U.S. v. Matya, 74-1947

Citation541 F.2d 741
Decision Date09 September 1976
Docket NumberNo. 74-1947,74-1947
PartiesUNITED STATES of America, Appellee, v. Clarence J. MATYA et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Oscar B. Goodman, Goodman & Snyder, Las Vegas, Nev., for appellants.

William E. Zleit, U. S. Dept. of Justice, Kansas City, Mo., for appellee; Daniel E. Wherry, U. S. Atty., D. Neb., Omaha, Neb., and Gary Cornwell, Sp. Atty., Dept. of Justice, Kansas City, Mo., on brief.

Before VAN OOSTERHOUT, Senior Circuit Judge, HENLEY, Circuit Judge, and DEVITT, Chief District Judge. *

VAN OOSTERHOUT, Senior Circuit Judge.

An indictment filed in the United States District Court for the District of Nebraska on February 21, 1973, charged fifteen individuals with engaging in an illegal gambling business in violation of 18 U.S.C. § 1955. 1 Beginning on September 4, 1974, and continuing through September 28, 1974, twelve 2 of the individuals named in that indictment were jointly tried to a jury, Judge Denney 3 presiding. Each of the twelve was convicted and sentenced. Each of the twelve appeals. 4

The contentions raised are as follows:

I. The contents of the communications intercepted during a certain wiretap should have been suppressed based on noncompliance with the "necessity" requirements of 18 U.S.C. § 2518(1)(c) and (3)(c).

II. The failure to mention the purported violation of a particular law of the State of Nebraska caused a fatal defect in the process used to obtain the wiretap order.

III. The Nebraska gambling statute, R.R.S.Neb. § 28-947 (1943), is unconstitutionally vague and overbroad.

IV. Congress did not intend 18 U.S.C. § 1955 to elevate, for purposes of obtaining federal jurisdiction, a state misdemeanor into a federal felony when the activity complained of was of a purely intrastate character.

V. The evidence was insufficient to sustain a conviction under the statute since there was not proof beyond a reasonable doubt that at least five of the defendants conducted a single gambling enterprise.

The district court rejected each of these contentions. For the reasons hereinafter set out, we agree with the district court in each instance and affirm the convictions.

I.

On February 4, 1972, the Government submitted an application to Judge Urbom 5 seeking authority to intercept wire communications of seven named individuals, four of whom are defendants herein, and others, then unknown, over two certain telephones in Omaha, Nebraska. The application asserted there was probable cause to believe that violations of 18 U.S.C. §§ 1955 and 371 6 had occurred and were occurring and that the other requisites for the desired court order had been satisfied. Accompanying the application was, inter alia, an affidavit by an FBI special agent setting forth the results of investigations to that date and purportedly establishing the factual basis upon which the application was predicated.

In an order dated February 4, 1972, Judge Urbom made certain findings and authorized the wiretaps substantially as requested. Included among his findings was a statement that "normal investigative procedures reasonably appear unlikely to succeed." It is unnecessary for our purposes to specify other particulars of the February 4 order.

Defendants' initial contention challenges the sufficiency of the averments in the affidavit on the ground that they do not 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," as required by 18 U.S.C. § 2518(1)(c). See also 18 U.S.C. § 2518(3)(c).

Paragraph 4 7 of the affidavit submitted in this case set forth a history of physical surveillance at various locations in the Omaha area, including the residence at which the target phones were located and a number of local bars from which much of the betting allegedly occurred. It also set forth information supplied by a total of seven confidential informants, all of whom were unwilling to testify for fear of their personal safety. It related the results of an interview with Clarence John Mayta, the central figure in the alleged illegal gambling enterprise. It also revealed the examination of various telephone, motor vehicle and police records. In short, it substantiated in detail a statement in paragraph 5 of the affidavit that standard investigative techniques had been utilized over a six-month period.

Paragraph 5 of the affidavit represented that continued use of standard investigative techniques "would succeed only to a limited degree" in establishing the scope and nature of the illegal gambling operations and the identity of other individuals involved therein. This conclusion was based on the "secretive and guarded manner in which this gambling conspiracy is being conducted" and on the affiant's evaluation of the circumstances "in light of (his) experience . . . in the investigation of gambling cases. . . ." The remainder of paragraph 5 detailed investigative problems commonly encountered in gambling cases, including the likely destruction of records and the difficulty in interpreting records even if seized.

Elsewhere, the affidavit recited that "(c)onstant access to a telephone is necessary for the successful operation of a bookmaking business." The affidavit as a whole substantiated this allegation as applied to the facts at hand.

Defendants strenuously argue that the recitations in paragraph 5 of the affidavit, concerning what the affiant had learned from past experience in gambling cases, are of a "boilerplate" variety and that in any event the affidavit does not adequately explain why certain investigative techniques, such as immunity grants or conventional searches, would have been unsuccessful.

The first half of the argument overlooks the fact that the allegedly "boilerplate" allegations of paragraph 5 are not the only pertinent allegations in the affidavit. As noted above, the affidavit revealed six months of prior investigative activity in this case, all of which had failed to reveal the scope of operations or the identity of individuals involved. United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975), relied upon by defendants, is thus inapposite. As we noted in United States v. Daly, 535 F.2d 434, 439 n. 4 (8th Cir. 1976):

In Kalustian, alternative means of investigation were discarded because "knowledge and experience" in investigating other gambling cases convinced government agents that normal techniques were unlikely to succeed. . . . But see United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), (cert. denied, --- U.S. ----, 96 S.Ct. 2167, 48 L.Ed.2d 2167 (1976)). The court in Kalustian ordered the evidence suppressed because the alternative means were given little opportunity to succeed. As discussed above, government agents used alternative means in this case. Inspector Olk's affidavits explain why those investigative techniques were inadequate.

Government agents also used alternative means in this case, and, as explained below, the affidavit adequately set forth why they were inadequate. Thus, whatever our view of the Kalustian holding may be, and we need not address that question here, the simple fact is that "(c)ourts have upheld authorizations based on applications that combine statements about general investigative experience in the type of crime and the particular facts of the case at hand." United States v. Vento, 533 F.2d 838, 850 n. 19 (3d Cir. 1976). And, despite defendants' statement to the contrary, even the Ninth Circuit, which authored Kalustian, apparently shares this view. See United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir. 1975). Accordingly, the mere fact that the affidavit before us rested in part on statements that would be equally applicable to almost any gambling case does not render the affidavit insufficient.

The second half of defendants' argument, that certain specific investigative techniques were neither employed nor explained to be inadequate, cannot be squared with the established law of this circuit. As we stated in United States v. Daly, supra at 438:

We recognize that Congress intended these sections to restrict wiretaps to those which are necessary as well as reasonable. But Congress did not require the exhaustion of "specific" or "all possible" investigative techniques before wiretap orders could be issued. United States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975). Congress prohibited wiretapping only when normal investigative techniques are likely to succeed and are not too dangerous. "Merely because a normal investigative technique is theoretically possible it does not follow that it is likely." S.Rep. 90-1097, U.S.Code Cong. and Admin.News, pp. 2112, 2190 (1968). Sections 2518(1)(c) and 2518(3)(c) are only designed to ensure that wiretapping is "not to be routinely employed as the initial step in criminal investigation", United States v. Giordano, 416 U.S. 505, 515, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341, 353 (1974), and " * * * to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime." United States v. Kahn, 415 U.S. 143, 153 n. 12, 94 S.Ct. 977, 983, 39 L.Ed.2d 225, 236 (1974). The government's showing must, of course, be tested in a "practical and commonsense fashion." United States v. Kirk, 534 F.2d 1262, at 1274 (8th Cir. 1976); United States v. Brick, 502 F.2d 219, 224 n. 14 (8th Cir. 1974), quoting, S.Rep. 90-1097, supra, at 2190. And as in other suppression matters, considerable discretion rests with the judge to whom the wiretap application is made. United States v. Smith, supra, 519 F.2d at 518.

Judged by these standards, the affidavit before us was sufficient. It differs only in minor respects from the affidavits approved in United States v. Brick, supra at 224, and United States v. Schaefer, 510 F.2d 1307, 1310 (8th Cir.), ...

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