U.S. v. McCoy

• Citation: 539 F.2d 1050
• Decision Date: 30 September 1976
• Docket Number: No. 75-1641,75-1641
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James M. McCOY et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1050

539 F.2d 1050

UNITED STATES of America, Plaintiff-Appellee, v. James M. McCOY et al., Defendants-Appellants.

No. 75-1641.

United States Court of Appeals, Fifth Circuit.

Sept. 30, 1976.

Thomas M. Haas, Mobile, Ala., for McCoy and McCoy.

Wilson M. Hawkins, Jr. (Court-appointed), Mobile, Ala., for Machefsky and Chastang.

Barry Hess, Mobile, Ala., for Vaughn.

James D. Brooks (Court-appointed), Mobile, Ala., for Bell.

Charles S. White-Spunner, U. S. Atty., Edward J. Vulevich, Jr., Wm. R. Favre, Jr., Asst. U. S. Attys., Mobile, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Alabama.

Before WISDOM, GODBOLD and LIVELY, ^* Circuit Judges.

WISDOM, Circuit Judge:

The defendants-appellants, James McCoy, William McCoy, Maurice Machefsky, Henry Chastang, Cleo Vaughn, and Charles Bell were convicted on one or both of two counts for violations of 18 U.S.C. § 1955. ¹ Count I charged the violation of the prohibition of illegal gambling businesses; count II charged a conspiracy to violate § 1955, punishable under 18 U.S.C. § 371. The major question for review is whether there was sufficient evidence to sustain these convictions. We affirm the convictions with respect to each appellant but Bell.

The evidence showed that the appellants were bookmakers, or were working for bookmakers, in the Mobile, Alabama area. There were three bookmaking operations: one conducted by the McCoys and Chastang, one conducted by Bell, and one conducted by Vaughn. ² The question focused on at the trial was whether the three bookmaking operations together constituted one gambling business, involving five or more persons, as specified by § 1955. The jury, by its verdict, answered this question affirmatively. Before addressing the issue of the sufficiency of the evidence, we resolve questions concerning the propriety of the government wiretaps, alleged error in an asserted comment by the prosecutor on the defendants' failures to testify, and the constitutionality of § 1955. We discuss also alleged errors in the use of expert testimony and in the trial court's jury instructions. ³

I.

The appellants contend that the district court erred in denying their pretrial motions to suppress evidence obtained through wiretaps of telephone conversations. They argue that the wiretaps violated provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 in three respects: (1) the authorization for the wiretap application was not properly made, (2) the affidavits supporting the application did not contain a "full and clear statement", required by 18 U.S.C. § 2518(1)(c), that means of investigation, other than wiretapping, would be inadequate, and (3) the wiretap continued after the government's objectives had been achieved. We reject these arguments.

The statute requires that a wiretap application be authorized by the Attorney General or a specially designated Assistant Attorney General. 18 U.S.C. § 2516(1). Here, Robert Bork, the Acting Attorney General, ⁴ by an order dated October 23, 1973, specially designated Henry Petersen, the Assistant Attorney General of the Criminal Division of the Justice Department, to authorize such applications. In a letter of November 30, 1973 to the Chief of the Organized Crime and Racketeering Section, Criminal Division, Petersen authorized, by his own words, the wiretap application with which this case is concerned. James Featherstone, a Deputy Chief of the Section sent a copy of Petersen's letter to the United States Attorney, Charles White-Spunner, and White-Spunner submitted this copy to the judge who authorized the wiretap.

The appellants contend, first, that there is no showing that Petersen exercised his personal judgment in authorizing the wiretap. This argument is allegedly supported by the fact that Petersen's letter begins, "This is with regard to your recommendation that I authorize an application to a federal judge . . .". Petersen's personal judgment is certainly necessary. See United States v. Giordano, 1974, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341. The evidence adequately establishes that Petersen exercised such judgment. The quoted language relied upon by the appellants does not prove otherwise. It would be unrealistic to believe that the Assistant Attorney General would authorize or refuse to authorize wiretap applications without consulting his staff. That a recommendation to authorize an application was made by a subordinate does not mean that Petersen's personal judgment was not exercised. ⁵

The appellants also complain that "(t)here is no testimony before the Court that shows that Mr. Petersen actually signed the application". In a number of reported cases Justice Department officials signed the names or initials of others. See, e. g., United States v. Chavez, 1974, 416 U.S. 562, 567, 94 S.Ct. 1849, 40 L.Ed.2d 380. The appellants failed even to contend there that the government was obligated to authenticate Petersen's signature by testimony or affidavit. This Court cannot give weight, therefore, to the appellants' suggestion that what appears to be Petersen's signature is bogus. ⁶

The appellants argue that language in United States v. Kerrigan, 9 Cir. 1975, 514 F.2d 35, appeal pending, supports their proposition that the affidavits supporting the wiretap application were inadequate. The Kerrigan Court held that affidavits filed in that case complied with the requirement of 18 U.S.C. § 2518(1)(c) that an application 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 Court observed, however, that

the boilerplate recitation of the difficulties of gathering usable evidence in bookmaking prosecutions is not a sufficient basis for granting a wiretap order. To hold otherwise would make § 2518(1)(c) and (3)(c) mere formalities in bookmaking cases.

514 F.2d at 38. The appellants maintain that the affidavits in this case are just those "boilerplate recitations" condemned in Kerrigan.

We observed in United States v. Robertson, 5 Cir. 1974, 504 F.2d 289, cert. denied, 421 U.S. 913, 95 S.Ct. 1568, 43 L.Ed.2d 778, that the statutory requirement "must be read in a common sense fashion". Accord, United States v. Cacace, 5 Cir. 1976, 529 F.2d 1167; United States v. Armocida, 3 Cir. 1975, 515 F.2d 29, 37, cert. denied, 423 U.S. 858, 96 S.Ct. 111, 46 L.Ed.2d 84; 1968 U.S.Code Cong. & Ad.News 2190 (S.Rep.1097, section-by-section analysis of statute). Common sense dictates that the purpose of the statute "is not to foreclose electronic surveillance until every other imaginable method of investigation had been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques". United States v. Pacheco, 5 Cir. 1974, 489 F.2d 554, 565; see United States v. Smith, 9 Cir. 1975, 519 F.2d 516, 518. In order to uphold the wiretap order, all that need be found in the affidavit is a "factual predicate". Armocida, 515 F.2d at 38. That factual predicate exists in this case in the affidavit of F.B.I. Special Agent Flynn.

Flynn's affidavit stated that he had five years experience investigating gambling and other racketeering offenses in the Mobile, Alabama area. Based on this experience, he concluded that legalized searches of gamblers and their establishments have failed to prove all the elements of federal offenses, particularly with respect to participants not at the searched premises at the time of the search. Furthermore, the affidavit stated that gamblers do not keep permanent records and that temporary records are destroyed before or during a search. In addition, the affidavit states that such records are often in code and have proved difficult to interpret. The affidavit related that the F.B.I. informants would be unwilling to testify and that no witness was known who could testify concerning the full extent of the suspected gambling business. Finally, the affidavit declared that continued close physical surveillance of a billiard parlor believed to be a center for gambling transactions might expose the investigation and jeopardize the outcome of the investigation.

The Flynn affidavit is an adequate factual predicate to support the judge's finding that "other investigative procedures . . . appear unlikely to succeed". This affidavit appears no less "full and complete" than the affidavits approved in Armocida, and United States v. Schaefer, 8 Cir. 1975, 510 F.2d 1307, 1310, cert. denied, 421 U.S. 975, 978, 95 S.Ct. 1975, 1980, 44 L.Ed.2d 466, 470. To be sure, additional facts were included in affidavits approved in Kerrigan (that the "front office" was protected by a fence, barbed wire, and patrolling dogs) and Robertson (that undercover operations would be difficult because of the lack of black federal agents), but in neither case did the court state that such additional facts were essential. Notwithstanding the fears expressed in Kerrigan, the 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 Smith, 519 F.2d 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.

Finally, the...