U.S. v. Anderson

• Decision Date: 30 September 1976
• Docket Number: No. 75-2082,75-2082
• Citation: 542 F.2d 428
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley D. ANDERSON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 428

542 F.2d 428

UNITED STATES of America, Plaintiff-Appellee, v. Stanley D. ANDERSON et al., Defendants-Appellants.

No. 75-2082.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 1976.

Decided Sept. 30, 1976.

Gerald M. Werksman, Chicago, Ill., for defendants-appellants.

William J. Mulligan, U. S. Atty., John A. Nelson, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.

Before CLARK, Associate Justice, ^* SPRECHER, Circuit Judge, and CAMPBELL, Senior District Judge. ^**

SPRECHER, Circuit Judge.

In this gambling case, the issues presented for review are whether the evidence derived from a wiretap should have been suppressed as to all defendants and whether the evidence was sufficient to convict defendants Thomas Gokey and Randy Crews.

I

Viewed in a light most favorable to the government, the undisputed facts tended to show that Stanley Anderson, defendant-appellant, owner of a sporting goods store in Lake Geneva, Wisconsin, enjoyed betting on sporting events but could not do so because his bookmaker moved to Florida. On February 7, 1975, he called Thomas Gokey, defendant-appellant, who lived in Woodstock, Illinois and asked if he could put him in touch with a bookmaker. Gokey recommended James Traub, defendant-appellant, a resident of Elgin, Illinois. Gokey then arranged and attended a meeting between Anderson and Traub on February 10, 1975 at Anderson's store. The next day, Anderson began betting with Traub. Randy Crews, defendant-appellant, a friend of Anderson, who shared his interest in betting on sporting events, lived in Lake Geneva, Wisconsin. Anderson kept Crews informed of his relationship with Traub and relayed Crews' bets to Traub.

On March 6, 1975, Anderson, Traub, Gokey and Crews were indicted on several counts relating to gambling and later convicted by a jury of conspiracy to violate 18 U.S.C. § 1084 and for violation of 18 U.S.C. § 1952. The jury also found Anderson, Crews and Traub guilty of some additional counts. All counts referred to aiding and abetting, 18 U.S.C. § 2. Defendants now appeal these convictions.

II

During the course of the investigation and prosecution of this case, the government made extensive use of information gathered by the use of wiretaps. Defendants contend that this evidence should have been suppressed. Specifically, defendants argue that the application for the wiretap and supporting affidavits therein failed to comply with the exhaustion requirements of 18 U.S.C. § 2518(1)(c) and that the same affidavits contained intentionally false material statements. We reject defendants' contention.

Title 18, U.S.C., Section 2518(1)(c) requires that:

(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:

(c) 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.

We shall consider § 2518(1)(c) in light of the discussion in S.Rep.No.1097, 90th Cong., 2d Sess. 101 (1968); 1968 U.S.Code Cong. & Admin.News 2112, 2190:

Subparagraph (c) requires a full and complete statement as to whether or not normal investigative procedures have been tried and have failed or why these are unlikely to succeed if tried, or to be too dangerous. This requirement is patterned after traditional search warrant practice and present English procedure in the issuance of warrants to wiretap by the Home Secretary. (Citation omitted.) The judgment would involve a consideration of all the facts and circumstances. Normal investigative procedure would include, for example, standard visual or aural surveillance techniques by law enforcement officers, general questioning or interrogation under an immunity grant, use of regular search warrants, and the infiltration of conspiratorial groups by undercover agents or informants. Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. (Citations omitted.) What the provision envisions is that the showing be tested in a practical and commonsense fashion. (Emphasis added.)

Numerous courts have applied the test suggested by Congress that requiring the exhaustion of "normal investigative procedures" must be reviewed in a "practical and commonsense fashion." In re Dunn, 507 F.2d 195, 197 (1st Cir. 1974); United States v. James, 161 U.S.App.D.C. 88, 494 F.2d 1007, 1015, cert. denied, 419 U.S. 1020, 95 S.Ct. 495 (1974); United States v. Steinberg, 525 F.2d 1126 (2d Cir. 1975). The court in United States v. Whitaker, 343 F.Supp. 358, 362-63 (E.D.Pa.1972), considering this provision said:

It is immediately apparent that this provision does not even require that any other investigative procedure be tried first before an order is issued for the interception of wire communications. It is not required that a wiretap be used as a last resort, but only that the success of other methods of investigation appear unlikely.

See United States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975).

Additionally, we recognize that "the government's burden of establishing its compliance with (subsection 2518(1)(c)) is not great," United States v. Askins, 351 F.Supp. 408, 414 (D.Md.1972), United States v. Whitaker, supra at 363. Thus, Judge Garth in United States v. Armocida, 515 F.2d 29, 38 (3d Cir. 1975), concluded:

To support a finding that normal investigative procedures are unlikely to be successful, we interpret the congressional directions as only requiring that there exist a factual predicate in the affidavit.

With these principles in mind, we now turn to the application and supporting affidavit upon which the wiretap was granted. ¹ The affidavit submitted by FBI Agent Speidell stated that his investigative experiences, as well as other agents' investigative experiences, indicated that normal investigative procedures would be ineffective. The affidavit showed that: (1) the informants known to the FBI would not "testify in any legal proceeding to the information they have furnished, for to do so would place their lives and the lives of their families in jeopardy"; (2) that the nature of a bookmaking operation requires an unavoidable dependence on telephone facilities; (3) toll records could not be relied on to show the contents of calls nor the parties thereto; (4) identification of places called by Anderson did not reveal identity of the recipient or the nature of the call; (5) Anderson's notations of bets were not understandable; and (6) Anderson's co-employee at the Sports Shop could only provide his interpretation of Anderson's gambling activities.

In sum, the affidavit informed the issuing judge of how far the investigation had proceeded and that the only reasonable way to develop necessary evidence of a federal violation was to intercept communications from Anderson's telephone. This information sufficiently complied with the exhaustion requirement of § 2518(1)(c). The affidavit clearly established that other investigative techniques which had been utilized (informer's reports, interviews with individuals, surveillance, toll records and their follow-up) failed to produce sufficient evidence of gambling offenses. ²

Finally, we agree with the court in United States v. Bobo, 477 F.2d 974, 982 (4th Cir. 1973), which noted that:

If the Crime Control Act could be validly utilized in any investigation, it would seem to be one involving gambling operations using telephone facilities almost exclusively as a means for communications.

Defendants also challenge the affidavit contending that it contained intentionally false allegations. Paragraph 16 of Agent Speidell's affidavit (see footnote 1) alleged that the two informants would not testify under any circumstances for fear of placing their lives and the lives of their families in jeopardy. However, at the defendants' request source number two Thomas P. Nelson a police lieutenant in Lake Geneva, testified at trial and made statements which seemed to directly conflict with the affidavit. When questioned on direct examination about his conversation with Agent Speidell in regard to testifying at trial, Mr. Nelson stated:

Q. (By Mr. Werksman) Now, did you ever discuss with Agent Speidell testifying against Stanley Anderson?

A. (Mr. Nelson) Yes.

Q. Did you ever tell Agent Speidell that you would not under any circumstances testify in any legal proceeding regarding Stanley Anderson because to do so would place your life and the life of your family in jeopardy?

A. I don't know if those particular words were used; but, yes, I did, and I did not want to testify.

Q. Did you tell Agent Speidell that you were afraid of Stanley Anderson?

A. No, I was no.

Q. Did you tell Agent Speidell that you feared for your life or the lives of your children and wife if you testified against Stanley Anderson?

A. No.

Q. Did you tell Agent Speidell that if you were subpoenaed you would do so?

A. Yes.

Q. All right.

Mr. Werksman: May I have just a moment, Judge?

(Pause)

Q. Now, when you told Agent Speidell it might be what I characterize as uncomfortable to testify against Mr. Anderson, that was because you were his dear and personal friend; isn't that right?

A. Yes.

Q. And had nothing to do with fear of your life, did it?

A. No.

Q. As a matter of fact, you still are a friend of Mr. Anderson's aren't you?

A. I would hope so.

Q. And that friendship runs so deep that on the evening that Mr. Anderson was arrested in this very case you sat in his living room and comforted his wife till 5:00 a. m. in the morning, isn't that right?

A. That's correct.

Tr. 494-96. During cross-examination, Mr. Nelson's testimony remained unchanged. However, when Judge Gordon questioned him the...