United States v. Cantor

• Decision Date: 26 May 1971
• Docket Number: Crim. No. 70-454.
• Citation: 328 F. Supp. 561
• Parties: UNITED STATES of America v. Jerome CANTOR, a/k/a "Jerry," a/k/a "The Teacher", et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

328 F. Supp. 561

UNITED STATES of America v. Jerome CANTOR, a/k/a "Jerry," a/k/a "The Teacher", et al.

Crim. No. 70-454.

United States District Court, E. D. Pennsylvania.

May 26, 1971.

Richard T. Spriggs, Philadelphia, Pa., for plaintiff.

Mitchell Lipschutz, Edward Reif, Hal F. Doig, Benjamin R. Donolow, Leonard M. Sagot, Burton Satzberg, William D. Harris, Edmund DePaul, F. Emmett Fitzpatrick, Jr., Philadelphia, Pa., Frank E. Vittori, Camden, N. J., A. P. Filippone, Philadelphia, Pa., Edward I. Feinberg, Atlantic City, N. J., for defendants.

OPINION AND ORDER

VANARTSDALEN, District Judge.

Defendants are charged with a violation of interstate gambling laws. They are alleged to be involved in a conspiracy to obtain gambling information and accepting wagers on national sporting events. Attached as Exhibit # 1 is a complete list of all motions filed on behalf of the various defendants. The motions are largely based on similar allegations. I will, therefore, consider the motions jointly. To the extent that any motion raises an allegation unique as to the other defendants, I will consider it separately.

All defendants have filed motions for discovery and inspection pursuant to Rule 16, F.R.Crim.P. (1968). By my order of March 2, 1971, as amended March 12, 1971, a complete copy of the intercepted communications was made available to all defendants. Further, defendants and their counsel have been furnished with or given a reasonable opportunity to inspect and copy all material in the possession of the government contemplated by Rule 16(a). To the extent that any of the motions contemplate discovery and inspection of internal government documents and reports or the statements of government witnesses or the recorded testimony of witnesses, other than the defendants, before a grand jury, those motions will be and are hereby denied. See title 18, U.S.C., Section 3500(a) (1968).

All defendants have filed Motions for a Bill of Particulars. Count I of Indictment # 70-454 charges a conspiracy to commit offenses in violation of title 18, U.S.C., Section 1952.

"It was the object of said conspiracy that the defendants would carry on and facilitate the carrying on of an unlawful activity consisting of a business enterprise involving gambling offenses in violation of the laws of the States in which such offenses were committed, namely: Title 18, Purdon's Pennsylvania Statutes Annotated, Section 4607; Title 2A, New Jersey Statutes Annotated, Section 2A:112-3; Chapter 10, California Penal Code, Section 337a; Article 225, New York Penal Law, Section 225.05.

"It was the further object of said conspiracy that the defendants would use interstate telephone facilities and would cause interstate telephone facilities to be used with intent to carry on and facilitate the carrying on of said unlawful activity and that the defendants would thereafter perform and cause to be performed acts to carry on and facilitate the carrying on of said unlawful activity."

Forty-four overt acts are specified in that count which particularize the conspiracy to the various defendants. Having read the indictment, I find it to be sufficient in that it informs each defendant of the nature of the charge against him. Rule 7(f), F.R.Crim.P. (1968), leaves this matter to the discretion of the court. United States v. Cudia, C.A.Ill.1965, 346 F.2d 227, cert. denied, 382 U.S. 955, 86 S.Ct. 428, 15 L.Ed.2d 359; United States v. Jaskiewicz, D.C.Pa.1968, 278 F.Supp. 525; United States v. Stein, D.C.Pa.1966, 249 F.Supp. 873 (see also cases cited at pp. 476-477, 18 U.S.C., F.R.Crim.P., Rule 7, ann. # 359, 1966; also 1971 pocket part, p. 31). I find the indictment to be sufficient and therefore defendants' motions for a Bill of Particulars are hereby denied.

Most of the defendants have moved for a separate trial. Rule 14, title 18, U.S.C., F.R.Crim.P. (1968), Rule 14, is directed to the sound discretion of the court. The purpose of the Rule for Relief from Prejudicial Joinder appears to be to promote economy and efficiency and to avoid a multiplicity of trials, where this objective can be achieved without a substantial prejudice to the rights of defendants to a fair trial. Burton v. United States, No. 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. (See cases cited at ann. # 15, title 18 U.S. C.A., F.R.Crim.P., Rule 14, page 650; 1971 pocket part p. 59). In the recent Third Circuit case of United States v. Barber et al., 442 F.2d 517 (C.A.3rd 1971), filed April 14, 1971, the court had occasion to point out that a severance is within the discretion of the trial court. It appearing that all defendants are charged with a conspiracy as set forth in Count I of Indictment # 70-454 and particularized by the overt acts therein set forth, no defendant will be unduly prejudiced by a joint trial. United States v. Barber, supra. The defendants' argument that they will be prejudiced by a trial with some 15 other defendants simply because of the number of defendants lacks sufficient merit and this matter can be handled by special interrogatories to the jury. Defendants' motions for severance are hereby denied.

Defendants' motions to dismiss the indictment are found to be without merit and are, therefore, denied.

MOTION TO DISMISS WIRE TAP EVIDENCE

An evidentiary hearing was held on the defendants' motion to suppress certain intercepted telephone communications. All counsel for defendants were given timely notice of the hearing but only a few deemed the matter important enough to attend. On the first day of the hearing when all counsel were present, I ruled that all defendants would be bound by evidence produced at the hearing. It was understood that any counsel could submit any evidence he thought relevant to this issue. However, the only live testimony was that of the FBI agents who were connected with the case.

Upon the application of J. Shane Creamer, then Assistant United States Attorney, Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice, and the affidavit of Edward D. Hegarty, Special Agent of the Federal Bureau of Investigation, United States Department of Justice, an order was entered by John W. Lord, Jr., Chief Judge of this district, which order, authorized the interception of telephone conversations on two telephone numbers (215 TU6-5999, 215 TU6-1429).

Defendants' primary argument is that the affidavit is not sufficient on its face to show probable cause and thus the Order authorizing the wire tap was illegal and any evidence obtained by the wire tap must be suppressed. Defendants' second argument is that the statute circumscribing the issuance of the wire tap order was not complied with in that there was no showing that the Attorney General of the United States sanctioned the request and that the inventories were not filed within the proper time. Defendants also attack the constitutionality of the wire tap statute; however, no evidence was offered on this point.

I will first consider the evidence offered to show that the application was properly made.

Section 2516 of 18 U.S.C.A., Section 2516 (1968) reads in pertinent part as follows:

"(1) The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of—

* * * * * *

(c) any offense which is punishable under the following sections of this title: * * * section 1084 (transmission of wagering information) * * *

* * * * * *

(g) any conspiracy to commit any of the foregoing offenses."

At the hearing the Government offered two letters which were received in the regular course of business by the Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice. One letter was signed by John Mitchell, United States Attorney General, authorizing Mr. Will Wilson, Assistant United States Attorney General, to make the application for a wire tap in this case. The other letter, signed by Mr. Will Wilson, Assistant United States Attorney General, authorized the Philadelphia Strike Force to make such application. These letters were received in evidence over defendants' objection because they were received in the regular course of business of the Philadelphia Strike Force, Organized Crime Division of the United States Department of Justice. Based on these letters, I find that the application was authorized in conformity with the above section of the statute. It would seem entirely unnecessary and inappropriate to require at such a hearing direct oral testimony from the Attorney General of the United States and Mr. Will Wilson that the application to Chief Judge Lord for a wire-tap order was authorized.

SUFFICIENCY OF THE AFFIDAVIT

I have carefully read this 19-page affidavit and for the reasons set forth, infra, conclude that it is sufficient.

Title 18 U.S.C.A., Section 2518(1)(a) (1968) has been complied with. (See p. 1 of the affidavit.)

1. COMPLETE STATEMENT OF FACTS

Subsection (b) of Section 2518(1) provides as follows:

"(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the

...