United States v. Kohne

Decision Date25 August 1972
Docket NumberCrim. No. 71-254.
PartiesUNITED STATES of America v. William Paul KOHNE et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Samuel J. Orr, III, Asst. U. S. Atty., Pittsburgh, Pa., for United States.

James A. Ashton, Pittsburgh, Pa., for defendants, William Paul Kohne, Patrick Denham, and Jeanine Denham.

Martin M. Sheinman, Pittsburgh, Pa., for defendants, Jeanne Kosh, Patsy Stanizzo and Betty Howden Stanizzo.

Ray Radakovich, Pittsburgh, Pa., for defendant, Joseph Tabella.

P. J. McArdle, McArdle & Mansmann, Pittsburgh, Pa., for defendant, James Quay.

James R. Fitzgerald, Pittsburgh, Pa., for defendant, Paul Patrick Woods.

Gilbert M. Gerber, Pittsburgh, Pa., for defendant, Frank DeLucia.


MARSH, Chief Judge.

The defendants in this case have been charged in a two-count indictment with conspiring to violate 18 U.S.C. § 1955 in violation of 18 U.S.C. § 371 (Count One) and with the substantive violation, and aiding and abetting the substantive violation, of 18 U.S.C. § 1955 (Count Two). A large portion of the government's evidence against these defendants has apparently been derived from court-authorized wiretaps installed upon certain telephones under the authority of 18 U. S.C. §§ 2510-2520.

The defendants have filed numerous motions;1 an evidentiary hearing was held, and at this hearing and by orders issued afterwards many motions were ruled upon and disposed of. This memorandum is to dispose of defendants' motions aimed at suppressing evidence and dismissing the indictment.

With the exception of the motions of defendants Patsy Stanizzo and Betty Howden Stanizzo the motions to suppress evidence are aimed at the constitutionality, validity and purity of the procedures utilized by the government in this case in installing and gathering evidence against these defendants via court-authorized wiretaps. The following points have been raised by the defendants which merit some discussion:2

1. The statute authorizing interception of telephone communications, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510, 2520 is unconstitutional.

2. The applications for the court orders authorizing interceptions of telephone communications were not properly authorized.

3. Toll records of the telephone company were illegally obtained by the United States Attorney's Office and used in the applications for court orders authorizing interceptions.

4. The court orders authorizing interceptions were not based upon probable cause.

5. The search of the residence of Patsy Stanizzo and Betty Howden Stanizzo was not based upon probable cause, and certain monies seized in that search should be returned.

In addition, the defendants have moved to dismiss the indictment asserting:

6. The illegal gambling businesses statute, 18 U.S.C. § 1955, is unconstitutional.

7. The conspiracy count represents a duplication of the substantive offense set out in 18 U.S.C. § 1955 and should be dismissed.

1. Constitutionality of 18 U.S.C. §§ 2510-2520.

The constitutionality of the provisions of 18 U.S.C. §§ 2510-2520, which authorize the interception of private telephone communications upon a showing of probable cause are currently before numerous Circuit Courts, and the defendants have not put great emphasis on this point in their briefs.

The standards for testing the constitutionality of a wiretap statute are set forth in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966). Nothing said in the defendants' skeletal briefs on this issue has convinced us that the provisions of 18 U.S.C. §§ 2510-2520 do not meet these standards or that they are, per se, outside the parameters of the constitutional guarantees protecting the privacy of individuals. The majority of cases passing on this issue have held that the provisions of 18 U.S.C. §§ 2510-2520, as written by Congress, are constitutional. United States v. Cox, 449 F.2d 679 (10th Cir. 1971); United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa.1971); United States v. King, 335 F.Supp. 523 (S.D. Cal. 1971); United States v. Perillo, 333 F.Supp. 914 (D.C.Del.1971); United States v. Leta, 332 F.Supp. 1357 (M.D. Pa.1971); United States v. Scott, 331 F.Supp. 233 (D.C.D.C.1971); United States v. Cantor, 328 F.Supp. 561 (E.D. Pa.1971); United States v. Sklaroff, 323 F.Supp. 296 (S.D.Fla.1971); contra, United States v. Whitaker, 343 F.Supp. 358 (E.D.Pa.1972). We follow the majority and hold 18 U.S.C. §§ 2510-2520 to be constitutional.

2. Authorization for Wiretaps.

The defendants complain that the wiretaps were not properly authorized as required by 18 U.S.C. § 2516(1) which provides:

"(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 * * *."

Initially, to clarify this issue, the government filed the affidavits of Sol Lindenbaum and Henry E. Petersen. Sol Lindenbaum's affidavit avers that Attorney General Mitchell personally initialed the memoranda on February 1, March 3, March 24, and May 6, 1971, authorizing Will Wilson to exercise the powers conferred on the Attorney General under 18 U.S.C. § 2516(1). Henry E. Petersen's affidavit shows that following approval in the office of the Attorney General, he, rather than Will Wilson, signed Will Wilson's name to letters authorizing Kenneth A. Bravo to present applications to this court requesting approval of the wiretaps involved in this case.

At the evidentiary hearing Attorney Ashton cast a cloud over the accuracy of the Lindenbaum affidavit by producing a memorandum from the case of United States v. LaGorga, supra, 336 F.Supp. p. 195, purportedly initialed by Attorney General Mitchell, but which, when compared with the memoranda in this case, showed distinctly different handwriting on the two memoranda. This court indicated that it was inclined to allow the defendants to depose the former Attorney General to determine if he had, in fact, initialed both memoranda. The government then brought to the attention of the court that certain of the memoranda in the LaGorga case had not been personally signed by Attorney General Mitchell.3 To dispel any confusion that existed concerning who authorized and initialed the memoranda in this case, the defendants were given permission to depose former Attorney General Mitchell by way of written interrogatories. The defendants submitted written interrogatories. Mr. Mitchell did not answer these interrogatories but instead presented an affidavit which established to the satisfaction of the court that the memoranda in this case were initialed by Attorney General Mitchell personally.4

We are faced with a split of authority concerning the validity of the authorization which occurred in this case. Two district courts have recently indicated that such memoranda would be insufficient to comply with § 2516(1). See: United States v. Casale, 341 F. Supp. 374 (M.D.Pa.1972); United States v. Focarile, 340 F.Supp. 1033 (D.C.Md. 1972). But, the majority of the courts passing on the issue have concluded that a memorandum personally initialed by the Attorney General meets the requirements of 18 U.S.C. § 2516(1). United States v. Pisacano, 459 F.2d 259 (2d Cir. 1972); United States v. Consiglio, 342 F.Supp. 556 (D.C.Conn. 1972); United States v. Doolittle, 341 F.Supp. 163 (M.D.Ga.1972); United States v. D'Amato, 340 F.Supp. 1020 (E.D.Pa.1972); United States v. Iannelli, 339 F.Supp. 171 (W.D.Pa.1972); United States v. Aquino, 336 F.Supp. 737 (E.D.Mich.1972); United States v. Cantor, 328 F.Supp. 561 (E.D.Pa. 1971); United States v. LaGorga, 336 F.Supp. 190 (W.D.Pa.1971). Here, Attorney General Mitchell personally authorized this wiretap and, therefore, authorization can be traced to a publicly responsible official, subject to political process. Cf. United States v. Robinson, 468 F.2d 189 (5th Cir. 1972); United States v. Narducci, 341 F.Supp. 1107 (E.D.Pa.1972). We hold that on the facts presented in this case, the wiretaps were properly authorized; to hold otherwise would be to put form over substance and would negate the countless hours spent by law enforcement officials gathering evidence for this case. If the statute is constitutional, a request for authorization which has been personally reviewed and granted by the Attorney General complies with requirements of 18 U.S.C. § 2516, even if it incorrectly appears on the court records that Will Wilson was the authorizing officer.

3. The Telephone Toll Records.

The affidavits supporting the wiretap authorizations show that certain telephone company toll records were in the hands of government authorities at the time the affidavits were prepared. Defendants contend that these records were illegally obtained by the government.

At the evidentiary hearing, the government represented to the court that the disputed toll records were obtained by Grand Jury subpoena, but could not verify if the records were in fact ever presented to a Grand Jury or used for any other reason except to facilitate the government's investigation. The government was ordered to inform the court if these records were ever presented to the Grand Jury (Tr., p. 304). In response to this order, the court was supplied with a memorandum from the office of the United States Attorney for the Western District of Pennsylvania entitled "Obtaining Telephone Toll Slips from the Bell Telephone Company of Western Pennsylvania et al." and copies of subpoenas for the toll records involved in this case. The procedure outlined in this memorandum is as follows:

The investigating officer...

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7 cases
  • Iannelli v. United States 8212 64
    • United States
    • U.S. Supreme Court
    • March 25, 1975
    ...in which the prosecution also charged violation of § 1955. In this case, 339 F.Supp. 171 (WD Pa.1972), and in United States v. Kohne, 347 F.Supp. 1178, 1186 (WD Pa.1972), however, the courts held that the Rule's purposes can be served equally effectively by permitting the prosecution to cha......
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    • U.S. Court of Appeals — District of Columbia Circuit
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    ...the event, and he must be deemed to consent to whatever record the business convenience of the company requires."); United States v. Kohne, 347 F.Supp. 1178 (W.D.Pa.1972). See also the following cases upholding admissibility of toll-call-billing records in criminal trials: Wood v. United St......
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    • U.S. District Court — Eastern District of Pennsylvania
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    ...Grounds one through five above were decided adversely to defendants when this court ruled on their pretrial motions, United States v. Kohne, 347 F. Supp. 1178 (W.D.Pa.1972).2 Ground six is untimely3 and without merit since the failure to file reports with the Administrative Office of the Un......
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    • July 13, 1973
    ...United States v. Vigi, 350 F. Supp. 1008 (E.D.Mich.1972); United States v. DeCesaro, 349 F.Supp. 546 (E. D.Wis.1972); United States v. Kohne, 347 F.Supp. 1178 (W.D.Pa.1972); United States v. Mainello, 345 F.Supp. 863 (E.D.N.Y.1972); United States v. D'Amato, 340 F.Supp. 1020 (E.D.Pa. 1972);......
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3 books & journal articles
  • §29.09 DEFENSES
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Chapter 29 Conspiracy
    • Invalid date
    ...can dispose of property by throwing it away.[183] . See, e.g., State v. Miller, 929 P.2d 372, 378 (Wash. 1997); United States v. Kohne, 347 F. Supp. 1178, 1185-86 (W.D. Pa. 1972).[184] . See § 29.03[B][1], supra.[185] . Developments in the Law, Note 1, supra, at 955.[186] . Iannelli v. Unit......
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    ...can dispose of property by throwing it away.[183] See, e.g., State v. Miller, 929 P.2d 372, 378 (Wash. 1997); United States v. Kohne, 347 F. Supp. 1178, 1185-86 (W.D. Pa. 1972). [184] See § 29.03[B][1], supra.[185] Developments in the Law, Note 1, supra, at 955.[186] Iannelli v. United Stat......
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