United States v. Kohne, Crim. A. No. 71-254.

• Decision Date: 25 April 1973
• Docket Number: Crim. A. No. 71-254.
• Parties: UNITED STATES of America v. William Paul KOHNE et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

358 F. Supp. 1053

UNITED STATES of America v. William Paul KOHNE et al.

Crim. A. No. 71-254.

United States District Court, W.D. Pennsylvania.

April 25, 1973.

COPYRIGHT MATERIAL OMITTED

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

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

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

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

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

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

OPINION AND ORDER

MARSH, Chief Judge.

The ten original defendants in the above captioned case were charged in a two-count indictment with conspiring to violate the federal statute prohibiting illegal gambling businesses, 18 U.S.C. § 1955, in violation of 18 U.S.C. § 371 (Count one) and with the substantive violation of 18 U.S.C. § 1955 (Count two). Two of the indicted defendants, Jeanne Kosh and James Quay, pleaded guilty to the substantive violation immediately after the jury was sworn to try this case. After a five and one-half week jury trial, at which the government presented evidence gathered via court-authorized wiretaps, the remaining eight defendants were found guilty of the substantive violation of 18 U.S.C. § 1955 and acquitted of the conspiracy.

After the jury's verdict, two of the defendants, Patsy and Betty Stanizzo, moved for and were granted judgments of acquittal for the reasons stated in a separate opinion. The remaining six convicted defendants (William Paul Kohne, Paul Patrick Woods, Joseph Tabella, Patrick Denham, Jeanine Denham, and Frank DeLucia) have filed motions for judgment of acquittal and for a new trial.¹ In our opinion the motions should be denied. We consider seriatim the following grounds for a new trial raised by defendants:

(1) The court erred in not suppressing the evidence gathered by wiretaps installed on certain telephones.

(2) The voices of certain defendants were not properly identified and therefore the wiretap conversations were erroneously admitted as evidence against them.

(3) The jury's verdict was inconsistent and a nullity.

(4) The court erred in allowing opinion and expert witness testimony.

(5) The court's charge and supplemental instructions were erroneous.

(6) The evidence derived from the search of defendant Tabella's residence should have been suppressed.

(7) The court erred in allowing the trial to continue after two of the defendants pleaded guilty.

(8) The court erred in allowing the jury to view transcripts of the wiretap conversations and to wear earphones while the conversations were played.

Finally, we also consider defendants' contentions that they are entitled to judgments of acquittal because the verdicts are against the weight and sufficiency of the evidence.

Admissibility of Wiretap Evidence

Defendants assert and reassert that this court erred in not suppressing the wiretap evidence because:

(1) Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, is unconstitutional;

(2) the affidavits filed in support of the wiretap applications lack probable cause;

(3) defendants' toll records were used illegally in establishing probable cause;

(4) the wiretap application was not properly authorized under 18 U.S.C. § 2516(1); (5) the wiretap applications fail to show why other investigative techniques would fail as required by 18 U.S.C. § 2518(3);

(6) the government failed to comply with 18 U.S.C. § 2519 requiring reports to be filed with the Administrative Office of the United States Courts;

(7) the government failed to serve copies of the wiretap applications and court orders on all parties at least ten days before trial as required by 18 U.S. C. § 2518(9);

(8) the government presented duplicate tapes, rather than the sealed originals, to the grand jury.

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 United States Courts is not one of the specifically enumerated grounds for suppression provided under 18 U.S.C. § 2518(10)(a). Grounds seven and eight were ruled upon at trial and merit brief discussion here.

As alleged by the defendants in ground seven, the government failed to serve the defendants copies of the applications and court orders for the wiretaps involved in this case at least ten days prior to trial as required by 18 U. S.C. § 2518(9). But, defendants do not contend, nor can they, that this was a deliberate bypassing of the requirement of the Act or that they have been prejudiced by this failure in any manner. The purpose of 18 U.S.C. § 2518(9) is to provide a defendant with notice so that he can move to suppress wiretap evidence prior to trial. U.S.Code Cong. and Admin.News, 1968, p. 2195. The defendants in this case did move to suppress the wiretap evidence prior to trial, asserting as one of the grounds therefor that the applications for the court orders authorizing the wiretaps did not set forth probable cause. At the hearing on their motions on March 16, 1972, defendants, by their counsel, extensively cross-examined witnesses using the applications and court orders they now complain were not served on them ten days prior to trial.⁴ Furthermore, these documents were offered into evidence as exhibits at this hearing,⁵ and prior to the hearing had been public records on file in the Office of the Clerk of Court since January 14, 1972.⁶ Since the record clearly establishes that defendants had access to these documents almost one year prior to trial and, in fact, moved to suppress the wiretap evidence because of alleged insufficiencies in them, we find substantial compliance with the statute, and hold that the refusal to suppress the wiretap evidence during the trial was correct. United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972); cf. United States v. Eastman, 465 F.2d 1057 (3d Cir. 1972).

In ground eight above the defendants moved to suppress the wiretap evidence because the tapes presented to the grand jury were duplicates of the sealed tapes used at trial. The sealing procedure required by 18 U.S.C. § 2518(8)(a) is aimed at protecting the confidentiality of the tapes and, as a secondary purpose, aids in establishing a chain of custody at trial. United States v. Cantor, 470 F.2d 890, 893 (3d Cir. 1972); United States v. Poeta, 455 F.2d 117, 122 (2d Cir. 1972). But 18 U.S.C. § 2518(8)(a) also specifically provides that duplicate tapes may be made, and 18 U.S.C. § 2517(2) allows law enforcement officers to use duplicate tapes "to the extent such use is appropriate to the proper performance of their duties." We believe that it was appropriate under 18 U.S.C. §§ 2517(2), 2518(8)(a) to prepare and present duplicate tapes to the grand jury so that the sealed originals would remain intact for inspection by defendants and use at trial. In our opinion this procedure did not require that all wiretap evidence be suppressed.

Adequacy of the Voice Identification

Defendants, Tabella, Woods, and DeLucia, object to the admission of wiretap recordings of phone conversations against them, contending that their voices were never properly identified so as to establish their participation in these conversations. We disagree.

As to Woods and Tabella, their voices were identified by Special Agents Thompson and Britton, respectively. Also, the evidence showed that the phones that were tapped were located in their residences, and they were referred to by name during both incoming and outgoing calls occurring on these phones.⁷ The identification evidence by the agents, coupled with the strong circumstantial evidence, satisfactorily identified their voices so as to support the jury's findings that they were the participants in the gambling conversations. United States v. Alper, 449 F.2d 1223, 1229 (3d Cir. 1971); Carbo v. United States, 314 F.2d 718, 743 (9th Cir. 1963). Moreover, William Kohne testified in his own defense and implicated Woods and Tabella in his gambling business.

The identification of Frank DeLucia's voice presents a different problem. DeLucia's voice was not identified by any witness and the government relies entirely on circumstantial evidence to support its contention that his is the voice on the recordings; this mode of identification is complicated by the fact that Frank DeLucia's adult son, Frank DeLucia, Jr., allegedly resided with him.⁸ The circumstantial evidence adequately established that someone named "Frank" received and placed telephone calls dealing with illegal gambling from telephones located in the DeLucia residence. Two sets of calls support the government's contention that the senior DeLucia was the "Frank" participating in the gambling operation.⁹ In these calls, Woods called the DeLucia residence, a child answered, Woods asked if the child's father, "Frank", was there; DeLucia's wife, "Becky", then came to the phone and informed Woods that "Frank" was at Leo's; Woods then called a number registered to Leo T. McGrath and spoke to "Frank" about the gambling operation. Based on these two sets of conversations the jury could find, with reason, that the senior DeLucia, rather than his son, was participating in the illegal gambling operation.¹⁰

The Inconsistency in the Jury's Verdicts

Numerous objections are based upon the jury's verdicts being inconsistent in that they acquitted the defendants of conspiracy and convicted them of the substantive violation. Defendants contend that the indictment was duplicitous; that the jury's verdicts are inconsistent and a nullity; and, because the defendants were ultimately acquitted of the conspiracy count, declarations of co-conspirators...