U.S. v. Scibelli, s. 76-1214

Decision Date06 October 1976
Docket NumberNos. 76-1214,s. 76-1214
Citation549 F.2d 222
PartiesUNITED STATES of America, Appellee, v. Francesco SCIBELLI, Defendant, Appellant. UNITED STATES of America, Appellee, v. Andrew TORINO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Daniel SACCO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Adolfo BRUNO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lawrence STONE, Defendant, Appellant. UNITED STATES of America, Appellee, v. Joseph ALBANO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Anthony MALONI, Defendant, Appellant. UNITED STATES of America, Appellee, v. Rocco ALBANO, Defendant, Appellant. to 76-1221. . Heard
CourtU.S. Court of Appeals — First Circuit

Joseph J. Balliro, Boston, Mass., for Francesco Scibelli, appellant.

Jay M. Forgotson, Springfield, Mass., for Andrew Torino, appellant.

James M. Pool, Boston, Mass., by appointment of the Court, for Daniel Sacco, appellant.

John E. Barrett, West Springfield, Mass., with whom Jerry E. Benezra, Boston, Mass., was on brief, for Adolfo Bruno, appellant.

Edward L. Donnellan, Springfield, Mass., with whom Keyes, Donnellan & Danaher, Springfield, Mass., was on brief, for Lawrence Stone, appellant.

Robert H. Abrams, Springfield, Mass., by appointment of the Court, for Joseph Albano, appellant.

Michael O. Jennings, Springfield, Mass., by appointment of the Court, for Rocco Albano, appellant in case no. 76-1221, and for Anthony Maloni, appellant in case no. 76-1220.

George F. Kelly, Atty., U.S. Dept. of Justice, Washington, D.C., with whom James N. Gabriel, U.S. Atty., and Gerald E. McDowell, Atty., U.S. Dept. of Justice, Washington, D.C., were on brief, for appellee.

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

LEVIN H. CAMPBELL, Circuit Judge.

The two-count indictment in this case charged appellants, eight in number, and two others, with operating an illegal gambling business and with conspiracy to commit the substantive offense in violation of 18 U.S.C. §§ 1955 1 and 2. 2 The indictment arose out of a six-month investigation by the FBI and the Massachusetts State Police in 1974 into gambling operations in western Massachusetts. After denial of pre-trial defense motions to suppress evidence derived from three periods of electronic surveillance, defendants waived a jury trial, and the Government, counsel for the defendants and the defendants themselves agreed to a "Stipulation" of "facts and opinions" which "together with such physical and testimonial evidence as may be offered and admitted into evidence shall constitute the evidence upon which the issues of fact and law in this case are to be determined, subject, however, to those objections as are enumerated herein." Defendants specifically reserved "their challenge to the validity of the court orders herein discussed, their challenge to the manner in which the said court orders were implemented, or any other matter heretofore raised on motion." Based on the Stipulation, the district court found all appellants guilty as charged on both counts. Apart from the Stipulation, the record in this case contains the Government's three applications for wiretap orders, the defense motions to suppress, and the transcript of the pre-trial hearing on those motions.

The arguments upon appeal may be conveniently divided into two groups. Six 3 of the eight appellants argue that the district court erred in denying defense motions to suppress the evidence derived from the Government's electronic surveillance. This argument is based on the contention that the Government failed to comply with 18 U.S.C. § 2518(1)(c), which requires the Government in making application for a wiretap order to 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 remaining two appellants 4 argue solely that the evidence in the Stipulation implicating them was insufficient to convict.

I

A brief review of the facts surrounding the three orders of the district court approving electronic surveillance will help to clarify our discussion of appellants' argument that the Government did not comply with 18 U.S.C. § 2518(1)(c). FBI Special Agent Ringgold testified at the hearing on the motions to suppress that he began investigating gambling operations in western Massachusetts in June, 1974. He said that he first suggested to his supervisors the need for electronic surveillance four to six weeks later. On October 15, 1974, the district court issued an order, E.B.D. 74-224, on application from the Government, directing interception of wire communications on two telephone numbers in western Massachusetts for a period of twenty-one days. The Government's application was supported by a 78-page affidavit of Agent Ringgold. In pertinent part, the affidavit stated in conclusory terms that "Normal investigative procedures have failed to gather evidence necessary to sustain prosecution for violations of these offenses and appear unlikely to succeed if tried further." Agent Ringgold stated later in the affidavit more specifically why normal investigative procedures appeared unlikely to succeed.

"While execution of search warrants involving individuals and locations relevant to this investigation may well produce gambling related paraphernalia, it is my experience that gambling records are often sketchy in nature, often contain code names, and rarely establish a provable connection between all the participants in the illegal gambling business. None of the informants cited above is willing to testify as to information they have imparted for fear of their personal safety. . . . (W)ith respect to (A), immunity has been tried before the Grand Jury currently investigating organized gambling in the Western Massachusetts area(,) . . . (and his) testimony is not likely to result in the indictment of any other gamblers. . . . (I)t is apparent from the conduct of the subjects that meaningful admissions or evidence of criminal associations and the roles played by the various members of this organized gambling business are not likely to be secured by a continuation of this form of investigation. In addition, the repeated presence of . . . undercover individuals may well reveal the fact that the subjects are under law enforcement scrutiny. For example, it is apparent that the subjects continually utilize the table in the right rear area of the lounge on a consistent basis in order to hold subdued conversation. . . . (T)oll record information, while valuable in providing circumstantial proof that certain known bookmakers and bettors are in regular telephone contact, they do (sic) not establish the actual identity of the participants(,) . . . provide any evidence whatsoever as to the contents of the conversation(,) . . . (or) reveal contact . . . among bookmakers and bettors residing within the same dialing area."

The district court issued a second wiretap order, E.B.D. 74-275, on November 14, 1974, directing interception of wiretap communications on four new numbers in western Massachusetts for a twenty-one day period. The supporting affidavit, which incorporated by reference the first affidavit, again represented that "Normal investigative procedures have failed to gather evidence sufficient to sustain prosecution against all of the individuals believed to be committing these offenses", and went on to detail the need for electronic surveillance. Agent Ringgold explained that surveillance by means of a listening device planted in one location was "complicated by extraneous noise(,) . . . caused by a rather loud band . . ."; he alleged facts tending to show "that the subjects of this investigation are extremely sensitive to what they consider to be law enforcement scrutiny"; and he stated that "(t)he informants cited in connection with this investigation continue to be unwilling to testify."

The third order for electronic surveillance, E.B.D. 74-295, directed interception of wire communications on two new numbers and was issued by the district court on December 10, 1974, for a period of twenty days. The supporting affidavit repeated that "Normal investigatory procedures have failed to gather evidence sufficient to sustain prosecution against all of the individuals believed to be committing these offenses." Agent Ringgold came to this conclusion though he was "familiar with all the contents of all the tape recordings and contemporaneous log entries resulting from (the prior) interceptions . . ." and had been informed by the other state and federal investigators "as to any record checks, physical surveillances or other information which they have acquired from their direct participation in this investigation." The affidavit also stated again that "(i)nformants knowledgeable of this operation continue to be unwilling to testify for fear of their personal safety."

Appellants claim that each of the Government's applications failed to satisfy the requirement of 18 U.S.C. § 2518(1)(c). That section requires that all applications 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."

Section 2518(3)(c) of Title 18 attempts to assure that this requirement will be satisfied by imposing upon the district judge reviewing the application an independent obligation to

"determin(e) on the basis of the facts submitted by the applicant that . . . normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous."

The judge's determination is, of course, reviewable on appeal, by which time the wiretap will normally have been authorized, the evidence gathered, and a conviction obtained. An appeals c...

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