U.S. v. Clerkley

Decision Date25 May 1977
Docket NumberNos. 76-1663,s. 76-1663
Citation556 F.2d 709
PartiesUNITED STATES of America, Appellee, v. Maceo CLERKLEY, Appellant. UNITED STATES of America, Appellee, v. Julius COTTMAN, Appellant. UNITED STATES of America, Appellee, v. Rufus JONES, Appellant. UNITED STATES of America, Appellee, v. Robert R. LONDON, a/k/a Fifi London, Appellant. UNITED STATES of America, Appellee, v. Robert HIMES, Appellant. UNITED STATES of America, Appellee, v. Richard James GENCO, Appellant. UNITED STATES of America, Appellee, v. John A. SHADE, Appellant. to 76-1669.
CourtU.S. Court of Appeals — Fourth Circuit

Peter G. Angelos, Baltimore, Md., for appellant in 76-1668.

Howard L. Cardin, Baltimore, Md., on brief, for appellant in 76-1669.

Jeffrey C. Hines, Baltimore, Md., on brief, for appellant in 76-1667.

Marsha A. Ostrer, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty., Baltimore, Md., on brief), for appellee in 76-1663, 76-1664, 76-1665, 76-1666, 76-1667, 76-1668 and 76-1669.

Before WINTER, CRAVEN * and BUTZNER, Circuit Judges.

WINTER, Circuit Judge:

Defendants, together with others, were indicted by a federal grand jury on a charge of violating 18 U.S.C. § 1955 (conducting an illegal gambling business). Defendants London, Jones and Cottman were tried before a jury and found guilty of violating the statute. Defendants Genco, Himes, Shade and Clerkley were tried without a jury and also found guilty as charged. These appeals ensued. At trial, the various defendants moved to suppress all incriminating evidence secured by wiretap. The district judge denied this motion, holding that the government fully complied with the terms of the federal wiretap statute. The correctness of this ruling is the principal issue on appeal. We affirm.

I.

The one-count indictment alleged that fourteen named defendants (including the seven who now appeal), one Albert Isella, and others known and unknown to the grand jury, were engaged in an illegal numbers lottery business. The government's evidence established that the operation was a major "gambling lay off" business. A "lay off" operation enables professional bookmakers to diminish risk by re-betting or "laying off" large bets with other gamblers. United States v. Box, 530 F.2d 1258, 1261 (5 Cir. 1976); United States v. Bernstein, 509 F.2d 996, 1002 n.14 (4 Cir. 1975), vacated, 430 U.S. 902, 97 S.Ct. 1167, 51 L.Ed.2d 578 (1977) (No. 74-1486); United States v. Bobo, 477 F.2d 974 (4 Cir. 1973), cert. denied sub nom., Gray v. United States, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774 (1975). The proof showed that London, Genco and Isella were partners in overall control of the operation, with London as the senior partner and Genco and Isella having lesser, though substantial, interests. Himes was the clerk and record keeper for the operation. Shade, Clerkley, Cottman and Jones all owned substantial books and regularly "laid off" heavily bet numbers to the London enterprise through Himes, who performed his duties by telephone at his home.

At trial, the government relied heavily upon evidence secured through electronic surveillance. Pursuant to orders signed by Judges Harvey and Young of the district court, FBI agents installed a microphone at London's place of business and "pen register" and intercepting devices at the Himes residence. 1

FBI agents monitored all conversations at London's office whenever any of three partners were present. Recordings were made of those conversations dealing with gambling activities. Logbooks were also maintained, indicating in almost minute-by-minute fashion the identities of persons known to be present, the nature of the conversation then occurring, and the use of recording apparatus (if any). This monitoring lasted from August 24, 1974 until September 12, 1974.

FBI agents also monitored the use of a telephone at the Himes residence. A tape recorder was activated each time an incoming or outgoing call was initiated. Agents "spot checked" each call to determine its nature. If the call dealt with gambling, monitoring continued and the call would be taped in its entirety. If the call dealt with personal matters, all monitoring and recording would cease. A second set of logbooks was maintained, indicating the time, content, and recording (or non-recording) of every call. This activity continued from September 6, 1974 until September 24, 1974.

II.

At trial, defendants moved the district court to exclude all evidence secured by wiretap. The motion was denied. Defendants contend that the evidence should have been suppressed, asserting allegedly fatal variances between government conduct and the terms of the wiretap statute.

A.

Electronic eavesdropping by law enforcement personnel is governed by the federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510, et seq. The wiretap statute was intended to make an accommodation between competing goals of crime control and protection of the right to privacy. 2 A variety of controls are imposed on police action, intended to "delineat(e) on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." (1968) U.S.Code, Cong. & Ad.News, pp. 2112, 2153.

Defendants' initial contention is that the wiretap orders, signed by Judges Harvey and Young, were predicated upon an insufficient showing of need. Under the wiretap statute, intercepted wire or oral communication is rendered inadmissible in evidence unless it was intercepted in compliance with the statute. 18 U.S.C. §§ 2515, 2518(10)(a). The statute requires that the government apply for a judicial order before electronic surveillance may begin. 18 U.S.C. § 2516. In addition, the government is required to show, and the authorizing judge must find, a compelling need for this type of activity. 18 U.S.C. § 2518(1)(c), (3)(c). Specifically, there must be a showing that "other investigative procedures have been tried and have failed or . . . reasonably appear To meet the requirement of the statute, the government, in the instant case, produced two affidavits by FBI Special Agent John Huntley. Each affidavit began by detailing the information already known to the government, primarily through the use of informers, and the reasons why the informers were thought to be reliable. The FBI was apparently well aware of the roles played by London, Genco, Isella and Himes. In addition, the FBI knew that certain premises (London's office and Himes' residence) were being used to conduct the gambling business. However, the identities of many other participants, including most bookmakers who regularly "laid off" bets, were not known. The affidavits concluded with the following recitation:

to be unlikely to succeed if tried or to be too dangerous." 18 U.S.C. § 2518(1)(c).

NEED FOR INTERCEPTION

1. The confidential informants described herein have categorically refused to testify in open court for fear of their personal safety and that of their families.

2. Normal investigative techniques are unlikely to succeed:

(a) Without the testimony of the above-mentioned informants it would be exceedingly difficult to prove the complete nature of the current gambling operation of Robert "Fifi" London, Albert Carmen Isella, Richard "Dick" Genco, Robert Leroy Himes, Susan Himes, Robert John Thibou, Melvin Eugene Brzostek, Orva Elerson "Lucky" Robinson, Ambrose Robinson and others as yet unknown.

(b) It is doubtful that a search warrant, if obtained and executed, would result in obtaining gambling records sufficient to show the complete nature of this gambling operation. From my experience and the experience of other Agents, I know that gambling raids and searches of gamblers and their gambling establishments have not in the past resulted in the gathering of physical or other evidence to prove all elements of the offenses. This is particularly true in regards to evidence relating to the "lay-off" part of a gambling operation. I have found through my experience and the experience of other Special Agents who have worked on other gambling cases that gamblers frequently do not keep incriminating records. If such records have been maintained, usually gamblers, immediately prior to or during the physical search, destroy these records. Additionally, records that have been seized in past gambling cases have generally not been sufficient to establish all of the elements of said offenses because such records are difficult to interpret and many times are of no significance without more complete knowledge of the gamblers activities.

(c) There are no known witnesses who could be relied upon to truthfully testify to the violation in question.

(d) Infiltration of the gambling operation by an undercover Agent does not appear to be possible in this case but even if such infiltration were possible, it would only be at the lowest level of the operation which would not result in evidence being obtained regarding involvement of the backers and the lay-off part of the operation. Nor would such infiltration, even if possible, ever be expected to discover the full scope and extent of the operation.

(e) Calling witnesses before the Grand Jury would not result in the gathering of sufficient evidence to uncover the full scope and extent of the operation. Only those individuals integrally involved in the operation at a high level have the requisite knowledge regarding the full scope and extent of the operation. Witnesses, even if immunized, are reluctant to incriminate themselves and their close working associates. Together their testimony would require immunization and non-prosecution of those who are the principals of the operation. But, even if obtained, their testimony is not...

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