United States v. McHale

• Decision Date: 08 April 1974
• Docket Number: No. 73-1860,73-1861.,73-1860
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence McHALE et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.2d 15 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Lawrence McHALE et al., Defendants-Appellants.

Nos. 73-1860, 73-1861.

United States Court of Appeals, Seventh Circuit.

Argued January 25, 1974.

Decided April 8, 1974.

Gerald M. Werksman, William J. Stevens, Chicago, Ill., for defendants-appellants.

James R. Thompson, U.S. Atty., Michael D. Groark, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.

PER CURIAM.

Defendants Lawrence McHale, James Traub, Chester Labiak, Daniel Vuletich, Henry Krauth, Sr., and August Krauth were indicted with three other persons not named as defendants for conducting an illegal gambling operation in violation of Illinois law and hence in violation of 18 U.S.C. § 1955. McHale, Traub and Labiak were convicted by a jury. Traub was placed on probation for 3 years and fined $1,500; Labiak was placed on probation for 2 years and fined $1,500; and McHale was placed on probation for 3 years.

On appeal the defendants contended (1) the wiretap order was tainted by information obtained through another wiretap declared illegal by this court; (2) the government failed to follow statutory authorization procedures in obtaining the wiretap order and the evidence obtained thereby; (3) the application for the wiretap order did not establish probable cause; and (4) the defendants did not conduct a 5-or-more persons gambling operation.

1. Prior illegal wiretap. In United States v. Roberts, 477 F.2d 57 (7th Cir.1973), we held (a) that the content of communications intercepted on the telephone of Charles Bishop Smith was properly suppressed because neither the Attorney General nor any Assistant Attorney General specially designated by him authorized the wiretap applications and (b) that wiretap evidence directed against defendants "overheard on the property suppressed Smith wiretaps" was also properly suppressed.

The argument in the present case sought to extend Roberts a step farther inasmuch as none of the present defendants was overheard on the Smith wiretaps. Instead, the affidavit supporting the application for the wiretap recited in 3 of its 43 numbered paragraphs that Smith's telephone had been tapped (par. 16), that through that tap it was learned that Smith and Leonard Turner exchanged 12 telephone calls with Robert Hayden Plummer (par. 17) and that in those 12 calls "line" information was exchanged and wagers or lay off "moves" were made. The affidavit further recited that through telephone company records it was determined (par. 13) that Dennis Michael Finn, one of the alleged participants not named as a defendant here, had made calls to Plummer. The telephone company records were obtained by an F.B.I. agent prior to the receipt of the information of the Smith-Plummer calls in the illegal wiretap (par. 13) and as the result of a tip received from an informant who had observed a Chicago bookmaker call telephone numbers used by Dennis Michael Finn and overheard the bookmaker exchanging line information and placing lay-off wagers.

The information from an informant that a known bookmaker called Finn's number and exchanged line information and made lay-off wagers did tend to show that Finn and the defendants (as shown through the untainted paragraphs of the affidavit) were possibly involved in a gambling operation.

18 U.S.C. § 2515 provides in part that "whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence. . . ." (emphasis added). We held in Roberts that it was "no unusual extension of the scope of suppression under existing law to conclude that the wiretap evidence" obtained through overhearing the defendants on the illegal Smith wiretap was "derived" from that tap. In Roberts the prior illegal wiretaps "prompted" the wiretaps which this court suppressed, 477 F.2d at 60.

Here, the information from the proper sources was obtained prior to the information from the illegal wiretaps. If the tainted three paragraphs had not been in the wiretap application, the wiretap order could have still issued. There was sufficient information to find probable cause based on the untainted proper sources listed in the application. We do not, therefore, conclude that the evidence gathered under this lawful wiretap order (for which there was probable cause) was "evidence derived" from an unlawful wiretap order. This is the same principle which is applied in reviewing the issuance of search warrants where there is a question of whether there was sufficient probable cause to issue a warrant in which both tainted and untainted sources are set forth in the application. Clay v. United States, 246 F.2d 298, 304 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); Chin Kay v. United States, 311 F.2d 317, 321-322 (9th Cir.1962); United States v. Sterling, 369 F.2d 799, 802 (3d Cir.1966).

2. Authorization for wiretaps. John N. Mitchell filed his affidavit in this case to the effect that while he was the Attorney General of the United States he personally approved and...