U.S. v. Abramson

• Decision Date: 27 June 1977
• Docket Number: Nos. 76-1583,76-1588 and 76-1589,s. 76-1583
• Citation: 553 F.2d 1164
• Parties: UNITED STATES of America, Appellee, v. Max ABRAMSON, Appellant. UNITED STATES of America, Appellee, v. Frank BONFIGLIO, Appellant. UNITED STATES of America, Appellee, v. Paul CAPPELLANO, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1164

553 F.2d 1164

UNITED STATES of America, Appellee, v. Max ABRAMSON, Appellant.

UNITED STATES of America, Appellee, v. Frank BONFIGLIO, Appellant.

UNITED STATES of America, Appellee, v. Paul CAPPELLANO, Jr., Appellant.

Nos. 76-1583, 76-1588 and 76-1589.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1976.

Decided April 26, 1977.

Certiorari Denied June 27, 1977.

See 97 S.Ct. 2979.

Oscar B. Goodman, Las Vegas, Nev., on brief for appellant Max abramson.

David L. Herzog, Omaha, Neb., on brief for appellants Bonfiglio and Cappellano.

William E. Zleit, Dept. of Justice, Kansas City, Mo., for appellee; Daniel E. Wherry, U. S. Atty., Omaha, Neb., on brief.

Before MATTHES, Senior Circuit Judge, and STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Max Abramson, Frank Bonfiglio, and Paul Cappellano, Jr. were convicted of conducting an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2. Their only substantial arguments on appeal relate to the admission of the fruits of a wiretap investigation conducted between November 10 and November 24, 1973, in Omaha, Nebraska.

The wiretap was authorized, after government application under 18 U.S.C. § 2518, by Senior United States District Judge Robert Van Pelt. ¹ The government's application was supported by a twenty-seven page affidavit of FBI Agent Edward O'Brien, in which he averred that agents were examining a gambling business conducted principally by John Salanitro. Appellant Cappellano was named in the application as a person committing the offense whose conversations were to be intercepted, as required by 18 U.S.C. § 2518(1)(b)(iv). Appellants Abramson and Bonfiglio were not so named. The target facilities were two telephones in Omaha subscribed to by one Sol Epstein. The application contained numerous assertions tending to establish probable cause to believe that the phones would be used in an illegal gambling business, including Agent O'Brien's account of conversations with five confidential informants.

In 1970, a wiretap had been authorized on a different Omaha telephone, located at the Rocket Recreation Center. Appellant Abramson (but not Bonfiglio and Cappellano) was named as a person to be intercepted; his conversations were in fact intercepted. The fruits of this wiretap were later suppressed, in criminal proceedings, because the application was not authorized by the Attorney General or a designated Assistant Attorney General as required by 18 U.S.C. § 2516(1). United States v. Abramson, 501 F.2d 397 (8th Cir. 1974). ² The suppression in the previous case was on appeal to this Court when the instant application was made to Judge Van Pelt. The investigating agents disclosed the existence of the earlier tap to Judge Van Pelt, but did not inform him that the fruits of the tap had been suppressed.

In the present proceedings, appellants moved to suppress the fruits of the 1973 tap. The District Court, ³ in a carefully considered memorandum opinion, denied the motion. The case was then submitted to the District Court on stipulated facts and exhibits. The Court found appellants guilty. ⁴

On appeal, appellants Bonfiglio and Cappellano challenge the use of evidence obtained by means of the 1973 tap because (1) the District Court refused disclosure of the identity of one of the confidential informants relied on in the wiretap application; (2) the government failed to inform the Court that fruits of the previous tap had been suppressed; (3) the application and order did not show the unavailability of other investigative techniques, as required by 18 U.S.C. § 2518(1)(c) and (3)(c); and (4) the 1973 tap was the product of the tainted 1970 tap and should have been suppressed.

Appellant Abramson contends (1) that reversal is required for failure to name him in the application and order; (2) that the government failed to establish that it had attempted alternative means; (3) that failure to advise the judge hearing the 1973 application of the suppression of the 1970 tap requires reversal; (4) that the evidence was insufficient to sustain his conviction; and (5) that 18 U.S.C. § 1955 is unconstitutional.

We reject all contentions made in these appeals and affirm the judgments of conviction.

I.

In addition to information based on personal knowledge, surveillance, and other investigative activity by Agent O'Brien and other agents, O'Brien's affidavit contained a recitation of relevant information gleaned from five confidential informants. Confidential informant # 1 had told O'Brien that he had been personally acquainted with John Salanitro, Wayne Womochil, Paul Cappellano, Sr., and Paul Cappellano, Jr. for over five years; that he had personally placed bets with Salanitro and Womochil; that through continuing association with these men he had determined that Salanitro was operating one of the largest bookmaking operations in Omaha, Nebraska, with a weekly volume in sports bets during the football season in excess of $250,000; and that Salanitro employed many "agents" and "runners" to handle the accepting of bets for him. The informant also reported that Salanitro was extremely security conscious and frequently moved his bookmaking operations within the Omaha area to avoid detection; that Salanitro changed the location where he could be reached by telephone every few months, and that for approximately two months prior to October 5, 1973, bets were placed with Salanitro at telephone number 402-345-7277; and that since approximately October 5, 1973, Salanitro's agents and a small select group of heavy bettors had contacted him personally at either telephone number 402-551-0854 or 402-551-1333 to place bets. ⁵

According to O'Brien's affidavit, four other confidential informants supplied information substantially corroborating that of confidential informant # 1, as well as supplying other factual information with respect to the ongoing bookmaking operation.

At a pretrial hearing on the motion to suppress, defendants offered the testimony of Sam Biase, who had been described by confidential informant # 1 as an associate of John Salanitro. Biase categorically denied making a number of the statements about the bookkeeping operation which were attributed to him by confidential informant # 1. ⁶

Appellants Bonfiglio and Cappellano, Jr. contend that the District Court erred in denying their motion to disclose the identity of confidential informant # 1. We reject this contention.

O'Brien's affidavit states that he had known confidential informant # 1 for a period of five years during which the informant's information had proved to be reliable, and, in one instance, had resulted in an arrest and the recovery of a substantial amount of stolen property. The basis and source of the information attributed to the informant is carefully set forth and is corroborated in many respects by information supplied by other confidential informants and by the personal knowledge of O'Brien and other agents.

Where the existence of probable cause to make a warrantless search may hinge on the reliability or even the existence of one informant, we have required the District Court to conduct an in camera examination. United States v. Hurse, 453 F.2d 128 (8th Cir. 1972), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973). Where a warrant has issued, however, we look only to the information before the judicial officer to determine whether the warrant was issued on probable cause. O'Brien's affidavit, which we have examined, clearly meets this requirement. There is no necessity that the information supplied be in all respects accurate; the test is whether the sworn information before the court is of sufficient apparent reliability to warrant a neutral magistrate in finding that there is probable cause to believe that an offense has been or is being committed. ⁷ See Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States ex rel. DeRosa v. LaVallee, 406 F.2d 807, 808 (2d Cir.), cert. denied, 396 U.S. 854, 90 S.Ct. 115, 24 L.Ed.2d 103 (1969). Probable cause is not defeated even if the informant lied to the agent, as long as the agent accurately represented what was told him. United States v. Sultan, 463 F.2d 1066, 1070 (2d Cir. 1972); see United States v. Garofalo, 496 F.2d 510, 511 (8th Cir.), cert. denied,419 U.S. 860, 95 S.Ct. 109, 42 L.Ed.2d 94 (1974).

There is a basis for disclosure of an informant's identity in the unusual case in which he was a central figure and principal witness to the crime, compelling the disclosure of his identity on principles of fundamental fairness. See McCray v. Illinois, 386 U.S. 300, 305-06, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); Rugendorf v. United States, 376 U.S. 528, 534, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). It does not appear that confidential informant # 1 occupied such a critical role in the prosecution; to the contrary, the informant's information was duplicated by other information and his identity was not necessary to assure a fair opportunity to the appellants to prepare their defense. The District Court did not abuse its discretion in refusing to make the informant's name known under such circumstances. See McCray v. Illinois, supra, 386 U.S. at 311, 87 S.Ct. 1056.

II.

Appellants Bonfiglio and Cappellano, Jr. contend that the failure of the government to disclose to Judge Van Pelt that the 1970 wiretap had been suppressed by Judge Robinson warranted suppression because (1) such nondisclosure precluded the 1973 wiretap application from containing "a full and complete statement of facts concerning all previous applications known to the individual authorizing and making the application * * * and the action taken by the judge on each such application" as required by § 2518(1)(e); (2) the 1973 application was tainted as the fruit of the 1970 tap; and (3) the failure to disclose...