United States v. Kleve, No. 71-1702.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtVAN OOSTERHOUT and MURRAH, Senior Circuit , and HEANEY, Circuit
Citation465 F.2d 187
PartiesUNITED STATES of America, Appellant, v. Vernon James KLEVE et al., Appellees.
Decision Date25 July 1972
Docket NumberNo. 71-1702.

465 F.2d 187 (1972)

UNITED STATES of America, Appellant,
v.
Vernon James KLEVE et al., Appellees.

No. 71-1702.

United States Court of Appeals, Eighth Circuit.

Submitted June 13, 1972.

Decided July 25, 1972.


465 F.2d 188
COPYRIGHT MATERIAL OMITTED
465 F.2d 189
Robert J. Vedatsky, Atty., Dept. of Justice, Washington, D. C., Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellant

Keith D. Kennedy, St. Louis Park, Minn., for appellee Bohn.

Ronald L. Haskvitz, Minneapolis, Minn., for Kleve, and others.

John Wylde, Thomson, Wylde & Nordby, Douglas W. Thomson, Jack S. Nordby, Saint Paul, Minn., for appellees Rubertos.

Before VAN OOSTERHOUT and MURRAH*, Senior Circuit Judges, and HEANEY, Circuit Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

Defendants Vernon James Kleve, Neil Thomas Naftalin, John Ruberto, Vivian E. Ruberto, George M. Patterson, Joseph C. Sierbinski, Richard S. Randazza, David Bohn, Peter Cohen, Evelyn D. Kleve and Max Weisberg were indicted by the grand jury on charges of violating 18 U.S.C.A. § 1955 and of conspiring to violate said statute under 18 U.S.C.A. § 371.

Chief Judge Devitt, upon application supported by affidavit authorized by the Attorney General, by order entered April 28, 1970, had authorized pursuant to 18 U.S.C.A. § 2518 a tap on three phones located at 1414 South Third Street, Minneapolis, for a period of not to exceed fifteen days. The wiretap was put into operation from April 29 to May 12 and conversations of the defendants were intercepted thereunder.

Judge Larson, before whom this case was pending, on November 5, 1971, sustained motions of all defendants to suppress the contents of the intercepted communications and any evidence subsequently seized as a result of the tap. The basis of the decision, set out in a detailed memorandum opinion (337 F. Supp. 557) will be discussed hereinafter.

For reasons hereinafter stated, we reverse and vacate the suppression order.

The Government filed notice of appeal from the suppression order on November 26, 1971. On December 28, 1971, the Government filed an affidavit by Thorwald Anderson, Jr., stating that he is Assistant United States Attorney for the District of Minnesota acting on behalf of the United States Attorney; that he has filed an appeal from the suppression order in this case pursuant to 18 U.S.C.A. § 3731; that the appeal is not brought for the purpose of delay, and that the suppressed evidence is a substantial proof of a fact material in the proceedings. The affidavit is dated and notarized on November 26, 1971.

Four separate briefs are filed upon behalf of the various defendants. The principal issues raised by all parties are: (I.) Is this court without adequate jurisdiction to entertain this appeal because the certification required by § 3731 was not made within the thirty days allowed for appeal? (II.) Is the trial court's finding that the affidavit in support of the wiretap application is insufficient to show probable cause to believe that the five persons named therein were engaged in a gambling operation within the meaning of 18 U.S.C.A. § 1955 clearly erroneous?

Some defendants raise additional issues attacking the sufficiency of the application and the constitutionality of the wiretap statutes. The issues raised will be considered in the order just stated.

I.

18 U.S.C.A. § 3731 expressly authorizes an appeal to the Court of Appeals from a pretrial decision of the District Court suppressing evidence "if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." Defendants contend that the certification provision just quoted constitutes a condition precedent to a § 3731 appeal and that the filing of the affidavit

465 F.2d 190
within the thirty-day period allowed for an appeal is mandatory. The only case interpreting this aspect of the statute that we can find is United States v. Welsch, 10 Cir., 446 F.2d 220, which holds
"The statute allowing a Government appeal does not expressly set a time limitation for certification. A failure to file the certificate within thirty days is an irregularity in perfecting the appeal but does not operate to deprive the court of jurisdiction." 446 F.2d 220, 224.

The time for taking appeals under § 3731 is the same provided generally for taking criminal appeals by Rule 3, F.R. A.P. Such rule contains a provision reading:

"Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal."

Section 3731 contains an express provision reading: "The provisions of this section shall be liberally construed to effectuate its purposes."

Section 3731 makes no requirement that the District Court pass upon the validity of the United States Attorney's certification. In this respect the statute differs significantly from statutes like 28 U.S.C.A. § 1292(b) where the District Court is required to make a certification and the time for appeal is directly tied to the date of the certification. If in the present situation Congress intended the certification within the period for appeal to be jurisdictional, we believe that it would have said so. No possible prejudice to the defendants' rights has been shown by the slight delay in the filing of the certificate. We are satisfied from our examination of the record that the certification is factually supported.

Defendants' contention that the Assistant United States Attorney in charge of the prosecution cannot be delegated authority by the United States Attorney to file the certificate lacks merit. We hold that we have jurisdiction to entertain this appeal.

II.

Judge Larson in his memorandum opinion correctly determined that among the requirements to be met to authorize a wiretap is the portion of 18 U. S.C.A. § 2518 reading:

"`there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;\' 18 U.S.C. § 2518(3) (a)."

The wiretap application alleges a violation of 18 U.S.C.A. § 1955 which is one of the particular offenses enumerated in...

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39 practice notes
  • U.S. v. Armocida, No. 74-1090
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 23, 1975
    ...of conduct involving illegal activity and provides probable cause to believe Conti was a participant. See, e. g., United States v. Kleve,465 F.2d 187, 191-93 (8th Cir. 1972); Hernandez v. United States, 353 F.2d 624, 627 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2......
  • 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
    ...U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974), reh. denied, 419 U.S. 885, 95 S.Ct. 156, 42 L.Ed.2d 128 (1974); United States v. Kleve, 465 F.2d 187 (8th Cir. IX. EXTENSION OF THE ORIGINAL AFFIDAVIT Defendants premise their suppression motion upon a violation of the Maryland wiretap provisi......
  • Gray v. Creamer, No. 71-1714.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 14, 1972
    ...confinement in punitive or administrative segregation, in which they were allegedly "not permitted out of their cells for any period 465 F.2d 187 of time, . . . deprived of personal belongings, visits, and other rights afforded the general prison population." Complaint, ¶ 39. We n......
  • U.S. v. Kirk, Nos. 75-1359
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 17, 1976
    ...sense * * *." Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637, 645 (1969); United States v. Kleve, 465 F.2d 187, 193 (8th The five-page application in this case was supported by a ten-page affidavit of DEA agent Reiff. It was a detailed statement of the ......
  • Request a trial to view additional results
39 cases
  • U.S. v. Armocida, No. 74-1090
    • United States
    • U.S. Court of Appeals — Third Circuit
    • April 23, 1975
    ...of conduct involving illegal activity and provides probable cause to believe Conti was a participant. See, e. g., United States v. Kleve,465 F.2d 187, 191-93 (8th Cir. 1972); Hernandez v. United States, 353 F.2d 624, 627 (9th Cir. 1965), cert. denied, 384 U.S. 1008, 86 S.Ct. 1972, 16 L.Ed.2......
  • 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
    ...U.S. 917, 94 S.Ct. 2622, 41 L.Ed.2d 222 (1974), reh. denied, 419 U.S. 885, 95 S.Ct. 156, 42 L.Ed.2d 128 (1974); United States v. Kleve, 465 F.2d 187 (8th Cir. IX. EXTENSION OF THE ORIGINAL AFFIDAVIT Defendants premise their suppression motion upon a violation of the Maryland wiretap provisi......
  • Gray v. Creamer, No. 71-1714.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 14, 1972
    ...confinement in punitive or administrative segregation, in which they were allegedly "not permitted out of their cells for any period 465 F.2d 187 of time, . . . deprived of personal belongings, visits, and other rights afforded the general prison population." Complaint, ¶ 39. We n......
  • U.S. v. Kirk, Nos. 75-1359
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 17, 1976
    ...sense * * *." Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637, 645 (1969); United States v. Kleve, 465 F.2d 187, 193 (8th The five-page application in this case was supported by a ten-page affidavit of DEA agent Reiff. It was a detailed statement of the ......
  • Request a trial to view additional results

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