U.S. v. Kim
| Decision Date | 27 February 1978 |
| Docket Number | Nos. 76-3705,76-3665,76-3704,77-2283 and 77-2320,77-1209,76-3664,s. 76-3705 |
| Citation | 577 F.2d 473 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Earl K. H. KIM, Sr., aka "The Old Man" and "E. K.", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ernest NAKAMURA, aka "Cincinnati", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph H. KAWAMOTO, aka "Lefty", Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sam KOBAYASHI, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Robert R. MARTINEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joseph BARROZO, Jr., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gordon M. Bronson (argued), Honolulu, Hawaii, Michael T. I. Kim (argued), of Kim & Kim, Honolulu, Hawaii, Thomas J. Bowers, III, John S. Edmunds, Ernest Y. Yamane, Honolulu, Hawaii, for defendants-appellants.
Michael L. Sterrett, Sp. Atty., San Francisco, Cal., Howard Chang, Honolulu, Hawaii, for plaintiff-appellee.
Appeals from the United States District Court for the District of Hawaii.
Before ELY and CHAMBERS, Circuit Judges, and LINDBERG, * District Judge.
This opinion involves seven appeals from the United States District Court for the District of Hawaii which have been consolidated for argument and disposition. Each appellant has been found guilty of illegal gambling or conspiracy or both resulting from either a jury trial or a court trial on stipulated facts. All issues raised in these appeals are resolved in favor of the Government. The judgments entered against the various appellants are affirmed.
On September 12, 1975, Department of Justice Attorney Sterrett applied to Judge King for an order authorizing the interception of wire communications. This application, its supporting documentation, and the resulting wiretap order were designated "DH-5". Exhibit A to the DH-5 application consisted of two documents also dated September 12, 1975. One was a copy of a memorandum signed by Attorney General Levi to Assistant Attorney General Thornburgh authorizing an application to a federal court for an order permitting the interception of communications over telephone number 947-7679. The other was a copy of a letter from Thornburgh's Deputy Chief in Washington D.C. to Kotoske, the attorney in charge of the San Francisco Strike Force informing Kotoske of the contents of the Attorney General's memorandum. Exhibit B to Sterrett's DH-5 application was a twenty-four page affidavit by F.B.I. Special Agent Tanaka which sought to establish why a wiretap was necessary in the illegal gambling investigation at hand. The bulk of Tanaka's affidavit consisted of detailed recitations of what various F.B.I. and Honolulu Police Department (hereafter H.P.D.) officers had told Tanaka concerning conversations they had with three confidential informants. According to the DH-5 affidavit, the informants had generally not relayed incriminating information to Tanaka. The affidavit also detailed corroborating information obtained through surveillances and investigations of telephone company records. On the same day, Judge King signed an order authorizing the requested wiretap for not longer than twenty days.
A similar application, denominated "DH-6" was again presented to Judge King on October 2, 1975. This time a wiretap on phone number 732-3588 as well as an extension of the DH-5 order was requested. Again, Sterrett's application was supported by a copy of the Attorney General's authorization, a copy of the letter informing the San Francisco Strike Force of the preliminary authorization to proceed, and a lengthy affidavit by Tanaka all of even date with the DH-6 application. Judge King signed the DH-6 order the morning of October 2, 1975.
By the second week of October, 1975, Judge Wong had signed and issued numerous search warrants which were executed shortly thereafter. In December, 1975, a federal grand jury issued two indictments. One dealt with an illegal bookmaking operation. The other concerned a sports pool, parley card gambling business.
Of the six appellants, three of them (Kim, Kawamoto, and Nakamura) were convicted by a jury after a trial with five other defendants of conspiracy and bookmaking. 18 U.S.C. §§ 2, 37, 1955 (1970). Pursuant to stipulated facts, two of the appellants (Martinez and Barrozo) were found guilty by the court of operating a sports pool, parley card business. 18 U.S.C. §§ 2, 1955 (1970). Only appellant Kobayashi was indicted for both bookmaking (No. 76-3664) and operating an illegal sports pool (No. 76-3665). The court found Kobayashi guilty of both substantive charges on the basis of stipulated facts.
At the time of trial, numerous telephone conversations 1 were admitted against Kim, Nakamura and Kawamoto. They, as well as Martinez and Barrozo, challenged the lower court's denial of motions to suppress the conversations on the ground that the DH-5 application did not include a "full and complete statement" of need as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(1)(c) (1970). 2 They maintain that the DH-5 affidavit consisted of general assertions and conclusions similar to those held insufficient in United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975). 3
Tanaka's DH-5 affidavit states that the investigation of the target gambling operations had begun four months prior to the Government's request before Judge King. During June, July, and August, 1975, H.P.D. personnel conducted extensive surveillances and gathered information on a number of suspects. Much of this information was obtained through numerous H.P.D. contacts with Confidential Informants Nos. 1 and 2. The H.P.D. then passed on to Tanaka the details of conversations in which incriminating information was disclosed by the informants. Also contained in Tanaka's affidavit was the substance of information on illegal gambling which had been provided to the F.B.I. by Confidential Informant No. 3. The modus operandi described by the various informants conformed to the pattern already revealed by the Government's surveillance efforts and searches through telephone company records. The DH-5 affidavit disclosed the existence of a sizeable gambling enterprise conducted through a central telephone location which, in an attempt to avoid detection, had been moved three times.
Tanaka's affidavit was sufficiently detailed to avoid the pitfalls noted in Kalustian. The Government in the instant case adequately complied with the requirement that other investigative procedures be tried and fail prior to asking for permission to intercept wire communications. As we have recently held,
(t)o show that "other investigative procedures have been tried and failed" the affidavit must reveal that normal investigative techniques have been employed in a good faith effort to determine the identity of those violating the law and to assemble sufficient evidence to justify their prosecution and that these efforts have failed to achieve their ends. The good faith effort need not have exhausted all possible uses of ordinary techniques. What is required is a showing that in the particular investigation normal investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time. 4
The trial court committed no error in denying the appellants' attempt to suppress the recorded evidence derived from the wiretaps in these cases.
Appellant Kim alleges error in the lower court's denial of his motion requesting permission to review the entire transcript of the grand jury proceedings which resulted in his indictment on bookmaking charges. In support of this motion, Kim submitted the affidavits of Fong, Tominaga, and Komoto who all deny having made statements attributed to them by the DH-5 informants. 5 On this basis, Kim asserts that the court should have allowed him to acquire supporting evidence for his argument that the Government fabricated its informants by lifting the veil of grand jury secrecy.
Kim's position is without merit. Under Dennis v. United States,384 U.S. 855, 870-71, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), the standard of particularized need is narrowly applied to insure that only relevant grand jury testimony is made available to defense counsel. Dennis does not sanction across the board fishing expeditions by defense counsel who, under the Jencks Act, 18 U.S.C. § 3500 (1970), are entitled to the pretrial statements of Government witnesses at the time of trial. 6 As to Kim, the Government more than fulfilled its obligation by voluntarily furnishing prior statements, including grand jury testimony, of its anticipated witnesses well before the trial had even begun.
Next, appellant Kim alleges error in the trial court's denial of his motion to produce the informants mentioned in the DH-5 affidavit, and his motion for an in camera hearing to test the existence and reliability of those informants. Kim argues that, if he was not entitled to production of the informants as a matter or right, 7 then at least the court should have conducted an in camera hearing on whether the three DH-5 informants actually existed. The right to such a hearing, it is argued, arose by virtue of the appellant's submission of the three counter-affidavits noted above. 8
We disagree. Disclosure of the identity of informants is required only if such information is "relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Roviaro v. United States,353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957). The accused's burden of proving such need 9 is not...
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