U.S. v. Civella, s. 75-1522
| Decision Date | 16 April 1976 |
| Docket Number | Nos. 75-1522,75-1530 and 75-1532,75-1525,75-1528,s. 75-1522 |
| Citation | 533 F.2d 1395 |
| Parties | UNITED STATES of America, Appellee, v. Nicholas CIVELLA, Appellant. UNITED STATES of America, Appellee, v. Anthony Thomas CIVELLA, Appellant. UNITED STATES of America, Appellee, v. Frank Anthony TOUSA, Appellant. UNITED STATES of America, Appellee, v. Joseph BARLETTA, Appellant. UNITED STATES of America, Appellee, v. Thomas FONTANELLO, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
James Patrick Quinn, Quinn & Peebles, Kansas City, Mo., for appellant, Nicholas Civella.
Anthony J. Romano, Kansas City, Mo., for appellant, Anthony Thomas Civella.
Jerome F. Waterman, Kansas City, Mo., for appellant, Thomas Fontanello.
Michael A. DeFeo, Atty., Dept. of Justice, Kansas City, Mo., made argument for appellee.
Cordell Siegel, St. Louis, Mo., for all appellants.
Robert G. Duncan, Kansas City, Mo., for appellant, Frank Anthony Tousa.
Willard L. Pollard, Kansas City, Mo., for appellant, Joseph Barletta.
Before LAY, BRIGHT and HENLEY, Circuit Judges.
These five consolidated appeals come to us from the United States District Court for the Western District of Missouri. The defendants, Nicholas Civella, his nephew, Anthony Thomas Civella, Frank Anthony Tousa, Joseph Barletta and Thomas Fontanello, along with Martin Chess and Phillip Saladino, were jointly charged in the fifth count of a five count indictment with having unlawfully conspired in violation of 18 U.S.C. § 371 to violate the provisions of 18 U.S.C. § 1084 and 18 U.S.C. § 1952. 1 The charge against the Civellas, Tousa and Barletta was submitted to District Judge William R. Collinson on a stipulation of facts entered into subject to defense contentions put forward in numerous pretrial motions which were denied by the district court. 2 Fontanello joined in certain paragraphs of the stipulation but refused to join in others; his case was tried to Judge Collinson without a jury. Martin Chess entered a plea of nolo contendere; the defendant Saladino was granted a continuance. All of the appealing defendants were found guilty; all were sentenced to imprisonment, and all but Barletta were fined.
The appeals were consolidated and were briefed and argued together. The record in the case is most voluminous.
In the last analysis, the government's case against the respective defendants is based on the results of a wiretap of a pay telephone in the Northside Social Club, also known as The Trap, located at 1048 East Fifth Street in Kansas City, Missouri. The local number of the telephone is or was 421-8727. The building in which The Trap is or was located is owned by the defendant, Nicholas Civella, and it appears that the establishment was operated at relevant times by the defendant, Tousa.
The wiretap interception was authorized by Judge Collinson on January 7, 1970 on the application of David H. Martin, a Special Attorney of the Department of Justice assigned to the Kansas City "strike force." 3 The authorizing order was entered pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., hereinafter called the Act.
The interception was authorized for a period of ten days beginning on January 8, 1970. The last interception was effected on January 16 or January 17. On the date last mentioned Judge Collinson issued a warrant commanding the search of certain premises and the seizure of certain materials; the warrant was executed and some seizures of gambling records and paraphernalia took place.
The validity of the conviction of the defendants hinges upon the validity of the authorizing order and upon whether after the interception was terminated there was adequate compliance with the inventory provisions of 18 U.S.C. § 2518(8)(d). All of the defendants contend for reversal that the Act was substantially violated, and that the results of the wiretap and evidence obtained as a result of the tap should have been suppressed as provided by § 2515 and § 2518(10)(a).
In addition, the defendants contend jointly that Title III of the Act is unconstitutional, and that the proceedings against them were invalidated by the participation therein of strike force attorneys, including Special Attorney Martin.
The defendant Fontanello contends separately that in any event the evidence against him, including the results of the wiretap, was insufficient to sustain his conviction.
Apart from the ultimate fact of guilt or innocence, the background facts of the case are not in serious dispute.
Nicholas Civella is well known to both state and federal law enforcement officers. He is at least supposed to be the leader or one of the leaders of organized crime in the Kansas City area. His activities in the field of illegal gambling and those of his associates were the subject of intensive FBI investigation for months before wiretap authorization was sought from the district court. The investigation produced a great deal of information from confidential informants who for obvious reasons would have been unwilling to testify in court to what they told the FBI.
In view of the stipulation that has been mentioned, there is no question that during the period defined in the indictment, which period extended from about July 1, 1968 to about January 17, 1970, Nicholas Civella and the other defendants, with the possible exception of Fontanello, were engaged in a conspiracy to violate 18 U.S.C. §§ 1084 and 1952 and that overt acts in furtherance of the conspiracy were committed.
The object of the conspiracy was to engage on a large scale in bookmaking gambling prohibited by Missouri law, V.A.M.S. 563.350 and 563.360. Wagers were accepted on such sporting events as football and basketball games, and at times wagers that had been accepted were "laid off" with other gamblers to protect the conspirators from loss. Like all large bookmaking operations, this one involved the extensive use of telephone communications including both long distance and local and interstate and intrastate calls.
The FBI's investigation led it to conclude that the bookmaking operation was being conducted principally by the defendants Anthony Civella and Tousa for their own benefit and for the benefit of Nicholas Civella. It was also concluded that The Trap was a principal center of the operation, and that the pay telephone that has been identified was being used at least by Tousa in the carrying on of the business of the operation.
On the basis of the FBI investigation and after the results of that investigation had been considered in the Department of Justice, Special Attorney Martin was authorized to apply to the district court for a wiretap order as provided by § 2518(1). He made the application, and it was granted by Judge Collinson after an ex parte hearing. The authority listed no one but Tousa as a prospective interceptee, and the authority was limited to times during which Tousa was observed to be present physically on the premises of The Trap, and no conversation was to be monitored or recorded unless the FBI agents conducting the tap were able to establish by voice recognition the fact that Tousa was one of the parties to the conversation.
After the wiretap was terminated, Judge Collinson directed that inventories be served on Tousa, the Civellas, and on two other individuals who were not indicted. While the inventories should have been served not later than ninety days after the expiration of the authorized period of the interception, they were not in fact served within that period of time, although they were served soon after that period expired. No order was ever entered directing service of inventories on Barletta or Fontanello, and neither was ever served with an inventory.
Three indictments have been returned in the case. The first indictment, returned in October, 1970, and the second indictment, returned in March, 1971, did not name either Barletta or Fontanello as a party defendant. They were brought into the case when the third indictment, the one with which we are concerned, was returned in October, 1971.
Due to the large number of motions filed by the defendants, and perhaps for other reasons, the case remained in the district court from October 1971 until it was disposed of finally in the spring and summer of 1975.
Other facts will be stated as the opinion proceeds.
We take up first and deal briefly with the defendants' attack on Title III of the Act and with their complaint about the strike force attorneys.
As to the complaint last mentioned, counsel for the defendants take note of the adverse holdings of this court in DiGirlomo v. United States,520 F.2d 372 (8th Cir.), cert. denied, --- U.S. ----, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975); United States v. Agrusa, 520 F.2d 370 (8th Cir. 1975); and United States v. Wrigley, 520 F.2d 362 (8th Cir.), cert. denied,--- U.S. ----, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); see also Scott v. United States, 522 F.2d 621 (8th Cir. 1975). Counsel state that the point is raised for record purposes only; it is not argued in the briefs, and we reject the contention.
Likewise, counsel recognize that we have upheld as constitutional Title III of the Act. United States v. John, 508 F.2d 1134 (8th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448 (1975); United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972); and United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), cert. denied, 417 U.S. 918, 94 S.Ct. 2623, 41 L.Ed.2d 223 (1974). We adhere to those decisions.
Moreover, we deem it well to say that we agree with the district court that Special Attorney Martin was properly authorized under § 2516 to apply for wiretap authority. And we find, in general and subject to the particular objections of the defendants, that the application and order authorizing the wiretap complied with the requirements of the Act in form and content.
Title III of ...
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