U.S. v. Spagnuolo
| Decision Date | 04 March 1977 |
| Docket Number | 76-2458,Nos. 76-2372,76-2060,76-2462 and 76-2463,76-2037,76-2181,76-2059,76-2461,76-2061,76-2460,76-2459,76-2062,s. 76-2372 |
| Citation | 549 F.2d 705 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Attilio Joe SPAGNUOLO, Thomas Guy Guglielmi, Charles Francis Leahy, Kenneth Whiteman, Reginald Frederick Sutter, Howard Arthur Swann, Michael Joseph Saunders, Raymond Zachary Cohn, Stephen Cosenza, Armando Cosenza, Laurie Anderson Rossetti, Gloria Spagnuolo, and Harvey Lee Ubhoff, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James F. Hewitt, Federal Public Defender, George L. Cooke, Edward B. Collins, Jerrold M. Ladar, George J. Engler, San Francisco, Cal., for defendants-appellants.
James L. Browning, Jr., U. S. Atty., John C. Emerson, Sp. Atty., U. S. Dept. of Justice, San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before BARNES, DUNIWAY and SNEED, Circuit Judges.
This opinion marks the second time these parties have appeared before us to dispute the legality of evidence derived from a series of wiretaps authorized pursuant to 18 U.S.C. §§ 2510 et seq. In the first appeal, the Government successfully challenged the district court's suppression of this evidence. United States v. Spagnuolo, 515 F.2d 818 (9th Cir. 1975). At the subsequent trial, appellants Attilio Joe Spagnuolo, Stephen Cosenza and Armando Cosenza were convicted of conducting an illegal gambling business from September 30, 1971, to October 15, 1971, in violation of 18 U.S.C. §§ 1955 and 2 (Count I); all of the appellants with the exception of Stephen Cosenza were convicted under the same statutes of conducting an illegal gambling business from January 17, 1972, to January 9, 1973. (Count II). Tapes of conversations derived from the challenged wiretaps constituted the bulk of the Government's evidence. On this appeal, appellants argue that (1) the affidavits accompanying the applications for such authorizations did not comply with 18 U.S.C. § 2518(1) (c); (2) evidence derived from illegal wiretaps tainted the probable cause allegations in the affidavits; and, (3) the trial court should have compelled the Government to disclose certain F.B.I. investigative files. We affirm the Count II convictions and reverse the Count I convictions and remand for further proceedings with respect thereto.
To understand this case it is necessary to refer to the seven wiretaps involved by using alphabetical designations. The first four wiretaps, which are designated as wiretaps A, B, C and D, shall be referred to collectively as "Count I wiretaps."
Wiretaps E, F and G, authorized on the basis of correspondingly lettered affidavits, supplied evidence relevant to the Count II convictions and evidence derived from each was introduced to obtain these convictions. Their collective designation is "Count II wiretaps."
The Count I wiretaps, installed during the fall of 1971, were the culmination of an investigation headed by F.B.I. Agent Blanton. The Count II wiretaps originated in an investigation which commenced at about the time the Count I wiretaps were installed and in which a Sergeant Stuart, the officer then in charge of gambling investigations for the San Mateo County, California Organized Crime Unit, played a principal role. During the fall of 1971, Sergeant Stuart had contact from time to time with Agent Blanton and two other F.B.I. agents, Agents Hiner and Feeney.
Stuart's investigation developed as follows. On December 12, 1971, he accompanied a Captain Shaughnessy of the San Francisco Police Department when the Captain arrested Ronald Sacco and his girlfriend, Joanne Maloney, on an unrelated bookmaking charge. In an effort to infiltrate the bookmaking organization Stuart posed as a corrupt police officer and promised Sacco to "fix" the charges against Maloney. Agent Feeney was informed of these developments.
Stuart's efforts to infiltrate led to a discussion on January 10, 1972, between Sacco and him about the possibility of establishing gambling operations under Stuart's protection. This conversation bore fruit. On January 17, 1972, Stuart met with Sacco and appellant Attilio Spagnuolo. As a consequence of this meeting Stuart agreed with Spagnuolo to furnish protection for several telephones used in Spagnuolo's gambling operation for $300 a month. Stuart kept Agent Feeney informed of his progress.
Stuart's association with Spagnuolo continued and from January 17, 1972, to November 10, 1972, they had frequent meetings and conversations with regard to Stuart's protection of the gambling operation. Stuart reported to Agent Feeney on practically a daily basis. On November 10, 1972, the first of the Count II wiretaps, wiretap E, was installed and wiretaps F and G followed shortly thereafter. The application for these wiretaps utilized information derived primarily from Stuart's investigation.
An understanding of the present posture of this case requires that the circumstances surrounding its initial appeal be set forth. That appeal was from an order suppressing evidence derived from wiretap A and wiretaps E, F and G. At the suppression hearing, which resulted in the order from which the Government appealed, it was conceded that wiretap A was flawed because of Justice Department procedure deemed improper by this court's decision in United States v. Chavez, 478 F.2d 512 (9th Cir. 1973). This made necessary a determination of whether wiretaps E, F and G and their supporting affidavits were tainted. In the course of this inquiry the Government was ordered to produce certain investigative files of the F.B.I. The Government refused to produce the files. The magistrate presiding at the hearing thereupon excluded the testimony of several F.B.I. agents and, on the basis of the remaining testimony, held that the Government had failed to show that wiretaps E, F and G were not tainted. The district court approved the magistrate's order and the initial appeal was taken by the Government.
Prior to this court's disposition of the initial appeal, the Supreme Court reversed Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), and also in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974), held that Department of Justice procedures identical to those followed in authorizing the application for the authority to establish wiretap B were fatally defective. Relying on the Supreme Court's decision in Chavez, this court reversed the order suppressing the evidence derived from wiretap A. We also reversed the order suppressing the evidence derived from wiretaps E, F and G on the ground that the magistrate's order was contrary to the Jencks Act which prohibits court-ordered disclosure of statements of Government witnesses at a pre-trial suppression hearing. These positions required that we remand the case for further proceedings.
On remand appellants once more sought to suppress the evidence derived from each of the wiretaps. The Government made no contest with respect to wiretap B; Giordano took care of it. However, the Government resisted vigorously the suppression of evidence derived from each of the other taps. Appellants' position on remand and in this, the second, appeal is that the affidavits supporting wiretaps A, C, D, E, F and G did not comply with 18 U.S.C. § 2518(1) (c). The trial court rejected this position and denied the motion to suppress. It also refused to suppress evidence derived from wiretaps C, D, E, F and G and held that they were not tainted by the Giordano defect impairing wiretap B. It also refused to respond favorably to appellants' renewed effort to require disclosure of the F.B.I. investigative files relating to Counts I and II to show the existence of ineradicable taint.
The appellants appeal from the judgments of conviction. They assign these determinations as error. As already indicated, we affirm in part and reverse in part. Our discussion will be organized so as to respond to each of three grounds for appeal urged upon us by appellants.
We turn first to the contention that the affidavits are insufficient. The standard which must be met appears in 18 U.S.C. § 2518(1)(c), which provides that each application for a wiretap authorization shall 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 standard is reflected in 18 U.S.C. § 2518(3)(c), which provides that in issuing the order, the judge shall determine whether:
normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.
Appellants contend that the affidavits in support of the applications for the wiretaps inadequately describe why normal investigative procedures will be or have been unsuccessful or will be too dangerous in this case. They argue that the affidavits contain only boilerplate conclusions as to why normal investigative procedures will fail, which are based not upon the circumstances of this case but upon the Government's experience with other gambling operations. To authorize a wiretap on the strength of these generalizations, they insist, would make section 2518(1)(c) a nullity; every gambling operation would be susceptible to a wiretap without any showing as to the necessity of a wiretap for the investigation of the particular gambling operation in question.
They find support for their position in United States v. Kalustian, 529 F.2d 585 (9th Cir. 1975). There the court found the affidavits inadequate because of a failure to allege facts demonstrating why that particular case necessitated a wiretap.
In effect the Government's position is that all...
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