U.S. v. Bohn, s. 73-1271

• Decision Date: 28 April 1975
• Docket Number: 73-1182 and 73-1183,73-1299,Nos. 73-1271,s. 73-1271
• Citation: 508 F.2d 1145
• Parties: UNITED STATES of America, Appellee, v. David BOHN, Appellant. UNITED STATES of America, Appellee, v. Vernon J. KLEVE et al., George M. Patterson and Max Weisberg, Appellants. UNITED STATES of America, Appellee, v. Dick RANDAZZA and Joseph Sierbinski, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1145

508 F.2d 1145

UNITED STATES of America, Appellee, v. David BOHN, Appellant.

UNITED STATES of America, Appellee, v. Vernon J. KLEVE et al., George M. Patterson and Max

Weisberg, Appellants.

UNITED STATES of America, Appellee, v. Dick RANDAZZA and Joseph Sierbinski, Appellants.

Nos. 73-1271, 73-1299, 73-1182 and 73-1183.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 12, 1973.

Decided Jan. 3, 1975, Certiorari Denied April 28, 1975, See

95 S.Ct. 1676.

Ronald I. Meshbesher, Minneapolis, Minn., for appellant, Bohn.

Ronald L. Haskvitz, Minneapolis, Minn., for appellants, Kleve, Patterson, and Weisberg.

George R. Ramier, Minneapolis, Minn., for appellants, Sierbinski and Randazza.

Thorwald Anderson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.

HEANEY, Circuit Judge.

Vernon Kleve, George Patterson, Max Weisberg, Joseph Sierbinski, Dick Randazza and David Bohn ¹ were convicted by the court of conspiring and of engaging with five or more persons in conducting, financing, managing, supervising and directing an illegal ² gambling business from February 18, 1971 to June 18, 1971, in violation of 18 U.S.C. 1955 and 371.

Kleve and Patterson were sentenced to eighteen months on each count; Bohn was sentenced to one year on each count; and Weisberg, Sierbinski and Randazza were sentenced to six months on each count. The judge ordered that the sentences of each defendant be served concurrently.

Numerous common issues are raised by the defendants. Many of these issues have been answered adversely to the defendants in recent opinions of this Court. We have held in cases factually similar to this one that the government's failure to correctly identify the officer who in fact authorized application for wiretap orders pursuant to 18 U.S.C. 2518(1)(a) does not require suppression of evidence obtained through wiretapping, United States of America v. John et al., 508 F.2d 1134 (8th Cir. 1974); United States of America v. Schaefer et al., 510 F.2d 1307 (8th Cir. 1975); United States of America v. Thomas et al., 508 F.2d 1200 (8th Cir. 1975); United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), that it is not necessary to remand cases to the District Court to test whether Attorney General Mitchell in fact authorized the application for the wiretap order, ³ United States of America v. John et al., supra; United States v. Brick, supra, and that absent a clear showing of prejudice, a failure to comply with the notice and inventory requirements of 18 U.S.C. 2518(8)(d) does not require suppression of wiretap evidence, United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972). We follow those decisions here, and hold that similar contentions raised by the appellants here are without merit.

It is not necessary for us to consider whether it was proper to convict each defendant of conspiracy as well as the substantive offense, because all defendants were given concurrent sentences on each count and no showing has been made that adverse consequences will flow from the application of the concurrent sentences. ⁴

Appellants Kleve, Patterson and Weisberg challenge the constitutionality of 18 U.S.C. 1955. They contend that the term 'conduct,' which identifies those persons to be included wihtin the 'five or more' requirement of the statute, is ambiguous and violative of due process on the ground of vagueness. The Third and Ninth Circuits have upheld that constitutionality of 18 U.S.C. 1955 against this challenge. We agree with the results there reached. See United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); United States v. Riehl, 460 F.2d 454 (3rd Cir. 1972).

There is no merit to the contention of Randazza and Sierbinski that the trial court's special findings of fact were inadequate under Federal Rule of Criminal Procedure 23(c). While the special findings made at their request are sketchy, they are sufficiently complete to satisfy the minimum requirements of the rule. We can discern therefrom the legal and factual basis of the trial court's verdict. Moreover, we are convinced, notwithstanding their conclusory allegations to the contrary, that the appellants' ability to appeal all assignments of error was not impaired. See United States v. Livingston, 459 F.2d 797, 798 (3rd Cir. 1972) (en banc).

There is little merit to the contentions of Kleve, Patterson and Weisberg that the affidavits in support of a warrant to search Apartment 103, University Apartments, 1414 Third Street, South, Minneapolis, Minnesota, and in support of a warrant for their arrest, failed to state facts sufficient to establish a probable violation of 1955. The affidavits in support of the search and arrest warrants were signed on June 21, 1971, by George Anderson, a Special Agent of the Federal Bureau of Investigation. The affidavits were presented to the same magistrate. When read together, the affidavits clearly show probable cause for believing that Kleve, Patterson and Weisberg operated a 'book,' and that Evelyn Kleve worked with them in the operation of the book. The affidavits also set forth probable cause for believing that the 'Kleve book' received and exchanged 'line information' and accepted wagers and layoff bets from other bookmakers, including Randazza and Bohn. Anderson recited that he had obtained this information from personal observation, from court-approved telephonic interceptions, see United States v. Kleve, 465 F.2d 187 (8th Cir. 1972), and from informants who had furnished reliable information to him in the past on gambling matters and who had personally used the telephone to place bets with the Kleve book in the period immediately preceding the request for the warrants. The affidavits thus gave probable cause to believe that five or more persons were conducting a gambling operation in violation of 1955 in Apartment 103. It follows that the search and arrest warrants were clearly valid as to those who directly conducted the Kleve book, i.e., Kleve, Patterson and Weisberg.

There is more of a question with respect to Bohn. We believe that the affidavits, when read together, show probable cause for arresting him for violating 1955. They can reasonably be read as stating that Bohn was a bookmaker, who received 'line information' from the Kleve book and placed layoff bets with that book on May 12, 1971. For these reasons, Bohn would, under the theory adopted by the court below and hereinafter approved by this Court, be considered as one of five or more persons conducting and financing an illegal gambling business within the meaning of 1955.

There is more than sufficient evidence to sustain the convictions of Kleve, Patterson and Weisberg on the substantive count. They were admitted bookmakers who engaged in every activity common to that occupation. Their claim on appeal is that their bookmaking business was not so extensive as to be prohibited by 1955, since that statute covers only businesses involving five or more persons. Specifically, they challenge the government's theory that otherwise independent bookmakers who 'layoff' bets and exchange line information with their book can be counted in determining whether a gambling business involving five or more persons was being operated. They also claim that the government has failed to establish that the 'Kleve book' in fact laid off bets with other...