United States v. Frizzell, Cr. No. 1-75-12.
| Decision Date | 01 July 1975 |
| Docket Number | Cr. No. 1-75-12. |
| Citation | 400 F. Supp. 268 |
| Parties | UNITED STATES of America v. Ernest Leon FRIZZELL and Billy Ray Lee et al. |
| Court | U.S. District Court — Eastern District of Tennessee |
John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., Hugh Moore, Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff.
Don Poole, Chattanooga, Tenn., for Marchman.
LeRoy Phillips, Jr., Chattanooga, Tenn., for Wells.
Arvin Reingold, Chattanooga, Tenn., for Frizzells.
Herbert Bacon, Morristown, Tenn., for Lee.
Billy Ray Lee, along with five other persons, is charged in a one-count indictment with unlawfully, willfully and knowingly conducting an illegal gambling business involving sports bookmaking, in violation of the laws of Tennessee, and that the said gambling business involved five or more persons who conducted, financed, managed, supervised, directed, and owned all or a part of said gambling business which had a gross of $2,000.00 or more in a single day, in violation of Title 18 U.S.C. § 2 and § 1955.1 Section 2 is the aiding and abetting statute.
Lee has filed two motions to suppress all communications that were intercepted by the Federal Bureau of Investigation pursuant to an order issued by Judge Wilson on October 30, 1974, on the grounds that said communications were intercepted in violation of Title 18 U.S.C. § 2518(1)(b)(iv)2 and § 2518(4) (a)3 and the Fourth and Fifth Amendments to the Constitution of the United States. Movant contends that the order of authorization under which the message was intercepted was insufficient on its face and that the defendant was not served with an inventory complying with Section 2518(8)(d)4 within ninety days as required by said Section.
Defendant contends that the Government on the day that it sought the order of interception knew that defendant Lee was one of the persons committing the offense charged in the indictment and that under § 2518(1)(b)(iv) it was required to specifically name him in the application for interception. The basis for this contention is found in the affidavit of W. John Benton, Special Agent of the Federal Bureau of Investigation, which supported the application for the interception. Under paragraph 18 of the affidiavit, it is stated that a source had furnished information to Benton that Lee was a known bookmaker who operates The Sportsman, 223 West Main Street, Morristown, Tennessee; that the source stated Lee's telephone listing in Knoxville is used by bettors and bookmakers to obtain line information and to make wagers on sports events with Lee. The source stated that he had obtained line information on sporting events by calling No. XXX-XXX-XXXX, which was Lee's phone number. In paragraph 19 of the affidavit, it is stated that on September 12, 1975 Special Agent Moody of the Federal Bureau of Investigation advised affiant that on September 12, 1974 Lee advised the Special Agent that he owns and operates the Sportsman, 223 West Main Street, Morristown, Tennessee, Telephone No. XXX-XXX-XXXX. That Lee admitted being a bookmaker, accepting wagers on sports events and operating from Telephone No. XXX-XXX-XXXX. Lee also admitted furnishing daily line information on sports events to bettors and other bookmakers in Tennessee when telephonic request is made through telephone number XXX-XXX-XXXX. In paragraph 21 it is stated that on September 17, 1974 and October 17, 1974 a review of South Central Bell Telephone Company records, Chattanooga, Tennessee, obtained through grand jury subpoena reveals that Chattanooga telephone numbers XXX-XXX-XXXX, XXX-XXX-XXXX and XXX-XXX-XXXX are rotary numbers, that is, a main line with two more additional lines strapped to this line. When a telephone call is received on 886-4404 and this number is busy, the rotary equipment will automatically advance the call to 886-4405, and if 886-4405 is busy, the equipment will advance the call to 886-4406. This telephone was installed April 18, 1972, at Box 588, River Canyon Road, Chattanooga, Tennessee, 37405, subscribed to by J. C. McKinney. A review of the telephone company records reveal almost daily calls to Knoxville, Tennessee, telephone number XXX-XXX-XXXX, and calls to Morristown telephone number 586-6881 from February 5, 1974 to October 4, 1974.
Defendant relies upon the recent case of United States v. Thomas W. Donovan, 513 F.2d 337 (6th Cir. 1975). One of the issues in that case was whether the Government knew or had reason to believe that defendants, Donovan, Robbins and Buzzacco, were known to the Government, within the meaning of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, and that failure to include their names in the applications and orders necessitated the suppression of the contents of the intercepted communications and the evidence derived therefrom. The trial court found that the Government had such knowledge and suppressed the evidence.
The second issue was whether Merlo and Lauer were served with notices of inventory and whether failure to serve them required a suppression of the evidence obtained by the interception. The trial court again held that Merlo and Lauer were not served and that the interest of justice required that the evidence as to them be suppressed. The Court pointed out that Title III requires that when the Government applies for a wire tap authorization "the identity of the person, if known, committing the offense and whose communications are to be intercepted" must be disclosed specifically. 18 U.S.C. § 2518(1)(b) (iv). The Court concluded that there could be no doubt on the record that Donovan and Robbins were known. The Government contended that Buzzacco was not known but the Court held that his name, along with Donovan and Robbins, should have been disclosed to the district judge. The court pointed out that the meaning of the term "known" in 18 U.S.C. § 2518(1)(b)(iv) was defined by the Supreme Court in the case of United States v. Kahn, 415 U.S. 143, 155, 94 S.Ct. 977, 984, 39 L.Ed.2d 225 (1974), as follows:
". . . that Title III requires the naming of a person in the application or interception order only when the law enforcement authorities have probable cause to believe that that individual is `committing the offense' for which the wiretap is sought . . ."
The District Court found:
During a ten week period in June and July, 1972, ninety-one telephone calls placed by prime suspects in the case were traced to a Youngstown, Ohio telephone number which was known to be listed under one of Buzzacco's aliases. The FBI knew from previous investigations that Buzzacco had a reputation for being a bookmaker. He moved his place of operation to Niles, Ohio in the summer of 1972. The record was not conclusive as to the date that physical surveillance placed Buzzacco at the Niles address, although it may have been as late as December, 1972. Prior to that time physical surveillance of that address had been conducted. Telephone calls placing lay-off bets were intercepted between the other suspects and a person at the Niles number variously identified as "Buzz" or "Buzzer." At the hearing on the motion to suppress, agent Ault, upon whose affidavit the wire tap orders were based, testified that he had "suspicions" that Buzzacco was involved in the gambling activities prior to the submission of the wiretap applications.
The court concluded that these facts were adequate to demonstrate "a probability of criminal conduct." Coury v. United States, 426 F.2d 1354, 1356 (6th Cir. 1970). The trial court held that at the time the applications for wire taps were made the Government had probable cause to believe that Buzzacco was engaged in the illegal gambling activities for which the intercept authorization was sought and he should have been named in the application.
The Sixth Circuit was evidently of the opinion that the holding of the trial court was not clearly erroneous and therefore affirmed it.
The situation in the present case is different from that in the Donovan case. The information about Lee is shown on paragraphs 18 and 19, page 13, of the Benton affidavit as follows:
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United States v. Marchman
...pursuant thereto in a Memorandum Opinion denying a Motion to Suppress Evidence by co-defendant Billy Ray Lee. United States v. Frizzell et al., 400 F.Supp. 268 (E.D.Tenn.1975). The wiretapping provisions of the Omnibus Crime Control and Safe Streets Act (18 U.S.C. §§ 2510-2020) have been he......