U.S. v. Santarpio

• Decision Date: 30 June 1977
• Docket Number: No. 76-1178,76-1178
• Parties: 2 Fed. R. Evid. Serv. 679 UNITED STATES of America, Appellee, v. Victor SANTARPIO, a/k/a "Lefty", Defendant, Appellant. *
• Court: U.S. Court of Appeals — First Circuit

Page 448

560 F.2d 448

2 Fed. R. Evid. Serv. 679

UNITED STATES of America, Appellee, v. Victor SANTARPIO, a/k/a "Lefty", Defendant, Appellant.

^*

No. 76-1178.

United States Court of Appeals, First Circuit.

Argued Dec. 7, 1976.

Decided June 30, 1977.

Marting G. Weinberg, Joseph J. Balliro and Gerald Alch, Boston, Mass., with whom William J. Cintolo, Oteri & Weinberg, Joan C. Schmidt, Boston, Mass., Jeanne Baker, David J. Fine and Rosenberg, Baker & Fine, Cambridge, Mass., were on brief, for appellants in Nos. 76-1179, 76-1181, 76-1183 and 76-1201.

John J. Sylvester, Boston, Mass., by appointment of the court, for appellant in No. 76-1182.

Alan R. Hoffman, Boston, Mass., by appointment of the court, with whom Kaplan, Latti & Flannery, Boston, Mass., was on brief, for appellant in No. 76-1178.

Francis J. O'Rourke, Boston, Mass., by appointment of the court, and Maloney, Williams & Baer, Boston, Mass., for appellant in No. 76-1200.

William J. Carr, Boston, Mass., appearing for appellant in No. 76-1199.

Eugene X. Giroux, Boston, Mass., appearing for appellant in No. 76-1198.

Robert Y. Murray, Boston, Mass., by appointment of the court, and Moulton & Looney, Boston, Mass., appearing for appellant in No. 76-1180.

Frederick Eisenbud, Atty., Dept. of Justice, Washington, D. C., with whom James N. Gabriel, U. S. Atty., Boston, Mass., and William G. Otis, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The ten appellants were named in four indictments ¹ which charged them, and others, with operating an illegal gambling business and with conspiracy to commit that offense in violation of 18 U.S.C. §§ 1955 and2. Following a jury-waived trial, all were convicted on one count of conducting an illegal gambling business.

The Government's primary evidence consisted of stipulations of fact including transcripts of court authorized wire interceptions of telephone conversations conducted between December 19, 1974 and February 3, 1975. An FBI bookmaking expert through stipulation and testimony explained how a bookmaking business works and gave his opinion based on the other evidence that each of the defendants was part of one gambling enterprise. The Government also introduced gambling paraphernalia seized in warrant-authorized searches of several locations used in defendants' bookmaking operations. Seen in the light most favorable to the Government, this evidence revealed a gambling business unified by the exchange of line and other gambling information and layoff bets between bookmakers. Briefly the stipulated facts were as follows.

Thomas Hurley owned a bookmaking business the central office of which was managed by Victor Santarpio assisted by an office worker, Albert Bruun. Santarpio received and accepted layoff wagers on sports from Andrew Schepici, Joseph Mastrullo, Philip Cali, Richard Smith and Harry Hamperian. He also received and accepted layoff wagers on horses from Schepici. Santarpio exchanged line information on sporting events with Schepici and Mastrullo and received from Schepici line information which had been received from Charles Palazzolo. John Brandanese was an office worker for Mastrullo.

Appellants, either in combination or individually, make numerous assignments of error. They challenge the indictments, the legality of the wiretaps, the sufficiency of the evidence, and, in one case, a condition of probation that was imposed. Because all challenge the legality of the three wiretap orders, we address that question first.

I

The wiretap orders were issued on December 4, 1974, December 19, 1974 and January 17, 1975, each on the basis of an application by Special Attorney Jeremiah T. O'Sullivan ² and an affidavit submitted by FBI Agent Thomas J. Daly. The telephone company was unable to effect the first taps and no evidence was obtained from the December 4 order. The information gained from the two other wiretaps led to search warrants and the seizure of bookmaking paraphernalia. The district court denied appellants' motions to suppress the intercepted communications and derivative evidence.

Appellants assert that the applications were defective because they failed to demonstrate the inadequacy of normal investigative procedures, 18 U.S.C. § 2518(1)(c), and failed to establish probable cause that five or more persons were involved in an illegal gambling business, 18 U.S.C. § 2518(3)(a). ³ Appellants further argue that the identity of three anonymous informants should have been revealed to the defendants or, alternatively, to the court in camera.

In United States v. Scibelli, 549 F.2d 222, 226 (1st Cir. 1977), cert. denied 431 U.S. 960, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977), we said that our role on review was "not to make a de novo determination of sufficiency . . . but to decide if the facts set forth in the application were minimally adequate to support the determination made." We further observed that section 2518(1)(c) was not designed to force the Government to exhaust all other investigative procedures before resorting to wiretapping but rather serves " 'to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime'." Id., quoting United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S.Ct. 977, 983, 39 L.Ed.2d 225 (1974). We have reviewed the applications and affidavits which led to the wiretaps in this case and, reading them in "a practical and commonsense manner", United States v. Scibelli, supra, 549 F.2d at 226, we cannot say that the district court erred in finding them to comply with the requirement of "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", 18 U.S.C. § 2518(1)(c). The applications show that they were preceded by a three month investigation which included surveillance and the gathering of information from informants. None of the informants was willing to testify for the Government. Agent Daly explained that although a pattern of conduct which reasonably suggested an illegal gambling business had been established, this would not be sufficient to convict under 18 U.S.C. § 1955. In deciding if other techniques were or were not promising, the court was entitled to take account of the fact that the alleged crime was essentially a telephone crime. See United States v. Scibelli, supra, 549 F.2d at 227; United States v. Steinberg, 525 F.2d 1126, 1130 (2d Cir. 1975), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); In re Dunn, 507 F.2d 195, 197 (1st Cir. 1974).

Appellants laboriously analyze the contents of the first affidavit suspect by suspect and conclude that there was insufficient probable cause established with respect to four of the seven named suspects. Because the federal crime of conducting a gambling business requires that five or more individuals be involved, this insufficiency is said to be fatal to the affidavit. The second application is similarly dissected and is additionally attacked as insufficient because, it is argued, the requirements of 18 U.S.C. § 2518(1)(e) should have been, but were not met, and the demonstration of probable cause was not fresh. No direct attack is made on the third application which was largely based on evidence derived from implementation of the second wiretap order. It is argued, however, that if the second application violated the statute information therefrom must be suppressed, including the derivative evidence resulting from the third tap.

The short answer to much of the foregoing is that it calls for reading the affidavits in a hypertechnical manner. They should not be so read. See United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). A commonsense interpretation reveals that there was probable cause as to each of the persons named in each of the wiretap applications. Indeed, one reaches the same conclusion even if the affidavits are read in the refined manner urged. We find, moreover, no fatal absence of reliability in the statements made by gamblers to the informants. These admissions against penal interest by confessed bookmakers concerning gambling operations of which they were a part were certainly entitled to weight. See United States v. Harris, 403 U.S. 573, 583-84, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (plurality opinion); United States v. Bowser, 532 F.2d 1318, 1321 (9th Cir. 1976); United States v. Carmichael, 489 F.2d 983, 986-87 (7th Cir. 1973) (en banc); Fed.R.Evid. 804(b) (3). Reasonably viewed, we find none of the statements to be "hopelessly vague", as alleged, nor insufficiently fresh. We reject the contention that collecting debts from delinquent accounts and settling with bettors does not show one to be an integral part of the conducting of business within section 1955. See, e. g., United States v. Sacco, 491 F.2d 995, 1002-03 (9th Cir. 1974); United States v. Smaldone,485 F.2d 1333, 1351 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974). Finally, the second application was not an extension of the first but a new request covering phones different from those sought to be tapped pursuant to the first order. As such it complied with the requirements of 18 U.S.C. § 2518(1)(e). See United States v. Florea, 541 F.2d 568, 576 (6th Cir. 1976), cert. denied, 450 U.S. 935, 97 S.Ct. 1579, 51 L.Ed.2d 792 (1977).

The district court had no reason to require that the informants be identified. There was probable cause to issue the wiretap orders and there were no material misrepresentations in the affidavits; ⁴ moreover, the district court heard the testimony of Agent Daly at the hearing on the motions to suppress and apparently was satisfied that the information received from the informers was reliable...