U.S. v. Kalustian

• Citation: 529 F.2d 585
• Decision Date: 04 August 1975
• Docket Number: 74--3305,74--3315,Nos. 74--3314,74--3264 and 74--3265,s. 74--3314
• Parties: UNITED STATES of America, Appellee, v. Kale KALUSTIAN, Appellant. UNITED STATES of America, Appellee, v. Patrick Dale POND, Appellant. UNITED STATES of America, Appellee, v. Stanley Norman GRAY, Appellant. UNITED STATES of America, Appellee, v. David SELDITCH, Appellant. UNITED STATES of America, Appellee, v. Otto Vincent MARINO, Appellant. UNITED STATES of America, Appellee, v. Leopold OBEZO, Appellant. UNITED STATES of America, Appellee, v. Mable Linda CUCCIA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 585

529 F.2d 585

UNITED STATES of America, Appellee, v. Kale KALUSTIAN, Appellant.

UNITED STATES of America, Appellee, v. Patrick Dale POND, Appellant.

UNITED STATES of America, Appellee, v. Stanley Norman GRAY, Appellant.

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

UNITED STATES of America, Appellee, v. Otto Vincent MARINO, Appellant.

UNITED STATES of America, Appellee, v. Leopold OBEZO, Appellant.

UNITED STATES of America, Appellee, v. Mable Linda CUCCIA, Appellant.

Nos. 74--3314, 74--3315, 74--3305, 74--3264 and 74--3265.

United States Court of Appeals,

Ninth Circuit.

Aug. 4, 1975.

As Amended Dec. 11, 1975.

Rehearing and Rehearing En Banc

Denied March 25, 1976.

Arthur Lewis (argued), Los Angeles, Cal., for appellant in No. 74--3314.

James A. Twitty, Sp. Atty. (argued), Dept. of Justice, Los Angeles, Cal., for appellee in No. 74--3314.

Edward I. Gritz, Los Angeles, Cal., for appellant in No. 74--3315.

James A. Twitty, Sp. Atty., Los Angeles, Cal., for appellee in No. 74--3315.

David S. Sperber, Los Angeles, Cal., for appellant in No. 74--3305.

William D. Keller, U.S. Atty., Los Angeles, Cal., for appellee in No. 74--3305.

Lee A. Freeman (argued), Los Angeles, Cal., for appellant in No. 74--3264.

Kevin O'Malley (argued), U.S. Dept. of Justice, Los Angeles, Cal., for appellee in No. 74--3264.

James Edward Green (argued), Van Nuys, Cal., for appellant in No. 74--3265.

Kevin F. O'Malley (argued), U.S. Dept. of Justice, Los Angeles, Cal., for appellee in No. 74--3265.

OPINION

Before ELY and HUFSTEDLER, Circuit Judges, and SKOPIL, ^* District Judge.

SKOPIL, District Judge:

Appellants seek review of their convictions for illegal gambling activities. 18 U.S.C. §§ 1955 and 2. They claim their motions for suppression of evidence were improperly denied. They also argue that there was insufficient evidence to sustain the verdicts.

According to the Government, confidential informants 'advised' federal agents in 1971 that defendant Kalustian was operating a bookmaking operation from the Topper Club (Club) in Rosemead, California. Defendants Pond and Marino, among others, were identified as agents for the operation. On December 20, 1971, the Department of Justice sought court orders authorizing wire taps on three telephones at the Club, one at defendant Stempke's residence, and one at the residence of Patricia Jackson. The application was authorized by Attorney General John Mitchell and granted on December 20, 1971. 18 U.S.C. § 2518(1)(c) provides that such applications shall 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.'

The Government attempted to fulfill that requirement through affidavits supplied by Special FBI Agent James Brent (Affidavits), which essentially contained the following representations:

'The informants named herein have all said that they will not testify to information they have provided, even if granted immunity. * * *

'Experience has further established that even though telephone toll records are available which indicate a person is engaged in illicit gambling, the records, themselves are not sufficient to prove the gambling activities. Standard investigative techniques have not succeeded in providing evidence to sustain prosecution in this case and would only succeed to a limited degree in establishing that Kale Kalustian, also known as Kelly, Patrick Dale Pond, Otto Vincent Marino, Patricia Jackson, Bill Stempke, and others as yet unknown, are involved in gambling activities over the telephone subscribed to in the name of the Topper Club. * * *

'Furthermore, such investigative techniques as physical surveillance and the records obtainable on Kale Kalustian, also known as Kelly, Patrick Dale Pond, Otto Vincent Marino, Patricia Jackson, Bill Stempke, and others as yet unknown, contain little probability of success in securing presentable evidence. Based upon my knowledge and experience as a Special Agent of the Federal Bureau of Investigation in the investigation of gambling cases and my association with other Special Agents who have conducted investigation of gambling activities, normal investigative procedures appear to be unlikely to succeed in establishing that the above individuals are involved in gambling activities over the aforementioned telephones in violation of Federal laws. My experience and the experience of other Agents has shown that gambling raids and searches of gamblers and gambling establishments have not, in the past, resulted in the gathering of physical or other evidence to prove all elements of the offense. I have found through my experience and the experience of other Special Agents, who have worked on gambling cases, that gamblers frequently do not keep permanent records. If such records have been maintained, gamblers, immediately prior to or during a physical search, sometimes destroy the records. Additionally, records that have been seized in past gambling cases have generally not been sufficient to establish elements of Federal offenses because such records are difficult to interpret, and many times are of little or no significance without further knowledge of the gamblers' activities. Therefore, the interception of these telephone communications is the only available method of investigation which has a reasonable likelihood of securing the evidence necessary to prove violation of these statutes. * * *

'Wherefore, because of the existence of facts and underlying circumstances of the continuing investigation listed above in paragraphs 4 through 32b, I submit that the probable cause as submitted in paragraphs 3a, 3b, and 3d exists; that the extensive normal investigative procedures tried, as set forth in paragraphs 4 through 32b, have failed to gather evidence necessary to sustain prosecution for violation of the offenses enumerated in paragraph 3a, and reasonably appear unlikely to succeed; * * $

Appellants contend that their motions to suppress the wiretap evidence should have been granted because the Government's application did not satisfy 18 U.S.C. § 2518(1)(c). They argue that the supporting affidavits contain bald conclusions rather than facts from which the Attorney General and the judge could determine whether 'normal investigative procedures' were viable alternatives to electronic surveillance. § 2518(3)(c).

Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Act), 18 U.S.C. § 2510 et seq., absolutely prohibits electronic surveillance by the federal government except under carefully defined circumstances and after securing judicial authority. Procedural steps provided in the Act require strict adherence. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). The importance of these procedures reflects the dual purpose of Title III, which is to

'(1) (protect) the privacy of wire and oral communications, and (2) (delineate) on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.' S. Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong. & Admin.News, pp. 2112, 2153 (hereinafter cited as 'History').

Title III was written to create limited authority for electronic surveillance in the investigation of specified crimes thought to lie within the province of organized criminal activity. History, pp. 2153--2163. It was designed to conform to prevailing constitutional standards. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The restraint with which such authority was created reflects the legitimate fears with which a free society entertains the use of electronic surveillance. As stated in Berger, supra, 'Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices'. 388 U.S. at 63, 87 S.Ct. at 1885.

Section 2518(1)(c) of the Act

'is patterned after traditional search warrant practices and present English procedure in the issuance of warrants to wiretap by the Home Secretary. (citation omitted) The judgment (of the judge or magistrate) would involve a consideration of all the facts and circumstances. * * * Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. See Giancana v. United States, 352 F.2d 921 (7th Cir. 1965), cert. denied, 382 U.S. 959, 86 S.Ct. 437, 15 L.Ed.2d 362; New York v. Saperstein, 2 N.Y.2d 210, 159 N.Y.S.2d 160, 140 N.E.2d 252 (1957). What the provision envisions is that the showing be...