Petition for Writ of Certiorari — KESSLER V. UNITED STATES (Nos. 73-175, 73-5115)

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SUPREME COURT, U. 5.

IN THE

Supreme Court of the United States.

OCTOBER TERM, 1973

No 73- 175

BENJAMIN FEIN, ARTHUR WEISS, CHARLES MARCONI,

ROBERT LIGUORI, HARRY HIRSCH, PAUL CANTOR,

GERTRUDE TANENBAUM and PHILIP SHAPIRO,

Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Oe eC NE SS SENNA

ARNOLD E. WALLACH

Attorney for Petitioners

253 Broadway

New York, New York 10007

212 227-0959

Dick Batley Printers * P.O. Box X, Staten Island, N.Y. 10302 © Tet.: (212) 447-5358

‘

TABLE OF CONTENTS :

Page

CL ere l eee cele e a ehae be keke ees echoed 2

ED Chee ae ehbedd aude en b4 05 4hG 0486 08 2

The Constitutional and Statutory Provisions Involved .... 2

Reasons for Granting the Writ ......... 0... cece eens 15

is ce cea teh cde bane hie sa bacen ash ease 23

Appendix A — Decision of the United States Court of

Appeals for the Second Circuit ....... 0.0... c cece eee A-1

Appendix B — Judgment of the Lower Court (Fein) ...... A-3

Appendix C — Judgment of the Lower Court (Marconi) ... A-5

Appendix D — Judgment of the Lower Court (Liguori) .... A-7

Appendix E — Judgment of the Lower Court (Hirsch) ..... A-9

Appendix F — Judgment of the Lower Court (Weiss) ..... A-11

“ Cases Cited

mer v. Comtommia, 976 U5. BR wenn snes 21

Pinkerton v. United States, 328 U.S. 640, 90 L.Ed. 1489,

ee ee hen dae eae KAS a we 22

Fay

ER RQ AEA PERNA EYED BEREAN LIN OI NR TO Se eo

peer ee ee

U.S. v. Chavez, Cir. 9, Feb. 28, 1973, 13 Criminal Law

SNE, TUE 5 wh bees vee h eee nheesenkebisuns 19

U.S. v. Figueredo, U.S.D.C.M. Fla. November 20, 1972,

12 Criminal Law Reporter, 2253 ...............24. 22

U.S. v. Focarelli, 340 F.S. 1033 (U.S.D.C.MD, 1972,

affirmed sub nom USS. v. Giordano, 469 F.2d 522 Cert.

granted 41 U.S. Law Week 3513 .........cccceeee 19

U.S. v. Kahn, 471 F.2d.191, 197 (Cir. 7, 1972) Cert.

granted, number 72-1328, May 14, 1973, reported in 13

Criminal Law Reporter, 4045 ..........ecceeeees 21

U.S. v. Stanley, unreported as yet, United States District

| Court, Northern District of Florida, Atlantic Division,

‘ Criminal number 27541, June 18,1973 ............ 19

Other Authorities

a ie Pere rrerrery te reece ree yee 1

Section 1955 and 20f 18 USC. ................ 1

ee ee CE EE 6 sk ae Vee w awe en dha ees 3

| POUR Me. anni cies cccccevis 2

Section 225.05 of the Penal Law of the State of N.Y. .. 5

IN THE

Supreme Court of the United States

October Term, 1973

No.

BENJAMIN FEIN, ARTHUR WEISS, CHARLES MARCONI,

ROBERT LIGUORI, HARRY HIRSCH, PAUL CANTOR,

GERTRUDE TANENBAUM and PHILIP SHAPIRO,

. Petitioners,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION F OR A WRIT OF CERTIORARI

Petitioners, Benjamin Fein, Arthur Weiss, Charles Marconi,

Robert Liguori, Harry Hirsch, Paul Cantor, Gertrude Tanen-

baum and Philip Shapiro, pray that a Writ of Certiorari issue to

review a judgment of the United States Court of Appeals, for

the Second Circuit, decided and entered June 26, 1973,

affirming the judgment of conviction rendered against the

petitioners in.the United States District Court for the Southern

District of New York on January 9, 1973. The said petitioners,

Benjamin Fein, Arthur Weiss, Charles Marconi, Robert Liguori,

Harry Hirsch, Paul €antor, Gertrude Tanenbaum and Philip

Shapiro, were convicted of conspiracy to violate 18 U.S.C. 1955

and 2 (prohibition of illegal gambling businesses) in violation of

18 U.S.C. 371. The order appealed from of the United States

Court of Appeals, Second Circuit, is reprinted herein, in

Appendix A. There is no written opinion of the Court.

etl htie Aaaia ddl OR CR iin Riel

Jurisdiction

The judgment ont order of the United States Court of

Appeals is dated June 26, 1973. The jurisdiction of this Court is

invoked, made and conferred under 28 U.S.C. 1257(3) and Rule

22(2) of the Rules of the Supreme Court of the United States.

Questions Involved

A. Did the government obtain the two wire tap warrants:

involved in this case, to procure evidence in this case, in

conformity to 18 U.S.C. 2516 and 2518?

B. Could the government have used less drastic means of

investigation other than resorting to electronic surveillance —

wire tapping?

C. Since all the defendants were joined both in the

conspiracy and the substantive count, did Sections 1955 and 2

of 18 U.S.C. supplant the conspiracy based on 18 U.S.C. 371?

The Constitutional and Statutory Provisions Involved

AMENDMENT IV:

“The right of the people to be secure: in their persons,

houses, papers, and effects, against unreasonable searches

and seizures shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

”

ak he “As neta | | J

> and eee

AMENDMENT V:

“*...; due process;...”

“*. ..; Nor shall be compelled in any criminal case to be a

witness against himself, nor to be deprived of life, liberty,

or property, without due process of law;.. .”

18 U.S.C. SECTION 2

“Conspiracy to Commit Offense or to Defraud United States

If two or more persons conspire to commit any offense

against The United States ..., and one or more of such

persons do any act to effect the conspiracy each shall be

fined not more than $10,000. or imprisoned not more than

five years, or both.”

47 U.S.C. 605:

“unauthorized publication of communications.— Except as

authorized by 119, Title 18, U.S. Code, 18 U.S.C.

Sections 2510, 2520, no person receiving, assisting in

receiving, transmitting or assisting in transmitting, any

interstate or foreign communication by wire or radio shall

divulge or publish the existence, contents, substance,

purport, effect or meaning thereof, . . .”

18 U.S.C. SECTION 2515

‘‘PROHIBITION OF USE AS EVIDENCE OF

INTERCEPTED WIRE OR ORAL COMMUNICATIONS

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in

evidence in any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer, agency,

regulatory body, legislative committee, or other authority

of the United States, a State, or a political subdivision

thereof if the disclosure of that information would be in

violation of this chapter.”

(Oe LS ale pp eng

18 U.S.C. SECTION 2516

“AUTHORIZATION FOR INTERCEPTIO! OF WIRE Ok

ORAL COMMUNICATIONS”

(1) The Attorney Generai, or any Assistant Attorney General

specially designated by the Attorney General, may authorize

an application to a Federal judge of competent jurisdiction

for, and such judge may grant in conformity with Section

2518 of this chapter an order authorizing or approving the

interception of wire or oral communications by the Federal

Bureau of Investigation, or a Federal agency having

responsibility for the investigation of the offense as to which

the application is made, when such interception may provide

or has provided evidence of—.. .”

18 U.S.C. SECTION 2518

“PROCEDURE FOR INTERCEPTION OF WIRE OR ORAL

COMMUNICATIONS

(1) Each application for an order authorizing or approving

the interception of a wire or oral communication shall be

made in writing upon oath or affirmation to a judge of

competent jurisdiction and shall state the applicant’s

authority to make such application. Each application shall

include the following information:

(a) The identity of the investigative or law enforcement

officer making the application, and the officer authorizing the

application; ...”

18 U.S.C. SECTION 1955

“PROHIBITION OF ILLEGAL GAMBLING BUSINESSES

(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 —

(i) is a violation of the law of a State or political

subdivision of which it is conducted;

(ii) involves five or more persons who conduct,

finance, manage, supervise, direct, or own all or part of

such business; and

(iii) has been or remains in substantizi'y continuous

operation for a period in excess of thirty days or has a

gross revenue of $2,000 in any single day.

(2) ‘gambling’ includes but is not limited to

pool-selling, bookmaking, maintaining slot machines,

roulette wheels or dice tables, and conducting lotteries,

policy, bolita or numbers games, or selling chances therein.

”

Section 225.05 of the Penal Law

of the State of New York

“Promoting Gambling in the Second Degree

A person is guilty of promoting gambling in the second

degree when he knowingly advances or profits from

unlawful gambling activity.

Promoting gambling in the second degree is a class A

misdemeanor. L. 1965, C. 1030, Eff. Sept. 1, 1967.”

STATEMENT OF THE CASE

This case had its inception, when the petitioners with

others were indicted in the Southern District of New York. The

indictment alleged two counts. The first count charged all the

defendants with a conspiracy commencing from on or about

August 1, 1971 to the date of the filing of the indictment, to

PRE RCI DURDEN REE OVS WL 5

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violate 18 U.S.C. 1955 and 2; the second count charged that on

or about August 1, 1971 to the date of the filing of the

indictment all the petitioners and the other parties joined in the

indictment violated Section 1955 and 2 of 18 U.S.C.

The petitioners waived a trial by jury and consented to the

Court alone, to determine the issues on a stipulated state of

facts relating to the first count charging conspiracy. After the

Court rendered a verdict of guilty, the second count of the

indictment based on 18 U.S.C. 1955 was dismissed.

To investigate this case, the government applied for a

warrant to wire tap designated telephones. Two successive wire

tap warrants were obtained. The use of the first one, namely the

vire tapping and surveillance conducted thereunder, led to the

Procuri.ig of a second wire tap warrant.

The first warrant named as subjects, the petitioners Weiss,

Marconi, Fein and Shapiro and other parties who were named as

defendants. The subject telephones were listed as follows:

telephone number 212-0L5-6536 located at 2840 Bionx Park

East, ground floor apartment, listed under the name of Lena

Haas; telephone number 212-654-3842 located at 610 Waring

Avenue, apartment 5K, under the name of Moe Schneider;

telephone number 914-423-0401, located at 102 Ash Street,

Yonkers, second floor apartment, under the name of Roman

Tacij.

The second wire tap warrant named the subjects, Arthur

' Weiss, Charles Marconi, Benjamin Fein and Philip Shapiro and

- one Larry Kessler, and unknown others: the subject instruments

were listed as follows: telephone number 21 2-798-4894, located

* at 610 Waring Avenue, apartment 5K under the name of

- Cecelia Blatt: telephone numbers 914-776-2976 and

914-776-2991, located in apartment 7K, 277 Bronx River

Road, Yonkers, New York, in the name of Michael Antman.

Counsel for Marconi and another defendant moved the

District Court to suppress the evidence procured from the

electronic surveillance. Counsel for the other defendants and

petitioners joined in that motion. The Court ultimately denied

the motion.

The first wire tap warrant was granted December 2, 1971

and was operative for fifteen (15) days. It was based upon an

affidavit by Assistant United States Attorney Patrick F.

Broderick. Submitted with that affidavit was a writing from the

United States Department of Justice to Mr. Broderick, dated

December 1, 1971. The letter was signed by Harry E. Peterson,

who bore the title Acting Assistant Attorney General. The letter

acknowledged a request from the United States Attorney to

apply for a wire tap warrant in regard to telephone numbers

212-OL5-6536 and 212-654-3842 at the aforementioned loca-

tions hereinabove described, in regard to the aforementioned

subjects. The letter stated that the request and circumstances

were reviewed and that it was determined that probable cause

existed and that normal investigative procedures were not likeiy

to succeed. In concluding, the letter authorized the application

“under the powers specifically delegated .. . in this proceeding

by the Honorable John N. Mitchell . . .” under Section,251¢: of

Title 18 U.S.C. %

A Department of Justice memorandum dated December 1,

1971 to Henry E. Peterson, from the Attorney General, John

Mitchell, stated, in regard to this application, that Peterson was

specifically designated to exercise the power under 18 U.S.C.

2516, to authorize the application.

EONS NAC! ON tN VSS ad 7 OE aad

PAL IOE ES DAI EL Dee

By an affidavit dated May 1972, made by one Harold P.

Shapiro, a Deputy Assistant Attorney General, it was alleged

that on December 1, 197i, he called Henry E. Peterson, in San

Diego, California. Peterson advised him that the Attorney

Generai authorized the application. It was admitted in the

affidavit that Peterson authorized Shapiro to sign his name to a

letter to be sent by Shapiro to Broderick, to the effect that

Broderick was authorized to make the application for the wire

tap warrant. By affidavit of May 30, 1972 Peterson alleged that

at the time of the wire tap application he was Acting Assistant

Attorney General. The affidavit described how the Department

of Justice processed applications for authorization to apply for

wire tapping warrants. Peterson further alleged that he reviewed

the file and forwarded it to the Attorney General on November

30, 1971, recommending that consent to apply for the

authorization be given. It was further admitted that on

Secember 1, 1971 when he was in San Diego, California,

Shapiro called him by telephone and that he, Peterson,

authorized Shapiro to sign his name to the authorization.

By affidavit sworn to May 30, 1972, John N. Mitchell

alleged that on December 1, 1971 he approved a request to

apply for wire tap warrants. Initialing a memorandum dated

December 1, 1971, “reflecting his favorable action’ on the

request and that he exercised his discretion in the matter.

However, the affidavit of Assistant United States Attorney

Broderick submitted to procure the wire tap warrant alleged

that the Attorney General specifically designated Peterson,

Acting Assistant Attorney General, to permit the application to

be made to the Court below. It was admitted that there were

previous applications for wire tap warrants described in an

accompanying affidavit of a federal agent named William E.

Zleit.

x S|

nite BUTS. SL LEER I

In regard to the procuring of the second wire tap warrant,

that too was based on an affidavit of the Assistant United States

Attorney who applied to the Court for the first warrant. The

affidavit of the Assistant United States Attorney alleged that

pursuant to the power conferred under Section 2516 of 18

US.C., the Attorney General of the United States specially

designated Henry E. Peterson, Acting Assistant Attorney

General, to authorize the application for the second warrant.

Annexed to the affidavit of the United States Attorney in this

second application was a letter from the Department of Justice

dated December 28, 1971. This letter stated that the applica-

tion for an authorization to apply for the warrant was reviewed

and that it was found that probable cause existed to believe that

the subjects were engaged or about to commit the offenses in

violation of 18 U.S.C. 1955 and 371 and that the designated

facilities were used by those subjects to commit the offense.

The letter concluded that under the “specially” delegated

pewer by the Attorney General under Section 2516 of 18

U.S.C., the Assistant United States Attorney could apply for a

warrant under 18 U.S.C. 2518.

By affidavit verified May 30, 1972 Sol Lindenbaum alleged

that he was the Executive Assistant to the Attorney General

since April 11, 1971. On December 28, 1971 “he contacted”

the Attorney General of the United States by telephone and

orally advised him of the contents of a memorandum from the

Criminal Division of the Department of Justice and of an

accompanying affidavit in regard to a “wire tap” interception

regarding “certain telephones” in the Bronx and Yonkers, New

York. Lindenbaum admitted that the Attorney General of the

United States “orally” approved and told him (Sol Linden-

baum) to initial a memorandum to Henry E. Peterson.

A memorandum dated December 28, 1971 to Peterson

Le RRNA EDINGER Seed IE Poy 29 eee

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from the Attorney General of the United States referred to

telephone numbers 914-776-2991 and 914-776-2792. This

“authorization” recited that it was based on Section 2516 of 18

U.S.C.

By another affid.vit executed by Harold P. Shapiro a

Deputy Assistant Attorney General in the Criminal Division of

the Department of Justice, it was alleged and described how the

Department of Justice processed a request for authorization to

apply to a Court for a wire tap warrant. This request was made

on December 15, 1971 (second wire tap warrant). The process

consisted of an attorney employed by the Department of

Justice named Moore and his superior named White, examining

the file and recommending favorable action. Shapiro also

reviewed the file and forwarded it to the “Office of the

Attorney General with a detailed recommendation that the

authorization be granted.” Shapiro further alleged that “follow-

ing approval in the Office of Attorney General” he signed the

name Henry E. Peterson, Acting Assistant Attorney General, to

a letter dated December 28, 1971 sent to Patrick F. Broderick,

the Assistant United States Attorney in this case who ultimately

procured the wire tap warrant, authorizing him to apply for the

same.

In regard to procuring the first wire tap warrant, the

factual basis was supplied by William E. Zleit a Special Agent

who submitted his affidavit in support of the application. Zleit

alleged that “normal investigative procedures reasonably appear

unlikely tc succeed if tried.”

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“-

Zleit then described observations made and further de-

_ scribed the premises involved. He alleged that he was with the

: Federal Bureau of Investigation for three (3) years and that the

~ last year was devoted exclusively to investigating illegal

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gambling. He described how a bookmaking business used

telephones for the following purposes: (a) taking bets from

bettors; (b) obtaining results and scores regarding the events; (c)

the laying off of bets which was explained as the placing of

wagers by bookmakers with other bookmakers.

Zleit stated the four (4) confidential informants were

involved in this investigation and that they furnished in-

formation to the authorities although not necessarily to Zleit

personaliy. In other words, Zleit recited what informers told

other agents who then told Zieit.

The first informant claimed that he had information from

talking directly to several members of a “Benny Fein opera-

tion” in the past and as recently as November 16, 1971. The

informant’s hearsay was to the effect that one of the members

of the operation told him that the “operation” was continuing.

Fein, Weiss, Marconi and other persons were operating in the

New York City area. The informant allegedly described Fein

who worked in a “wire room” as a clerk in the evenings and

weekends.

The agent alleged further that vhe “wire room” did not use

a direct telephone, but that bettors called a private individual

who acted as an answering service and asked that a “Mr. Green”

or “Mr. Brown” call at a telephone number where the bettor

coud be reached. The telephone numbers were changed

monthly.

The agent stated that petitioners Weiss, Marconi, Fein and

others called the answering service between 11:00 A.M. and

8:00 P.M.

On October 29, 1971 the informant related that the

WE PRN ee

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current number of the answering service was 914-423-0401.

The police dossiers of Weiss and Marconi were then

described.

A second informer was also relied upon. He was described

as contacting the FBI on a regular basis for the previous year.

On November 26, 1971 the second informant stated that he

spoke to Fein in the past months and as recently as the fourth

week of November 1971. “Fein’s operation” was then de-

scribed; it was alleged that Fein settled his accounts every

Tuesday after 8:0C o’clock at a restaurant known as Cozy

Corners Ficstaurant, 67th Avenue and Queens Boulevard. The

affidavit contained a description of a surveillance of Marconi.

The affidavit further stated that the informant identified

photographs of Fein and Marconi.

The third informant involved related information to the

authorities, that he received from a member of the “Fein

operation”. The informant “advised” the authorities about the

“Fein operation”. The informant “advised” the authorities

about the “Fein operation”. On November 16, 1971, the

informant stated that two weeks before, a member of that

“operation” told him to call telephone number 914-423-0401

in order to place a bet. The informer was said to have called

that number at noon. At 12:30 Marccni was alleged to have

called the informant back and at that time the informant placed

a bet. This informant also placed a bet in a similar way

November 12, 1971 with Marconi. The agent also described the

surveillance of Marconi by other agents. This informant also

identified photographs of Fein, Weiss and Marconi.

A fourth informant was said to have furnished information

which the agent calimed was corroborzied by independent

BL A ETI FS PMG ION AE EAN Bc BAN AE IY ial A hl plat

observations. This fourth informant informed other agents who

in turn told Zleit what was related to them. On November 26,

1971 the informant stated that Philip Shapiro, Fein’s brother-

in-law, told him that as of the fourth week of November 1971,

Feip_had a large bookmaking operation. Shapiro further told

pogo rmant that he and Fein in 1969 were arrested for

that Shapiro was “laying off” bets with Fein. The ©

er related that Shapiro was a bookmaker in i

Queens/ Codnty. Lastly the informant identified Fein and —

Shapiro from the photographs.

Se, |

Other agents told Zleit that an informant gave them

information obtained from the petitioner Weiss and a party —

named Kessler. On November 26, 1971 the informant stated

that he personally confronted Fein and was acquainted with his

“operation”. During the fourth week of November 1971 Weiss

and another defendant Kessler told the informant they were

clerks for Fein. The informant identified Fein, Kessler and

Weiss from the photographs.

Surveillance of Marconi and/or Weiss were then described

in the affidavit. Fein was observed meeting five or six persons

on Tuesday evenings on August 17th, August 24th, October 5th

and November 9th, 1971 at the Cozy Corners Restaurant. The

police records of Weiss, Marccni, Fein, Shapiro and others were

also set forth.

It was, however, admitted by Zleit that federal charges

formerly made against Fein, Weiss, Shapiro and others in the

fall of 1969, were dismissed as against Weiss and Fein on

Ser,tember 15, 1970.

The agent in his affidavit also stated that the four

informants were afraid to give testimony. Zleit also claimed that

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the normal methods of investigation were either exhausted or

“too risky” to be attempted. |

Zeit admitted in his affidavit that on July 29, 1969 a wire

tap warrant was procured from the United States District Court,

Southern District of New ‘York, and that Shapiro was the

subject, and that the apartment involved was designated 23A of

Fairway Garden Apartments, Garnersville, New York; that

interception continued to August 11, 1969 but was fruitless.

On August 12, 1969, another wire tap warrant was

procured as to Shapiro, at premises 306 Decatur Avenue,

Bronx. The wire tap was discontinued August 14, 1969 because

it likewise was a failure. And yet another wire tap warrant was

obtained from the District Court, Southern District of New

York as to Shapiro at 8 South Broadway, Nyack, New York,

2nd and 3rd floors. Interception under this warrant was

terminated September 19, 1971.

While intercepting under this warrant, telephone calls

involving gambling were made to Fein, Weiss and another at a

telephone located at 141 East Sidney Street, Mount Vernon.

Based on this, a search warrant was procured, and upon its

execution Fein, Weiss and another were arrested for promoting

gambling, a violation of New York law.

It was further alleged that from July 1, 1970 to July: 15,

1971 the authorities wire tapped communications in Shapiro’s

residence at 133-29 82nd Road, Kew Gardens, New York, .

under a warrant. These charges were ultimately dismissed in

November 1970.

In regard to the issue of authorization, the aforementioned

is hereinabove set forth:

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Zleit’s affidavit showed the results of the wire tapping

under the previous warrant. He described calls made on

December 3 and December 6, 1971 and the information gained

from the wire tapping under a prior warrant. It was also alleged

by the agent that while intercepting December 3rd and

December 6th, 1971, in regard to telephone number

212-654-3842 the agents heard what they knew to be telephone

conversations of a “gambling nature” in the background of the

subject apartment, 5K at 610 Waring Avenue. Some of the

intercepted conversations were then set forth verbatum.

Zleit alleged that telephone company records disclosed

‘that Cecelia Blatt subscribed to telephone number

212-798-4894 at apartment 5K, 610 Waring Avenue, Bronx,

New York.

Prior to trial the petitioners all joined in a motion to

suppress the evidence. This motion was denied.

Reasons for Granting the Writ

| Section 2516(1) of 18 U.S.C. provides in part that: —

“2516: Authorization for Interception of Wire or Oral

Communications._(1) The Attorney General, or any As-

sistant Attorney Generals specially designated by the

Attorney General to authorize an application to'a Federal

judge ... and such judge may grant in conformity to

Section 2518 of this chapter an order... .”

Section 2518 of 18 U.S.C. in its relevant portions provides

as follows:

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“Procedure for Interception of Wire or Oral Communica-

tions.—({1). Each application for an order authorizing or

approving the interception of a wire or oral communica-

tion shall be made in writing upon Oath or affirmation to a

judge and shall state the applicaat’s authority to make

such application. Each ajplication shall include the follow-

ing information: (a) the identity of the investigative or law

enforcement officer making the application and the officer

authorizing the application; . . .”

At the time the first wire application was made, the

Attorney General, of the United States initialed this authoriza-

tion. On May 30, 1972 the Attorney General in an affidavit

stated that on December 1, 1971 he initialed an approval to

make the application. ,

' However, in regard to the second wire tap application

Lindenbaum by telephone orally advised the Attorney General

of the United States of a recommendation by subordinates that

the Attorney General approve this authorization. This time the

Attorney General “orally” approved and authorized Linden-

baum to affix the Attorney General’s initials to a directive to

Henry E. Peterson showing approval. Shapiro in his affidavit

stated that he signed Peterson’s name to such an authorization.

The first wire tap warrant of December 2, 1971 stated that

“Special Agents of the Federal Bureau of Investigation, United

States Department of Justice, are authorized by the Acting

Assistant Attorney General for the Criminal Division of the

Department of Justice, the Honorable Henry E. Peterson, who

_- has been specially designated in this proceeding by the Attorney

~ General of the United States, the Honorable John N. Mitchell,

» to exercise the powers conferred on the Attorney General by

Section 2516 of Ti:le 18, United States Code, to: . . .”

ie GHEY: INP ORSIED tin DLO LITE SP NODE DE A EDD SRR E TERE

ai ee nd eh ee ei |

The second wire tap warrant dated December 29,1971 has ©

the same finding, namely, that the Acting Assistant Attorney ~

General of the Department of Justice, Henry E. Peterson, was

specially designated by the Attorney General of the United

States to exercise the powers conferred on the Attorney

General under Section 2516 of 18 U.S.C.

It is respectfully submitted, that the Court granting the

search warrants, was not informed of the reality underlying the

authorization. The facts amply show, that while the United

States Attorney stated that Henry E. Peterson was specially

designated, to authorize the institution of the application, the

facts were otherwise. In U.S. v. Focarelli, 340 F.S. 1033

(U.S.D.C.MD, 1972) affirmed sub nom U.S. v. Giordano, 469

F.2d 522 Cert. granted 41 U.S. Law Week 3513, it was stated

on page 1057 of 340 F:S. that:

“The statutory scheme therefore sets up a two-step

process. First, the application for the wire tap must be

authorized by the Attorney General or by an Assistant

Attorney General specifically granted authority to act by

the Attorney General. Second, the identity of the person

who authorized the application must be made known to

the judge acting on the application and ultimately through

his order, to any person who was a party to a proceeding

in which the contents of any intercepted communication

or evidence derived therefrom are offered in evidence or

otherwise disclosed in court. These two requirements are

equally important in the legislative scheme. If the only

important fact were that one of the persons given the

power to act by section 2516(1) had in fact authorized the

application, it would not have been necessary <o add the

additional provisions of section 2518 to require the

identity of the acting official to be set forth in the

application and order.”

“If by way of illustration it is assumed that the Attorney

General himself had authorized the application to be filed,

VAS WLR hee hs Saag ie

Mates

it would obviously be « violation of the statute for the

application and the order to state that not the Attorney

General but a specified Assistant Attorney General had

authorized the application. The issuing judge, in the case

of this illustration, and those persons who subsequently

read this order would be misled and would place the

responsibility for the authorization of the application

upon the wrong person, that it, upon the specific Assistant

Attorney Gencral named in the application and the order

rather than upon the Attorney General who had, in fact

authorized the application. It would not cure the difficulty

in the factual framework of this illustration to establish

subsequent to the issuance of the wire tap order that the

application had in fact been authorized by the Attorney

General himself rather than by the Assistant Attorney

General named in the application and order, since the

statute requires the identity of the authorizing official to

be made known to the issuing judge before the order is

entered by him. Thus both tests must be met and one

alone will not suffice.”

As was stated in the same case under sub nom. US. v.

» Giordano, supra, 469 F.2d 522 at page 530:

“Acceptance of the government arguments would negate

much of Title III. Section 2516 could be fulfilled by

anyone; the government could extend the alter ego

argument apparently without limit. Section 2518(1)(a)

(requiring that the judge be informed of the identity of the

person authorizing the application) and Section

2518(4)(d) requiring the judge to state this information in

the wire tap order could be ignored. One is proper to ask

what would be left of the statutory scheme designed to

protect the individual from potential government abuse —

except the assurances of government officials themselves.

We agree with Judge Becker, who stated in US. v.

Narducci, 341 F. Supp. 1107, 1115 (E.D. Pa., 1972), that

‘the necessity for strict compliance with the statute in a

wire tap situation stems just as much from the precedent-

setting example of condoning laxity which could lead to

further laxity in years to come, with serious consequences

to personal liberties, as from concern over the rights of the

accused in a given case,’ ”’

See U.S. v. Stanley unreported as yet, Unitec States

District Court, Northern District of Florida, Atlantic Division,

Criminal number 27541, June 18, 1973, suppression of evi-

dence procured under a wire tapping warrant, was had because

the requirements of Section 2516(1) of 18 U.S.C. were not met.

In U.S. v. Chavez, Cir. 9, February 28, 1973, 13 Criminal

Law Reporter, 2001, the Court held that in regard to the

“authorization” a division of labor existed among the officials

of the Department ef Justice> Due to the division of labor there

was a loss of identity as to the designated official who actually

authorized the institution of the wire tap application. On page

2002 of 13 Criminal Law Reporter it was stated in part that:

“For us to sanction the procedure used in this case would

be to defeat the congressional scheme. As we have shown,

the application, order, affidavits and memoranda sub-

mitted to the District Court in connection with the motion

to suppress are contradictory. The Court would have to

engage in considerable sifting and evaluating to determine

which of the rather substantial cast. of characters actually

approved ... requests, and even then it could not be

certain. It is precisely this type of ‘button, whose got the

button’ guessing game that is characteristic of the in-

stitutional decision, that Congress intended to eliminate,’

“The government’s argument suffers from a second defect.

Although former Attorney General Mitchell assumed

responsibility after the fact of this case were we to approve

this procedure there can be nothing to prevent future

Attorneys General from remaining silent if a particular

wire tap proved embarrassing. Cf. U.S. v. Giordano .. . The

Wilson letter and the Mitchell memorandum were carefully

drawn to create the illusion of compliance with the act.

Without Mitchell’s affidavit, the lines of responsibility lead

; Nee CERRY Ee

to Wilson, not to Mitchell. The quality of administrative

action increases when officials know that their decisions

cannot escape direct scrutiny by the courts, Congress or

the public...”

Furthermore, the affidavits supporting the wire tap

applications were insuffic ent to establish that less drastic

means of investigation cou'd not be used. Section 2518(e)

of 18 U.S.C. provides that a wire tap application must

contain “‘(c) a full and complete statement as to whether

or not other investigative procedures have been tried and

failed or why they reasonably appear to be unlikely to

succeed if tried or to be too dangerous; .. .”

In conclusory form, Zleit alleged that less drastic

means were unlikely to succeed. Further allegations in his

affidavit were to the effect that visual surveillance was

inadequate. The agent further added that experience

showed that the gathering of physical evidence not always

resulted in convictions, that gamblers do not keep per-

manent records, and that if they did the suspects de-

stroyed them during a search. He asserted that not only

were norma! methods of investigation exhausted but they

were considered “too risky to attempt”.

In Zleit’s second affidavit in support of the second

wire tap application, the above conclusions as to futility

were cepeated.

It is put, that the allegations were not sufficient for

the Court to pass upon in regard to whether less drastic

means could be availed of.

None of the suspects or subjects had a reputation for

violence. And, since telephones were allegedly used as claimed

by the informers, the authorities could have attempted to

Procure search warrants to seize these telephones thereby

closing the operation. This would have been especially effective

after evidence had been gathered by the first interception.

A normal method of investigation could have been

employed by having the informants call and place bets and the

agent or agents could have overheard this with the informant’s

consent.

In regard to “Benny Fein” the agent claimed that an

informant spoke to Fein. Whether the informer was asked

where Fein operated from, where the wire room was, is not set

forth. The record never showed whether the informant ever told

this to the agent or the agents who consulted him. It is not

known whether the hearsay attributed to the informants in this

case, was the complete conversation, or such selections from

conversation or conversations that the agent selected to allege in

his affidavit.

The agent’s conclusion that during arrest the suspects

destroy evidence is certainly not supported by facts. A concrete

example is not alleged in the affidavit. Certainly a well planned

entry into a wire room could prevent the destruction of

evidence. There would be no need for an announcement of

purpose and authority by the agent.in making any entry and

thus there would be a prevention of the destruction of evidence;

see Ker v. California, 374 U.S. 23.

In U.S. v. Kahn, 471 F.2d 191, 197 (Cir. 7, 1972) Cert.

granted, number 72-1328, May 14, 1973, reported in 13

Criminal Law Reporter, 4045, it was stated on page 197 that:

ee |

it RIB

. tue conclusionary staiemeni in the application and

affidavit that ‘normal investigative methods reasonably

appear to be unlikely to succeed and are too dangerous to

be used’ is too slender a reed upon which to rest the

invasion of . . . privacy.”

Ill

Section 1955 of 18 U.S.C. supplanted the conspiracy

statute, namely 18 U.S.C. 371 and hence the petitioners could

not be convicted for a conspiracy to violate Section 1955.

It is submitted, that Section 1955 of 18 U.S.C. required a

concert of action between a minimum of five or more persons;

this would imply an agreement to so act. Therefore, the

conspiracy charge under 18 U.S.C. 371 was extraneous. In

Pinkerton v. United States, 328 U.S. 640, 90 L. Ed. 1489, 66 S.

Ct. 1180, it was stated on page 643, of 328 U.S. that:

“Nor can we accept the proposition that the substantive

offenses were merged in the conspiracy. There are, of

course, instances where a conspiracy charge may not be

added to the substantive charge. One is where the

agreement of two persons is necessary for the completion

of the substantive crime and there is no ingredient in the

conspiracy which is not present in the completed crime.

See United States v. Katz, 271 U.S. 354, 355, 356, 70 L.

Ed. 986, 987, 988, 48 S. Ct. 513; Gabardi ». United States,

287 U.S. 112, 121, 122, 77 L. Ed. 206, 210, 211, 53 S. Ct.

; 35, 84 A.L.R. 370... .”

In U.S. v. Figueredo, U.S.D.C.M. Fla. November 20, 1972,

12 Criminal Law Reporter, 2253, where it was held that no

o*sfense in violation of Section 371 making conspiracy a crime,

can be committed where the principles of the conspiracy are

liable under the substantive Section, 1955 of 18 U.S.C.

CONCLUSION

This Court should grant petitioners’ request for a Writ of

Certiorari <nd entertain briefs and arguments on the merits.

Submitted by

ARNOLD E. WALLACH

Member of the Bar of the

United States Supreme Court

1. BUDE II os

A-l

APPENDIX A — Decision of the United States Court

of Appeals for the Second Circuit

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

; At a stated Term of the United States Court of Appeals for

{ the Second Circuit, held at the United States Courthouse in the

4 City of New York, on the twenty-sixth day of June one

Z thousand nine hundred and seventy-three.

Present: Hon. J. Edward Lumbard; Hon. Paul R. Hays;

y Hon. William H. Timbers. Circuit Judges.

3 UNITED STATES OF AMERICA,

4 Plaintiff-Appellee,

4 Benjamin Fein, a/k/a “Cousin”, Larry Kessler, a/k/a “Junior”,

a Arthur Weiss, a/k/a Artie, Charles Marconi, a/k/a

4 “Charlie”, Melvin Hoffman, a/k/a Phil, Robert Liguori,

% a/k/a “‘Robbie”, Michael Schneider, a/k/a “Moe”, Shirley

| Schneider, Lena Hass, Dorothy Hoffer, Paul Cantor, Harry

4 Hirsch, Sol Levine, Robert Ochs, Gertrude Tannenbaum,

4 Morris Koenig, a/k/a “Danny”, Louis Pierro, Philip

Shapiro,

Defendants,

4 Melvin Hoffman and Charles Marconi, Arthur Weiss, Paul

3 Cantor, Harry Hirsch, Robert Ochs, Benjamin Fein,

3 Gertrude Tannenbaum, Phillip Shapiro, Robert Liguori, L.

4 Kessler Defendants-Appellants

a od

Be NES

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Southern District 4

of New York, and was argued by counsel. ki

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgments of said

District Court be and they hereby are affirmed.

s/A. Daniel Fusaro

Clerk

"EASY co qa ag

sid ee

PO PRLO IED. A LAI My

A-3

APPENDIX B

Judgment Of Lower Court (Fein)

Judgment No. 73,117

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

“V-

BENJAMIN FEIN a/k/a “COUSIN”

On this 9th day of January, 1973 came the attorney for

the government and the defendant appeared in person and by

_ Max Fruchtman, Esq.

IT IS ADJUDGED that the defendant upon his plea of

- not guilty, and a finding of guilty, has been convicted of the

offense of unlawfully, wilfully and knowingly conspiring to

conduct, finance, manage, supervise, direct and own a part of an

illegal gambling business, to wit, bookmaking, (a) being a

- violation of the laws of the State of New York (b) involving five

Rela eee ed

persons who conduct, finance, manage supervise, direct and

own a part of said illegal gambling business and (c) being and

remaining in substantially continuous operation for a period in

excess of 30 days and has a gross revenue of ($2,000) in any

single day. (Title 18, United States Code, Section 371.) as

charged in count 1 and the court having asked the defendant

whether he has anything to say why judgment should not be

pronounced, and no sufficient cause to the contrary being

shown or appearing to the Court.

A-4

IT IS ADJUDGED that the defendant is guilty as charged

and convicted.

IT IS ADJUDGED that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of two (2) years

pursuant to Section 3651 of Title 18, U.S. Code as amended,

with provision defendant be confined in a Jail type institution

for a period of sixty (60) days as provided in the aforesaid

section. Execution of remainder of sentence suspended and

defendant placed on Probation for a period of two (2) years to

commence upon expiration of confinement, subject to the

standing probation order of this Court. Defendant is fined one

thousand dollars ($1,000.00) fine to be paid within 30 days.

Count 2 is dismissed on defendant’s motion, no objection

by the Government.

by s/

IT IS ORDERED that the Clerk deliver a certified copy of

this judgment and commitment to the United States Marshal or

other qualified officer and that the copy serve as the com-

mitment of the defendant.

s/ Gagliardi

s/ John Simpston, Clerk

55 to 2 er SPs Se. oJ

{

> ! ;

APPENDIX C

Judgment of Lower Court (Marconi)

Judgment No. 73,118

UNITED STATES OF AMERICA

-y-

CHARLES MARCONI a/k/a “Charlie”

On this 9th day of January, 1973, came the attorney for

the government and the defendant appeared in person, and by

Vincent W. Lanna by Peter Rosato.

IT IS ADJUDGED that the defendant upon his plea of not

guilty, and a finding of guilty has been convicted of the offense

of unlawfully, wilfully and knowingly conspiring to conduct,

finance, manage, supervise, direct and own a part of an illegal

gambling business, to wit, bookmaking, (a) being a violation of

the laws of the State of New York (b) involving five persons

who conduct, finance, manage supervise, direct and own a part

of said illegal gambling business and (c) being and remaining in

substantially continuous operation for a period in excess of 30

days and has a gross revenue of ($2,000) in any single day.

(Title 18, United States Code, Section 371 and the court having

asked the defendant whether he has anything to say why

judgment should not be pronounced, and no sufficient cause to

the contrary being shown or appearing to the court,

BO PMD EE DPL ELON SRE DLE BEIM LVELB DIG. PII AEN REE LE ABEL IEE GEC EIES. -" ae

6 SOSA IMA FLL REA IY M5 IRE TI ELE BES EBS ELS RTE REEL AEE RIM ep te

IT IS ADJUDGED that the defendant is news as wane

and convicted.

IT IS ADJUDGED that the defendant is sentenced to the

custody of the Attorney General for imprisonment for a period

of two (2) years. Execution of prison sentence is suspended and

the defendant is placed on UNSUPERVISED probation for a

period of two (2) years, subject to the standing probation order

of this Court. The defendant is FINED $3, 500. 00 to be paid

within 30 days.

SEN EERE TINT BA Se tar |

eS RN? By

Count 2 is dismissed on defendant’s motion, no objection

by the Government.

IT IS FURTHER ORDERED that during the period of

probation the defendant shall conduct himseli as a law-abiding,

industrious citizen and observe such conditions of probation as F

the Court may prescribe. Otherwise the defendant may be é

brought before the court for a violation of the court's orders. f

IT IS FURTHER ORDERED that the clerk deliver three

certified copies of this judgment and order to the probation

officer of this court, one of which shall be delivered to the :

defendant by the probation officer.

s/ Gagliardi

s/ John Simpston, Clerk

— SEP OME TLDS POLES, LEI E SVG Mg VELL IPI LO ON oe Oram Y .

LEO ISTE LO EEG REELS E PRL .

A-7

APPENDIX D

Judgment of Lower Court (Liguori)

Judgment No. 73,119

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

V-

ROBERT LIGUORI a/k/a “ROBBIE”

On this 9th day of January, 1973 came the attorney for

the government and the defendant appeared | in person and by

Lawrence J. Weingard.

IT IS ADJUDGED that the defendant upon his plea of not

guilty, and a finding of guilty has been convicted of the offense

of unlawfully, wilfully and knowingly conspiring to conduct,

finance, manage, supervise, direct and own ‘a part of an illegal

gambling business and (c) being and remaining in substantially

continuous operation for a period in excess of 2f\days and has a

gross revenue of ($2,000) in any single day. (Title 18, United

States Code, Section 371.) as charged in count 1 and the court

having asked the defendant whether he has anything to say why

judgment should not be pronounced, and no sufficient cause to

the contrary being shown or appearing to the Court.

IT IS ADJUDGED that the defendant is sod as charged

* and convicted.

CD GRETA PLES IG PING —"

GORGES BEI IRLO NEO PLLC MILL GILL IEG SILL EEL LALA IID OK om

A Ain AIO MG AP DEM gt On ED LA 1b LA EP VE TRL ELE AI Lt DE Lie PALE A REE TOES

A-8

IT IS ADJUDGED that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of two (2) years

pursuant to Section 3651 of Title 18, U.S. Code as amended,

with provision defendant be confined in a Jail type institution

for a period of sixty (60) days as provided in the aforesaid

section. Execution of remainder of sentence suspended and

defendant placed on Probation for a period of two (2) years to

commence upon expiration of confinement, subject to the

standing probation order of this Court. Defendant is fined one

thousand dollars ($1,000.00), fine to be paid within the two (2)

years probation period.

EES GR MPR STL TPS NIN ee

ee en

Count 2 is dismissed on defendant’s motion, no objection

by the Government.

IT IS ORDERED that the Clerk deliver a certified copy of

this judgment and commitment to the United States Marshal or

other qualified officer and that the copy serve as the com-

mitment of the defendant.

DER RD ICL NEL ILESLE OLLIE LOL APLC DE GC PGE A SLOG ILA.! LOD ESE EE LIONS nate

De ee OS £ ant a aS Se |

A-9

APPENDIX E

Judgment of Lower Court (Hirsch)

Judgment No. 73,114

_SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

«V-

HARRY HIRSCH t/n HARRY CALVARY

On this 9th day of January, 1973, came the attorney for

» the government and the defendant appeared in person, and by

Arnold Wallach, Esq.

IT IS ADJUDGED that the defendant upon his plea of not

guilty, and a finding of guilty, has been convicted of the offense

of unlawfully, wilfully and knowingly conspiring to conduct,

finance, manage, supervise, direct and own a part of an illegal

gambling business, to wit, bookmaking, (a) being a violation of

| the laws of the State of New York (b) involving five persons

* who conduct, finance, manage supervise, direct and own a part

4 of said illegal gambling business and (c) being and remaining in

substantially continuous operation for a period in excess of 30

| days and has a gross revenue of ($2,000) in any single day.

/ (Title 18, United States Code, Section 371.) and the court

i having asked the defendant whether he has anything to say why

§ judgment should not be pronounced, and no sufficient cause to

+ the contrary being shown or appearing to the court.

IT IS ADJUDGED that the defendant is guilty as charged

A-10

and convicted.

IT IS ADJUDGED that ‘he defendant is sentenced to the

custody of the Attorney General for imprisonment for a period

of two (2) years. Execution of prison sentence is suspended and

the defendant is placed on probation for a period of two ( 2)

years. The defendant is FINED $1,000.00 to be paid within 30

days. Count 2 is dismissed on motion of the defendant, no

objection by the Government.

IT IS FURTHER ORDERED that during the period of

probation the defendant shall conduct himself as a law-abiding,

industrious citizen and observe such conditions of probation as

the Court may prescribe. Otherwise the defendant may be

brought before the court for a violation of the court’s orders.

IT IS FURTHER ORDERED that the clerk deliver three

certified copies of this judgment and order to the probation

officer of this court, one of which shall be delivered to the

defendant by the probation officer.

s/ Gagliardi

s/ John Simpston, Clerk

— <a AE LEO RIB BE ih fh OM

A-11

APPENDIX F

Judgment of Lower Court (Weiss)

Judgment No. 73,170

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

“V-

ARTHUR WEISS

On this 23rd day of January, 1973 came the attorney for

the government and the defendant appeared in person and by

William Esbitt, Esq.