U.S. v. Southard
| Citation | 700 F.2d 1 |
| Decision Date | 28 January 1983 |
| Docket Number | Nos. 82-1013,s. 82-1013 |
| Parties | 12 Fed. R. Evid. Serv. 545 UNITED STATES of America, Appellee, v. Jack SOUTHARD, Defendant, Appellant. UNITED STATES of America, Appellee, v. Monsour FERRIS, a/k/a Monte, Defendant, Appellant. UNITED STATES of America, Appellee, v. Lester BANKER, a/k/a Lem, Defendant, Appellant. UNITED STATES of America, Appellee, v. John BRIAN, a/k/a John Baborian, Defendant, Appellant. UNITED STATES of America, Appellee, v. Anna QUINTERNO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Vincent QUINTERNO, Defendant, Appellant. UNITED STATES of America, Appellee, v. Harry KACHOUGIAN, a/k/a Tom and Tommy, Defendant, Appellant. UNITED STATES of America, Appellee, v. Robert MARTIN, Defendant, Appellant. UNITED STATES of America, Appellee, v. Bernard FALK, Defendant, Appellant. UNITED STATES of America, Appellee, v. Anthony LAURO, a/k/a Poochie, Defendant, Appellant. to 82-1019 and 82-1130 to 82-1332. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Morris M. Goldings, Boston, Mass., with whom Richard S. Jacobs, Mahoney, Hawkes & Goldings, Boston, Mass., and Matthew J. Zito, North Providence, R.I., were on brief, for defendants, appellants Jack Southard and Lester Banker.
Bruce A. Assad, Fall River, Mass., for defendant, appellant Monsour Ferris.
John Tramonti, Jr., Providence, R.I., for defendant, appellant John Brian.
Aram K. Berberian, Warwick, R.I., with whom Michael J. Kiselica, Providence, R.I., was on brief, for defendant, appellant Harry L. Kachougian.
William G. Hundley, Washington, D.C., with whom Larry S. Gondelman, and Hundley & Cacheris, P.C., Washington, D.C., were on brief, for defendant, appellant Robert L. Martin.
Ralph J. Gonnella, Providence, R.I., for defendant, appellant Anthony Lauro.
Patty Merkamp Stemler, Atty., Dept. of Justice, Washington, D.C., with whom Lincoln C. Almond, U.S. Atty., and Edwin J. Gale, Sp. Atty., Providence, R.I., were on brief, for appellee.
Before COFFIN, Chief Judge, PECK, * Senior Circuit Judge, and BOWNES, Circuit Judge.
These appeals arise from a series of cases tried in the District Court of Rhode Island. Defendants-appellants, along with six others, were charged in a thirteen-count indictment with violations of federal gambling statutes, 18 U.S.C. Sec. 1955 and 18 U.S.C. Sec. 1084(a). There were also aiding and abetting charges, 18 U.S.C. Sec. 2, and a conspiracy count, 18 U.S.C. Sec. 371.
The indictment was based on court-authorized wiretaps of the telephones of appellants Brian and Kachougian. The affidavit supporting the authorization rested on statements made to the affiant by undisclosed informants. At trial, intercepts of a number of telephone conversations were introduced. They can be described as follows: conversations between Brian and Kachougian; conversations between Brian and the other appellants; conversations between Brian and persons not indicted; and conversations between Kachougian and persons not indicted. Material seized from the homes of Brian and Kachougian pursuant to a search warrant was also part of the government's evidence.
Brian, who was the central figure in the case, was charged in every count of the indictment. The other appellants were each named in one or two counts. In response to severance motions the court scheduled five separate trials. Brian was named as a defendant in each trial along with certain of the other appellants. Prior to the start of the first scheduled trial, a number of the defendants stipulated to the facts of the offense(s) charged, reserving their right to appeal the court's rulings on pretrial motions. Defendants Brian, Kachougian, Anna Quintero, Vincent Quintero, Martin, and Falk all stipulated; they were all convicted following brief bench trials. Defendants Banker, Ferris, and Southard were convicted after three separate jury trials. Banker and Ferris were tried alone. Southard was tried with Dominic Buzzaco and Louis Gori, both of whom were acquitted. Defendant Lauro was convicted after a full-fledged bench trial.
We think it helpful to state at the outset those issues raised by more than one appellant, which appellants raise the issue and their place in the opinion. These issues are:
1. Whether the district court erred in not granting an adversarial hearing under the doctrine of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the challenge to the truthfulness of the affidavit given in support of the application for the wiretaps. This issue is raised by all appellants and is discussed first.
2. Whether the indictment was defective because it charged both a substantive violation of 18 U.S.C. Sec. 1084(a) and a violation of the aiding and abetting statute, 18 U.S.C. Sec. 2. This issue is raised by Banker, Ferris, and Southard and is discussed as part of our review of Southard's case.
3. Whether the admission of evidence to show the scope of Brian's gambling activities was error. Southard, Ferris, and Banker raised this issue; it is discussed in our review of Ferris' case.
4. Whether there was a misjoinder of certain defendants. Martin and Southard raised this issue; it is discussed in our review of Martin's case.
Our findings and rulings on these issues apply to all appellants. Issues raised by only one appellant will be examined in our review of that appellant's case.
All defendants challenged the affidavit submitted by F.B.I. Agent Conley and relied on by the magistrate in authorizing the electronic surveillance of the telephone of Brian and Kachougian. This affidavit summarized the information supplied to Conley and other law enforcement officials by five unnamed informants. In addition to the information provided by the confidential informants, the affidavit contained certain documentary evidence: the telephone company billing records of the three phone numbers allegedly used in Brian's and Kachougian's gambling business, and the criminal records of certain of the suspected gamblers, including Brian. The affidavit also stated that local police surveillance verified that on twenty-three days Brian was present at the location of one of the phone numbers allegedly used to place and accept bets.
On its face, the affidavit submitted by Conley was sufficient to establish probable cause to believe that various individuals were conducting a gambling business in violation of federal gambling statutes. According to the affidavit, certain of the informants admitted placing bets with Brian's gambling operation--either directly with Brian, or with one of Brian's bookmakers. Two informants provided telephone numbers at which either Brian or Kachougian could be reached for placing bets. Further, Conley provided sufficient background information about the informants to show that their information in this particular case was accurate and that they had proved to be reliable in the past. 1 See Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1513-1514, 12 L.Ed.2d 723 (1964).
The Conley affidavit, like all facially valid affidavits supporting a wiretap authorization, bears a presumption of validity. This initial presumption, however, will not shield the affidavit from closer scrutiny when there is reason to doubt the veracity of the affiant. As the Supreme Court explained in Franks v. Delaware a flat ban on impeachment of veracity could denude the probable-cause requirement of all real meaning. The requirement that a warrant not issue "but upon probable cause, supported by Oath or affirmation," would be reduced to a nullity if a police officer was able to use deliberately falsified allegations to demonstrate probable cause, and, having misled the magistrate, then was able to remain confident that the ploy was worthwhile.
Franks v. Delaware, 438 U.S. 154, 168, 98 S.Ct. 2674, 2682, 57 L.Ed.2d 667 (1978).
Not every challenge to an affiant's veracity will lead to an evidentiary hearing, however. Franks requires that a defendant make a "substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and ... is necessary to the finding of probable cause" before an evidentiary hearing (a "Franks" hearing) must be conducted. Id. 438 U.S. at 155-56, 98 S.Ct. at 2676-77. The prerequisites for a Franks hearing have been clearly articulated:
To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits of sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant. Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.
Id. at 171-72, 98 S.Ct. at 2684-2685 (footnote omitted).
Appellants filed six affidavits which challenged the veracity of Conley's affidavit on a number of grounds. First, they alleged that the two undisclosed informants who purportedly placed or accepted bets...
To continue reading
Request your trial
-
United States v. Gambale
... ... Southard, 700 F.2d 1, 31 (1st Cir.), cert. denied sub nom. Ferris v. United States, ___ U.S. ___, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983); United States v ... ...
-
US v. Ferrara
... ... This is consistent with the position which has been adopted by the Court of Appeals for the First Circuit. 11 See United States v. Southard, 700 F.2d 1 (1st Cir.), cert. denied, 464 U.S. 823, 104 S.Ct. 89, 78 L.Ed.2d 97 (1983) ... In Southard, the defendants alleged that a government affidavit submitted to obtain a wiretap falsely stated that informant information established probable cause to believe criminal ... ...
-
United States v. Shipp
... ... See, e.g., United States v. Southard, 700 F.2d 1, 27 & n. 35 (1st Cir.1983); United States v. Kail, 612 F.2d 443, 446 (9th Cir.1979), cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 ... ...
-
U.S. v. Smith
... ... A. Facts ... Evidence leading to the conviction of the sixteen appellants now before us arose from a joint investigation conducted by federal agents of the Drug Enforcement Administration, members of the Boston Police Drug Control Unit ... United States v. Scibelli, 549 F.2d 222 (1st Cir.1977), for reviewing the sufficiency of wiretap applications. United States v. Southard, 700 F.2d 1 (1st Cir.1983). It is not our province to engage in de novo review of an application; instead, we "test it in a practical and ... ...