United States v. Sklaroff

• Decision Date: 11 February 1971
• Docket Number: No. 70-143-CR.,70-143-CR.
• Citation: 323 F. Supp. 296
• Parties: UNITED STATES of America, v. Martin SKLAROFF, Jesse Sklaroff, William Sklaroff, Edward Richman, Jerome B. Hersch, aka Jerry Hersch, Phillip Blott, Joseph Jachman, Henry Gordon, and John Michael DePasquale.
• Court: U.S. District Court — Southern District of Florida

323 F. Supp. 296

UNITED STATES of America, v. Martin SKLAROFF, Jesse Sklaroff, William Sklaroff, Edward Richman, Jerome B. Hersch, aka Jerry Hersch, Phillip Blott, Joseph Jachman, Henry Gordon, and John Michael DePasquale.

No. 70-143-CR.

United States District Court, S. D. Florida.

February 11, 1971.

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Dougald D. McMillan and J. Robert Sparks, Trial Attys. U. S. Dept. of Justice, Miami, Fla., for plaintiff.

James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., E. David Rosen, Miami, Fla., Oscar B. Goodman, Las Vegas, Nev., Richard H. Siegel, Cleveland, Ohio, for defendants.

ORDER ON PRE-TRIAL MOTIONS

CABOT, District Judge.

Movants were indicted by a Grand Jury in this District on March 25, 1970. The 23-count indictment charges, in pertinent part, that certain of the Movants, being engaged in the business of betting and wagering, did, aiding and abetting each other, use and cause to be used wire communication facilities in interstate commerce for the transmission by telephone from Dade County, Florida, to other specified cities in Pennsylvania, Ohio, Maryland, and Nevada of either bets and wagers, or of information assisting in the placing of such bets and wagers, on sporting events and contests, or both, in violation of Sections 1084 and 2, Title 18, United States Code.

Movants Martin Sklaroff and Jesse Sklaroff are named as Defendants in all 23 counts of the indictment. Movants William Sklaroff and Edward Richman are named as Defendants in Counts One through Six. Movants Phillip Blott and Jerome B. Hersch are charged as Defendants in Counts Seven through Eleven; Movants Joseph Jachman and Henry Gordon are named as Defendants in Counts Twelve through Seventeen; and Movant John Michael DePasquale is charged as a Defendant in Counts Eighteen through Twenty-Three.

Each count of the indictment further specifies, with unusual particularity, the numbers and locations of the telephones allegedly used, the Defendants allegedly speaking, the gist of the allegedly unlawful conversation, the persons placing and receiving such long distance telephone calls and even the exact hour and minute when said calls were allegedly placed. The dates alleged in the 23 Counts fall into a six-day period from June 19, 1969 to June 24, 1969, inclusive.

From the pleadings and evidence adduced before this Court in the hearing on the pre-trial motions, it appears that this prosecution is based upon interceptions and recordings by Special Agents of the Federal Bureau of Investigation (hereinafter abbreviated as "F.B.I.") of telephone conversations originating from four specified pay telephone booths located at the Miami International Airport in Dade County, Florida, between June 19 and June 24, 1969. These interceptions were carried out under authority of an Order of Authorization to Intercept issued on June 17, 1969 by United States District Judge W. O. Mehrtens, Southern District of Florida, upon application by the United States, under the provisions of Title III, Omnibus Crime Control and Safe Streets Act of 1968, P.L. 90-351, 82 Stat. 211-225, Chapter 119 of Title 18, United States Code (hereinafter referred to as "Title III" for brevity). The lawfulness of this order and of its manner of execution by the F.B.I. is attacked by Movants herein, as well as the constitutionality of Title III itself.

It further appears and is undisputed by any of the parties that portions of the telephone conversations so intercepted were incorporated into probable cause affidavits by F.B.I. Agents and presented to United States Commissioners as the basis for search warrants for the residences, persons or automobiles, or both, of all Movants herein, except Movant DePasquale. The search warrants were executed by Special Agents on July 3, 1969, and alleged gambling paraphernalia, records, and money was seized from a number of Movants. Motions to suppress have been filed by those Movants before this Court.

There have been a number of motions and actions filed by certain of these Movants prior to indictment and prior to this indictment being assigned to this Court for jury trial. These merit some discussion, because these same motions previously ruled upon by other District Judges have been renewed before this Court in pre-trial motions. Also, the transcript of evidence in previous hearings has been filed in this Court by mutual consent of counsel for Movants and for the United States, for the consideration of this Court.

I. Pre-Indictment Actions and Motions not Heard or Ruled Upon by this Court

On August 12, 1969, Movants Martin Sklaroff, Jesse Sklaroff, William Sklaroff, Phillip Blott, and Eddie Richman, together with one Elmer H. Dudley, and other persons not indicted in this case, filed Civil Action 69-4-Misc-Civil, styled "In Re: Application of United States of America" in the United States District Court for the Southern District of Florida, seeking the return of their intercepted communications and all evidence derived therefrom and to suppress the same from being received in evidence before any Grand Jury or Court. At this time neither the intercepted communications, the participants thereto, nor any matter relating to the circumstances surrounding the conversations had been presented to any Federal Grand Jury. The Government responded with a motion requesting a ruling that petitioners' motions were not timely made. This civil action was heard and ruled upon by District Judge W. O. Mehrtens, the same Judge who had issued the order authorizing the interception.

After filing of briefs, argument, and several evidentiary hearings, Judge Mehrtens issued an opinion and order dated September 2, 1969, holding:

1. That the Order of Authorization is sufficient on its face and fully meets the requirements of 18 U.S.C. Sections 2517, 2518, and 2519.

2. That the concluding sentence of said Order be and it hereby is corrected, nunc pro tunc, to conform with and to show the truth, to wit:

"DONE and ORDERED at Miami, Florida, this 17th day of June, 1969."

3. That sufficient probable cause was shown in the obtaining of said Order.

4. That the interception of conversations was otherwise lawful in all respects.

5. That no rights of Petitioners guaranteed by the United States Constitution and its Amendments were violated.

6. That Title III of the Omnibus Crime Control and Safe Streets Act of 1968 is on its face constitutional, and its application in this case likewise violated no constitutional amendment.

7. That the Motions to Suppress and Petitions for Disclosure are prematurely made.

8. That all of Petitioners' motions are denied in all respects.

Notices of Appeal from this Order of Judge Mehrtens were timely filed but no stay of the Order was requested or obtained by any Appellant. As previously stated, this indictment was subsequently returned on March 25, 1970.

The Government filed a motion to dismiss the appeal in the Fifth Circuit Court of Appeals on the grounds that (1) the motion to suppress was prematurely brought prior to indictment and (2) indictments having since been returned, denial of the motion to suppress was an interlocutory order and therefore not appealable. The appeal was dismissed without ruling upon the merits of Judge Mehrtens' Order as to the legality of the wiretaps. Application of United States, (Dudley et al. v. United States), 5 Cir. 1970, 427 F.2d 1140.

In another civil action prior to indictment in the Northern District of Georgia, Elmer H. Dudley sought to suppress evidence obtained by a July 3, 1969 search of his premises in Atlanta, Georgia, under authority of a Federal search warrant based in part on probable cause obtained from the intercepted telephone conversations authorized by Judge Mehrtens' Order. United States District Judge Sidney O. Smith, Jr. held in an Opinion and Order dated January 5, 1970 that "the absence of the date in the authorization order (of Judge Mehrtens') did not preclude consideration of the wire-tap information and the nunc pro tunc order effectively corrected any deficiency therein." Dudley v. United States, 320 F.Supp. 456 (N.D.Ga.).

Judge Smith further denied the motion to suppress in all respects except as to certain money seized from said Dudley. An appeal of this Order was likewise dismissed on motion of the United States in an Order without opinion by the Fifth Circuit Court of Appeals.

Finally, this Court has a copy of an unpublished opinion by United States District Judge Newell Edenfield, Northern District of Georgia, dated September 30, 1970, filed in Indictment No. 26,355 in which Martin Sklaroff and Jesse Sklaroff were indicted along with Co-defendants Elmer Hanford Dudley and Barney Tillman Berry on March 3, 1970 for violations of 18 U.S.C. §§ 2, 371, and 1084. From careful study of Judge Edenfield's opinion, it appears that Movants Martin Sklaroff and Jesse Sklaroff have filed pre-trial motions in that case which are virtually identical to many of those filed in the instant case before this Court. Judge Edenfield refers to the prior rulings of Judge Mehrtens and Judge Smith and accepts their rulings, subject to a determination as to what extent the defendants, including Berry who was not a party to those prior civil actions, are bound by the prior rulings. United States v. Skarloff, et al., Indictment No. 26,335, N.D.Ga.1970 (unreported).

Thus it appears that many issues in this case have already been considered and ruled upon by three United States District Judges prior to their coming before this Court for decision.

This Court is deeply concerned about the propriety of my considering de novo many of the issues which have already been determined by my colleague on the bench of this Court, Judge Mehrtens, after extensive evidentiary hearings and arguments of law. After considerable study, I am constrained to consider and rule de novo on these questions for...