U.S. v. Denton

• Citation: 556 F.2d 811
• Decision Date: 21 June 1977
• Docket Number: No. 76-2693,76-2693
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard DENTON, Gay E. Powers and Ray E. Powers, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 811

556 F.2d 811

UNITED STATES of America, Plaintiff-Appellee, v. Richard DENTON, Gay E. Powers and Ray E. Powers,

Defendants-Appellants.

No. 76-2693.

United States Court of Appeals,

Sixth Circuit.

Argued April 21, 1977.

Decided June 21, 1977.

Charles A. Palmer, Lansing, Mich., for defendants-appellants.

Frank S. Spies, U. S. Atty., Grand Rapids, Mich., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and WEICK and EDWARDS, Circuit Judges.

WEICK, Circuit Judge.

Appellants have appealed from judgments of conviction by a jury and from sentences on a two-count indictment charging them with conspiracy to conduct and with conducting an illegal gambling operation, in violation of 18 U.S.C. §§ 1955 and 371.¹ Denton was sentenced on the substantive offense charged in Count II to eight days in jail, three years probation, and $1800 fine. Gay Powers and Ray Powers, who are brothers, were each sentenced on the substantive offense charged in Count II to four days in jail, three years probation, and $1200 fine. The sentence of each appellant on his conspiracy conviction on Count I was suspended, and each was placed on three years probation. The sentences on the two counts were to run concurrently.

Appellants have raised three questions: One, whether the trial judge abused his discretion in admitting into evidence as summaries, composite tape recordings of representative telephone conversations intercepted pursuant to court order and made from duplicate tapes of the original tape recordings which were procured under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and as amended in 1970, 18 U.S.C. §§ 2510-2520; Two, whether the trial judge properly instructed the jury on the elements of the offense under 18 U.S.C. § 1955; and Three, whether the Government established the jurisdictional requirements under 18 U.S.C. § 1955.² We affirm appellants' convictions.

I

On November 22, 1974 the District Court authorized Special Agents of the FBI to intercept the telephonic communications of the Powers brothers and two other persons and to make pen-register recordings of the numbers dialed. The Special Agents proceeded forthwith to tap and to record the conversations of the telephone calls from the suspects' telephone lines. The wiretaps were authorized for twenty days from November 23, 1974 to December 12, 1974. The Agents also received court authorization for three more days of telephone interceptions in January, 1975.

The Agents did not monitor private personal calls on the interceptions, and they made pretext calls to ensure that the interceptive devices were installed properly on the correct telephone lines. The Agents also made five-day reports to the court on the progress of the investigation.

At the end of each day of the interceptions the Agents made copies of the taped communications and turned over the original tapes to FBI Special Agent Van Harp. Agent Harp put the originals in a safe and sealed them on December 13, 1974. On December 16, 1974 FBI Special Agent Norman Simon delivered the sealed tapes to the Court. The original tapes remained sealed until the seal was broken at the trial.

Agent Harp instructed the agents in making a composite tape and verbatim transcripts of the intercepted conversations from the duplicate tapes. The composite tape consisted of about 39 telephone calls ³ between the appellants and other persons which illustrated the bookmaking operation under investigation. Approximately 963 telephone calls were monitored during the investigation. The composite tape showed the betting operations of the appellants and the involvement of persons such as Maurice Ramont and Harry DeRose in the operation from November 26, 1974 to December 12, 1974.

At the trial before a jury Special Agent William Holmes of the FBI testified as a government expert on gambling. Agent Holmes had heard the composite tape, had read the verbatim transcript of the tape, and had examined the items seized from searches made on January 13, 1975. He testified from this evidence that a bookmaking operation, consisting of at least nine participants, was in existence from November 23, 1974 to January 13, 1975. He stated that five of these participants were the Powers brothers, Denton, Harry DeRose and Maurice Ramont. Agent Holmes said that the Powers brothers were the managers or partners in this gambling organization; that Richard Denton was an employee of the organization who accepted bets, disseminated information to customers and informed the customers of the amounts owed to or by the bookmaker; that Harry DeRose was a "writer" for the organization; that Maurice Ramont was a bookmaker who placed wagers with and accepted wagers from Denton; and that most of there wagers were layoff wagers.⁴

From the composite tape Agent Holmes testified that the organization took in a minimum of the following amounts of money on the following dates:

November 25, 1974 $800 November 26, 1974 120 November 27, 1974 900 November 29, 1974 1,500 November 30, 1974 2,100 December 2, 1974 800 December 6, 1974 1,130 December 7, 1974 1,900

After Agent Holmes had examined the yellow spiral notebook taken from Denton's office pursuant to a January 13, 1975 search, Agent Holmes testified that the organization took in $6,425 on January 12, 1975. He attributed this large intake from the betting on the Super Bowl football game.

The composite tape and all of the original tape recordings were admitted into evidence at the trial.

II

Appellants' principal argument is that all of the original tapes of the intercepted telephone conversations, rather than the composite tape made from the duplicate copies, should have been played at the trial, pursuant to 18 U.S.C. §§ 2510-2520. They contend that the admission of the composite tape into evidence was reversible error. We disagree.

Counsel for appellants objected to the admission of the composite tape in evidence on the ground that it was made up of elements of other tapes and had been edited in order to make it composite. Counsel stated, "I feel that the original tape is the one that should be used and not the edited one." The ruling on the objection was as follows:

The Court: Mr. Brooks, the rules of evidence provide that in a case where there is lengthy and investigative documentary or oral or recorded testimony, that it is within the discretion of the Court to permit excerpts to be used. I think that is Federal Rule 1006, 28 U.S.Code.⁵ And looking from the size of the original tapes that are here, I think we'd be here for three weeks if we listened to the originals entirely, knowing full well there is material in those tapes that has no bearing on this case.

Overrule your objection and permit the excerpted parts to be used. (Footnote added.)

In United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977), the Court held at page 512:

The admissibility of recordings of intercepted conversations or parts thereof is a matter committed to the sound discretion of the trial court.¹⁴ Gorin v. United States, 313 F.2d 641, 652 (1st Cir. 1963); Todisco v. United States, 298 F.2d 208, 211 (9th Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 602, 7 L.Ed.2d 527 (1962). And the use of a composite trial tape of particular intercepted conversations which the government considered relevant to the trial has been permitted. See, e. g., United States v. Lawson, 347 F.Supp. 144, 147-49 (E.D.Pa.1972).

In United States v. Whitaker, 372 F.Supp. 154, 164 (M.D.Pa.), aff'd without published opinion, 503 F.2d 1400 (3d Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 789, 42 L.Ed.2d 810 (1975), the District Court ruled that it was proper to admit into evidence and to play at trial a summary tape of selected conversations ("master tape") of original recordings of FBI interceptions of telephone conversations when the summary tape was authentic, accurate, and would conserve time at trial by its use.

Similarly, the Court of Appeals of New York in People v. Nicoletti, 34 N.Y.2d 249, 253-54, 356 N.Y.S.2d 855, 858, 313 N.E.2d 336, 339 (1974), cognizant of 18 U.S.C. § 2518(8)(a), specifically approved re-recording the original tapes of intercepted telephone conversations in order that the duplicate recordings be used "for the purposes of transcription and preparation of composite recordings" as "prudence alone dictates that such tasks be done with duplicate not original recordings" to avoid damage to the original recordings. See also United States v. Ricco, 421 F.Supp. 401, 408-09 (S.D.N.Y.1976), and People v. Sher, 38 N.Y.2d 600, 604-05, 381 N.Y.S.2d 843, 345 N.E.2d 314 (1976).

In United States v. Scully, 546 F.2d 255, 270 (9th Cir. 1976), judgment vacated on other grounds, sub nom. United States v. Cabral, 430 U.S. 902, 97 S.Ct. 1168, 51 L.Ed.2d 578 (1977), the Court approved the introduction into evidence of a single master tape of all the intercepted conversations. The Court said:

The procedure saved considerable time by eliminating the need to switch tape reels continually. The master tape had quality equal to the originals. The defendants had opportunity to examine the originals.⁶ (Footnote added)

The docket entries in the District Court reveal that on September 25, 1975 there was a pretrial conference of the attorneys meeting with the United States Attorney, before the District Court, to hear tapes and to obtain transcripts. They were to report back to the Court by the end of October.

There is no claim made by appellants that this did not occur. Thus appellants' counsel had ample opportunity over a long period of time to listen to all of the tapes if he cared to do so. At the trial he had full opportunity to cross-examine the Special Agents of the FBI with respect to the composite tape and to offer proof if he contended that the tape was improperly prepared. He was given further opportunity to make a comparison at the...