United States v. Kleve

Decision Date25 July 1972
Docket NumberNo. 71-1702.,71-1702.
PartiesUNITED STATES of America, Appellant, v. Vernon James KLEVE et al., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

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 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 § 2516.

Section 1955 is a complex statute making it unlawful to engage in an "illegal gambling business" which is defined by § 1955(b) (1) as follows:

"(i) is a violation of the law of a State or political subdivision in which it is conducted;
"(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and
"(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day."

Items (i) and (iii) of the definition are satisfactorily established. The controversy relates to item (ii). The trial court correctly determined that a prerequisite for showing probable cause to believe § 1955 had been violated is evidence of participation by at least five persons who "conduct, manage, supervise, direct, or own all or part of such business." The trial court also determined that the probable cause requirements of § 2518 should at least be interpreted as strictly as probable cause for a search warrant under the Fourth Amendment. Berger v. State of New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040, and that when, as here, the affidavit is based on an informant's statements, the standards set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, must be applied.

Under such authorities, an affidavit may properly rest on hearsay as long as it sufficiently presents to the issuing judicial officer the underlying facts and circumstances both (1) from which the informant drew his conclusions and (2) from which the affiant concluded that the informant was credible and his information reliable. We agree that such are appropriate standards.

The trial court properly found that the second test relating to the reliability of the informants has been met. The affidavit is based on information provided by three unnamed informants, all known gamblers. Number one over a four-year period furnished information of gambling activities on at least thirty-five occasions which information had always proved reliable. Number two had furnished gambling information on at least one hundred occasions over a sixteen-year period which investigation had always proved to be reliable. Number three has been a gambler for over twenty-five years and since 1965 has furnished information on other occasions which on investigation has proved to be reliable.

The affidavit in support of the wiretap, which consists of seventeen pages, is signed by Richard Anderson, Special Investigator for the FBI, an agent with nineteen years experience, seven of which were devoted to gambling activities. Based upon his experience with gambling activities and information provided by the informants, some of which upon investigation has been corroborated, he asserts there is probable cause to believe that Kleve, Patterson, Weisberg, Mancino and Randazza, and others as yet unknown, are engaged in illegal gambling activities in violation of § 1955.

Judge Larson held that the affidavit clearly provided probable cause to believe that Kleve, Patterson and Weisberg were engaged in illegal gambling operations. Such determination is clearly supported and is not contested. Judge Larson also determined that there may be probable cause to believe that Mancino was also involved upon the basis of an admission to that effect made to an informer. He held, however, that the affidavit failed to set out underlying facts and circumstances to establish probable cause to believe that Randazza was engaged in the illegal gambling enterprise and hence that there...

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