretap or with know-

ledge of the wiretap; and access to the

Government's file in his case. The court

held an Alderman hearing and allowed

A-13.

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 preli-

minary showing of taint, he is not en-

titled to unlimited access to Government

files; the extent of discovery is left

to 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 parties stipulated that no hearing

was necessary because there were no con-

tested 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 defendant was

not aware of the Balos action much

earlier. Despite the untimeliness of

Callahan's request, the district court

allowed limited discovery. Particularly

in view of the fact that Callahan provided

A-14.

no specific evidence of taint, we find

that the district court's handling of

Callahan's discovery request to be

reasonable.

vi

The defendants, without citation of

authority, contend that 18 U.S.C. §1955

is unconstitutional because it over-

reaches 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

Finally, Feldman 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 wire-

tap transcripts, revealed that on nine or

ten occasions Freeman accepted bets from

Bergen. Although Freeman believed that

some of these bets were for Bergen's

personal account, it appears that Freeman

A-15.

was being regularly used as a lay-off

source for the Bergen bookmaking opera-

tion. The wiretap 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 commit-

ted a violation of §1955. See United

States v. Baker, 589 F.2d 1008, 1013-14

(9th Cir. 1979).

Conclusion

The convictions are affirmed.

A-16.

FILED

FEB 13 1980

RICHARD H.

Clerk, U.S. Court

of Appeals

DEANE

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

EDWARD KAIL,

Defendant~-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

SEYMOUR BERGEN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

RUSSELL CALLAHAN,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

CLARENCE ELDEN FREEMAN,

Defendant-Appellant.

A-17 e

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No.

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No.

No.

78-1633

78-1643

78-1772

78-1677

ORDER

Before: WALLACE and TANG, Circuit Judges,

and BATTIN,* District Judge

The panel as constituted above has

voted to deny each of the petitions for

rehearing and to reject the suggestions

for rehearing en banc.

The full court has been advised of

the suggestions for rehearing en banc,

and no judge of the court has requested

a vote on the suggestions for rehearing

en banc. Fed. R. App. P. 35(b).

The petitions for rehearing are denied

and the suggestions for rehearing en banc

are rejected.

* Honorable James F. Battin, United

States District Judge for the District

of Montana, sitting by designation.

A-18.