United States v. Best, Crim. A. No. 5640.

Decision Date08 August 1973
Docket NumberCrim. A. No. 5640.
PartiesUNITED STATES of America v. Robert W. BEST et al.
CourtU.S. District Court — Southern District of Georgia


R. Jackson B. Smith, Jr., U. S. Atty., S. D. Ga., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for plaintiff.

William C. Calhoun, John H. Ruffin, Jr., Augusta, Ga., Terrell L. Glenn, Columbia, S. C., A. Blenn Taylor, James A. Bishop, Brunswick, Ga., Kenneth R. Chance, Augusta, Ga., for defendants.


ALAIMO, District Judge.

This is a criminal action based upon an indictment charging the defendants in two counts with the operation of an illegal gambling business. Count I charges substantive violations of 18 U. S.C. § 1955.1 Count II is grounded in conspiracy and charges a concert of action for the purpose of violation 18 U. S.C. § 1955.

In an across-the-board attack, all defendants now move for dismissal of the indictment or, in the alternative, for suppression of the evidence derived from the interception of wire communications of various defendants.

Several issues raised by the briefs and argument of counsel are germane to both the motions to dismiss and the motions to suppress because they deal with evidence which, if seized illegally, would support suppression of the fruits of such seizure, used in part by the Government to obtain the indictments against the defendants. These issues will be discussed in that portion of this Order which is dispositive of the motions to suppress.


Movants submit that Count II of the indictment must fail as being violative of "Wharton's Rule."2 The averment, simply stated, is that Count I charges an offense which requires the participation of five or more persons, that conspiratorial action is therefore a necessary element of the substantive offense, and that the conspiracy allegations of Count II accordingly constitute a charge of conspiracy to conspire. In such a case, movants submit the conspiracy merges into the substantive offense and the proper remedy is dismissal of the conspiracy count as an additional offense. Chief reliance is placed by movants upon United States v. Figueredo, 350 F.Supp. 1031 (M.D.Fla.1972). There the district court dismissed conspiracy charges against eight defendants indicted under 18 U.S.C. § 1955 reasoning that "Wharton's Rule" mandates such a disposition because the statute incorporates concert of action as a necessary element of the offense. The better view, however, is expressed in United States v. Becker, 461 F.2d 230 (2 Cir. 1972), where the court found "Wharton's Rule" inapplicable to a charge of conspiracy to violate 18 U.S.C. § 1955 upon the rationale that the participation of a number of persons over and above the minimum number necessary to the commission of the offense removes the matter from the ambit of the merger doctrine. Judge Mansfield, speaking for a unanimous court, noted at page 234:

"As we have recently reiterated, as long as the conspiratorial concert of action and substantive offense underlying it are not coterminous and fewer participants are required for the commission of the substantive offense than are named as joining in a conspiracy to commit it, there is no infirmity in the conspiracy indictment."

The Fifth Circuit has tacitly followed Becker, supra, by affirming convictions for conspiracy to violate 18 U.S.C. § 1955. See United States v. Thaggard, 477 F.2d 626 (5 Cir. 1973). Accordingly, this Court must reject the contention that "Wharton's Rule" precludes, as a matter of law, a charge of conspiracy to violate 18 U.S.C. § 1955. Also see United States v. Ianelli, 477 F.2d 999 (3 Cir. 1973).

In an additional attack on the indictment, several movants challenge the sufficiency of the allegations upon the contention that the indictment charges several unrelated and separate conspiracies rather than a single or continuing conspiracy, thereby requiring movants to defend against allegations of unrelated offenses. Such a contention is unsupported and must fail upon a close scrutiny of the indictment. Here, the defendants are charged with the operation of and conspiracy to operate an illegal gambling business. The alleged conspiracy sought a common end and rested upon a single unified purpose. No extraneous matter constituting unrelated allegations is found. The indictment satisfies the test of United States v. Lloyd, 425 F.2d 711 (5 Cir. 1970) and fairly notifies the defendants of the charges against them.

Movants further aver the converse; that is, that the indictment is duplicitous. As noted above, however, the Government has the burden of proving the additional element on Count II of participation of a number of persons in the business of illegal gambling over and above the minimum number necessary to make out a substantive offense under 18 U.S.C. § 1955. The necessity of this additional proof defeats any attack upon the indictment as being duplicitous.

Movants further argue that the use of aliases in the indictment is so prejudicial as to warrant dismissal. This contention, as a basis for dismissal, has been mooted by the Court's direction to counsel during the motions hearing held June 8, 1973, that the use of aliases relevant to disputed issues of identity will be permitted. See e. g., United States v. Wilkerson, 456 F.2d 57 (6 Cir. 1972). Upon concession of counsel for various defendants that certain aliases properly identify the persons whose identity may be in issue, the Government is directed to strike all reference to such aliases from the pleadings and evidence. This procedure affords adequate safeguards against any prejudice which may arise from the irrelevant use of aliases. Thus, this contention must fail as a basis for dismissal of the indictment.

Next, the Court is asked to consider the facial constitutionality of Title III. Constitutional objection to the statute is posited upon the grounds that it permits unlawful invasion of privacy violative of the right to free speech under the First Amendment and the right to be free of unreasonable search and seizure under the Fourth Amendment. Specifically, Title III is challenged as permitting interception of wire communications which have not been particularly described in the interception order. Further constitutional infirmity is grounded on the contention that Title III allegedly permits secret search in violation of the Fourth Amendment because it does not command prompt post-search notice; it permits the seizure of testimonial evidence in violation of the Fourth and Fifth Amendments; and the 30-day search authorized thereby is durationally overbroad in violation of the Fourth Amendment.

A legion of cases met these challenges and Title III has successfully run the gauntlet of constitutional attack.3 A diligent search reveals only one instance in which a federal court found Title III to be constitutionally impermissible. In United States v. Whitaker, 343 F.Supp. 358 (E.D.Pa.1972), the Court found Title III to be violative of the Fourth Amendment in three particulars. The Court first found that the 30-day durational provision of Title III violated the Fourth Amendment requirement that intrusions be "precise," "carefully circumscribed," and "very limited" citing Katz v. United States, supra, and Berger v. New York, supra. Secondly, the Court saw a violation of the particularity requirement of the Fourth Amendment in the statute's delegation of discretion to executing officers to determine the termination point of interceptions in some instances. Thirdly, the Court found that the statute's failure to provide for prompt post-search notice violates the constitutional stricture on secret searches.

Whitaker has been expressly reversed by the Third Circuit on February 27, 1973, certiorari denied, 412 U.S. 953, 93 S.Ct. 3003, 37 L.Ed.2d 1006. In United States v. Cafero, 473 F.2d 489 (3 Cir. 1973), the court, after criticizing Whitaker, noted at page 501:

"For these reasons, we reject the holding of United States v. Whitaker that Title III is unconstitutional, and thereby place ourselves in agreement with courts of appeals and district courts which have adjudicated the constitutionality of Title III."

The Court rejected the Whitaker rationale that the 30-day durational provision is overbroad by noting that such provision limits the interception to a maximum of 30 days. The Court noted the further limitation upon duration in that 18 U.S.C. § 2518(4) (e) requires termination upon attainment of the objective sought. Furthermore, the Court took cognizance of the right of sua sponte judicial review at any time. These provisions bring the statute within the constitutional mandate of Berger v. New York, supra. As to the Whitaker objection to the discretion vested in the executing officers, the Court reiterated that the statute requires automatic termination upon attainment of the objective sought and noted the particularity requirements4 in concluding that the discretion of the executing officers is sufficiently circumscribed to satisfy the Fourth Amendment. Finally, the Court rejected the Whitaker conclusion that Title III is rendered unconstitutional by its failure to provide for post-search notice by pointing to the provision for the filing of inventories and the accessibility to such inventories by aggrieved persons such "as the judge determines to be in the interest of justice." 18 U.S.C. § 2518(8)(d). The Court found this entrustment of inspection to judicial process to be inoffensive to the Fourth Amendment.

This Court is compelled to hold, upon a careful consideration of Title III and the overwhelming precedents recognizing its constitutionality, that the statute does not violate the First, Fourth, or Fifth Amendments to the United States Constitution.


The threshold inquiry on the motion to suppress concerns standing. Although the Government...

To continue reading

Request your trial
5 cases
  • United States v. Manuszak, Crim. No. 73-647.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • July 13, 1977
    ...become the subject of a specific charge of wrongdoing.12 See Petition of Leppo, 497 F.2d 954, 956 (5th Cir. 1974); United States v. Best, 363 F.Supp. 11, 19-21 (S.D.Ga.1973); United States v. Lanza, 341 F.Supp. 405, 420-21 (M.D.Fla.1972); Application of United States, supra. However, Sectio......
  • United States v. Webster, Crim. No. Y-79-060
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • June 26, 1979
    ...harmless error (if indeed any error) since they were not crucial in making the probable cause determination. United States v. Best, 363 F.Supp. 11, 18-19 & n. 8 (S.D.Ga. 1973). The informants' reliability on the basis of information furnished previously meets the Spinelli test, 393 U.S. 410......
  • United States v. Dorfman, 81 CR 269.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • June 1, 1982
    ...States v. Weinrich, 586 F.2d 481, 490 (5th Cir. 1978); United States v. Hyde, 574 F.2d 856, 863 (5th Cir. 1978); United States v. Best, 363 F.Supp. 11, 18-19 (S.D.Ga. 1973).14 Finally, the specificity of the information provided can in itself be an indicia of reliability. See United States ......
  • Fleming v. Comm'r of Internal Revenue (In re Estate of Best) , Docket No. 267-76.
    • United States
    • United States Tax Court
    • January 26, 1981
    ...in connection with the criminal prosecution involving Best and other participants in the numbers operation. See United States v. Best 363 F. Supp. 11, 15-19 (S.D. Ga. 1973). 4. Pub. L. 90-351, 82 Stat. 197. 5. 18 U.S.C. sec. 2518(10)(a) (1976), provides as follows: Sec. 2518. Procedure for ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT