U.S. v. Rotchford
| Decision Date | 19 April 1978 |
| Docket Number | Nos. 77-1328,77-1336,77-1329,s. 77-1328 |
| Citation | 575 F.2d 166 |
| Parties | UNITED STATES of America, Appellee, v. Richard J. ROTCHFORD, Appellant. UNITED STATES of America, Appellee, v. Joseph Edward POWERS, Appellant. UNITED STATES of America, Appellee, v. Ernest CARRANZA, Jr., Appellant. UNITED STATES of America, Appellee, v. Glenn Alan RINKS, Appellant. UNITED STATES of America, Appellee, v. David Grant FENNESSEY, Appellant. UNITED STATES of America, Appellee, v. Leo Dominick RITI, Appellant. to 77-1339. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Daniel P. Reardon, Jr., St. Louis, Mo., argued and on brief, for Rotchford and Powers.
James M. Martin, St. Louis, Mo., argued and on brief, for Carranza, Rinks, Fennessey and Riti.
Barry A. Short (former U. S. Atty.) and Ronald E. Jenkins, Asst. U. S. Atty. (argued), St. Louis, Mo., on brief, for appellee.
Before LAY, BRIGHT and HENLEY, Circuit Judges.
These appeals are from judgments in a criminal case entered by the United States District Court for the Eastern District of Missouri (The Honorable John F. Nangle, District Judge) in April, 1977. In March, 1977 Richard J. Rotchford, Joseph Edward Powers, Ernest Carranza, Jr., Glenn Alan Rinks, David Grant Fennessey, Leo Dominick Riti and Madonna C. Nostine were found guilty of having operated an illegal bookmaking business in the City of St. Louis and in St. Louis County between November 15, 1975 and January 3, 1976 in violation of 18 U.S.C. § 1955. 1
The charge was based largely on the results of two telephone wiretaps authorized by the district court pursuant to the Omnibus Crime Control & Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. (hereinafter at times called the Act), and evidence seized pursuant to search warrants issued out of the district court at the end of the interceptions.
The indictment charges that during the relevant period the defendants had conducted an illegal gambling business as defined in § 1955(b), and that the operation involved the taking and processing of wagers placed on horse races and football games. Motions to suppress evidence were overruled after extensive hearings and the defendants went to trial before a jury with Judge Nangle presiding. All seven of the defendants were found guilty. All of the defendants were fined and the male defendants received split sentences of imprisonment with six months to be served in a jail type institution. The male defendants, six in number, all filed timely notices of appeal, and the appeals have been consolidated and heard together. Ms. Nostine elected not to appeal.
The appellants, hereinafter defendants, contend for reversal that the district court erred in refusing to suppress evidence, that a variety of trial errors were committed, that a mistrial should have been declared on account of an allegedly impermissible and prejudicial closing argument made by government counsel, that errors were committed in connection with the instructions to the jury, and that, in any event, the evidence was insufficient to sustain the verdicts.
We have considered all of the contentions of the defendants, 2 and have found them to be without merit. Accordingly, we affirm the judgments of the district court.
There is no dispute about the background facts of the case or about its procedural history.
Although, as will be seen, the defendants deny that they were engaged in an illegal gambling business as defined in § 1955(b), they do not deny that at relevant times they have engaged in illegal gambling on horse races essentially the year-round and on football games during the late summer, fall and early winter months.
For a number of months prior to the commencement of the indictment period the activities of the defendants had been the subject of intensive investigation by agents of the Federal Bureau of Investigation, including Special Agent Douglas A. Dunnam, who was the in charge of the investigation. The investigation involved surveillances of some of the subjects and of certain premises located in St. Louis and its suburbs to the north. And the investigation also involved the development of confidential information from two informers whom the Bureau considered to be reliable but who were unwilling to testify in court or before a federal grand jury.
On November 14, 1975 Richard A. Heidenry, Esq., a duly authorized Assistant United States Attorney, filed an application for authority to tap two telephones. One of those phones was located on premises described as 433 Hern Avenue and bearing the number 314 524 6750. That phone was listed in the name of John W. Fennessey; however, the address was actually the residence of Ms. Nostine. We will refer to that phone as 6750. The other phone was located at 8946 Annetta Street and was listed in the name of one Charles Lafser. The number of that phone was 314 867 9123, and we will refer to that phone as 9123.
The application recited that there was reasonable cause to believe that violations of §§ 1955 and 371 of 18 U.S.C. were being committed by the defendants Carranza, Powers, Rinks, Riti and Rotchford and others yet unknown. Powers, Rinks and Rotchford were identified as persons whose communications would probably be intercepted if the requested authority was granted, and the application also stated that there were others as yet unknown whose communications would be intercepted. It will be observed that the application made no reference to David Grant Fennessey or to Madonna C. Nostine.
The application was supported by a 31-page affidavit executed by Special Agent Dunnam which set out in great detail the facts of the investigation that the Bureau had been conducting, including descriptions of surveillances of persons and places and including information that had been supplied by the two confidential informers. The application was docketed as No. 75 Misc. 54 and was assigned to the docket of District (now Senior) Judge John K. Regan. Judge Regan considered the application ex parte and granted it. The maximum interception period allowed was twenty days from November 15, 1975, and it was stipulated that the authority to tap phone 9123 was limited to Saturdays and Sundays. The order provided that the interceptions should be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under the Act, and Mr. Heidenry was ordered to report to the court on the fifth, tenth and fifteenth days of the interceptions as to the progress that was being made toward achievement of the authorized objective and the need for continued interception.
The interceptions were executed and were fruitful. As would be expected, the intercepted communications were recorded on tape. It developed that bets on horse races only were accepted on 6750, and it is sometimes called the "horse phone." Bets on football games only were accepted on the 9123 number, and it is sometimes called the "football phone." 3
On December 24, 1975 Mr. Heidenry presented a second application for interception authority, supported by a second affidavit of Special Agent Dunnam, to Chief District Judge James H. Meredith. This time the target phone was 314 834 2837 (2837) located in the home of the defendant Carranza at 9950 Cambria Drive. The application identified all of the defendants, including David Grant Fennessey and Madonna C. Nostine, as probable law breakers and as persons whose communications over the target phone would be intercepted. Judge Meredith granted the application, and his order permitted tapping of 2837 on Saturdays and Sundays only over a maximum period of twenty days. Communications over that phone were intercepted on December 27 and December 28, 1975. We observe at this point that due to the Christmas Holiday in 1975 the office of the clerk of the district court seems to have been closed from December 24, 1975 to December 29, 1975, and the papers that we have just mentioned were not filed with the clerk until December 29. That proceeding was docketed as 75 Misc. 62.
On January 2, 1976, a number of search warrants were issued out of the district court directed at various persons, premises and places. Those warrants were duly served, and a large quantity of evidentiary material was seized. It was later to be introduced in evidence over the objections of the defendants. 4
An examination of the district court file in No. 75 Misc. 54 reveals that in early March, 1976 all of the defendants, including Fennessey and Nostine, were timely served with mandatory or discretionary inventories of interceptions as required by 18 U.S.C. § 2518(8)(d). And an examination of the district court file in No. 75 Misc. 62 reflects that all of the defendants were timely served with inventories relating to the interceptions of communications on 2837.
After the indictment was returned in December, 1976, the defendants moved to suppress the evidence that had been developed by the wiretaps and by the seizures under the search warrants. An evidentiary hearing on those motions was commenced before Judge Nangle on January 26, 1977. It was agreed that further hearings might be conducted before United States Magistrate William S. Bahn. Magistrate Bahn conducted hearings on January 27 and January 28. On February 28 he submitted a report to Judge Nangle making factual findings adverse to the defendants and recommending that the motions be denied. Judge Nangle accepted the report and denied the motions.
Jury trial began on March 7, 1977 and extended into March 11. The government's case consisted of the testimony of certain FBI agents and the playing of the tapes of the interceptions of the three phones that have been mentioned. There were also read to the jury certain stipulations of the parties. Able counsel for the defendants vigorously cross-examined the government's witnesses and pursued...
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