U.S. v. Campagnuolo
| Decision Date | 06 April 1979 |
| Docket Number | No. 78-1352,78-1352 |
| Citation | 592 F.2d 852 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Fred "Freddy Campo" CAMPAGNUOLO, John "Jackie Campo" Campagnuolo, and Michael "Mike Douglas" Gougules, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack V. Eskenazi, U. S. Atty., Miami, Fla., Atlee W. Wampler, III, Sp. Atty., U. S. Dept. of Justice, Miami, Fla., Marshall T. Golding, c/o T. George Gilinsky, Jerome M. Feit, Atty., Washington, D. C., for plaintiff-appellant.
James Jay Hogan, Joseph Mincberg, Miami, Fla. for Fred Campagnuolo.
Robert Foley, Philip G. Butler, Jr., West Palm Beach, Fla., for John Campagnuolo.
Randolph & Randolph, Robert J. Randolph, Stuart, Fla., for Michael Gougules.
Appeal from the United States District Court for the Southern District of Florida.
Before WISDOM, GOLDBERG, and VANCE, Circuit Judges.
In this criminal prosecution, the district judge suppressed certain evidence and then dismissed the indictment because he concluded that the government had violated the federal wiretap statutes, 18 U.S.C. §§ 2510-2520, and had failed to comply with a standing discovery order. We agree with the government that the district judge abused his discretion when he dismissed the indictment and when he suppressed some of the challenged evidence. Accordingly, we reverse and remand for trial.
Agents of the Federal Bureau of Investigation suspected that Fred Campagnuolo and some of his associates were conducting a gambling enterprise. On December 29, 1973, FBI agents secured a warrant to search Campagnuolo's apartment. The agents parked their vehicle on the street outside his apartment building. They observed that Campagnuolo was standing on the balcony of his apartment and appeared to be watching them. He reentered his apartment when the agents started their vehicle and circled the block. The agents then reparked their vehicle and went to the apartment. They knocked on the door, announced their identity, and said that they had a search warrant. After a delay of about 50 seconds, during which the agents repeated their announcement and threatened to knock the door down if it was not opened, Campagnuolo opened the door.
The agents entered the apartment and conducted a search. An agent noticed that one of the windows of the apartment was open and that the screen had been removed. He looked out the window and observed an envelope on the ground below. He retrieved the envelope and showed it to Campagnuolo, who denied any knowledge of it. The agents examined the envelope and found that it contained sheets of gambling information. The agents also discovered two telephones in Campagnuolo's apartment, both of which had been disconnected. An agent reconnected one of the telephones and, in a period of one hour and twenty minutes, received forty-two calls. Most of the callers either placed wagers or requested gambling information, which the agent attempted to provide. When asked about his identity, the agent gave the callers his true name; he did not inform them of his true occupation.
In 1975, a federal grand jury began investigating Campagnuolo and his associates. Carl Samuel "Kelley" Aurillio appeared before the grand jury under a grant of immunity. Aurillio testified that he and Campagnuolo had been partners in a bookmaking operation during the 1973 football season. Aurillio made other statements, however, that tended to exculpate Campagnuolo and some of his associates. Aurillio stated that the partners obtained their "line" for each game from newspapers rather than by interstate telephone calls. He further testified that John Campagnuolo, a defendant-appellee in this case, was merely a bettor and not a participant in the bookmaking operation. In addition, Aurillio testified that, to the best of his personal knowledge, Michael Gougules, also a defendant-appellee in this case, had not participated in the bookmaking operation.
In June 1975, the grand jury handed down a three-count indictment against Fred Campagnuolo, John Campagnuolo, and Gougules. Count I charged them with conspiracy to violate 18 U.S.C. § 1952 by using interstate telephone communications to carry on a gambling enterprise in violation of state law. Count II alleged that they violated § 1952 by using the interstate telephone facilities for gambling purposes. Count III charged them with using the interstate telephone facilities to transmit information assisting in the placing of wagers on sporting events in violation of 18 U.S.C. § 1084. In December 1975, the district court dismissed the indictment on the ground that the government had improperly disclosed wiretap evidence to the grand jury. This Court reversed and remanded. United States v. Campagnuolo, 5 Cir. 1977, 556 F.2d 1209.
In January 1978, on the day before trial was scheduled to begin, the government turned over to defense counsel certain evidentiary material: Fred Campagnuolo's statement denying knowledge of the gambling sheets contained in the envelope found outside his apartment during the 1973 search; a report of that search, including descriptions of the forty-two telephone calls received by the FBI agent who reconnected Campagnuolo's telephone; and a transcript of Aurillio's grand jury testimony.
The defense counsel moved to suppress Fred Campagnuolo's statement because, under the district court's standing discovery order entered in July 1975, the government should have given the statement to defense counsel long before the eve of the trial. The defense counsel also moved to suppress the telephone calls received by the FBI agent, arguing that the agent's conduct violated the federal wiretap statutes, 18 U.S.C. §§ 2510-2520, and that in any event the prosecutor violated his duty to turn over the information obtained by the reconnection of the telephone in accordance with the standing discovery order. Finally, counsel moved for the dismissal of the indictment because of the government's failure to give the defense counsel Fred Campagnuolo's statement, the evidence obtained by reconnection of the telephone, and Aurillio's grand jury testimony in accordance with the standing discovery order. The district judge granted both motions to suppress evidence and the motion to dismiss the indictment, rejecting the government's arguments that it had complied with the discovery order and that the FBI agent's conduct in reconnecting the telephone did not violate 18 U.S.C. §§ 2510-2520. The district judge clearly intended the dismissal to be with prejudice.
On appeal, the government argues that its conduct did not violate the discovery order and that the reconnection of the telephone did not violate the federal wiretap statutes. In addition, the government asserts that, even if it did violate the discovery order, the district judge abused his discretion when he dismissed the indictment.
The standing discovery order issued by the trial judge in pertinent part is set forth in the margin. 1 This order is intended to promote the policies underlying the discovery provisions of Rule 16 of the Federal Rules of Criminal Procedure (See Appendix) and the Supreme Court's decision in Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, which bars the prosecutor from suppressing requested evidence in the government's possession that may be exculpatory to the defendant. 2
A. Fred Campagnuolo's Statement
Before the district judge, the government admitted that it had violated the standing discovery order when it failed to inform defense counsel of Fred Campagnuolo's statement denying knowledge of the envelope containing gambling slips. Furthermore, the government failed to argue that the discovery order did not encompass that statement. We reject the government's suggestion that this Court ignore these concessions. We are left, then, with the government's argument that the district judge should not have suppressed Fred Campagnuolo's statement because the government's noncompliance with the discovery order could not have prejudiced the appellees. This argument misconceives the district judge's broad discretion to administer sanctions for the violation of a valid discovery order. See United States v. Bockius, 5 Cir. 1977, 564 F.2d 1193, 1196; United States v. Valdes, 5 Cir. 1977, 545 F.2d 957, 961. We find no abuse of discretion where, as here, a district judge for prophylactic purposes suppresses evidence that, under a valid discovery order, the government should have disclosed earlier, even if the nondisclosure did not prejudice the defendants.
B. Aurillio's Grand Jury Testimony
The government asserts that the district judge erred when he found that the government violated a duty to make pretrial disclosure to the defendants of Aurillio's grand jury testimony. The government first contends that such pretrial disclosure is barred by the Jencks Act, 18 U.S.C. § 3500. The government next argues that the Supreme Court's interpretation of the due process clause in Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, does not require such pretrial disclosure in this case. Therefore, concludes the government, the standing discovery order was invalid to the extent that it allowed discovery beyond the limitations of the Jencks Act. We agree with the government's contentions.
The Jencks Act provides:
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the...
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