U.S. v. Alfonso

Decision Date19 May 1977
Docket NumberNo. 75-3564,75-3564
Citation552 F.2d 605
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alfredo Fernandez "Chino" "Al" ALFONSO, Steve Guggino, Frank Fraterrigo Vega, Louis Henry "Dr.", "Bacardi" Figueredo, Sr., Sam Vaglica and Sam Castellano, Jr., and Henry "Mr. Garcia", "the Man" Trafficante, Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Bennie Lazzara, Jr., Anthony F. Gonzalez, Tampa. Fla., for Alfonso.

Thomas J. Hanlon, III, Tampa, Fla. (Court appointed), for Guggino.

Virgil M. Wheeler, Jr., New Orleans, La., Henry Gonzalez, Tampa, Fla., for Trafficante.

Ralph W. Rinehart, Tampa, Fla. (Court appointed), for Vega.

Everett Q. Jones, Tampa, Fla. (Court appointed), for Figueredo.

John S. Matthews, Tampa, Fla., for Vaglica and Castellano.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert J. Erickson, Vincent R. Alto, Sp. Atty., Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before BROWN, Chief Judge, AINSWORTH, Circuit Judge, and JAMESON *, District Judge.

JAMESON, District Judge:

The seven appellants were convicted, following a jury trial, of conspiracy (Count I) and the operation of an illegal gambling business (Count II), in violation of 18 U.S.C. §§ 371 and 1955. 1 Upon consideration of the numerous alleged errors urged by the appellants, we find no reversible error and affirm.

Facts

On September 30, 1971, Assistant United States Attorney Dempsey presented to Judge Joseph Lieb of the United States District Court for the Middle District of Florida an application for electronic surveillance of three telephones suspected to be involved in illegal gambling operations headquartered at 801 East Jean Street in Tampa, Florida. The application was based on information supplied by four confidential informants who were bettors or observers of the illegal gambling operation. Based on the information contained in the application and supporting affidavit, Judge Lieb authorized electronic interception of all gambling related conversations of "Steve Guggino, . . . Frank Vega, . . . and others as yet unknown" conducted over the three target telephones.

During the 15 day operative period of the order, 2 communications intercepted over the three telephones revealed the existence of a sports betting operation dealing primarily with football and baseball wagering. The Government's case, based on the intercepted telephone conversations and other evidence presented at the trial, established that Trafficante occupied a supervisory position in the gambling operation and served as a source for "line" information (odds). Below Trafficante in the hierarchy, Guggino and Vega managed the gambling enterprise and operated the Jean Street clearing house as partners. While Guggino and Vega would on occasion accept wagers from individual bettors, they generally disseminated line information to, and accepted bets from, a network of "writers", 3 acted as intermediaries between Trafficante and the writers, and coordinated "lay-off" betting. 4 Vaglica, Castellano, and Alfonso were writers, accepting bets from individual bettors and channeling them to Guggino and Vega. Figueredo was an independent bookmaker who acted as a lay-off bettor for the Trafficante operation and exchanged line information with Guggino and Vega.

The Government presented its case primarily by playing tape recordings of the intercepted conversations, identifying the voices thereon, and then having an expert explain the significance of the conversation in the context of gambling. Some of the tapes, which contained conversations conducted in foreign languages, were translated into English by an interpreter. Transcripts were made of the translations which were read at trial following the playing of the tapes. Also produced as witnesses were individuals who had placed bets with several of the appellants.

At the conclusion of the eighteen day trial, the jury convicted all appellants on both counts. Appellants were sentenced to prison terms of varying duration.

Issues on Appeal

The issues raised by the various appellants may be summarized as follows:

(1) Did the Government comply with the provisions of Title III of the Omnibus Crime Control and Streets Act of 1968, 18 U.S.C. § 2510, et seq?

(2) Is the Florida anti-wagering statute unconstitutionally vague?

(3) Were appellants entitled to separate trials?

(4) Was the admission of John Ambler's identification testimony of Trafficante's voice proper in all respects?

(5) Did the court properly instruct the jury in its main and supplemental charges?

(6) Were the court's various evidentiary and procedural rulings correct?

(7) Did the court err in having various portions of the record reread to the jury?

(8) Was the evidence sufficient to support the convictions?

Title III Compliance

Requirements of 18 U.S.C. § 2518(1)(c)

18 U.S.C. § 2518(1)(c) requires that an application for an order authorizing the interception of wire or oral communications must include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous . . .."

Prior to trial, Trafficante moved to suppress evidence seized pursuant to the intercept application and order alleging, among other violations, that "(t)he application did not contain a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they were unlikely to succeed if tried". Trafficante contends that denial of his motion was error, citing United States v. Kalustian, 529 F.2d 585 (9 Cir. 1976). The Ninth Circuit there found an affidavit insufficient which recited an F.B.I. agent's conclusion that because of difficulties in securing evidence in previous gambling cases, interception of the telephone communications of a suspected gambling organization was the "only available method of investigation" likely to secure sufficient evidence to obtain a conviction. Because alternative investigative procedures had not been tried and because the Government had failed to show why investigative problems in the case were any different "in nature or degree from any other gambling case", the court held that the requirements of § 2518(1)(c) had not been fulfilled.

In reviewing the sufficiency of the affidavit here, it must be noted that the purpose of section 2518(1)(c) "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques". United States v. Pacheco, 489 F.2d 554, 565 (5 Cir. 1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975). Furthermore, the statute contemplates that " the showing be tested in a practical and commonsense fashion". S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2190.

Viewed in light of these principles, we conclude that the affidavit filed by Special F.B.I. Agent Kinne in conjunction with the intercept application satisfied the requirements of § 2518(1)(c). Both the application and the affidavit stated that normal investigative techniques were unavailing. The affidavit disclosed an active investigation of the gambling operation spanning a period of four months, during which F.B.I. agents had conducted physical surveillance of the Jean Street clearing house. In spite of this investigation, there were no witnesses "who could be relied upon to testify", and the informants had refused to testify. Agent Kinne, who had "investigated matters relating to organized crime" for over four years and was familiar with gambling operations, further averred that execution of a search warrant was unlikely to implicate the "major controllers" of the gambling operation. Due to the "clandestine" nature of the operation, only wiretapping offered a " reasonable likelihood" of securing evidence necessary to prove the gambling violations and to apprehend the top figures of the organization. 5 Viewed in a commonsense manner, these allegations were sufficient to establish that traditional investigative techniques had been tried and failed, and were not reasonably likely to succeed if tried.

The decision in Kalustian does not persuade us to reach a contrary conclusion. Unlike the affidavit in that case, the affidavit here established that conventional investigative techniques had been tried and were unsuccessful. The affidavit did not, as in Kalustian, rely on mere conclusions of the affiant based only on the affiant's "knowledge and experience" in investigating other gambling cases. Rather, this affidavit recited specific instances in the investigation of this case where normal techniques had been unfruitful. Kalustian is distinguishable.

Moreover, subsequent to Kalustian, the Ninth Circuit has considered the sufficiency of affidavits to support applications for wiretap interception in a number of cases, 6 most recently in United States v. Spagnuolo, decided March 4, 1977, 549 F.2d 705. In an exhaustive and well considered opinion citing decisions of the Ninth and other circuits subsequent to Kalustian, the court said in part:

"These decisions permit us to make the following observations. To show that 'other investigative procedures have tried and failed' the affidavit must reveal that normal investigative techniques have been employed in a good faith effort to determine the identity of those violating the law and to assemble sufficient evidence to justify their prosecution and that these efforts have failed to achieve their ends. The good faith effort need not have exhausted all possible uses of ordinary techniques. ...

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