U.S. v. Diadone

• Decision Date: 01 September 1977
• Docket Number: 75-3222,Nos. 75-2991,s. 75-2991
• Citation: 558 F.2d 775
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony Paul DIADONE, John Eli Stone, Richard Carl Biggs, Reuben Goldstein, and John Denton Ritter, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. James William "Puny" WINNINGHAM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 775

558 F.2d 775

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Paul DIADONE, John Eli Stone, Richard Carl Biggs, Reuben Goldstein, and John Denton Ritter,

Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. James William "Puny" WINNINGHAM, Defendant-Appellant.

Nos. 75-2991, 75-3222.

United States Court of Appeals Fifth Circuit.

Sept. 1, 1977.

Rehearing and Rehearing En Banc Denied Oct. 14, 1977.

L. W. Westerlage (Court-Appointed), Dallas, Tex., for Diadone.

Lester L. May, Kenneth Herridge, Dallas, Tex., for Stone & Biggs.

Douglas G. Crosby, Stephen Stein, Las Vegas, Nev., for Goldstein.

Cecil Emerson, Robert T. Baskett, Dallas, Tex., for Ritter.

Frank D. McCown, U. S. Atty., Fort Worth, Tex., Judith A. Shepherd, Charles D. Cabaniss, Robert C. Prather, Asst. U. S. Attys., Dallas, Tex., for plaintiffs-appellees.

Warren E. Burnett, Richard J. Clarkson, Odessa, Tex., for Winningham.

Appeals from the United States District Court for the Northern District of Texas.

Before TUTTLE, THORNBERRY and TJOFLAT, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants, defendants below, stand convicted of (1) conducting an illegal gambling business in violation of 18 U.S.C. § 1955, and (2) using wire communications in interstate commerce to engage in the business of betting or wagering in violation of 18 U.S.C. § 1084. ¹ Much of the evidence was stipulated, and most of it emerged through wiretaps placed on defendant Stone's telephone and on two public pay telephones in defendant Stone's restaurant. The government claimed authority for the tap under an order issued by Judge Taylor of the Northern District of Texas. The defendants moved to suppress the evidence intercepted through these taps, as well as all evidence obtained by reason of the interceptions. The trial court denied the motion, and the case proceeded to trial and conviction.

Defendants raise a total of twelve issues on appeal. Most of these issues concern the admissibility of the evidence intercepted through the wiretaps. Some defendants raise additional claims unconnected to the wiretap order. The defendants' arguments on these issues do not merit reversal of the convictions. We affirm the district court as to all defendants.

I.

All of the defendants contend that the trial court erred in refusing to suppress the contents of intercepted oral communications because the order authorizing interception was not dated at the time it was signed by the district court. In essence, defendants urge that since the order authorizing the wiretapping was not dated when it was signed, the interception was authorized for a period of time unlimited by the order. This is impermissible under 18 U.S.C. § 2518(4)(e), and Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). After a hearing where Harold Jaquet, former Assistant United States Attorney in charge of investigation in this case, and FBI Special Agent Bryant testified that Judge Taylor signed the order authorizing the interception of wire communications on November 20, 1973, the order was amended nunc pro tunc pursuant to F.R.Crim.P. 36. Rule 36 allows the correction of "clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission."

Defendants rely primarily upon a Sixth Circuit case, United States v. Lamonge, 458 F.2d 197 (6 Cir. 1972), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972). Lamonge held that the absence of a date on a wiretap order makes the duration of the order unlimited, thereby invalidating the order. The addition of a date nunc pro tunc did not save the order it was facially invalid and the evidence obtained under it should have been suppressed.

The instant case differs from Lamonge in at least one important respect. The order in Lamonge had no date stamped on it, while the order in this case was received by the district court clerk shortly after it was signed by Judge Taylor, and was stamp-dated by the clerk November 20, 1973.

In view of the fact that the order authorizing interception in this case was dated when it was received by the district court clerk on the same day that it was signed by Judge Taylor, we hold that the failure to date the order at the time it was signed by Judge Taylor was a clerical mistake that could be corrected under Rule 36. To the extent which this result departs from that reached by the Sixth Circuit in Lamonge, we decline to follow the Sixth Circuit's path.

II.

Defendants Stone, Biggs, and Goldstein contend that the trial court erred in denying the motion to suppress because the order authorizing the interception was based upon an insufficient application and affidavit. The controlling statute, 18 U.S.C. § 2518(1)(c), requires every application for a wiretap or interception order to contain, inter alia, "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." The claimed defect in this case is that the affidavit did not contain such a full and complete statement.

The purpose of the "full and complete statement" requirement, as expressed by cases decided by our Circuit, is to inform the issuing judge of the difficulties involved in the use of the conventional techniques, rather than to establish that every other imaginable mode of investigation would be unsuccessful. United States v. Pacheco, 489 F.2d 554 (5 Cir. 1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1558, 43 L.Ed.2d 774 (1975). The test for sufficiency of the statement of facts directs the court to take a common sense view of the statement. United States v. Robertson, 504 F.2d 289 (5 Cir. 1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1568, 43 L.Ed.2d 778 (1975).

Agent Bryant's thirteen page affidavit supporting the application sets forth the details of the gambling operation as related to various agents by six confidential informants. The affidavit asserted that conventional surveillance techniques had proven and were likely to be ineffective because most of the gambling activity transpired over the telephone. A search of defendants' residences would likely be ineffective, asserts affiant, because gambling operations frequently maintain only temporary records which often are in cypher. Furthermore, during raids to seize such records, gambling operators frequently destroy what records they have. Finally, affiant asserts that the government's informers will not testify at trial because of fear for their safety.

We have held a similar statement of facts sufficient to justify the grant of an interception order. See United States v. McCoy, 539 F.2d 1050 (5 Cir. 1976) (McCoy II ). In McCoy II, we stated:

(T)he possibility that wiretaps may almost always be approved in similar bookmaking cases does not make "formalities" of §§ 2518(1)(c) and (3)(c). The application must still contain the "full and complete statement". The decision whether to order a wiretap is then to be made by the district court exercising its discretion. See United States v. Smith, (9 Cir.) 519 F.2d (516) at 518. That court, in an effort to make the § 2518(3)(c) finding, "may require the applicant to furnish additional testimony or documentary evidence in support of the application". 18 U.S.C. § 2518(2). In the absence of additional evidence a wiretap order might well be denied. We do not, therefore, judicially abrogate §§ 2518(1)(c) and (3)(c) with respect to § 1955 investigations. We simply hold that the district court's discretion was exercised here upon sufficient factual representations.

539 F.2d at 1056.

The instant statement, when considered with the facts averred, likewise satisfies the relevant standards.

III.

Defendants Stone and Biggs argue that the trial court erred in refusing to suppress the intercepted communications because the application to Judge Taylor did not have proper authorization. 18 U.S.C. § 2516(1) permits application for an interception order only upon the authorization of the Attorney General or an Assistant Attorney General specially designated by the Attorney General. The authorization in this case was executed by Assistant Attorney General Henry Petersen. He issued the authorization under power delegated to him by Acting Attorney General Robert H. Bork. Bork, goes the defendants' argument, was not an Attorney General and therefore could not authorize the application and could not delegate the power to do so.

We have previously held that in such matters Acting Attorney General Bork stood in the shoes of the Attorney General and possessed the powers of the Attorney General. See United States v. McCoy, 539 F.2d 1050, 1054 (5 Cir. 1976) (McCoy II ); United States v. McCoy, 515 F.2d 962, 963 (5 Cir. 1975), cert. denied, 423 U.S. 1059, 96 S.Ct. 795, 46 L.Ed.2d 649 (1976) (McCoy I ). See also United States v. Pellicci, 504 F.2d 1106, 1107 (1 Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975): "There is no basis for concluding that one 'acting' as Attorney General has fewer than all the powers of that office." This asserted deficiency in the authorization does not doom the interception order.

IV.

Defendants Stone, Biggs, Winningham, and Goldstein contend that the interception of wire communications was not made in conformity with the order of authorization signed by Judge Taylor. As to the pay telephones in the restaurant, the order restricted monitoring to those times when Stone was in the restaurant and permitted interception of only those calls to which Stone was a party. Defendants argue that the wiretap evidence in question should have been suppressed because of approximately 92 violations of these aspects of Judge Taylor's order, and because Judge Taylor was not told of all the unauthorized interceptions during the court of the wiretaps.

In United States v. Doolittle, 507 F.2d 1368 (5 Cir. 1975), en...