468 F.2d 688 (2nd Cir. 1972), 131, United States v. Fiorella

Docket Nº:131, 132, 72-1459, 72-1460.
Citation:468 F.2d 688
Party Name:UNITED STATES of America, Appellee, v. Michael Leo FIORELLA et al., Appellants.
Case Date:October 13, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 688

468 F.2d 688 (2nd Cir. 1972)

UNITED STATES of America, Appellee,

v.

Michael Leo FIORELLA et al., Appellants.

Nos. 131, 132, 72-1459, 72-1460.

United States Court of Appeals, Second Circuit.

October 13, 1972

Argued Sept. 20, 1972.

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Herald Price Fahringer, Jr., Buffalo, N. Y. (Lawrence A. Schulz, Buffalo, N. Y., of counsel), for appellant Michael Leo Fiorella.

Norman A. Palmiere, Rochester, N. Y., for appellants A. Richard Fiorella, Clifford Carll, John Porcello, Anthony Pizzutelli, Angelo Alfano, Alfred Rivoli and James Comunale.

Dennis P. O'Keefe, U. S. Dept. of Justice, Washington, D. C. (John T. Elfvin, U. S. Atty. for the Western District of New York, of counsel), for appellee.

Before SMITH, KAUFMAN and MANSFIELD, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Michael Leo Fiorella, A. Richard Fiorella, Clifford Carll, John Porcello, Anthony Pizzutelli, Angelo Alfano, Alfred Rivoli, and James Comunale were convicted after a six-day jury trial in the Western District of New York, Harold P. Burke, Judge, of conspiracy to violate 18 U.S.C. § 1955, which makes it a federal crime to conduct certain types of gambling businesses. 1 All were acquitted on the substantive charge of violating § 1955. They appeal from the conspiracy conviction on grounds of insufficiency of evidence, inconsistency of verdict, illegality of wiretaps and prejudicial summation. We find no error and affirm the convictions.

This case arose out of an FBI investigation of gambling in Rochester. Responding to tips by two confidential informants, the FBI conducted physical surveillance of 84 Cleveland Street in Rochester, the suspected gambling headquarters. Relying on the fruits of that surveillance and on the two tips, the government on March 4, 1971 obtained an order, pursuant to 18 U.S.C. § 2518, from Judge Burke authorizing a wiretap on a phone at the suspected headquarters. That tap ran for twelve days and produced twenty-eight reels of evidence, much of which disclosed the appellants accepting wagers and giving out betting information. These tapes provided the bulk of the government's case at trial.

Appellants' first contention is that their acquittal on the substantive charge is inconsistent with the conspiracy conviction, and thus compels reversal of the latter. That claim is obviously without merit. For one thing, appellants argued quite strenuously at trial that, whatever the evidence established, it did not show that the gambling business

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took in over $2000 daily, so that 18 U.S.C. § 1955 was not violated. A jury accepting that argument but finding, as it well could here, that an illegal gambling business was being conducted by these defendants, would be justified in acquitting on the substantive charge but convicting for conspiracy. 2 Moreover, even assuming arguendo that the acquittal on the substantive count is at odds with the conspiracy verdict, inconsistency has long been held to be one of the jury's prerogatives. Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1931); United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Collins, 272 F.2d 650, 653 (2d Cir. 1959).

Appellants next mount a broad attack against the wiretap. First, they contend that the wiretap application was improperly authorized. The application for a wiretap order was made in an affidavit dated March 3, 1971, by the United States Attorney for the Western District of New York. As Exhibit A to that application, the government attached a letter from the...

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